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Wednesday, July 13, 2016

whether the CO is competent to convene, constitute and complete the SCM. = Is it CO of the Unit to which the accused belonged or CO of the Unit to which he was attached or came to be attached = Since the High Court of Delhi had allowed Writ Petitions on the short ground of competence of a CO of a Unit other than the one to which the accused belonged, without going into the merits of the matters before it,= We therefore affirm the view taken by the High Court and dismiss these appeals.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA


                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO.8360 OF 2010


Union of India & Ors.                              …… Appellants


                                   Versus

Vishav Priya Singh                                 …… Respondent

                                    With

CIVIL APPEAL NO…8830-8835 OF 2010
CIVIL APPEAL NO…8838 OF 2010
   CIVIL APPEAL NO…2547 OF 2011
CIVIL APPEAL NO…2548 OF 2011
CIVIL APPEAL NO…2549 OF 2011
CIVIL APPEAL NO…2550 OF 2011
CIVIL APPEAL NO. D.13803 OF 2015
CIVIL APPEAL NO. D.18038 OF 2015
AND
CIVIL APPEAL NO.6679 OF 2015


                                  JUDGMENT

Uday Umesh Lalit, J.


Civil Appeal Nos.8360 of 2010 and 8830-8835 of  2010,  at  the  instance  of
Union of India challenge correctness of the common  judgment  and  order  of
the High Court of Delhi dated 25.01.2008 in Writ Petition  (Civil)  Nos.2511
of 1992, 3519 of 1998, 6185 of 2002, 2433 of 2003, 17622 of 2004,  18185  of
2004 and  20233 of 2005. Civil Appeal No.8838 of 2010 seeks  to  assail  the
decision of the High Court  of  Delhi  dated  02.05.2008  in  Writ  Petition
No.4341 of 1999 which relied upon the earlier decision dated 25.01.2008.
2.    For the sake of facility we may reproduce Paragraph Nos.2 to 7 of  the
judgment of the High Court of Delhi dated  25.01.2008  which  cull  out  the
factual matrix in each of the petitions before it.  Said Paragraph Nos.2  to
7 are as under:-

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


2.Ex. NK Prem Singh has filed CWP 3519/1998 pleading that he belonged to  15
INF DIV ORD Unit which  assertion  stands  admitted.  On  17.4.1998  he  was
charged under Section 40(a) of the Army Act for using criminal force to  his
superior officer in that he, at Amritsar on 20.10.1997 struck with  an  iron
implement on the head and legs of Company Hav. Major Clerk.  The  Petitioner
was sentenced to (a) reduced to ranks, (b) dismissed from  service  and  (c)
Rigorous Imprisonment for six months in the Civil  Jail.  …………………  …………………….
………………………………………………………………….The CO,  194  Field  Regiment,  convened  the  SCM
which  concluded  on  21.4.1998.  The  Respondents  have  pleaded  that  the
Petitioner was attached for disciplinary purposes with  194  Field  Regiment
vide letter dated 21.10.1997. In paragraph 3 of  the  Counter  Affidavit  it
has been asseverated that the  'occurrence  for  which  the  petitioner  was
taken into custody took place on the evening of  20.10.1997.  He  was  taken
into custody by the CO of his Unit and since his Unit had no quarter  guard,
the petitioner was shifted  to  the  quarter  guard  towards  of  194  Field
Regiment for safe custody'. It has  further  been  pleaded  that  by  letter
dated 24.10.1997 the Petitioner was attached with the Unit for  disciplinary
purposes, to remain attached till finalisation of the investigation  against
him. In other words, six months had elapsed between the  incident  which  is
the subject matter of the SCM and the holding of the SCM.


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


5. CWP 2433/2003 has been filed by Ex. Hav Dharambir  Kanker  who  had  been
promoted to the rank of Havaldar in the Corps of the Military Police.  After
sixteen years he was posted to 4th Corps Provost Unit at  Tezpur  in  Assam.
By Charge-sheet dated 9.6.2000 the Petitioner was accused of  making  sundry
accusations against a person subject to the Army Act. On 22.6.2000  the  SCM
sentenced the Petitioner (a) to be reduced to  -the  ranks  and  (b)  to  be
dismissed from service.


6. CWP 20233/2005 has been filed by Sepoy U.S. Mishra stating  that  he  was
enrolled in the Indian Army in March, 1987 and  that  on  18.3.1999  he  was
posted to 38 defence Medical Store Depot.  By  letter  dated  27.3.2002  the
Petitioner was attached, for disciplinary purposes, to 38 AMSD  Blocks.  The
Petitioner  was,  along  with  15  Army  personnel,  tried  by  SCM  between
20.12.2004 and 4.1.2005 by CO 118 Field Regiment where  the  Petitioner  was
attached for disciplinary purposes. The first charge under Section  52(f) of
the Army Act was that the Petitioner  between  4.8.1999  to  6.6.2001,  with
intent  to  defraud,  improperly  altered  several  entries  in  the   Issue
Vouchers. The Petitioner was found guilty and sentenced  to  be  reduced  to
ranks on 4.1.2005. The contention is that  the  CO  of  118  Field  Regiment
could not try the Petitioner by SCM since he was  only  'attached  with  the
Unit'. Delay  in  convening  the  SCM  would  also  obviously  come  in  for
consideration.


7. The facts in  CWP  17622/2004  filed  by  Sep/Clerk  S.K.  Nair  and  CWP
18185/2004 filed by Sep/Clerk Balwinder  Singh  are  similar.  In  September
1998 a Court of Inquiry  was  ordered  to  investigate  into  the  irregular
enrollment during a recruitment rally held at Pathankot in March  1995.  The
Petitioners' assert that since they were posted to 14th Sikh Regiment,  only
the CO of that Unit was competent to try them by an  SCM.  Accordingly,  SCM
by the CO of 1 TB ASC Centre, Gaya  was  legally  incompetent  and  non-est.
Delay in convening the SCM would also obviously come in for consideration.”




Writ Petitions before the High Court of Delhi raised  two  common  questions
of  law pertaining to Summary Courts Martial  (hereinafter  referred  to  as
SCM):-

(a) whether an SCM  can  be  convened,  constituted  and  completed  by  the
Commanding Officer (“CO” for short) of a Unit to which the accused  did  not
belong and
(b)  the circumstances in which the  SCM  can  be  convened  rather  than  a
General Courts Martial (“GCM” for short), a District Courts  Martial  (“DCM”
for  short)  or  Summary  General  Courts  Martial  (“SGCM”  for  short)  as
envisaged in Section 108 of the Army Act 1950 (hereinafter  referred  to  as
the Act).

