Prakash M.K. and Others vs The Union of India and Others

K.L. Manjunath, J.—Aggrieved by the order of the learned Single Judge dated 20.08.2009 passed in Writ Petition No. 6781/2008, these appeals are filed by the appellants.

The appellant in W.A. 4832/2010 was respondent No. 6 in the writ petition. The appellants in W.A. 2999/10 are the Union of India represented by Ministry of Defence, Chief of Army Staff and General Officer Commanding, Northern Command, Udhampur. Therefore, these two appeals are heard together.

Heard learned counsel appearing for all the parties.

The writ petition was filed by Mr. Balaraj, Police Intelligence Report, State Intelligence, Davangere requesting the Court to issue a writ of certiorari to quash the order passed by Colonel Commanding Officer - 5th Respondent vide Ann, ''A'' dated 23.02.2008 in passing an order under Rule 24(1)(c) of the Army Rules holding that the allegations made against Havaldar Prakash M K - son-in-law of the petitioner in W.P. No. 6781/2008, as having been dismissed and also to issue a writ of mandamus directing the 3rd respondent to produce all the records from the from the Command Hospital and also to issue a mandamus directing the CBI to hold an enquiry including the Norco Analysis Organisation Examination and also to issue a direction to reject the order passed by the 7th respondent as illegal and unconstitutional.

The facts leading to the filing of the writ petitions are hereunder:

"- The petitioner M. Balaraj''s daughter by name Arundhati was given in marriage to Prakash M K who was working as Laince Havildar No. 662, Army Aviation Squadron, Jammu and Kashmir. The marriage was celebrated on 18.11.2004 at Chitradurga. After the marriage, Prakash and his wife Arundhati started living together in the quarters given to them at Nagrota, Jammu & Kashmir. The daughter of the writ petitioner - Arundhati sustained burn injuries at her residence on 27.05.2006 at about 10.00 am. She was shifted to M.I. Room of the unit with the help of her husband and neighbours and thereafter, she was shifted to Military Hospital at Udampur on 29.05.2006 and she was declared dead at about 3.30 pm on 5.6.2006. After learning the burn injuries sustained by their daughter, the petitioner and his wife left for Nagrota and reached the place on 30/31-5/2006. On 7.7.2006 i.e., after one month and two days after the death of petitioner''s daughter, an FIR was lodged by the petitioner''s wife stating that it is not an accidental burn, it is a death caused by her son-in-law -Prakash since her daughter did not heed to bring dowry. In the circumstances, the matter was pending before the jurisdictional Magistrate, Jammu & Kashmir. Thereafter, on the request made by the defence, the case was withdrawn from the jurisdictional Magistrate on the ground that the Department of defence would hold a Court Martial proceeding. Accordingly, file was returned by the jurisdictional Magistrate to the Department."

The department conducted an enquiry following the procedure contemplated under Section 24(1) of the Army Rules referred to as ''Court of Enquiry'' and found that there was no involvement of Mr. Prakash in the death of his wife Arundhati. Accordingly, the matter was closed by sending an information to Civil Judicial Magistrate vide Annexure "A" dated 23.02.2008. Challenging the same, the writ petition came to be filed by the writ petitioner on the ground that when once the department had withdrawn the file from the Civil Judicial Magistrate on the ground that Court Martial would be conducted against Prakash, they had no right to close the matter by holding a Court of enquiry.

Learned Single Judge allowed the writ petition and directed the respondents to hold a Court Martial afresh in accordance with law.

Challenging the legality and correctness of the order passed by the learned Single Judge, the Union of India and Chief of Army Staff has filed the appeal contending that the learned Single Judge has not considered the case properly. According to the Union of India, before conducting a Court Martial proceeding, the department has to follow the procedure as contemplated under Rules 22 and 23 of the Army Rules, 1955. Therefore the summoning officer was justified in collecting the evidence after conducting the enquiry came to the conclusion that there was no involvement of Prakash in the case of death of his wife. Therefore, the appeal is filed by the Union of India.

Prakash has also filed an appeal contending that the learned Single Judge did not consider the case of the parties properly. According to him, his wife died in a fire accident and he is in no way responsible for the cause of her death. According to him, the appellant and his wife - Arundhati were on cordial terms and they lived together happily for 2 years and during the period of 2 years of their stay at Nagrota, there was no occasion for his wife to complain about his character and there was no need for him to demand for dowry and the complaint was lodged by his mother-in-law as an after thought one month and two days after the death of his wife. According to him, having noticed that his wife''s clothes caught fire, he made an attempt to save her and in the process, his both the hands and chest were burnt and he was also admitted to the hospital along with his wife. He was discharged after the death of his wife. According to him, in the enquiry, the evidence collected by the enquiry officer revealed that the allegations made against him were false and in the circumstances, the report submitted by the enquiry officer is just and proper and no illegality is committed by the defence department in closing the case.

