Full Judgment Text
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PETITIONER:
EX. NAIK SARDAR SINGH
Vs.
RESPONDENT:
UNION OF INDIA AND OTHERS
DATE OF JUDGMENT03/05/1991
BENCH:
REDDY, K. JAYACHANDRA (J)
BENCH:
REDDY, K. JAYACHANDRA (J)
PANDIAN, S.R. (J)
CITATION:
1992 AIR 417 1991 SCR (2) 676
1991 SCC (3) 213 JT 1991 (3) 1
1991 SCALE (1)899
ACT:
Army Act, 1950: Sections 63, 71 and 72-Summary Court-
Martial-Punishment-Award of-To be commensurate with nature
and degree of offence-Army Jawan carrying extra liquor
bottles without permit while proceeding on leave-Award of
punishment of 3 months’ R.I. and dismissal from service-
Whether arbitrary and excessive.
HEADNOTE:
The appellant, who had put in 10 years of service as
Jawan in the Army, was sentenced to 3 months’ R.I. and
dismissed from service by the Summary Court-Martial, on the
charge that his action in carrying 12 bottles of liquor
while proceeding on leave to his home town was contrary to
the orders on the subject. The appeal preferred by the
appellant, pointing out the irregularities committed in the
summary trial, and pleading that he had unblemished record
of service, was also rejected by the higher authority. The
writ Petition filed by the appellant was also summarily
rejected by the High Court.
In the appeal before this Court, on behalf of the
appellant it was contended that the summary trial was
vitiated on account of several irregularities committed in
conducting the trial, and the sentence awarded to him was
wholly disproportionate to the offence committed by him.
Disposing of the appeal, and remanding the case to the
Summary Court Martial on the question of sentence, this
Court
HELD 1. The trial is not vitiated and no prejudice
has been caused to the appellant, inasmuch as from the
records it is found that the evidence has been duly recorded
and, admittedly, the appellant was carrying extra seven
bottles of liquor without the necessary permit. However,
there is an element of arbitrariness in awarding severe
punishments and, therefore, an interference is called for
and the matter has to be remanded on the question of
awarding any of the lesser punishments provided in the Army
Act. [679E. 683G-H]
677
2.1 Section 72 of the Army Act, 1950 provides that the
court-martial may, on convicting a person subject to the
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Act, of any offences specified in Sections 34 to 68
inclusive, award either the particular punishment with which
the offence is stated in the said sections to be punishable,
or, in lieu thereof, any one of the punishments lower in the
scale set out in Section 71, regard being had to the nature
and degree of offence. [680C-D]
2.2 In the instant case, in the charge sheet it is
merely stated that the action of the appellant in carrying
12 bottles of liquor when he was proceeding to home town was
against the orders on the subject. But in the counter
affidavit it is stated that such an act of the appellant
came within the meaning of Section 63 of the Act. This
Section may cover various types of misconducts committed by
way of an act or omission. It also provides for awarding
any other lesser punishment mentioned in the Act.
Therefore, much depends on the nature of the act or omission
of which the person is found guilty. [680B,E]
2.3 Admittedly, the appellant was granted leave when
he was proceeding to his home town. Enroute he had to pass
through a place where prohibition was in force. He had a
valid permit to carry 5 bottles of liquor and the extra 7
bottles were purchased from the Army Canteen itself. Unless
he had some permits or chits given by some higher
authorities, he could not have purchased these extra bottles
from the Canteen. He was taking this liquor to his home
town to celebrate his brother-in-law’s marriage, but the
local Civil Police checked his baggage and confiscated the
bottles as he had no valid permit to carry the extra
bottles. [679G-H, 680A]
2.4 Assuming that the offence committed by the
appellant is covered by the residuary Section 63, but in
awarding the punishment, court-martial has to keep in view
the spirit behind Section 72 and it has to give due regard
to the nature and degree of the offence. Section 63
provides for awarding of any of the lesser punishments
enumerated in Section 71. In view of these provisions of
law and having regard to the nature and degree of the
offence, the punishments awarded to the appellant, namely,
three months’ R.I. and dismissal from service are severe and
are also violative of Section 72. Ends of justice will be
sufficiently met if a lesser punishment as provided under
Section 71(f) is awarded to the appellant. [682E-F, 684F]
2.5 Accordingly, the punishments are set aside and the
matter remanded to the court-martial which shall award any
of the lesser
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punishments having due regard to the nature and
circumstances of the case. Any detention suffered by the
appellant after the orders of the court-martial will not be
treated as a disqualification for being rein-stated into
service. [648B]
Ranjit Thakur v. Union of India and Others, [1987] 4
SCC 611 and Bhagat Ram v. State of Himachal Pradesh, [1983]
