Full Judgment Text
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PETITIONER:
CAPTAIN HARISH UPPAL
Vs.
RESPONDENT:
UNION OF INDIA AND OTHERS
DATE OF JUDGMENT27/11/1972
BENCH:
ALAGIRISWAMI, A.
BENCH:
ALAGIRISWAMI, A.
VAIDYIALINGAM, C.A.
CITATION:
1973 AIR 258 1973 SCR (2)1025
1973 SCC (3) 319
CITATOR INFO :
RF 1991 SC 564 (5)
RF 1991 SC1070 (6)
ACT:
Army Act, 1950, Sections 158 and 160-Upward revision of
sentence Whether violative of natural justice principle in
the circumstances of the case.
Army Act, Section 160-Whether opportunity to be heard
necessary when Confirming Officer decides to send back the
matter to the Court Martial for considering upward revision
of the sentence.
Army Act, Sections 112 and 157-Whether the words ’authority’
and Officer denote different authorities.
Army Act, Section 164-Whether opportunity to be heard
necessary before confirmation of upward revision of sentence
by the Army Chief of the Staff.
HEADNOTE:
The petitioner was found guilty by the Court Martial (acting
under the Army Act) under section 392 IPC of committing
robberies of a bank property and the private property of the
Manager and peons of the Batik during the period of the
liberation of Bangladesh, in Bangla Desh. The Court Martial
sentenced the petitioner ’to be cashiered’. When the matter
went to the Officer Commanding under whom the petitioner was
working as an Officer, for confirmation of the sentence u/s
153 of the Act, he returned the same to the Court Martial
for re-considering whether the upward revision of sentence
was necessary in the light of the observations made by the
Confirming Officer. The Confirming Officer had pointed out
in his report that the robberies were committed during the
liberation of Bangladesh where the Indian Forces had gone as
liberators and as guardians and custodians of the life and
property of the people of Bangladesh. Considering the
nature aid gravity and maintenance of high standard of
discipline in the Armed Forces, the sentence awarded was not
commensurate. The Confirming Officer further directed that
the delinquent officer should be given opportunity to
address the Court, if he so de-sired, if the Court decides
to enhance the sentence. In the fresh proceedings before
the Court Martial, the Officer did not present himself. The
Court Martial revoked the earlier sentence and sentenced him
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to be cashiered and to suffer rigorous imprisonment for two
years. The said sentence was duly confirmed by the Chief of
the Army Staff. in the petition challenging the legality of
the order under Art., 32 of the Constitution, the petitioner
contended that the impugned order was bad for the violation
of the principle of natural justice inasmuch as that the
Court Martial while re-considering the sentence did not act
as a free agent, that no opportunity of being heard was
given to the Officer at the time of remand and at the time
of the final confirmation by the Army Chief of the Staff and
that the revision was recommended by an officer subordinate
in rank to the officer who convened the Court Martial.
In dismissing the petition,
HELD : (i) Sec. 158 of the Army Act describes the procedure
regarding the re-consideration of the sentence by the Court
Martial. In considering a petition filed under Art. 32 of
the Constitution, the only relevant Article is Art. 21, and
the procedure established by law has been corn-
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pletely followed in this case. The circumstances requiring
the reconsideration pointed out by the Officer Commanding
were unexceptionable and there was no violation of the
principle of natural justice. The petitioner failed to
appear before the Court Martial in the fresh bearing. [1031
C-D]
A. K. Kraipak & Ors. Etc. v. Union of India and Ors.
[1970](1) SCR 457 and Purtabpore Co. Ltd. v. Cane
Commissioner- of Bihar & Ors. [1969] (2) SCR 807,
distinguished.
(ii) No opportunity to be heard was necessary before the
Confirming Officer formed the opinion to send the case back
to the Court Martial for re-consideration of sentence. [1032
C]
(ii) The words ’authority’ and ’Officer’ in Sec. 112 of the
Army Act have one and the same meaning. The Officer
recommending the reconsideration of the sentence was also an
Officer commanding the Division though he was only
officiating and was a Brigadier. The actual confirmation of
the enhanced sentence was made by the Chief of Army Staff
who was higher in rank than the convening Officer. [1033 C]
(iv) In the face of the very clear indication in the
Constitution, the provisions of Code of Criminal Procedure
cannot be adopted in respect of Court Martial. It ",as open
to the petitioner to make a petition to the Chief of the
Army Staff under section 164 of the Army Act which he did
not do. [1O33 H]
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 456 of 1972.
