It has to be said right at the outset that a three-Judge Bench of the Supreme Court comprising of Justice AK Sikri, Justice S Abdul Nazeer and Justice MR Shah in Ex Lt Gen. Avadhesh Prakash v. Union of India & Anr. in Criminal Appeal No. 140 of 2019 (Diary No. 12371/2018) with Civil Appeal No. 9739/2018 decided on January 24, 2019 has set aside the punishment of dismissal imposed on Ex Lt Gen Avadhesh Prakash by a General Court Martial (GCM). This has certainly shaken the defence establishment and all those who court martialled him as the top court has not just validated his stand but also held that the entire proceedings held by the said GCM stood vitiated. It also held that the retired officer would be entitled to all the benefits; pensionary or otherwise.

                          While craving for the exclusive indulgence of my esteemed readers, it must be informed here that the top court right at the outset notes that the leave to appeal is granted. It then discloses that, “We have heard learned counsel for the parties at length.” The top court was apprised of their stand by both the parties.

                                      For my esteemed readers exclusive indulgence, it must be now disclosed that the three-Judge Bench then observed that, “The relevant facts, in a nutshell, are as follows. The appellant was commissioned in the Indian Army on 20.12.1970 and promoted to the rank of Lieutenant General in October, 2007. He was appointed as a Military Secretary on 01.05.2008 at the Army Headquarters, New Delhi. During the tenure of the appellant as the Military Secretary the so-called ‘Sukna Land Scam’ case broke out in the end of the year 2010.”

                             Going forward, the Bench then observes that, “The appellant’s name figured in the Court of Inquiry on 07.01.2009. Then provisions of Rule 180 of the Army Rules, 1954 were invoked against him. The Chief of Army Staff initially directed Administrative Action against the appellant and a show cause notice dated 11.01.2010 was saved upon him.”

                                    Continuing in the same vein, the Bench then goes on to add that, “However, just two days prior to his retirement on 31.01.2010, the appellant was informed about withdrawal of the above show cause notice and initiation of disciplinary proceedings against him under the provisions of Section 123 of the Army Act, 1950. The appellant filed an O.A. before the Armed Forces Tribunal (“the Tribunal”) challenging the Court of Inquiry for non-compliance of Rule 180 of the Army Rules, Para 518 of the Defence Service Regulations (“DSR”) and change of directions. The Tribunal gave partial relief to the appellant. Against the said order of the Tribunal, the appellant approached this Court by preferring Special Leave Petition. This Court dismissed the Special Leave Petition.”

                                     To be sure, the Bench then discloses that, “The General Court Martial (“GCM”) found the appellant not guilty on the first charge. However, the GCM found the appellant guilty on charges second, third and fourth and sentenced him to “Dismissal from Service”. The appellant preferred O.A. before the Tribunal against the rejection of Post-Confirmation Petition, setting aside GCM proceedings and payment of all retiral and consequential benefits. The Tribunal, after considering the rival contentions made by the parties, came to the conclusion that the appellant is guilty of the second charge, i.e., ‘Unbecoming conduct’ under Section 45 of the Army Act and he is not proved to be guilty for charges three and four with the direction that the appellant need not be given the arrears of pension from the date of his dismissal till the date of passing the order and the same shall be given to him w.e.f. 20.12.2017, i.e., the date of pronouncement of the order. Aggrieved by the order, passed by the Tribunal, the appellant is before this Court.”

                           To put things in perspective, the Bench then points out that, “The first and foremost challenge laid by the appellant was to the validity of the composition/constitution of the GCM. It is an admitted case that the appellant was holding the position of Lieutenant General in the Army. As per the provisions of Rule 40 of the Army Rules, 1954, in his case, members of the GCM could be of the rank of Lieutenant General or above.”

                          Needless to say, it is then pointed out that, “It is an admitted position that one Lieutenant General and four Major Generals constituted the GCM. The Tribunal in the impugned order, had accepted the aforesaid position/composition and even agreed with the counsel for the appellant that the respondents could have tried to make Lieutenant Generals available from over eighty such Lieutenant Generals in the Indian Army as members of the GCM. It is also recorded that Lieutenant Generals were in fact made available for the GCM of Lt-Gen PK Rath which was held a few month earlier. Notwithstanding the same, only on the ground that the appellant had already retired as Lieutenant General, the Tribunal has come to the conclusion that it does not find any legal infirmity in the constitution of GCM as the provisions of Rule 40(2) of the Army Rules have been complied with.”

