REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1961 OF 2010
Union of India & Ors. …. Appellants
Versus
Dinesh Prasad
….Respondent
JUDGMENT
R.M. Lodha, J.
This appeal raises the question of the competence of the
commanding officer of the accused, who signed and issued the
charge sheet, to convene and conduct the summary court-martial
against that very accused.
2. The above question arises in this way. The respondent,
Dinesh Prasad, joined the 11th Assam Rifles as washerman/rifleman
in 1995. For the period between 26.07.1998 and 11.10.2000 (FN), he
absented himself from unit unauthorisedly while in active service.
On 03.08.2001, Col. A.S. Sehrawat, Commandant, under his signature
served a charge sheet under Section 39(a) of the Army Act, 1950
(for short, ‘Army Act’) on the respondent for the absence without
leave for 808 days. The Commandant constituted summary court-
martial to try the respondent for the above charge. The respondent
pleaded guilty to the charge before the summary court-martial. The
summary court- martial, after taking into consideration the facts
and circumstances of the case, passed an order on 04.08.2001
dismissing the respondent from service. The Reviewing Officer has
confirmed the punishment of dismissal from the service awarded to
the respondent.
3. The respondent challenged the punishment awarded to him by
the summary court-martial in a writ petition before the Gauhati
High Court. The respondent (petitioner therein) explained in the
writ petition the reason for his absence. According to him, he lost
his mental balance while in service and was suffering from mental
depression. At the time of arguments before the Single Judge, it
was submitted on his behalf that the very Commandant of the
Battalion, who signed and issued the charge sheet to him, convened
and presided over the summary court-martial and on conclusion of
which the punishment of dismissal from service was imposed which
vitiated the court-martial proceedings as he was denied a fair
trial.
4. The learned Single Judge held that while issuing a charge
sheet the Commandant tentatively made up his mind that there was
some material against the delinquent and accordingly, after having
issued charge sheet, Col. A.S. Sehrawat, who was Commandant of the
Battalion, ought not to have convened the court-martial and in any
event ought not to have conducted the proceedings of the court-
martial leading to the punishment of dismissal from the service.
The Single Judge held that in the facts of the case, the
proceedings of the summary court-martial held against the
delinquent were vitiated on account of likelihood of bias. By the
judgment and order dated 07.09.2006, the Single Judge allowed the
writ petition and set aside the respondent’s dismissal from
service. It was observed, however, that it would be open for the
concerned authority to proceed in the matter afresh in accordance
with law, if it so desired.
5. Being not satisfied with the judgment and order dated
07.09.2006, the present appellants preferred writ appeal. The
Division Bench of the Gauhati High Court found that under Section
116 of the Army Act, the summary court-martial proceedings could be
held by the commanding officer of any corps, department or
detachment of the regular Army and it need not necessarily be the
commanding officer of the Battalion in which the accused was
serving. The Division Bench thus in its order of 28.08.2008 was
of the view that there was no justification to interfere with the
view taken and the conclusion reached by the Single Judge in the
impugned judgment. It is from this order that the present appeal
by special leave has arisen.
6. It is necessary to refer to the relevant statutory
provisions in the Army Act and the Army Rules, 1954 (for short,
‘Army Rules’) for consideration of the question raised before us.
Section 3(v) defines ‘commanding officer’ as under:
“S.3(v)- "commanding officer", when used in any
provision of this Act, with reference to any separate
portion of the regular army or to any department
thereof, means the officer whose duty it is under the
regulations of the regular Army, or in the absence of
any such regulations, by the custom of the service,
to discharge with respect to that portion of the
regular Army or that department, as the case may be,
the functions of a commanding officer in regard to
matters of the description referred to in that
provision”.
7. Section 4 of the Army Act makes applicable its provisions
to certain forces under the Central Government. In exercise of the
powers conferred by sub-section (1) of Section 4 of the Army Act,
the Central Government has issued SRO 117 dated 28.03.1960 and SRO
318 dated 6.12.1962. SRO 318 has been subsequently amended by SRO
325 dated 31.8.1977. SRO 318 dated 6.12.1962 (as amended by SRO 325
dated 31.8.1977) reads as follows:
“S.R.O. 318 dated 6th December, 1962 (as amended by
S.R.O. No. 325 dated 31st August, 1977). - In
exercise of the powers conferred by sub-section (1)
of Section 4 of the Army Act, 1950 and in
supersession of the notification of the Government of
India in the late Affair Department No. 93-X dated
25th June 1942, as subsequently amended, the Central
Government hereby –
(i) Applies to every unit of the Assam Rifles, (and
to recruits and personnel or the said Assam Rifles
when undergoing training in any army training
establishments) being a force raised and maintained
in India under authority of the Central Government,
all the provisions of the said Act, except those
specified in Part A of the Schedule annexed hereto,
subject to the modifications set forth in Part B of
the that (sic) Schedule, when attached to or acting
with any body of the regular army; and
(ii) suspends, while this notification remains
in force the operation of sections 6,7,8 and 9 of the
Assam Rifles Act, 1941 (5 of 1941)”.
