Full Judgment Text
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PETITIONER:
CHIEF OF THE ARMY STAFF AND OTHERS
Vs.
RESPONDENT:
MAJOR DHARAM PAL KUKRETY
DATE OF JUDGMENT21/03/1985
BENCH:
MADON, D.P.
BENCH:
MADON, D.P.
CHANDRACHUD, Y.V. ((CJ)
MISRA RANGNATH
CITATION:
1985 AIR 703 1985 SCR (3) 415
1985 SCC (2) 412 1985 SCALE (1)582
ACT:
Constitution of India Article 226-Maintainability of
writ petition at the stage of show cause notice to terminate
the services of a service personnel by the Chief of the Army
staff when the finding of a court martial even on revision
is perverse or against the weight of evidence on record-Army
Act, 1950 sections 18 to 24, 108, 121, 127, 153, 154,
160(1), 191 and the Army Rules 1954 Rules 14 and 68 to 71,
scope of-Competency of the Chief of the Army Staff to have
recourse to Rule 14 of the Army Rules, when the general
court martial originally and on revision returned a verdict
of "Not guilty" -Principle of double jeopardy Aufrefois
Acquit applicability-Constitution of India Article 20(2)
read with Army Act, section 121.
HEADNOTE:
The respondent, a permanent commissioned officer of the
Indian Army holding the substantive rank of captain and the
acting rank of major, as a result of certain incidents which
are alleged to have taken place on November 5 and 6, 1975
was ordered to be tried by a general court martial. On March
13, 1976, the court martial announced its finding subject to
confirmation, the finding being "Not guilty of all the
charges." The General Officer Commanding, Madhya Pradesh,
Bihar and Orissa Area, the third appellant, who was the
confirming authority, did not confirm the verdict and by his
order dated April 3, 1976, sent back the finding for
revision. The same general court martial, therefore,
reassembled on April 14, 1976, and after hearing both sides
and taking into consideration the observations made by the
third appellant in his said order dated April 3, 1976,
adhered to its original view and once again announced the
finding subject to confirmation, that the respondent was
"Not guilty of all the charges". The third appellant
reserved confirmation of the finding on revision by a
superior authority, namely, the General Officer, Commanding-
in-Chief, Central Command, Lucknow, the second appellant,
and forwarded the papers to him. By his order dated May 25,
1976, the second appellant did not confirm the finding on
revision of the general court martial. The charges made
against the respondent, the finding and the nonconfirmation
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thereof were promulgated as required by Rule 71 of the Army
Rules. Thereafter, the Chief of the Army Staff under Rule 14
of the Army Rules 1954 issued the impugned show cause notice
dated November 12, 1976 stating that the Chief of the Army
Staff had carefully considered the facts of the case as also
the respondent’s defence at the trial and being satisfied
that a
416
fresh trial by a court martial for the said offences was
inexpedient, he was of the opinion that the respondent’s
misconduct as disclosed in the proceedings rendered his
further retention in the service undesirable. and called
upon the respondent to submit his explanation and defence,
if any, within twenty-five days of the receipt of the said
notice. Along with the said notice copies of abstracts of
evidence and the court-martial proceedings were forwarded to
the respondent. The respondent, thereupon, filed in the High
Court of Allahabad a writ petition under Article 226 of the
Constitution of India being Civil Miscellaneous Writ No. 84
of 1976, which was allowed by a Division Bench of the said
High Court. Hence the appeal by special leave
Allowing the appeal, the Court
^
HELD: 1. Where the threat of a prejudicial action is
wholly without jurisdiction, a person cannot be asked to
wait for the injury to be caused to him before seeking the
Court’s protection. If, on the other hand, the Chief of the
Army Staff had the power in law to issue the said notice, it
would not be open to the respondent to approach the court
under Article 226 of the Constitution at the stage of notice
