Ram Sarup Vs. The Union of India &
ANR  INSC 249 (12 December 1963)
12/12/1963 DAYAL, RAGHUBAR DAYAL, RAGHUBAR
SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N.
AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.
CITATION: 1965 AIR 247 1964 SCR (5) 931
R 1971 SC 500 (19) R 1971 SC1120 (17) R 1979
SC1588 (14) R 1982 SC1413 (15,17) RF 1983 SC 658 (7)
Army Act (XLVI of 1950), ss. 125, 126 and
164-Scope ofConstitution of India, 1950, Art. 33-Effect on fundamental
rights-s. 125 of Army Act if violative of Art. 14 of the Constitution.
The General Court Martial sentenced the
petitioner, a sepoy, to death under s. 69 of the Army Act read with s. 302 of
the Indian 932 Penal Code for shooting dead two sepoys and a Havildar. The
Central Government confirmed the sentence. The petitioner filed writs of habeas
corpus and certiorari for setting aside the orders of the Court Martial and the
Central Government and for his release.
Held.: (i) The petitioner made no request for
being represented at the court martial by a counsel of his choice;
consequently no such request was refused, and
that there has been no violation of the fundamental right of the petitioner to
be defended by a counsel of his choice.
(ii) There has been no non-compliances of the
provisions of S. 132(2) of the Act. In view of the provisions of rr. 45, 46,
61(2) and 62 of the Army Rules, 1954, the petitioner's statement, that the
death sentence was voted by an inadequate majority of the members of the Court
which can be considered to be a mere allegation, cannot be based on any
definite knowledge as to how the voting went at the consideration of the
finding in pursuance of r. 61.
(iii) Section 164 does not lay down that the
correctness of the order or sentence of the Court Martial is always to be
decided by two higher authorities; it only provides for two remedies. The
further petition can only be made to the authority superior to the authority
which confirms the order of the Court Martial, and if there be no authority
superior to the confirming authority, the question of remedy against its order
does not arise.
(iv) Each and every provision of the Army Act
is a law made by Parliament and that if any such provision tends to affect the
fundamental rights under Part III of the Constitution, that provision does not,
on that account, become void, as it must be taken that Parliament has in
exercise of its power under Art. 33 of the Constitution made the requisite
modification to affect the respective fundamental right.
(v) The provisions of s. 125 of the Act are
not discriminatory and do not infringe the provisions of Art. 14 of the
(vi) The discretion to be exercised by the
Military Officer specified in s. 125 of the Act as to the trial of accused by
Court Martial or by an ordinary court, cannot be said to be unguided by any
other policy laid down in the Act or uncontrolled by any authority. There could
be a variety of circumstances which may influence the decision as to whether
the offender be tried by a Court Martial or by ordinary criminal court and
therefore becomes inevitable that the discretion to make the choice as to which
court should try the accused be left to responsible Military officers under
whom the accused is serving. Those officers are to be guided by considerations
of the exigencies of the service maintenance of discipline in the army,
speedier trial, the nature of the offence and the person against whom the
offence is committed 933 This discretion is subject to the control of the
(vii) According to s. 549 of the Code of
Criminal Procedure and the rules there under, the final choice about the forum
of the trial of a person accused of a civil offence rests with the Central
Government, whenever there be difference of opinion between a Criminal Court
and Military authorities about the forum. The position under ss. 125 and 126 of
the Army Act is also the same.
ORIGINAL JURISDICTION : Petition No. 166 of
Under Article 32 of the Constitution of India
for the enforcement of fundamental rights.
O.P. Rana, for the petitioner.
C.K. Daphtary, B.R.L. lyengar and R.H. Dhebar
for the respondents.
December 12, 1963. The Judgment of the Court
was delivered by RAGHUBAR DAYAL J.-Ram Sarup, petitioner, was a sepoy in 131
Platoon DSC, attached to the Ordnance Depot, Shakurbasti.
As a sepoy, he is subject to the Army Act,
1950 (XLVI of 1950), hereinafter called the Act.