2 SCC 442, relied on.
Council of Civil Service Unions v. Minister for the
Civil Service, [1984]3 AII ER 935, 950, referred to
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 67
of 1991.
From the Judgement and Order dated 27.11.1987 of the
Delhi High Court in Crl. W. No. 527 of 1987.
N.N. Gupta and Rajiv Dutta for the Appellant.
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J.D. Jain, Maninder Singh and Ms. Sushma Suri for the
Respondents.
The Judgement of the Court was delivered by
K. JAYACHANDRA REDDY, J. This appeal, pursuant to the
special leave granted, is directed against the order of the
High Court of Delhi dismissing the writ petition filed by
the appellant summarily.
The appellant was serving as a Jawan in the Indian
Army. On 17th September, 1985, he applied for leave and it
was granted. He was going to his home town, a village in
Rajasthan. He purchased 11 bottles of sealed rum and one
bottle of brandy from his Unit Canteen as he required the
same to celebrate the marriage of one of his close relations
at his home town. Admittedly, the appellant was entitled to
carry 4 bottles of rum and one bottle of brandy as per the
Unit Regulations/leave certificate when he was proceeding on
leave. According to the appellant, the remaining 7 bottles
of rum he was able to purchase from the Unit Canteen over
and above his entitlement on the orders of its Company
Commander and Commanding Officer on compassionate grounds
and that there was a written order to that effect which was
retained by the Salesman of the Unit Canteen at the time of
delivery of the extra 7 bottles of rum. Enroute to his home
679
town he had to pass through Surendra Nagar which was under
prohibition. The local Civil Police at Surendra Nagar
intercepted him and confiscated the bottles of liquor and
handed over the appellant alongwith the liquor bottles to
the City Police Station, Surendra Nagar. The City Police in
turn handed over him to his Unit authorities for action.
The 6th respondent, the Officer Commanding, 98 Field
Regiment, ordered a summary court-martial during which the
witnesses including the Civil, Police Officer of Surendra
Nagar were examined. Ultimately the summary court-martial
sentenced the appellant to three months’ R.I. and dismissed
him from service with effect from 9th October, 1985 by which
time the appellant had already put in 10 years of service.
His plea throughout has been that he had purchased the
liquor for the marriage of his brother-in-law on the basis
of the permit issued to him and the chits issued by his
superiors enabling him to draw the extra 7 bottles of rum
and that he had no other bad intention in carrying the
liquor bottles. He preferred an appeal to the Army
Commander mentioning several irregularities in the summary
trial. He also pleaded that he was having unblemished
record of service in the Army, but his appeal was rejected.
Thereafter he filed a writ petition in the Delhi High Court
which was summarily rejected.
In this appeal the learned counsel for the appellant
submitted that several irregularities have been committed in
conducting the summary trial. But from the records we find
that the evidence has been duly recorded and further it is
an admitted fact that the appellant was carrying extra 7
bottles of rum without the necessary permit. Therefore we
are unable to agree with the counsel that the trial is
vitiated and we are of the view that no prejudice has been
caused. The main submission and perhaps the only
submission, if we may say so, in this appeal is that the
sentence awarded to the appellant is wholly disproportionate
to the offence committed by him. According to the learned
counsel the extreme punishment of imprisonment for 3 months
and dismissal from the service under the circumstances is
uncalled for.
We find considerable force in this submission.