While allowing these Writ Petitions, the High Court in  Paragraphs  20,  22,
23 and 24 of its judgment observed as under:

“20.  An  SCM  can  legitimately  be  convened  where  there  is  grave  and
compelling cause for taking immediate action  which  would  be  defeated  if
reference to a District Court Martial or Summary General  Court  Martial  is
made. In other words, holding of an SCM is the exception and not  the  rule.
From  the  multitude  of  possible  offences  it  is  only  those  envisaged
in Sections 34, 37 and 69, that can be tried by an SCM,  further  fortifying
the  exceptional  and  extraordinary  character  of  an  SCM.  We  think  it
necessary to underscore that it is not  proper  to  convene  an  SCM  merely
because the offence(s) with which a sepoy of  the  force  is  charged  finds
mention in the enumeration contained in these three  Sections.  What  is  of
pre-eminence in convening an SCM is that it should be found imperative  that
immediate action is manifestly necessary. Therefore, it  is  essential  that
this factor, viz. need to hold  a  trial  immediately,  is  articulated  and
reasoned out in writing in the order convening the SCM.  Failure  to  do  so
would create good reason to quash the SCM itself. Routinely,  and  certainly
far too frequently, the sentence passed  by  SCMs  violates  the  spirit  of
Regulation  448(c)  (supra)  thereby  taking  away  the  sepoys'  livelihood
without affording them the normal procedural protections of law.


21. ………………………………………………………………


22. We shall endeavor to discharge this duty by enunciating firstly that  it
is the CO of the Unit to which the  accused  belongs  who  is  empowered  to
convene an SCM. This is not a empty formality or pointless punctilio.  There
is an abiding and umbilical connection between the CO and  his  regime.  The
Ranks have always looked up at their CO as the father figure who will be  as
concerned with their welfare as with their  discipline.  This  is  the  only
conclusion that can be arrived at on a holistic  reading  of  the Army  Act,
Rules and Regulations.


23. As per our analysis above, the exception to this Rule is  restricted  to
the case of Deserters and that too where the CO of the Unit  to  which  they
belong is not readily and easily available. Secondly, an  SCM  must  be  the
exception and not the Rule. It can only be  convened  where  the  exigencies
demand an immediate and swift decision  without  which  the  situation  will
indubitably be exacerbated with widespread ramifications.  Obviously,  where
the delinquent  or  the  indisciplined  action  partakes  of  an  individual
character or has civil law dimensions, an SCM should  not  be  resorted  to.
Delay would thus become fatal to an SCM. Thirdly, the  decision  to  convene
an SCM must be preceded by a reasoned order which itself  will  be  amenable
to Judicial Review. We are certain that  once  this  formality  is  complied
with, the inevitable disregard of the accused rights for a fair trial  shall
automatically be restricted to those  rare  cases  where  the  interests  of
maintaining a disciplined military force far outweigh the protection of  the
minor civil rights of a citizen of India.

24. In this analysis of the law in the context of the factual  matrix  spelt
out in the Petitions, we set aside the verdict of the impugned SCMs  on  the
short ground that it was not convened, constituted and completed by  the  CO
of the Unit to which the Petitioner belonged. We are fully  mindful  of  the
fact that in Vishav Priya Singh's petition the situation is a  complex  one,
inasmuch as the allegations have been levelled against the CO  of  the  Unit
to which the Petitioner belongs. If the CO were to himself convene  the  SCM
it would tantamount to his being a judge in his own cause. It has  so  often
been quipped in the portals of the Court that hard  cases  should  not  make
bad law. Therefore,  solution  may  lie  in  constituting  any  other  Court
Martial, on an emergency footing if the circumstances so  dictate.  None  of
the Petitioners have  been  charged  with  the  most  reprehensible  offence
conceivable in the Armed Forces, that is of Desertion. Even  if  so  charged
it would have to have been further established, as a pre-condition  for  the
holding of an SCM by the  CO  of  the  Unit  to  which  the  Petitioner  was
attached, that the CO of the Unit to which the accused belonged was  serving
in a high altitude  area,  or  overseas  or  engaged  in  counter-insurgency
operations or active hostilities or  in  Andaman  and  Nicobar  Islands.  We
clarify that since the Trial is non est, the Respondents shall  be  free  to
proceed against the Petitioners de novo in accordance with law.”


4.    During the course of its judgment, the High Court of Delhi  considered
Sections 116 and 120 of the Act along with Note  5  below  Section  116  and
Note 5 below Section 120 as well as Paragraph 381  of  the  Defence  Service
Regulations (hereinafter referred to as the “DSR”).  According to the   High
Court in cases concerning trial of  deserters as dealt  with  in   Paragraph
381 of  the DSR,  a specific exception  was carved out  enabling  CO  of   a
unit other than the  one   to  which  the   accused  belonged   to  convene,
constitute and complete an SCM.  Barring such exception,  according  to  the
High Court, it is the CO of the unit to  which  the  accused  belonged,  who
alone is empowered to convene, constitute and complete  an  SCM.   The  High
Court further held  that  for  convening  an  SCM  it  was  imperative  that
immediate action was manifestly necessary.

5.    Along with the Appeals arising from the  decision of the   High  Court
of Delhi, Civil Appeal Nos.2547-2550 of 2011 at  the  instance  of  Original
Writ Petitioners, challenging the correctness of the common decision of  the
High Court of Rajasthan at Jaipur dated 31.08.2006 dismissing their  Appeals
arising from dismissal of their writ petitions, were also placed before  us.
 Though the question as regards competence of the CO of a  Unit  other  than
the one to which the accused belonged to convene,  constitute  and  complete
an SCM, was not raised  before  the  High  Court  of  Rajasthan,  the  other
question as to the circumstances in which an SCM could  be  convened  rather
than a GCM or DCM or SGCM did arise in the matters dealt with  by  the  High
Court of Rajasthan.  In any case, we proceed to consider these appeals  even
with regard to the former question.


