[Link].
21369 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.07.2024
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MR. JUSTICE N. SENTHILKUMAR
[Link].21369 of 2024
and
[Link].23320 of 2024
[Link] G
No.2607582
(Presently in Trichy Central Prison)
No.1225, East Street,
Kannanthangudi West (V) & PO,
Orathanadu (Taluk), Thanjavur (District),
Tamil Nadu – 614 625. ... Petitioner
Vs.
[Link] of India,
Through Secretary,
Ministry of Defence,
New Delhi – 110 011.
[Link] Chief of Army Staff,
Through Adjutant General (ADGDV),
Army Headquarter,
New Delhi – 110 011.
Page 1
[Link]
[Link].21369 of 2024
[Link] General Officer Commanding,
Northern Command,
PIN-908542, c/o.56 APO
[Link] Regt Abhilekh,
Karyalaya Records The,
Madras Regiment,
PIN – 900 458.
[Link] PCDA(P)
Draupadi Ghat,
Sadar Bazaar,
Prayagraj, Uttar Pradesh – 211 014.
[Link] Superintendent,
Central Prison,
Vellore, Tamil Nadu. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorari to call for the records relating to the
proceedings in O.A.(A) No.171 of 2022 dated 25.01.2024 and quash the
same.
For Petitioner : [Link]
For R1 : [Link]
Senior Panel Counsel
For R6 : [Link] Krishnan
Additional Government Pleader
Page 2
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[Link].21369 of 2024
ORDER
(Order of the Court was made by S.S. SUNDAR, J.)
This writ petition is directed against the impugned proceedings in
O.A.(A) No.171 of 2022, dated 25.01.2024, passed by the Armed Forces
Tribunal Regional Bench, Chennai.
[Link] facts that are necessary for the disposal of this writ petition are
as follows :
The petitioner was enrolled in Indian Army Service on 31.01.2001
and states that he has rendered about 18 years and 251 days of service till
08.10.2019. While he was in service, he was charged for committing
murder of Major, pursuant to a heated argument he had with another person
in the Army. The Police registered a case in FIR No.52 of 2017 and arrested
the petitioner arraying him as accused along with other under Section 302
and 109 of Ranbir Penal Code. After investigation, final report was filed
before the Judicial Magistrate, Uri, and the petitioner was put in Army
custody. A Summary General Court Martial was constituted. Charges were
Page 3
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[Link].21369 of 2024
framed against the petitioner for committing a civil offence, i.e., Murder,
contrary to Section 302 of Ranbir Penal Code, and he was tried by Summary
General Court Martial for charges under Section 69 of Army Act for
committing a civil offence. The petitioner was found guilty of committing
civil offence of culpable homicide not amounting to murder contrary to
Section 304 of Ranbir Penal Code. The Summary General Court Martial
sentenced the petitioner (i) to be reduced to the ranks, (ii) to suffer
imprisonment for life, and (iii) to be dismissed from service.
[Link] petitioner preferred a Pre-Confirmation Petition against the
order of the Summary General Court Martial, before the Officer concerned
and the Confirming Authority of Summary General Court Martial, vide
order dated 17.01.2020, rejected the Pre-Confirmation Petition and the same
was communicated to the petitioner vide letter dated 29.01.2020. The
petitioner's wife also preferred an Appeal dated 09.03.2021 under Section
164(2) of the Army Act, 1950, to the Chief of the Army Staff, stating that
her husband preferred an Appeal to the Chief of the Army Staff through
Ministry of Defence, New Delhi, on 09.01.2001, but no reply was received.
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[Link].21369 of 2024
The petitioner's wife prayed for pensionary benefits in respect of her
husband and to provide copies of findings and sentence arrived at by the
Summary General Court Martial convened by General Officer
Commanding. The claim of the petitioner's wife for pensionary benefits was
rejected.
[Link] petitioner, thereafter, filed an Original Application in O.A.(A)
No.171 of 2022 before the Armed Forces Tribunal Regional Bench,
Chennai, to set aside the proceedings of the Summary General Court Martial
mainly on the ground that the Summary General Court Martial failed to
consider several factual aspects. It is to be noted that, before the Tribunal,
the petitioner contended that the act of the petitioner was a rash act without
intention to kill the officer, but he was charged under Section 304 of Ranbir
Penal Code instead of Section 304-A. The second issue raised by the
petitioner before the Tribunal was that the petitioner never had a criminal
intention. Since there was no pre-meditation or intention to kill and the
incident happened due to a sudden provocation, the offence under Section
304 of Ranbir Penal Code is not attracted.
