HON - Armed Forces Tribunal, Regional Bench, Guwahati

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IN THE ARMED FORCES TRIBUNAL, REGIONAL BENCH,
GUWAHATI
O.A NO.04 OF 2010
PRESENT
HON’BLE MR. JUSTICE HN SARMA, Member (J)
HON’BLE CMDE MOHAN PHADKE (Retd), Member (A)
Javed Khan,
Army No.2696774/Rank Grenadier
(Lance Naik)
Son of Hanif Khan,
Resident of New Sathan Islamabad,
Gali No.5,
Bullond Shahar (Uttar Pradesh)
Pin No.203001
… Petitioner
Mr Pallab Kataki,
Mr Debashish Chakraborty
Legal Practitioner
For Appellant
-Versus1.
The Union of India,
Ministry of Defence,
New Delhi
2
2.
General Officer Commanding,
Head Quarter 4(four) Corps,
C/O 99 A.P.O.
3.
Commanding Officer,
10th Engineering Regiment,
99 APO
… Respondents.
Mr. S. Bhattacharjee CGSC
Legal Practitioner
for Respondent(s)
:
25th May, 2011
Date of Judgment & Order :
June 2011
Date of Hearing
JUDGMENT & ORDER
(Cmde Mohan Phadke)
The present original application (OA No.04/2010 has been
filed by Ex No 2696774, Grenadier (Lance Naik) Javed Khan, who
was tried by General Court Martial and convicted on 26th November
2005 under Sections 63 and 69 of the Army Act read with section 3(1)
(c) of Indian Officials Secrets Act 1923 and sentenced to undergo 14
years Rigorous Imprisonment and dismissal from service. The
sentence of the Court Martial was confirmed on 13th March 2006 and
promulgated on 8th April 2006 by issuing the Committal Order dated
8th April 2006 (Annexure A-4 of the petition).
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The appellant, while he was in service under the Indian
Army, was found to have communicated/leaked secret information by
illegally supplying classified army documents to person working for
Pakistani intelligence agency relating to the affairs of the Govt. of
India, was charge sheeted under section 69 of the Army Act. Records
disclose that:(a) Seven charges under section 69 of the Army Act,
1950 for COMMITTING A CIVIL OFFENCE, THAT IS
TO SAY, FOR A PURPOSE PREJUDICIAL TO THE
SAFETY
OR INTERESTS OF THE
STATE
COMMUNICATING TO A PERSON, INFORMATION
IN RELALTION TO MILITARY AFFAIRS OF THE
GOVERNMENT, WHICH MIGHT BE DIRECTLY OR
INDIRECTLY USEFUL LTO AN ENEMY,CONTRARY
TO SECTION 3(1)(C)OF THE INDIAN OFFICIAL
SECRETS ACT, 1923, in that he,
(i)
“at Tezpur, in February 2005, for a purpose
prejudicial to the safety or interests of the State,
communicated to Shri Hanif Khan, his father,
working as an agent of Pakistan Intelligence
Agency,
“4 Corps ORBAT” , an information
relating to military affairs of the government,
which might be directly or indirectly useful to an
enemy.”
(ii)
“at Tezpur, between 07 March 2005 and 20
March 2005, for a purpose prejudicial to the
safety or interests of the State, communicated to
Shri Hanif Khan, his father, working as an agent
of Pakistan Intelligence Agency, a part of “HQ 4
Corps Standard Operating Procedure (SOP)
on Security”, an information relating to military
affairs of the government, which might be directly
or indirectly useful to an enemy.”
(iii)
“at Tezpur, between 20 March 2005 and 31
March 2005, for a purpose prejudicial to the
safety or interests of the State, communicated to
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Shri Hanif Khan, his father, working as an agent
of Pakistan Intelligence Agency, the following
information relating to military affairs of the
government, which might be directly or indirectly
useful to an enemy.
(a) HQ 4 Corps Standard Operating Procedure
(SOP) on Security ( Remaining Part)
(b) A Booklet on Counter Insurgency Operation of
HQ 4 Corps.”
(iv)
(v)
(vi)
“at Faridabad (Haryana), between 11 April 2005
and 30 April 2005, for a purpose prejudicial to
the safety or interests of the State, communicated
to Shri Hanif Khan, his father, working as an
agent
of
Pakistan
Intelligence
Agency,
information mentioned at Annexure-I to this
charge sheet relating to military affairs of the
government, which might be directly or indirectly
useful to an enemy.”