6.    The factual aspects of the matters which were dealt with by  the  High
Court of Rajasthan, as  found  in  its  judgment  relating  to  the  present
appellants, were  as under:-


“In Writ Petition no.2490/1987 petitioner Roop Singh was found by  the  Duty
Officer running from the direction of out-of-bound area at about 0030  hours
in the night of 17/18 May, 1987 when he was supposed to be  on  sentry  duty
for which he was tried by  summary  court  martial  for  committing  an  act
prejudicial to good order  and  military  discipline  under  Section  63  of
the Army Act. Before being subjected to court-martial, summary  of  evidence
was recorded in presence of an independent witness, the charge and names  of
witness were made known to him. The petitioner refused  to  accept  copy  of
the charge-sheet and the summary of evidence. During  summary  court-martial
proceedings, in the circumstances, charge was read over to him  in  presence
of two witnesses. On completion of the proceedings, he was sentenced to  one
year's rigorous imprisonment which was later  reduced  to  six  months'  and
dismissed from service on 14.6.1987. From the reply of  the  respondents  it
appears that the incident had taken place when the unit was posted 1.5  kms.
from the border during `Operation Trident'. An incident had occurred in  the
neighbourhood in which a woman  had  been  reportedly  raped  by  some  army
personnel and in the circumstances, instructions had been  issued  declaring
the  adjoining  villages  as  `out-of-bound'  area.  In  violation  of   the
instructions, the petitioner went to the said  area,  he  was  seen  in  the
midnight running from that direction. He took the plea that he had  gone  to
that side to know the password. The reply states that earlier  two  red  ink
entries had been made against the petitioner.(i) for absence  without  leave
under  Section  39(a)  of  the Army  Act;  and  (ii)  for   committing   act
prejudicial to good order and military discipline (consuming  liquor)  under
Section 63 of the Army Act. At the relevant time, he had four years and  ten
months service to his credit including one year as a recruit.


In Writ Petition No.5506/1994, petitioner Dilip Singh was  enrolled  in  the
Army in 1986 as Sepoy (Nursing  Assistant).  He  was  charged  with  absence
without leave from the unit lines from 1600 to 2200 hours  on  1.8.1993  and
using criminal force to his superior officers namely Sub./NA H.N.Gautam  and
Hav/NA Shawale Babasahab Shrimuri whom he allegedly assaulted  by  hands  on
their face and chest. Summary of  evidence  was  recorded.  He  declined  to
cross-examine and accepted his guilt. He was supplied copy of  charge-sheet,
summary of evidence. At the stage of summary  court-martial,  he  was  again
apprised of the  charges  and  consequences  of  his  pleading  guilty.  The
petitioner again admitted his guilt. He  was  punished  with  three  months'
rigorous imprisonment and dismissed from service on 7.8.1993.  He  preferred
appeal without any success.


In Writ Petition No.5689/1994, petitioner  Bhagwan  Sahai  was  enrolled  as
Sepoy in the Army on 8.1979.  While  he  was  posted  with  Det.515  ASC  Bn
attached with 5011 ASC Bn(MT), he was sanctioned 42 days annual  leave  from
16.3.1992 to 26.4.1992. He failed  to  report  on  27.4.1992.  He  had  been
informed about refusal of his request for extension of leave. He  ultimately
submitted joining on 2.2.1993 after remaining wilfully absent from duty  for
302 days. Charge-sheet was served and summary of evidence  was  recorded  in
course of which he was afforded opportunity  to  cross-examine  witness  and
examine his own in defence. He declined to cross-examine the  witnesses  and
make any statement in his defence. Instead, he admitted his  guilt.  Summary
Court Martial was thereafter held. Charge  was  explained  and  papers  were
supplied, and he was provided with `friend of accused' and informed  of  the
consequences of pleading guilty. After going through the papers supplied  to
him, he admitted his guilt which was recorded. He was declared deserter  and
held guilty of the charge under Section 38(1) of the Army Act and  dismissed
from service  on  8.4.1993.  He  preferred  appeal  which  was  rejected  on
26.7.1994.


In Writ Petition No.6134/1994, petitioner Chatar Singh was enrolled  in  the
Army on 28.9.1976. He proved  to  be  the  habitual  absentee.  He  remained
absent from duty without leave for 12 days from 1.1.1982  to  2.11.1982  for
which he  was  awarded  punishment  of  21  days  rigorous  imprisonment  in
military custody on 6.12.1982. He overstayed leave without sufficient  cause
for 05 days from 8.10.1991 to 13.10.1991 for which he  was  awarded  penalty
of reduction in rank after Summary Court Martial.  The  punishment  was  set
aside on technical ground and the authority was  advised  to  hold  de  novo
proceeding. After fresh proceeding, the  same  punishment  of  reduction  in
rank was awarded on 24.10.1992. He again remained absent without  leave  for
16 days from 28.10.1992  i.e.  within  four  days  of  the  above  order  of
punishment. Earlier too, he had overstayed leave for 02 days from  13.7.1992
to  14.7.1992,  and  remained  absent  without  leave  from   19.8.1992   to
01.09.1992 for which he was subjected to court martial.  In  course  of  the
summary court marital proceeding he pleaded guilty. He had been  told  about
nature of the charge and consequences of pleading guilty and  difference  in
procedure in case of pleading guilty. He was  found  guilty  of  the  charge
under Section 39 (a) and (b), and dismissed from  service  on  5.1.1993.  He
preferred appeal which was rejected on 28.6.1994.”





7.    The submissions advanced before  the  High  Court  of  Rajasthan  were
rejected  by  the  High  Court  after  considering  the  relevant  statutory
provisions.  It was observed that the rules in question not  only  contained
sufficient safeguards but also ensured fair degree of  transparency  in  the
proceedings.  It was observed:-


“If the decision of the commanding officer under Rule 22 to try  an  accused
by summary Court-martial depends on  the  nature  of  the  charge,  evidence
collected at the stage of hearing on the point of charge, it is  clear  that
trial by summary Court-martial depends on facts of the particular case,  and
if that is so, the sub-mission of the counsel that the choice  of  trial  by
summary Court-martial depends on status of the offender and  not  on  nature
of the offence must be rejected.  This was the thrust of  the  case  of  the
petitioner.  We find no substance therein”





8.    Civil Appeal CAD Nos.13803 and 18038  of  2015,  at  the  instance  of
Union of India seek to challenge common judgment and order dated  13.12.2015
passed by the Armed Forces Tribunal, Kolkata in TA  Nos.6  and  8  of  2011.
Though one of the questions raised was relating to the competence of the  CO
of the Unit where the accused were later sent  on  attachment,  to  convene,
constitute and complete the SCM,  the  Tribunal  found  on  facts  that  the
offence in respect of a major charge was not proved.  It however found  that
the charge in respect of a minor  offence  stood  proved  and  thus  awarded
punishment  of  seven  days’   detention   with   consequential   directions
protecting their retiral benefits.


