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TMI Blog1997 (12) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal by discussing and appreciating the evidence. Reliance is placed on Nagendra Nath Bora Versus The Commissioner of Hills Diven and Appeals 1958 SCR 1240 wherein this court held that the High Court had no power under Article 226 to issue a writ of certiorari in order to quash an error of fact, even though it may be apparent on face of the record unless there is an error of law which is apparent on the face of the record. The court observed that the jurisdiction of the High Court is limited to seeing that the judicial or quasi-judicial tribunals or administrative bodies exercising quasi-judicial powers do not exceed their statutory jurisdiction and correctly administer the law laid down by the Statute under which they act. 3. In H.S. and I.E. Board, U.P. Versus Bagleshwar AIR 1966 SC 875, the court held that an order passed by a Tribunal holding a quasi judicial enquiry which is not supported by any evidence is in order which is erroneous on the face of it and as such is liable to be quashed by the High Court under Article 226. In Parry Co. Versus Judge, 2nd I.T. Cal. AIR 1970 SC 1334 the court held that a writ is granted generally when a court has acted without or in excess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a requirement was there it would not have been necessary to make a specific provision for recording of reasons for the recommendation to mercy. The said provisions thus negative a requirement to give reasons for its finding and sentence by the court martial and reasons are required to be recorded only in cases where the court martial makes a recommendation to mercy. In our opinion, therefore, at the stage of recording of findings and sentence the court martial is not required to record its reasons and at that stage reasons are only required for the recommendation to mercy if the court martial makes such a recommendation . 6. In Chaturvedi Versus Union of India (1995) 6 SCC 749, the court observed that judicial review is not an appeal from a decision but a review of the manner in which the decision is made and the power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. 7. Relying on the aforesaid relines learned counsel for the appellants submit that the High Court in this case has exceeded its jurisdiction not only by reappreciat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... angal (PW 16) has deposed that on 27th September, 1992 he was told by the accused that he was issuing SRTs from defence brick stores so that early completion of permanent Defence OP Task could be ensured. (b) PW 16 has further stated that on the inster of the accused he wrote letter dated 24th October, 1993 (Ext.M) to all coys asking them to identify such PDs where the said SRTs have been utilise and confirm the same by 13th October, 1992, this action of accused is subsequent to and not prior to his writing the said letter (Ext.Q) (c) Vide his noting sheet dated 20th October, 1993 (Ext.M) addressed to Maj. Gen. K.C. Dhingra, V.S.M. the accused in para (c) had mentioned that he had accepted below specification SRTs to make up the SRTs of defence brick issued by him for Job s - 212. (d) Vide his letter to Maj. Gen. K.C. Dhingra, V.S.M. dated 20th October, 1993 (Ext. O) the accused had stated therein his opinion the SRTs supplied by M/s. Dhariwal Steel Ltd. should be utilise for making up of the deficiency of Defence Brick SRTs which had been issued for consturction of PDs. (e) 673 SRT out of a total of 680 were found at ETP-V when checked by Lt. Col. K.K. Khosla (PW 27) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement or answer to a question made or given at a Court of Inquiry. Ex. Q 10 does not belong to any of the above categories. The latter part of the Rules refers to evidence respecting the proceedings of the Court and prohibits the same being given except upon the trial of such person for wilfully giving false evidence before that Court. That part of the rule is also not acceptable. Moreover, Ex.Q-10 does not refer to any query being put by the addressee. It has only referred to an earlier letter dated 20.10.1993. Reliance is placed upon the caption in Ex. Q-10 which makes a reference to staff of Court of Inquiry. That does not help the respondent in any manner. We have been taken through the averments contained in the writ petition filed by the respondent before the High Court. They do not disclose as to how the letter could be said to be falling within the scope of Rule 182 of the Army Rules. Hence, the view of the High Court is based on a flagrant error that the document was inadmissible in evidence. 14. The other reason given by the High Court for interferring with the findings is that Ex. AW by Lt. SRTs out of a total of 680 were found at ETP-V when he checked the same on 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernators (Ex.U). At the same time the accused asked him to take the Bd. proceeding to Maj. G.K. Mediratta (PW 21) and obtained his signatures also on the Bd. proceeding to whom the accused had already spoken to PW 6 has also stated that at no stage the Bd. of offers has physically assembled to check the generators/alternators after repairs. (b) Maj. G.K. Mediratta, 9PW 21) has deposed that the Bd. proceeding were brought to him by PW 6 and he signed the said Bd. proceedings. he has also averred that the Board physically never assembled. (c) Sub. KKV Pilla (PW 24) has deposed that he signed the Board proceedings on insistence of PW 21 and he did not even known at that stage which Bd. proceeding he was signing. (d) Major MMS Bharaj (PW 11) has deposed that before making the payment he had told the accused that the said Bd. proceeding (Ex.U) were neither countersigned nor dated and on the inster. of accused he put the date as 27 (Exhibited as U-5)d. He (PW 11) has further stated that at the time of making payment he had also informed the accused that it will not be correct to make the payment since all generators had not come after repairs. (e) According to deposition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so long as the person to whom it was made has not acted upon it at the time when it might become conclusive by way of estoppel. The same principle has been reiterated in K.S. Srinivasan versus Union of India AIR 1958 S.C. 419, Basant Singh Versus Janki Singh AIR 1967 S.C. 341 and P.Ex-s. Co-op. T. F.S. Versus State of Haryana. AIR 1974 S.C. 1121. 18. The appellants herein contended before the High Court that the relevant provision of the evidence Act is Section 92, Proviso 1. The same contention was repeated before us. In our view neither Section 92 nor Section 94 is attracted in this case. Hence, the view of the High Court that the oral evidence given by PWs 6, 21 and 24 is inadmissible is totally erroneous. 19. There is another aspect of the matter to be considered. Section 133 of the Army Act provides that the Indian Evidence Act shall subject to the provisions of the Act applied to all proceedings before the Court Martial. Section 134 provides that a Court Martial may take judicial notice of any matter within the general military knowledge of the members. It is quite obvious that in this case the Court Martial had taken judicial notice of the fact that a lower official ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is an indication of his intent. 21. The High Court reversed the finding on this charge on the same reasoning as with reference to Charge No.3. The High Court has held that the oral evidence adduced before the Court Martial was inadmissible. The reasons which we have already give when we dealt with Charge No.3 are equally applicable here. 22. Hence, we hold that the High court s in error in interferring with the findings of the Court Martial on Charge No.8. 22. The Nineth Charge read as follows: AN OMISSION PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE In that he, at filed, between 01 Nov. 92 and 21 Nov. 93 while being the Commanding Officer of 116 Engr. Regt. and having come to know about the losses/deficiencies of Defence Brick Stores on charge of his regiment, improperly omitted to report the said losses/deficiencies in contravention of Para 1(c) of SAO 13/s/80. 23. It is unnecessary for us to consider the discussion of this charge by the Court Martial for on the face of it the charge is unsustainable. The charge is under Para 1(c) of SAO 13/2/80. A copy of the said SAO has been produced before us. The relevant part of it reads as follows: ADJUT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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