,
“at Tezpur, in May 2005, for a purpose prejudicial
to the safety or interests of the State,
communicated to Shri Hanif Khan, his father,
working as an agent of Pakistan Intelligence
Agency, “three booklets of Area Analysis
Study – Pakistan, the documents relating to
military affairs of the government, which might be
directly or indirectly useful to an enemy.”
“at Tezpur between 07 June, 2005 and 27 June
2005, for a purpose prejudicial to the safety or
interests of the State, communicated to Shri Hanif
Khan, his father, working as an agent of Pakistan
Intelligence Agency, information mentioned at
Annexure-II to this charge sheet relating to
military affairs of the government, which might be
directly or indirectly useful to an enemy.”
(vii) “at Tezpur, on or about 10 July 2005, for a
purpose prejudicial to the safety or interests of
the State, communicated to Shri Hanif Khan, his
father, working as an agent of Pakistan
Intelligence Agency, information mentioned at
Annexure-III to this charge sheet relating to
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military affairs of the government, which might be
directly or indirectly useful to an enemy.”
(b) Four charges under section 63 of the Army Act, 1950
for committing AN ACT PREJUDICIAL TO GOOD
ORDER
AND
MILITARY
DISCIPLINE,
in that he,
2.
(i)
“at JEWAR (District-Gautam Budh Nagar), on
or about 10 December,2003, improperly
accepted a sum of Rs.5000/-(Rupees Five
thousand only) from Mr. Rafique Chadda alias
‘Sharma’, as a motive to communicate to him
information relating to military affairs of the
Government.”
(ii)
“at DELHI , in July- August, improperly
accepted a sum of Rs.10,000/-(Rupees ten
thousand only) from Mr. Rafique Chadda alias
‘Sharma’, as a motive to communicate to him
information relating to military affairs of the
Government.”
(iii)
“ at DELHI, between 11 April, 2005 and 30
April 2005, voluntarily and willingly met Mr.
Rafique Chadda alias ‘Sharma’, as a motive to
communicate to him information relating to
military affairs of the Government.”
(iv)
“ at DELHI , between 11 April, 2005 and 30
April 2005 , voluntarily and willingly met an
unidentified person, having reason to believe
that the said person , being an associate Mr.
Rafique Chadda alias ‘Sharma’, mentioned in
the preceding charge, was an agent of
Pakistan Intelligence Agency.”
After conclusion of the general Court Martial held against the
appellant, the charges having been proved, he was convicted to
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undergo imprisonment for 14 years and was also dismissed from
service.
2(a).
The Petitioner has, in this original application, prayed fora) The setting aside of the order of
conviction and the sentence passed by
the General Court
Martial on
26.12.2005 sentencing the appellant to
R.I. for 14 (fourteen) years and
dismissal from service.
b) The setting aside of the order of
confirmation dated 13th March 2006
passed by the Confirming Authority.
c) Reinstatement of the applicant in
service with full, and back, wages and
consequential relief.
3.
In the interim the appellant had sought a stay of the
Impugned Order of conviction passed by General Court Martial on
26.11.2005 and the release of the applicant who is presently lodged
in the Central Jail at Guwahati.
4.
The appellant raised the following grounds in support of his
appeal :In the first instance the Petitioner has alleged that the
procedure prescribed in Rules 52, 53, 54, 55 and 56 of the Army
Rules, which relate to a plea of guilty, were not followed by the
General Court Martial and therefore the conviction is liable to be set
aside. The next contention taken by the applicant is that whilst
recording the plea of guilty the Court was required to explain the
meaning of the charges and ascertain from the accused if he
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understood the nature of the charges that he had pleaded guilty too.
In the present case the Court did not ascertain from the accused if he
understood the nature of the charges to which he had pleaded guilty.
On the contrary, he was forced to plead guilty and therefore his
conviction is bad in law liable to be set aside.
5.
The appellant further urged that the General Court Martial
did not inform him of the general effect of the plea of guilty and the
difference in procedure that would result on the basis of such plea.
He has thus alleged violation of Sub Rule 2(a) of Rule 52 of the Army
Rules and contended that the conviction is therefore liable to be set
aside.
6.
The appellant has next contended that he was charged
under Sections 63 & 69 of the Army Act read with Section 3(1) (c) of
the Official Secrets Act 1923 on the basis of the confessional
statement made by Hanif Khan to the Police in connection with Paltan
Bazar Police Station Case No.263/2005 wherein he had disclosed
that the seized documents, in question, were handed over to him by
his son, i.e. the present applicant. The applicant has, therefore, urged
that the statement of Shri Hanif Khan was made before the police and
was consequently not-admissible in law under the Evidence Act. That
being so, charges could not have been framed against the applicant
on the basis of such inadmissible statement.