Learned counsel for the respondent has relied on a Judgment of the Hon''ble Supreme Court in Union of India (UOI) Vs. Major S.K. Sharma, wherein paragraph 13 is extracted for ready reference:

"13. On the aforesaid analysis we are of the opinion that the Army authority is not entitled to ignore the proceeding taken by the Additional Chief Judicial Magistrate and to invoke the provisions of Rule 22 and related rules of the Army Rules. The Additional chief Judicial Magistrate having hold that there is a case for trying the two accused officers and having directed their appearance, the Army authority must proceed to held a court martial for their trial or take other effectual proceedings against them as contemplated by the law. The contention advanced by learned counsel for the appellants to the contrary must be rejected."

According to the learned counsel for the appellants, the aforesaid Judgment has no application to the facts of the present case. According to them, the question involved in this appeal is squarely covered by the Judgment of the Hon''ble Apex Court in MAJOR GENERAL INDER JIT KUMAR v. UNION OF INDIA & ORS DATED 20.03.1997.

"The appellant has also contended that copy of the report of the Court of Inquiry was not given not to him and this has vitiated the entire Court Martial. The appellant has relied upon Rule 184 of the Army Rules, 1954 in this connection. Rule 184, however, provides that the person who is tried by a Court Martial shall be entitled to copes of such statements and documents contained in the proceedings of a court of Inquiry as are relevant to his prosecution or defence at his trial. There is no provision for supplying the accused with the copy of the report of the court of Inquiry. The procedure relating to a Court of inquiry and the framing of a charges was examined by this Court in the case of Major G.S. Sodhi Vs. Union of India (UOI), . This Court said that the Court of Inquiry and participation in the Court of Inquiry is at a stage prior to the trial by Court martial. It is the order of the Court Martial which results in deprivation of liberty and not nay order directing that a charge be heard or that a summary of evidence be recorded or that a Court martial be convented. Principles of natural justice are not attracted to such a preliminary inquiry. Army Rule 180, however, which is set out earlier gives adequate protection to the person affected even at the stage of the Court of Inquiry. In the present case, the appellant was given that protection. He was present at the Court of Inquiry and evidence was recorded in his presence. He was given an opportunity to cross-examine witnesses, make a statement or examine defence witnesses. The order of the Court of Inquiry directing that a Court Martial be convened and framing of charges, therefore, cannot be faulted on this ground since it was conducted in accordance with the relevant Rules."

In the instant case, the matter was referred to Civil Magistrate but no trial had commenced nor summons was issued to the witnesses. Even before proceedings were taken-up, the department has withdrawn the file from the Civil Magistrate on the ground that action would be initiated against Prakash under the provisions of the Army Act. If the case has been withdrawn from the Civil Magistrate on the premise that Court Martial will be held and in order to hold a Court Martial, a Court of Enquiry is required to be held and if the said procedure is followed, we cannot find fault with the order passed by the defence department. Accordingly, the Judgment relied upon by the counsel for the respondent has no application to the facts of the case.

Learned counsel appearing for the respondent/writ petitioner contends that the learned Single Judge is justified in allowing the writ petition because his daughter died in a suspicious circumstances and that she was always harassed by her husband. According to him, when the file was withdrawn by the department from the competent Magistrate holding that Court Martial proceedings would be held, it was incumbent on the department to hold a Court Martial and not holding a Court of enquiry. Therefore, he requests the Court to dismiss the appeal.

We have heard learned counsel for the parties. What is to be considered by this Court in these appeals is, "Whether the procedure followed by the defence department in holding a Court of enquiry without conducting the Court Martial is just and proper?"

It is not in dispute that Arundhati died due to burn injuries. She sustained burn injuries on 27.05.2006 in the quarters allotted to her husband. Before the incident, husband and wife lived together happily for two years. She was shifted to Military Hospital, Udampur on 29.05.2006. On the next day her parents visited her. If really, they had suspicion about the burn injuries sustained by their daughter, if really Prakash was harassing his wife for dowry, they could have lodged a complaint immediately when they visited Nagrota on 30.05.2006. Arundhati died on 5.6.2006. Immediately after her death also the mother or father has not lodged any complaint. The complaint is lodged on 7.7.2006 i.e., one month and two days after the death of Arundhati. It is also not in dispute that Prakash sustained burn injuries to his both palms and hands so also to his chest. If really, Prakash was responsible for the cause of death of his wife by setting her ablaze, he would not have made an attempt to save her. The neighbours who have seen the incident, have shifted the deceased along with Prakash. Therefore, the evidence collected in the enquiry report discloses there was no hand of Prakash in the cause of death of his wife.

The question is whether the department was required to conduct a Court Martial without holding Court of enquiry and Whether the Court Martial is mandatory without following the Court of enquiry?

It is not in dispute that in order to hold a Court Martial, a Court of enquiry is required to be made in order to collect evidence where Court Martial is required or not. In other words, without conducting a Court of enquiry and without summoning, the Court Martial cannot be done. In such circumstances, the department has followed the procedure. We do not find fault with the procedure followed by the department based on the Court of enquiry where the case against Prakash is closed. This crucial point has not been properly appreciated by the learned Single Judge. In the circumstances, we allow these appeals. The order passed by the learned Single Judge in W.P. No. 6781/2008 dated 20.8.2009 is set-aside.