only and in such an event his writ petition could be said to
be premature. This was, however, not a contention which
could have been decided at the threshold until the court had
come to a finding with respect to the jurisdiction of the
Chief of the Army Staff to issue the impugned notice. Having
held that the impugned notice was issued without any
jurisdiction, the High Court was right in further holding
that the respondent’s writ petition was not premature and
was maintainable. [420C-E]
2. Whether the Chief of the Army Staff was competent to
issue the impugned notice of show cause depends upon the
relevant provisions of the Army Act 1950 and the Army Rules
1954. Under Section 153 of the Army Act, no finding or
sentence of a general, district or summary general, court
martial shall be valid except so far as it may be confirmed
as provided by the Army Act. Under Section ]60 of the Army
Act, the confirming authority has the power to direct a
revision of the finding of a court martial only once. There
is no power in the confirming authority, if it does not
agree with the finding on revision, to direct a second
revision of such finding. In the absence of any such
confirmation, whether of the original finding or of the
finding on revision, by reason of the provisions of Section
153 the finding is not valid. Therefore, in the case of the
respondent, the finding of the general court-martial on
revision not having been confirmed was not valid. Equally,
there is however, no express provision in the Army Act which
empowers the holding of a fresh court-martial when the
finding of a court-martial on revision is not confirmed.
[427C-F]
3. Though it is open to the Central Government or the
Chief of the Army Staff to have recourse to Rule 14 of the
first instance without directing trial by a court-martial of
the concerned officer, there is no provision in the Army Act
or in Rule 14 or any of the other Rules of the Army Rules
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which
417
prohibits the Central Government or the Chief of the Army
Staff from resorting in such a case to Rule 14. [429F-G]
In the present case, the Chief of the Army Staff had,
on the one hand, the finding of a general court-martial
which had not been confirmed and the Chief of the Army Staff
was of the opinion that the further retention of the
respondent in the service was undesirable and, on the other
hand, there were three difference conflicting decisions of
different High Courts on this point which point was not
concluded by a definitive pronouncement of this Court. In
such circumstances, to order a fresh trial by a court-
martial could certainly be said to be both inexpedient and
impracticable and the only expedient and practicable course,
therefore, open to the Chief of the Army Staff would be to
take action against the respondent under Rule 14, which he
did. The action of the Chief of the Army Staff in issuing
the impugned notice was, therefore, neither without
jurisdiction nor unwarranted in law. [430B-D]
Capt. Kashmir Singh Shergill v. The Union of India &
Another, Civil Writ No. 553 of 1974 decided on November 6,
1974 by Prakash Narain, J., approved.
G.B. Singh v. Union of India and Others, [1973] Crl.
L.J. 485; Major Manohar Lal v. The Union of India and Anr.,
1971 (1) S.L.R. 717; J.C. 13018 Subedar Surat Singh v. The
Chief Engineer Projects (Beacon) C/o.56 A.P.O. AIR 1970 J. &
K 179 referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 663 of
1978.
From the Judgment and Order dt. 9.3.77 of the Allahabad
High Court in Civil Misc. Writ No. 84/77.
Dr. Anand Prakash, V.B.. Saharaya and Miss A.
Subhashini, for P the Appellants
H. S. Parihar, for the Respondent.
The judgment of the Court was delivered by
MADON,J. This Appeal by Special Leave granted by this
Court is preferred against the judgment and order of a
Division Bench of the Allahabad High Court allowing the writ
petition filed by the Respondent under Article 226 of the
Constitution of India and quashing a show cause notice dated
November 12,1976 issued by the First Appellant, the Chief of
the Army Staff, under Rule 14 of the Army Rules. 1954.
