Crl.WP No. 627 of 2000 1 IN THE PUNJAB AND HARYANA HIGH COURT, CHANDIGARH Crl.WP No. 627 of 2000 Date of decision: 2.4.2009 Ex-Sepoy B.K.Biswas Petitioner vs Union of India and another Respondent Present Mr. SS Johl, Advocate. Mr. Anil Rathee, Advocate for UOI M.M.S.BEDI,J. The petitioner an Ex-Sepoy has filed this writ petition under Article 226 of the constitution of India challenging the conviction and sentence of rigorous imprisonment for one year vide order dated 9.10.1987 besides dismissing him from service passed by the summary court martial on the allegation that on 16.7.1987 he had committed theft of 3, jerricans containing 60 liters of DHPP, valued at Rs.211.80 belonging to the Government. The second charge , which was levelled against him was that he had committed theft of 6 jerricans , containing 120 liters of DHPP, valued at Rs.423.60/- belonging to the Government. The petitioner has averred that he had joined the Army in November 1984 when he was 17 ½ years of age. He was asked to drive MT vehicles. On account of having not got sufficient experience, his officer did not appreciate his work and out of vindictiveness, summary court martial proceedings were held against him Crl.WP No. 627 of 2000 2 for the above said charges. Col. K.N.Pandit, Commanding Officer 7002 E.M.E. Battalion, had held the trial of summary court martial and finished the same within four minutes from 1020 hours to 1024 hours and reviewed it at 1035 hours. Learned counsel for the petitioner has contended that the impugned order dated 9.10.1987 (Annexure P-1) is liable to the set aside on the ground that the summary court martial is invalid as the mandatory and statutory provisions under Rules 22 to 24 and 34 of the Army Rules have not been complied with; the officer holding the summary court martial, had not asked the petitioner whether he objected to be tried by the said officer, which is an important procedural safe-guard, as such the summary court martial proceedings were not fair. The provisions of Section 120 of the Army Act had not been complied with. The action of the respondents is, thus, illegal and the petitioner is entitled for reinstatement with all consequential benefits. The Union of India in its written statement has taken up the preliminary objection that the petitioner has not filed any appeal u/s 164(2) of the Army Act and the writ petition is, thus, not maintainable. The petitioner has not approached this court with clean hands as he has failed to disclose that he pleaded guilty of the charge, for which reason the punishment was imposed upon him. It was vehemently urged that disputed questions of fact involved in the writ petition, which cannot be gone into by this court while exercising the writ jurisdiction. It was further urged on behalf of the respondents that the provisions of Section 130 of the Army Act are not applicable to the trial of summary court martial and the officer Crl.WP No. 627 of 2000 3 holding the trial was not required to ask the petitioner if he had any objection or not. The trial was conducted strictly in accordance with the Army Act and and the Army Rules and no law was violated. He, having pleaded guilty of all charges, has rightly been convicted by the summary court martial. So far as the jurisdiction of the Commanding Officer to hold summary court martial is concerned, it was argued that the Commanding Officer was competent to try the petitioner. The petitioner had committed theft of the property of the Government and sold the same to the unauthorized persons. He, being custodian of the property, stolen by him, has rightly been held guilty of the charges by the summary court martial u/s 52(a) of the Army Act. The petitioner instead of filing a petition according to law, filed a mercy petition u/s 179 of the Army Act, which was dealt with by the competent officer and the same was rejected taking into consideration the evidence on record. Mr. SS Johl, learned counsel for the petitioner had also submitted a written brief, reiterating the pleas taken in the writ petition. He contended that on account of violation of the statutory provisions of the Army Act and the violation of the rules of natural justice, the conviction, based on the sole confession of the petitioner, is not sustainable. He placed reliance on Bhagwan Singh vs Union of India and others 1983 Cr.L.J. 1368, wherein, in a case of General Court Martial, in reference to Rule 52 of the Army Rules, it was held that it was mandatory that the charge was explained to the accused in a language which he understood. After going through the entire record carefully, it is apparent that the petitioner had pleaded guilty on 9.10.1987, for which reason he Crl.WP No. 627 of 2000 4 was sentenced to undergo rigorous imprisonment for one year besides granting punishment of dismissal from service. The said fact has not been specifically mentioned in the writ petition. So far as the violation of the statutory provision is concerned, the petitioner has himself failed to avail the statutory remedy available to him u/s 164 of the Army Act, which reads as follows:- “ Remedy against order, finding or sentence of court- martial.-- (I) Any person subject to this Act who considers himself aggrieved by any order passed by any court-martial may present a petition to the officer or authority empowered to confirm any finding or sentence of such court-martial, and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates. (2) Any person subject to this Act who considers himself aggrieved by a finding or sentence of any court-martial which has been confirmed, may present a petition to the central Government, [ the Chief of the Army Staff] or any prescribed officer superior in command to the one who confirmed such finding or sentence, and the Central Government, [ the Chief of the Army Staff ] or other officer, as the case may be, may pass such orders thereon as it or he thinks fit.” A perusal of the above said provision indicates that the petitioner had an alternate remedy, if he felt aggrieved by the order passed by the court martial. Instead of presenting a petition u/s 164(2) of the Army Act , he filed a petition under Section 179 of the Army Act for pardon and remission, which was dismissed. No doubt a writ petition cannot be thrown away merely on the ground that provision u/s 164 (2) of the Army Act Crl.WP No. 627 of 2000 5 having not been availed of but where the petitioner has concealed the factum of having made a confession and had sought the intervention of the High Court on the ground that there had been a violation of the statutory provisions, the writ petition can be dismissed on the ground that the petitioner has got an alternate efficacious remedy, available to him. In view of the above, this writ petition is dismissed on the ground that the petitioner has not availed the alternate remedy, available to him and also on the ground that the factum of he having pleaded guilty was concealed. April 2 ,2009 ( M.M.S.BEDI ) TSM JUDGE