UNION OF INDIA vs. VISHAV PRIYA SINGH

1 REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPEAL NO.8360 OF 2010 Union of India & Ors. …… Appellants Versus Vishav Priya Singh …… Respondent With CIVIL APPEAL NO…8830-8835 OF 2010 CIVIL APPEAL NO…8838 OF 2010 CIVIL APPEAL NO…2547 OF 2011 CIVIL APPEAL NO…2548 OF 2011 CIVIL APPEAL NO…2549 OF 2011 CIVIL APPEAL NO…2550 OF 2011 CIVIL APPEAL NO. D.13803 OF 2015 CIVIL APPEAL NO. D.18038 OF 2015 JUDGMENT AND CIVIL APPEAL NO.6679 OF 2015 JUDGMENT Uday Umesh Lalit, J. 1. Civil Appeal Nos.8360 of 2010 and 8830-8835 of 2010, at the instance of Union of India challenge correctness of the common judgment and order of the High Court Page 1 2 of Delhi dated 25.01.2008 in Writ Petition (Civil) Nos.2511 of 1992, 3519 of 1998, 6185 of 2002, 2433 of 2003, 17622 of 2004, 18185 of 2004 and 20233 of 2005. Civil Appeal No.8838 of 2010 seeks to assail the decision of the High Court

earlier decision dated 25.01.2008. 2. For the sake of facility we may reproduce Paragraph Nos.2 to 7 of the judgment of the High Court of Delhi dated 25.01.2008 which cull out the factual matrix in each of the petitions before it. Said Paragraph Nos.2 to 7 are as under:- “2. In CWP 2511/1992 the Petitioner, Ex. L Nk Vishav Priya Singh, has alleged that he had made complaint against the CO, 19th Batallion Mahar Regiment of prejudicial treatment meted out by him to the Petitioner. It has been asseverated in the Writ Petition that initially the Brigade Commander had nominated the CO, 17th Kumaon to investigate into the Petitioner's complaint. The CO of 19th Mahar through manipulation got his close friend, the CO of 18th Batallion, Punjab Regiment, detailed to investigate these complaints. The Petitioner was ordered to proceed to 18th Punjab Regiment. Eventually, the CO, 18th Punjab Regiment tried the Petitioner by SCM and convicted/sentenced him to suffer Rigorous Imprisonment of six months in the Civil Jail and dismissal from service. The argument is that since the Petitioner belonged to the 19th Mahar, but was tried by SCM held by CO of 18th Punjab Regiment, the Trial was rendered coram non judice. ………… ………………………………………………………………….. It is important to mention that the Petitioner had made complaints against his CO on 26.3.1990; he was interviewed by the Brigade Commander on 30.5.1990; was asked to appear before the CO, 18th Punjab Regiment on 15.7.1990; was charged under Section 41(2) of the Army Act for disobeying a lawful command given by a superior officer in that he, when JUDGMENT Page 2 3 asked to accept a letter dated 16.7.1990, requiring his presence in CO's Office for investigation in Unit refused to do so and disobeyed verbal orders.

JUDGMENT 4. CWP 6185/2002 has been filed by Ex. NK Dwarka Prasad stating that he belonged to 24th Rajput Regiment. In the year 2000 he was temporarily attached to 61st Infantry Brigade to perform the duties as a Sahayak. By Charge-sheet dated 29.10.2001 under Section 69 of the Army Act he was accused of committing a civil offence on 25.10.2001, that is to say, using criminal force to a woman with an intent to outrage her modesty and on that very date the Commander, 65th Infantry Brigade ordered that he be tried by an SCM. The Petitioner was tried by the SCM between 3.11.2001 and 5.11.2001 and was Page 3 4 convicted/sentenced (1) to be reduced to ranks (ii) to be dismissed from service, (iii) to suffer imprisonment in civil jail for one year.