418
The facts which have given rise to this Appeal lie in a
narrow compass. The Respondent is a permanent commissioned
officer of the Indian Army holding the substantive rank of
Captain and the acting rank of Major. In November 1975, he
was posted in the Army School of Mechanical Transport,
Faizabad. As a result of certain incidents which are alleged
to have taken place on November 6 and 7, 1975, the
Respondent was tried by a general court-martial on four
charges. It is unnecessary to reproduce the charges made
against the Respondent. The charge-sheet was dated January
20, 1976, and was issued by the Commandant, Ordinance Depot,
Fort Allahabad. On January 24, 1976, the Respondent was
ordered to be tried by a general court-martial. The
Respondent pleaded not guilty and his trial took place at
Lucknow before a general court-martial consisting of one
Brigadier, two Majors and two Captains Both the prosecution
and the Respondent led evidence. On March 13, 1976, the
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court-martial announced its finding subject to confirmation,
the finding being "Not guilty of all the charges". The
General Officer, Commanding Madhya Pradesh, Bihar and Orissa
Area, the Third Appellant, who was the confirming authority,
did not confirm the verdict and by his order dated April 3,
1976, sent back the finding for revision. The same general
court-martial, therefore, re assembled on April 14, 1976,
and after hearing both sides and taking into consideration
the observations made by the Third Appellant in his said
order dated April 3, 1976, adhered to its original view and
once again announced the finding that the Respondent was ’
Not guilty of all the charges". The said finding was also
expressly announced as being subject to confirmation. The
Third Appellant reserved confirmation of the finding on
revision by a superior authority, namely, the General
Officer, Commanding in-Chief, Central Command, Lucknow, the
Second Appellant, and forwarded the papers to him. By his
order dated May 25, 1976, the Second Appellant did not
confirm the finding on revision of the general court-
martial. The charges made against The Respondent, the
finding and the non-confirmation thereof were promulgated as
required by Rule 71 of the Army Rules.
Thereafter the Chief of the Army Staff under Rule 14 of
the Army Rules issued the impugned show cause notice dated
November 12, 1976. It was stated in the said notice that the
Chief of the Army Staff had carefully considered the facts
of the case as also the Respondent’s defence at the trial
and being satisfied that a fresh trial by a court-martial
for the said offences was inexpedient, he
419
was of the opinion that the Respondent’s misconduct as
disclosed in the proceedings rendered his further retention
in the service undesirable. The Respondent was called upon
by the said notice to submit his explanation and defence, if
any, within twenty-five days of the receipt of the said
notice. Along with the said notice copies of abstracts of
evidence and the court-martial proceedings were forwarded to
the Respondent. The Respondent thereupon filed in the High
Court of Allahabad a writ petition under Article 226 of the
Constitution of India being Civil Miscellaneous Writ No. 84
of 1976, which, as aforesaid, was allowed.
It was the contention of the Respondent in his writ
petition that under the Army Act, 1950 (Act No. 46 of 1950),
and the Army rules there was an initial option either to
have the concerned officer tried by a court-martial or to
take action against him under Rule 14 and that in his case
the option having been exercised to try him by a court-
martial, the Chief of the Army Staff was not competent to
have recourse to Rule 14 after the Respondent was -
acquitted both at the time of the original trial and on
revision. This contention found favour with the High Court.
The High Court held that as the Respondent had in fact been
tried by a court-martial which both at the time of the
original trial and on revision had returned a verdict of
’not guilty, it could not be said that it was inexpedient to
try the Respondent by a court-martial and, therefore, the
impugned notice under Rule 14 was issued without any
jurisdiction. At the hearing of the said writ petition a
preliminary objection was raised by the Appellants that the
said writ petition was not maintainable as being premature.
The High Court held that as the impugned notice was issued
without jurisdiction, it would be exposing the Respondent to
jeopardy to require him to submit his reply to the said
notice and to wait until his services were terminated.
The same contentions, as were raised before the High
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Court, were taken before us at the hearing of this Appeal.
