A Compendium of Indian Military Cases. Volume I

A Compendium of Indian
Military Cases: Apex Court
Judgments & Some Relevant
Common Law Cases Volume
I
Ed: Chandra Nath

ii
Copyright ©2011 by Chandra Nath
All rights reserved.
ISBN . . .
. . . Publications

Dedicated to Veterans in Pursuit of Justice: All 100% profits
goes for deserving Pro Bono Legal Counseling

Contents
1 Major E. G. Barsay v. The State Of Bombay 1961 1
2 Ram Sarup v. The Union Of India 1963 37
3 Union of India v. Maj S K Sharma 1987 49
4 S.K. Rao v. Union Of India 1967 63
5 Delhi Police Est v. Lt Col S K Loraiya 1972 69
6 Capt Harish Uppal v. Union Of India 1972 75
7 O K Achudan Nair v. Union of India 1975 85
8 Maj Gen D.S. Nakara v. Union Of India 1982 89
9 Viswan v. Union Of India 1983 129
10 Chief of The Army Staff v. Maj Dharam Pal Kukrety 1985159
11 Supdt. & Remembrancer Of Legal v. Usha Ranjan Roy
Choudhury 1986 173
12 Union of India v. Maj S K Sharma 1987 185
13 Vidya Prakash v. Union Of India 1988 199
14 Lt Col K D Gupta v. Union of India 1988 207
15 Lt Col K.D. Gupta v. Union of India 1989 215

vi CONTENTS
16 S N Mukherjee v. Union Of India 1990 223
17 Ex-Hav Ratan Singh v. Union of India 1991 251
18 Bhuwneshwar Singh v. Union Of India 1993 255
19 P Chandramouli v. Union Of India 1994 265
20 Union Of India v. R.K.L.D. Azad 1995 271
21 Union Of India v. Major General Madan Lal Yadav 1996 275
22 Major Kadha Krishan v. Union Of India 1996 291
23 Major R.S. Budhwar v. Union Of India 1996 297
24 Anuj Kumar Dey & Anr v. Union Of India 1996 307
25 Union Of India And Others v. Major A. Hussain 1997) 315
26 The General Court Martial v. Col. Aniltej Singh Dhaliwal
1997 329
27 Union of India v. Capt. A.P. Bajpai 1998 339
28 Union Of India v. Subedar Ram Narain 1998 347
29 Union of India v. Hav Clerk SC Bagari 1999 353
30 Union Of India v. Himmat Singh Chahar 1999 359
31 Union of India v. Sadha Singh 1999 363
32 Union Of India v. Charanjit S. Gill 2000 367
33 Sukhdev Singh Gill v. State Of Punjab 2000) 389
34 Union Of India v. R P Yadav 2000 395
35 Union Of India v. Harjeet Singh Sandhu 2001 403
36 Union Of India v. R.K. Sharma 2001 427

CONTENTS vii
37 Union Of India v. P.D. Yadav 2001 435
38 Union of India v. L.D. Balam Singh 2002 455
39 Union Of India v. Shivendra Bikaram Singh 2003 465
40 Jasbir Kaur v. Union Of India 2003 483
41 Union Of India v. Ashok Kumar 2005 489
42 Union Of India v. Ranbir Singh Rathaur 2006 499
43 Union of India v. Capt. Satendra Kumar 2006 509
44 Romesh Kumar Sharma v. Union of India 2006 513
45 Pradeep Singh v. Union Of India 2007 519
46 Union Of India v. S.P.S. Rajkumar 2007 525
47 Sheel Kr. Roy v. Secretary M/O Defence 2007 529
48 Ram Sunder Ram v. Union of India 2007 537
49 Union of India and another v. SPS Vains 2008 543
50 P.K. Choudhury v. Commander, 48 BRTF(GREF) 2008 551
51 Bachan Singh v. Union of India 2008 559
52 Union of India v. V. N. Singh 2010 589
53 Arun Raj v. Union Of India 2010 601
54 Charanjit Lamba v. Commndng.Officer,Southern Command
2010 611
55 J.S. Sekhon v. Union Of India 2010 617
56 Place Holder 623
57 Place Holder 625

viii CONTENTS
58 Place Holder 627
59 Place Holder 629
60 Place Holder 631
61 O’Callahan v. Parker, 395 U.S. 258, 265 (1969) 633

Preface

x CONTENTS

Chapter 1
Major E. G. Barsay v. The
State Of Bombay 1961
Major E. G. Barsay v. The State
Of Bombay on 24 April, 1961 Equivalent
citations: 1961 AIR 1762, 1962
SCR (2) 195 Bench: Subbarao, K.
PETITIONER:
MAJOR E. G. BARSAY
v.
RESPONDENT:
THE STATE OF BOMBAY
DATE OF JUDGMENT:
24/04/1961
BENCH:
SUBBARAO, K.
BENCH:
SUBBARAO, K.
DAYAL, RAGHUBAR
CITATION:
1961 AIR 1762 1962 SCR (2) 195
CITATOR INFO :
R 1963 SC1850 (59)
R 1966 SC1273 (20)
R 1968 SC1323 (7)
RF 1971 SC 500 (17)
RF 1971 SC1120 (20)
R 1977 SC2433 (9)
D 1979 SC1255 (8)
RF 1982 SC1413 (39)
R 1986 SC1655 (7)
RF 1992 SC 604 (125)
ACT:
Criminal Trial - Criminal Misconduct
- Army Officer tried by
Special Judge-jurisdiction-Sanction
for Prosecution given by Deputy
Secretary-Validity-Investigation by
Inspector of Police, Special Police
Establishment, Delhi-Legality-
Conspiracy-Public Servants charged
with others-Legality of charge-
Approver-Corroboration-Prevention
of Corruption Act, 1947 (11 of 1947).
ss. 5A, 5(2), 6(r)(a)-Army Act, 1950
(46 of 1950), ss. 52, 70, 125, 127-
Criminal Law (Amendment) Act,
1952 (46 of 1952), ss. 6, 7, 8, 9-
Constitution of India, Art. 77.
HEADNOTE:
The appellant and five other per-

2 Major E. G. Barsay v. The State Of Bombay 1961
sons, three of them not being public
servants, were charged with criminal
conspiracy to dishonestly or fraudulently
misappropriate or convert to
their own use military stores and
with dishonestly and fraudulently
misappropriating the same. Sanction
for prosecution of the accused
was given by a Deputy Secretary on
behalf of the Central Government.
The accused were tried by a Special
judge. The main evidence led
was that of one L, a security officer.,
who had been asked to join
the conspiracy and who had joined
it with a view to have the offenders
apprehended. The Special judge
convicted all the accused persons.
On appeal the High Court confirmed
the conviction of the appellant and
one other accused now dead and acquitted
the other four accused persons
holding that the evidence of L
was corroborated in material particulars
in respect of the appellant and
one other accused only. The appellant
contended:- (i) that the appellant
who was subject to the Army
Act could only be tried by a Court
Martial and the Special judge had
no jurisdiction to try him, (ii) that
the sanction to prosecute was void as
it was not expressed to be made in
the name of the President, (iii) that
the investigation by the Inspector of
Police, was illegal, (iv) that there
could be no legal charge of conspiracy
between accused who were public
servants and accused who were not,
and (v) that L was a wholly unreliable
witness whose testimony ought
to have been rejected totally and no
question of its corroboration arose.
Held, that the Special judge had
jurisdiction to try the appellant for
the offences charged. The Army
Act does not bar the jurisdiction of
criminal courts in respect of acts or
omissions which are punishable under
the Army Act as well as under
any other law in force. The offences
charged were triable both by the Special
judge and by a Court Martial.
In such cases s. 125 of the Army
Act provides that if the designated
officer decides that the proceedings
should be before a Court Martial he
may direct the accused to be detained
in military custody. But in
the present case the designated officer
bad not exercised his discretion
and the Army Act was not in the
way of the Special judge exercising
his jurisdiction. Rule 3 made under
s. 549, Code of Criminal Procedure
for persons subject to military law
was applicable only to magistrates
and not to a Special judge who is
not a magistrate within the meaning
of r. 3. Besides, s. 7 of the Criminal
Law (Amendment) Act, 952, provides
that notwithstanding anything
contained in the Code of Criminal
Procedure or in “any other law” the
offences specified in s. 6(1) shall be
triable by Special judges only. The
words “any other law” included the
Army Act also. The offences for
which the appellant was convicted
were offences specified in s. 6(1) and
were exclusively triable by a Special
judge.
Held, further, that the sanction
for the prosecution of the appellant
was a good and valid sanction. Article
77 of the Constitution which pro-

vides that all orders of the Central
Government shall be expressed to be
in the name of the President is only
directory and not mandatory. Where
an order was not issued in strict compliance
with the provisions of Art.
77 it could be established by extraneous
evidence that the order was
made by the appropriate authority.
In the present case there was uncontroverted
evidence which established
that the order of sanction was made
by the Deputy Secretary on behalf of
the Central Government in exercise
of the power conferred on him under
the rules delegating such power
to him.
The State of Bombay v. Purushottam
jog Naik, [1952] S.C.R.
674, Dattareya Moreshwar Pangarkar
v. The State of Bombay,
[1952] S.C.R. 612, J. K. Gas Plant
Manufacturing Co., Ltd. v. The
King Emperor, [1947] F.C.R. 141,
P. Joseph John v. The State of
Travancore-Cochin, [1955] 1 S.C.R.
1011 and Ghaio Mall & Sons v. The
State of Delhi, [1959] S.C.R. 1424,
applied.
Held, further, that though the
conditions of investigation by the Inspector
of Police as laid down in S.
5A, Prevention of Corruption Act
were not complied with the trial. was
not vitiated by the illegality as it did
not result in any miscarriage of justice.
The powers and jurisdiction of
members of the Delhi Special Police
Establishment for investigation of offences
in the State of Bombay had
been duly extended by a notification
of the Government of Bombay dated
August 13, 1949, giving a general
3
consent in respect of all the members
of the establishment. It was not necessary
that the consent be given to
every individual member of the Establishment.
H.N. Rishbud & Inder
Singh v. State of Delhi, [1955] 1 S.C.
R. 1150, followed,
Held, further, that there was no
defect in the charges. It was not illegal
to charge public servants and
persons who were not public servants
with the criminal conspiracy to do
certain acts for which all of them
could not be convicted separately.
Though all the accused were not liable
for the individual offences, they
were all guilty of the offence of conspiracy
to do illegal acts.
Held, further, that the evidence
of L was reliable and that it was
corroborated in material particulars
so far as the appellant was concerned.
Though L was not an accomplice,
he was an interested witness
and required corroboration. The evidence
of an approver and the corroborating
pieces of evidence could
not be treated in two different compartments;
but had to be considered
together. Though some parts of the
evidence of L were not accepted, his
version was broadly accepted in regard
to the conspiracy and the manner
in which articles were smuggled
out.
Sarwan Singh v. The State of
Punjab, [1957] S.C.R. 953, explained.
JUDGMENT:
CRIMINAL APPELLATE JU-
RISDICTION: Criminal Appeal No.
2 of 1958.
Appeal from the judgment and

4 Major E. G. Barsay v. The State Of Bombay 1961
order dated July 27, 1957, of the
Bombay High Court in Criminal Appeal
No. 254 of 1957. WITH
Criminal Appeal No. 81 of 1960.
Appeal by special leave, from the
judgment and order dated July 27,
1957, of the Bombay High Court, in
Criminal Appeals Nos. 255 and 257
of 1957.
M.H. Chhatrapati, Ravindra
Narain, O. C. Mathur and J. B.
Dadachanji, for the appellant (in
Criminal Appeal No. 2 of 1958).
B.K. Khanna and D. Gupta, for
the respondent in Criminal Appeal 2
of 1958) and appellant (in Criminal
Appeal No. 81 of 1960). Ram Lal
Anand and S. N. Anand, for respondent
No. 1 (in Criminal Appeal No.
81 of 1960).
B.S. Gheba, for respondent No. 2
(in Criminal Appeal No. 81 of 1960).
1961. April 24. The Judgment of
the Court was delivered by SUBBA
RAO, J.-These two appeals-one filed
by accused No. 1 by certificate and
the other filed by the State of Maharashtra
by special leave-against the
judgment of the High Court of Bombay
confirming the conviction and
sentence of accused No. 1 and setting
aside the convictions and sentences of
accused Nos. 2 and 3.
The prosecution case may be
briefly stated. There was a depot
called the Dehu Vehicle Depot in
which military stores were kept. In
the year 1944 Col. Rao, the Chief
Ordnance Officer, was in charge of
the Depot; Col. Sindhi, the Station
Commandant, and Brig. Wilson, the
Brigadier, Ordnance, Southern Com-
mand, were his superior officers. Accused
No. 1, Major Barsay, was second
in command in the Depot and
was in charge of stores section; he
was subordinate to Col. Rao. Major
Nag, another subordinate to Col.
Rao, was in charge of the administration
of the Depot. One Capt. Pratap
Singh was the Security Officer in the
Depot; but, during the period in
question, one Lawrence was acting as
the Security Officer in place of Capt.
Pratap Singh. Kochhar, accused No.
2, who was on leave from October 25,
1954, was recalled to duty by accused
No. 1 and was put in charge of kit
stores in the Depot. Avatar singh,
accused No. 3, who was working in
the Unit Sub Park, was transferred
to the Kit Stores by accused No. 1
during the absence on leave of Col.
Rao. Accused No. 4, Saighal, was
an Ex-Col. and was at one time the
Station Commandant of the Depot;
after retirement he had been staying
in a bungalow at a short distance
from mile No. 92/7 on the Poona-
Bombay Road. Accused No. 5, Ramchand
Gangwani, was a refugee from
Sind and he was running a hotel at
Lonnavala. Accused No. 6, Devichand,
and one Khemchand, who
is absconding, are sons of accused
No. 5. Accused Nos. 4 and 5 were
friends and they were also partners
along with one Bhagwan Parshuram
of Bombay in “The Bombay Lonavala
Disposal Syndicate”. There
were large consignments of Kits in
Shed No. 48 of Kit Stores which were
unitemized and unaccounted for in
the books of the Depot. The accused
entered into a conspiracy to smuggle
out some of the said stores and to

make an illegal gain by selling them
at Bombay through accused No. 4.
The brain behind the conspiracy
was accused No. 1. The plan
chalked out to implement the object
of the conspiracy may be briefly
stated. Col. Rao was to proceed
on leave sometime in December 1954
and Maj. Barsay, being the next in
command, was naturally to succeed
him as Chief Ordnance Officer of the
Depot during the absence on leave
of Col. Rao. The smuggling of the
goods out of the Depot was therefore
arranged to take place during
the period when Maj. Barsay was
acting as the Chief Ordnance Officer
of the Depot. Col. Rao went
on leave from December 11, 1954.
Kochhar, the second accused, who
was in charge of the Fit- Park, proceeded
on two months’ leave of absence
with effect from October 25,
1954, but he was recalled by accused
No. 1 and posted as officer in charge
of Kit Stores on November 25, 1954.
Accused No. 3, Avatar Singh, was
working in the Unit Sub Park, and
he too was shifted from there to the
Kit Stores on or about November 22,
1954. These two, postings were made
by accused No. 1 without the consent
or knowledge of Col. Rao when
he had gone to Delhi on some temporary
duty for ten days from November
20, 1954 to November 30, 1954.
On the night of December 1, 1954,
there was a theft of various articles
in the Unit Park of the Depot. Accused
No. 1 called in Lawrence, the
acting Security Officer, ostensibly to
discuss with him certain matters regarding
the theft. During the course
5
of the conversation accused No. 1
suggested to Lawrence that valuable
stores in Shed No. 48 might be smuggled
out and the large amounts expected
to be realized from their sale
might be shared between the conspirators,
including Lawrence. Presumably
to put him in a suitable frame of
mind to accept the suggestion to become
a conspirator, he also hinted to
Lawrence that Col. Rao suspected
that he (Lawrence) had a hand in
the theft. The scheme outlined by
accused No. 1 was confirmed by accused
No. 2 a few days later. According
to the plan chalked out by Maj.
Barsay, he was to appoint a board
of officers for itemization of “Specialist
Boxed Kits” in Shed No. 17
and once the board started functioning
there would be shuttle of trucks
moving from Shed No. 48 to Shed
No. 17 and vice versa and during
the movements of those trucks two
or three trucks loaded with valuable
stores were to be moved out through
the main gate of the Depot on the
pretext of being back-loaded to the
Return Stores Sub-Depot. He was
also to take Col. Rao to Shed No.
48 and explain to him that the boxes
contained very few items so that he
too, on his return from leave, would
not be surprised at the final result of
the itemization. It was also agreed
that the scheme should be pushed
through tentatively on December 16,
17 and 18, 1954. But, for one reason
or other, it could not be pushed
through during those days, as Capt.
Kapoor was frequently visiting the
scene of itemization.
On December 18, 1954, a meet-