6. CWP 20233/2005 has been filed by Sepoy U.S. Mishra stating that he was enrolled in the Indian Army in March, 1987 and that on 18.3.1999 he was posted to 38 defence Medical Store Depot. By letter dated 27.3.2002 the Petitioner was attached, for disciplinary purposes, to 38 AMSD Blocks. The Petitioner was, along with 15 Army personnel, tried by SCM between 20.12.2004 and 4.1.2005 by CO 118 Field Regiment where the Petitioner was attached for disciplinary purposes. The first charge under Section 52(f) of the Army Act was that the Petitioner between 4.8.1999 to 6.6.2001, with intent to defraud, improperly altered several entries in the Issue Vouchers. The Petitioner was found guilty and sentenced to be reduced to ranks on 4.1.2005. The contention is that the CO of 118 Field Regiment could not try the Petitioner by SCM since he was only 'attached with the Unit'. Delay in convening the SCM would also obviously come in for consideration. JUDGMENT 7. The facts in CWP 17622/2004 filed by Sep/Clerk S.K. Nair and CWP 18185/2004 filed by Sep/Clerk Balwinder Singh are similar. In September 1998 a Court of Inquiry was ordered to investigate into the irregular enrollment during a recruitment rally held at Pathankot in March 1995. The Petitioners' assert that since they were posted to 14th Sikh Regiment, only the CO of that Unit was competent to try them by an SCM. Accordingly, SCM by the CO of 1 TB ASC Centre, Gaya was legally incompetent and non-est. Delay in convening the SCM would also obviously come in for consideration.” Page 4 5 3. Writ Petitions before the High Court of Delhi raised two common questions of law pertaining to Summary Courts Martial (hereinafter referred to as SCM):-

Unit to which the accused did not belong and (b) the circumstances in which the SCM can be convened rather than a General Courts Martial (“GCM” for short), a District Courts Martial (“DCM” for short) or Summary General Courts Martial (“SGCM” for short) as envisaged in Section 108 of the Army Act 1950 (hereinafter referred to as the Act). While allowing these Writ Petitions, the High Court in Paragraphs 20, 22, 23 and 24 of its judgment observed as under: JUDGMENT “20. An SCM can legitimately be convened where there is grave and compelling cause for taking immediate action which would be defeated if reference to a District Court Martial or Summary General Court Martial is made. In other words, holding of an SCM is the exception and not the rule. From the multitude of possible offences it is only those envisaged in Sections 34 , 37 and 69 , that can be tried by an SCM, further fortifying the exceptional and extraordinary character of an SCM. We think it necessary to underscore that it is not proper to convene an SCM merely because the offence(s) with which a sepoy of the force is charged finds mention in the enumeration Page 5 6

21. ……………………………………………………………… 22. We shall endeavor to discharge this duty by enunciating firstly that it is the CO of the Unit to which the accused belongs who is empowered to convene an SCM. This is not a empty formality or pointless punctilio. There is an abiding and umbilical connection between the CO and his regime. The Ranks have always looked up at their CO as the father figure who will be as concerned with their welfare as with their discipline. This is the only conclusion that can be arrived at on a holistic reading of the Army Act , Rules and Regulations. JUDGMENT 23. As per our analysis above, the exception to this Rule is restricted to the case of Deserters and that too where the CO of the Unit to which they belong is not readily and easily available. Secondly, an SCM must be the exception and not the Rule. It can only be convened where the exigencies demand an immediate and swift decision without which the situation will indubitably be exacerbated with widespread ramifications. Obviously, where the delinquent or the indisciplined action partakes of an individual character or has civil law dimensions, an SCM should not be resorted to. Delay would thus become fatal to an SCM. Thirdly, the decision to convene an SCM must be preceded by a reasoned order which itself will be amenable Page 6 7

4. During the course of its judgment, the High Court of Delhi considered Sections 116 and 120 of the Act along with Note 5 below Section 116 and Note 5 below Section 120 as well as Paragraph 381 of the Defence Service Regulations Page 7 8 (hereinafter referred to as the “DSR”). According to the High Court in cases concerning trial of deserters as dealt with in Paragraph 381 of the DSR, a specific exception was carved out enabling CO of a unit other than the one to

Barring such exception, according to the High Court, it is the CO of the unit to which the accused belonged, who alone is empowered to convene, constitute and complete an SCM. The High Court further held that for convening an SCM it was imperative that immediate action was manifestly necessary. 5. Along with the Appeals arising from the decision of the High Court of Delhi, Civil Appeal Nos.2547-2550 of 2011 at the instance of Original Writ Petitioners, challenging the correctness of the common decision of the High Court of Rajasthan at Jaipur dated 31.08.2006 dismissing their Appeals arising from dismissal of their writ petitions, were also placed before us. Though the question JUDGMENT as regards competence of the CO of a Unit other than the one to which the accused belonged to convene, constitute and complete an SCM, was not raised before the High Court of Rajasthan, the other question as to the circumstances in which an SCM could be convened rather than a GCM or DCM or SGCM did arise in the matters dealt with by the High Court of Rajasthan. In any case, we proceed to consider these appeals even with regard to the former question. Page 8 9 6. The factual aspects of the matters which were dealt with by the High Court of Rajasthan, as found in its judgment relating to the present appellants, were as under:-

