9911796707
TMI Blog1969 (3) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... laid before us. 3. The petitioner's allegations broadly are that he was working as Senior Accounts Officer at No. 4 Base Repair Depot Air Force, Kanpur since June 1966 under the command of Group Captain A. S. Srivastava. During the course of his employment in the said depot some defalcations came to light whereupon the authorities ordered two Courts of Enquiry to be assembled. The reports submitted by the Courts of Enquiry held Group Captain A.S. Srivastava to be responsible for irregularities in accounts. However on 15-6-1968 the petitioner was served with a charge-sheet consisting of 31 charges alleging criminal misappropriation of various sums of money totalling ₹ 29,000/- by him. 4. The petitioner complains that when he was ordered to appear before the Commanding Officer the charges were merely read over to him and no effective opportunity was given to him to meet those charges. He submits that under sub-r (a) of R. 15 of the Air Force Act Rules, 1950, it is incumbent on the commanding Officer to hear the accused in defense of each charge and also to give him full opportunity to cross-examine any witness against him before any further proceedings are taken. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently to the charges that had previously been framed by the Commanding Officer, but it is contended that charges preferred before a Commanding Officer are tentative in nature and may be altered, amended or added to in the final charge-sheet on which the accused person is brought to trial before Court-martial. 10. As regards petitioner's allegations against involvement of A.S. Srivastava, the return affidavit states that the Court of Enquiry had no doubt taken the view that the officer had not properly carried out periodical check of Public Fund Accounts as he should have done and there was lack of supervision on his part; but as a result of due investigation, the Central Bureau of Investigation had come to the conclusion that there was no evidence on which the charge of misappropriation or making the charge of misappropriation or making of false entries in documents could be substantiated against him. In the circumstances, the entire blame fell on the petitioner and as such there was no question of any joint trial of the petitioner with Group Capt. Srivasta. 11. With regard to the admission of the petitioner's confessional statement in evidence, it is stated that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the point as to how far it was open to this Court, while dealing with a petition for a writ of habeas corpus to go into the legality of a conviction and sentence recorded by a duly convened and constituted court-martial and also on the scope of Rule 15 of the Air Force Act Rules 1950. 16. The petitioner's counsel conceded that normally a writ of habeas corpus cannot issue to question the correctness of a decision of a court of competent jurisdiction for it is not a writ of error nor does a High Court in habeas corpus proceedings, strictly speaking, sit as a court of appeal or of general superintendence to review the order of conviction. She however submitted that, that was the position in law before the advent of the Constitution when it was recognised all round that a writ of habeas corpus could not be granted to a person committed to prison after he had been convicted by a duly constituted Court-martial and the proceedings and sentence were confirmed by a competent authority. The inclusion of Article 21 in the Constitution, however brought about a radical change in the situation inasmuch as the said Article in terms provides that no person shall be deprived of his life ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be tried either by a Court-martial or by a criminal Court. The contention urged on behalf of the petitioner was that the Court-martial had no jurisdiction to try and convict the petitioner having regard to the mandatory provisions of Section 125 of the Act and having regard to the fact that the Officer Commanding of the unit had in the first instance, decided to hand over the matter for investigation to the civil police. Certain other questions relating to the legality of the procedure followed at the trial of the case and the necessity of a speaking order by the confirming authority were also raised. The learned Judges went into those questions and ultimately dismissed the petition holding that there was neither any error of jurisdiction nor any error of law on the face of the record which entitled the petitioner to a writ of certiorari for quashing the order. 20. The question of maintainability of the petition was neither raised before their Lordships nor discussed by them. In any event, the prayer in the petition was in terms for grant of a writ of certiorari and there is no indication in the judgment at all that there was any prayer for a writ of habeas corpus. The petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner's prayer was that he be set at liberty. The Bench approvingly referred to an earlier judgment of my Lord the Chief Justice sitting singly as a Judge of the Punjab High Court in Mrs. Saroj Prasad v. Union of India, (Criminal Writ No. 1-D of 1963) D/- 13-5-1963 (Punj) and also referred to a short extract from a concurring note added by Bachawat J., in the Supreme Court's judgment in Ghulam Sarwar v. Union of India 1967CriLJ1204 where it was said:- It is to be noticed that the present petition does not challenge the validity of an order of imprisonment passed in a criminal trial. I must not be understood to say that the remedy of a writ of habeas corpus is available to test the propriety or legality of the verdict of a competent Criminal Court. And finally summed up the position in the following words:- The principle that a writ of habeas corpus is not grantable in general when the party is convicted in due course of law is attracted with greater strictness to a person convicted by a duly constituted Court-martial, the finding and sentence of which have, in due course, been confirmed by a competent authority. Nothing has been shown which would includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25. Our attention was also invited to a judgment of Viscount Reading C.J. (Darling and Avory, JJ. With him) in Rex v. Governor of Lewes Prison ex parte Doyle (1917) 2 Kb 254 where the point raised on behalf of the prisoner was that the warrant of commitment and the conviction were/or alternatively one or the other was bad, and that the proceedings were invalid on the ground that the Field General Court-martial had heard the case in camera. 