My photo




Wednesday, January 7, 2015



                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No. 7133 OF 2008

UNION              OF               INDIA               &               ANR.



                           J  U  D  G  M  E  N  T


1      The  Respondent  herein,  No.  7773409X  Havildar  (Military  Police)
Purushottam, was enrolled in the Corps  of  Military  Police,  on  7th  June
1983. On 27th November 2001, while the Respondent was posted to 916  Provost
Unit (General Reserve Engineer Force, or GREF), he was detailed as a  member
of Mobile Squad  and  was  tasked  to  carry  out  checks  of  various  Gref
detachments located on  the  Udhampur-Srinagar  highway.  On  completion  of
duty,  the  Squad  Commander  reported  the  following  activities  of   the
Respondent: a) He had demanded Rs. 15000 from the Commander 367  RM  Platoon
(Kanbal) against surplus construction stores held with the  platoon;  b)  he
had  taken  100  litres  of  HSD  (high  speed  diesel)  with  barrel   from
Superintendent BR-I HL Meena of 367 Platoon, Gund Detachment and  thereafter
had sold it along with the barrel to a  civilian  for  Rs.1800/-,  and  this
allegation was levelled by the  driver  of  the  vehicle  in  which  he  was
traveling; c) He had extorted Rs.6000/-  from  Superintendent  BR-II  Sanjay
Kumar, 385 RM Platoon, for not reporting surplus construction material  held
by the platoon; d) He  had  taken  one  coat/parkha  along  with  two  steel
hammers from QM, at 118 RCC (GREF).

2     Based on these reports, the Chief Engineer, Project Beacon, ordered  a
Court of Inquiry which investigated these  allegations  and  concluded  that
the Respondent was blameworthy for two of the four aforesaid acts  committed
without authority: firstly, demanding and taking 100 litres of HSD from  BR-
I HL Meena on 30th  November,  2001  and  selling  it  to  a  civilian,  and
secondly, on 5th December, 2001 demanding and taking a coat/parkha  and  two
stone breaking steel hammers.     The Chief Engineer partially  agreed  with
the findings of the  Court  of  Inquiry  and  directed  disciplinary  action
against the Respondent for the aforementioned two acts. The  Respondent  was
arraigned on two counts  for  the  two  respective  acts  and  charged  with
committing extortion, under Section 53(a) of the Army  Act,  1950.   Summary
of Evidence was recorded under Rule 23, Army Rules and  the  Respondent  was
tried by Summary Court Martial (SCM), headed by Lt. Col  CM  Kumar,  Officer
Commanding, (OC) on  11.04.2002.  The  Respondent  pleaded  guilty  to  both
charges.  At  the  hearing  of  the  SCM,  two  prosecution  witnesses  were
examined, both  of  whom  the  Respondent  declined  to  cross-examine.  The
Respondent neither made any statement in his defence,  nor  did  he  produce
any defence  witnesses.   He  was  ultimately  awarded  the  sentence  of  a
reduction in rank to that of "Naik".   Thereafter,  for  reasons  recondite,
the 'reviewing authority' purportedly acting under Section 162 of  the  Act,
while 'reviewing' the SCM, set aside the same, "due to incorrect framing  of
charge and lackadaisical recording of evidence at the summary of  evidence".
 This intervention is in the teeth of the Certification in  consonance  with
Rule 115.  Inasmuch as it is the Deputy Judge-Advocate General who has  made
these observations and the records do not bear  out  and  authenticate  that
his opinion/observation, was subscribed to or  approved  by  the  'reviewing
authority'  who  statutorily  has  to  be  the  senior   ranking   officials
enumerated in Section 162, there appears to  us  that  a  'review'  did  not
actually take place.    This is essentially a usurpation of power by  Deputy
Judge-Advocate General.   Rule 133 no doubt mentions this officer,  but  his
role is restricted to  forwarding  the  proceedings  of  the  Summary  Court
Martial to the officer authorised to deal with them in pursuance of  Section
162.   At the most the Deputy Judge-Advocate  General  may  append  his  own
opinion to the proceedings of the Summary  Court  Martial  while  forwarding
them to the authorised officer.   This is amply clear  from  the  fact  that
the records made available to the High Court as well as  to  this  Court  do
not contain  any  Order  of  the  "prescribed  officer"  setting  aside  the
proceedings or reducing sentence to any other sentence  which  the  SCM  had
imposed.   It also seems to us to be plain that instead of setting aside  or
reducing the sting of the sentence the  Deputy  Judge-Advocate  General  has
opined, without any statutory authority,  that  the  Summary  Court  Martial
itself should be set aside and the Accused/Respondent  be  relieved  of  all
consequences of trial.  Wholly contrary  to  his  own  opinion,  the  Deputy
Judge-Advocate General has gone on to return a finding  of  misappropriation
and a sentence that  the  conduct  of  the  Accused/Respondent  renders  his
retention in the service as undesirable. It  determined  that  although  the
officer conducting the Court Martial recorded a plea of  guilty  under  Rule
116(4), a perusal of the Respondent's statement in the Summary  of  Evidence
belied this recording; that therein, qua the second charge,  the  Respondent
had contested the charge stating that he had requested for  supply  of  only
one hammer which was to be  returned  at  the  end  of  winter.  Upon  later
inspecting the  hammer,  the  Respondent  discovered  that  there  were  two
hammers packed inside, instead of the one that he had requested.