JUDGMENT Page 9 10

In Writ Petition No.5689/1994, petitioner Bhagwan Sahai was enrolled as Sepoy in the Army on 8.1979. While he was posted with Det.515 ASC Bn attached with 5011 ASC Bn(MT), he was sanctioned 42 days annual leave from 16.3.1992 to 26.4.1992. He failed to report on 27.4.1992. He had been informed about refusal of his request for extension of leave. He ultimately submitted joining on 2.2.1993 after remaining wilfully absent from duty for 302 days. Charge-sheet was served and summary of evidence was recorded in course of which he was afforded opportunity to cross-examine witness and examine his own in defence. He declined to cross-examine the witnesses and make any statement in his defence. Instead, he admitted his guilt. Summary Court Martial was thereafter held. Charge was explained and papers were supplied, and he was provided with `friend of accused' and informed of the consequences of pleading guilty. After going through the papers supplied to him, he admitted his guilt which was recorded. He was declared deserter and held guilty of the charge under Section 38(1) of the Army Act and dismissed from service on 8.4.1993. He preferred appeal which was rejected on 26.7.1994. JUDGMENT In Writ Petition No.6134/1994, petitioner Chatar Singh was enrolled in the Army on 28.9.1976. He proved to be the habitual absentee. He remained absent from duty without leave for 12 Page 10 11

JUDGMENT observed that the rules in question not only contained sufficient safeguards but also ensured fair degree of transparency in the proceedings. It was observed:-

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of India seek to challenge common judgment and order dated 13.12.2015 passed

JUDGMENT challenge to the sentence of dismissal from service and rigorous imprisonment awarded by an SCM, is under challenge before this Court. In this case the challenge was negated on facts though one of the questions raised pertained to the competence of the CO of the attached Unit, to convene, constitute and complete the SCM.

and Ms. Jyoti Singh, learned Senior Advocates were appointed amicus curiae to Page 12 13 assist this Court. We are deeply grateful for the assistance rendered by them. It was submitted by Mr. Arun Mohan, learned Amicus Curiae that absence of an appeal from the decision of an SCM did weigh with the High Court of Delhi but

JUDGMENT of law even though the procedure contained in the Statute was in tune with concept of fair trial, that the quantum of punishment awarded in SCMs was hugely disproportionate to the offences and that the provisions enabling convening of an SCM ought to be used in rarest of the rare cases. In her submission an

Balasubramanian appearing for the Union of India submitted that there was nothing in the Act to suggest that it is only the CO of a Unit to which the accused Page 13 14 belonged, who alone could validly convene, constitute and complete an SCM and according to him even a CO of a Unit to which the accused was attached or later sent on attachment would have requisite competence. Learned Counsel appearing for the respondents led by Mrs. Rekha Palli, learned Senior Advocate supported the view taken by the High Court of Delhi. In matters arising from the High Court of Rajasthan, learned counsel appearing for the appellants led by Ms. Aishwarya Bhati, learned Advocate submitted that the view taken by the High Court of Rajasthan was not correct. 11. Chapter X of the Act deals with “Courts Martial” and the relevant Sections are:- “ 108. Kinds of courts- martial . -For the purposes of this Act there shall be four kinds of courts- martial, that is to say,- (a) general courts- martial; (b) district courts- martial; (c) summary general courts- martial; and (d) summary courts- martial. JUDGMENT 109 . Power to convene a general court- martial.- A general court- martial may be convened by the Central Government or the Chief of the Army Staff or by any officer empowered in this behalf by warrant of the Chief of the Army Staff. 110. Power to convene a district court- martial. -A district court- martial may be convened by an officer having power to convene a general court- martial or by any officer empowered in this behalf by warrant of any such officer. Page 14 15 112. Power to convene a summary general court- martial. - The following authorities shall have power to convene a summary general court- martial, namely,-

(c) an officer commanding any detached portion of the regular Army on active service when, in his opinion, it is not practicable, with due regard to discipline and the exigencies of the service, that an offence should be tried by a general court- martial. 113. Composition of general court- martial.- A general court- martial shall consist of 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. 114. Composition of district court-martial. -A district court- martial shall consist of not less than three officers, each of whom has held a commission for not less than two whole years. JUDGMENT 115. Composition of summary general court-martial. -A summary general court- martial shall consist of not less than three officers. 116. Summary court-martial. -(1) A summary court- martial may be held by the commanding officer of any corps, department or detachment of the regular Army, and he shall alone constitute the court. (2) The proceedings shall be attended throughout by two other persons who shall be officers or junior commissioned officers Page 15 16 or one of either, and who shall not as such, be sworn or 1 affirmed.