                                        While shaking its head in disbelief on the lame stand taken by the Armed Forces Tribunal (AFT), the Bench of Apex Court then minces no words in clearly and categorically holding that, “We fail to understand the aforesaid reasoning and rationale given by the Tribunal. The appellant was holding the position of Lieutenant General. Allegations which were levelled against him for which GCM was convened was in his capacity as the Lieutenant General. Merely because the appellant had retired in the meantime cannot be a ground to discard and give a go by to the provisions of Rule 40(2) of the Army Rules. Needless to mention that the aforesaid Rules had statutory force.”

                             While pooh-poohing the shoddy manner in which the AFT conducted the GCM, it is then held by the Bench that, “It is a travesty of justice that a person holding the rank of Lieutenant General is tried by the GCM which consisted of members below his rank. Such a composition cannot be countenanced in law. We are therefore, of the opinion that the GCM was not validly constituted. Once that finding is arrived at, entire proceedings held by the said GCM stand vitiated.”

                                   As it turned out, the Bench then goes on to add that, “In normal course in such a case the Court would remit the case back to the respondents to constitute a proper GCM and hold the Court Martial. However, for various reasons it is not necessary to do this exercise in the instant case. First reason is that even the said GCM had exonerated the appellant of serious charge. It had held that only three charges stood proved against the appellant. Interestingly, out of these three charges, the Tribunal, in the impugned order, has come to the conclusion that two charges could not be held to be proved. Therefore, it is only one charge that ultimately stands established against the appellant. That charge is also not of a very serious nature. In fact, before the Tribunal, the counsel for the appellant had also raised the issue of proportionality of sentence.”

                                   Not stopping here, it is then pointed out that, “It was specifically contended that the punishment of dismissal which had been imposed upon the appellant is very harsh in comparison to the punishment of “severe reprimand” given to the other officials involved in the matter. The Tribunal, however, rejected this contention. We do not find any justifiable reason for adopting this course of action when the Tribunal itself held that the punishment of dismissal imposed upon the appellant was because of three charges held against him and also, according to the Tribunal, two charges out of the said three charges also could not be treated as proved. Furthermore, the appellant has already retired from service and the only issue now pertains to the grant of pensionary benefit. Even the Tribunal had granted these pensionary benefits from the date of its order, i.e. 20.12.2017.”

                                  Finally and perhaps most importantly, it is then held that, “For all these reasons, we are of the considered view that no useful purpose would be served in remitting the case back to the authorities for fresh GCM. As a result, this appeal is allowed, the impugned order of the Tribunal is set aside. The punishment of dismissal imposed upon the appellant also stands set aside. The appellant shall be entitled to all the benefits; pensionary or otherwise, which are admissible to him in law. Such benefits shall be computed and arrears be paid to the appellant within a period of three months. Regarding Civil Appeal No. 9739/2018, it is held that, “Having heard learned counsel for the parties, we find no merit in this appeal and it is, accordingly dismissed.”

                                 All said and done, this latest, landmark and laudable judgment will always serve as the biggest warning to AFT that under no circumstances any rule should be broken while conducting GCM against such a senior officer of the rank of Lieutenant General as we have seen here and if they do then they will be responsible for their stand being rejected by the highest court. This noteworthy ruling has certainly come as a huge relief for Ex Lt General Awadhesh Prakash who was dismissed from service by the GCM for his alleged involvement in ‘Sukna Land Scam’ who now stands vindicated. The three Judge Bench of the Apex Court found no credible evidence to upheld the GCM of Ex Lt General Awadhesh Prakash and he therefore now stands acquitted and would be entitled to all the benefits as pointed above!    