On June 13, 1962 he shot dead two sepoys,
Sheotaj Singh and Ad Ram and one Havildar Pala Ram. He was charged on three
counts under S. 69 of the Act read with s. 302 I.P.C. and was tried by the
General Court Martial. On January 12, 1963 the General Court Martial found him
guilty of the three charges and sentenced him to death.
The Central Government confirmed the findings
and sentence awarded by the General Court Martial to the petitioner.
Thereafter, the petitioner has filed this
writ petition praying for the issue of a writ in the nature of a writ of habeas
corpus and a writ of certiorari setting aside the order dated January 12, 1963 of
the General Court Martial and the order of the Central Government confirming
the said findings and sentence and for his release from the Central 934 Jail,
Tehar, New Delhi, where he is detained pending execution of the sentence
awarded to him.
The contentions raised for the petitioner
are: (1) That the provisions of s. 125 of the Act are dis criminatory and
contravene the provisions of Art. 14 of the Constitution inasmuch as it is left
to the unguided discretion of the officer mentioned in that section to decide
whether the accused person would be tried by a Court Martial or by a Criminal
Court. (2) Section 127 of the Act which provides for successive trials by a
Criminal Court and a Court Martial, violates the provisions of Art. 20 of the
Constitution as it provides for the prosecution and punishment of a person for
the same offence more than once.
(3) The petitioner was not allowed to be
defended at the General Court Martial by a legal practitioner of his choice and
therefore there had been a violation of the provisions of Art. 22(1) of the
Constitution. (4) The procedure laid down for the trial of offences by the
General Court Martial had not been followed inasmuch as the death sentence
awarded to the petitioner was not passed with the concurrence of at least
two-thirds of the members of the Court. (5) Section 164 of the Act provides two
remedies, one after the other, to a person aggrieved by any order passed by a
Court Martial. Sub-s. (1) allows him to present a petition to the officer or
authority empowered to confirm any finding or sentence of the Court Martial and
sub-s. (2) allows him to present a petition to the Central Government or to any
other authority mentioned in that sub-section and empowers the Central
Government or the other authority to pass such order on the petition as it
thinks fit. The petitioner could avail of only one remedy as the finding and
sentence of the Court Martial was confirmed by the Central Government. He,
therefore, could not go to any other authority against the order of the Central
Government by which he was aggrieved.
It will be convenient to deal with the first
point at the end and take up the other points here.
935 The petitioner has not been subjected to
a second trial for the offence of which he has been convicted by the General
Court Martial. We therefore do not consider it necessary to decide the question
of the validity of s. 127 of the Act in this case.
With regard to the third point, it is alleged
that the petitioner had expressed his desire, on many, occasions, for
permission to engage a practising civil lawyer to represent him at the trial
but the authorities turned down those requests and told him that it was not
permissible under the Military rules to allow the services of a civilian lawyer
and that, he would have to defend his case with the counsel he would be
provided by the Military Authorities. In reply,, it is stated that this
allegation about the petitioner's requests and their being turned down was not
correct, that it was not made in the petition but was made in the reply after
the State had filed its counter affidavits in which it was stated that no such
request for his representation by a legal practitioner had been made and that
there had been no denial of his fundamental rights. We are of opinion that the
petitioner made no request for his being represented at the Court Martial by a
counsel of his choice, that consequently no such request was refused and that
he cannot be said to have been denied his fundamental right of being defended
by a counsel of his choice.
In paragraph 9 of his petition he did not
state that he had made a request for his being represented by a counsel of his
choice. He simply stated that certain of his relatives who sought interview
with him subsequent to his arrest were refused permission to see him and that
this procedure which resulted in denial of opportunity to him to defend himself
properly by engaging a competent civilian lawyer through the resources and help
of his relatives had infringed his fundamental right under Art. 22 of the
Constitution. If the petitioner had made any express request for being defended
by a counsel of his choice, he should have stated so straight-forwardly in para
9 of his petition. His involved language 936 could only mean that he could not contact
his relations for their arranging a civilian lawyer for his defence. This
negatives any suggestion of a request to the Military Authorities for
permission to allow him representation by a practising lawyer and its refusal.