119. Powers of district courts-martial. -A district court- martial shall have power to try any person subject to this Act other than an officer or a junior commissioned officer for any offence made punishable therein, and to pass any sentence authorised by this Act other than a sentence of death, transportation, or imprisonment for a term exceeding two years: Provided that a district court-martial shall not sentence a warrant officer to imprisonment. 120. Powers of summary courts-martial. -(1) Subject to the provisions of sub- section (2), a summary court- martial may try any offence punishable under this Act. (2) When there is no grave reason for immediate action and reference can without detriment to discipline be made to the officer empowered to convene a district court- martial or on active service a summary general court- martial for the trial of the alleged offender, an officer holding a summary court- martial shall not try without such reference any offence punishable under any of the sections 34, 37 and 69, or any offence against the officer holding the court. JUDGMENT (3) A summary court-martial may try any person subject to this Act and under the command of the officer holding the court, 1

Page 16 17 except an officer, junior commissioned officer or warrant officer.

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JUDGMENT 14. In Section 3 of the Rules, Rule 109 deals with swearing or affirming of Court and interpreter which Rule also sets out the concerned forms of oath and affirmation. Rule 133 dealing with review of proceedings of an SCM is as under:- “133. Review of proceedings. — The proceedings of a summary court-martial shall, immediately on promulgation, be forwarded (through the Deputy Judge-Advocate General of the command in which the trial is held) to the officer authorised to deal with them in pursuance of section 162. After review by him, they will be returned to the accused person’s corps for preservation in accordance with sub-rule (2) of rule 146.” Page 20 21 15. In Section 4 of the Rules dealing with “General Provisions” applicable to all kinds of Courts Martial, Rule 146 of the Rules states as under:-

Page 21 22 and in respect of which it is the duty of such officer, under these Regulations or by the custom of ;the service, to discharge the functions of a Commanding Officer.”

In no circumstances will a ;man be tried by summary court-martial held by a CO other than the CO of the unit to which the man properly belongs a unit to which the man may be attached subsequent to commission of the offence by him will also be a unit to which the man properly belongs. TABLE __________________________________________________ JUDGMENT Column one Column two Armoured Corps Regiment ..Armoured Corps Centre and School A unit of Artillery ..Regimental Centre Concerned A Unit of Engineers ..Headquarters Engineers Group, concerned A unit of Signals .. Signal Training Centre, Jabalpur Infantry battalion ..Regimental Centre concerned Gorkha Rifle battalion ..Gorkha Regimental Centre concerned ASC unit .. ASC Centre concerned Page 22 23 RV Crops .. RVC Centre

17. Chapter X of the Act after setting out four kinds of Courts Martial, deals with issues like who is empowered to convene such Courts-Martial, composition of such Courts Martial and the powers of such Courts-Martial. According to Section 118, a GCM has power to try any person subject to the Act for any offence punishable therein and to pass any sentence authorized by the Act. Reading of Section 112 shows that while on active service an SGCM can be convened if having due regard to discipline and exigencies of the service, satisfaction is arrived at that it would not be practicable to try the offence by a GCM. According JUDGMENT to Section 118, such SGCM is again empowered to try any person subject to the act for any offence punishable therein and to pass any sentence authorized thereby. Section 119 of the Act states that in respect of any person other than an officer, Junior Officer, a DCM can also be convened but Section 119 limits the power of punishment, in that a DCM cannot pass a sentence of death, transportation or imprisonment for a term exceeding two years. Further, a DCM cannot sentence a Warrant Officer to imprisonment. Sections 109, 112 and 119 confer power to Page 23 24 convene such GCM, SGCM and DCM respectively upon the Authorities mentioned in the respective sections. The composition of GCM, SGCM and DCM are again set out in Sections 113, 115 and 114 respectively.