We will first deal with the Appellants’ preliminary
objection that the Respondent’s writ petition was not
maintainable as being premature. It was the Respondent’s
case that the Chief of the Army Staff had no jurisdiction to
issue the impugned show cause notice after he had been again
found not guilty by the court-martial on revision. The said
notice expressly stated that the Chief of the Army Staff was
of the opinion that the Respondent’s misconduct as disclosed
in the proceedings rendered his further retention in service
undesir
420
able and asked him to submit his explanation and defence, if
any, to the charges made against him. If the Respondent’s
contention with respect to the jurisdiction of the Chief of
the Army Staff to issue the said notice were correct, the
Respondent was certainly exposed to the jeopardy of having
his explanation and defence rejected and he being removed or
dismissed from services. Were the said notice issued without
jurisdiction, the Respondent would have then suffered a
grave, prejudicial injury by an act which was without
jurisdiction. Where the threat of a prejudicial action is
wholly without jurisdiction, a person cannot be asked to
wait for the injury to be caused to him before seeking the
Court’s protection. If, on the other hand, the Chief of the
Army Staff had the power in law to issue the said notice, it
would not be open to the Respondent to approach the court
under Article 226 of the Constitution at the stage of notice
only and in such an event his writ petition could be said to
be premature. This was, however, not a contention which
could have been decided at the threshold until the court had
come to a finding with respect to the jurisdiction of the
Chief of the Army Staff to issue the impugned notice. Having
held that the impugned notice was issued without any
jurisdiction, the High Court was right in further holding
that the Respondent’s writ petition was not premature and
was maintainable.
Before considering the rival contentions with respect
to the validity of the impugned notice, we may mention that
a learned Single Judge of the Delhi High Court has held in
the case of Capt. Kashmir Singh Shergill v. The Union of
India and another (1) that the Chief of the Army Staff was
competent to issue a show cause notice under Rule 14 even
though the court-martial had affirmed its verdict on
revision.
The answer to the question whether the Chief of the
Army Staff was competent to issue the impugned notice
depends upon the relevant provisions of the Army Act and the
Army Rules to which we now turn.
Chapter IV of the Army Act, which consists of Section
18 to 24, deals with the conditions of service of persons
appointed under
(1) Civil Writ No. 553 of 1974 decided on November 6, 1974
by Prakash Narain, J.
421
the Act. Section 18 provides that every person subject to
the Army . Act shall hold office during the pleasure of the
President. Section 19 provides that subject to the
provisions of the Army Act and the rules and regulations
made thereunder, the Central Government may dismiss, or
remove from the service, any person subject to the Army Act.
Section 22 provides that any person subject to the Army Act
may be retired, released or discharged from the service by
such authority and in such manner as may be prescribed by
rules made under the Act. Section 191 confers’ upon the
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Central Government the power to make rules for the purpose
of carrying into effect the provisions of the Army Act. Rule
14 of the Army Rules, 1954, provides as follows:
"14. Termination of service by the Central Government
on account of misconduct-
(1) When it is proposed to terminate the service of an
officer under Section 19 on account of misconduct, he shall
be given an opportunity to show cause in the manner
specified in sub-rule
(2) against such action:
Provided that this sub-rule shall not apply:
(a) where the service is terminated on the ground of
conduct which has led to his conviction by a
criminal court; or
(b) where the Central Government is satisfied that for
reasons to be recorded in writing, it is not
expedient or reasonably practicable to give to the
officer an ’ opportunity of showing cause.
(2) When after considering the reports of an officer’s
misconduct, the Central Government or the Chief of the Army
Staff is satisfied that the trial of the officer by court-
martial is inexpedient or impracticable, but is of the
opinion that the further ’ retention of the said officer in
the service is undesirable the Chief of the Army Staff shall
so inform the officer together with all reports adverse to
him and he shall be called upon to submit, in writing, his
explanation and defence:
Provided that the Chief of the Army Staff may withhold
from
422
disclosure any such report or portion thereof, in his
opinion, its disclosure is not in the interest of the
security of the State.