Petition under Article 32 of the Constitution of India for a
writ in the nature of habeas corpus.
A. K. Sen and B. Datta for the petitioner.
F. S. Nariman. Addl. Solicitor-General of India, B. D.
Sharma and S. P. Nayar for the respondents.
The Judgment of the Court was delivered by
ALAGIRISWAMI, J. The petitioner was an officer of the
Indian Army who served in Bangla Desh. On 11th December,
1971 he was in a place called Hajiganj. He was tried before
the Summary General Court Martial on the charge of
committing robbery at Hajiganj by causing fear of instant
hurt to the Custodian of the United Bank Ltd., of certain
properties belonging to the Bank and also the personal
property of the Manager of the Bank as well as of a
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Chowkidar of the Bank. The Court sentenced the petitioner
to be ’cashiered’. This sentence was subject to
confirmation under the provisions of Chapter XII of the Army
Act, Maj-Gen. Hira, General Officer Commanding, 23 Mountain
Division, of which the petitioner was an officer, passed an
order directing the revision of the sentence. Thereafter
the petitioner was brought before the same Court Martial, as
had tried him earlier, and he was asked whether he wanted to
address the Court. On receiving a reply in the negative,
the Court, after considering the observations of the
confirming authority, revoked the earlier sentence which
they had imposed on the petitioner and sentenced him to be
cashiered and
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to suffer rigorous imprisonment for two years. Brig. D. P.
Bhilla, the Officiating General Officer Commanding 23
Mountain Division, referred the finding and sentence for
confirmation to the Chief of the Army Staff, who in due
course confirmed the finding and the sentence. The present
petition is filed under Article 32 of the Constitution for
quashing the order passed by the Chief of the Army Staff,
after setting aside the order passed by Maj-Gen. Hira.
Shri A. K. Sen appearing on behalf of the petitioner raised
four points in support of his contention that the order
passed against, the petitioner should be quashed:
1. The authority to confirm the sentence
passed by a Court Martial does not confer on
the confirming authority the power to enhance
the sentence. That authority cannot,
therefore, achieve that object indirectly by
directing the revision of the sentence. The
Court Martial’s verdict should be unfettered.
2. In any case, the confirming authority
should have given a hearing to the affected
party.
3. The confirmation can be made only by the
officer who convened the Court Martial and not
by a different officer as was done in this
case.
4. The officer who finally confirmed the
sentence on the petitioner should also have
heard the petitioner.
(1) The officer who convened the Summary General Court
Martial, which tried the petitioner, was Maj-Gen. Hira. It
was he that directed the revision of the sentence passed on
the petitioner. The argument is that this order was in
such terms that the Court Martial which revised the sentence
was compelled to and was left with no alternative but to
enhance the sentence and that this was against all
principles of natural justice. Under Section 153 of the
Army Act no finding of a Court Martial shall be valid except
so far as it may be confirmed as provided under the Act’.
Under Section 157 the findings and sentences of summary
general courts-martial may be confirmed by the convening
officer or if he so directs, by an authority superior to
him. Under Section 158, a confirming authority may, when
confirming the sentence of a court-martial, mitigate or
remit the punishment thereby awarded, or commute that
punishment for any punishment or punishments lower in the
scale laid down in section 71. Under Section 160, any
finding or sentence of a court-martial which requires
confirmation may be once revised by order of the confirming
authority and on such revision, the court, if so directed by
the confirming authority, may take additional evidence.
Even after revision the sentence passed
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14-L52LSupCI/73
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by the court martial would have to be confirmed because of
provision of Section 153. The order passed by Maj-Gen.
Hira directing revision of the sentence passed by the court
martial is as follows :
"The Summary General Court Martial, which
assembled at Field, on 9 March 1972 and
subsequent days for the trial of IC-16394
Substantive Lieut (Actg. Capt.) HARISH UPPAL,
Arty, 198 Mountain Regiment, will reassemble
in open court on 15 May 1972 at Field at 1000
hrs for the purpose of reconsidering the
sentence awarded by it, whilst in no way
intending the quantum of punishment to be
awarded, the court should fully take into
consideration the following observations of
the Confirming Officer.