punishable under the Act but sub-Sections (4) and (5) limit the award of sentence. According to sub-Section (4), an SCM can pass any sentence which may be prescribed under the Act, except a sentence of death or transportation or of imprisonment of a term exceeding the limit specified in sub-Section (5). Sub-Section (5) of Section 120, then prescribes the limit to the level of one year, if the officer holding the SCM is of the rank of Lieutenant Colonel and upwards and at the level of three months if the officer holding the SCM is below the rank of Lieutenant Colonel. JUDGMENT 19. Section 116 of the Act empowers the CO of any Corps, Department and Detachment of the regular Army to hold an SCM and specifically states that he alone shall constitute the Court. Sub-Section (2) then prescribes that the proceedings shall, however, be attended through-out by two other persons specified therein. However, such persons are not to be sworn or affirmed. Unlike Sections 113, 115 and 114, where composition of the concerned Court-Martial is prescribed to consist of atleast three officers, it is the CO alone who constitutes the Page 24 25 Court under Section 116 in respect of SCM. Further, under Rules 39 and 40 of the Rules, CO of the accused, or of the Corps to which the accused belongs is specifically disqualified for serving on a GCM or DCM and composition of a

such restriction applies to SCMs and in fact the CO himself must constitute the Court. The Act has thus given drastic power to one single individual, namely, the CO who alone is to constitute the Court. No doubt, this power comes with restrictions insofar as the power to award sentence is concerned in terms of sub-Sections (4) &(5) of Section 120. However even with such restrictions the power is quite drastic. The reason for conferment of such power is obvious that in order to maintain discipline among the soldiers and units, the CO must have certain special powers, for it is the discipline which to a great extent binds the unit and makes it a co-hesive force. JUDGMENT 20. The High Court of Delhi was therefore completely correct in observing that such power must be exercised rarely and when it is absolutely imperative that immediate action is called for. The satisfaction in that behalf must either be articulated in writing or be available on record, specially when the matter can be considered on merits by a tribunal, with the coming into force of the Armed Forces Tribunals Act, 2007. Page 25 26 21. We now deal with the question as to what kind of offences can be tried by an SCM. An SCM can try any offence punishable under the Act by virtue of sub-Section (1) of Section 120 but this general principle is subject to the provisions

with some offences in respect of which certain restrictions are applicable. The offences so stipulated are those punishable under Sections 34, 37 and 69 of the Act or those against the Officer holding the Court. Apart from Sections 34, 37 and 69 of the Act, there are various other provisions where different kinds of offences are spelt out and dealt with. For example in Chapter VI of the Act, Section 38 deals with offence of desertion, Section 39 deals with offence of absence without leave, Section 40 deals with striking or threatening a Superior Officer, Section 41 deals with disobedience to the Superior Officer, Section 42 deals with insubordination and so on. Out of multitude of such offences, only Sections 34, 37 and 69 are JUDGMENT mentioned in sub-Section (2) in respect of which restrictions stipulated in sub-Section (2) apply. Additionally, one more category, namely “any offence against the officer holding a Court” is also specified. Such of the offences as are directed against the officer holding the Court, may include those under Sections 40, 41, 42 and so on, depending upon facts of the case. 22. Sub-Section (2) of Section 120 prescribes that in respect of such stipulated offences, in normal circumstances, an SCM shall not try the accused without Page 26 27 making a reference to the officer who is otherwise empowered to convene a DCM in regular course or an SGCM while on active service. It further states that if there is no grave reason for immediate action, such reference to the concerned

respect of any offence so stipulated i.e. those under Sections 34, 37 and 69 of the Act or those against the officer holding the Court. However no such restriction applies in cases other than Sections 34, 37, and 69 of the Act or offences against the officer holding the Court. This provision thus categorizes the offences in two compartments i.e. those which require a reference and those which do not. This distinction is also noticeable from sub Rule 2 of the Rule 22 which mandates that CO shall not dismiss a charge in respect of offences which require a reference to superior authority in terms of Section 120 (2) of the Act. We must therefore accept the submission that the sentence appearing in Paragraph No.20 of the JUDGMENT judgment of the High Court to the effect that only offences under Sections 34,37 and 69 of the Act could be tried by an SCM is not correct. 23. The aforesaid provision in Section 120(2) requiring a reference to the superior authority which thought is again echoed in proviso to Rule 22 (3) of the Rules, is a salutory provision and a check on the exercise of drastic power conferred upon a CO and must be scrupulously observed. A case for non-adherence to this requirement must be made out on record and any deviation or non Page 27 28 observance of statutory requirements must be viewed seriously. Offences under Sections 34, 37 and 69 of the Act are special categories or kinds of offences where a reference to the officer empowered to convene a DCM or an SGCM is considered