In the event of the explanation of the officer being
considered unsatisfactory by the Chief the Army Staff, or
when so directed by the Central Government, the case shall
be submitted to the Central Government with the officer’s
defence and the recommendation of the Chief of the Army
Staffs to the termination of the officer’s service in the
manner specified in sub-rule (4).
(3) Where, upon the conviction of an officer by a
criminal court, the Central Government or the Chief of the
Army staff considers that the conduct of the officer which
has led to his conviction renders his further retention in
service undesirable, a certified copy of the judgment of the
criminal court convicting him shall be submitted to the
Central Government with the recommendation of the Chief of
the Army Staff as to the termination of the officer’s n
service in the manner specified in sub-rule (4).
(4) When submitting a case to the Central Government
under the provisions of sub-rule (2) or sub-rule (3), the
Chief of the Army Staff shall make his recommendation
whether the officer’s service should be terminated, and if
so, whether the officer should be-
(a) dismissed from the service; or
(b) removed from the service; or
(c) called upon to retire; or
(d) called upon to resign.
(5) The Central Government after considering the
reports and the officer’s defence, if any, or the
judgment of the criminal court, as the case may
be, and the recommendation of the Chief of the
Army Staff, may dismiss or remove the officer with
or with out pension or call upon him to retire or
resign, and on his refusing to do so, the officer
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may be compulsorily retired or removed from the
service on pension or gratuity, if any, admissible
to him."
423
We are not concerned in this Appeal with a case where
an officer has been convicted by a criminal court or with a
case where the Central Government is satisfied that it is
not expedient or reasonably practicable to give to the
officer an opportunity of showing cause.A show cause notice
was in fact issued to the Respondent by the Chief of the
Army Staff. Under sub-rule (2) of Rule 14, the foundation of
the jurisdiction of the Central B, Government or the Chief
of the Army Staff to issue a show cause notice is the
satisfaction of the Central Government or the Chief of the
Army Staff after considering the reports of an officer’s
misconduct that the trial OF the officer by a court-martial
is inexpedient or impracticable and the opinion formed that
the further retention of the officer in the service is
undesirable.
The contention before us was that in the circumstances
of this case it cannot be said that the trial of the
Respondent by a court-martial was inexpedient or
impracticable as in fact the Respondent had been tried by a
court-martial. It was also submitted that on a true
construction of Rule 14, the Central Government or the Chief
of the Army Staff has an initial option to have the officer
tried by a court-martial or to take action against him under
Rule 14 and if it were decided that he should be tried by a
court-martial, then action under Rule 14 was not permissible
in case of his acquittal by the court-martial.
To test the correctness of these submissions, we must
examine the provisions of the Army Act relating to court-
martial. Section 108 provides for four kinds of courts-
martial, namely.
(1) general courts-martial;
(2) district courts-martial;
(3) summary general courts-martial; and
(4) summary courts-martial.
As the Respondent was tried by a general court-martial,
we are not concerned here with any other type of courts-
martial, Under section 109, a general court-martial may be
convened by the Central Government or the Chief of the Army
Staff or by any officer empowered in that behalf by warrant
of the Chief of the Army Staff. Section 113 provides that a
general court-martial shall consist of
424
not less than five officers, each of whom has held a
commission for not less than three whole years and of whom
not less than four are of a rank not below that of captain.
Section 117 provides for cases in which a court-martial can
be dissolved. These cases are:
(1) Where after the commencement of a trial the court-
martial is reduced below the minimum number of
officers required by the Army Act. In such a case
the dissolution of the court-martial is mandatory.
(2) If, on account of the illness of the judge-
advocate or of the accused before the finding, it
is impossible to continue the trial. In this case
also the dissolution of the court-martial is
mandatory.
(3) If it appears to the officer who convened a court
martial that military exigencies or the
necessities of discipline render it impossible or
inexpedient to continue the court-martial. In this
case, the dissolution of the court-martial is
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discretionary.