9.     In Civil Appeal No.6679  of  2015  decision  of  the  High  Court  of
Rajasthan dated 24.01.2014 dismissing Civil Writ  Petition  No.401  of  2014
affirming  the  decision  of  the   Armed   Forces   Tribunal,   Jaipur   in
dismissing/rejecting  the  challenge  to  the  sentence  of  dismissal  from
service and rigorous imprisonment awarded by an   SCM,  is  under  challenge
before this  Court.  In this case the challenge was negated on facts  though
one of the questions raised pertained to the competence of  the  CO  of  the
attached Unit, to convene, constitute and complete the SCM.


10.   In these appeals, by order of this Court dated  12.11.2014,  Mr.  Arun
Mohan and Ms. Jyoti Singh, learned Senior Advocates  were  appointed  amicus
curiae   to assist this Court.  We are deeply grateful  for  the  assistance
rendered by them.  It was  submitted  by  Mr.  Arun  Mohan,  learned  Amicus
Curiae that absence of an appeal from the decision of an SCM did weigh  with
the High Court of Delhi but  that  factor  would  stand  modified  with  the
enactment of the Armed Forces Tribunal Act, 2007 which came  into  force  on
and with effect from 16.02.2008.  He further submitted  that  Note  5  below
Section  120  considered  by  the  High  Court  was  already  deleted   vide
Government  Order  dated  28.01.2001.  In  his  submission,   the   sentence
appearing in Paragraph 20 of the judgment  of  the  High  Court,  “From  the
multitude of possible  offences  it  is  only  those  envisaged  in Sections
34, 37 and 69,  that  can  be  tried  by  an  SCM,  further  fortifying  the
exceptional and extraordinary character of  an  SCM” was  not  correct.  Ms.
Jyoti Singh, learned Amicus Curiae submitted that SCM was available only  in
the Army Act and not in the Air Force Act or in  the  Navy  Act,   that   in
SCMs there was  less observance  of due  process  of  law  even  though  the
procedure contained in the Statute  was  in   tune   with  concept  of  fair
trial,  that  the  quantum  of   punishment  awarded  in  SCMs  was   hugely
disproportionate to the offences and that the provisions enabling  convening
of an SCM  ought  to  be  used  in  rarest  of  the   rare  cases.   In  her
submission an accused should be tried by  CO  of  the  parent  unit  of  the
accused.  Mr. R. Balasubramanian appearing for the Union of India  submitted
that there was nothing in the Act to suggest that it is only  the  CO  of  a
Unit to which  the  accused  belonged,  who  alone  could  validly  convene,
constitute and complete an SCM and according to him even a CO of a  Unit  to
which the accused was attached  or  later  sent  on  attachment  would  have
requisite competence. Learned Counsel appearing for the respondents  led  by
Mrs. Rekha Palli, learned Senior Advocate supported the view  taken  by  the
High Court of Delhi.  In matters arising from the High Court  of  Rajasthan,
learned counsel appearing for the appellants led  by  Ms.  Aishwarya  Bhati,
learned Advocate submitted  that  the  view  taken  by  the  High  Court  of
Rajasthan was not correct.


11.   Chapter X of the Act deals with  “Courts  Martial”  and  the  relevant
Sections are:-

 “108. Kinds of courts- martial. -For the purposes of this Act  there  shall
be four kinds of courts- martial, that is to say,-
(a) general courts- martial;
(b) district courts- martial;
(c) summary general courts- martial; and
(d) summary courts- martial.

109. Power to convene a general court- martial.- A  general  court-  martial
may be convened by the Central Government or  the Chief of  the  Army  Staff
or by any officer empowered in this behalf by warrant of  the Chief  of  the
Army Staff.

110. Power to convene a district court- martial. -A district court-  martial
may be convened by an officer having  power  to  convene  a  general  court-
martial or by any officer empowered in this behalf by warrant  of  any  such
officer.

112. Power to convene a summary general  court-  martial.  -  The  following
authorities shall have power to convene a summary  general  court-  martial,
namely,-

(a) an officer  empowered  in  this  behalf  by  an  order  of  the  Central
Government or of  the Chief of the Army Staff;

(b) on active service, the officer commanding the forces in  the  field,  or
any officer empowered by him in this behalf;

(c) an officer commanding any  detached  portion  of  the  regular  Army  on
active service when, in his  opinion,  it  is  not   practicable,  with  due
regard to discipline and the exigencies of  the  service,  that  an  offence
should be tried by a general court- martial.

113. Composition of general court- martial.- A general court- martial  shall
consist of not less than five officers, each of whom has held  a  commission
for not less than three  whole years and of whom not less than four  are  of
a rank not below that of captain.

114. Composition of  district  court-martial.  -A  district  court-  martial
shall consist of not less than three officers,  each  of  whom  has  held  a
commission for not less than two whole years.

115. Composition of summary general court-martial. -A summary general court-
 martial shall consist of not less than three officers.

116. Summary court-martial. -(1) A summary court- martial  may  be  held  by
the commanding officer  of  any  corps,  department  or  detachment  of  the
regular Army, and he shall alone constitute the court.

(2) The proceedings shall be attended throughout by two  other  persons  who
shall be officers or junior commissioned officers or one of either, and  who
shall not as such, be sworn or affirmed. [1]

118. Powers of general and summary general courts- martial.  -A  general  or
summary general court- martial shall have power to try  any  person  subject
to this Act for any offence punishable therein  and  to  pass  any  sentence
authorised thereby.

119. Powers of district courts-martial. -A  district  court-  martial  shall
have power to try any person subject to this Act other than an officer or  a
junior commissioned officer for any offence made punishable therein, and  to
pass any sentence authorised by this Act other than  a  sentence  of  death,
transportation, or imprisonment for a term  exceeding  two  years:  Provided
that a district court-martial  shall  not  sentence  a  warrant  officer  to
imprisonment.