2. The accused was convicted by the Court,
under Army Act Section 69 for committing a
civil offence, that is to say, Robbery,
contrary to section 392 of the Indian Penal
Code, the particulars hereby averred that he,
at HAJIGANJ (BANGLA DESH) on 11 December 1971,
by causing fear of instant hurt to the
Custodians committed Robbery in respect of the
undermentioned articles, the property
belonging to the persons indicated as follows
(a) The property of the United Bank
Ltd. COMILLA Dist.
(i) Cash in Pakistan Currency. Rs. 11,222.91
(ii) 28-12 Bore guns Registered Two with s
No. 027373 and 342. cartridges.
(iii) Wall clock. One
(iv) Telephone Set Auto TIP One
(Sky Blue)
(v) Telephone CE without One
hand set (Black)
(vi) Pens (eagle) Two
(vii) Locks with four keys TWO
(viii) Winter uniform of peons and Two pairs
guard.
(b) Personal property of Shri
MAKALAM, Manager, United Bank Ltd., HAJIGANJ Branch:
Wrist Watch (Romer popular) One
(c) Personal property of Shri
Habibullah, Chowkidar, United Bank Ltd., Hjiganj Branch:
PAKISTAN Currency Rs. 6/-
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3. It is, therefore, apparent that apart from the property
of the United Bank, Ltd., the accused committed robbery in
respect of the personal properties of its two custodians at
a time when the War of liberation of BANGLADESH was still
being waged on some fronts though the hostility in the
town had ceased in HAJIGANJ area and the situation was fast
returning to normalcy.
4. It would be appreciated that the charge of which the
accused was convicted is of a very serious nature. The
punishment of ’Cashiering, therefore, awarded for the
offence appears to be palpably lenient. The maximum
punishment provided for the offence under IPC Sec. 392 is 10
years RI. Even though the proper amount of punishment to be
inflicted is the least amount by which discipline can be
effectively maintained, it is nevertheless equally essential
that the punishment awarded should be appropriate and
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commensurate with the nature and gravity of the offence and
adequate for the maintenance of the high standard of
discipline in the Armed Forces. It should be clearly borne
in mind that our Forces had been ordered to march into
BANGLADESH as the liberators of the oppressed people who had
been subjected to untold torture and miseries at the hands
of Pak troops. It is, therefore, clear that our Forces had
gone there as guardians and custodians of the lives and
property of the persons of that country. The conduct of the
accused by indulging in broad day light bank robbery is
despicable and his stooping so low as to deprive Shri
HABIBULLAH (PW-2), Chowkidar of the United Bank Ltd., of
paltry amount of Rs. 6 in Pak currency as also his taking
away the Romer Wrist watch from Shri MAKALAM (PW-4), Manager
of the said Bank, is indeed highly reprehensible. Such
actions on the part of responsible officer of the Indian
Army are calculated to bring a blot on the fair name of the
Indian Army. It is, therefore, our imperative duty to
ensure that such cases dealt with firmly when a verdict of
guilty has been returned by the court.
5. There are certain norms and standards’ of behaviour
laid down in the Armed Forces for strict adherence by
persons who have the honour to belong to the Corps of
Officers of the Indian Army. A person of the rank, of an
officer, who indulges in such an offence, should, therefore,
be awarded suitable punishment. In the course of six years
commissioned service he had once been convicted under Army
Act Sect-ion 41(2) for
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disobeying a lawful command given by his superior officer in
the execution of his duties for which he was severely
reprimanded on 13 June 1970.
6. The accused/or his defending officer/counsel should be
given an opportunity to address the court, if so desired.
The court should then carefully consider all the above and
should they decide to enhance the sentence, then the fresh
sentence should be announced in open court as being subject
to confirmation.
7. The, attention of the court is drawn to Army Act
Section 160, Army Rule 68 and the form of proceedings on
revision given on page 370 of N1ML (1961 Reprint), which
should be amended to conform to the provisions of Army Rule
67(1).
8. After revision, the proceedings shall be returned to
this Headquarters.
Sd/-
(R. D. HIRA)
Maj-Gen.
General Officer Commanding 23 Mtn Div.