We therefore hold that there had been no
violation of the fundamental right of the petitioner to be defended by a
counsel of his choice, conferred under Art. 22(1) of the Constitution.
Further, we do not consider it necessary to
deal with the questions, raised at the hearing, about the validity of r.
96 of the Army Rules, 1954, hereinafter
called the rules, and about the power of Parliament to delegate its powers
under Art. 33 of the Constitution to any other authority.
The next point urged for the petitioner is
the sentence of death passed by the Court Martial was against the provisions
of' s. 132(2) of the Act inasmuch as the death sentence was voted by an
inadequate majority. The certificate, signed by the presiding officer of the
Court Martial and by the JudgeAdvocate, and produced as annexure 'A' to the
respondent's counter to the petition, reads:
"Certified that the sentence of death is
passed with the concurrence of at least Two-third of the members of the Court
as provided by AA Section 132(2)." It is alleged by the petitioner that
this certificate is not genuine but was prepared after his filing the writ
We see no reason to accept the petitioner's
allegations. He could not have known about the voting of the members of the
General Court Martial. Rule 45 gives the Form of Oath or of Affirmation which,
is administered to every member of a Court Martial. It enjoins upon him that he
will not on any account at any time whatsoever disclose or discover the vote or
opinion of any particular member of the Court Martial unless required to give
evidence thereof by a Court of Justice 937 or Court Martial in due course of
law. Similar is the provision in the Form of Oath or of Affirmation which is
administered to the Judge-Advocate, in pursuance of r. 46.
Rule 61 provides that the Court shall
deliberate on its finding in closed Court in the presence of the JudgeAdvocate.
It is therefore clear that only the members of the Court and the Judge-Advocate
can know how the members of the Court Martial gave their votes. The votes are
not tendered in writing. No record is made of them. Sub-rule (2) of r. 61
provides that the opinion of each member of the Court as to the finding shall
be given by word of mouth on each charge separately. Rule 62 provides that the
finding on every charge upon which the accused is arraigned shall be recorded
and, except as provided in the rules, shall be recorded simply as a finding off
'guilty' or of 'not guilty'. In view of these provisions, the petitioner's
statement, which can be considered to be a mere allegation, cannot be based on
any definite knowledge as to how the voting went at the consideration of the
finding in pursuance of r. 61.
Further, there is no reason to doubt what is
stated in the certificate which, according to the counter-affidavit, is not
recorded in pursuance of any provision governing the proceedings of the Court
Martial, and does not form Dart of any such proceedings. It is recorded for the
satisfaction of the confirming authority. The certificate is dated January 12,
1963, the date on which the petitioner was convicted. The affidavit filed by
Col. N.S. Bains, Deputy Judge-Advocate General, Army Headquarters, New Delhi,
contains a denial of the petitioner's allegation that the certificate is a
false and concocted document and has been made by the authorities after the
filing of the writ Petition. We see no reason to give preference to the
allegations of the petitioner over the statement made by Col. Bains in his
affidavit, which finds support from the contents of Exhibit A signed by the
presiding officer of the Court. Martial and the Judg-Advocate who could
possibly have no reason 938 for issuing a false certificates We therefore hold
that there had been no noncompliance of the provisions of s. 132(2) of the Act.
Next we come to the fifth point. It is true
that s. 164 of the Act gives two remedies to the person aggrieved by an order,
finding or sentence of a Court Martial, they being a petition to the authority
which is empowered to confirm such order, finding or sentence and the petition
to the Central Government or some other officer mentioned in sub-s. (2), after
the order or sentence is confirmed by the former authority. The final authority
to which the person aggrieved by the order of the Court Martial can go is the
authority mentioned in sub-s. (2) of s. 164 and if this authority happens to be
the confirming authority, it is obvious that there could not be any further
petition from the aggrieved party to any other higher authority against the
order of confirmation. The further petition can only be to the authority
superior to the authority which confirms the order of the Court Martial and if
there be no authority superior to the confirming authority, the question of a
remedy against its order does not arise. Section 164, does not lay down that
the correctness of the order or sentence of the Court Martial is always to be
decided by two higher authorities. It only provides for two remedies.