120. Powers of summary courts-martial. -(1) Subject  to  the  provisions  of
sub- section (2), a summary court- martial may try  any  offence  punishable
under this Act.

(2) When there is no grave reason for immediate  action  and  reference  can
without detriment to discipline be made to the officer empowered to  convene
a district court- martial or on active  service  a  summary  general  court-
martial for the trial of the alleged offender, an officer holding a  summary
court- martial shall not try without such reference any  offence  punishable
under any of the sections 34, 37 and 69, or any offence against the  officer
holding the court.

(3) A summary court-martial may try any  person  subject  to  this  Act  and
under the command of the officer  holding  the  court,  except  an  officer,
junior commissioned officer or warrant officer.

(4) A summary court-martial may pass any sentence which may be passed  under
this Act, except a sentence of death or transportation, or  of  imprisonment
for a term exceeding the limit specified in sub-section(5).

(5) The limit referred to in sub-section  (4)  shall  be  one  year  if  the
officer holding the summary court-martial  is  of  the  rank  of  lieutenant
colonel and upwards,  and  three  months  if  such  officer  is  below  that
rank.[2]”


12.   Provisos to Sub-Rules 2 and 3 of Rule 22 in Section 1 of Chapter V  of
the Army Rules 1954 (hereinafter referred to as the “Rules”) under the  sub-
heading “Power of Commanding Officers”  also  deal  with  issues  concerning
trial by SCM .  Said Rule 22 is as under:
“22.      Hearing of Charge. —

(1)      Every Charge against a person subject to the Act shall be heard  by
the Commanding Officer in the presence of the  accused.  The  accused  shall
have full liberty to cross-examine any witness  against  him,  and  to  call
such witness and make such statement as may be necessary for his defence:

Provided that where the charge against the accused arises  as  a  result  of
investigation by a Court of inquiry, wherein  the  provisions  of  rule  180
have been employed with in respect of that accused, the  commanding  officer
may dispense with the procedure in sub-rule (1).

(2)      The commanding officer shall dismiss a charge  brought  before  him
if, in his opinion the evidence does not show that an offence under the  Act
has been committed, and may do so if, he is satisfied that the charge  ought
not to be proceeded with:

Provided that the commanding officer shall not dismiss a  charge,  which  he
is debarred, to try under sub-section (2) of Sec. 120 without  reference  to
superior authority as specified therein.

(3)      After compliance of sub-rule (1), if the commanding officer  is  of
opinion that the charge ought to  be  proceeded  with,  he  shall  within  a
reasonable time—

(a)      Dispose of the case under section 80 in accordance with the  manner
and form in Appendix III; or

(b)      Refer the case to the proper superior military authority; or

(c)      Adjourn the case for the purpose of having the evidence reduced  to
writing; or

(d)      If the accused is below the rank  of  warrant  officer,  order  his
trial by a summary court-martial:

Provided that the commanding officer shall not  order  trial  by  a  summary
court-martial without a reference to the  officer  empowered  to  convene  a
district court-martial or on active service a summary general  court-martial
for the trial of the alleged offender unless—

(a)      The offence is one which he can  try  by  a  summary  court-martial
without any reference to that officer; or

(b)      He considers that there is grave reason for  immediate  action  and
such reference cannot be made without detriment to discipline.

(4)      Where the evidence taken in accordance with sub-rule  (3)  of  this
rule discloses an offence other than the offence which was  the  subject  of
the investigation, the commanding officer may frame suitable charge  (s)  on
the basis of the evidence so taken as  well  as  the  investigation  of  the
original charge.”


13.   In Section 2 of the Rules under  the  heading  “General  and  District
Courts Martial” and under sub-heading “Convening of Court”, Rules 39 and  40
of the Rules are as under:

“39.      Ineligibility  and  disqualification  of   officers   for   court-
martial.—

(1)      An officer is not eligible for serving on a court-martial if he  is
not subject to the Act.

(2)      An officer is disqualified for serving on  a  general  or  district
court-martial if he—

(a)      Is an officer who convened the court; or

(b)      Is the prosecutor or a witness for the prosecution; or

(c)      Investigated the charges before trial, or took down the summary  of
evidence, or was a member of a court of inquiry respecting  the  matters  on
which the charges against the accused are  founded,  or  was  the  squadron,
battery, company, or other commander, who made preliminary inquiry into  the
case, or was a member of a previous court-martial which  tried  the  accused
in respect of the same offence; or

(d)      Is the commanding officer of the accused, or of the corps to  which
the accused belongs; or

(e)      Has a personal interest in the case.

(3)      The provost-marshal or assistant  provost-marshal  is  disqualified
from serving on a general court-martial or district court-martial.


40.      Composition of General Court-martial. —

(1)      A general court-martial shall be composed, as far as seems  to  the
convening  officer  practicable,  of  officers   of   different   corps   or
departments,  and  in  no  case  exclusive  of  officers  of  the  corps  or
department to which the accused belongs.

(2)      The members of a court-martial for the trial of  an  officer  shall
be of a rank not lower than that of the officer unless, in  the  opinion  of
the convening officer, officers of such rank are not (having due  regard  to
the exigencies of the public  service)  available.  Such  opinion  shall  be
recorded in the convening order.

(3)      In no case shall an officer below the rank of captain be  a  member
of court-martial for the trial of a field officer.”


14.   In Section 3 of the Rules, Rule 109 deals with swearing  or  affirming
of Court and interpreter which Rule also sets out  the  concerned  forms  of
oath and affirmation. Rule 133 dealing with review of proceedings of an  SCM
is as under:-

“133.    Review of proceedings. —The proceedings of a summary  court-martial
shall, immediately on promulgation, be forwarded (through the Deputy  Judge-
Advocate General of the command in which the trial is held) to  the  officer
authorised to deal with them in pursuance of section 162.  After  review  by
him, they will be returned to the accused person’s  corps  for  preservation
in accordance with sub-rule (2) of rule 146.”


15.    In  Section  4  of  the  Rules  dealing  with  “General   Provisions”
applicable to all kinds of Courts Martial,  Rule 146 of the Rules states  as
under:-

“146.    Preservation of proceedings. —

(1)      The proceedings of a court-martial (other  than  a  summary  court-
martial) shall, after promulgation, be forwarded as  circumstances  require,
to the office of the Judge-Advocate General, and  there  preserved  for  not
less, in the case of a general court-martial, than seven years, and  in  the
case of any other court-martial, than three years.

