31 May 2023 12:50 PM GMT
Quashing a Summary Force Court (SFC) proceedings against a Constable of ITBP, the Jammu and Kashmir and Ladakh High Court has said that since Army Rules are mandatory in nature, it is imperative that Army Court shall record the plea of guilt in the words used by the accused or as nearly as possible in the words used by the accused, as violation of this mandatory requirement will vitiate...
Quashing a Summary Force Court (SFC) proceedings against a Constable of ITBP, the Jammu and Kashmir and Ladakh High Court has said that since Army Rules are mandatory in nature, it is imperative that Army Court shall record the plea of guilt in the words used by the accused or as nearly as possible in the words used by the accused, as violation of this mandatory requirement will vitiate the trial, conviction and penalty.
A Court of Justice Mohan Lal was hearing a petition whereby the Petitioner Constable had assailed the proceedings of Summary Force Court and his order of dismissal from services issued by the Battalion Commandant (respondent No.4). The petitioner further prayed for directions upon the respondents to reinstate petitioner into service with all consequential/monetary and service benefits.
The petitioner was accused of alleged molesting a woman and was indicted under sections 354/376/511 of RPC.
While assailing the impugned orders the petitioner argued that as per Rule 50(3) of ITBP Rules petitioner was required to be cautioned before making statement but there is nothing on record to show that any such warning was ever give to petitioner, moreso, there is noting on record to indicate that petitioner was granted any opportunity to lead defence evidence during the recording of evidence. He further argued that Rule 142 of ITBP Rules has been violated as the certificate at the bottom of proceedings of Summary Force Court does not show that anyone has explained to the petitioner the general effect of plea of guilt.
Lastly the petitioner contended that the plea of guilt has to be recorded in the words used by accused or nearly as possible in the words used by accused.
Adjudicating upon the matter Justice Lal referred to Union of India & Ors Vs Ex-Havildar Clerk Prithpal Singh & Ors 1991 and observed that the accused is to be told the consequence if he pleads "guilty".
Upon examining the record the court said that Rule 50(3) ITBPF Rules has been violated as there is nothing on record to show that petitioner was cautioned before making the statement or any warning was given to him. Rule 50(9) of ITBPF Rules has also been violated as no certificate was issued by the officer who recorded the evidence regarding the correctness of recording of evidence, the bench underscored.
"… Record reveals that there is no certificate appended at the bottom of proceedings of Summary Force Court (SFC) that anyone has explained to the petitioner the general effect of plea of guilty. Vide Rule 143(2) of ITBPF Rules, the Court of respondent No.4 was further required under this provision of law to advise petitioner/accused to withdraw that plea of guilt if it had appeared to respondent No.4 from summary of evidence recorded that petitioner/accused ought to plead not guilty",the bench highlighted.
Deliberating further on the matter the bench observed that Rule 143(2) mandates that the court shall ascertain that accused understands the nature of charge to which he has pleaded guilty and shall also inform him effect of that plea and meaning of the charge, while in the case at hand, nothing has been placed on record that court of respondent no.4 has ascertained from petitioner/accused that whether he understands the nature of charge to which he has pleaded guilty and even the petitioner has not been informed regarding the effect of such plea of guilty and meaning of the charge.
"Furthermore, it has not come on record that the plea of guilty of petitioner/accused has been recorded by respondent No.4 in the words used by the petitioner or as nearly as possible in the words used by him. Therefore, there has been procedural impropriety", the court emphasised.
Based on these considerations the court concluded that the petitioner has suffered definite prejudice due to non-compliance with the mandatory provisions of the ITBPF Rules and therefore, the trial of the petitioner and the proceedings of the Summary Force Court conducted by respondent No.4 were quashed.
Case Title: Bharosi Lal Vs Union of India
Citation: 2023 LiveLaw (JKL) 143
Counsel For Petitioner: Sh. R.K. Bhatia, Advocate.
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