6 Major E. G. Barsay v. The State Of Bombay 1961
ing took place at Maj. Barsay’s bungalow
and accused Nos. 1 to 4 and
Lawrence attended that meeting. At
that meeting the details of working
out the plan to be carried out on
December 20, 1954, were finalized.
Kochhar reported to the conspirators
that he had briefed Jamadar Kundanlal,
and Lawrence told them that,
as per Kochhar’s suggestion, he had
already detailed Jamadar Kundanlal
on day duty at the main gate during
the next week. Maj. Barsay agreed
to get a driver of his confidence detailed
on one of the trucks to be allotted
to the Kit Stores and he offered
to give orders to Kochhar on
the morning of December 20, 1954,
in the presence of all, to transfer the
itemized kits to Shed No. 26 ostensibly
for the purpose of conditioning
and preservation. That would enable
accused No. 3, Avatar Singh, to load
the stores from Shed No. 17. The
first trip was to be of ordinary stores
in which the conspirators were not interested
and the second trip was to
be of valuable stores which were to
be smuggled out of the gate. Maj.
Barsay also undertook to call Maj.
Nag to his office on December 20,
1954 and issue orders in the presence
of Maj. Nag to Lawrence to go to
Dehu Ordnance Depot (D.O.D.) and
get the fire hoses which were sent
there for repairs. Kochhar agreed
to prepare a bogus voucher on Monday
(December 20, 1954) morning,
and Lawrence undertook to provide
a bogus gate-pass. Accused No. 4,
Saighal, agreed to keep a lorry and
some laborers present near his bungalow
for transshipping the stores.
On the evening of December 19,
1954, Lawrence went to the house of
Saighal and the latter showed him
the spot where the stores were to be
transshipped. Thereafter, after taking
his dinner, Lawrence went to the
Depot at 9 p.m. The Orderly Officer
at the Depot, one Shrinivasan, informed
Lawrence that Jamadar Kundanlal,
who was to have been on duty
at the main gate on December 20,
1954, was sick and had taken 3 days’
leave of absence on medical grounds
and that Maj. Barsay had sent a chit
to him asking him to send Lawrence
to the bungalow of Maj. Barsay.
Lawrence went to the bungalow of
Maj. Barsay, but could not meet
him; and then Lawrence went to the
residence of Jamadar Kundanlal and
tried to persuade him to attend to his
duty at the main gate on December
20, 1954.
On December 20, 1954, at about
9.15 a.m. Maj. Barsay called Havaldar
Pillay to his office and asked
him to allot a new vehicle to the
Kit Stores and to detail driver Ramban
on that vehicle. Havaldar Pillay
did accordingly. At about 10
a.m., Maj. Barsay called Maj. Nag
and Lawrence to his office and, in
the presence of Maj. Nag, he issued
orders to Lawrence to go to
Dehu Ordnance Depot (D.O.D.) personally
and get the fire hoses. After
Maj. Nag left the place, Lawrence
told Maj. Barsay that Jamadar Kundanlal
had reported himself to be sick
and had taken leave of absence and
that one Godse was at the main gate.
Maj. Barsay suggested to Lawrence
that 26 Jamadar Jogendrasingh may

e put at the main gate in place of
Godse, and he informed him that
he had fixed upon Ramban as the
driver of the vehicle in which the
stores were to be smuggled out. At
about 11 a.m. Lawrence met Maj.
Barsay and Kochhar near, Shed No.
48 and was told by Maj. Barsay that
the scheme was to proceed according
to schedule. Kochhar and Lawrence
then went to Shed No. 17 where
Avatar Singh, accused No. 3, was
present. Kochhar told Avatar Singh
that he had not prepared any voucher
as it was not necessary. Lawrence
had brought an old gate-pass with
him and he handed over the same
to Avatar Singh. Truck No. D.
D. 5963 was, in the first instance,
loaded with ordinary stores and was
sent to Shed No. 26. In the meanwhile,
Lawrence went to the Depot
and asked Godse to take over at the
Unit Sub Park gate and he ordered
Jamadar Jogendrasingh to take over
from Godse at the main gate. As Jamadar
Jogendrasingh refused to accept
the gate-pass to be produced
by the driver and pass out the vehicle
without making an entry regarding
the same in the “Vehicles In and
Out Register”, Lawrence gave him a
written order to that effect with instructions
not to show or hand over
that written order to anybody except
himself on his return or to Maj.
Nag. At about 1 p.m. Maj. Barsay
told Lawrence that he had become
apprehensive of the scheme succeeding,
as he had seen the Station Commandant’s
car near the Barrack Office
and, therefore, he told him not
to take out the vehicle till that car
had gone out. Lawrence agreed and
7
went to Shed No. 17 where Avatar
Singh was present, and Avatar Singh
got the truck loaded and handed over
the bogus gate-pass and the dutyslip
of the vehicle to Ramban, and
he also asked Lawrence to get into
the truck there itself instead of near
the main gate as per the plan. After
Lawrence got into the truck, it
proceeded towards the main gate at
about 1.40 p.m. At the main gate,
Ramban gave the duty-slip of the vehicle
and also the bogus gate-pass to
Jamadar Jogendrasingh and the latter
told Lawrence that Maj. Barsay
had left a message for him “not to
do it on that day”. Lawrence, ignoring
the said directions, took the vehicle
out of the gate. At a spot near
Talegaon there was a civilian lorry
bearing No. BYL 3289 kept ready
by accused Nos. 4, 5 and 6 for transshipping
the stores, and to that place
the truck was driven. The two lorries
were parked back to back, and
accused No. 6. and the absconding
accused Khemchand and two others
started transshipping the stores
from the military lorry to the civilian
lorry. At that stage, the police officers
appeared at the scene and prevented
further fulfillment of the plan
of the accused.
It is a further case of the prosecution
that Lawrence ostensibly joined
the conspiracy with a view to bring
to book the culprits and was informing
the superior officers and the police
orally and in writing from time
to time as and when the important
events were taking place.
As some argument was made on
the basis of the charges, it would

8 Major E. G. Barsay v. The State Of Bombay 1961
be convenient at this stage to read
the charges framed by the Special
Judge, Poona. The charges are: (1)
That you accused No. 1 Major E.
G. Barsay, when officiating as Chief
Ordnance Officer, D. U. V. and you
accused No. 2, H. S. Kochhar, when
posted as Civilian Group Officer, D.
U. V., and you accused No. 3, Avatar
Singh Seva Singh, then working as
Civilian Stores Keeper, D. U. V., and
you accused No. 4, W. S. Saighal,
released Lt. Col., and you, accused
No. 5, Ramchand Pahlajrai Gangawani,
and you accused No. 6, Deviprasad
Ramchand Gangawani and
the absconding accused Khemchand
between about October 1954 and December
1954 were parties to a criminal
conspiracy at Dehu Road area
by agreeing to do certain illegal acts
to wit: Firstly, dishonestly or fraudulently
fraudulently misappropriate or
otherwise convert to your own use
the Military Stores lying in the Vehicle
Depot, Dehu Road and which
was entrusted or was in-charge of
Major E. G. Barsay, H. S. Kochhar,
and Avatar Singh Seva Singh and
which was also under their control,
as public servants; Secondly, to obtain
by corrupt or illegal means for
yourselves or for any other persons
such stores which amounts to abusing
their position as public servants
i.e., the co-conspirators; Thirdly, to
commit illegal acts of committing
theft or receiving of stolen property
and the above said illegal acts were
done in pursuance of the said agreement
and that you have thereby committed
an offence punishable under
Section 120-B of the Indian Penal
Code and within my cognizance. (2)
That you accused Nos. 1, 2, 3,4, 5, 6
and another (Khemchand Ramchand
Gangawani), between about October
1954 and December 1954 in pursuance
of the above said conspiracy
jointly and in furtherance of the common
intention of all of you, you accused
No. 1, Major Barsay, Officiating
Chief Ordnance Officer, and you
accused No. 2, H. S. Kochbar, Civilian
Group Officer, D. U. V., and you
accused No. 3, Avatar Singh Seva
Singh, Civilian Store Keeper, and
you accused No. 4, W. S. Saighal,
released Lt. Col., and you accused
No. 5, Ramchand Pahalajrai Gangawani,
and you accused No. 6, Deviprasad
Ramchand Gangawani, did
on 20th of December 1954, dishonestly
or fraudulently his. appropriate
with a common intention or convert
for your own use Government property
in the form of Military Stores described
in detail in Schedule ’A’ appended
herewith, entrusted to or under
the control of the first three accused,
namely, Major E. G. Barsay,
H. S. Kochhar and Avatar Singh Seva
Singh, who were public servants and
thereby committed an offence under
Section 5(1)(c), punishable under
section 5(2), of the Prevention of
Corruption Act, read with Section 34
of the Indian Penal Code and within
my cognizance. (3) That you accused
Nos. 1, 2,3, 4, 5, 6 and the absconding
accused Khemchand Ramchand
Gangawani, in pursuance of the
above said conspiracy, jointly and in
furtherance of the common intention
of all of you, did by corrupt or illegal
means by abusing their position
as public servants, obtained for yourselves
or for any other persons, the

valuable things in the form of Military
Stores detailed out in Schedule
’A’ appended herewith, and this act
205 constitutes an offence under Section
5(1)(d) of the Prevention of Corruption
Act, punishable under Section
5(2) of the said Act read with
Section 34 of the Indian Penal Code
and within my cognizance.
(4) That you accused Nos. 1, 2,
3, 4,5, 6, along with the absconding
accused, Khemchand Ramchand
Gangawani, did on 20th of December
1954, in pursuance of the above said
conspiracy jointly and in furtherance
of the common intention of all of
you, dishonestly or fraudulently remove
the Military stores described in
detail in Schedule ’A’ appended herewith
from the Dehu Road Depot and
this act constitutes an offence punishable
either under Section 381 or
411 of the Indian Penal Code, read
with Section 34 of the Indian Penal
Code and within my cognizance.
The main defence of the accused
was that, in view of the thefts going
on in the Depot, the reputation of
Lawrence, the Security Officer, was
at the lowest ebb, that in order to
resurrect his reputation and to ingratiate
himself into the good books
of his superiors, he concocted the
scheme of huge fraud and implicated
therein the accused, including the
Acting Chief Ordnance Officer of the
Depot. Shortly stated, the defence
was that all the accused were innocent
and that it was Lawrence that
“abducted” the truck with the stores,
made false statements to the superior
officers from time to time giving
concocted versions to fit in with the
theory of conspiracy.
9
The Special Judge, on a consideration
of the evidence, held that all
the charges were made out against
the accused. He rejected the technical
objections raised in regard to
the framing of the charges, the validity
of the investigation made by the
investigating officer and the sanction
given by the Central Government for
the prosecution of the accused, and
came to the conclusion that prima
facie there was no good ground to
discard the evidence of Lawrence,
but he placed the said evidence in
the category of interested evidence
and required independent corroboration
before acceptance. In the words
of the learned Special Judge, “Shri
Lawrence’s evidence can, therefore,
be accepted and relied upon, only if
it is corroborated by other independent
evidence and circumstances in
the case.” He found ample evidence
and circumstances corroborating the
evidence of Lawrence. After considering
the entire evidence, he came to
the following conclusion: “The above
discussion of the evidence on record
and the circumstances in the case
makes it abundantly clear that the
prosecution has been able to prove
beyond a reasonable doubt that every
one of these six accused did commit
overt acts in furtherance of the
criminal conspiracy alleged against
them.”
He held that accused Nos. 1 to
6 were guilty of the principal offence
charged against them and convicted
all of them under s. 120-B of the Indian
Penal Code and s. 5(2) of the
Prevention of Corruption Act, 1947,

10 Major E. G. Barsay v. The State Of Bombay 1961
read with B. 34 of the Indian Penal
Code. He gave varying sentences
of imprisonment and fine to the accused.
The accused preferred five appeals
to the High Court against their
convictions and sentences.
A division bench of the Bombay
High Court which heard the appeals
set aside the conviction of accused
Nos. 2, 3, 5 and 6, but confirmed
those of accused’ Nos. 1 and 4.
The High Court also rejected all the
technical objections raised at the instance
of the appellant-accused in regard
to some parts of 2nd, 3rd and
4th charges. In regard to the 2nd
and 3rd head sub-charges, tile High
Court accepted the plea that accused
Nos. 4, 5 and 6 could not be charged
with having committed an offence
under s. 5(1)(c) and s. 5(1)(d) of
the Prevention of Corruption Act, as
they were not public servants; but
they held that it would be proper to
frame a charge against them under
s. 109 of the Indian Penal Code for
having abetted the commission of the
offence of criminal misconduct under
s. 5(1)(c) and (d) of the Prevention
of Corruption Act, committed by accused
Nos. 1 to 3. As the High Court
held that they were not prejudiced
by the irregularity of the charge, it
altered the charge to one under s.
109 of the Indian Penal Code, read
with s. 5(1)(c) and (d) of the Prevention
of Corruption Act. As regards
the last head of the charge, it
held that all the accused could not be
charged with having committed an
offence under s. 381 of the Indian Penal
Code and that the charge under s.
411 of the Indian Penal Code would
also appear to be improper so far as
accused Nos. 1 to 3 were concerned;
but it held that so far as accused Nos.
4, 5 and 6 were concerned, the charge
under s. 411, read with s. 34, Indian
Penal Code, would be quite proper.
Before the High Court, learned
counsel appearing on behalf of the
accused and the special counsel, Mr.
Amin, appearing on behalf of the
State, asked the Court to proceed to
examine the evidence of Lawrence on
the basis that he was a decoy and a
trap witness. The High Court agreed
with the learned Special Judge that
the evidence of Lawrence would, have
to be treated on par with that of a
trap witness and that it would be inadvisable
to rely upon the said evidence
without independent corroboration.
It also pointed out that
the corroboration required was not a
corroboration of every particular in
respect of which the accomplice or
the approver gave his evidence, but
the corroboration must be such as to
make the court believe that the evidence
of the accomplice was a truthful
one and that it would be safe to
act upon that evidence. Finally the
High Court premised its discussion of
the evidence in the following words:
“In our opinion, all these decisions
would clearly establish that it would
not be safe to rely on the evidence
of Lawrence who is admittedly a decoy
or trap witness, without his testimony
being corroborated from independent
sources.”
Then the learned Judges of the
High Court considered the evidence
of Lawrence minutely, discarded
some parts of the evidence which

were discrepant or inconsistent with
other proved facts and accepted the
broad story of conspiracy given by
him as true to the extent it was
corroborated by other unimpeachable
pieces of evidence and circumstances.
After elaborately considering
the evidence of Lawrence, the
learned Judges of the High Court
came to the following conclusion:
“We, therefore, accept Lawrence’s
evidence, find that his story is probable
and true and we also find that the
evidence on the record justified the
finding of the trial Court that there
was a conspiracy as alleged by the
prosecution to smuggle goods out of
the Dehu Vehicles Depot.”
Then the learned Judges considered
the question as to which of the
accused took part in the conspiracy.
As regards accused No. 1, they
came to the conclusion that there
was cogent evidence to implicate him
in the conspiracy, and in that view,
they confirmed the finding of the trial
court that he was a party to the
conspiracy to smuggle military goods
out of the Depot. As regards accused
No. 2, they held that the evidence
was not sufficient to establish
that he was a member of the alleged
conspiracy and that, as he could not
be held to be a member of the conspiracy,
he could not also be held
to be guilty of committing criminal
misconduct under s. 5(1)(c) and (d)
of the Prevention of Corruption Act,
1947. As regards accused No. 3,
they were of the opinion that the case
against him was not established beyond
reasonable doubt and that he
could not be held to be guilty of
11
criminal conspiracy as well as criminal
misconduct. As regards accused
No. 4, they accepted the finding of
the learned Special Judge, as independent
acceptable evidence corroborated
the evidence of Lawrence in
respect of this accused. So far as accused
Nos. 5 and 6 were concerned,
they found the evidence to be very
weak and therefore set aside the convictions
and sentences passed against
them. In the result, they confirmed
the convictions and sentences of accused
Nos. 1 and 4, and set aside
those of accused Nos. 2, 3, 5 and 6.
It appears that accused No. 4
died after the appeal was disposed
of by the High Court. Accused No.
1 preferred Criminal Appeal No. 2
of 1958 against his conviction and
sentence passed by the High Court
and the State preferred Criminal Appeal
No. 81 of 1960 challenging the
correctness of the order of acquittal
made in respect of accused Nos. 2
and 3.
We shall first take the appeal filed
by accused No. 1. Learned counsel
for the appellant raised before
us all the technical points which he
unsuccessfully raised before the Special
Judge as well as before the High
Court. At the outset we shall deal
with the said contentions before considering
the arguments advanced on
the merits of the case.
The first contention of learned
counsel for the appellant is that the
Special Judge, Poona, had no jurisdiction
to take cognizance of the offences
with which the accused were
charged and that they should have
been tried only by a court martial