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

In a remarkable, bold and laudable judgment delivered by the Supreme Court in Dnyaneshwar Suresh Borkar v State of Maharashtra in Criminal Appeal No. 1411 of 2018 delivered just recently on February 20, 2019, it has vindicated what many say sometimes just casually that, “Even poem can help save a death convict from gallows”. The Apex Court has in this latest, landmark and laudable judgment commuted the death penalty of a kidnap cum murder convict who was just 22 years of age at the time of occurrence. This was mainly because the Bench concluded that the appellant could be reformed and rehabilitated as the poems written by him were most appealing and his conduct in jail was also good and there were many other reasons which could be considered rightly as mitigating circumstances that should save him from gallows.

                                  First and foremost, it must be pointed out that this commendable, courageous and classic judgment authored by Justice MR Shah for himself, Justice AK Sikri and Justice S Abdul Nazeer sets the ball rolling in para 1 wherein it is observed that, “Feeling aggrieved and dissatisfied with the impugned judgment and order dated 05.05.2006 passed by the High Court of Bombay in Confirmation Case No. 1 of 2005 with Criminal Appeal No. 618 of 2005 whereby the High Court has allowed the Confirmation Case filed by the State and dismissed the appellant’s Criminal Appeal and confirmed the conviction for the offences punishable under Section 302 of the Indian Penal Code (IPC) and confirmed the death sentence awarded by the learned Sessions Court, the accused viz Dnyaneshwar Suresh Borkar has preferred the present appeal.”

                                          For the uninitiated, it is then pointed out in para 2 that, “That the appellant herein-original accused was tried by the learned Sessions Court for the offences under Sections 302, 364 and Section 201 read with Section 34 of the IPC for having killed a minor child viz ‘Rishikesh’. That the learned Additional Sessions Judge, Pune held the appellant herein guilty for the offences punishable under Sections 302, 364 and Section 201 read with Section 34 of the IPC and awarded the capital punishment. The conviction and sentence imposed by the learned Additional Sessions Judge have been confirmed by the High Court by the impugned judgment and order. Hence the present appeal.”

                                 Simply put, it is then stated in para 3 that, “At the outset, it is required to be noted that Shri Anand Grover, learned Senior Counsel appearing on behalf of the appellant has fairly stated and conceded that so far as the conviction is concerned, the appellant is not challenging the same. However, he has prayed for to commute the capital punishment imposed by the learned Sessions Court, confirmed by the High Court. Therefore, as such the present appeal is now restricted to the sentence imposed by the learned Additional Sessions Judge of capital punishment confirmed by the High Court.”

                      More importantly, Grover then  pleaded for death penalty to be reduced to life imprisonment as is enumerated in para 4 wherein the Bench states that, “Shri Grover has pointed out the mitigating circumstances which warrant commutation of death sentence to life imprisonment. It is vehemently submitted that accused, at the time of crime, was aged of 22-23 years. That he neither have any criminal record nor was he a hardened criminal. That he was a student studying in a college without any history or misdemeanour noted in the college or in the village of his residence. That he has a widowed mother and is the eldest child. By now he has undergone 18 years of sentence without remission and with remission it would be 23 ½ years. It is submitted that conduct of the accused in the jail is very good. It is submitted that the appellant’s behaviour and conduct in jail has shown that though the appellant may have committed a crime when he was a young adult, he has used his incarceration to reflect on his actions and learnt from his mistakes. As an 18 years old boy, he was a young impressionable citizen trying to make something out of himself and in the process lost his way and made a fatal mistake. However, if there is anything the appellant’s years in prison have shown, it is that he is by no means a hardened criminal and most definitely not beyond the pale of reformation. He further submitted that during the span of 18 years in the jail, not only he has learned a lesson but he has realized the mistake committed by him and he has tried to become a civilized person and that he has completed his graduation in Bachelor of Arts (B.A.) and has also undergone training of Gandhian thoughts undertaken by Gandhi Research Foundation Jalgaon.”

                                        Be it noted, it is then noted in this same para 4 that, “It is further submitted that the poems written by the accused in the jail reflect his current mind of state and by which it can be said that he has realized the mistake committed by him at the time when he was just 22 years of age and that he is reformative. In view of the above submission and relying upon the decision of this Court in Sunil v. State of Madhya Pradesh (2017) 4 SCC 393, it is prayed to commute the death sentence to life imprisonment.”