8. Chapter VI of the Army Act deals with the offences.
Sections 34 to 70 fall under Chapter VI. Section 39, to the extent
it is relevant, reads as under:-
“39. Absence without leave.- Any person subject to
this Act who commits any of the following offences,
that is to say, -
(a) absents himself without leave; or
(b) to (g) ……………….
shall on conviction by court-martial, be liable to
suffer imprisonment for a term which may extend to
three years or such less punishment as is in this Act
mentioned”.
9. Section 108 describes the kinds of courts-martial. The
said provision reads as under:
“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”.
10. Section 116 provides that the 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. As per sub-section (2) of Section 116, 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.
11. Section 71 provides for punishments awardable by courts-
martial. One of the punishments that is awardable by the courts-
martial is dismissal of the delinquent from service.
12. The Army Rules have been framed by the Central Government
in exercise of its powers under Section 191 for the purposes of
carrying into effect the provisions of the Army Act. The powers of
the commanding officers in relation to investigation of charges and
trial by court-martial are provided in Chapter V of the Army Rules.
Rule 31 provides that the charge sheet shall be signed by the
commanding officer of the accused and shall contain the place and
date of such signature.
13. Rule 39 deals with ineligibility and disqualification of
officers for court-martial. It reads 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.”
14. Rules 106 to 133 of the Army Rules provide for the
proceedings for conduct of summary court-martial. The summary
court-martial has to follow the procedure provided in these Rules.
Arraignment of the accused is provided in Rule 111. Rule 115 deals
with general plea of ‘guilty’ or ‘not guilty’. Rule 116 deals with
the procedure after plea of ‘guilty’. Rule 116 provides as
follows:
“116 Procedure after plea of "Guilty":-
(1) Upon the record of the plea of "Guilty", if there
are other charges in the same charge-sheet to which
the plea is "Not Guilty", the trial shall first
proceed with respect to the latter charges, and,
after the finding of these charges, shall proceed
with the charges on which a plea of "Guilty" has been
entered; but if they are alternative charges, the
Court may either proceed with respect to all the
charges as if the accused had not pleaded "Guilty" to
any charge, or may, instead of trying him, record a
finding upon any one of the alternative charges to
which he has pleaded "Guilty" and a finding of "Not
Guilty" upon all the other alternative charges.
(2) After the record of the plea of "Guilty" on a
charge (if the trial does not proceed on any other
charges), the Court shall read the summary of
evidence, and annex it to the proceedings or if there
is no such summary, shall take and record sufficient
evidence to enable it to determine the sentence, and
the reviewing officer to know all the circumstances
connected with the offence. The evidence shall be
taken in like manner as is directed by these rules in
case of a plea of "Not Guilty".
(3) After such evidence has been taken, or the
summary of evidence has been read, as the case may
be, the accused may address the Court in reference to
the charge and in mitigation of punishment and may
call witnesses as to his character.
(4) If from the statement of the accused, or from the
summary of evidence, or otherwise, it appears to the
Court that the accused did not understand the effect
of his plea of "Guilty", the court shall alter the
record and enter a plea of “Not Guilty”, and proceed
with the trial accordingly.”
(5) If a plea of "Guilty" is recorded and the trial
proceeds with respect to other charges in the same
charge-sheet, the proceedings under sub-rules (2) and
(3) shall take place when the findings on the other
charges in the same charge-sheet are recorded.
(6) When the accused states anything in mitigation of
punishment which in the opinion of the Court requires
to be proved, and would, if proved, effect the amount
of punishment, the court may permit the accused to
call witnesses to prove the same.