12 Major E. G. Barsay v. The State Of Bombay 1961
under the Army Act.
The argument of learned counsel
for the appellant may be briefly
stated thus: The Army Act, 1950
(46 of 1950) created new offences.
Section 52 of the said Act created
offences with which accused in the
present case were charged, and provided
a new machinery, namely, a
court martial, to try persons committing
the said offences. Therefore
by necessary implication the trial of
the said offences was excluded from
the jurisdiction of ordinary criminal
courts. This argument was sought
to be reinforced by the provisions of
s. 69 of the Army Act whereunder,
it was said, by a fiction, offences
committed by army personnel which
were triable by ordinary courts were
to be deemed to be offences committed
against the said Act. That difference
between offences against the
Army Act and the offences deemed to
be committed against the Army Act,
the argument proceeded, was an unfailing
clue for the true construction
of the pro- visions of the Army Act in
that the offences under the first category
were exclusively triable by court
martial and the offences; of the latter
category were subject to concurrent
jurisdiction of two courts. The logical
conclusion from this premises, it
was said, was that the provisions designed
to resolve conflict of jurisdiction
related only to the second category
of offences. Assuming that the
said contention was wrong, it was argued,
s. 126 of the Army Act is
peremptory in its language, namely,
that a criminal court shall not have
jurisdiction to try an offence 27 de-
fined under the Army Act, unless
the conditions laid down therein were
strictly complied with, that is, unless
requisite notice is given to the officer
referred to in s. 125 of the Act.
To appreciate the said argument
it is necessary to scrutinize the provisions
of the Army Act in some detail.
Section 2 describes the different categories
of army personnel who are subject
to the Army Act. Section 3(ii)
defines “civil offence” to mean “an
offence which is triable by a criminal
court”; a. 3(vii) defines “court martial”
to mean “a court martial held
under this Act”; s. 3(viii) defines
“criminal court” to mean “a court
of ordinary criminal justice in any
part of India, other than the State of
Jammu and Kashmir”; s. 3(xvii) defines
“offence” to mean “any act or
omission punishable under this Act
and includes a civil offence”; and s.
3(xxv) declares that “all words and
expressions used but not defined in
this Act and defined in the Indian Penal
Code shall be deemed to have the
meanings assigned to them in that
Code.” Chapter VI is comprised of
ss. 34 to 70. The heading of the
Chapter is “Offences”. As we have
already noticed, the word “offence”
is defined to mean not only any act or
omission punishable under the Army
Act, but also a civil offence. Sections
34 to 68 define the offences against
the Act triable by court martial and
also -give the punishments for the
said offences. Section 69 says that
any person subject to the Act who
at any Place in or beyond India commits
any civil offence shall be deemed
to be guilty of an offence against the

Act and, if charged therewith under
this section, shall be liable to be tried
by a court martial and, on conviction,
be punishable as provided for
the offence under any law in force in
India or such less punishment as is in
the Act mentioned. Under s. 70,
“ A person subject to this Act
who commits an offence of murder
against a person not subject to military,
naval or air force law, or of
culpable homicide not amounting to
murder against such a person or of
rape in relation to such a person,
shall not be deemed to be guilty
of an offence against this Act and
shall not be tried by a Court martial.”
There are three exceptions to
this section with which we are not
concerned now. Shortly stated, under
this Chapter there are three categories
of offences, namely, (1) offences
committed by a person subject
to the Act triable by a court martial
in respect whereof specific punishments
have been assigned; (2) civil
offences committed by the said person
at any place in or beyond India,
but deemed to be offences committed
under the Act and, if charged under
s. 69 of the Act, triable by a court
martial; and (3) offences of murder
and culpable homicide not amounting
to murder or rape committed by
a person subject to the Act against
a person not subject to the military
law. Subject to a few exceptions,
they are not triable by court martial,
but are triable only by ordinary
criminal courts. The said categorisation
of offences and tribunals necessarily
bring about a conflict of jurisdiction.
Where an offence is for
13
the first time created by the Army
Act, such as those created by ss. 34,
35, 36, 37 etc., it would be exclusively
triable by a court martial; but
where a civil offence is also an offence
under the Act or deemed to be
an offence under the Act, both an
ordinary criminal court as well as a
court martial would have jurisdiction
to try the person committing the offence.
Such a situation is visualized
and provided for by as. 125 and 126
of the Act. Under s. 125, “When
a criminal court and a court martial
have each jurisdiction in respect of
an offence, it shall be in the discretion
of the officer commanding the
army, army corps, division or independent
brigade in which the accused
person is serving or such other officer
as may be prescribed to decide before
which court the proceedings shall be
instituted, and, if that officer decides
that they should be instituted before
a court martial, to direct that the accused
person shall be detained in military
custody.”
Under a. 126(1) of the Act,
“When a criminal court having jurisdiction
is of opinion that proceedings
shall be instituted before itself
in respect of any alleged offence, it
may, by written notice, require the
officer referred to in section 125 at his
option, either to deliver over the offender
to the nearest magistrate to be
proceeded against according to law,
or to postpone proceedings pending
a reference to the Central Government.”
Clause (2) of that section says
that, “In every such case the said officer
shall either deliver over the of-

14 Major E. G. Barsay v. The State Of Bombay 1961
fender in compliance with the requisition,
or shall forthwith refer the
question as to the court before which
the proceedings are to be instituted
for the determination of the Central
Government, whose order upon such
reference shall be final.” Section 125
presupposes that in respect of an offence
both a criminal court as well
as a court martial have each concurrent
jurisdiction. Such a situation
can arise in a case of an act or omission
punishable both under the Army
Act. as well as under any law in force
in India. It may also arise in the case
of an offence deemed to be an offence
under the Act. Under the scheme of
the said two provisions, in the first
instance,, it is left to the discretion
of the officer mentioned in s. 125 to
decide before which court the proceedings
shall be instituted, and, if
the officer decides that they should
be instituted before a court martial,
the accused person is to be detained
in military custody; but if a criminal
court is of opinion that the said offence
shall be tried before itself, he
may issue the requisite notice under
s. 126 either to deliver over the offender
to the nearest magistrate or
to postpone the proceedings pending
a reference to the Central Government.
On receipt of the said requisition,
the officer may either deliver
over the offender to the said court
or refer the question of proper court
for the determination of the Central
Government whose order shall be final.
These two sections provide a
satisfactory machinery to resolve the
conflict of jurisdiction, having regard
to the exigencies of the situation.
What is more, s. 127 of the Army
Act provides for successive trials by
court martial and by criminal court
in respect of the same offence. Under
sub-s. (1) of that section, “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.”
But sub-s. (2) thereof imposes a limitation
in the matters of punishment;
for, under that sub-section, the criminal
court shall, in awarding punishment,
have regard to the punishment
the offender may already have undergone
for the said offence. The
scheme of the Act, therefore, is selfevident.
It applies to offences committed
by army personnel described
in s. 2 of the Act; it creates new
offences with specified punishments,
imposes higher punishments to preexisting
offences, and enables civil offences
by a fiction to be treated as
offences under the Act; it provides a
satisfactory machinery for resolving
the conflict of jurisdiction. Further
it enables, subject to certain conditions,
an accused to be tried successively
both by court martial and by a
criminal court. It does not expressly
bar the jurisdiction of criminal courts
in respect of acts or omissions punishable
under the Act, if they are also
punishable under any other law in
force in India; nor is it possible to infer
any prohibition by necessary implication.
Sections 125, 126 and 127
exclude any such inference, for they
in express terms provide not only for
resolving conflict of jurisdiction between
a criminal court and a court
martial in respect of a same offence,

ut also provide for successive trials
of an accused in respect of the same
offence.
Now let us apply this legal position
to the facts of the case. Under
s. 52 of the Act, any person subject
to the Act who commits theft
of any property belonging to Government
or to any military, naval or air
force mess, band or institution, or to
any person subject to military, naval
or air force law, or dishonestly misappropriates
or converts to his own
use any such property, or commits
criminal breach of trust in respect of
any such property, or does any other
thing with intent to defraud, or to
cause wrongful gain to one person
or wrongful loss to another person
shall, on conviction by court martial,
be liable to suffer imprisonment
for a term which may extend to ten
years or such less punishment as is in
the act mentioned. Section 2 (xxv)
says that all words and expressions
used but not defined in the Army Act
and defined in the Indian Penal Code
shall be deemed to have the meanings
assigned to them in that Code.
The section does not create new offences,
but prescribes higher punishments
if the said offences are tried
by a court martial. The appellant
and the other accused were charged
in the present case, among others,
for having been parties to a criminal
conspiracy to dishonestly or fraudulently
misappropriate or otherwise
convert to their own use the military
stores and also for dishonestly
or fraudulently misappropriating the
same. The said acts constitute offences
under the Indian Penal Code
15
and under the Prevention of Corruption
Act. They are also offences under
s. 52 of the Army Act. Though
the offence of conspiracy does not fall
under s. 52 of the Act, it, being a
civil offence, shall be deemed to be an
offence against the Act by the. force
of s. 69 of the Act. With the result
that the offences are triable both
by an ordinary criminal court having
jurisdiction to try the said offences
and a court martial. To such a situation
ss. 125 and 126 are clearly intended
to apply. But the designated
officer in s. 125 has not chosen to exercise
his discretion to decide before
which court the proceedings shall be
instituted. As he has not exercised
the discretion, there is no occasion
for the criminal court to invoke the
provisions of s. 126 of the Act, for
the second part of s. 126(1), which
enables the criminal court to issue a
notice to the officer designated in s.
125 of the Act to deliver over the offender
to the nearest magistrate or
to postpone the proceedings pending
a reference to the Central Government,
indicates that the said subsection
presuppose, that the designated
officer has decided that the proceedings
shall be instituted before a court
martial and directed that the accused
person shall be detained in military
custody. If no such decision was arrived
at, the Army Act could not obviously
be in the way of a criminal
court exercising its ordinary jurisdiction
in the manner provided by law.
The correct approach to the problem
may be stated thus: The appellant
and the other accused have
committed offences under the Indian
Penal Code and the Prevention of

16 Major E. G. Barsay v. The State Of Bombay 1961
Corruption Act. By reason of s. 7
of the Criminal Law (Amendment)
Act, 1952, the said offences are triable
by a special judge appointed under
that Act. The special judge so
appointed would have jurisdiction to
try the said offences unless the Army
Act expressly, or by necessary implication,
excluded the offences alleged
to have been committed by the appellant
and others from the jurisdiction
of that court. The aforesaid discussion
of the provisions of the Army
Act indicates that there is not only
no such exclusion but also that there
is clear and unambiguous indication
to the contrary.
An argument advanced by
learned counsel for the appellant in
this context may conveniently be
noticed at this stage. The second
branch of the argument of learned
counsel for the appellant under this
head is based upon s. 549 of the Code
of Criminal Procedure. Under that
section, “The Central Government
may make rules, consistent with this
Code and the Army Act............... as
to the cases in which persons subject
to military, naval or air-force law
shall be tried by a court to which
this Code applies, or by Court Martial”................
. The Central Government
made rules in exercise of the
power conferred on it under this section.
No rule was made prescribing
that the offences with which we are
now concerned shall be tried only by
a court martial. But reliance is made
on r. 3 which reads:
“Where a person subject to military,
naval or air-force law is brought
before a Magistrate and charged with
an offence for which he is liable to
be tried-by a Court Martial, such
Magistrate shall not proceed to try
such person or to inquire with a view
to his commitment for trial by the
Court of Sessions or the High Court
for any offence triable by such Court,
unless,
(a) he is of opinion, for reasons
to be recorded, that he should so proceed
without being moved thereto by
competent military, naval or air-force
authority; or (b) he is moved thereto
by such authority.” This rule obviously
cannot apply unless the Special
Judge constituted under the Criminal
Law (Amendment) Act, 1952,
is a magistrate within the meaning
of that rule. A special judge is appointed
under s. 6(1) of the Criminal
Law (Amendment) Act to try the offences
specified therein. Section 6(2),
of that Act lays down that “A person
shall not be qualified for appointment
as a special judge under this
Act unless he is, or has been, a sessions
Judge or an additional sessions
Judge or an assistant sessions Judge
under the Code of Criminal Procedure,
1898 (V of 1898).” Section 8(1)
of the said Act says,
“A Special Judge may take cognizance
of offences without the accused
being committed to him for
trial, and in trying the accused persons,
shall follow the procedure prescribed
by the Code of Criminal Procedure,
1898 (Act V of 1898), for
the trial of warrant cases by magistrates.”
Under sub-s. (3) thereof,
“Save as provided in sub-section

(1) or sub- section (2), the provisions
of the Code of Criminal Procedure,
1898, shall, so far as they are not inconsistent
with this Act, apply to the
proceedings before a Special Judge;
and for the purpose of the said provisions,
the Court of the Special Judge
shall be deemed to be a Court of session
trying cases without a jury or
without the aid of assessors and the
person conducting a prosecution before
a special judge shall be deemed
to be a public prosecutor.” Under s.
9 of the said Act,
“The High Court may exercise, so
far as they may be applicable, all the
powers conferred by Chapters XXXI
and XXXII of the Code of Criminal
Procedure, 1898 (Act V of 1898), on
a High Court as if the Court of a Special
Judge were a Court of session
trying cases without a jury within
the local limits of the jurisdiction of
the High Court.”
These provisions equate a special
judge with a sessions judge, and
the provisions of the Code of Criminal
Procedure applicable to a sessions
judge, in so far as they are
not inconsistent with the Act, are
made applicable to a special judge.
But it is said that s. 8(1) of the
Act puts him on par with a magistrate
and therefore r. (3) of the
rules framed under s. 549 which
applies to a magistrate equally applies
to a special judge. This argument
overlooks the limited purpose
for which s. 8(1) is enacted. Section
8 of the Criminal Law (Amendment)
Act makes a distinction between
the power of a special judge
to take cognizance of an offence and
17
the procedure to be followed by him
in trying the case. In trying accused
persons, he is enjoined to follow the
procedure prescribed by the Code of
Criminal Procedure for the trial of
warrant cases by magistrates. The
warrant procedure is incorporated in
the Act by reference to the Code of
Criminal Procedure. Chapter XXI of
the Code of Criminal Procedure provides
the procedure for the trial of
warrant cases; and s. 549 is not one
of the sections in that Chapter. Nor
does it empower the Central Government
to make rules modifying the
warrant procedure. That apart, can
it be said that, by reason of the procedure
to be followed by the special
judge, he would be a magistrate empowered
to try such a person within
the meaning of r. (3)? Section 8(1) of
the Criminal Law (Amendment) Act
maintains a clear distinction between
jurisdiction and the procedure. It is,
therefore, not possible to hold that a
special judge is a magistrate within
the meaning of r. (3). If so, it follows
that r. (3) has no application to
the trial of an army personnel by a
special judge.
There is a more formidable obstacle
in the way of learned counsel’s
argument. Section 7 of the Criminal
Law (Amendment) Act, 1952, reads:
“Notwithstanding anything contained
in the Code of Criminal Procedure,
1898 (Act V of 1898) or in
any other law the offences specified
in subsection (1) of section 6 shall be
triable by special Judges only.”
Doubtless the Army Act is comprehended
by the words “any other
law”. The offences with which we

18 Major E. G. Barsay v. The State Of Bombay 1961
are now concerned are certainly offences
specified in sub-s. (1) of s.
6 of the Criminal Law (Amendment)
Act. The non obstante clause in s. 7
clearly confers jurisdiction to try persons
committing the said offences on
a special judge. But it is contended
that the Army Act is a special Act
and therefore s. 7 found in the general
Act cannot take away the jurisdiction
conferred on a court martial
in respect of the said offences. That
proposition of law may have some
bearing when there is conflict of jurisdiction
arising out of a general Act
and a special Act, without any specific
exclusion of the jurisdiction in
the general Act of that conferred under
the special Act. But that principle
may not have any relevance to
a case where the general Act in express
terms confers jurisdiction on a
particular tribunal in respect of specified
offences to the exclusion of anything
contained in any other law. In
such a situation, the intention of the
Legislature is clear and unambiguous,
and no question of applying any
rule of interpretation would arise, for
the rules of interpretation are evolved
only to ascertain the intention of the
Legislature.
It is contended that s. 7 confers
an exclusive jurisdiction on a special
judge only in regard to offences specified
in sub-s. (1) of s. 6 and that
the said subsection does not comprise
offences under s. 52 of the Army
Act. There is a fallacy underlying
this argument. Certain acts committed
or omissions made by a person
constitute offences under s. 6(1) of
the Criminal Law (Amendment) Act,
1952. Under s. 7 of the said Act, the
said offences are exclusively triable
by a special judge. In the present
case the accused were charged with
having committed offences expressly
falling under B. 6 of the said Act
and, therefore, the special judge had
clearly jurisdiction to try the accused
in respect of the said offences. The
mere fact that the said acts or omissions
might also constitute an offence
under s. 52 of the Army Act would
not be of any relevance, as jurisdiction
was exclusively conferred on the
special judge notwithstanding anything
contained in any other law. If
that be so, the special judge had
exclusive jurisdiction to try offences
covered by s. 6 of the Criminal Law
(Amendment) Act, 1952.
At this stage, another argument
of learned counsel may be adverted
to. He says that some of the offences
with which the accused are charged
in the present case are not those enumerated
in s. 6 of the Criminal Law
(Amendment) Act, 1952. This objection
is clearly answered by s. 7(b) of
the said Act which says,
“When trying any case, a special
judge may also try any offence other
than an offence specified in section
6 with which the accused may, under
the Code of Criminal Procedure,
1898, be charged at the same trial.”
It is then argued that the prosecution
has failed to establish that the
Central Government accorded sanction
to prosecute the appellant under
s. 6(1) of the Prevention of Corruption
Act. Under s. 6(1)(a) of the
Prevention of Corruption Act,