Page 5
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[Link].21369 of 2024
[Link] Tribunal, after going through the records, has recorded the
factual findings as follows :
“(a) The fact that the Applicant fired his Service Weapon
(AK47) which caused the death of his superior officer IC
76354W Maj Shikhar Thapa has been unequivocally accepted
by him as also witnessed by a number of his colleagues.
(b) The act of firing the Service Weapon by the Applicant
which resulted in the death of IC 76354W Maj Shikhar Thapa
was witnessed by the following Eye Witnesses as per statement
in the Sub-Judge Court, Uri:
i. Lt Col Prabhakaran A/p 8RR Madras Camp 12 Brigade
Uri (Annexure A6 Page 40)
ii. No.MS18487F Kishan [Link] Mallesh (Annexure 6
Page 43)
iii. No.1548451M Sep Sandeep Kumar P (Annexure A6
Page 48)
iv. No.220083F Sep Karthikeyan (Annexure A6 Page 49)
v. No.2606255A Hav Prakash (Annexure A6 Page 50)
vi. No.2615099H Sep Vinod V (Annexure A6 Page 52)
[Link].2614046 Sep Dwakaran (Annexure A6 Page 53)
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[Link].21369 of 2024
[Link].15501063K Sep Mallesh Dodomani (Annexure A6
Page 54)
ix. No.2617550H Sep Thiruppathi (Annexure A6 Page 55)
(c) No physical act of violence nor any gesture
indicating physical assault were made by the deceased Officer
(IC 76354W Maj Shikhar Thapa) nor the JCO Sub Avtar Singh
who were the other main protoganists in this unfortunate
incident.”
[Link], the Tribunal examined whether the case falls under
Section 304 of Ranbir Penal Code or under Section 304-A of Ranbir Penal
Code. Taking note of the events admitted, statement of witnesses, sequence
of events and the actual conduct of the petitioner at the time of commission
of offence, the Tribunal specifically held that the petitioner had deliberately
changed the Safety Lever of his service weapon to Fire Position, which is a
pre-requisite safety precaution to prevent accidental fire. Firing of shots
using service weapon has been proved as a matter of fact and hence, the
Tribunal came to the conclusion that the incident cannot be brought under
rash or negligent act.
Page 7
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[Link].21369 of 2024
[Link] soldiers in operational areas are required to deal with extremely
challenging situations and also to deal with agitated civilians in insurgency
conditions and verbal provocation of any form cannot be an excuse to open
indiscriminate fire. In this case, the petitioner has used his service rifle to
open fire on his superior and he knows the possible consequence of using
his service rifle which is capable of killing anyone at a distance. It is to be
noted that the petitioner has no excuse for using the weapon targeting his
superior. There is no mitigating circumstance which could be pointed out
by the petitioner. In such circumstances, this Court is not inclined to
interfere with the findings of the Tribunal which is supported by strong
materials and evidence.
[Link] the reasons stated above, this writ petition is dismissed as
devoid of merits. No costs. Consequently, connected miscellaneous
petition is closed.
(S.S.S.R., J.) (N.S., J.)
29.07.2024
mkn
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[Link].21369 of 2024
Internet : Yes
Index : Yes / No
Neutral Citation : Yes / No
To
[Link] Secretary,
Union of India,
Ministry of Defence,
New Delhi – 110 011.
[Link] Chief of Army Staff,
Through Adjutant General (ADGDV),
Army Headquarter,
New Delhi – 110 011.
[Link] General Officer Commanding,
Northern Command,
PIN-908542, c/o.56 APO
[Link] Regt Abhilekh,
Karyalaya Records
The Madras Regiment,
PIN – 900 458.
[Link] PCDA(P)
Draupadi Ghat,
Sadar Bazaar,
Prayagraj, Uttar Pradesh – 211 014.
[Link] Superintendent,
Central Prison,
Vellore, Tamil Nadu.
Page 9
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[Link].21369 of 2024
S.S. SUNDAR, J.
and
N. SENTHILKUMAR, J.
mkn
[Link].21369 of 2024
29.07.2024
Page 10
[Link]