3     Deputy Judge-Advocate General  purporting  to  act  as  the  Reviewing
Authority, considering this discrepancy, opined that  the  "officer  holding
the trial should have, under AR 116 (4), altered the record  and  entered  a
plea of 'not guilty' in respect of both  charges,  and  proceeded  with  the
trial  accordingly.  Non-compliance  of  the  aforesaid  provision,  in  the
instant case, being a serious legal infirmity,  makes  the  SCM  proceedings
liable to be set aside.   Therefore, notwithstanding the pleas of guilty  by
the accused, the findings, conviction on both charges are  not  sustainable.
In view of the above, I am of  the  considered  opinion  that,  the  Summary
Court Martial proceedings are liable to be  set  aside,  and  I  advise  you
accordingly. If you agree, following will be a suitable minute  for  you  to
record on page "J" of the proceedings:- 'I  set  aside  the  proceedings.  I
direct that the accused be relieved of  all  consequences  of  the  trial'."
The records do not reveal that this advice was acted upon.

4     It was in this impasse that a  Show  Cause  Notice  (SCN)  was  issued
shortly afterwards to  the  Respondent,  stating  that  the  Respondent  had
during his tenure been found to have  engaged  in  illegal  activities.  The
Respondent was charged with  acts  of  indiscipline  for  the  same  set  of
alleged acts that had erstwhile  been  the  subject  of  the  Court  Martial
proceedings against him for two offences of extortion. It was made known  to
the Respondent that his continued presence in the  Army  would  possibly  be
detrimental to maintaining discipline and hence  his  retention  in  service
was considered undesirable.  The Respondent was required to  show  cause  as
to why his service should not be terminated under  the  provisions  of  Army
Rule 13.   The Respondent has submitted that he replied to this  notice  but
it is not on record.  The Respondent was  allegedly  orally  told  that  his
services had been terminated and a Discharge Certificate under Rule  13  was
issued on 05.02.2003.

5     The Respondent filed a CWP  against  this  Discharge  repudiating  the
legality of its issuance against the same  alleged  acts  that  had  already
been subjected to a Court Martial  proceeding.   The  Respondent  relied  on
Articles 14, 16, 21 and 311 of the Constitution, and declaimed  against  the
"illegal procedure and short cut method" taken by the  Army  authorities  to
get rid of him.   The Appellants stated  in  their  reply  before  the  High
Court, as a preliminary point, that no right of the Respondent, let alone  a
fundamental right, had been violated. The jurisdiction of  the  High  Courts
thus being unwarranted, the Appellants prayed for  a  preliminary  dismissal
on  that  point.  The  Appellants  denied  that  the  Respondent  had   been
Discharged for offences of extortion; rather, the  Respondent's  misconduct,
amounting  to  moral  turpitude  and  gross  indiscipline,  meant  that  his
continued service in the Army  was  no  longer  considered  desirable.   The
Appellants canvassed that the  Respondent,  not  being  a  "civil  servant",
could not claim the protection of Article  311.    Finally,  they  submitted
that the Discharge procedure  had  been  strictly  followed  in  this  case.
The High Court allowed the Respondent's  writ  petition,  and  quashed  Show
Cause Notice as unsustainable.  The Court so concluded  on  the  basis  that
the Show Cause Notice relied on exactly the same set of charges as  had  run
their course in the Court Martial, resulting in the Respondent's  acquittal.
The Court did not accept the  distinction  articulated  by  the  Appellants,
between extortion being the subject of the  Court  Martial,  and  misconduct
and indiscipline being the subject of the Show Cause Notice  and  Discharge.
Nevertheless, the High Court did not preclude the Respondent before it  from
"taking any departmental action against the petitioner  in  respect  of  the
allegations, in accordance with  law."    This  is  the  Judgment  which  is
before us for our scrutation.
6      The  factual  tapestry  having  been  threaded,  we  are   confronted
primarily as to whether the Appellants could have legally issued the  notice
and discharged the Respondent for misconduct and indiscipline when the  same
set of alleged acts had been earlier charged as offences and put  through  a
Court Martial, in which the Respondent was ultimately acquitted.   In  other
words, the legal nodus that we have to cogitate upon  is  the  propriety  of
the initiation of a Discharge Enquiry of a member of the Army subsequent  to
Summary Court Martial  proceedings  against  him  on  the  same  or  similar
charges  having  been  set  aside.   In  terms  of  the  impugned  Judgment,
Discharge Order passed by the Army/Union of India (UOI),  Appellants  before
us, has been quashed.  However the commencement of  Departmental  action  in
respect of the same allegations has not been interdicted or precluded.   The
Appellants vehemently contend that the High  Court  erred  in  quashing  the
assailed Discharge Order.    Conspicuously, the Respondent has not  assailed
the grant to the UOI of leave to initiate a Departmental Enquiry.   However,
it has been vehemently contended before us that  the  SCN  dated  31.10.2002
suffers from the vice of double jeopardy and, therefore, has been  correctly
quashed by the Division Bench.  The rubicon  cleaving  the  commencement  or
continuance of Departmental proceeding when criminal charges have also  been
levelled is always difficult to discover.  But there is  a  watershed  which
can be discerned albeit with a fair share of arduousness.