“No Court shall take cognizance
of an offence punishable under section
161 or section 164 or section 165
of the Indian Penal Code, or under
subsection (2) of section 5 of this Act,
alleged to have been commuted by a
public servant, except with the previous
sanction-(a) in the case of a person
who is employed in connection
with the affairs of the Union and is
not removable from his office save by
or with the sanction of the Central
Government, of the Central Government............
It is common case that the appellant
was a public servant within the
meaning of the said sub-section and,
therefore, he cannot be prosecuted
without the sanction of the Central.
Government. The sanction given in
this case for the prosecution of the
appellant reads thus:
.
“ . . . . . . . . . . . . . . . . . . .
NOW, THEREFORE, THE
CENTRAL GOVERNMENT doth
hereby accord sanction under section
197 of the Criminal Procedure Code
(Act V of 1898) and section 6(1)(a)
of the Prevention of Corruption Act,
1947 (II of 1947) to the initiation of
proceedings to prosecute in a Court
of competent jurisdiction the said
Major E. G. Barsay and Shri H. S.
Kochhar in respect of the aforesaid
offences and other cognate offences
punishable under other provisions of
law. Sd. M. Gopala Menon, Deputy
Secretary to the Govt. of India.”
Ex facie the said order giving the
requisite sanction purports to have
been issued in the name of the Cen-
19
tral Government and is signed by the
Deputy Secretary to the Government
of India in the Ministry of Home Affairs.
P.W. 36, Dharambir, an Assistant
in the Ministry of Home Affairs,
New Delhi, has given evidence in respect
of this document. He says that
the papers relating to the present
case were submitted to the Home
Ministry by the Inspector General of
Police, Special Police Establishment,
New Delhi, for obtaining the necessary
sanction, that the papers were
put up before the Deputy Secretary
in that Ministry, that the Deputy
Secretary was competent to accord
sanction on behalf of the President,
and that he gave the said sanction
under his signature. In the crossexamination,
this witness says that
he cannot say whether the Deputy
Secretary’s signature was in his own
right or by way of authentication of
the President’s order. This uncontradicted
evidence clearly established
that the Deputy Secretary was competent
to accord sanction on behalf
of the President and that he gave the
sanction in exercise of the power conferred
on him, presumably, under the
rules framed by the President in this
behalf. The statement made by this
witness in the cross-examination is
not inconsistent with that made by
him in the examination-in-chief. The
Deputy Secretary may have power to
make some orders in his own right
and also may have power to authenticate
other orders issued in the name
of the President. But in this case,
this witness has clearly deposed that
the Deputy Secretary had power to
accord sanction in his own right and
when the order giving the sanction ex

20 Major E. G. Barsay v. The State Of Bombay 1961
facie shows that he did not authenticate
it by order of the President,
we must hold that he gave the sanction
in his own right. In this context,
an argument based upon Art.
77 of the Constitution may be noticed.
Under cl. (1) of Art. 77,
all executive actions of the Government
of India shall be expressed to
be taken in the name of the President;
and under cl. (2) thereof, orders
and other instruments made and
executed in the name of the President
shall be authenticated in such
manner as may be specified in rules
to be made by the President, and
the validity of an order or instrument
which is so authenticated shall not be
called in question on the ground that
it is not an order or instrument made
or executed by the President. Under
the General Clauses Act, the expression
“President” means the Central
Government. It is, therefore, argued
that as the order issuing the sanction
was not expressed to be made in the
name of the President, the sanction
was void. This Article and the corresponding
Article viz., Art. 166, were
subject to judicial scrutiny by this
Court. The validity of an order of
detention made by the Bombay Government
under s. 3 of the Preventive
Detention Act, 1950, was considered
in The State of Bombay v. Purushottam
Jog Naik (1). There, in the body
of the order the “satisfaction” was
shown to be that of the Government
of Bombay; at the bottom of the
order the Secretary to the Government
of Bombay, Home Department,
signed it under the words “By order
of the Governor of Bombay”. It was
contended that the order was defec-
tive as it was not expressed to be in
the name of the Governor within the
meaning of Art. 166(1) of the Constitution
and accordingly was not protected
by cl. (2) of the said Article.
Adverting to this contention, Bose,
J., speaking for the Court, said at p.
678:
“In our opinion, the Constitution
does not require a magic incantation
which can only be expressed in a set
formula of words. What we have to
see is whether the substance of the
requirements is there.”
This judgment lays down that we
must look at the substance of the
order. On a construction of the
order that was in question in that
case, having regard to the definition
of “State Government” in the General
Clauses Act and the concluding
words “By order of the Governor
of Bombay”, the Court came to
the conclusion that the order was expressed
to have been taken in the
name of the Governor. In Dattatreya
Moreshwar Pangarkar v. The
State of Bombay (2), an (1) [1952]
S.C.R. 674.(2) [1952] S.C.R. 612. order
made under the Preventive Detention
Act, 1950, was questioned on
the ground that it did not comply
with the provisions of Art. 166(1)
of the Constitution. There the order
was made in the name of the Government
and was signed by one Kharkar
for the Secretary to the Government
of Bombay, Home Department. Das,
J., as he then was, after referring
to the decision of the Federal Court
in J. K. Gas Plant Manufacturing
Co., (Rampur) Ltd. v. The King-
Emperor (1) observed at p. 625 thus:

“Strict compliance with the requirements
of article 166 gives an immunity
to the order in that it cannot
be challenged on the ground that it is
not an order made by the Governor.
If, therefore, the requirements of that
article are not complied with, the resulting
immunity cannot be claimed
by the State. This, however, does not
vitiate the order itself.”
The learned Judge came to the
above conclusion on the ground that
the provisions of the said article are
only directory and not mandatory.
This decision was followed by this
Court in P. Joseph John v. The State
of Travancore-Cochin (2). There
the “show cause notice” issued under
Art. 311 of the Constitution
was impugned on the ground that
it was contrary to the provisions of
Art. 166 thereof. The notice was
issued on behalf of the Government
and was signed by the Chief Secretary
to the Government, who had
under the rules of business framed
by the Rajpramukh the charge of
the portfolio of “service and appointments”
at the Secretariat level in
the State. This Court held that the
said notice was issued in substantial
compliance with the directory provisions
of Art. 166 of the Constitution.
The latest decision on the
point is that in Ghaio Mall & Sons
v. The State of Delhi(1). There the
question was whether the communication
issued by the Under Secretary,
Finance, Government of Delhi State,
had complied with the provisions of
Art. 166 of the Constitution. This
Court held that it did not comply
with the provisions of
21
(1) (1947) F.C.R. 141. (2) [1935]
1 S.C.R. 1011. 223
Art 166 of the Constitution and
also found that the said order was
not, as a matter of fact, made by the
Chief Commissioner. When the decision
in Dattatreya Moreshwar Pangarkar’s
case (1) was cited this Court
observed at p. 1439 thus:
“In that case there was ample evidence
on the record to prove that a
decision had in fact been taken by
the appropriate authority and the infirmity
in the form of the authentication
did not vitiate the order but only
meant that the presumption could
not be availed of by the State.”
The foregoing decisions authoritatively
settled the true interpretation
of the provisions of Art. 166 of
the Constitution. Shortly stated, the
legal position is this: Art. 166(1) is
only directory. Though an impugned
order was not issued in strict compliance
with the provisions of Art.
166(1), it can be established by evidence
aliunde that the order was
made by the appropriate authority.
If an order is issued in the name of
the Governor and is duly authenticated
in the manner prescribed in r.
(2) of the said Article, there is an irrebuttable
presumption that the order
or instrument is made or executed
by the Governor. Any noncompliance
with the provisions of the
said rule does not invalidate the order,
but it precludes the drawing of
any such irrebuttable presumption.
This does not prevent any party from
proving by other evidence that as a
matter of fact the order has been
made by the appropriate authority.

22 Major E. G. Barsay v. The State Of Bombay 1961
Article 77 which relates to conduct of
business of the Government of India
is couched in terms similar to those
in Art. 166 and the same principles
must govern the interpretation
of that provision.
If that be the legal position, in
the instant case the impugned order
does not comply with the provisions
of Art. 77(2) of the Constitution
and, therefore, it is open to
the appellant to question the validity
of the order on the ground that it
was not an order made by the President
and to prove that it was not
made by the Central Government.
But this legal position does not help
the appellant, for as we have pointed
out, the uncontroverted evidence of
P. W. 36, an Assistant in the Home
Ministry, which was accepted by the
High Court and the Special Judge,
establishes that the order was made
by the Deputy Secretary on behalf of
the Central Government in exercise
of the power conferred on him under
the rules delegating such power
to him.
The next contention challenges
the legal competence of Jog, an Inspector
of Police in the Delhi Special
Police Establishment, to make
the investigation. In his evidence Jog
stated that the Inspector General of
Police, Special Police Establishment,
New Delhi, empowered him under s.
5A of the Prevention of Corruption
Act to investigate the offences mentioned
therein without the sanction
of any magistrate. The question is
whether he can make an investigation
in regard to the offences alleged to
have been committed by the accused
in the present case. Section 5A of the
Prevention of Corruption Act, 1950,
on which reliance is placed reads:
“Notwithstanding anything contained
in the Code of Criminal Procedure.,
1898, no police officer below
the rank-
(a) in the presidency towns of
Madras and Calcutta, of an assistant
commissioner of police,
(b)in the presidency town of
Bombay, of a superintendent of police,
and
(c) elsewhere, of a deputy superintendent
of police, shall investigate
any offence punishable under section
161, section 165 or section 165A of
the Indian Penal Code or under subsection
(2) of section 5 of this Act,
without the order of a presidency
magistrate or a magistrate of the first
class, as the case may be, or make
any arrest thereof without a warrant:
Provided that a police officer of
the Delhi Special Police Establishment,
not below the rank of an Inspector
of police, who is specially authorized
by the Inspector-General of
Police of that Establishment may, if
he has reasons to believe that, on account
of the delay involved in obtaining
the order of a magistrate of the
first class, any valuable evidence relating
to such offence is likely to be
destroyed or concealed, investigate
the offence without such order; but
in every case where he makes such investigation,
the police officer shall, as
soon as may be, send a report of the
same to a magistrate of the first class,
together with the circumstances in
which the investigation was made.”

The proviso governs the present
case. Jog, who was specially authorized
by the Inspector-General of
Police under s. 5A of the Prevention
of Corruption Act to investigate
the offences mentioned therein being
an Inspector of Police, was certainly
empowered to make an investigation
within the meaning of that
proviso. But what is contended is
that the power to investigate under
that proviso is hedged in by two conditions,
namely, that the said officer
should have reasons to believe that
on account of delay involved in obtaining
the order of a magistrate of
the first class, any valuable evidence
relating to such offence is likely to
be destroyed or concealed, and subsequently
he should have sent a report
of the same to a magistrate of
the first class together with the circumstances
in which the investigation
was made. The High Court on
a consideration of the evidence found
that the said two conditions have not
been complied with by Jog. On that
finding, the question arises whether
the trial of the accused by the Special
Judge was vitiated by the non- compliance
with the aforesaid two conditions.
This Court in H. N. Rishbud
& Inder Singh v. The State of
Delhi (1) held that s. 5(4) and proviso
to s. 3 of the Prevention of
Corruption Act, 1947, and the corresponding
s. 5A of the Prevention
of Corruption (Second Amendment)
Act, 1952 (LIX of 1952) are mandatory
and not directory and that an
investigation conducted in violation
thereof is illegal. In the same decision
this Court also pointed out that
the illegality committed in the course
23
of investigation did not affect the
competence and jurisdiction of the
court for trial and where cognizance
of the case had in fact been taken
and the case had proceeded to termination
the validity of the preceding
investigation did not vitiate the
result unless miscarriage of justice
of been caused thereby. The question
is whether in the present case
the investigation made by the Inspector
duly authorized by the Inspector-
General of Police to investigate under
s. 5A of the Prevention of Corruption
Act, without complying with the
two conditions laid down in the proviso
to that section, had caused any
prejudice to the accused. The High
Court, after considering the entire
evidence, found that the alleged irregularity
would not justify the conclusion
that the non- observance of
the conditions prescribed in the proviso
to s. 5A of the Prevention of
Corruption Act had occasioned any
failure of justice. Learned counsel
has taken us through different steps
in the investigation made by the said
officer, and we have no reason to differ
from the conclusion arrived at by
the High Court.
The validity of the investigation
made by Jog was questioned yet on
another ground. It was said that he
had not obtained the requisite permission
of the State Government under
s. 6 of the Delhi Special Police
Establishment Act, 1946, before
he started the investigation. Section
5 of that Act authorizes the Central
Government to extend to any
area the powers and jurisdiction of
members of the Delhi Special Police

24 Major E. G. Barsay v. The State Of Bombay 1961
Establishment for the investigation
of any offences or classes of offences
specified in a notification under s. 3
thereof. But s. 6 of that Act says
that nothing contained in s. 5 shall
be deemed to enable any member of
the Delhi Special Police Establishment
to exercise powers and jurisdiction
in any area in a State, not being
a Union Territory or railways area,
without the consent of the Government
of that State. The Government
of Bombay, Home Department, addressed
a letter to the Government
of India, dated August 13,1949 and
it was stated therein, “.....I am directed
to state that this Government
re-affirms, with reference to section 6
of the Delhi Special Police Establishment
Act, 1946, the consent given for
an indefinite period under its letter
No. 5042/4-D, dated the 6th November
1946, to the members of the Delhi
Special Police Establishment exercising
powers and jurisdiction in the
area of the not province of Bombay.”
It was contended before the High
Court and it was repeated before us
that the consent should have been
given to every individual member of
the Special Police Establishment and
that a general consent would not be
a good consent. We do not see any
force in this argument. Under a. 6
of the Delhi Special Police Establishment
Act, no member of the said Establishment
can exercise powers and
jurisdiction in any area in a State
without the consent of the Government
of that State. That section
does not lay down that every member
of the said Establishment should
be specifically authorized to exercise
jurisdiction in that area, though the
State Government can do so. When
a State Government can authorize a
single officer to exercise the said jurisdiction,
we do not see any legal
objection why it could not authorize
the entire force operating in that area
belonging to that Establishment to
make such investigation. The authorization
filed in this case sufficiently
complies with the provisions of s. 6
of the Delhi Special Police Establishment
Act, 1946, and there are no
merits in this contention.
The next contention centres
round the framing of charges. The
charges framed in this case have been
fully extracted in the earlier part of
the judgment. The first objection is
that the Special Judge had no jurisdiction
to try the accused on charges
involving offences other than those
mentioned in s. 6(1) of the Criminal
Law (Amendment) Act, 1952.
This argument ignores s. 7(2)(b)
of the Act which says, “When trying
any case, a special judge may
also try any offence other than an
offence specified in section 6 with
which the accused may, under the
Code of Criminal Procedure, 1898,
be charged at the same trial.” The
objection, therefore, has no force.
The next criticism is that there
can be no legal charge of a conspiracy
between accused Nos. 1 to 3, who are
public servants, and accused Nos. 4
to 6, who are not public servants, in
respect of offences under the Prevention
of Corruption Act for the reason
that they can only be committed by
public servants. But this contention
ignores the scope of the offence of

criminal conspiracy. Section 120A of
the Indian Penal Code defines “criminal
conspiracy” and under that definition,
“When two or more persons
agree to do, or cause to be done, an illegal
act, or an act which is not illegal
by illegal means, such an agreement
is designated a criminal conspiracy.”
The gist of the offence is an agreement
to break the law. The parties
to such an agreement will be guilty
of criminal conspiracy, though the illegal
act agreed to be done has not
been done. So too, it is not an ingredient
of the offence that all the parties
should agree to do a single illegal
act. It may comprise the commission
of a number of acts. Under s. 43 of
the Indian Penal Code, an act would
be illegal if it is an offence or if it
is prohibited by law. Under the first
charge the accused are charged with
having conspired to do three categories
of illegal acts, and the mere
fact that all of them could not be convicted
separately in respect of each
of the offences has no relevancy in
considering the question whether the
offence of conspiracy has been committed.
They are all guilty of the offence
of conspiracy to do illegal acts,
though for individual offences all of
them may not be liable.
The second objection is in regard
to the second charge. It is said that
accused Nos. 4, 5 and 6 could not be
charged with having committed an
offence under s. 5(1)(c) and 5(1)(d)
of the Prevention of Corruption Act,
as they are not public servants. The
learned Judges of the High Court accepted
the said legal position as correct,
but held that they could be con-
25
victed under s. 109 of the Indian
Penal Code, read with cls. (c) and
(d) of s. 5(1) of the Prevention of
Corruption Act. But on the merits
they convicted accused No. 1 under
s. 5(2) of the Prevention of Corruption
Act, instead of under the said
section read with s. 34 of the Indian
Penal Code, and they convicted accused
No. 4 under s. 109 of the Indian
Penal Code, read with s. 5(1)(c)
and (d) of the Prevention of Corruption
Act, instead of under s. 5(2)
of the said Act, read with s. 34 of
the Indian Penal Code. As accused
No. 4 was dead before the appeal
was filed in this Court, nothing need
be said about the legality of his conviction.
The only outstanding question,
therefore, is whether the High
Court was justified in convicting accused
No. 1 under s. 5(2) of the
Prevention of Corruption Act instead
of under the said section read with
s. 34 of the Indian Penal Code. To
such a situation, s. 537 of the Criminal
Procedure Code applies and under
that section, no sentence passed
by a court of competent jurisdiction
shall be reversed or altered on appeal
or revision on account of an error,
omission or irregularity in the charge,
including any misjoinder of charges,
unless such error, omission, irregularity
or misdirection has in fact occasioned
a failure of justice. This
Court in W. Slaney v. State of M.
P. (1) held that in adjudging a question
of prejudice the concern of the
court should be to see whether the
accused had a fair trial, whether he
knew what he was being tried for,
whether the impugned facts sought
to be established against him were