(2)      The proceedings of a summary court-martial shall be  preserved  for
not less than three years, with the records of the corps  or  department  to
which the accused belonged.”


16.   Lastly, we may also quote Regulations 9 and 381 of the DSR  which  are
to the following effect:-
 “9.Commanding Officer.- Except where otherwise expressly provided in  these
Regulations, the Commanding Officer of a person subject to the  Army Act  is
either:-

The officer who has been appointed by higher authority to  be  a  commanding
officer while able effectively to exercise his power as such, or
Where no appointment has been made,   the  officer  who  is,  for  the  time
being, in immediate command of –
The unit to which  the person belongs or is attached to , or
Any detachment or a distinct sizeable separate portion of a unit with  which
the person is for the time being serving.

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

381- Trial of Deserters - Under normal circumstances trial by summary  court
martial for desertion will be held by the CO of the unit  of  the  deserter.
However,  when a deserter or an absentee from a unit shown in column one  of
the table below surrenders  to,  or  is  taken  over  by,   the  unit  shown
opposite in column two  and  is  properly  attached  to  and  taken  on  the
strength of the later unit he may, provided evidence, particularly  evidence
of identification, is available with the latter unit, be  tried  by  summary
court-martial by the OC of that unit when the unit shown in  column  one  is
serving in high altitude area or overseas or engaged  in  counter-insurgency
operation or active hostilities or Andaman and Nicobar Islands.

      In no circumstances will a ;man  be  tried  by  summary  court-martial
held by a CO other than the CO  of  the  unit  to  which  the  man  properly
belongs a unit to which the man may be attached subsequent to commission  of
the offence by him  will also be a unit to which the man properly belongs.


                                    TABLE
__________________________________________________
      Column one                  Column two

Armoured Corps Regiment    ..Armoured Corps Centre and School

A unit of Artillery          ..Regimental Centre Concerned

A Unit of Engineers          ..Headquarters Engineers Group, concerned

A unit of Signals            .. Signal Training Centre, Jabalpur

Infantry battalion           ..Regimental Centre concerned

Gorkha Rifle battalion ..Gorkha Regimental Centre concerned

ASC unit               .. ASC  Centre concerned

RV Crops               .. RVC Centre



This rule is not intended to limit the power of any convening  officer,  who
at his discretion may order trial by General, Summary General,  or  District
Court Martial at any place, if  such  a  course  appears  desirable  in  the
interest of discipline.”

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


18.   As regards SCM, Section  120  stipulates  that  an  SCM  may  try  any
offence punishable under the Act but sub-Sections  (4)  and  (5)  limit  the
award of sentence.  According to  sub-Section  (4),  an  SCM  can  pass  any
sentence which may be prescribed under the Act, except a sentence  of  death
or  transportation  or  of  imprisonment  of  a  term  exceeding  the  limit
specified in  sub-Section  (5).   Sub-Section  (5)  of  Section  120,   then
prescribes the limit to the level of one year, if the  officer  holding  the
SCM is of the rank of Lieutenant Colonel  and upwards and at  the  level  of
three  months  if  the  officer  holding  the  SCM  is  below  the  rank  of
Lieutenant Colonel.

19.   Section 116 of the Act empowers the CO of any  Corps,  Department  and
Detachment of the regular Army to hold an SCM and specifically  states  that
he alone shall constitute the Court.  Sub-Section (2) then  prescribes  that
the proceedings  shall,  however,  be  attended  through-out  by  two  other
persons specified therein.   However, such persons are not to  be  sworn  or
affirmed.   Unlike Sections 113, 115 and 114,    where  composition  of  the
concerned Court-Martial is prescribed to consist of atleast three  officers,
it is the CO alone who constitutes the Court under Section  116  in  respect
of SCM.   Further, under Rules 39 and 40 of the Rules, CO  of  the  accused,
or of the Corps to which the accused belongs  is  specifically  disqualified
for serving on a GCM or DCM and composition of a GCM  ought  to  compose  of
officers of different corps or  departments.  However  no  such  restriction
applies to SCMs and in fact the CO himself must constitute the  Court.   The
Act has thus  given drastic power to one single individual, namely,  the  CO
who alone is to constitute the Court.   No  doubt,  this  power  comes  with
restrictions insofar as the  power to award  sentence is concerned in  terms
of  sub-Sections  (4)  &(5)  of  Section  120.   However  even   with   such
restrictions the power is quite drastic. The reason for conferment  of  such
power is obvious that in order to maintain  discipline  among  the  soldiers
and units,  the  CO  must  have  certain  special  powers,  for  it  is  the
discipline which to a great extent binds the unit and makes it  a  co-hesive
force.

20.  The High Court of Delhi was therefore completely correct  in  observing
that such  power  must  be  exercised  rarely  and  when  it  is  absolutely
imperative that immediate action is called for.  The  satisfaction  in  that
behalf must either be articulated in writing  or  be  available  on  record,
specially when the matter can be considered on merits by  a  tribunal,  with
the coming into force of the Armed Forces Tribunals Act, 2007.

21.    We now deal with the question as to what  kind  of  offences  can  be
tried by an SCM. An SCM can try any offence  punishable  under  the  Act  by
virtue of sub-Section (1) of Section  120  but  this  general  principle  is
subject to the provisions appearing  in  sub-Section  (2)  of  Section  120.
Sub-Section (2) of Section 120 deals with   some  offences   in  respect  of
which certain restrictions are applicable. The offences  so  stipulated  are
those punishable under Sections 34, 37 and 69 of the Act  or  those  against
the Officer holding the Court.  Apart from Sections 34, 37  and  69  of  the
Act, there are various other provisions where different  kinds  of  offences
are spelt out and dealt with.   For  example  in  Chapter  VI  of  the  Act,
Section 38 deals with offence of desertion,  Section 39 deals  with  offence
of absence without leave, Section 40 deals with striking  or  threatening  a
Superior Officer, Section   41  deals  with  disobedience  to  the  Superior
Officer, Section 42 deals with insubordination and so on.  Out of  multitude
of such offences, only Sections 34, 37 and 69 are mentioned  in  sub-Section
(2) in respect of which restrictions stipulated in  sub-Section  (2)  apply.
Additionally, one more category, namely “any  offence  against  the  officer
holding a Court” is also specified.  Such of the offences  as  are  directed
against the officer holding the Court, may include those under Sections  40,
41, 42 and so on, depending upon facts of the case.