Section 153 of the Act provides inter alia
that no finding or sentence of a General Court Martial shall be valid except so
far as it may be confirmed as provided by the Act and s. 154 provides that the
findings and sentence of a General Court Martial may be confirmed by the
Central Government or by any officer empowered in that behalf by warrant of the
Central Government. It appears that the Central Government itself exercised the
power of confirmation of the sentence awarded to the petitioner in the instant
case by the , General Court Martial. The Central Government is the highest
authority mentioned in sub-s. (2) of s. 164. There could therefore be no
occasion for a further appeal to any other body and therefore no justifiable
grievance can 939 be made of the fact that the petitioner had no occasion to go
to any other authority with a second petition as he could possibly have done in
case the order of confirmation was by any authority subordinate to the Central
Government. The Act itself provides that the Central Government is to confirm
the findings and sentences of General Courts Martial and therefore could not
have contemplated, by the provisions of s. 164, that the Central Government
could not exercise this power but should always have this power exercised by
any other officer which it may empower in that behalf by warrant.
We therefore do not consider this contention
to have any force.
Lastly, Mr. Rana, learned counsel for the
petitioner, urged in support of the first that in the exercise of the power
conferred on Parliament under Art. 33 of the Constitution to modify the
fundamental rights guaranteed by Part 111, in their application to the armed
forces, it enacted s. 21 of the Act which empowers the Central Government, by
notification, to make rules restricting to such extent and in such manner as
may be necessary, the right of any person with respect to certain matters, that
these matters do not cover the fundamental rights under Arts. 14, 20 and 22 of
the Constitution, and that this indicated the intention of Parliament not to
modify any other fundamental right. The learned Attorney-General has urged that
the entire Act has been enacted by Parliament and if any of the provisions of
the Act is not consistent with the provisions of any of the articles in Part
III of the Constitution, it must be taken that to the extent of the
inconsistency Parliament had modified the fundamental rights under those
articles in their application to the person subject to that Act. Any such
provision in the Act is as much law as the entire Act.
We agree that each and every provision of the
Act is a law made by Parliament and that if any such provision tends to affect
the fundamental rights under Part III of the Constitution, that provision does
not, on that account, become 940 void, as it must be taken that Parliament has
thereby, in the exercise of its power under Art. 33 of the Constitution, made
the requisite modification to affect the respective fundamental right. We are
however of opinion that the provisions of s. 125 of the Act are not
discriminatory and do not infringe the provisions of Art. 14 of the Constitution.
It is not disputed that the persons to whom the provisions of s. 125 apply do
form a distinct class.
They apply to all those persons who are
subject to the Act and such persons are specified in s. 2 of the Act. The
contention for the petitioner is that such persons are subject to be tried for
civil offences i.e., offences which are triable by a Criminal Court according
to s. 3 (ii) of the Act, both by the Courts Martial and the ordinary Criminal
Courts, that s. 125 of the Act gives a discretion to certain officers specified
in the section to decide whether any particular accused be tried by a Court
Martial or by a Criminal Court, that there is nothing in the Act to guide such
officers in the exercise of their discretion and that therefore discrimination
between different persons guilty of the same offence is likely to take place
inasmuch as a particular officer may decide to have one accused tried by a
Court Martial and another person, accused of the same offence, tried by a
Criminal Court, the procedures in such trials being different.
We have been taken through the various
provisions of the Act and the rules with respect to the trial of offences by a
Court Martial. The procedure to be followed by a Court Martial is quite
elaborate and generally follows the pattern of the procedure under the Code of
There are, however, material differences too.