His conviction is,
therefore, liable to be set aside on this ground.
7.
Further contention of the appellant is that the so-called secret
documents were recovered from the possession of Hanif Khan and
not from the applicant. However, the applicant was implicated on the
basis of inadmissible statement of Hanif Khan and the GCM forcibly
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recorded that he pleaded guilty and imposed the maximum sentence
on him. The Impugned Order of conviction is, therefore, bad in law
and liable to be set aside.
8.
The Respondents have in response filed Counter Affidavit
dated 04.3.2011 wherein they have, whilst denying the contentions
that are contrary to the record submitted that the applicant, while
posted at Tezpur and working as a Clerk in the Operational Branch of
the Indian Army, had easy access to sensitive information which he
stole and repeatedly passed to Pakistani Intelligence Agency over a
long period. He did so for monetary gains and thereby betrayed the
trust reposed in him by the Organization, his Comrades-in-Arms and
also
committed
treachery
against
the
motherland.
Offences
committed by him were grave and the applicant was charged on 7
counts under Section 69 of the Army Act 1950 read with Section 3(1)
(c) of Indian Official Secrecy Act 1923. The Applicant was brought to
trial before a General Court Martial where he pleaded guilty to all the
charges. The General Court Martial, on due consideration of the
nature and gravity of the offences sentenced him to
(a) To suffer rigorous imprisonment for fourteen years;
(b) To be dismissed from service.
9.
The
Respondents
strongly
refuted
the
applicant’s
contention that he was forced to plead guilty to the charges by the
General Court Martial and submitted that the ‘SECRET’ record of the
case would be placed before the Tribunal to show that the applicant,
in collusion with his father Ex Sergeant Hanif Khan,
sensitive
had passed
information to the operatives of Pakistani Intelligence
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Agency and the applicant had
stated this in his confessional
statement before the Learned Judicial Magistrate, Ist Class, Tezpur.
This confessional statement has been placed by the Respondents at
Annexure R-1.
10.
The Respondents next contended that records of the General
Court Martial proceedings show that the Court Martial had, before
recording the plea of guilty of the accused (the present applicant),
explained the charges to him and ascertained from him that he
understood the nature of the charges to which he had pleaded guilty.
Further, the General Court Martial had decided to alter the ‘plea of
guilty’ on charges 8, 9, & 10 to a plea of ‘not guilty’ because the
accused had qualified his plea but the applicant withdrew the
qualification put forward by him and unequivocally pleaded guilty. The
General Court Martial then again ascertained from the applicant as to
whether he was under any pressure, duress, fear or inducement in
tendering the plea of guilty. In response the applicant confirmed that
he had voluntarily pleaded guilty to the charges and requested the
Court once again to accept his plea of guilty on all charges. It was
then that the Court Martial accepted and recorded his plea in terms of
Army Rule 52 (2). The Respondents further submitted that charges
against the applicant were framed on the basis of the Summary of
Evidence recorded by the Army Authority wherein Hanif Khan, father
of Javed Khan (the applicant) had also been examined as a
Prosecution Witness (PW – 9). During the recording of Summary of
Evidence the applicant had also made a detailed voluntary
confessional statement.
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11.
In response to the applicant’s contention that Court
Martial proceedings had not been supplied to him, the Respondents
have submitted that the Applicant had not made any request to
provide/supply the Court Martial proceedings in terms of Rule 147 of
the Army Rule 1954. The Applicant’s letter dated 7th February 2009
addressed to the 10th Engineering Regiment is an after-thought of the
applicant to tide over the period of limitation as well as delay and
laches on his part.
12.
appellant.