22.   Sub-Section (2) of Section 120 prescribes   that in  respect  of  such
stipulated offences, in normal circumstances,  an  SCM  shall  not  try  the
accused  without  making  a  reference  to  the  officer  who  is  otherwise
empowered to convene a DCM in regular course or  an  SGCM  while  on  active
service.   It further states that if there is no grave reason for  immediate
action, such reference to the concerned officer must be made and  no  person
should be tried  without  such  reference  in  respect  of  any  offence  so
stipulated i.e. those under Sections 34, 37 and  69  of  the  Act  or  those
against the  officer  holding  the  Court.    However  no  such  restriction
applies in cases other than Sections 34, 37, and 69 of the Act  or  offences
against the officer holding the Court.  This provision thus categorizes  the
offences in two compartments i.e. those which require a reference and  those
which do not. This distinction is also noticeable from sub  Rule  2  of  the
Rule 22 which mandates that CO shall not dismiss  a  charge  in  respect  of
offences which require  a  reference  to  superior  authority  in  terms  of
Section 120 (2) of the Act.    We   must  therefore  accept  the  submission
that the sentence appearing in Paragraph No.20  of the judgment of the  High
Court to the effect  that only offences under Sections 34,37 and 69  of  the
Act could be tried by an SCM is not correct.

23.   The aforesaid provision in Section 120(2)  requiring  a  reference  to
the superior authority which thought is again echoed in proviso to  Rule  22
(3) of the Rules, is a salutory provision and a check  on  the  exercise  of
drastic power conferred upon a CO and must be scrupulously observed. A  case
for non-adherence to this requirement must be made out  on  record  and  any
deviation or  non  observance  of  statutory  requirements  must  be  viewed
seriously. Offences under Sections 34, 37 and 69  of  the  Act  are  special
categories or kinds of offences where a reference to the  officer  empowered
to convene a DCM or an SGCM is considered imperative unless there are  grave
reasons  for  immediate  action.   Similarly,   the  offences   against  the
officer  holding the Court,  where that officer could possibly “be a   judge
in his own cause”, are also put at the same  level  and   similar  reference
under sub-Section (2)  ought to be made. The exercise of  power  in  seeking
such reference and consequent consideration in respect thereof  must  be  in
keeping with the seriousness attached in respect of these offences.

24.   We now turn to the core question namely as to which  CO  is  competent
to convene, constitute and complete the SCM.  Is it CO of the Unit to  which
the accused belonged or CO of the Unit to which he was attached or  came  to
be attached. In this connection there  could  possibly  be  three  kinds  of
situations.
a.    An accused committing an act constituting  an  offence  while  he  was
part of his regular Unit is tried by SCM by his own CO i.e., the CO  of  the
Unit  itself.
b.    An accused while being on attachment to a different Unit   commits  an
act constituting an offence and is therefore tried by SCM by the CO of  such
Unit to which he was sent on attachment. In such cases  the  offence  itself
would be committed while the accused was on attachment.
c.    An  accused committing an act  constituting  an  offence  while  being
part of his regular Unit is later sent on attachment  to  a  different  Unit
and is then tried by SCM by CO of such Unit i.e., Unit where he was sent  on
attachment after the offence was committed.

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

26.   The third category however raises some concern.  There  could  be  two
sub categories under this. In the first, the commission  of  offence  itself
may come to knowledge, though the offence was committed in the parent  unit,
after the accused was sent on attachment.  Secondly,  which  is  the  normal
course adopted in the matters under consideration, an accused  may  be  sent
on attachment to another unit only for being tried by  SCM   by  the  CO  of
that other unit. The commission of an  act  constituting  an  offence  being
connected with the erstwhile  unit and having no connection  with  the  unit
where he is later sent on attachment, normally the former of  the  units  in
question would be appropriate. But the matter need  not  be  considered  and
decided purely from the perspective of such connection  or  nexus  with  the
former or the erstwhile unit.

27.   In a given case, the offence itself may have  been  committed  against
the CO of the former unit or the CO may be an important  witness  reflecting
on matters in issue or for the purposes of discipline  the  accused  may  be
required to be moved out of  the  unit  in  question.   In  some  cases  the
presence of the accused even during the  conduct  of  SCM  in  the  Unit  in
question may be detrimental to maintenance  of  discipline.  The  situations
could be varying in degree or context  and  the  concept  of  propriety  and
expediency may demand that the accused be sent on attachment  to  and  tried
in a different unit. Paragraph 24 of the  judgment  of  the  High  Court  of
Delhi shows its concern in that behalf and the fact that the High Court  was
alive to such complexities. But on a view that the CO of the unit other  the
one to which the accused belonged would be incompetent, the High  Court  was
persuaded to accept the submission advanced on behalf of the accused.

28.   We may gainfully refer to Regulation 9  of  the  DSR  at  this  stage.
Under this regulation the CO could be either:-
a) one who has been appointed by higher authority to be  CO  to  effectively
exercise powers vested in a CO; or
b) one who is in immediate command of  the  unit  to  which  the  person  is
belongs; or
c) one who is in immediate command of  the  unit  to  which  the  person  is
attached to; or
d) one who is in immediate command of any detachment  or  distinct  sizeable
separate portion of a unit with which the  person  is  for  the  time  being
serving.

29.    Regulation 9 with its width and  amplitude  can  possibly  cover  any
situation so that there is no room to express any  lament  as  was  done  in
aforesaid Paragraph  24.  If  the  concept  of  fairness  in  the  procedure
demands, as is expressly set out in the form of Rule 39 of  the  Rules  that
CO of the Unit to which an accused belongs is disentitled to serve on a  GCM
or DCM, it would be complete contradiction to insist  upon  the  CO  of  the
Unit to which the accused belongs, regardless of  the  status  and  role  of
such CO in connection with the offence, to be the  only  authority  entitled
to convene  an  SCM.  Sections  116  and  120  do  not  admit  of  any  such
construction and in the absence of any express provision  to  the  contrary,
Regulation  9  can  certainly  be  the  guiding   factor.   The   expression
“Commanding Officer” in Section 116 is  not  qualified  by  any  explanation
that he must be the CO of the Unit to which the accused belongs.  Regulation
9, in our view, affords such explanation and is completely  consistent  with
and subserves the basic ingredients of fairness and impartiality.