(7) In any case where the Court is empowered by
section 139 to find the accused guilty of an offence
other than that charged, or guilty of committing an
offence in circumstances involving a less degree of
punishment, or where it could, after hearing the
evidence, have made a special finding of guilty
subject to exceptions of variations in accordance
with sub-rule (3) of rule 121, it may, if it is
satisfied of the justice of such course accept and
record a plea of guilty of such other offence, or of
the offence as having been committed in circumstances
involving such less degree of punishment, or of the
offence charged subject to such exceptions or
variations”.
15. Rule 123 provides for procedure on conviction and Rule 124
deals with the sentence. Rule 187(3)(a) provides that every
battalion is ‘corps’ for the purpose of summary court-martial.
16. It may be immediately stated that by virtue of Section 4
of the Army Act read with S.R.O.318 dated 6.12.1962 (as amended by
S.R.O. 325 dated 31.08.1977), the Army Act has been made
applicable to the Assam Rifles. The respondent was thus subject to
the provisions of the Army Act.
17. That the Commandant, Col. A.S. Sehrawat, signed and issued
the charge sheet to the respondent and convened and presided over
the summary court-martial is not in dispute. It is also not in
dispute that the summary court-martial presided over by Col. A.S.
Sehrawat awarded to the respondent the punishment of dismissal
from service. Whether the above procedure has vitiated the court-
martial proceedings against the respondent is the question. The
courts-martial are of four kinds, (a) general courts-martial; (b)
district courts-martial; (c) summary general courts-martial; and
(d) summary courts-martial as per Section 108. Rule 39 of the Army
Rules deals with ineligibility and disqualification of officers for
court-martial. In terms of this Rule, an officer is disqualified
for serving on general court-martial or district court-martial if
he is an officer who convened the court. A commanding officer of
the accused or of the corps to which the accused belongs is also
disqualified for serving on general court-martial or district court-
martial. However, no disqualification is attached to the officer
who convened the court or the commanding officer of the accused or
of the corps to which the accused belongs for serving on the other
two kinds of courts-martial, namely, summary general courts-
martial or summary courts-martial. There is neither any
impediment nor embargo in the Army Act or the Army Rules for an
officer who convened the summary general courts-martial or summary
courts- martial or the commanding officer of the accused or of the
corps to which the accused belongs to serve on such court. Section
116 of the Army Act rather provides that 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 (summary court-martial). If the provision contained in
Section 116 of the Army Act is read with Rules 31 and 39 of the
Army Rules, there remains no manner of doubt that Col. A.S.
Sehrawat, who was commanding officer of the respondent, did not
suffer from any disability, ineligibility or disqualification to
serve on the summary court-martial to try the respondent despite
the fact that he signed and issued the charge sheet against the
respondent.
18. As a matter of fact, the competence or eligibility of
Col. A.S. Sehrawat to serve on the summary court-martial for trial
of the respondent was not at all put in issue by the respondent in
the entire writ petition. The petitioner therein set up the
following grounds, namely; (1) the charge against the petitioner
for absenting himself without leave being an offence under Section
39(a) of the Army Act has to be proved beyond reasonable doubt;
(2) the petitioner’s absence from Unit Headquarters was not
willful and intentional; it was for the reason beyond his control;
and (3) the punishment awarded by the summary court-martial was
not rational and commensurate with the offence proved; it did not
maintain the proportion; the punishment was oppressive and out of
tune of the occasion. It was only in the course of arguments
before the learned Single Judge that a submission was made on
behalf of the petitioner that the very Commandant of the Battalion,
who signed and issued the charge sheet to him, convened and
presided over the summary court-martial and on conclusion of which
the punishment of dismissal from service was imposed which vitiated
the court-martial proceedings as he was denied a fair trial. In
our view, the learned Single Judge was clearly in error in
allowing such argument. Firstly, the argument was raised without
any foundation in the writ petition. No plea of actual or
likelihood of bias was raised in the writ petition. There was also
no plea taken in the writ petition that he was denied fair trial
in the course of summary court-martial. Secondly, and more
importantly, the learned Single Judge overlooked and ignored the
statutory provisions referred to hereinabove. The Division Bench
also failed in considering the matter in right perspective and in
light of the provisions in the Army Act and the Army Rules.
