REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 7133 OF 2008
UNION OF INDIA & ANR.
......APPELLANTS
Versus
PURUSHOTTAM
.....RESPONDENT
J U D G M E N T
VIKRAMAJIT SEN,J.
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
clear.
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
officer.
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
itself.
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
officer.
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
initiated.
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.
............................................J.
[VIKRAMAJIT SEN]
............................................J.
[SHIVA KIRTI SINGH]
New Delhi;
January 05, 2015.
-----------------------
26
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 7133 OF 2008
UNION OF INDIA & ANR.
......APPELLANTS
Versus
PURUSHOTTAM
.....RESPONDENT
J U D G M E N T
VIKRAMAJIT SEN,J.
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
clear.
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
officer.
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
itself.
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
officer.
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
initiated.
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.
............................................J.
[VIKRAMAJIT SEN]
............................................J.
[SHIVA KIRTI SINGH]
New Delhi;
January 05, 2015.
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