offences against the officer holding the Court, where that officer could possibly “be a judge in his own cause”, are also put at the same level and similar reference under sub-Section (2) ought to be made. The exercise of power in seeking such reference and consequent consideration in respect thereof must be in keeping with the seriousness attached in respect of these offences. 24. We now turn to the core question namely as to which CO is competent to convene, constitute and complete the SCM. Is it CO of the Unit to which the accused belonged or CO of the Unit to which he was attached or came to be attached. In this connection there could possibly be three kinds of situations. JUDGMENT a. An accused committing an act constituting an offence while he was part of his regular Unit is tried by SCM by his own CO i.e., the CO of the Unit itself. b. An accused while being on attachment to a different Unit commits an act constituting an offence and is therefore tried by SCM by the CO of such Unit to which he was sent on attachment. In such Page 28 29 cases the offence itself would be committed while the accused was on attachment. c. An accused committing an act constituting an offence while

Unit and is then tried by SCM by CO of such Unit i.e., Unit where he was sent on attachment after the offence was committed. 25. Unlike Rule 39 which specially disqualifies CO of the accused or of the Corps to which the accused belongs from serving on a GCM or DCM, there is no embargo on CO of the Unit to which the accused belongs being the Court for the purposes of trying the accused by SCM. The first of the aforesaid three categories of offences mentioned above can therefore certainly be tried by the CO of the Unit to which he belongs. If the act constituting an offence is linked to the Unit in question when such act was committed, in respect of matters falling in the second JUDGMENT category, the offence could logically be tried by the CO of the Unit to which the accused was attached. Could the accused then insist that the CO of his parent unit alone must try him by SCM. Can it be said, his erstwhile connection with the parent unit must be taken to be the governing factor of such extent that the normal linkage of the Unit and the offence in question must stand displaced. Our answer is no. If requirements of Section 120(2) are otherwise complied with and satisfied, the CO of such attached Unit is competent to convene, constitute and complete the Page 29 30 SCM. It is in his unit that the offence in question was committed and in that sense he would be in seisin of the matter. The CO of the parent unit would have nothing to do in the matter.

categories under this. In the first, the commission of offence itself may come to knowledge, though the offence was committed in the parent unit, after the accused was sent on attachment. Secondly, which is the normal course adopted in the matters under consideration, an accused may be sent on attachment to another unit only for being tried by SCM by the CO of that other unit. The commission of an act constituting an offence being connected with the erstwhile unit and having no connection with the unit where he is later sent on attachment, normally the former of the units in question would be appropriate. But the matter need not be considered and decided purely from the perspective of such connection or nexus JUDGMENT with the former or the erstwhile unit. 27. In a given case, the offence itself may have been committed against the CO of the former unit or the CO may be an important witness reflecting on matters in issue or for the purposes of discipline the accused may be required to be moved out of the unit in question. In some cases the presence of the accused even during the conduct of SCM in the Unit in question may be detrimental to maintenance of Page 30 31 discipline. The situations could be varying in degree or context and the concept of propriety and expediency may demand that the accused be sent on attachment to and tried in a different unit. Paragraph 24 of the judgment of the High Court of

such complexities. But on a view that the CO of the unit other the one to which the accused belonged would be incompetent, the High Court was persuaded to accept the submission advanced on behalf of the accused. 28. We may gainfully refer to Regulation 9 of the DSR at this stage. Under this regulation the CO could be either:- a) one who has been appointed by higher authority to be CO to effectively exercise powers vested in a CO; or b) one who is in immediate command of the unit to which the person is belongs; or JUDGMENT c) one who is in immediate command of the unit to which the person is attached to; or d) one who is in immediate command of any detachment or distinct sizeable separate portion of a unit with which the person is for the time being serving. Page 31 32 29. Regulation 9 with its width and amplitude can possibly cover any situation so that there is no room to express any lament as was done in aforesaid Paragraph 24. If the concept of fairness in the procedure demands, as is expressly set out in the