Admittedly the appellant was granted leave when he was
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proceeding to his home town and unfortunately enroute to his
home town he had to pass through Surendra Nagar where there
was prohibition in force. However, he had a valid permit to
carry 5 bottles, the extra 7 bottles of rum, according to
the appellant, were purchased from the Army Canteen itself
and there is no dispute about the same. Unless he had some
permits or chits given by some higher authorities permitting
him to purchase these bottles, he could not have purchased
the same from the Canteen
680
over and above the bottles for which he had a valid permit.
He was taking this liquor to his home town to celebrate his
brother-in-law’s marriage, but to his bad luck, the Civil
Police of Surendra Nagar checked his baggage and confiscated
the bottles as he had no valid permit to carry the extra
bottles. Under these circumstances the question is whether
such a severe penalty is called for. In the chargesheet it
is merely stated that the action of the appellant in
carrying 11 bottles of sealed rum and one bottle of sealed
brandy when he was proceeding to his home town is "contrary
to the existing orders on the subject". In the counter-
affidavit it is stated that such an act of the appellant
comes within the meaning of Section 63 of Chapter VI of the
Army Act, 1950 (‘Act’ for short) which enumerates various
types of offences. Section 63 lays down as under:
"63. Violation of good order and discipline-Any
person subject to this Act who is guilty of any act
or omission which, though not specified in this
Act, is prejudicial to good order and military
discipline shall, on conviction by court-martial,
be liable to suffer imprisonment for a term which
may extend to seven years or such less punishment
as is in this act mentioned".
The Section may cover various types of misconducts committed
by a person by way of an act or omission. This Section also
provides for awarding any other lesser punishment mentioned
in the Act. Therefore such depends on the nature of the act
or omission of which the person is found guilty. The
provisions in Chapter VII enumerate various punishments that
can be awarded. Section 71 of the Act deals with
punishments awardable by court-martial and reads as under:
"71. Punishments awardable by courts-martial
Punishments may be inflicted in respect of offences
committed by persons subject to this Act and
convicted by courts-martial, according to the scale
following, that is to say-
(a) death;
(b) transportation for life or for any period not
less than seven years;
(c) imprisonment, either rigorous or simple, for
any period not exceeding fourteen years;
681
(d) cashiering, in case of officers;
(e) dismissal from the service;
(f) reduction to the ranks or to a lower rank or
grade or place in the list of their rank, in the
case of warrant officers.; and reduction to the
ranks or to a lower rank or grade, in the case of
non-commissioned officers;
Provided that a warrant officer reduced to the
ranks shall not be required to serve in the ranks
as a sepoy;
(g) forfeiture of seniority of rank, in the case of
officers, junior commissioned officers, warrant
officers and non-commissioned officers; and
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forfeiture of all or any part of their service for
the purpose of promotion, in the case of any of
them whose promotion depends upon length of
service;
(h) forfeiture of service for the purpose of
increased pay, pension or any other prescribed
purpose;
(i) severe reprimand or reprimand, in the case of
officers, junior commissioned officer, warrant
officers and non commissioned officers;
(j) forfeiture of pay and allowances for a period
not exceedind three months for an offence committed
on active service;
(k) forfeiture in the case of a person sentenced to
cashiering or dismissal from the service of all
arrears of pay and allowances and other public
money due to him at the time of such cashiering or
dismissal;
(l) stoppage of pay and allowances until any proved
loss or damage occasioned by the offence of which
he is convicted is made good."
It can be seen that Sections 71(a) to 71(e) and Section
71(k) provide for extreme punishments and are severe in
nature. Sections 71(f) to 71(j) and Section 71(l) provide
for comparatively lesser punishments. Section 72 of the Act
is the next relevant Section which reads as under:
682
"72. Alternative punishments awardable by court-
martial-Subject to the provisions of this Act, a
Court-Martial may, on convicting a person subject
to this Act to any of the offences specified in
Sections 34 to 68 inclusive, award either the
particular punishment with which the offence is
stated in the said sections to be punishable, or,
in lieu thereof, any one of the punishments lower
in the scale set set out in Section 71, regard
being had to the nature and degree of the Offence."