Sub-section (4) of section 117 expressly provides that where
a court martial is dissolved, the accused may be tried
again. Section 118 ’ confers upon a general court-martial
the power to try any person subject to the Army Act for any
offence punishable thereunder and to pass any sentence
authorized thereby.
Section 121 provides as follows:
"121. Prohibition of second trial.-
When any person subject to this Act has been acquitted
or convicted of an offence by a court-martial or by a
criminal court, or has been dealt with under any of the
sections 80, 83, 84 and 85, he shall not be liable to
be tried again for the same offence by a court-martial
or dealt with under the said sections."
The Respondent was neither tried by a criminal court nor
dealt with under any of the sections 80, 83, 84 and 85, most
of which do not apply to an officer of his rank- He was,
however, tried by a general court-martial which found him
not guilty of any of the charges made against him. Under
section 125, where a criminal
425
court and a court-martial both have jurisdiction in respect
of an offence, it is in the discretion of the officer
commanding the army, army crops, division or independent
brigade in which the accused person is serving or such other
officer as may be prescribed by the Army Rules to decide
before which court the proceedings shall be instituted.
Under section 127, a person convicted or acquitted by a
court-martial may, with the previous sanction of the Central
Government, be tried again by a criminal court for the same
offence or on the same facts. There is, however, no
provision for the trial by a court-martial for the same
offence or on the same facts where a person has been
convicted or acquitted by a criminal court. Sections 153,
154 and 160(1) provide as follows:
"153. Finding and sentence not valid, unless
confirmed.-
No finding or sentence of a general, district or summary
general, court-martial shall be valid except so far as it
may be confirmed as provided by this Act.
"154. Power to confirm finding and sentence of general
court-martial.-
The findings and sentences of general courts-martial
may be confirmed by the Central Government, or by any
officer empowered in this behalf by warrant of the
Central Government.
"160. Revision of finding or sentence,-
(1) 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.
In this connection it will also be relevant to set out the
provisions of Rules 68, 69, 70 and 11 of the Army Rules.
These Rules provide as follows:
‘68. Revision. (1) Where the finding is sent back for
revision under section 160, the Court shall reassemble
in open court,
426
the revision order shall be read, and if the court is
directed to take fresh evidence, such evidence shall
also be taken in open court. The court shall then
deliberate on its finding - in closed court.
(2) Where the finding is sent back for revision
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and the court does not adhere to its former finding, it
shall revoke the finding and sentence, and record the
new finding, and if such new finding involves a
sentence, pass sentence afresh.
(3) Where the sentence alone is sent back for
revision, the court shall not revise the finding.
(4) After the revision, the presiding officer
shall date and y sign the decision of the court, and
the proceedings, upon being signed by the judge-
advocate, if any, shall at once be transmitted for
confirmation.
"69. Review of court-martial proceedings.-
The proceedings of a general court-martial shall be
submitted by the judge-advocate at the trial for review
to the deputy or assistant judge-advocate general of
the command who shall then forward it to the confirming
officer. The proceedings of a district court-martial
shall be sent by the presiding officer or the judge-
advocate direct to the confirming officer who must, in
all cases. where the sentence is dismissal or above,
seek advice of the deputy or assistant judge-advocate
general of the command before confirmation."
"70. Confirmation-Upon receiving the proceedings of a
general or district court-martial, the confirming
authority may confirm or refuse confirmation, or
reserve confirmation for superior authority, and the
confirmation, non-confirmation, or reservation shall
be entered in and form part of the proceedings."
"71. Promulgation-The charge, finding, and sentence,
and any recommendation to mercy shall, together with
the confirmation or non-confirmation of the
proceedings, be
427
promulgated in such manner as the confirming authority
may direct; and if no direction is given, according to
the custom of the service. Until promulgation has been
effected, confirmation is not complete and the finding
and sentence shall not be held to have been confirmed
until they have been promulgated."