25-A. Learned counsel argued that although the question of holding the trial in camera was merely a question of procedure yet the validity of conviction and commitment was allowed to be canvassed in that case on that ground. As would appear from the following passage in the judgment of the learned Chief Justice, the actual decision, far from supporting the argument of the learned counsel goes against it. The contention regarding invalidity of the trial on the ground of its having been held in camera was repelled and after citing two earlier decisions the Learned Chief Justice observed:- Those two authorities clearly support the principle that we are entitled, and I think bound to look at the conviction in the present case, and it is state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight hours must be reported by the Commanding Officer to the officer to whom application is required by law to be made to convene a general or District Court-martial for the trial of the person charged. Such report has to be accompanied by a statement of reasons for detention. 29. Rule 15 deals with investigation of charges within the period mentioned in Rule 14. The requirement of sub-rule (a) is that the charge must be heard in the presence of the accused and the accused must have full opportunity to cross-examine any witness against him and to call any witness and make any statement in his defense. 30. Sub-rule (b) makes it obligatory on the Commanding Officer to dismiss a charge brought before him if in his opinion, the evidence does not show that some offence under the Act has been committed. He may also do so if in his discretion he thinks that the charge ought not to be proceeded with. Sub-rule (c) lays down that at the conclusion of the hearing of a charge if the Commanding Officer is of the opinion that the charge ought to be proceeded with, he shall, without unnecessary delay, either dispose of the case summarily or refer the case to the superior Air Force authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to writing will not vitiate the subsequent trial as the guilt of the accused has to be established not on the basis of what the Commanding Officer might have done or might not have done at the initial stage. Any irregularity in procedure at that initial stage might have a bearing on the veracity of witnesses examined at the trial or on the bona fides of the Commanding Officer or on the defense that may be set up by the accused at the trial; but the irregularity can by no means be regarded as affecting the jurisdiction of the Court to proceed with the trial. 36. I am Therefore, of the opinion that in the instant case even if it assumed that there has been non-compliance with the requirements of Rule 15 in the manner alleged by the petitioner, the non-observance of the Rule is not such as to vitiate the trial and ultimate conviction of the petitioner. 37. The petitioner's grievance about the addition of charges 5 and 6 at a subsequent stage has also no substance as the charges framed at the stage of proceedings under Rule 15 are not final. Subject to the right of amendment envisaged in Rule 48 it is only the charge-sheet on which the accused is arraigned before the court wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may have some interest in him. In Cobbett v. Hudson (1850) 15 Qb 988 a wife was held entitled to apply for such writ on behalf of her husband. In re: Thompson (1860) 30 Lj Mc 19 father was held entitled to apply on behalf of his son. Both these cases are mentioned in foot-note to Para 65 at page 37 of Halsbury's Laws of England, 3rd Edition Vol. 11. Even the right of a stranger has been recognised to make such an application provided he has authority to appear on behalf of the prisoner or has a right to represent him. In the foot-note referred to above there is reference to an un-reported case In re: Klimowicz (1954). The foot-note shows that in that case, a writ was granted, on the application of the Home Secretary, directed to the master of a Polish ship lying in the Thames upon which a person seeking political asylum in the United Kingdom was being detained. 40. These cases are a clear authority for the maintainability of the present petition for a writ of habeas corpus moved by the petitioner's wife. The question however, is whether a petition for grant of a writ of certiorari can also be moved by a person who is not directly affected or aggrieved by the order. The q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and approaches the Court for relief. The right that can be enforced under Art. 226 also shall ordinarily be the personal or individual right of the petitioner himself in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified. 43. In Dr. P. S. Venkataswamy Setty v. University of Mysore Air 1964 Mys 159 while dealing with the position under Art. 226 of the Constitution the learned Judges (N. Sreenivasa Rau, C.J., and A. Narayana Pai J.) observed:- In India, unlike England, there is nothing like a writ of right because, the issue of any type of writ, order or direction under Art. 226 is clearly a matter of discretion with the Court. The question Therefore, whether the petitioner has or has no locus standi to make the petition to seek the issue of a writ appropriate to the facts of his case is necessarily related to the nature of the relief he seeks. The only general proposition which can be stated on the question of locus standi of petitioners in writ petitions or petitions under Art. 226 of the Constitution is that ordinarily a petitioner will have to make out some personal interest which the law recognises as sufficient, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