                                 On the contrary, while opposing what Grover stated above, it is then pointed out in para 5 that, “Ms. Deepa Kulkarni learned Counsel appearing for the State has submitted that in view of the fact that the accused killed a minor child for ransom, which has ultimately affected the family members of the deceased and the manner in which the offence was committed was pre-planned, it is prayed not to show any leniency.”

                                  To be sure, after hearing both the parties, the Bench then notes in para 6 that, “We have heard the learned counsel appearing on behalf of the respective parties and the prayer made by the learned counsel appearing on behalf of the appellant to commute the death sentence to life imprisonment.”

                                  More crucially, while listing the mitigating circumstances, it is then observed in para 6 that, “Having heard learned counsel appearing on behalf of the parties on the sentence, we are of the opinion that, in the facts and circumstances of the case, capital punishment is not warranted. Striking the balance between the aggravating and mitigating circumstances, we are of the opinion that mitigating circumstances are in favour of the accused while commuting the death sentence to life imprisonment. The mitigating circumstances in favour of the accused are that:

a.  the accused at the time of commission of the offence was aged of 22 years;

b.  that, by now, he has spent 18 years in the jail;

c.   that, while in jail, his conduct is good;

d.  that, the accused has tried to join the society and has tried to become a civilized man and has completed his graduation in B.A. from jail. He has tried to become reformative;

e.  that, from the poems, written by him in the jail, it appears that he has realised his mistake which was committed by him at the time when he was of young age and that he is reformative;

f.     therefore the appellant can be reformed and rehabilitated.”

                               From the foregoing mitigating circumstances as illustrated above, it is then very rightly concluded as mentioned in para 7 that, “The above details show there is a possibility that accused would not commit similar criminal acts. That the accused would not be a continuing threat to the society. Considering the aforesaid facts and applying the law laid down by this Court in the case of Sunil (supra), we are of the opinion that in the facts and circumstances of the case, the decision of capital punishment is not warranted. We have considered each of the circumstance and the crime as well as the facts leading to the commission of the crime by the accused. Though, we acknowledge the gravity of the offence, we are unable to satisfy ourselves that this case would fall in the category of ‘rarest of rare case’ warranting the death sentence. The offence committed, undoubtedly, can be said to be brutal, but does not warrant death sentence. It is required to be noted that the accused was not a previous convict or a professional killer. At the time of commission of offence, he was 22 years of age. His jail conduct is also reported to be good.”

                                     No prizes for guessing what the Court had to conclude after considering all the facts and mitigating circumstances of the present case. It is a no-brainer that the Bench then aptly noted in para 8 that, “Considering the aforesaid mitigating circumstances and considering the decision of this Court in Bachan Singh v. State of Punjab (1980) 2 SCC 684 as well as another decision of this Court in Shyam Singh alias Bhima v. State of Madhya Pradesh (2017) 11 SCC 265 and the decision of this Court in Sunil (Supra), we think that it will be in the interest of justice to commute the death sentence to life imprisonment.”

                                Finally and perhaps far more importantly, para 9 which is the last para then winds up this entire noteworthy and commendable judgment by stating that, “In view of the reasons stated above, present appeal is allowed in part. The conviction of the accused for the offences under Sections 302, 364 and Section 201 read with Section 34 of the IPC is confirmed. However, in the facts and circumstances of the case and in view of the reasons stated above, we commute the death sentence to life imprisonment. It will be open to the accused to apply for remission to the State Government which may be considered in accordance with law and on its own merits. Present appeal is disposed of accordingly in terms of the above.”

                                   On a concluding note, it must be said that it is a very progressive and path breaking judgment which has very rightly commuted the death sentence to life imprisonment after taking into account various mitigating circumstances as illustrated above with most prominent being the poems he wrote wherein he expressed his remorse for the crime which he committed! All the courts from lowest to highest must always take into account what the 3 Judge Bench of Apex Court has laid down in this landmark, latest and laudable case so explicitly and only then deliver its judgment! All lawyers, judges, students and others must study this judgment which is not very lengthy yet very elegantly and excellently written! This is what at least I felt after reading it!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.