It is pertinent to note that under Section 160 the
confirming authority has the power to direct a revision of
the finding of a court-martial only once. There is no power
in the confirming authority, if it does not agree with the
finding on revision, to direct a second revision of such
finding. In the absence of any such confirmation, whether of
the original finding or of the finding on revision, by
reason of the provisions of section l 53 the finding is not
valid. Therefore, in the case of the Respondent, the finding
of the general court-martial on revision not having been
confirmed was not valid. Could he, therefore, be tried again
by another court-martial on the same charges ? Under Section
121, a person subject to the Army Act, who has been
acquitted or convicted of an offence by a court-martial or
by a criminal Court, is not liable to be tried again for the
same offence by a court-martial. It can well be argued that
by reason of the provisions of section 153 under which no
finding or sentence of a general, district or summary
general court-martial is valid except in so far as it is
confirmed as provided by the Army Act a person cannot be
said to have been acquitted or convicted by a court-martial
until the finding of "guilty" or "not guilty" in his case
has been confirmed by the confirming authority. There is,
however, no express provision in the Army Act which empowers
the holding of a fresh court-martial when the finding of a
court-martial on revision is not confirmed.
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The decisions of three High Courts may be referred to
in this connection. The first decision is that of Allahabad
High Court in G.B. Singh v. Union of India and Others. (1)
That was a case under the Air Force Act, 1950 (Act No. 45 of
1950). In that case, the officer was found guilty by a
general court-martial and sentenced ,. to be dismissed from
service. The finding and sentence was referred to the
confirming authority. The confirming authority passed an
order reserving the same for confirmation by superior
authority and forwarded the proceedings to the Chief Of the
Air Staff. The
(1) [1973] Crl. L.J. 485
428
Chief of the Air staff passed an order not confirming the
finding or sentence awarded by the court-martial. The
finding and sentence which were not confirmed by the Chief
of Air Staff were promulgated after the lapse of about ten
months.A fresh general court-martial was convened to retry
the office. On enquiry the officer was informed that the
findings and sentence of the general court-martial had not
been confirmed as it was found that the proceedings were not
in order and, therefore, there was no valid order convicting
or acquitting the officer. After considering the relevant
provisions of the Air Force Act and the Air Force Rules,
1969, which are in pari materia with the corresponding
provisions of the Army Act and the Army Rules, a learned
Single Judge of the Allahabad High Court held that the
effect of non-confirmation was that though the finding and
sentence passed by the court-martial existed, they could not
be put into effect unless they had been confirmed under the
provisions of the Air Force Act, and that in such a case
section 120 of the Air Force Act (which is in pari materia
with section 121 of the Army Act) barred a second trial by a
court-martial. In Major Manohar Lal v. The Union of India
and Anr. (1) the petitioner was tried by a general court-
martial which found him not guilty. The General Officer
Commanding-in-Chief held the proceedings to be null and void
on the ground that one of the members of the court-martial
was of the rank of Captain and was thus lower in the rank to
the petitioner and no certificate had been recorded by the
officer convening the court-martial as required by Rule
40(2) of the Army Rules, that an officer of the rank of the
petitioner was not available and he, therefore, ordered a
retrial.A learned Single Judge of the Punjab and Haryana
High Court held that under the Army Act and the Army Rules,
a Captain was eligible to be made a member of a general
court-martial and the mere fact that the convening officer
did not append the certificate that an officer of the rank
of the petitioner was not available did not make the
constitution of the general court martial invalid or the
finding given by it to be without jurisdiction or the
proceedings of the trial before it to be null and void. He
further held that as the petitioner had no say in the
constitution of the general court-martial and had suffered
the trial before it, the proceedings could not have been
declared null and void on a highly technical ground. The
learned Single Judge, therefore. came to the conclusion that
the second trial of the petitioner
(1) 1971(1) S.L.R. 717.
429
was without jurisdiction and the sentence imposed upon him
in consequence of that trial was wholly illegal. In J.C.