7     We shall forthwith analyse the concept of double jeopardy,  especially
in  the  backdrop  of  Constitutions  of  countries  spanning   our   globe.
The Fifth Amendment of the U.S.  Constitution promises  that  -  "No  person
shall be held to answer for a capital, or otherwise infamous  crime,  unless
on a presentment or indictment of a grand jury, except in cases  arising  in
the land or naval forces, or in the militia, when in actual service in  time
of war or public danger; nor shall  any  person  be  subject  for  the  same
offense to be twice put in jeopardy of life or limb; nor shall be  compelled
in any criminal case to be a witness against himself,  nor  be  deprived  of
life, liberty, or property, without due process of law;  nor  shall  private
property be  taken  for  public  use,  without  just  compensation."    This
protection has been construed as admitting of  three  facets:  i)  Autrefois
Acquit ii) Autrefois Convict iii) Protection against  multiple  punishments.
 We shall be referring briefly to John Hudson vs. United States  522  US  93
(1997) where the U.S. Supreme Court has delineated on  what  the  parameters
of double jeopardy.  Second, Article 35(3)(m) of  the  Constitution  of  the
Republic of South Africa (1996) provides that a person is "not to  be  tried
for an offence in respect of an act or omission for which  that  person  has
previously been either acquitted or convicted".   Third,  Section  11(h)  of
the Charter of Rights of the Canadian Constitution provides that any  person
charged with an offence has the right "if finally acquitted of the  offence,
not to be tried for it again and, if finally found guilty and  punished  for
the offence, not to be tried or punished for it again".    Fourth,   Article
14 (7) of the International Covenant on Civil and Political  Rights  (ICCPR,
1966) states: "No one shall be liable to be tried or punished again  for  an
offence for which he has already been  finally  convicted  or  acquitted  in
accordance with the law and  penal  procedure  of  each  country".    Fifth,
Article 13 of the Constitution of Pakistan, 1973, reads thus -    Protection
against double punishment and self incrimination - No person- (a)  shall  be
prosecuted or punished for the same offence more than once;  or  (b)  shall,
when accused of an offence, be compelled to be a witness against himself.

8     Venturing a divergent path, the UK Criminal  Justice  Act,  2003,  has
modified the operation of autrefois convict, in that Part 10 thereof  allows
for retrial in the cases of  serious  offences  scheduled  therein,  in  the
event of 'new and compelling'  evidence  against  the  acquitted  person  in
relation to the qualifying  offence.  This  statute  has  been  emulated  by
legislations in New Zealand and in the Australian States of Queensland,  New
South Wales, Tasmania, South Australia and Victoria.

9     The Constitution  of  India  charters  a  contrasting  course  in  the
context of incorporation of the doctrine of double jeopardy in that  Article
20(2) postulates that - "No person shall be prosecuted and punished for  the
same  offence  more  than  once."    This   variance   from   constitutional
protections given in other countries has prompted us  to  sift  through  the
'Debates of the Constituent Assembly' so as to ascertain  whether  autrefois
convict in preference to the more preponderant  autrefois  acquit,  was  the
position intended to be  ordained  by  the  drafters  of  our  Constitution.
These Debates bear witness to the fact that  it  was  indeed  meditated  and
intended.  The original proposal was - "No person shall be punished for  the
same offence more than  once".   A  proposed  amendment  whereby  the  words
"otherwise than as proposed by the Code of Criminal  Procedure,  1898,"  was
sought to be added, but was roundly rejected.  The suggestion made  by  Shri
Naziruddin Ahmad was that "the principle should be  that  a  man  cannot  be
tried again, tried twice, if he is acquitted or  convicted  by  a  Court  of
competent  jurisdiction,  while   the   conviction   or   acquittal   stands
effective... A man acquitted shall also not be liable to  be  tried  again."
(2nd December, 1948).   On the next day, the extracted intervention of  Shri
T.T. Krishnamachari was accepted, sounding the death  knell  for  'autrefois
acquit' and leading to  Article  20(2)  as  it  stands  today.    Shri  T.T.
Krishnamachari (Madras: General):
 "Mr. Vice-President, Sir, the point  I  have  to  place  before  the  House
happens to be a comparatively narrow one. In this  article  14,  clause  (2)
reads thus: `No person shall be punished for  the  same  offence  more  than
once'. It has been pointed out to me by more  Members  of  this  House  that
this might probably affect cases where, as in the case  of  an  official  of
Government who has been dealt with departmentally and  punishment  has  been
inflicted, he cannot again be prosecuted and punished if he had committed  a
criminal offence;  or,  per  contra,  if  a  Government  official  had  been
prosecuted and sentenced to imprisonment  or  fine  by  a  court,  it  might
preclude the Government from taking disciplinary action against him.  Though
the point is a narrow  one  and  one  which  is  capable  of  interpretation
whether this provision in this particular clause in the  Fundamental  Rights
will affect the discretion of Government acting under the rules  of  conduct
and discipline in regard to its own officers, I think, when we  are  putting
a ban on a particular type of action, it is better to make  the  point  more
I recognise that I am rather late now to move an  amendment.  What  I  would
like to do is to word the clause thus: `No person shall  be  prosecuted  and
punished for the same offence more than once." If my Honourable  Friend  Dr.
Ambedkar will accept the addition of the words `prosecuted and'  before  the
word 'punished' and if you, Sir, and the House will give him  permission  to
do so, it will not merely be a wise thing to do but it will save  a  lot  of
trouble for the Governments of the future. That is the suggestion I  venture
to place before the House. It is for the House to deal with it  in  whatever
manner it deems fit."