All the members of the Court Martial are Military Officers who are not expected
to be trained Judges, as the presiding officers of Criminal Courts are. No
judgment is recorded. No appeal is provided against the order of the Court
Martial. The authorities to whom the convicted person can represent against his
conviction by a Court Martial are also non941 judicial authorities. In the
circumstances, a trial by an ordinary Criminal Court would be more beneficial
to the accused than one by a Court Martial. The question then is whether the
discretion of the officers concerned in deciding as to which Court should try a
particular accused can be said to be an unguided discretion, as contended for
the appellant. Section 125 itself does not contain anything which can be said
to be a guide for the exercise of the discretion, but there is sufficient
material in the Act which indicate the policy which is to be a guide for
exercising the discretion and it is expected that the discretion is exercised
in accordance with it. Magistrates can question it and the Government, in case
of difference of opinion between the views of the Magistrate and the army authorities,.
decide the matter finally.
Section 69 provides for the punishment which
can be imposed on a person tried for committing any civil offence at any place
in or beyond India, if charged under s. 69 and convicted by a Court Martial.
Section 70 provides for certain persons who cannot be tried by Court Martial,
except in certain circumstances. Such persons are those who commit an offence
of murder, culpable homicide not amounting to murder or of rape, against a
person not subject to Military, Naval or Air-Force law. They can be tried by
Court Martial of any of those three offences if the offence is committed while
on active service or at any place outside India or at a frontier post specified
by the Central Government by notification in that behalf. This much therefore
is clear that persons committing other offences over which both the Courts
Martial and ordinary Criminal Courts have Jurisdiction can and must be tried by
Courts Martial if the offences are committed while the accused be on active
service or at any place outside India or at a frontier post.
This indication of the circumstances in which
it would be better exercise of discretion to have a trial by Court Martial, is
an index as to what considerations should guide 942 the decision of the officer
concerned about the trial being by a Court Martial or by an ordinary Court.
Such considerations can be based on grounds of maintenance of discipline in the
army, the persons against whom the offences are committed and the nature of the
offences. It may be considered better for the purpose of discipline that
offences which are not of a serious type be ordinarily tried by a Court
Martial, which is empowered under s. 69 to award a punishment provided by the
ordinary law and also such less punishment as he mentioned in the Act. Chapter
VII mentions the various punishments which can be awarded by Courts Martial and
s. 72 provides that subject to the provisions of the Act a Court Martial may,
on convicting a person of any of the offences specified in ss. 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 s. 7 1, regard being had to the
nature and degree of the offence.
The exigencies of service can also be a
factor. Offences may be committed when the accused be in camp or his unit be on
the march. It would lead to great inconvenience if the accused and witnesses of
the incident, if all or some of them happen to belong to the army, should be
left behind for the purpose of trial by the ordinary Criminal Court.
The trials in an ordinary court are bound to
take longer, on account of the procedure for such trials and consequent appeals
and revision, then trials by Courts Martial. The necessities of the service in
the army require speedier trial. Sections 102 and 103 of the Act point to the
desirability of the trial by Court Martial to be conducted with as much speed
as possible. Section 120 provides that subject to the provisions of sub-s. (2),
a summary Court Martial may try any of the offences punishable under the Act
and sub-s (2) states that an officer holding a summary Court Martial shall not
try certain offences without a reference to the officer empowered 943 to
convene a district court martial or on active service a summary general court
martial for the trial of the alleged offender when there is no grave reason for
immediate action and such a reference can be made without detriment to
discipline. This further indicates that reasons for immediate action and
detriment to discipline are factors in deciding the type of trial.
Such considerations, as mentioned above,
appear to have led to the provisions of s. 124 which are that any person,
subject to the Act, who commits any offence against it, may be tried and
punished for such offence in any place whatever. It is not necessary that he be
tried at a place which be within the jurisdiction of a criminal court having
jurisdiction over the place where the offence be committed.
In short, it is clear that there could be a
variety of circumstances which may influence the decision as to whether the
offender be tried by a Court Martial or by an ordinary Criminal Court, and
therefore it becomes inevitable that the discretion to make the choice as to
which court should try the accused be left to responsible military officers
under whom the accused be serving. Those officers are to be guided by
considerations of the exigencies of the service, maintenance of discipline in
the army, speedier trial, the nature of the offence and the person against whom
the offence is committed.
