Rabinder Singh vs Union of India and anr.

A.P. Chowdhri, J. (Oral)

The fact giving rise to this Criminal Writ Petition under Articles 226/2Z7 of the Constitution of India are that the petitioner is a Naik Driver in the Indian Army. In an incident which occurred on 2nd March. 1986, the petitioner is alleged to have murdered one Major H. S. Chauhan and Naib Subedar V. V. Gopi and attempted to murder another Major Amar Nath by firearm. The petitioner was tried in General Court Martial and convicted and sentenced to life imprisonment by order dated 3121986. The orders together with the relevant papers were submitted to the higher authorities for confirmation. A revisional order was passed requiring that the Court reconsider the sentence and impose appropriate sentence in the case. The General Court Martial again met for considering the revision on 21st January, 1987 and imposed inter alia the sentence of death and again the case was submitted to the confirming authority on 22nd January 1987. The confirming authority approved the order on 2nd November, 1988.

The present petition was filed on 24th August, 1988. The grievance stated therein was that the petitioner had not been supplied copies of the orders passed in the first instance by the General Court Martial as also the revisional order passed by higher authorities and he was thus handicapped in making an effective representation. It was prayed that the respondents be directed to supply the necessary documents as detailed in Annexure P1 without any further delay and till then, the execution of the sentence of death be suspended.

A return has been filed to the above writ petition as also an additional affidavit with regard to the later development of the case.

Last time when the case was taken up Shri Mohinderjit Singh Sethi, Senior Advocate failed to turn up. The case was adjourned with a direction that the case be got noted from the counsel. Accordingly, in response to a letter issued by the Registry, Shri Harpal Singh Advocate, Junior of Shri Mohinderjit Singh Sethi appeared and the case was adjourned until today. No one has appeared. Efforts to secure the presence of the counsel by sending a messenger has proved in vain as he is not available.

Shri G.B.S. Sodhi. Advocate, has invited my attention to Rule 147 of the Army Rules, 1954 which reads as under :

"Right of person tried to copies of proceedings. Every person tried by a courtmartial shall be entitled on demand. at any time after confirmation of the finding and sentence, when such confirmation is required and before the proceedings are destroyed, to obtain from the officer or person having the custody of the proceedings a copy thereof, including the proceedings upon revision, if any."

The learned counsel submitted that according to this Rule, the petitioner was entitled to the copies on demand only after the finding and sentence imposed by the General Court Martial had been confirmed. He further pointed out that the confirmation in the instant case was made on 2nd November, 1988. and, therefore, the filing of the petition on 24th Aug., 1988 was premature.

The learned counsel referred to various documents on the record and those brought by the Officers concerned, who are assisting him to show that the necessary copies had been supplied to the petitioner. In this connection, he invited my attention to application dated 2nd August, 1988, made by the petitioner through his counsel for copies of the proceedings by the General Court Martial including the finding and sentence. These were supplied on 191988. A copy of the confirmation order was supplied on 16121988 while the petitioner was in jail and his signatures were obtained in token of receipt of the said copy. It was expressly mentioned in the said confirmation order that the petitioner had a right to file an appeal in accordance with law.

After hearing the learned counsel for the respondents and seeing the records referred to above and produced by him, I am satisfied that all copies which were asked for by the petitioner have since been furnished to him. Nothing survives for consideration. The petition is accordingly disposed of. A copy of this order be sent to the petitioner in Central Jail, Patiala. so that if so advised he may prefer a post confirmation appeal under Section 164 of the Army Act within the period of limitation allowed by law.