10     It  would  be  relevant  to  mention  that  modern  jurisprudence  is
presently partial to the perusal of Parliamentary Debates in the context  of
interpreting  statutory  provisions,  although  earlier  this  exercise  was
looked  upon  askance.    Suffice  it  to  mention  the  analysis   of   the
Constitution Bench in R.S. Nayak vs. A.R. Antulay (1984) 2 SCC  183  and  in
Haldiram Bhujiawala vs. Anand Kumar Deepak  Kumar  (2000)  3  SCC  250;  and
particularly Samatha vs. State of Andhra Pradesh (1997)  8  SCC  191,  where
Parliamentary Debates were studied by this Court.   It appears to be  beyond
debate that the  framers  of  our  Constitution  were  fully  alive  to  the
differing and disparate concepts of autrefois acquit and  autrefois  convict
and consciously chose to circumscribe the doctrine of double  jeopardy  only
to prosecution culminating in a conviction.   This  facet  of  the  law  has
already been carefully considered  by  the  Constitution  Bench  in  Maqbool
Hussain vs. State of Bombay 1953 SCR 730,  and  we  cannot  do  better  than
extract the relevant portions therefrom:
7. The fundamental right which is guaranteed  in  Article  20(2)  enunciates
the principle of "autrefois convict" or  "double  jeopardy".  The  roots  of
that principle are to be found in the well established rule  of  the  common
law of England "that where a person has been convicted of an  offence  by  a
court of competent jurisdiction the conviction  is  a  bar  to  all  further
criminal proceedings for the same offence".  (Per  Charles,  J.  in  Reg  v.
Miles). To the same effect is the ancient maxim "Nimo Bis Debet  Puniri  pro
Uno Delicto", that is to say that no one ought to be twice punished for  one
offence or as it is sometimes written "Pro Eadem Causa", that  is,  for  the
same cause.
11. These were the materials which formed the background  of  the  guarantee
of fundamental right given in Article  20(2).  It  incorporated  within  its
scope the plea of "autrefois convict" as known to the British  jurisprudence
or the plea of double jeopardy as known to  the  American  Constitution  but
circumscribed it by providing that there should be not  only  a  prosecution
but also a punishment in the first instance in order to operate as a bar  to
a second prosecution and punishment for the same offence.
12. The words "before a court of law or judicial tribunal"  are  not  to  be
found in Article 20(2). But  if  regard  be  had  to  the  whole  background
indicated above it is clear that in order that  the  protection  of  Article
20(2) be invoked by a  citizen  there  must  have  been  a  prosecution  and
punishment in respect of the same  offence  before  a  court  of  law  or  a
tribunal, required by law to decide the matters  in  controversy  judicially
on evidence on oath which it must be authorised by  law  to  administer  and
not before a tribunal which entertains a departmental or  an  administrative
enquiry even though set up by a statute  but  not  required  to  proceed  on
legal evidence given on oath. The very wording of Article 20 and  the  words
used therein:- "convicted", "commission of the act charged as  an  offence",
"be subjected to a penalty", "commission of the offence",  "prosecuted,  and
punished, accused of  any  offence,  would  indicate  that  the  proceedings
therein contemplated are of the nature  of  criminal  proceedings  before  a
court of law or a judicial tribunal and  the  prosecution  in  this  context
would mean an initiation or starting of proceedings  of  a  criminal  nature
before a court of  law  or  a  judicial  tribunal  in  accordance  with  the
procedure prescribed in the statute which creates the offence and  regulates
the procedure.

11     Keeping  in  perspective  this  exposition  of  double  jeopardy   as
postulated in our Constitution, the obiter  dicta  in  State  of  Bihar  vs.
Murad Ali Khan (1988) 4 SCC 655, expressed  en  passant  by  the  two  Judge
Bench does not correctly clarify the law, as this view is  contrary  to  the
dictum of the Constitution Bench, which was not brought  to  the  notice  of
the Bench.