Field
03 May 1972.
It was contended that in the face of such strong
observations by the General Officer Commanding the Division
the officers constituting the court martial would have felt
compelled to enhance the sentence and the revised sentence
passed on the petitioner was not the free act of the court
martial but one forced on them by the Officer Commanding and
that this militates against the principle of natural
justice. But it should be remembered that under the
provisions of the Army Act set out earlier the confirming
authority could himself mitigate or remit the punishment
awarded by the court martial or commute that punishment for
any lower punishment and, therefore, when a sentence is
directed to be revised by the confirming authority it
necessarily means that the confirming authority considers
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that the punishment awarded by the court martial is not
commensurate with the offence and it should, therefore, be
revised upwards. To object to this is to object to the
provisions of section 158 itself. A direction by the
confirming authority merely showing that the punishment
awarded by the court martial is not commensurate with the
offence, would be certainly unexceptionable and would be in
accordance with- the provisions of law. Instead of baldly
stating so the confirming authority in this case has given
reasons as to why he considers that the punishment awarded
to the petitioner was wholly inadequate.
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We consider that the reasons, given by him cannot be taken
exception to. It was urged that the confirming authority
proceeded on the basis that in respect of the charges
against the petitioner the evidence available was as he had
set out in his order directing revision and that this was
not correct. We must point out that this Court cannot go
into the evidence in support of the charge against the
petitioner. Indeed the court martial itself could not have
set out the evidence against the petitioner; it should have
only given the finding and the sentence. Under the
provisions of Article 136(2) of the Constitution this Court
cannot grant special leave in respect of any judgment,
determination or order passed or made by any court or
tribunal constituted by or under any law relating to the
Armed Forces. In considering a petition filed under Article
32 of the Constitution this Court can only consider whether
any fundamental right of the petitioner has been violated
and the only Article relevant is Article 21 of the
Constitution. There is no doubt that the procedure estab-
lished by law as required under that Article has been
completely followed in this case.
It is, however, urged that the decisions of this Court have
laid down that the rules of natural- justice operate in
areas not covered by any law validly made and that they do
not supplant the law of the land but supplement it and,
therefore, though the procedure established by law may have
been followed as required under Article 21, the principles
of natural justice should also be followed. The cases
relied on are A. K. Kraipak & Ors. etc. v. Union of India &
Ors. (1) and Purtabpore Co. Ltd. v. Cane Commissioner of
Bihar & Ors. (2). This Court in the first decision had
pointed out that what particular rule of natural justice
should apply to a given case must depend to a great extent
on the facts and circumstances of that case, the frame work
of the law under which the enquiry is held and the
constitution of the tribunal or body of persons appointed
for that purpose. It was also pointed out that the Court
has to decide whether the observance of that rule was
necessary for a just decision and that the rule that
enquiries must be held in good faith and without bias and
not arbitrarily or unreasonably is now included among the
principles of natural justice. There is no analogy between
the facts of that case and the present and applying the
ratio of that to the facts of this case we are not satisfied
that any rule of natural justice has been violated. The
latter was a case where the authority competent to pass the
order had simply passed an order adopting what the Minister
had directed and had not applied his mind. The facts of
this case are quite different. The confirming authority
while pointing out the facts had left the discretion
regarding the punishment to be imposed to the court
(1) [1970] 1 S.C.R. 457.
(2) [1969] 2 S.C.R. 807
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martial. If the court martial in spite of the direction
given by the confirming authority had reaffirmed its
original order, the confirming authority could do nothing
because it can exercise its power of directing revision only
once, and that power was already exhausted. Furthermore,
when the court martial reassembled to revise its earlier
order under the directions of the confirming authority, the
petitioner was given the reasons of the confirming officer
for requiring revision and asked whether he wanted to
address, the court, he replied in the negative. It was open
to him to have pointed out to the court martial how the
observations of the confirming authority were wrong, how
they were not borne out by the evidence on record. Having
failed to avail himself of the opportunity accorded to him,
the petitioner cannot be now heard to complain that he was
not given an opportunity by the confirming authority before
he directed revision. The court martial had originally
found the petitioner guilty of the charge of robbery, under
Section 392 of the Indian Penal Code. There was, therefore,
no question of the court martial, when it proceeded to
reconsider the matter, of reconsidering the finding of
guilty. Therefore, any attempt to question the order of the
confirming authority on the basis that he relied upon facts
which were not proved for directing revision, is wholly
beside the point. And as far as the question of sentence is
concerned, one cannot quarrel with the sentiments expressed
by the confirming authority. We find ourselves unable,
therefore, to agree to petitioner’s contention that the
order of the confirming authority directing revision is in
any way vitiated.
