The following
are the facts as reported in the media:
“…was awarded the death penalty by the General Court Martial (GCM)
in 1991. The Centre confirmed the noose. The Army man appealed in the Allahabad
high court which, in 2000, upheld the conviction, but set aside the death
penalty saying no special reason was accorded by the GCM which also did not do
balancing of mitigating and aggravating circumstances.
The Central government challenged the verdict in the Supreme Court
which, on January 10, 2006 remanded the case back to the high court and asked
it to decide it afresh.
The high court dismissed the plea of Rai on May 8, 2007 due to
non-prosecution as the lawyer could not appear.
The plea for restoration was filed compounding the woes of Rai and
his wife as the case files remained untraceable in the High Court Registry from
2007 and 2013 and finally, the case got revived.
However, the high court, despite the specific order of the top court,
transferred the case to the Armed Force Tribunal (AFT) to decide the case of
Rai by scrutinising the 1991 findings arrived at by the General Court Martial
(GCM), the plea said.
The AFT, which adjourned hearing on four occasions, dismissed the
plea of Rai for non-prosecution in 2015.
Ultimately, the wife of the jailed Army man moved the top court
through senior lawyer Shekhar Naphade and advocate Amartya Kanjilal seeking
enforcement of the fundamental right to life. The top court has issued notice
to the Centre and others recently...”
Apart from the
slow process involved, other questions are also thrown open. Firstly, when the
matter was decided by the High Court and then remanded again to the same Court
by the Supreme Court, it could not have been transferred by the High Court to
the Armed Forces Tribunal on the inception of the tribunal in the year 2009.
The High Court had decided the matter in the first go and the reconsideration
also had to be made by the same Court, it could not have passed on that responsibility
to a Tribunal which is inferior to a Constitutional Court in the scheme of law.
Secondly, the dismissal
of the case, which was akin to a criminal appeal, due to non-prosecution (when the
counsel fails to appear at the given time for the hearing of a case), was
faulty since criminal appeals cannot be dismissed on the said ground, as also
held by the Supreme Court of India in Sankatha
Singh Vs State of Uttar Pradesh 1962 AIR 1208, wherein the Court observed
as under:
“…A criminal appeal cannot
be dismissed for the default of the appellants or their counsel. The Court has
either to adjourn the hearing of the appeal to enable them to appear, or should
consider the appeal on merits and pass the final order...”
Hence the entire
issue is truly unfortunate wherein the wheels of justice have not been able to
render closure to a person languishing in prison.
On a separate
note, I am also not aware of any death sentence by a Court Martial in India
that may have finally been executed or reached fruition, at least in the past
few decades. Sentence to death, though remains on the statute book, is
non-existent in practical terms under the military justice system in India.
I also wonder as to what is the law related to non-prosecution of cases or dismissal in default in other jurisdictions!
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