12    The US Supreme Court has extensively excogitated  over  the  conundrum
as to what  constitutes  a  successive  "punishment"  for  the  purposes  of
attracting Constitutional protection against Double Jeopardy, under the  5th
Amendment. The Court, in John Hudson v United States, 522  U.S.  93  (1997),
affirmed the  distinction  between  civil  punishment  and  proceedings  and
criminal punishment and prosecution,  and  held  that  the  Fifth  Amendment
proscribes two  (or  more)  successive  punishments  or  prosecutions  of  a
criminal nature only, and permits civil  punishment  or  proceedings  either
preceding or succeeding a criminal prosecution or punishment.  In  the  case
before the U.S. Supreme Court, John Hudson was the  Chairman  of  the  First
National Bank of Tipton and the First National Bank of Hammon, and used  his
position to regain bank stock he had used as collateral on  defaulted  loans
through a series of bank loans to  other  parties.  Upon  investigation  the
Office of the Comptroller of Currency (OCC) found that the loans  were  made
in violation of several banking statues and regulations. The OCC  fined  and
debarred Hudson for the violations.  Later, he faced criminal indictment  in
the Federal District  Court  for  violations  tied  to  those  same  events.
Hudson objected, arguing that the indictment violated  the  Double  Jeopardy
clause of the 5th Amendment. Overruling United States v.  Halper,  490  U.S.
436 (1989), wherein the  Court  had  ruled  as  unconstitutional  successive
proceedings taking place in similar  circumstances  to  Hudson's  case,  the
Court in Hudson reaffirmed the distinction established between  the  "civil"
and "criminal" nature of the particular  successive  punishment,  in  United
States v. Ward, 448 U.S. 242 (1980). The U.S. Supreme  Court  thus  held  in
Hudson's  case  that  the  Double  Jeopardy  clause  did  not  preclude  his
subsequent criminal prosecution, because the OCC administrative  proceedings
were civil, not criminal.   Inter alia, the civil nature of  the  punishment
was ascertained with reference to  the  money  penalties  statutes'  express
designation of their sanctions  as  "civil".    This  reference  indubitably
eases the resolution of the Double Jeopardy question in the present  Appeal.
  As has been detailed earlier, Article 20(2) does not within it imbibe  the
principle of autrefois acquit. The Fifth Amendment safeguards,  inasmuch  as
it postulates both autrefois acquit and autrefois convict, could  have  been
interpreted to prohibit civil punishment even in the wake  of  an  acquittal
in prosecution, but was not found by the U.S. Supreme Court  to  do  so.   A
fortiori Article 20(2), which contemplates "prosecuted  and  punished"  thus
evincing the conscious exclusion of autrefois  acquit,  palpably  postulates
that the prescribed successive punishment must be of a  criminal  character.
It irresistibly follows that departmental or disciplinary proceedings,  even
if punitive in amplitude, would not be outlawed by Article 20(2).

13    In R. P. Kapur vs. Union of India AIR 1964 SC 787 the question  before
the Constitution Bench was that the Petitioner therein  had  been  suspended
owing to  the  pendency  of  criminal  proceedings  against  him  which  was
challenged on the anvil of Article 314 of  the  Constitution.    Thus,  this
decision is not of much relevance for the  resolution  of  the  legal  nodus
before us, save for the observations that "if  criminal  charge  results  in
conviction, disciplinary proceedings are bound to follow against the  public
servant is convicted, even in  case  of  acquittal  proceedings  may  follow
where the acquittal is other than honourable."   However, on this aspect  of
the law we need go no further than the recent decision in Deputy General  of
Police  vs.  S.  Samuthiram  (2013)  1  SCC  598,  since   it   contains   a
comprehensive discourse on all the prominent precedents.    This  Court  has
concluded, and  we  respectfully  think  correctly,  that  acquittal  of  an
employee by a  Criminal  Court  would  not  automatically  and  conclusively
impact Departmental proceedings. Firstly, this is because of  the  disparate
degrees of proof in the  two,  viz.  beyond  reasonable  doubt  in  criminal
prosecution contrasted  by  preponderant  proof  in  civil  or  departmental
enquiries. Secondly, criminal prosecution is not within the control  of  the
concerned department and  acquittal  could  be  the  consequence  of  shoddy
investigation or slovenly assimilation of evidence, or lackadaisical if  not
collusive conduct of the Trial etc.  Thirdly, an  acquittal  in  a  criminal
prosecution may preclude a contrary conclusion in a departmental enquiry  if
the former is a positive decision in contradistinction to a passive  verdict
which may be predicated on  technical  infirmities.   In  other  words,  the
Criminal Court must conclude that the accused is  innocent  and  not  merely
conclude that he has not been proved to be guilty beyond  reasonable  doubt.