(emphasis supplied)
Section 73 of the Act deals with combination of punishments
and it reads as under:
"73. Combination of punishments-A sentence of a
court-martial may award in addition to, or without
any one other punishment, the punishment specified
in clause (d) or clause (e) of Section 71 and any
one or more of the Punishments specified in clauses
(f) to (l) of that section."
It can be seen that under Section 73 of the Act, the court-
martial may award more than one punishments as mentioned
therein. In the instant case Section 63 also is not
mentioned in the chargesheet. Assuming that the offence
committed by the appellant is covered by the residuary
Section 63 but in awarding the punishment the court-martial
has to keep in view the spirit behind Section 72 of the Act
and it has to give due regard to the nature and degree of
the offence. It can be seen that Section 63 provides for
awarding any of the lesser punishments enumerated in Section
71 of the Act. In view of these provisions of law and
having regard to the nature and degree of the offence, we
are firmly of the view that the punishments awarded to the
appellant namely, three months’ R.I. and dismissal from
service are severe and are also violative of Section 72.
In Council of Civil Service Unions v. Minister for the
Civil Service, [1984] 3 All ER 935, 950 Lord Diplock said:
"Judicial review has I think developed to a stage
today when, without reiterating any analysis of the
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steps by which the development has come about, one
can conveniently classify under three heads the
grounds on which administrative action is subject
to control by judicial review. The first ground I
would call ‘illegality’, the second ‘irrationa-
683
lity’ and the third ’procedural impropriety ! This
is not to say that further development on a case by
case basis may not in course of time add further
grounds. I have in mind particularly the possible
adoption in the future of the principle of
’proportionality’ which is recognised in the
administrative law of several of our fellow members
of the Eurpoean Economic community,....."
This principle was followed in Ranjit Thakur v. Union of
India and Others, [1987] 4 SCC 611 where this Court
considered the question of doctrine of proportionality in
the matter of awarding punishment under the Army Act and it
was observed thus:
"The question of the choice and quantum of
punishment is within the jurisdiction and
discretion of the court-martial. but the sentence
has to suit the offence and the offender. It
should not be vindictive or unduly harsh. It
should not be so disproportionate to the offence as
to shock the conscience and amount in itself to
conclusive evidence of bias. The doctrine of
proportionality, as part of the concept of judicial
review, would ensure that even on an aspect which
is, otherwise, within the exclusive province of the
court-martial, if the decision of the court even as
to sentence is an outrageous defiance of logic,
then the sentence would not be immune from
correction. Irrationality and perversity are
recognised grounds of judicial review."
In Bhagat Ram v. State of Himachal Pradesh, [1983] 2 SCC 442
this Court held as under:
"It is equally true that the penalty imposed must
be commensurate with the gravity of the misconduct,
and that any penalty disproportionate to the
gravity of the misconduct would be violative of
Article 14 of the Constitution."
Applying these principles to the instant case, We are also
constrained to say that there is an element of arbitrariness
in awarding these severe punishments to the appellant.
We have heard both the learned counsel on this aspect
elaborately and we are satisfied that an interference is
called for and the matter has to be remanded on the question
of awarding any of the lesser punishments. Having given our
earnest consideration to the
684
facts and circumstances of this case and in view of the
submissions made by both the counsel, we feel that ends of
justice will sufficiently be met if a lesser punishment as
provided under Section 71(f) is awarded to the appellant.
Accordingly, we set aside the punishments of three months’
R.I. and dismissal from service and remand the matter to the
court martial which shall award any of the lesser
punishments having due regard to the nature and
circumstances of the case and in the light of the above
observations made by us. Since we are setting aside the
sentence of three months’ R.I. any detention suffered by the
appellant after the orders of the court-martial shall not be
treated as a disqualification for being reinstated into
service which shall, however, be subject to any of the minor
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punishments to be awarded by the court-martial. Already
much time has lapsed, therefore, we hope the court-martial
would dispose of the matter as expeditiously as possible
preferably within three months. The appeal is thus disposed
of subject to the above directions.
N.P.V. Appeal disposed of.
685