26 Major E. G. Barsay v. The State Of Bombay 1961
explained to him clearly and fairly
and whether he was given a full and
fair chance to defend himself. Judged
by the said test it is manifest that accused
No. I cannot be said to have
been prejudiced by his conviction under
s. 5(2) of the Prevention of Corruption
Act, for accused No. I had
clear knowledge from the inception
that the prosecution case against him
was that he committed an offence under
s. 5(2) of the Prevention of Corruption
Act and that he had every
opportunity, and indeed he made a
sustained effort throughout the trial
to defend himself against the said accusation.
It is not possible to hold in
this case that there was any failure of
justice by reason of the High Court
convicting him for a substantive offence
under s. 5(2) of the said Act.
So far as the third head of the
charge is concerned, the High Court
held that it was bad in regard to
accused No. 1. Accused No. 1,
therefore, cannot obviously have any
grievance with that finding. For
the foregoing reasons, we hold that
there are no merits in the contentions
raised by learned counsel on the basis
of the charges framed in this case.
Now we come to the merits of the
case. So far as the appellant is concerned,
both the Special Judge and,
on appeal the High Court accepted
the evidence of Lawrence, as it was
corroborated in material particulars
by other acceptable evidence. They
concurrently found that the appellant
was a party to the conspiracy.
The finding is one of fact, and the
practice of this Court is not to interfere
with such finding except under
exceptional circumstances. Learned
counsel for the appellant made a serious
and sustained attempt to have
the said finding reopened by advancing
arguments under the following
three heads: (1) The High Court
has failed to draw correct inferences
from the facts found by it and has
also drawn wrong conclusion ignoring
probabilities arising in a given
situation; (2) the High Court has ignored
the distinction between an untruthful
witness and a truthful witness,
whose evidence under the rule
of prudence could be accepted only
in so far as it is corroborated in
material particulars, and the High
Court, having disbelieved Lawrence’s
evidence in regard to important incidents
in his narration, should have
rejected his evidence in toto; and if
it had done so, the question of corroboration
would not arise for consideration;
and (3) the independent
pieces of evidence accepted by the
High Court did not corroborate the
evidence of Lawrence in material particulars
implicating him in the crime.
The first argument is a direct attack
on the correctness of the finding
of fact arrived at by the High Court.
As we have said, the practice of this
Court in an appeal under Art. 136
of the Constitution is not to allow
such an attack except in exceptional
circumstances. Learned counsel addressed
at some length on this aspect
of the case, and after hearing him, we
were satisfied that there were no such
exceptional circumstances present in
this case. Our reluctance to depart
from the usual practice is hightened
by the fact that in the present case,

so far as the appellant is concerned,
there are concurrent findings of fact
by both the courts.
The second argument is a subtle
attempt to reopen the findings of fact
from a different perspective. This argument
is based upon a decision of
this Court in Sarwan Singh v. The
State of Punjab (1). In that case,
Gajendragadkar, J., speaking for the
Court, observed at p. 959 thus:
“But it must never be forgotten
that before the Court reaches the
stage of considering the question of
corroboration and its adequacy or
otherwise, the first initial and essential
question to consider is whether
even as an accomplice the approver
is a reliable witness. If the answer to
this question is against the approver
then there is an end of the matter,
and no question as to whether his
evidence is corroborated or not falls
to be considered. In other words,
the appreciation of an approver’s evidence
has to satisfy a double test.”
Then the learned Judge proceeded
to state, “We have carefully
read the judgment delivered by the
High Court but we find no indication
in the whole of the judgment that the
learned Judges considered the character
of the approver’s evidence and
reached the conclusion that it was
the evidence given by a reliable witness.”
Later on the learned Judge further
stated, “........ the evidence of
the approver is so thoroughly discrepant
that it would be difficult to
resist the conclusion that the approver
in the present case is a wholly
unreliable witness.”
27
Relying upon these observations,
learned counsel contends that in the
present case the High Court did not
accept the evidence of the approver
in regard to important events and
therefore the High Court should have
rejected his evidence without further
attempting to see whether there was
any corroboration in material particulars
in other evidence. Before
we consider this argument in the
context of the facts of the present
case, we would like at the outset
to make some general observations.
This Court could not have intended
to lay down that the evidence of
an approver and the corroborating
pieces of evidence should be treated
in two different compartments, that
is to say, the Court shall have first to
consider the evidence of the approver
dehors the corroborated pieces of evidence
and reject it if it comes to the
conclusion that his evidence is unreliable;
but if it comes to the conclusion
that it is reliable then it will
have to consider whether that evidence
is corroborated by any other
evidence. This Court did not lay
down any such proposition. In that
case it happened that the evidence
of the approver was so thoroughly
discrepant that the Court thought
that he was a wholly unreliable witness.
But in most of the cases the
said two aspects would be so interconnected
that it would not be possible
to give a separate treatment, for
as often as not the reliability of an
approver’s evidence, though not exclusively,
would mostly depend upon
the corroborative support it derives

28 Major E. G. Barsay v. The State Of Bombay 1961
from other unimpeachable pieces of
evidence. We must also make it clear
that we are not equating the evidence
of Lawrence with that of an approver;
nor did the Special Judge or the High
Court put him exactly on that footing.
The learned Special Judge in his
judgment observed thus:
“He (Lawrence) is obviously decoy
or spy and agent provocateur
and his evidence will have, therefore,
to be approached with great caution
and much weight cannot be attached
to it unless it is corroborated by
other independent evidence and circumstances
in the case.... Not being
tainted evidence, it would not suffer
from a disability of being unworthy
of acceptance without independent
corroboration. But being interested
evidence, caution requires that
there should be corroboration from
an independent source before its acceptance.
To convict an accused on
the tainted evidence of an accomplice
is not illegal but it is imprudent; to
convict an accused upon the partisan
evidence of a person at whose instance
a trap is laid by the police is
neither illegal nor imprudent but inadvisable
therefore, be accepted and
relied upon, only if it is corroborated
by other independent evidence and
circumstances in the case.”
The learned Judges of the High
Court practically adopted the same
attitude in the manner of their approach
to the evidence of Lawrence.
The learned Judges observed: “To
convict an accused upon the partisan
evidence of a person at whose
instance a trap is laid by the police
is neither illegal nor imprudent, be-
cause it is just possible that in some
cases an accomplice may give evidence
because he may have a feeling
in his own mind that it is a condition
of his pardon to give that evidence,
but no such consideration obtains in
the case of the evidence of a person
who is not a guilty associate in crime
but who invites the police to lay a
trap. All the same, as the person who
lodges information with the police for
the purpose of laying a trap for another
is a partisan witness interested
in seeing that the trap succeeds, it
would be necessary and advisable to
look for corroboration to his evidence
before accepting it. But the degree of
corroboration in the case of a tainted
evidence of an accomplice would be
higher than that in the case of a partisan
witness. In our opinion, all
these decisions would clearly establish
that it would not be safe to rely
on the evidence of Lawrence who is
admittedly a decoy or trap witness,
without his testimony being corroborated
from independent sources.”
Even Mr. Amin, learned special
counsel on behalf of the State
asked the courts to proceed to examine
the evidence of Lawrence on
the basis that he was a decoy or trap
witness. We are definitely of opinion
that both the courts had approached
the evidence of Lawrence from a correct
standpoint. Though Lawrence
was not an approver, he was certainly
an interested witness in the
sense that he was interested to see
that the trap laid by him succeeded.
He could at least be equated with a
partisan witness and it would not be
admissible to rely upon such evidence

without corroboration. It would be
equally clear that his evidence was
not a tainted one, but it would only
make a difference in the degree of corroboration
required rather than the
necessity for it.
Approaching the case from this
perspective-in our view that is a correct
one-the learned Special Judge
came to the following conclusion:
“There was no compelling necessity
for Shri Lawrence to concoct a
false story against Major Barsay and
the other accused. It is, therefore,
clear that prima facie there is no
good ground to discard the evidence
of Shri Lawrence.”
Then the learned Special Judge
considered the corroborative pieces
of evidence and finally held that
Lawrence’s evidence had been corroborated
in material particulars in
respect of the appellant. Likewise,
the learned Judges of the High Court
considered the evidence of Lawrence
along with that of other acceptable
witnesses. Though the learned
Judges of the High Court rejected
the evidence of Lawrence in regard to
some events either because that part
of the evidence was not consistent
with the other parts of his evidence
or with the evidence of some disinterested
witnesses, they did not see
any reason to reject the story given
by Lawrence as a myth or a concoction.
After considering the evidence,
the learned Judges concluded,
“We, therefore, accept
Lawrence’s evidence, find that his
story is probable and true and we
also find that the evidence on the
29
record justifies the finding of the trial
Court that there was a conspiracy as
alleged by the prosecution to smuggle
goods out of the Dehu Vehicles
Depot.”
Having accepted broadly the version
given by Lawrence, the High
Court took the case of each of the
accused and held that in the case
of accused Nos. 1 to 4 Lawrence’s
evidence had been amply corroborated
by other evidence in all material
particulars. In these circumstances,
we cannot accept the contention
of learned counsel for the appellant
that the High Court had rejected
the evidence of Lawrence. As
we have said, the High Court did
not accept some parts of the evidence
of Lawrence, but it had broadly accepted
the version given by Lawrence
in regard to the conspiracy and the
manner in which the articles were
smuggled out of the Depot. If some
of the accused were acquitted it was
because there were some discrepancies
in the evidence of Lawrence in
respect of them and particularly because
that part of his evidence was
not corroborated in material particulars
by other evidence. But in
the case of the appellant the High
Court accepted the evidence given
by Lawrence and convicted the appellant
because that version was corroborated
in all material particulars
by the evidence of other disinterested
witnesses. We, therefore, reject this
contention.
This leads us to the consideration
of the only remaining question,
namely, whether Lawrence’s evidence
is corroborated in material

30 Major E. G. Barsay v. The State Of Bombay 1961
particulars implicating the appellant
by other acceptable evidence. The
corroboration must be by independent
testimony confirming in some
material particulars not only that the
crime was committed but also that
the appellant committed it. It is not
necessary to have corroboration of all
the circumstances of the case or every
detail of the crime. It would be sufficient
if there was corroboration as
to the material circumstances of the
crime and of the identity of the accused
in relation to the crime. These
principles have been settled in R.
v. Baskerville, (1) which has rightly
been considered as the locus classicus
of the law of approver’s evidence and
has been followed by courts in India.
Looking from that aspect, both
the courts have found corroboration
from disinterested witnesses in material
particulars implicating the appellant
in the crime. Lawrence gave
a detailed account of the unfurling of
the scheme of fraud from the date he
met Major Barsay on December 2,
1954, up to December 20, 1954, when
the offending truck was obstructed
by the police from proceeding further
on its onward journey.
Lawrence stated in his evidence
that on December 3, 1954, Major
Barsay told him, inter alia, that he
had chalked out a detailed scheme in
consultation with Kochhar to transfer
all the valuable parts lying in
Shed No. 48 to Shed No. 17 for
the purpose of itemization, that he
had ’already recalled Kochhar from
leave of absence prior to its expiry
and posted him in the Kit Stores,
and that he had also posted Avatar
Singh from Unit Sub Park to the
Kit Stores. The prosecution has established
by clear evidence that Major
Barsay was instrumental in posting
Kochhar, accused No. 2, to the
Kit Stores after asking him to cut
short his leave which was for, a period
of two months. It was also
established by evidence that Major
Barsay brought Avatar Singh to the
Kit Stores. Though these facts might
not have implicated Kochhar and
Avatar Singh, they certainly corroborate
the evidence of Lawrence that
Major Barsay told him that these
transfers were made to facilitate the
implementation of the scheme.
Lawrence stated in his evidence
that Major Barsay told him on December
3, 1954, that he had chalked
out a detailed scheme in consultation
with Kochhar to transfer all the
valuable parts lying in Shed No. 48
to Shed No. 17 for the purpose
of itemization, and that as soon as
the Board of Officers was appointed
there would be a shuttle of trucks
moving from Shed No. 48 to Shed
No. 17 and vice versa and nobody’s
suspicion would be roused if one or
two trucks were taken away out of
the main gate during the course of
these movements of the trucks between
these two sheds. There is evidence
to show that a Board of Officers
was appointed to do the work
of itemization and that one Captain
Mehendiratta was appointed the
President of that Board. Lawrence
said that Major Barsay told him that
he would show certain boxes from
Shed No. 48 to Col. Rao and tell
him that they did not contain many

of the articles which they were said to
contain, so that Col. Rao also would
not be surprised at the final result of
the itemization. It has been established
by other evidence that on December
8, 1954, Major Barsay went
to Col. Rao and took him to Shed
No. 48 and showed him the military
stores that were lying there awaiting
itemization.
At about midday on December
18, 1954, Lawrence stated, Major
Barsay met him at the Depot and
told him that he and other conspirators
would meet at his residence
to discuss about the scheme. It is
in evidence that on the 18th the
meeting was held as deposed to by
Lawrence. Evidence of Col. Sindhi
and Capt. Sharma, which was accepted
by both the courts, establishes
this fact. The same evidence
also establishes that at that meeting
Major Barsay, Saighal, Lawrence and
two Sikhs were present, and though
the two Sikhs were not identified to
be accused Nos. 2 and 3, the presence
of accused Nos. 1 and 4 and
two Sikhs corroborates the evidence
of Lawrence.
Lawrence stated that at that
meeting Major Barsay undertook to
do certain things. According to
Lawrence Major Barsay told the conspirators
that he would detail a
driver of his confidence in a vehicle
for executing the plan, that he would
send Kochhar to Shed No. 17, order
Kochhar to transfer the itemized
goods from Shed No. 17 to Shed
No. 26 ostensibly for the purpose
of preservation, that he would call
Major Nag on Monday (December
31
20) and in his presence he would order
Lawrence to go to the D.O.D. to
bring the fire hoses. The evidence
of Havaldar Pillay, Godse, Suryawanshi
and G. K. Pillay establishes the
fact that Barsay secured one truck
and a driver for shifting of the stores
from Shed No. 17 to Shed No. 26.
The evidence of Jamadar Lachmansing
proves that Major Barsay went
to Shed No. 17 and ordered the
shifting of stores from there to Shed
No. 26 for conditioning and preservation.
The evidence of Major Nag establishes
that in his presence Major
Barsay sent for Lawrence and asked
the latter to go to the D.O.D. and
expedite the return of the fire hoses.
These established facts certainly corroborate
the evidence of Lawrence as
to what took place on the 18th and
also his evidence that Major Barsay
gave the said instructions to him in
the presence of Major Nag.
The evidence of Lawrence that
Major Barsay told him and the other
conspirators that there should be two
loadings of the trucks at Shed No. 17,
the first loading to carry innocuous
articles and the second the articles
intended to be smuggled out of the
Depot, was also corroborated by disinterested
evidence. Both the courts
accepted that evidence.
Then there is evidence of the
movements of Major Barsay during
the crucial time when the smuggling
out of the goods was scheduled to
take place. The evidence of Jogendrasingh,
Rambhan and Wagh shows
that at about 1-10 p.m. on December
20, 1954, Major Barsay was rather
worried and was moving to and