14    Indeed, it appears to us that the case in hand falls  in  the  passive
category  since   the   Respondent   has   been   let-off   incorrectly   on
technicalities, and that too, on a very implausible  and  debatable  if  not
specious opinion of the JAG Branch.  A Summary Court  Martial  was  held  on
11th April, 2002 in which Lt. Col P. Bhutani was present as the  'friend  of
the Accused; along with JC M. Sub KC Manocha as  the  Interpreter.   At  the
Arraignment the Accused/Respondent pleaded guilty of both  charges.  It  has
been certified by the Court that  the  Respondent  had  been  explained  the
meaning of the charges and that he understood them as also  the  effect  and
consequences of his having pleaded guilty.  In the Summary of Evidence  four
witnesses were questioned,  one  cross-examined  and  this  opportunity  was
declined by Respondent for  the  others.  After  advising  due  caution  the
Accused/ Respondent gave a detailed statement.  It was the  opinion  of  the
Reviewing Officer that Army Rule 116(4) required the  'Guilty'  plea  to  be
altered to 'Not Guilty' predicated on the unsubstantiated and  unsustainable
conclusion that the Respondent did not understand the effect of the  former.
 Premised on this conclusion, his recommendation was for setting  aside  the
proceeding and sentence of 'reduction to rank of Naik'  and  also  directing
that the accused be relieved of all consequences of  the  Trial.   Curiously
enough, the Reviewing Authority  also  opined:  "Notwithstanding  the  ibid,
setting  aside  due  to  incorrect  framing  of  charge  and   lackadaisical
recording of evidence at the Summary of Evidence, the  evidence  shows  that
the accused misused his position as a  member  of  CMP  and  misappropriated
various items. Therefore, in my opinion, his conduct renders  his  retention
in service undesirable.  You may accordingly  initiate  action  to  progress
his case for administrative discharge under the  provisions  of  Army  Rule,
13".  It is in this backdrop that we think it to be illogical  to  hold  the
opinion  that  the  Respondent   had   earned   an   honourable   acquittal.
Consequently, whether on reliance of the Double  Jeopardy  principle  or  on
the  setting  aside  of  his  punishment,   Departmental   or   Disciplinary
proceedings  ought  not  to  be  viewed  as  precluded.     Ironically   and
paradoxically, we may comment, the Respondent has been made vulnerable to  a
far more stringent action  by  setting  aside  the  findings  in  the  Court
Martial in that from a comparatively lenient punishment of being lowered  in
rank he has been discharged from service.
15    Section 121 of the Army Act requires special scrutiny inasmuch  as  it
specifies that:
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.

16    The language immediately distinguishes it from Article 20(2) since  it
palpably postulates both autrefois acquit and autrefois convict to a  court-
martial or a trial by criminal courts, but  then  restricts  the  insulation
only to a second court-martial or a dealing under Sections 80,  83,  84  and
85 of the Army Act. A conjoint perusal of Sections 121,  125  and  126  will
clarify that a simultaneous court-martial and trial by a Criminal  Court  is
not contemplated.  Furthermore, the Army Act  is  rightly  reticent  on  the
jurisdiction and powers of criminal courts.  Although the question does  not
arise before us, we cannot refrain from ruminating on the vires  of  Section
126(2)  inasmuch  as  it  postulates  primacy  to  the  Central   Government
   of a determination as to whether the  Court  Martial  or  criminal  court
shall have custody of  the  offender  regardless  of  the  decision  of  the
criminal court.  Although Section 127 of the Army  Act  stands  repealed  by
the Army (Amendment) Act, 1992 it did not suffer from the same vice in  that
the Central Government possessed the power to grant or desist from  granting
sanction for a second/successive trial by a Criminal Court.   The  erstwhile
provision read so:-
127. (1)    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.
(2)   If a person sentenced by a court-martial under this  Act  or  punished
under any of the  sections  80,  83,  84  or  85  is  afterwards  tried  and
convicted by a criminal court for the same offence, or on  the  same  facts,
that court shall, in awarding punishment, have regard to the  punishment  he
may already have undergone for the said offence".