19. Absence without leave is one of the offences under the Army
Act. On conviction by the court-martial of the said offence, the
offender is liable to suffer imprisonment for a term which may
extend to three years. Alternatively, for such offence any of the
punishments provided in Section 71 may be awarded by the court-
martial. Clause (e) of Section 71 provides dismissal from the
service as one of the punishments awardable by the court-martial
for such an offence. The respondent was served with the charge
sheet which was in conformity with Rule 31 of the Army Rules and
Sections 39 and 116 of the Army Act. The respondent admittedly
absented himself from unit line for 808 days. He did not obtain
any leave. He pleaded guilty before the summary court-martial. The
summary court-martial followed the procedure provided under Rule
116 of the Army Rules and awarded punishment of his dismissal
from service. Neither constitution of the summary court-martial
nor the procedure followed by that court can be said to suffer from
any illegality. The facts are eloquent inasmuch as respondent
remained absent without leave for more than two years in the
service of about five years. The order of dismissal, in the facts
and circumstances of the case, by no stretch of imagination, can be
said to be disproportionate or oppressive or founded on extraneous
consideration.
20. The decision of this Court in Vidya Parkash v. Union of
India and Ors[1]. squarely applies to the present situation.
Unfortunately, the judgment in Vidya Parkash1 was not brought to
the notice of the Single Judge and the Division Bench. The facts
in Vidya Parkash1 were these: the appellant was posted as Jawan in
Panagarh. He left Panagarh with his wife and children for Kanpur
without taking any leave. According to Vidya Parkash, he became
unwell and he was under treatment of a doctor. When he reported to
Panagarh unit with his fitness certificate, he was served
with a charge sheet wherein it was ordered by Major P.S. Mahant
that he would be tried by summary court-martial. The summary court-
martial which was presided over by Major P.S. Mahant ordered his
dismissal from service. Vidya Parkash challenged that order in a
writ petition before Delhi High Court. Inter alia, a plea was
set up that the commanding officer Major P.S. Mahant was not
legally competent to preside over a summary court-martial. The
Division Bench of the Delhi High Court dismissed the writ petition.
It was held that no objection was taken as to the competence of
Major P.S. Mahant to act as a Judge in summary court-martial. It
was from the order of the Delhi High Court that the matter reached
this Court. This Court considered Sections 108 and 116 of the
Army Act, Rule 39(2) of the Army Rules and held that the summary
court martial held by the commanding officer Major P.S. Mahant was
in accordance with the provisions of Section 116 of the Army Act.
This Court further observed :
“13 - The Commanding Officer of the Corps,
Department or Detachment of the Regular Army to which
the appellant belongs, is quite competent in
accordance with the provisions of Section 116 of the
said Act and as such the constitution of the summary
court martial by the Commanding Officer of the Corps
cannot be questioned as illegal or incompetent. It is
neither a general court martial nor a district court
martial where the appellant's case was tried and
decided. In case of general court martial or district
court martial Rule 39(2) of the Army Rules, 1954 is
applicable and the Commanding Officer is not
competent to convene general or district court
martial. The summary court martial was held by the
Commanding Officer of the corps, Major P.S. Mahant
and there are two other officers including Capt. K.J.
Singh and another officer to attend the proceedings.
In such circumstances, the summary court martial
having been convened by the Commanding Officer of the
corps according to the provisions of the Army Act,
1950, the first submission made on behalf of the
appellant fails.”
21. The legal position exposited by this Court in Vidya
Parkash1 renders the impugned judgments unsustainable.
22. Learned counsel for the respondent placed heavy reliance
upon the decisions of this Court in Punjab National Bank and Ors.
v. Kunj Behari Misra[2], Maneka Gandhi v. Union of India & Anr.[3]
and Roop Singh Negi v. Punjab National Bank & Ors.[4] , in
support of his submission that the order of dismissal from service
by the summary court-martial was in violation of principles of
natural justice. We are afraid none of these decisions has any
application to the facts of the present case. There is no
violation of principles of natural justice. No illegality has been
committed in convening the summary court-martial by the commanding
officer nor there is any illegality in the conduct of the summary
court- martial. The respondent pleaded guilty to the charge before
the summary court-martial and the summary court-martial found him
guilty. It was only then that the order of dismissing the
respondent from service was passed. It is now settled that no
reasons are required to be recorded by the court-martial.
23. Civil appeal is allowed. The judgment and order of the
Single Judge dated 7.09.2006 and the order of the Division Bench
dated 28.08.2008 are set aside. No order as to costs.
………………………J.
(R.M. Lodha)
.....……………………J.
(Anil R.
Dave)
NEW DELHI
OCTOBER 30, 2012.
-----------------------
[1] (1988) 2 SCC 459
[2] (1998) 7 SCC 84
[3] AIR 1978 SC 597
[4] (2009) 2 SCC 570