32 Major E. G. Barsay v. The State Of Bombay 1961
fro near the main gate because he
was suspecting that somebody was
watching their movements. Jamadar
Jogendrasingh deposed that Major
Barsay asked him to tell Lawrence,
“not to do it as there was something
suspicious about it.” Major Nag
also supported this version. These
nervous movements of Major Barsay
certainly corroborate the evidence of
Lawrence that he was the moving
spirit in the conspiracy.
The evidence of Lawrence that
the duty of going along with the
truck was allotted to his part in the
conspiracy is corroborated by the circumstances
establisbed by the evidence
that Lawrence got into the
truck near Shed No. 17 and went in
the truck to its destination.
The evidence of Lawrence regarding
how Major Barsay directed the
smuggling of the goods out of the
Depot was corroborated by other independent
evidence. There is evidence
of Jog and Diwate to show
that on December 19, in the morning,
Saighal showed the spot where
the transshipment was to take place
to Lawrence. There is the evidence
of Darekar to show that a truck was
arranged and that he was asked by
Yakubsaheb to take his truck to Talegaon
for the transport of iron goods.
There is also the evidence of Darekar
and Hatnolkar to establish that accused
No. 4 was waiting near the
cemetry on the Talegaon-Dabhade
Road and that Darekar was also instructed
by Saighal to park the lorry
in a particular way. Then there is the
evidence of the police officers that the
goods brought in the military lorry
were being transported into the civilian
truck when they came on the
scene. All this evidence supports
the version of Lawrence when he said
that Major Barsay gave the necessary
instructions as to the manner of
transport of the military goods to the
civilian truck.
The said facts found by both the
courts below implicate accused No.
1 in the matter of the preparation,
laying down of the details of implementation
and the actual carrying
out of the scheme of smuggling the
goods out of the Depot through all
the stages and thereby establish that
the appellant was the main conspirator
and the brain behind the conspiracy.
We cannot, therefore, say that
the version given by Lawrence implicating
accused No. 1 is not corroborated
by other independent evidence.
It follows that the conviction of the
appellant by the High Court is correct.
This leads us to the appeal
filed by the State against the judgment
of the High Court acquitting
accused Nos. 2 and 3 on the ground
that the evidence of Lawrence implicating
them in the offence was not
corroborated in material particulars
by independent evidence. In this appeal
also we have not allowed learned
counsel for the State to canvass the
correctness of the finding arrived at
by the High Court on the appreciation
of the evidence in the case. Taking
the findings arrived at by the
High Court, we find it difficult to
take a different view from that taken
by the High Court. In regard to
accused No. 2 the High Court arrived
at the following findings: (1)

There is no evidence or allegation on
the record to show that there was
any understanding between him and
Major Barsay before he left on two
months leave. (2) There is no evidence
that Kochhar, accused No. 2,
met Lawrence on December 6, 1954.
(3) Accused No. 2 moved Major
Barsay by his letter (Ex. 151) to convene
the itemization board. (4) Prior
to the appointment of the board and
its constitution, accused No. 2 ordered
the shifting of the “specialist
boxed kits” from Shed No. 48 to
Shed No. 17, but this was done under
Major Barsay’s instructions. (5)
Accused No. 2 was present when Fernandez
was ordered by Major Barsay
to complete the identification of the
first set before December 13, even by
working on Sunday the 12th December,
and in that connection a written
order was issued by him on December
11. (6) On December 12
Lawrence persuaded accused No. 2
to go in for two insurance policies.
(7) Though according to Lawrence,
Kochhar undertook to prepare a bogus
voucher and to be at the Depot
at the opening hours on Monday the
20th to prepare that voucher in the
office of Lawrence, it is admitted that
Kochhar refused to issue the voucher.
(8) Accused No. 2 was present at
Shed No. 17 when Major Barsay issued
orders to shift the stores to Shed
No. 26. And (9) Accused No. 2
accompanied Major Barsay to Shed
No. 19 in the morning and lie was
present when the truck was being
loaded for the second trip at Shed
No. 17. The High Court found that
the said circumstances, though some
of them might raise a suspicion, did
33
not implicate accused No. 2 in the
offence and they are consistent also
with his innocence. Though some of
the facts give rise to a suspicion, we
cannot say that the High Court was
wrong in holding that the said facts
did not corroborate the evidence of
Lawrence in implicating the said accused
in the offence.
Now coming to accused No. 3,
the High Court found the following
facts based on the evidence other
than that of Lawrence: (1) Avatarsing,
accused No. 3, was transferred
from Unit Sub Park to Kit Stores.
(2) Accused No. 3 was a party to
the shifting of stores from Shed No.
48 to Shed No. 17 even before the
appointment of the board of itemization.
(3) Though Lawrence stated
that Avatarsing expressed his inability
to push the scheme on account
of Capt. Kapoor’s constant vigilance
and visits to Shed No. 17, Lawrence
had admitted that his first contact
with Avatarsing was in the noon of
18th December. (4) There is no
evidence that Avatarsing attended
the meeting at Major Barsay’s on
the 18th. (5) Avatarsing loaded the
truck for the first trip and also for
the second trip, and in loading the
second trip he used the usual laborers
and two outside workers. (6) After
the truck was loaded, he asked
Rambhan to take the truck to D. 0.
D. under instructions from the superior
officers. (7) The words “D. O.
D.” in Ex. 42, the duty slip, were
not entered by Avatarsing. The High
Court held that the said facts found
on independent evidence did not implicate
the said accused in the offence

34 Major E. G. Barsay v. The State Of Bombay 1961
and they were all consistent with his
innocence. Though some of the findings
give rise to suspicion we cannot
say that the High Court was wrong
in holding that the said facts found
did not corroborate the evidence of
Lawrence in implicating the accused
in the offence. We, therefore, accept
the finding of the High Court in regard
to accused Nos. 2 and 3. In the
result both the appeals fail and are
dismissed. Appeals dismissed.

Chapter 2
Ram Sarup v. The Union Of
India 1963
Ram Sarup v. The Union Of India
And Another on 12 December,
1963 Equivalent citations: 1965 AIR
247, 1964 SCR (5) 931 Bench: Dayal,
Raghubar
PETITIONER:
RAM SARUP
v.
RESPONDENT:
THE UNION OF INDIA AND
ANOTHER
DATE OF JUDGMENT:
12/12/1963
BENCH:
DAYAL, RAGHUBAR
BENCH:
DAYAL, RAGHUBAR
SINHA, BHUVNESHWAR
P.(CJ)
WANCHOO, K.N.
AYYANGAR, N. RAJAGOPALA
MUDHOLKAR, J.R.
CITATION:
1965 AIR 247 1964 SCR (5) 931
CITATOR INFO :
R 1971 SC 500 (19)
R 1971 SC1120 (17)
R 1979 SC1588 (14)
R 1982 SC1413 (15,17)
RF 1983 SC 658 (7)
ACT:
Army Act (XLVI of 1950), ss.
125, 126 and 164-Scope of- Constitution
of India, 1950, Art. 33-Effect on
fundamental rights-s. 125 of Army
Act if violative of Art. 14 of the Constitution.
HEADNOTE:
The General Court Martial sentenced
the petitioner, a sepoy, to
death under s. 69 of the Army Act
read with s. 302 of the Indian Penal
Code for shooting dead two sepoys
and a Havildar. The Central
Government confirmed the sentence.
The petitioner filed writs of habeas
corpus and certiorari for setting aside
the orders of the Court Martial and

36 Ram Sarup v. The Union Of India 1963
the Central Government and for his
release.
Held:
(i) The petitioner made no request
for being represented at the
court martial by a counsel of his
choice; consequently no such request
was refused, and that there has been
no violation of the fundamental right
of the petitioner to be defended by a
counsel of his choice.
(ii) There has been no noncompliances
of the provisions of S.
132(2) of the Act. In view of the
provisions of rr. 45, 46, 61(2) and
62 of the Army Rules, 1954, the petitioner’s
statement, that the death
sentence was voted by an inadequate
majority of the members of the Court
which can be considered to be a mere
allegation, cannot be based on any
definite knowledge as to how the voting
went at the consideration of the
finding in pursuance of r. 61. (iii)
Section 164 does not lay down that
the correctness of the order or sentence
of the Court Martial is always
to be decided by two higher authorities;
it only provides for two remedies.
The further petition can only
be made to the authority superior
to the authority which confirms the
order of the Court Martial, and if
there be no authority superior to the
confirming authority, the question of
remedy against its order does not
arise.
(iv) Each and every provision of
the Army Act is a law made by Parliament
and that if any such provision
tends to affect the fundamental
rights under Part III of the Consti-
tution, that provision does not, on
that account, become void, as it must
be taken that Parliament has in exercise
of its power under Art. 33 of
the Constitution made the requisite
modification to affect the respective
fundamental right. (v) The provisions
of s. 125 of the Act are not discriminatory
and do not infringe the
provisions of Art. 14 of the Constitution.
(vi) The discretion to be exercised
by the Military Officer specified
in s. 125 of the Act as to the
trial of accused by Court Martial or
by an ordinary court, cannot be said
to be unguided by any other policy
laid down in the Act or uncontrolled
by any authority. There could be a
variety of circumstances which may
influence the decision as to whether
the offender be tried by a Court Martial
or by ordinary criminal court and
therefore becomes inevitable that the
discretion to make the choice as to
which court should try the accused
be left to responsible Military officers
under whom the accused is serving.
Those officers are to be guided
by considerations of the exigencies of
the service, maintenance of discipline
in the army, speedier trial, the nature
of the offence and the person against
whom the offence is committed. This
discretion is subject to the control of
the Central Government.
(vii) According to s. 549 of
the Code of Criminal Procedure and
the rules thereunder, the final choice
about the forum of the trial of a person
accused of a civil offence rests
with the Central Government, whenever
there be difference of opinion be-

tween a Criminal Court and Military
authorities about the forum. The position
under ss. 125 and 126 of the
Army Act is also the same.
JUDGMENT:
ORIGINAL JURISDICTION:
Petition No. 166 of 1963. Under Article
32 of the Constitution of India
for the enforcement of fundamental
rights.
O.P. Rana, for the petitioner.
C.K. Daphtary, B.R.L. lyengar
and R.H. Dhebar for the respondents.
December 12, 1963. The Judgment
of the Court was delivered by
RAGHUBAR DAYAL J.-
Ram Sarup, petitioner, was a sepoy
in 131 Platoon DSC, attached
to the Ordnance Depot, Shakurbasti.
As a sepoy, he is subject to the Army
Act, 1950 (XLVI of 1950), hereinafter
called the Act.
On June 13, 1962 he shot dead
two sepoys, Sheotaj Singh and Ad
Ram and one Havildar Pala Ram. He
was charged on three counts under
S. 69 of the Act read with s. 302
I.P.C. and was tried by the General
Court Martial. On January 12, 1963
the General Court Martial found him
guilty of the three charges and sentenced
him to death.
The Central Government confirmed
the findings and sentence
awarded by the General Court Martial
to the petitioner. Thereafter,
the petitioner has filed this writ petition
praying for the issue of a writ
in the nature of a writ of habeas
corpus and a writ of certiorari set-
37
ting aside the order dated January
12, 1963 of the General Court Martial
and the order of the Central Government
confirming the said findings
and sentence and for his release from
the Central Jail, Tehar, New Delhi,
where he is detained pending execution
of the sentence awarded to him.
The contentions raised for the petitioner
are: (1) That the provisions
of s. 125 of the Act are discriminatory
and contravene the provisions of
Art. 14 of the Constitution inasmuch
as it is left to the unguided discretion
of the officer mentioned in that section
to decide whether the accused
person would be tried by a Court
Martial or by a Criminal Court. (2)
Section 127 of the Act which provides
for successive trials by a Criminal
Court and a Court Martial, violates
the provisions of Art. 20 of the Constitution
as it provides for the prosecution
and punishment of a person
for the same offence more than once.
(3) The petitioner was not allowed
to be defended at the General Court
Martial by a legal practitioner of his
choice and therefore there had been
a violation of the provisions of Art.
22(1) of the Constitution. (4) The
procedure laid down for the trial of
offences by the General Court Martial
had not been followed inasmuch
as the death sentence awarded to
the petitioner was not passed with
the concurrence of at least two-thirds
of the members of the Court. (5)
Section 164 of the Act provides two
remedies, one after the other, to a
person aggrieved by any order passed
by a Court Martial. Sub-s. (1) allows
him to present a petition to the offi-

38 Ram Sarup v. The Union Of India 1963
cer or authority empowered to confirm
any finding or sentence of the
Court Martial and sub-s. (2) allows
him to present a petition to the Central
Government or to any other authority
mentioned in that sub-section
and empowers the Central Government
or the other authority to pass
such order on the petition as it thinks
fit. The petitioner could avail of only
one remedy as the finding and sentence
of the Court Martial was confirmed
by the Central Government.
He, therefore, could not go to any
other authority against the order of
the Central Government by which he
was aggrieved. It will be convenient
to deal with the first point at the end
and take up the other points here.
The petitioner has not been subjected
to a second trial for the offence
of which he has been convicted by the
General Court Martial. We therefore
do not consider it necessary to decide
the question of the validity of s. 127
of the Act in this case.
With regard to the third point,
it is alleged that the petitioner had
expressed his desire, on many occasions,
for permission to engage a
practising civil lawyer to represent
him at the trial but the authorities
turned down those requests and told
him that it was not permissible under
the Military rules to allow the services
of a civilian lawyer and that, he
would have to defend his case with
the counsel he would be provided
by the Military Authorities. In reply,,
it is stated that this allegation
about the petitioner’s requests and
their being turned down was not correct,
that it was not made in the peti-
tion but was made in the reply after
the State had filed its counter affidavits
in which it was stated that no
such request for his representation by
a legal practitioner had been made
and that there had been no denial
of his fundamental rights. We are
of opinion that the petitioner made
no request for his being represented
at the Court Martial by a counsel
of his choice, that consequently no
such request was refused and that
he cannot be said to have been denied
his fundamental right of being
defended by a counsel of his choice.
In paragraph 9 of his petition he did
not state that he had made a request
for his being represented by
a counsel of his choice. He simply
stated that certain of his relatives
who sought interview with him
subsequent to his arrest were refused
permission to see him and that this
procedure which resulted in denial of
opportunity to him to defend himself
properly by engaging a competent
civilian lawyer through the resources
and help of his relatives had
infringed his fundamental right under
Art. 22 of the Constitution.
If the petitioner had made any express
request for being defended by a
counsel of his choice, he should have
stated so straight-forwardly in para 9
of his petition. His involved language
could only mean that he could not
contact his relations for their arranging
a civilian lawyer for his defence.
This negatives any suggestion of a request
to the Military Authorities for
permission to allow him representation
by a practising lawyer and its
refusal.

We therefore hold that there had
been no violation of the fundamental
right of the petitioner to be defended
by a counsel of his choice, conferred
under Art. 22(1) of the Constitution.
Further, we do not consider it
necessary to deal with the questions,
raised at the hearing, about the validity
of r. 96 of the Army Rules,
1954, hereinafter called the rules, and
about the power of Parliament to delegate
its powers under Art. 33 of the
Constitution to any other authority.
The next point urged for the petitioner
is the sentence of death passed
by the Court Martial was against
the provisions of’ s. 132(2) of the
Act inasmuch as the death sentence
was voted by an inadequate majority.
The certificate, signed by the
presiding officer of the Court Martial
and by the Judge Advocate, and produced
as annexure ’A’ to the respondent’s
counter to the petition, reads:
“Certified that the sentence of
death is passed with the concurrence
of at least Two-third of the members
of the Court as provided by AA Section
132(2).”
It is alleged by the petitioner that
this certificate is not genuine but was
prepared after his filing the writ petition.
We see no reason to accept the
petitioner’s allegations. He could not
have known about the voting of the
members of the General Court Martial.
Rule 45 gives the Form of Oath
or of Affirmation which, is administered
to every member of a Court
Martial. It enjoins upon him that
he will not on any account at any
time whatsoever disclose or discover
the vote or opinion of any particu-
39
lar member of the Court Martial unless
required to give evidence thereof
by a Court of Justice or Court Martial
in due course of law. Similar is
the provision in the Form of Oath or
of Affirmation which is administered
to the Judge Advocate, in pursuance
of r. 46. Rule 61 provides that the
Court shall deliberate on its finding
in closed Court in the presence of the
Judge Advocate. It is therefore clear
that only the members of the Court
and the Judge Advocate can know
how the members of the Court Martial
gave their votes. The votes are
not tendered in writing. No record
is made of them. Sub-rule (2) of r.
61 provides that the opinion of each
member of the Court as to the finding
shall be given by word of mouth
on each charge separately. Rule 62
provides that the finding on every
charge upon which the accused is arraigned
shall be recorded and, except
as provided in the rules, shall
be recorded simply as a finding off
’guilty’ or of ’not guilty’. In view
of these provisions, the petitioner’s
statement, which can be considered
to be a mere allegation, cannot be
based on any definite knowledge as
to how the voting went at the consideration
of the finding in pursuance of
r. 61.
Further, there is no reason to
doubt what is stated in the certificate
which, according to the counteraffidavit,
is not recorded in pursuance
of any provision governing
the proceedings of the Court Martial,
and does not form Dart of any
such proceedings. It is recorded
for the satisfaction of the confirm-