13018 Subedar Surat Singh v. The Chief Engineer Projects
(Beacon). Co. 56 A.P.O. (1).A Division Bench of the Jammu
and Kashmir High Court held that though every finding of a
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general court-martial, whether of acquittal or of guilt,
cannot be recorded as valid unless it is confirmed by the
competent authority, the Legislature could not have
reasonably intended that an officer convening a general
court martial can go on dissolving such court-martials and
reconstituting them ad infinitum until he obtained a verdict
or a finding of his own liking. The Division Bench further
held that such a position would not only be against public
policy and the ancient maxim "nemo debet bis vexari pro una
et eadem causa" (no man ought to be twice vexed for one and
the same cause) but would also reduce the provisions of the
Army Act to a mockery and give an appearance of mala fides.
According to the Jammu and Kashmir High Court, in such a
case the proper course for the confirming authority would be
to refer the case to its superior authority for
confirmation.
This being the position, what then is the course open
to the Central Government or the Chief of the Army Staff
when the finding of a court-martial even on revision is
perverse or against the weight of evidence on record? The
High Court in its judgment under appeal has also held that
in such a case a fresh trial by another court-martial is not
permissible. The crucial question, therefore, is whether the
Central Government or the Chief of the Army Staff can have
resort to Rule 14 of the Army Rules. Though it is open to
the Central Government of the Chief of the Army Staff to
have recourse to that Rule in the first instance without
directing trial by a court-martial of the concerned officer,
there is no provision in the Army Act or in Rule l 4 or any
of the other rules of the Army Rules which prohibits the
Central Government or the Chief of the Army Staff from
resorting in such a case to Rule 14. Can it, however, be
said that in such a case a trial by a court-martial is
inexpedient or impracticable? The Shorter Oxford English
Dictionary, Third Edition, defines the word "inexpedient" as
meaning "not expedient; disadvantageous in the
circumstances, unadvisable, impolitic". The same dictionary
defines "expedient’ inter alia as meaning "advantageous;
fit, proper, or suitable to the circumstances o the case".
Webster’s Third New International Dictionary also
(1) A.I.R. 1970 J. & K, 179.
430
defines the term "expedient" inter alia as meaning
"characterized by suitability, practicality, and efficiency
in achieving a particular end: fit, proper, or advantageous
under the circumstances".
In the present case, the Chief of the Army Staff. had,
on the one hand, the finding of a general court-martial
which had not been confirmed and the Chief of the Army Staff
was of the opinion that the further retention of the
Respondent in the service was undesirable and, on the other
hand, there were the above three High Court decisions and
the point was not concluded by a definitive pronouncement of
this Court. In such circumstances, to order a fresh trial by
a court-martial could certainly be said to be both
inexpedient and impracticable and the only expedient and
practicable course, therefore, open to the Chief of the Army
Staff would be to take action against the Respondent under
Rule 14, which he did. The action of the Chief of the Army
Staff in issuing the impugned notice was, therefore, neither
without jurisdiction nor unwarraned in law.
In the result, this Appeal must succeed and is
accordingly allowed and the judgment of the Division Beach
of the Allahabad High Court under Appeal is reversed and the
order passed by it is set aside. The writ petition filed by
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the Respondent in the Allahabad High Court, namely, Civil
Miscellaneous Writ No. 84 of 1977, is hereby dismissed.
Before parting with this Appeal, we would like to
observe that the alleged incidents in respect of which the
Respondent was tried before the general court-martial took
place nearly ten years ago. We, therefore, feel that the
Chief of the Army Staff should take into account the conduct
and behaviour of the Respondent during the intervening
period and if they have been in conformity with good order
and military discipline and the high traditions of the
Indian Army, he may consider the desirability of proceeding
further in the matter.
In the circumstances of the Case, there Will be no
order as to costs throughout.
S. R. Appeal allowed,
431