Forces Tribunal not to interfere in judgment of Summary Court Martial
Dafadar Kartar Singh, the respondent-herein was tried by the Summary Court Martial for a civil offence of house breaking by night. He was found guilty of the charge and was sentenced to rigorous imprisonment for seven months apart from dismissal from service and reduction in the ranks. The conviction was set aside by the Armed Forces Tribunal, Regional Bench, Chandigarh (for short, “the Tribunal”). The Tribunal directed that the respondent shall be deemed to be in service w.e.f. 10.11.1999 till the date of his superannuation in the rank of Dafadar. He was also held to be entitled to all allowances for the said period and pensioner benefits. These Appeals are directed against the said judgment of the Tribunal.
At the conclusion of the trial, the Summary Court Martial found the respondent guilty of the charge and sentenced him to reduction in the ranks, dismissal from service and rigorous imprisonment for seven months.
Challenging the order of the Summary Court Martial, the respondent filed a writ petition before the High Court of Punjab and Haryana in the year 1999, which was transferred to the Armed Forces Tribunal, Regional Bench at Chandigarh (“the Tribunal). By a judgment dated 6.2.2012, the Tribunal set aside the conviction and directed reinstatement of the respondent without consequential benefits. The application filed by the appellants for grant of leave to appeal to this Court was rejected by the Tribunal 6.2.2014.
Hon’ble L.N. Rao and Hemant Gupta, JJ., have held that in view of the contradictions in the evidence of Smt. Sudesh, the Tribunal was convinced that the identity of the intruder inside the house of Smt. Sudesh was not proved. The minor contradictions in the evidence of Smt. Sudesh have been blown out of proportion by the Tribunal. There is a ring of truth in the evidence of Smt. Sudesh and there is no reason for her to falsely implicate the respondent.
The judgments of acquittal may be reserved or otherwise disturbed only for very substantial and compelling reasons. Very substantial and compelling reasons exist when the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. Ghurey Lal v. State of U.P. The judgment of the Tribunal cannot be sustained in view of the material evidence on record not being considered at all except for highlighting the contradiction in the evidence of Smt. Sudesh. The Tribunal miserably failed to consider the other all oral testimonies, especially of Master Bittoo who was in the quarters at the time of intrusion, Lance Naik A. Hussain- Court witness No.1 who reached the place of the incident, Smt. Sunita Devi and Smt. Mithilesh-mother of Bittoo. All these persons spoke about the incident and there is no contradiction in their versions. The other material on record has also been ignored by the Tribunal is the photograph of the bruises on both the arms of respondent and the opinion of the doctor which was placed on record which lend support to the prosecution version. There is sufficient evidence on record to show that house breaking had in fact taken place. In addition, material on record clearly points to the guilt of the respondent. After examining the evidence available on record carefully, we are convinced that the judgment of the Summary Court Martial ought not to have been interfered with by the Tribunal.
The judgment of the Tribunal is set aside and the order passed in Summary Court Martial is restored. The sentence of improvement is however modified to the period already undergone. The other penalties of dismissal from service and reduction to ranks are restored.
Union of India v. Dafadar Kartar Singh, 2020(205) AIC 1 SC
DISCRETION OF GRANTING BAIL EXERCISED IN CONTRAVENTION OF DIRECTIONS OF APEX COURT MAY BE SET ASIDE
This batch of appeals arises from a judgment of a learned Single Judge of the High Court of Rajasthan at its Jaipur Bench dated 10 May, 2019. Allowing the bail application filed under section 439 of the Code of Criminal Procedure, 1973 (Cr PC), the High Court enlarged the first respondent on bail subject to certain conditions therein. The original complainant is in appeal before this Court.
Hon’ble Dr. D.Y. Chandrachud and Hrishikesh Roy, JJ., have held that essentially, this Court is required to analyse whether there was a valid exercise of the power conferred by section 439 of the Cr. PC to grant bail. The power to grant bail under section 439 is of a wide amplitude. But it is well settled that though the grant of bail involves the exercise of the discretionary power of the Court, it has to be exercised in a judicious manner and not as a matter of course.
The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. No straight jacket formula exists for Courts to assess an application for the grant or rejection of bail, the Court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused sub-serves the purpose of the criminal justice system. Where bail has been granted by a Lower Court, an Appellant Court must be slow to interfere and ought to be guided by the principles set out for the exercise of the power to set aside bail.
Where a Court considering an application for bail fails to consider relevant factors, an Appellate Court may justifiably set aside the order granting bail. An Appellate Court is thus required to consider whether the order granting bail suffers from a non-application of mind or is not borne out from a prima facie view of the evidence on record. It is thus necessary for this Court to assess whether, on the basis of the evidentiary record, there existed a prima facie or reasonable ground to believe that the accused had committed the crime, also taking into account the seriousness of the crime and the severity of the punishment.
Without expressing any finding or opinion on the merits of the case, a case has been made out for setting aside the bail granted by the High Court. The High Court has manifestly erred in not taking note of the material which has been adverted to above. The order passed by the High Court fails to notice material facts and shows a non-application of mind to the seriousness of the crime and the circumstances referred to earlier which ought to have been taken into consideration.
The High Court has erred in not considering material relevant to the determination of whether the accused were to be enlarged on bail. The order of the High Court enlarging the accused on bail is erroneous and liable to be set aside.
There is another reason why the judgment of the learned Single Judge has fallen into error. It is a sound exercise of judicial discipline for an order granting or rejecting bail to record the reasons which have weighed with the Court for the exercise of its disciplinary power. In the present case.
Where an order refusing or granting bail does not furnish the reasons that inform the decision, there is a presumption of the non-application of mind which may require the intervention of this Court. Where an earlier application for bail has been rejected, there is a higher burden on the Appellant Court to furnish specific reasons as to why bail should be granted.
Mahipal v. Rajesh Kumar, 2020 (205) AIC 5 SC