17    Although this question also does not arise before us, Section  300  of
Criminal  Procedure,  1973  may  arguably  not  be  in  harmony   with   the
Constitution since it  contemplates  both  autrefois  acquit  and  autrefois
convict  even though a conscious decision had been taken by the Drafters  of
our Constitution that  protection  only  as  regards  the  latter  shall  be
available.  Of course, the Cr.P.C.  grants  much  wider  protection  to  the
individual and for this reason has understandably not been assailed  on  the
touchstone of Article 20(2) of the Constitution.  We must  again  advert  to
the speech of  Mr.  Naziruddin  Ahmad,  who  had  reminded  the  Constituent
Assembly of this very position, namely, of the wider  parameters  of  Double
Jeopardy enshrined even in the then extant Cr.P.C., and his  pitch  for  the
Constitution to do likewise.
18    This would be the opportune time to  consider  the  Three-Judge  Bench
decision in Chief of Army Staff vs. Major Dharam Pal Kukrety, 1985  (2)  SCC
412, for the reason that in the facts obtaining in that case the finding  of
the Court Martial was not confirmed which brought into play Section  153  of
the Army Act, 1950 which ordains that no finding or sentence of  a  general,
district or summary general, court-martial shall be valid except so  far  as
it may be confirmed.   This Court  was  of  the  view  that  there  was  "no
express provision in the Army Act which empowers  the  holding  of  a  fresh
court-martial when the finding of a  court-martial  on  a  revision  is  not
confirmed".   It, thereafter,  construed  Rule  14  of  the  Army  Rules  as
unrestrainedly enabling the Chief of Army  Staff  to:  (a)  dismiss  or  (b)
remove or (c) compulsory retire from service  any  officer.     Even  though
the aspect of honourable acquittal was not pressed into service in  Kukrety,
this  element   would  also  have  been  relevant  in  holding  it   legally
permissible to take action under the  Army  Rules.     Furthermore,  Article
20(2) is not a restraint on even the initiation of a  fresh  Court  Martial,
as the case may be.  Kukrety was a  commissioned  officer  unlike  the  case
with which we are presently dealing.  Rule 14  permits  the  afore-mentioned
actions being taken with the concurrence of the  Central  Government  whilst
the pandect comprising Rules 11, 12 and 13  deals  with  discharge  etc.  of
every person enrolled under the Army Act.     We must immediately hark  back
to Section 20 of the Army Act which empowers the dismissal or  removal  from
service of any person  subject  to  this  Act,  other  than  a  commissioned
19    The Show Cause Notice impugned before the High  Court  was  predicated
on Rule 13 by  obviously  circuitously  taking  recourse  to  the  residuary
clause 13(3)(III)(V) of the relevant Table,  We have  consciously  used  the
word 'circuitously' for the reason that the Appellants could  have  resorted
to Section 20 of the Army Act.  We may add a word  of  caution  here  -  the
power to do a particular act must be located in  the  statute,  and  if  the
rules framed under the statute ordain an  action  not  contemplated  by  the
statute, it would suffer from the vice of excessive delegation and would  on
this platform be held ultra vires.   Rules are framed for dealing in  detail
with myriad situations that may manifest themselves,  for  the  guidance  of
the concerned Authority.  Rules must, therefore, be interpreted in a  manner
which would repose them in harmony with the parent statute.   Based  on  our
experience, it seems to us that the Army Authorities are often  consumed  by
the Army Rules without  fully  comprehending  the  scope  of  the  Army  Act
20    Another Three-Judge Bench in Union of India vs. Harjeet Singh  Sandhu,
2001 (5) SCC  593,  considered  Kukrety  and  then  concluded  that  if  the
decision of the Court Martial is not  confirmed,  the  disciplinary  action,
whether a dismissal (or, for that matter, a discharge) may be  resorted  to.
  Rule 14(2) was construed by this Court to enable  the  Central  Government
or the Chief of Army Staff to arrive at a  satisfaction  that  since  it  is
inexpedient or impracticable to have the officer tried by a  court  martial,
to either dismiss, remove or compulsory retire the officer or the  concerned
21    The impugned Judgment holds that "though in the summary Court  Martial
proceedings initiated against the petitioner on the basis  of  same  charges
have been set aside and the petitioner has succeeded,  the  subsequent  show
cause notice for discharge relies on the same very charges to discharge  the
petitioner, which in our view cannot  be  sustained.    The  result  of  the
aforesaid is that the impugned order of discharge cannot  be  sustained  and
is hereby quashed with all consequential benefits to the petitioner.    This
will however, not preclude  the  respondent  from  taking  any  departmental
action against the petitioner in respect of the  allegations  in  accordance
with law".   These conclusions we are unable  to  sustain.    In  the  first
place there is no complete ban on a second Court  Martial,  provided  it  is
within the prescribed period of limitation, etc.    Secondly,  as  has  been
held in Kukrety and indirectly  affirmed in Sandhu, where  the  decision  of
the court martial fails to find confirmation, the effect is that  it  cannot
be considered that  a  court  martial  has,  in  fact,  been  concluded  and
further, in our opinion, so as to debar a fresh one.   The  Double  Jeopardy
principle contained in Section 121 has only premised the  prohibition  of  a
second trial in case the first one leads to punishment/conviction.

22    The Discharge Certificate issued against the Respondent under Rule  13
interestingly describes his character at the  time  of  Discharge  as  being
"exemplary". This recording is eminently irreconcilable  with  the  findings
in the order of setting aside, illegal as it was, by  Deputy  Judge-Advocate
General, which concluded that the Respondent was  liable  to  be  discharged
for misconduct,  being  unfit  for  further  service  in  the  Army,  having
misappropriated various items. This dissonance further discredits and  makes
unsustainable the  discharge  proceedings  under  Rule  13,  which  we  have
already described as circuitously having been exercised on the  basis  of  a
residual entry, and in supersession of  the  Army  Act's  dismissal  powers,
which are appositely  exercisable  as  a  sequel  to  failed  Court  Martial
proceedings. The Discharge Certificate, issued under Section  23  read  with
Rule 12, being the conclusive step  of  the  discharge  proceedings,  cannot
therefore stand.