Heard Mr.Debashish Chakravorty, learned counsel for the
Also
heard
Mr.S.Bhattacharjee,
learned
Central
Government Standing Counsel for the Respondents. During the
hearing of the matter the learned Central Government Standing
Counsel produced the records pertaining to the case for the perusal
of the Tribunal. The records were duly perused with reference to the
various grounds taken by the appellant in the OA. Upon scrutiny of
the submissions made by the learned counsel for the appellant, it is
seen that the Petitioner’s plea essentially relates to his objection in
recording the ‘plea of guilty’. In this regard it is urged by the learned
counsel that Rules 52, 53, 54, 55 and 56 of the Army Rules were not
complied with in letter and spirit. He also contended that the Court did
not explain the meaning and nature of the charges to which he was
shown to have pleaded guilty and that he was not informed of the
general effect of the plea of guilty and the difference in procedure that
it would result in and this has resulted in violation of Sub Rule 2(a) of
Rule 52 of the Army Rules. Perusal of the record, however, reveals
that the accused had, whilst pleading guilty to charges, qualified his
plea with reference to the charges 8, 9 and 10. Court then considered
the provisions of Army Rules 52, 62(9) 62(4) 62(5) as suggested by
the Judge Advocate and considered his plea with reference to
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charges 8, 9 and 10 as a plea of ‘not guilty’. At that stage, however,
the accused submitted that he had no intention to negate the said
charges and therefore his plea of ‘guilty’ with qualifying statement be
treated as purely ‘guilty’ and the qualifying statement may be treated
as withdrawn. He further submitted that his plea of guilt offered in
respect of the said charges should be accepted and recorded
irrespective of any remark made on 24th November 2005 by him and
that he voluntarily withdraws the statements made while offering the
plea of guilty in respect of charges 8, 9 and 10. The Court then once
again ascertained from the accused as to whether he was under any
pressure, duress, fear or inducement whilst so pleading guilty. The
accused, however, confirmed that he had voluntarily made the above
statement and sincerely requested the Court to accept his
unequivocal plea of guilt in respect of the charges. The Court then
explained the provisions of Army Rule 52 (2A) in respect of the
charges contained in the charge sheet (B-2). The Court also recorded
that the accused was explained the meaning of the charges under
which he had pleaded guilty and came to the conclusion that the
accused had understood the nature of the charges to which he had
pleaded guilt. The Court also informed the accused of the general
effect of the plea and the difference in procedure that would follow as
a result of the said plea. The Court further recorded that it has
satisfied itself that the accused understood the charges and the effect
of the plea of guilty on the charges. The Court finally recorded its
satisfaction as regards compliance with the provisions of Army Rule
52. During the further proceedings, provisions of Army Rule 54(5)
were also duly taken note of and the Court recorded its satisfaction
with reference to compliance with the said provision. It is apparent
from the above that the Court duly complied with the relevant rules
and fully satisfied itself before accepting the plea of guilty raised by
the applicant. There is, therefore, no merit in the contention taken by
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the appellant in this regard. That apart, the accused/appellant has not
raised this at the earliest opportunity before the Court when he
elaborately revealed certain facts on the question of mitigating
circumstances for imposing lesser punishment.
13.
The applicant has next urged that he was charged on the
basis of the confessional statement made by Hanif Khan to the police
in connection with Paltan Bazar Police Case No.263/005 wherein he
had disclosed that the seized documents were handed over to him by
his son, i.e. the present applicant, but this statement was notadmissible in law as per the Evidence Act and therefore the charges
could not have been framed on the basis of such statement.
Consequently, the conviction based on such inadmissible material is
also liable to be set aside. There being no other material to implicate
the applicant, the order of conviction is bad in law and liable to be set
aside. A scrutiny of case record, however, shows that a detailed
investigation, as per the rules, was carried out before the framing of
charges. During the investigation 11 witnesses, including Shri Hanif
Khan, the father of the applicant were examined. The accused was
given an opportunity to cross-examine each one of the witnesses.
Whilst the accused chose to ask questions of witnesses 1, 4 and 5,
he declined to cross-examine the other witnesses. His own father
Shri Hanif Khan gave a detailed statement running into 6(six) pages
in which he clearly disclosed the role of the accused in committing the
alleged offences. After the Summary of Evidence of the last witness
viz., Prosecution Witness No.11, the accused was duly cautioned in
terms of Rule 22(3) of the Army Rules 1954 and asked, “Do you wish
to make any statement? You are not obliged to say anything unless you
wish to do so, but whatever you say will be taken down in writing and may
be given in evidence”. In response, the accused preferred to give a
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detailed statement which runs into several pages from page number
44 to 61 of the Summary of Evidence disclosing details of the duties
that he was performing and the manner in which he used to copy and
take out secret documents of the army and handed them over to his
father/other agents. It is also pertinent to note that this applicant had
earlier given statements in trials by Summary Court Martial of
No.638919N
Hav/Clk
Dhir
Singh
Yadav
and
No.1473488N
Hav/Clk(GD) Amal Kumar Roy who were tried and dismissed from
service for their lapses in connection with the unauthorized taking
away of secret army documents by Javed Khan. In those statements
also the applicant had given full details as to how he copied and took
the documents out and handed them over to his father/other agents.