40 Ram Sarup v. The Union Of India 1963
ing authority. The certificate is
dated January 12, 1963, the date
on which the petitioner was convicted.
The affidavit filed by Col.
N.S. Bains, Deputy Judge Advocate
General, Army Headquarters, New
Delhi, contains a denial of the petitioner’s
allegation that the certificate
is a false and concocted document
and has been made by the authorities
after the filing of the writ
Petition. We see no reason to give
preference to the allegations of the
petitioner over the statement made
by Col. Bains in his affidavit, which
finds support from the contents of
Exhibit A signed by the presiding
officer of the Court.Martial and the
Judg-Advocate who could possibly
have no reason for issuing a false certificates
We therefore hold that there
had been no noncompliance of the
provisions of s. 132(2) of the Act.
Next we come to the fifth point.
It is true that s. 164 of the Act gives
two remedies to the person aggrieved
by an order, finding or sentence of a
Court Martial, they being a petition
to the authority which is empowered
to confirm such order, finding or sentence
and the petition to the Central
Government or some other officer
mentioned in sub-s. (2), after the
order or sentence is confirmed by the
former authority. The final authority
to which the person aggrieved by
the order of the Court Martial can
go is the authority mentioned in subs.
(2) of s. 164 and if this authority
happens to be the confirming authority,
it is obvious that there could not
be any further petition from the aggrieved
party to any other higher au-
thority against the order of confirmation.
The further petition can only
be to the authority superior to the
authority which confirms the order of
the Court Martial and if there be no
authority superior to the confirming
authority, the question of a remedy
against its order does not arise. Section
164, does not lay down that the
correctness of the order or sentence
of the Court Martial is always to be
decided by two higher authorities. It
only provides for two remedies. Section
153 of the Act provides inter alia
that no finding or sentence of a General
Court Martial shall be valid except
so far as it may be confirmed
as provided by the Act and s. 154
provides that the findings and sentence
of a General Court Martial may
be confirmed by the Central Government
or by any officer empowered in
that behalf by warrant of the Central
Government. It appears that the
Central Government itself exercised
the power of confirmation of the sentence
awarded to the petitioner in the
instant case by the , General Court
Martial. The Central Government is
the highest authority mentioned in
sub-s. (2) of s. 164. There could
therefore be no occasion for a further
appeal to any other body and therefore
no justifiable grievance can be
made of the fact that the petitioner
had no occasion to go to any other
authority with a second petition as
he could possibly have done in case
the order of confirmation was by any
authority subordinate to the Central
Government. The Act itself provides
that the Central Government is to
confirm the findings and sentences of
General Courts Martial and therefore

could not have contemplated, by the
provisions of s. 164, that the Central
Government could not exercise this
power but should always have this
power exercised by any other officer
which it may empower in that behalf
by warrant.
We therefore do not consider this
contention to have any force.
Lastly, Mr. Rana, learned counsel
for the petitioner, urged in support
of the first that in the exercise
of the power conferred on Parliament
under Art. 33 of the Constitution to
modify the fundamental rights guaranteed
by Part 111, in their application
to the armed forces, it enacted
s. 21 of the Act which empowers
the Central Government, by notification,
to make rules restricting to such
extent and in such manner as may
be necessary, the right of any person
with respect to certain matters, that
these matters do not cover the fundamental
rights under Arts. 14, 20 and
22 of the Constitution, and that this
indicated the intention of Parliament
not to modify any other fundamental
right. The learned Attorney-General
has urged that the entire Act has
been enacted by Parliament and if
any of the provisions of the Act is not
consistent with the provisions of any
of the articles in Part III of the Constitution,
it must be taken that to
the extent of the inconsistency Parliament
had modified the fundamental
rights under those articles in their
application to the person subject to
that Act. Any such provision in the
Act is as much law as the entire Act.
We agree that each and every provision
of the Act is a law made by Par-
41
liament and that if any such provision
tends to affect the fundamental
rights under Part III of the Constitution,
that provision does not, on that
account, become void, as it must be
taken that Parliament has thereby, in
the exercise of its power under Art.
33 of the Constitution, made the requisite
modification to affect the respective
fundamental right. We are
however of opinion that the provisions
of s. 125 of the Act are not discriminatory
and do not infringe the
provisions of Art. 14 of the Constitution.
It is not disputed that the persons
to whom the provisions of s. 125
apply do form a distinct class. They
apply to all those persons who are
subject to the Act and such persons
are specified in s. 2 of the Act. The
contention for the petitioner is that
such persons are subject to be tried
for civil offences i.e., offences which
are triable by a Criminal Court according
to s. 3 (ii) of the Act, both
by the Courts Martial and the ordinary
Criminal Courts, that s. 125
of the Act gives a discretion to certain
officers specified in the section
to decide whether any particular accused
be tried by a Court Martial or
by a Criminal Court, that there is
nothing in the Act to guide such officers
in the exercise of their discretion
and that therefore discrimination between
different persons guilty of the
same offence is likely to take place
inasmuch as a particular officer may
decide to have one accused tried by
a Court Martial and another person,
accused of the same offence, tried by
a Criminal Court, the procedures in
such trials being different.

42 Ram Sarup v. The Union Of India 1963
We have been taken through the
various provisions of the Act and the
rules with respect to the trial of offences
by a Court Martial. The procedure
to be followed by a Court
Martial is quite elaborate and generally
follows the pattern of the procedure
under the Code of Criminal
Procedure. There are, however, material
differences too. All the members
of the Court Martial are Military
Officers who are not expected
to be trained Judges, as the presiding
officers of Criminal Courts are.
No judgment is recorded. No appeal
is provided against the order of
the Court Martial. The authorities
to whom the convicted person can
represent against his conviction by a
Court Martial are also non- 941
judicial authorities. In the circumstances,
a trial by an ordinary
Criminal Court would be more beneficial
to the accused than one by a
Court Martial. The question then is
whether the discretion of the officers
concerned in deciding as to which
Court should try a particular accused
can be said to be an unguided discretion,
as contended for the appellant.
Section 125 itself does not contain
anything which can be said to
be a guide for the exercise of the discretion,
but there is sufficient material
in the Act which indicate the policy
which is to be a guide for exercising
the discretion and it is expected
that the discretion is exercised in accordance
with it. Magistrates can
question it and the Government, in
case of difference of opinion between
the views of the Magistrate and the
army authorities,. decide the matter
finally.
Section 69 provides for the punishment
which can be imposed on
a person tried for committing any
civil offence at any place in or beyond
India, if charged under s. 69
and convicted by a Court Martial.
Section 70 provides for certain persons
who cannot be tried by Court
Martial, except in certain circumstances.
Such persons are those who
commit an offence of murder, culpable
homicide not amounting to murder
or of rape, against a person not
subject to Military, Naval or Air-
Force law. They can be tried by
Court Martial of any of those three
offences if the offence is committed
while on active service or at any place
outside India or at a frontier post
specified by the Central Government
by notification in that behalf. This
much therefore is clear that persons
committing other offences over which
both the Courts Martial and ordinary
Criminal Courts have Jurisdiction
can and must be tried by Courts
Martial if the offences are committed
while the accused be on active
service or at any place outside India
or at a frontier post. This indication
of the circumstances in which
it would be better exercise of discretion
to have a trial by Court Martial,
is an index as to what considerations
should guide the decision of
the officer concerned about the trial
being by a Court Martial or by an
ordinary Court. Such considerations
can be based on grounds of maintenance
of discipline in the army, the
persons against whom the offences
are committed and the nature of the

offences. It may be considered better
for the purpose of discipline that
offences which are not of a serious
type be ordinarily tried by a Court
Martial, which is empowered under s.
69 to award a punishment provided
by the ordinary law and also such
less punishment as he mentioned in
the Act. Chapter VII mentions the
various punishments which can be
awarded by Courts Martial and s. 72
provides that subject to the provisions
of the Act a Court Martial may,
on convicting a person of any of the
offences specified in ss. 34 to 68 inclusive,
award either the particular
punishment with which the offence
is stated in the said sections to be
punishable or in lieu thereof any one
of the punishments lower in the scale
set out in s. 7 1, regard being had to
the nature and degree of the offence.
The exigencies of service can also
be a factor. Offences may be committed
when the accused be in camp
or his unit be on the march. It would
lead to great inconvenience if the accused
and witnesses of the incident,
if all or some of them happen to belong
to the army, should be left behind
for the purpose of trial by the
ordinary Criminal Court. The trials
in an ordinary court are bound
to take longer, on account of the
procedure for such trials and consequent
appeals and revision, then
trials by Courts Martial. The necessities
of the service in the army
require speedier trial. Sections 102
and 103 of the Act point to the desirability
of the trial by Court Martial
to be conducted with as much
speed as possible. Section 120 pro-
43
vides that subject to the provisions
of sub-s. (2), a summary Court Martial
may try any of the offences punishable
under the Act and sub-s (2)
states that an officer holding a summary
Court Martial shall not try certain
offences without a reference to
the officer empowered to convene a
district court martial or on active service
a summary general court martial
for the trial of the alleged offender
when there is no grave reason
for immediate action and such a
reference can be made without detriment
to discipline. This further indicates
that reasons for immediate action
and detriment to discipline are
factors in deciding the type of trial.
Such considerations, as mentioned
above, appear to have led to
the provisions of s. 124 which are
that any person, subject to the Act,
who commits any offence against it,
may be tried and punished for such
offence in any place whatever. It is
not necessary that he be tried at a
place which be within the jurisdiction
of a criminal court having jurisdiction
over the place where the offence
be committed. In short, it is clear
that there could be a variety of circumstances
which may influence the
decision as to whether the offender be
tried by a Court Martial or by an ordinary
Criminal Court, and therefore
it becomes inevitable that the discretion
to make the choice as to which
court should try the accused be left
to responsible military officers under
whom the accused be serving. Those
officers are to be guided by considerations
of the exigencies of the service,
maintenance of discipline in the

44 Ram Sarup v. The Union Of India 1963
army, speedier trial, the nature- of
the offence and the person against
whom the offence is committed.
Lastly, it may be mentioned that
the decision of the relevant military
officer does not decide the matter finally.
Section 126 empowers a criminal
court having jurisdiction to try
an offender to require the relevant
military officer to deliver the offender
to the Magistrate to be proceeded
against according to law or to postpone
proceedings pending reference
to the Central Government, if that
criminal court be of opinion that proceedings
be instituted before itself in
respect of that offence. When such
a request is made, the military officer
has either to comply with it or to
make a reference to the Central Government
whose orders would be final
with respect to the venue of the trial.
The discretion exercised by the
military officer is therefore subject to
the control of the Central Government.
Reference may also be made
to s. 549 of the Code of Criminal
Procedure which empowers the Central
Government to make rules consistent
with the Code and other Acts,
including the Army Act, as to the
cases in which persons subject to military,
naval or air-force law be tried
by a court to which the Code applies
or by Court Martial. It also provides
that when a person accused of
such an offence which can be tried
by an ordinary criminal court or by
a Court Martial is brought before a
Magistrate, he shall have regard to
such rules, and shall, in proper cases,
deliver him, together with a statement
of the offence of which he is ac-
cused, to the Commanding Officer of
the regiment, corps, ship or detachment
to which he belongs, or to the
Commanding Officer of the nearest
military, naval or air-force station, as
the case may be, for the purpose of
being tried by Court Martial. This
gives a discretion to the Magistrate,
having regard to the rules framed,
to deliver the accused to the military
authorities for trial by Court
Martial. The Central Government
framed rules by S.R.O. 709 dated
April 17, 1952 called the Criminal
Courts and Court Martial (Adjustment
of Jurisdiction) Rules, 1952,
under s. 549 Cr. P.C. It is not necessary
to quote the rules in full. Suffice
it to say that when a person charged
is brought before a Magistrate on an
accusation of offences which are liable
to be tried by Court Martial, the
Magistrate is not to proceed with the
case unless he is moved to do so by
the relevant military authority. He
can, however, proceed with the case
when he be of opinion, for reasons to
be recorded, that he should so proceed
without being moved in that behalf
by competent authority. Even in
such a case he has to give notice of
his opinion to the Commanding Officer
of the accused and is not to pass
any order of conviction or acquittal
under ss. 243, 245, 247 or 248 of the
Code of Criminal Procedure, or hear
him in defence under s. 244 of the
said Code; is not to frame any charge
against the accused under s. 254 and
is not to make an order of committal
to the Court of Session or the High
Court under s. 213 of the Code, till
a period of 7 days expires from the
service of notice on the military au-

thorities. If the military authorities
intimate to the Magistrate before his
taking any of the aforesaid steps that
in its opinion the accused be tried by
Court Martial, the Magistrate is to
stay proceedings and deliver the accused
to the relevant authority with
the relevant statement as prescribed
in s. 549 of the Code. He is to do so
also when he proceeds with the case
on being moved by the military authority
and subsequently it changes
its mind and intimates him that in its
view the accused should be tried by
Court Martial. The Magistrate, however,
has still a sort of control over
what the military authorities do with
the accused. If no effectual proceedings
are taken against the accused by
the military authorities within a reasonable
time, the Magistrate can report
the circumstances to the State
Government which may, in consultation
with the Central Government,
take appropriate steps to ensure that
the accused person is dealt with in
accordance with law. All this is contained
in rr. 3 to 7. Rule 8 practically
corresponds to s. 126 of the Act
and r. 9 provides for the military au-
45
thorities to deliver the accused to the
ordinary courts when, in its opinion
or under the orders of the Government,
the proceedings against the accused
are to be before a Magistrate.
According to s. 549 of the Code
and the rules framed thereunder, the
final choice about the forum of the
trial of a person accused of a civil offence
rests with the Central Government,
whenever there be difference
of opinion between a Criminal Court
and the military authorities about
the forum where an accused be tried
for the particular offence committed
by him. His position under ss. 125
and 126 of the Act is also the same.
It is clear therefore that the discretion
to be exercised by the military
officer specified in of the Act as
to the trial of accused by Court Martial
or by an ordinary court, cannot
be said to be unguided by any policy
laid down by the Act or uncontrolled
by any other authority. Section 125
of the Act therefore cannot, even on
merits, be said to infringe the provisions
of Art. 14 of the Constitution.
The writ petition therefore fails
and is dismissed. Petition dismissed.

46 Ram Sarup v. The Union Of India 1963

Chapter 3
Union of India v. Maj S K
Sharma 1987
PETITIONER: UNION OF IN-
DIA THROUGH MAJOR GEN-
ERAL H.C. PATHAK v. RESPON-
DENT: MAJOR S.K. SHARMA
DATE OF JUDGMENT:
29/06/1987
BENCH: PATHAK, R.S. (CJ)
BENCH:PATHAK, R.S. (CJ),
KHALID, V. (J)
CITATION: 1987 AIR 1878 1987
SCR (3) 456 1987 SCC (3) 490 JT
1987 (3) 12 1987 SCALE (2)12
ACT: Criminal Procedure Code,
1973S. 475Read with ss. 200 to 204
of the Code, and the provisions of
the Army Act, 1950 and the Army
RulesWhen a Magistrate has taken
cognizance of an offence committed
by a member of the Armed Forces
and thereafter transferred the case
for trial under the Army Act and the
Rules, it is not open to the Competent
Authority to hold an inquiry
for determining whether there is any
case for trying the accusedIt must
proceed to hold the Court Martial or
take such other effectual proceedings
as is contemplated by r. 7(1) of the
Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules,
1978.
HEADNOTE: An officer in the
Army filed a complaint before a
Magis- trate alleging that another
officer has assaulted him, that the
Commanding Officer to whom he had
complained earlier had failed to take
satisfactory action and thus both of
them had committed offences under
the Indian Penal Code. The Magistrate
examined the complainant under
s. 200 Cr. P.C., took cognizance
of the offences under s. 190(A) and,
on being satisfied of the existence
of a prima facie case, issued summons
under s. 204(A) for the appearance
of the accused. Upon applications
being made by the appellants
urging that the case be handed over
to the Military Authorities for disposal,
the Magistrate made an order
directing that the case be transferred
to the Army Authorities for disposal
in accordance with the provisions of