disentitled to serve on a GCM or DCM, it would be complete contradiction to insist upon the CO of the Unit to which the accused belongs, regardless of the status and role of such CO in connection with the offence, to be the only authority entitled to convene an SCM. Sections 116 and 120 do not admit of any such construction and in the absence of any express provision to the contrary, Regulation 9 can certainly be the guiding factor. The expression “Commanding Officer” in Section 116 is not qualified by any explanation that he must be the CO of the Unit to which the accused belongs. Regulation 9, in our view, affords such explanation and is completely consistent with and subserves the basic ingredients JUDGMENT of fairness and impartiality. 30. Regulation 381, in the context of trial of Deserters is a special provision. If the Unit to which the accused belongs is serving in high attitude areas or overseas or is engaged in counter-insurgency operations or active hostilities, the accused could be tried in the manner laid down therein by the CO of the Units specified therein. But Regulation 381 is not the only exception as found by the High Court and the finding that in all circumstances, other than those dealt with by Regulation Page 32 33 381, it is the CO of the Unit to which the accused belongs who alone is competent to convene, constitute and complete an SCM, is incorrect.

or DCM but not with respect to SCM. Under Rule 133 of the Rules the proceedings of an SCM must immediately on promulgation be forwarded through the Deputy Judge Advocate General of the command “in which the trial is held”. On the other hand, under Rule 146 of the Rules the proceedings of an SCM must be preserved with the records of the corps or the department “to which the accused belonged”. It is thus possible and well contemplated that the trial by SCM may be held in a unit other than the one to which the accused belongs”. Rules 39 and 146 further disclose that wherever the statute wanted to specify the unit or department “to which the accused belonged” it has done that with great clarity. No such JUDGMENT qualification is specified in respect the CO who is to convene, constitute and complete the SCM. 32. Lastly, we must note that Note 5 below Section 120 as appearing in the Manual could possibly point that an NCO or a sepoy could not be attached to another unit for trial by SCM except as provided in Regulation 381 of the DSR. Without going into the question of efficacy and force of such Note below a Section Page 33 34 in an Act enacted by the Parliament, for the present purposes it is sufficient to notice that this Note stood deleted on and with effect from 28.08.2001.

competent and permissible for the CO of the Unit to which the accused was attached or sent on attachment for the purposes of trial, to try such accused by convening, constituting and completing SCM in a manner known to law i.e. strictly within the confines of Sections 116 and 120 of the Act and other Statutory provisions. We fully endorse and affirm the view taken by the High Court that SCM is an exception and it is imperative that a case must be made out for immediacy of action. The reasons to convene an SCM must be followed by well articulated reasons or the record itself must justify such resort. JUDGMENT 34. Before parting, we must mention recommendations of a Committee of Experts appointed by the Defence Minister to review service and pension matters including strengthening of institutional mechanisms related to redressal of grievances, which recommendations appear at page 172 of the Ministry of Defence Report of 2015 in following terms:- “ …… the Committee recommends that the environment may be sensitized that the provision of SCM should be used sparingly and exceptionally and preferably only in operational Page 34 35

These recommendations sum up the approach that needs to be adopted, quite well. 35. Since the High Court of Delhi had allowed Writ Petitions on the short ground of competence of a CO of a Unit other than the one to which the accused belonged, without going into the merits of the matters before it, while setting aside the view in respect of that point and allowing the appeals JUDGMENT preferred by Union of India, namely Civil Appeal Nos.8360 of 2010, 8830-8835 of 2010 and 8838 of 2010, we remit the matters back to the High Court. The concerned Writ Petitions stand restored on the file of the High Court for consideration on merits. 36. The matters coming from the High Court of Rajasthan, namely Civil Appeal Nos.2547-2550 of 2011 and Civil Appeal No.6679 of 2015 stand on a Page 35 36 different footing. In these appeals challenge on merits was negated but one of the issues raised was regarding competence of CO of a unit other than the one to which the accused belonged, to convene constitute and complete

especially when the challenge stood negated on merits. We therefore affirm the view taken by the High Court and dismiss these appeals. 37. Similarly, Civil Appeal CAD Nos.13803 and 18038 of 2015 where the major offences were held not to have been proved on facts also deserve to be dismissed. With the issue regarding competence of the CO having been answered hereinabove, nothing survives in the matters and these appeals are dismissed. 38. No order as to costs. ……………………………..CJI, (T.S. Thakur) JUDGMENT ……………………………..J. (Uday Umesh Lalit) New Delhi July 05, 2016 Page 36