30.   Regulation 381, in the context of trial  of  Deserters  is  a  special
provision. If the Unit to which the  accused  belongs  is  serving  in  high
attitude areas or overseas or is engaged  in  counter-insurgency  operations
or active hostilities, the accused could be tried in the  manner  laid  down
therein by the CO of the Units specified therein. But Regulation 381 is  not
the only exception as found by the High Court and  the finding that  in  all
circumstances, other than those dealt with by Regulation 381, it is  the  CO
of the Unit to which the accused belongs who alone is competent to  convene,
constitute and complete an SCM,  is incorrect.

31.   It is noticeable that the expression “to which  the  accused  belongs”
finds mention in Rule 39 of the Rules as dealt  with  herein  above  in  the
context of GCM or DCM but not with respect to SCM.  Under Rule  133  of  the
Rules the  proceedings  of  an  SCM  must  immediately  on  promulgation  be
forwarded through the Deputy Judge  Advocate  General  of  the  command  “in
which the trial is held”. On the other hand, under Rule  146  of  the  Rules
the proceedings of an SCM must be preserved with the records  of  the  corps
or the department “to which the accused belonged”.  It is thus possible  and
well contemplated that the trial by SCM may be held in  a  unit  other  than
the one to which the accused belongs”. Rules 39  and  146  further  disclose
that wherever the statute wanted to  specify  the  unit  or  department  “to
which the accused belonged” it has done that with  great  clarity.  No  such
qualification is specified in respect the CO who is to  convene,  constitute
and complete the SCM.

32.   Lastly, we must note that Note 5 below Section  120  as  appearing  in
the Manual could possibly point  that  an  NCO  or  a  sepoy  could  not  be
attached to another unit for trial by SCM except as provided  in  Regulation
381 of the DSR. Without going into the question of  efficacy  and  force  of
such Note below a Section in an Act  enacted  by  the  Parliament,  for  the
present purposes it is sufficient to notice that this Note stood deleted  on
and with effect  from 28.08.2001.

33.    In the premises, we hold that it is not imperative  that  an  SCM  be
convened, constituted and completed by CO of the Unit to which  the  accused
belonged. It is competent and permissible for the CO of the  Unit  to  which
the accused was attached or sent on attachment for the  purposes  of  trial,
to try such accused by convening,  constituting  and  completing  SCM  in  a
manner known to law i.e. strictly within the confines of  Sections  116  and
120 of the Act and other Statutory provisions. We fully endorse  and  affirm
the view taken by the High  Court  that  SCM  is  an  exception  and  it  is
imperative that a case must  be  made  out  for  immediacy  of  action.  The
reasons to convene an SCM must be followed by well  articulated  reasons  or
the record itself must justify such resort.

34.   Before parting, we must mention  recommendations  of  a  Committee  of
Experts appointed  by the Defence Minister to  review  service  and  pension
matters including  strengthening  of  institutional  mechanisms  related  to
redressal of grievances, which recommendations appear at  page  172  of  the
Ministry of Defence Report of 2015 in following terms:-

      “  …… the Committee recommends that the environment may be  sensitized
that the provision of SCM should be used  sparingly  and  exceptionally  and
preferably only in operational areas where resort to a regular trial is  not
practicable  or  when  summary/administrative  action  would  not  meet  the
requirements of discipline. It may be emphasized that SCM  is  an  exception
and not the rule and was not  even  originally  meant  to  be  a  peace-time
provision or regular recourse. In the times to  come,  the  desirability  of
even having such a provision on the statute book may be  examined  with  the
suitability of a replacement by amore robust system meeting the  aspirations
of judiciousness and Constitutional norms. We may however  caution  that  we
are not, in any manner, underestimating the  requirement  of  discipline  in
the uniformed services but are simply stating that SCM may  not  be  treated
as a routine recourse when other effective  tools  of  enforcing  discipline
are available.”

These recommendations sum up the approach that needs to  be  adopted,  quite
well.
35.   Since the High Court of Delhi had allowed Writ Petitions on the  short
ground of competence of a CO of a Unit other  than  the  one  to  which  the
accused belonged, without going into the merits of the  matters  before  it,
while setting aside the view in respect  of  that  point  and  allowing  the
appeals preferred by Union of India, namely Civil Appeal Nos.8360  of  2010,
8830-8835 of 2010 and 8838 of 2010, we remit the matters back  to  the  High
Court. The concerned Writ Petitions stand restored on the file of  the  High
Court for consideration on merits.

36.   The matters coming from the High  Court  of  Rajasthan,  namely  Civil
Appeal Nos.2547-2550 of 2011 and Civil Appeal No.6679 of  2015  stand  on  a
different footing.  In these appeals challenge on  merits  was  negated  but
one of the issues raised was regarding competence of  CO  of  a  unit  other
than the one to which  the  accused  belonged,  to  convene  constitute  and
complete SCM.  Having answered that question, nothing further  needs  to  be
done, especially when the challenge stood negated on  merits.  We  therefore
affirm the view taken by the High Court and dismiss these appeals.
37.   Similarly, Civil Appeal CAD Nos.13803 and  18038  of  2015  where  the
major offences were held not to have been proved on facts  also  deserve  to
be dismissed. With the issue regarding competence  of  the  CO  having  been
answered hereinabove, nothing survives in the matters and these appeals  are
dismissed.
38.   No order as to costs.
                                                           ……………………………..CJI,
                                        (T.S. Thakur)

                                        ……………………………..J.
                                        (Uday Umesh Lalit)
New Delhi
July 05, 2016
-----------------------
[1]




      [2] Below Section 116 following Note 5 appears in  the  Manual”  “Note
5:- See Regs Army para 381 for the circumstances  under  which  a  CO  of  a
different unit may hold the trial by SCM of a person subject to AA”.


[3]

      [4]Following Note 5 appearing below Section  120  in  the  Manual  was
deleted by Government Order dated 28.8.2001:-“ A NCO or a  sepoy  cannot  be
attached to another unit for the purpose of  his  trial  by  SCM  except  as
provided in Regs Army para 381”.


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