Lastly, it may be mentioned that the decision
of the relevant military officer does not decide the matter finally. Section
126 empowers a criminal court having jurisdiction to try an offender to require
the relevant military officer to deliver the offender to the Magistrate to be
proceeded against according to law or to postpone proceedings pending reference
to the Central Government, if that criminal court be of opinion that
proceedings be instituted before itself in respect of that offence. When such a
request is made, the military officer has either to comply with it or to make a
reference to the Central Government whose orders would be final with respect to
the venue of the trial.
944 The discretion exercised by the military
officer is therefore subject to the control of the Central Government.
Reference may also be made to s. 549 of the
Code of Criminal Procedure which empowers the Central Government to make rules
consistent with the Code and other Acts, including the Army Act, as to the
cases in which persons subject to military, naval or air-force law be tried by
a court to which the Code applies or by Court Martial. It also provides that
when a person accused of such an offence which can be tried by an ordinary
criminal court or by a Court Martial is brought before a Magistrate, he shall
have regard to such rules, and shall, in proper cases, deliver him, together
with a statement of the offence of which he is accused, to the Commanding
Officer of the regiment, corps, ship or detachment to which he belongs, or to
the Commanding Officer of the nearest military, naval or air-force station, as
the case may be, for the purpose of being tried by Court Martial. This gives a
discretion to the Magistrate, having regard to the rules framed, to deliver the
accused to the military authorities for trial by Court Martial.
The Central Government framed rules by S.R.O.
709 dated April 17, 1952 called the Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules, 1952, under s. 549 Cr. P.C. It is not
necessary to quote the rules in full.
Suffice it to say that when a person charged
is brought before a Magistrate on an accusation of offences which are liable to
be tried by Court Martial, the Magistrate is not to proceed with the case
unless he is moved to do so by the relevant military authority. He can,
however, proceed with the case when he be of opinion, for reasons to be
recorded, that he should so proceed without being moved in that behalf by
competent authority. Even in such a case he has to give notice of his opinion
to the Commanding Officer of the accused and is not to pass any order of
conviction or acquittal under ss. 243, 245, 247 or 248 of the 945 Code of
Criminal Procedure, or hear him in defence under s. 244 of the said Code; is
not to frame any charge against the accused under s. 254 and is not to make an
order of committal to the Court of Session or the High Court under s. 213 of
the Code, till a period of 7 days expires from the service of notice on the
military authorities. If the military authorities intimate to the Magistrate
before his taking any of the aforesaid steps that in its opinion the accused be
tried by Court Martial, the Magistrate is to stay proceedings and deliver the
accused to the relevant authority with the relevant statement as prescribed in
s. 549 of the Code. He is to do so also when he proceeds with the case on being
moved by the military authority and subsequently it changes its mind and
intimates him that in its view the accused should be tried by Court Martial.
The Magistrate, however, has still a sort of control over what the military
authorities do with the accused. If no effectual proceedings are taken against
the accused by the military authorities within a reasonable time, the
Magistrate can report the circumstances to the State Government which may, in
consultation with the Central Government, take appropriate steps to ensure that
the accused person is dealt with in accordance with law. All this is contained
in rr. 3 to 7. Rule 8 practically corresponds to s. 126 of the Act and r. 9
provides for the military authorities to deliver the accused to the ordinary
courts when, in its opinion or under the orders of the Government, the
proceedings against the accused are to be before a Magistrate.
According to s. 549 of the Code and the rules
framed there under, the final choice about the forum of the trial of a person
accused of a civil offence rests with the Central Government, whenever there be
difference of opinion between a Criminal Court and the military authorities
about the forum where an accused be tried for the particular offence committee
by him. His position under ss. 125 and 126 of the Act is also the same
1/SCI/64-60 946 It is clear therefore that the discretion to be exercised by
the military officer specified in of the Act as to the trial of accused by
Court Martial or by an ordinary court, cannot be said to be unguided by any
policy laid down by the Act or uncontrolled by any other authority. Section 125
of the Act therefore cannot, even on merits, be said to infringe the provisions
of Art. 14 of the Constitution.
The writ petition therefore fails and is