(2) We have already held above that the confirming
authority, when he directed a revision of the sentence
passed on the petitioner, was only exercising the powers
conferred on him by Section 160 of the Army Act. He also
made it clear,. that the court martial was not bound by his
opinion by stating that should the court martial decide to
enhance the sentence the fresh sentence should be announced
in open court as being subject to confirmation. Right in
the beginning of his order he had also stated ’Whilst in no
way intending the quantum of punishment to be awarded, the
court should fully take into consideration the following
observations’. To hold in the circumstances that the
confirming authority should have, heard the appellant before
he directed the revision of the sentence passed on him would
not be a requirement of principle of natural justice. In
the circumstances and facts of a case like the present one
where the petitioner had an opportunity of putting forward
whatever contentions he wanted to rely upon before the court
martial, we do not consider that there is any- substance in
this contention.
3) The contention here was that while the court martial
was convened by a Maj-General the officer who directed
revision was a Brigadier, and that only the convening
officer can confirm or
1033
direct revision. This is perhaps the one contention with
the least substance put forward on behalf of the petitioner.
The contention is based on the words found in Section 157 of
the Army Act that the findings and sentences of summary
general courts-martial may be confirmed by the convening
officer or if he so directs, by an authority superior to
him. The words ’convening officer’ and ’an authority
superior to him are sought to be contrasted and it is argued
that while a confirmation can only be by a convening officer
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and by no other, the authority superior to hi-in may also
confirm showing that in the latter case neither the rank of
authority nor the person holding the post is relevant.
Section 112 of the Act which deals with the power to convene
a summary general court martial shows that this attempted
distinction between "authority" and "officer" is without
substance. The officer is the authority and the authority
is the officer. Both the words refer only to one person.
To accept this argument would mean that if the officer who
convened the court martial is transferred to a distant
place or retires or is dead, the whole procedure would have
to be gone through again. A useful comparison will be of
decisions under Article 311 of the Constitution where it has
been held that the power to dial with an officer under that
Article can be exercised even by an authority lower in rank
to the authority which originally appointed the officer, if
at the, relevant period of time that authority was competent
to appoint the officer sought to be dealt with. It may be
noted that in this case the officer who convened the court
martial was a Maj-General Officer Commanding the 23rd
Mountain Division, and the officer who directed that the
findings and sentence should be confirmed by the Chief of
Staff was also the officer Commanding the same Division,
though he was only officiating and was a Brigadier. The
confirmation itself was by the Chief of Army Staff, higher
in rank than the convening officer.
(4) The contention that Bring Bhilla should either have
given a hearing to the petitioner or the Chief of Army Staff
should have given a hearing to the petitioner before
confirming the subsequent sentence by the court martial is
not a requirement under the Act. While it can be at least
said that there is some semblance of reasonableness in the
contention that before he ordered what in effect was an
upward revision of the sentence passed on the petitioner, he
should have been given a hearing, to insist that the
confirming authority should give a hearing to the petitioner
before it confirmed the sentence passed by the court
martial, is a contention which cannot be accepted. To
accept this contention would mean that all the procedure
laid down by the Code of Criminal Procedure should be
adopted in respect of the court martial, a contention which
cannot be accepted in the face of the very clear indications
in the Constitution that the provisions which are
1034
applicable to all the civil cases are not applicable to
cases; of Armed Personnel. It is not a requirement of the
principles of natural justice. Indeed when he was informed
that the subsequent sentence passed on him had been sent to
the Chief of the Army Staff for confirmation it was open to
the petitioner to have availed himself of the remedy
provided tinder Section 164 of presenting a petition to the
confirming officer, i.e. the Chief of the Army Staff in this
case. He does not appear to have done so.
We are, therefore, of the opinion that there are no merits
in this petition and dismiss it.
S.B.W. Petition dismissed.
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