Chief of The Army Staff & Ors Vs.
Major Dharam Pal Kukrety [1985] INSC 64 (21 March 1985)
MADON, D.P. 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 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 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.
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 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 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 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 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 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 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.
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 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 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.
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