It was in this context and background that the accused (the applicant)
pleaded guilty during the course of the trial. Here again the accused
was fully informed of his rights in terms of Rule 52 of the Army Rules
1954 and yet he chose to plead guilty. Necessary certificate in terms
of Rule 52 of the Army Rules 1954 is found to have been recorded in
the trial proceedings.
14.
The Applicant had finally urged that copy of the Court Martial
proceedings was not furnished to him despite his having submitted an
application on 7.2.2009 to the 10th Engineering Regiment. He has,
thereby, been deprived of an opportunity of approaching the higher
forum. In this regard the Respondents have submitted that the
applicant had not made any request to provide/supply the Court
Martial proceedings in terms of Rule 147 of the Army Rule 1954 and
the Applicant’s letter dated 7th February 2009 addressed to the 10th
Engineering Regiment is an afterthought of the applicant to tide over
the period of limitation as well as delay and laches on his part. The
Respondents also cited Rule 147A of the Army Rules, 1954 and
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contended that the Court Martial proceedings in this case were
classified as secret keeping in mind the nature and sensitivity of the
documents involved in the matter and, therefore, cannot be made
available. Rules 147 and 147A of the Army Rules, 1954 are
reproduced below:
“147. Right of person tried to copies of proceedings.-( Every person
tried by a court-martial ( other than summary court-martial) shall, after the
proceedings have been signed by the Presiding Officer and in the case of
summary court-martial the Officer holding the trial, and before they are
destroyed, on a request made by such person in writing to the Court or
the Officer holding the trial or the person having custody of his
proceedings, be entitled for the supply of a copy of such proceedings,
within a reasonable time and free of cost, including the proceedings upon
revision, if any.)
(147A. Copy of proceedings not to be given in certain cases –
Notwithstanding anything contained in rule 147, if the Central
Government certified that it is against the interests of the security of the
State or friendly relations with foreign States to supply a copy of the
proceedings or any part thereof under the said rule, he shall not be
furnished with such copy:
Provided that if the Central Government is satisfied that the
person demanding the copy is desirous of submitting a petition in
accordance with the Act or instituting any action in a Court of Law in
relation to the finding or sentence, it shall permit inspection of the
proceedings to such person or his legal adviser, if any, on the following
conditions, namely :(a)
the inspection shall be made at such times and
such places as the Central Government or any
authority authorized by it, may direct; and
(b)
the person allowed to inspect the proceedings
shall, before such inspection, furnish –
(i)
an undertaking, in writing, that he shall not
make copies of the proceedings or any part
thereof and that the information or documents
contained in such proceedings shall not be
used by him, for any purpose whatsoever other
than for the purpose of submitting a petition in
accordance with the Act or instituting an action
in a Court of law in relation to the said finding or
sentence; and
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(ii)
a certificate that he is aware that he may render
himself liable to prosecution under sections 3
and 5 of the Indian Official Secrets Act,1923 (
19 of 1923, if he commits any act specified in
the said sections in relation to the documents or
information contained in the said proceedings.)”
(iii)
During the course of hearing on 29.3.2011, the learned
counsel for the appellant had submitted that the alleged confessional
statement of the appellant as at Annexure-R/1 was not legible and so
a legible copy should be furnished to him. He also requested for
permission to inspect/peruse the proceedings of the General Court
Martial. Whilst the Respondents expressed their readiness and
furnished a legible copy of the confessional statement as annexed to
the affidavit-in–opposition, they expressed certain reservation in
terms of Rule 147A of the Army Rules, 1954 in showing the entire
record of Court Martial proceedings which is stated to be secret in
nature. The Tribunal then advised the appellant to “……..
make
application under section 147A of the Army Act for furnishing copies
of the document, if so desired………”. However, the appellant has
not made such application to the Central Govt. in term of Rule 147A
of the Army Rules, 1954.
15.
In the light of the above discussion there appears to be no
merit in the various grounds urged by the applicant. As discussed
above the record shows compliance with Rules 52, 54 and 55 of the
Army Rules 1954. Rule 53 as referred by the applicant deals with
“Plea in bar” and has no application to the facts and circumstances of
the present case. Rule 56 as referred to by the applicant in para 5(i)
of the OA-04/10 is not attracted to the facts and circumstances of the
present case as it relates to “ Plea of “Not Guilty”, application for
adjournment and case for the prosecution.”
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16.
In view of the above discussions, we are of the view that
the appellant is not entitled to get any relief in the appeal, it being
devoid of merit. The Original Application is accordingly dismissed.
17.
No costs.
MEMBER(A)
Chakravarti
MEMBER(J)