23    The ostensible order of setting aside under Section 162 that has  been
placed on record is Deputy Judge-Advocate General's order, but this  is  not
the authority conceived of by Section 162. There is no order by a  competent
officer or authority under Section  162  indicating  the  setting  aside  of
proceedings on merits, in the  exercise  of  the  reviewing  function  under
Section 162. The Appellants have endeavoured availing of  Rule  133  of  the
Army Act in conjunction with Section 162 thereof to  legitimise  the  order.
Rule 133 states:

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
authorized 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.

Rule 133 does not empower Deputy Judge-Advocate  General  as  the  reviewing
authority, but merely confers on it a forwarding function, the Rule  stating
that the proceedings of the SCM on promulgation require to be  forwarded  to
the competent officer under Section 162, but only  parenthetically  provides
that this will occur "through" Deputy Judge-Advocate  General.  This  cannot
be  interpreted  substitutively,  as  enshrining  in  Deputy  Judge-Advocate
General the statutory remit of the reviewing authority  under  Section  162.
This apart, it has already been opined by us  heretofore  that  the  setting
aside took place "technically"  and  therefore  impermissibly  in  terms  of
Section 162.
24    We also find it apposite to add  that  though  there  was  incongruity
between  the  Deputy  Judge-Advocate  General  (acting  as   the   Reviewing
Authority) and the Summary Court Martial,  resulting  in  a  nugatory  Court
Martial process, a perusal of the Act, as well as the facts on record,  will
reveal that this need not have been.   A  Summary  Court  Martial  does  not
require for its efficacy, finality and validity,  the  confirmation  of  the
Confirming Authority, as has been  mandated  for  the  other  three  classes
(supra) of Court  Martial,  enumerated  in  Section  153.    Section  161(1)
expressly states that the finding and sentence of a  Summary  Court  Martial
shall not require to  be  confirmed,  but  may  be  carried  out  forthwith.
However, Section 162 requires transmission of proceedings without  delay  to
be forwarded to the competent officer, commanding the  division  or  brigade
in which the trial  was  held,  or  to  the  prescribed  officer;  and  such
officer, or the Chief of Army Staff, or any other empowered in  this  behalf
by the Chief of Army Staff, may for reasons  based  on  the  merits  of  the
case, but not merely technical grounds, set aside the proceedings or  reduce
the sentence to any other sentence which  the  court  (martial)  might  have
passed.   This being a transmission of proceedings under  Section  162,  the
Reviewing Authority's basis for insistence  that  a  plea  of  "not  guilty"
ought to have been recorded after the summary of evidence,  based  upon  the
statement of evidence  given  by  the  Respondent  therein,  and  subsequent
setting aside of the consequences of  the  Court  Martial  presided  by  the
Officer Commanding, cannot  stand.    On  a  demurrer,  at  the  Summary  of
Evidence, the Respondent  had  only  contested  the  Charge  of  his  having
extorted the coal hammer, stating in reply thereto  that  he  had  requested
for one hammer which was to be returned at the end of winter, and that  upon
opening the bag, found two therein. There are no averments  in  his  defence
to be found in the Summary of Evidence, as to the charge of  extorting  high
speed diesel.  Furthermore, the Respondent did not  make  any  Statement  of
Defence at the Summary Court Martial hearing itself,  and  neither  produced
any defence witnesses on his behalf nor cross examined  either  of  the  two
prosecution witnesses therein.  Faced  with  these  inescapable  facts,  the
Reviewing Authority could not have set  aside  the  proceedings  on  such  a
technical ground - which Section 162 expressly prohibits - that  a  plea  of
"not guilty" should have been recorded under Army Rule 116(4) in respect  of
both charges of extortion,  as  the  effect  of  the  Respondent's  plea  of
"guilty" was not fully understood by him.  The  Court  Martial  finding  and
sentence ought to have been left undisturbed  by  the  Reviewing  Authority,
self-sufficiently valid as it was under Section 161 (1).
25    The Army Act and the Rules framed thereunder specifically  contemplate
 that any person other than an officer subject to the Act may  be  dismissed
or removed from service under Section 20 of the Act;  and  any  such  person
may be dismissed, removed or reduced in rank  under  Section  20  read  with
Rule 17.   The High Court  has  not  failed  to  appreciate  this  dichotomy
inasmuch as it has not precluded the taking of  departmental  action.    The
difference is that the departmental action is exactly  what  was  taken  and
additionally what has now been permitted by  the  Impugned  Judgment  to  be

26    It is with the above clarifications that we dispose of the  Appeal  by
restoring the order of the Summary Court Martial, yet  not  prohibiting  the
Appellants to proceed in accordance with law.

                                          [VIKRAMAJIT SEN]

                                          [SHIVA KIRTI SINGH]
New Delhi;
January 05,   2015.


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.