48 Union of India v. Maj S K Sharma 1987
the Army Act, 1950 after trial by a
Court Martial at any place within the
jurisdic- tion of his Court and that
the progress of the case be reported
to him at intervals of two months.
Upon the appel- lants making further
applications praying for review
of the said order on the ground that
under the Army Act and the Army
Rules, it was not mandatory that
all disciplinary cases against military
personnel should culminate in
a trial by Court Martial and submitting
that the disciplinary action
against the officers concerned would
be initiated after an investigation of
the alleged offences, the Magistrate,
pointing out that the judicial process
for ascertaining the prima facie
existence of a case had already
been completed, held that the trial
of the accused by Court Martial was
mandatory under s. 475 Cr. P.C.
and,therefore, it was not permissible
for the Army Authorities to hold
a preliminary investigation. However,
having regard to s. 127 of the
Army Act, the Magistrate directed
that the progress of the case be intimated
at intervals of four months.
in the Revision filed by the appellants,
the High Court interfered with
the order of the Magistrate insofar
only that it deleted the direction requiring
the Army Authorities to inform
the Magistrate of the progress
of the case at intervals of four months
and directed instead that the result
of the Court Martial proceeding be
communicated to the Magistrate, as
soon as may be, in accordance with r.
7 of the Criminal Courts and Court
Martial (Adjustment of Jurisdiction)
Rules, 1978. Dismissing the appeal
by Special Leave, HELD: The Army
Authority is not entitled to ignore
the proceeding taken by the Magistrate
and to invoke the provisions of
r. 22 and related rules of the Army
Rules. The Magistrate having held
that there is a case for trying the two
accused officers and having directed
their appearance, the Army Authority
must proceed to hold a Court
Martial for their trial or take other
effectual proceedings against them as
contemplated by the law. [468G-H]
(i) It is open to a Magistrate under
ss. 200-203, Cr. P.C. to inquire
into a complaint of an offence alleged
to have been committed by a military
person, where it falls within his
jurisdiction and to take proceedings
for trial of the accused. Likewise, a
duly constituted Army Authority has
power under the provisions of r. 22
onwards of the Army Rules to investigate
into a charge against a military
person accused of an offence triable
under the Army Act, and after
such hearing to decide whether
his trial by a Court Martial should
be ordered. The provisions of the
Army Rules run parallel to the provisions
in the Cr. P.C. Inasmuch as
there is always a possibility of the
same offence being triable either by
a Criminal Court or by a Court Martial,
s. 475, Cr. P.C. empowers the
Central Government to make rules
as to cases in which persons shall be
tried by a Court to which the Code
applies or by a Court Martial, and
the section provides that whenever
a person is brought before a Magistrate
and charged with an offence for
which he is liable to be tried either by
a Court to which the Code applies

or by a Court Martial, such Magistrate
must have regard to such rules
and must, in proper cases, deliver the
person together with a statement of
the offence of which he is accused,
to the Commanding Officer of the
unit to which he belongs for the purpose
of being tried by a Court Martial.
The language used in s. 475
is significant. It refers to a person
who is brought before a Magistrate
and charged with an offence. In other
words, he must be a person respecting
whom the Magistrate has taken
the proceedings envisaged by ss. 200
to 204 of the Cede. He will be a person
in respect of whom the Magistrate
has found that there is a case
for trial. It is for that reason that
s. 475 goes on to say that when such
person is delivered to the Commanding
Officer of the unit to which he belongs,
it will be for the purpose of being
tried by a Court Martial. When
he is so delivered, a statement of the
offence of which he is accused will
also be delivered to the Commanding
Officer. The relevance of delivering
such statement can be easily understood,
for it is to enable the Army
Authority to appreciate the circumstances
in which a Court Martial is
required by the law. [464C-D; 465E-
H] (ii) It is clear from r. 7(1) of the
Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules,
1978 framed under s. 475 of the Cr.
P.C. that when the accused is made
over by the Magistrate under s. 5
or 6 thereof to the competent military
or other authority, it is for the
purpose of trial by a Court Martial
or other effectual proceedings to be
taken or ordered to be taken against
49
him inasmuch as the competent authority
must, as soon as may be,
inform the Magistrate, whether the
accused has been tried by a Court
Martial or other effectual proceedings
have been taken or ordered to be
taken against him and the communication
of such information is mandatory.
When the Magistrate is informed
that the accused has not been
tried or other effectual proceedings
have not been taken or ordered to be
taken against him, he is obliged to report
the circumstances to the State
Government and the State Government,
in consultation with the Central
Government, may take appropriate
steps to ensure that the accused
person is dealt with in accordance
with law. The policy of the law is
clear. Once the Criminal Court determines
that there is a case for trial,
and pursuant to the aforesaid rule,
delivers the accused to the competent
military or other authority, the
law intends that the accused must
either be tried by a Court Martial
or some other effectual proceedings
must be taken against him. [467B-
E] (iii) The policy of our Constitutional
Polity is that no person should
be regarded as being above the law.
Military, navel or air force personnel
are as much subject to the law
as members of the civil population.
It is significant that r. 8 of the Criminal
Courts and Court Martial (Adjustment
of Jurisdiction) Rules, 1978
empowers the Magistrate, on coming
to know that a person subject to
the military, naval or air force law or
any other law relating to the Armed
Forces has committed an offence and
proceedings in respect of which ought

50 Union of India v. Maj S K Sharma 1987
to be instituted before him and that
the presence of such person cannot
be procured except through military,
navel or air force authorities,
to require the Commanding Officer
of such person either to deliver such
person to a Magistrate for being proceeded
against according to law or
to stay the proceedings against such
person before the Court Martial if
since instituted, and to make a reference
to the Central Government for
determination as to the Court before
which the proceedings should be instituted.
[467G-H; 468A-B] (iv) Section
127 of the Army Act provides
that a person convicted or acquitted
by a Court Martial, may, with the
previous sanction of the Central Government,
be tried against by a Criminal
Court for the same offence or on
the same facts which is an exception
to the rule contained in Art. 20 of
the Constitution that no person shall
be prose- cuted and punished for the
same offence more than once. It is
to enable the operation and application
of s. 127 of the Act that r. 7(1)
of the Criminal Courts and Court
Martial (Adjustment of Jurisdiction)
Rules, 1978 requires the competent
military or other authority to inform
the Magistrate whether the accused
has been tried by a Court Martial
or other effectual proceedings have
been taken against him. [468B-D] (v)
Section 125 of the Army Act, which
provides that when a Criminal Court
and a Court Martial have each jurisdiction
in respect of an offence, it
will he in the discretion of the Commanding
Officer of the accused to decide
before which Court the proceedings
shall he instituted, is of no assis-
tance in deciding whether it is open
to the Army Authority to take proceedings
for determining prima facie
whether there is substance in the allegations
made against the accused
and decline to try him by a Court
Martial or take other effectual proceedings
against him even where a
Magistrate has taken cognizance of
the offence and finds that there is a
case for trying the accused. [468E-
F] (vi) There is nothing in the provisions
of the Army Rules relating to
Courts of Inquiry which can support
the contention that notwithstanding
the proceeding taken by the Magistrate
it is open to the Army Authority
to hold a Court of Inquiry and
determine whether there is any case
for trying the accused by a Court
Martial. If, it is not open to the
Army Authority to have recourse to
r. 22 of the Army Rules and investigate
the charge directed against the
ac- cused officer in this case, for the
same reason, it is not open to it to
hold a Court of Inquiry and supersede
the proceeding already taken by
the Magistrate. [469B-D]
JUDGMENT: CRIMINAL AP-
PELLATE ORIGINAL JURISDIC-
TION: Criminal Appeal No. 271 of
1987. From the Judgment and Order
dated 3.7. 1986 of the Gauhati
High Court in Crl. Revn. No. 229 of
1986. A.K. Ganguli, R.P. Srivastava,
P. Purameswarn and Ashok K. Srivastava
for the Appellant in Crl. A.
No. 271 of 1987 and Respondent in
W.P. (Crl.) No. 664 of 1986. R.K.
Jain, Gaurav Jain, Abha Jain and
R.P. Singh for the Respondent in Crl.
A. No. 271 of 1987 and Petitioner in

W.P. (Crl.) No. 664 of 1986. The
Judgment of the Court was delivered
by PATHAK, CJ. Special Leave
is granted. The respondent Major
S.K. Sharma addressed a letter dated
21 December 1985 to Brigadier S.S.
Randhawa, Commander, HQ 41 Sub
Area alleging that on 15 December,
1985 he was manhandled by Col.
Mir Usman Ali in the HQ 41 Sub
Area Officers Mess at Jorhat. It was
stated that the incident took place in
the presence of Major M.M. Subbaiah.
Major Sharma was attached to
B Camp. Signal Regiment while Col.
Ali belonged to HQ 41 Sub Area.
Brigadier Randhawa wrote to the Officer
Commanding, B. Comp. Signal
Regiment on 14 January 1986 seeking
clarification from Major Sharma
on some of the allegations. It appears
that correspondence was exchanged
in the matter but apparently
Major Sharma, having met with no
satisfactory response, filed a complaint
21 January 1986 in the Court
of the Additional Chief Judicial Magistrate,
Jorhat alleging that Col. Ali
had criminally assaulted him and further
that Brigadier Randhawa did
not report the matter to the higher
authorities and was attempt- ing to
protect Col. Ali. It was alleged in
the complaint that Col. Ali had committed
the offences under sections
323, 352 and 355 of the Indian Penal
Code and Brigadier Randhawa
had committed the offence under section
2 17 of the Indian Penal Code.
The Additional Chief Judicial Magistrate
exam- ined the complaint, and
taking cognizance of the offences alleged
to have been committed by Col.
Ali and Brigadier Randhawa it di-
51
rected that summons be issued to
them for their appearance before him
on 7 March, 1986. On two applications
moved by Major Sharma before
him the Chief Judicial Magistrate
made an order dated 25 January.
1986 directing that the venue of a
Court of Inquiry instituted in respect
of certain complaints made against
Major Sharma by his Commanding
Officer be shifted from Mohanbari,
where it was convened, to a place
within the jurisdiction of his Court
and it was directed further that Major
Sharma should not be moved out
of the jurisdiction of the Court during
the pendency of the case. Major
Sharma had complained that the
Court of Inquiry had been ordered
by Brigadier Randhawa at Mohanbari
as a measure of retaliation because
of the institution of the criminal
case by Major Sharma before
the Additional Chief Judicial Magistrate.
On 7 February 1986 the Union
of India moved an application before
the Chief Judicial Magistrate along
with an application dated 3 February
1986 addressed to the Court by Major
General T.S. Chaudhri informing
the Chief Judicial Magistrate
that the General Officer Commanding
was of opinion that Col. Ali
should be dealt with in accordance
with the procedure laid down under
the Army Act and the Army Rules
and the Criminal Courts and Court
Martial (Adjustment of Jurisdiction)
Rules, 1978, and that therefore, the
case may be handed over to the Military
Authorities. It was pointed
out by Major Chaudhri in his letter
that the com- plaint before the
Additional Chief Judicial Magistrate

52 Union of India v. Maj S K Sharma 1987
against Col. Ali should, in his opinion,
be disposed of under the procedure
laid down in Army Rule 22
of Army Rules, 1954 and that under
s. 125 of the Army Act 1950 read
with Army Rule 197A of the Army
Rules and the Criminal Court and
Court Martial (Adjustment of Jurisdiction)
Rules 1978, Major General
Chaudhri was the competent Military
authority to claim the case. He
requested that the case should be
handed over to the Military authorities
for further necessary action. On
12 February 1986 the Union of India
moved another application before
the Chief Judicial Magistrate along
with an application dated 3 February
1986 addressed to the Chief Judicial
Magistrate by Major General T.S.
Chaudhri as Gener- al Officer Commanding
requesting that the case
against Brigadier Randhawa should
similarly be handed over to the Military
authorities for necessary action.
On 17 February 1986 the Chief Judicial
Magistrate, Jothat made an order
disposing of the two requisitions
made by Major General Chaudhri.
He noted that the cognizance of the
offences had been taken by the Additional
Chief Judicial Magistrate and
necessary process had been issued
against both accused to compel their
presence, and that in the light of
Rule 3 of the Criminal Court and
Court Martial (Adjustment of Jurisdiction)
Rules 1978 the prayer for
trial by a Court martial by the competent
authority was. allowed. In
this connection he made reference to
Delhi Special Police Establishment v.
Lt. Col. S.K. Loraiya, AIR 1972
SC 2548. He directed that the case
be transferred to the Army authorities
pursuant to the requisitions, and
for disposal in accordance with the
provisions of the Army Act, 1950 after
trial by a court martial at any
place within the jurisdiction of his
Court, He directed further that the
progress of the case should be reported
to his Court at intervals of
two months and ultimately intimating
the result thereof, for the purpose
of determining whether a successive
trial was necessary as provided for in
the Army Act. While making the
order the Chief Judicial Magistrate
noted that the Army authorities had
not shifted the venue of the Court
of Inquiry mentioned earlier to any
place within the jurisdiction of his
court as required by his order dated
25 January, 1986, and this prima facie
amounted to contempt for which
it was open to Major Sharma to apply
to the High Court for necessary
action. He also directed that Major
Sharma should be permitted to proceed
on leave to enable him to apply
to the Gauhati High Court for filing
a writ petition or taking other legal
proceedings. On 21, March 1986 the
Union of India through the General
Officer Commanding filed an application
before the Chief Judicial Magistrate
for modification of the order
dated 17 February 1986. In that application
it was contended that under
the Army Act and the Army Rules
it was not mandatory that all disciplinary
cases against military personnel
should culminate in a trial by
the Court Martial and that the directions
made by the Chief Judicial
Magistrate with regard to the trial
of Brigadier Randhawa and Col. Ali

y Court Martial were in contravention
of the Army Act and the Army
Rules and the Criminal Court and
Court Martial (Adjust- ment of Jurisdiction)
Rules 1978. It was asserted
that the proposed disciplinary
action would be initiated by the General
Commanding Officer after an investigation
of the alleged offences in
accordance with Army Rule 22. It
was prayed that the order dated 17
February 1986 be reviewed by deleting
the direction for a trial by Court
Martial at a place within the jurisdiction
of the Court of the Chief
Judicial Magistrate and of the direction
further that the progress of
the case should be intimated to the
Chief Judi- cial Magistrate at intervals
of two months. On 7 April
1986 the Union of India filed another
application making more detailed
submissions for modification or
the other dated 17 February 1986.
A third application was moved by
the Union of India on 30 April 1986
to the Chief Judicial Magistrate requesting
that the records of the case
be handed over to the Army authorities.
These applications were disposed
of the Chief Judicial Magistrate
by his order dated 8 May 1986.
In that order he noted that the Additional
Chief Judicial Magistrate had,
on receipt of the complaint examined
the complainant Major S.K. Sharma
under s. 200 of the Cr. P.C. and had
taken cognizance of the offence under
s. 190(A) of the Code and on being
satisfied of the existence of a prima
facie case process had been issued by
him under s. 204(A) of the Code.
He noted that the judicial process
for ascertaining the prima facie exis-
53
tence of a case had thereby been completed.
He held that in the circumstances
the trial of the accused officers
by a court martial appeared to
be mandatory under the provisions
of s. 475 of the Code. He observed
that the preliminary investigations
by a departmental court of inquiry
did not seem permissible in the case.
However, having regard to s. 124 of
the Army Act which conferred absolute
power on the Army authorities
to choose the venue of trial and
keeping in view the administrative
convenience of the Army authorities
he decided to accept the request of
the General Officer Commanding for
deleting the direction in respect of
the venue of the trial. The Chief Judicial
Magistrate also directed that
instead of intervals of two months the
Army authorities should, having regard
to the provision of s. 127 of
the Army Act, inform his Court as
to the progress of the case at intervals
of four months. On 14 June 1986
the Union of India through the General
Officer Commanding filed a revision
petition before the High Court
at Gauhati, which was disposed of
by the High Court by its order dated
3 July 1986. The High Court interfered
with the order of the Chief Judicial
Magistrate in so far only that
it deleted the direction requiring the
Army authorities inform the Chief
Judicial Magistrate of the progress of
the case at intervals of four months,
and it directed instead that the result
of the Court Martial proceedings
should be communicated to the Chief
Judicial Magistrate as soon as may
be in accordance with Rule 7 of the
Criminal Courts and Court Martial

54 Union of India v. Maj S K Sharma 1987
(Adjustment of Jurisdiction) Rules,
1978. It may be mentioned that
according to the order of the High
Court the only submission raised on
behalf of the appellant in the revision
petition was that the Magistrate had
no jurisdiction to direct the Court
Martial to submit reports relating to
the progress of the case, including
the result thereof, at intervals of four
months. Thereafter a special Leave
Petition was filed by the Union of
India, out of which the present appeal
arises. Although it appears that
the only point raised before the High
Court on the revision petition related
to the direction that the Army authorities
should report periodically
to the Chief Judicial Magistrate in
regard to the progress of the case,
learned counsel for the appellants has
raised a more fundamental question
before us. That question is whether
it is open to the Army authorities to
constitute a Court of Inquiry, enter
upon an investigation of the charges
under Rule 22 of the Army Rules and
determine whether there is a case for
trial by a Court Martial. Learned
Counsel contends that the proceedings
already taken by the Additional
Chief Judicial Magistrate must be ignored
for the purpose and the Army
authorities are not bound to try the
accused by a Court Martial. Although
the point was not taken before
the High Court we have permitted
it to be raised before us and it
has been argued by learned counsel
at length. It is apparent from the
provisions of the Code of Criminal
Procedure that it is open to a Magistrate
to inquire into a complaint of
an offence alleged to have been com-
mitted by a military person, where
it fails within its jurisdiction, and to
take proceedings either for his trial or
for committing the case to the Court
of Sessions for trial. Likewise, there
is power under the Army Act in a
duly con- stituted Army authorities
to investigate into a charge against a
military person accused of an offence
triable under the Army Act, and after
such hearing to decide whether
his trial by a Court Martial should be
ordered. In the former case, ss. 200
to 203 of the Code of Criminal Procedure
provide the procedure to be
followed by Magistrates taking cognizance
of an offence on a complaint.
The Magistrate is required to examine
on oath the complaint and the
witnesses present and reduce the substance
of such examination to writing
to be subsequently signed by the
complainant and the witnesses and
by the Magistrate. That is the procedure
except when the complaint
is made in writing by a public servant
or the Magistrate makes over
the case for trial or inquiry to another
Magistrate. The Magistrate
may either inquire into the case himself
or direct an investigation to be
made by a police officer or by such
other person as he thinks fit for the
purpose of deciding whether or not
there is sufficient ground for proceeding.
Where, however, it appears to
the Magistrate that the offence complained
of its triable exclusively by
the Court of Session no such direction
for investigation can be made
by him. For the purpose of inquiry
be may take evidence of witnesses on
oath. If the Magistrate is of opinion
that the offence complained of is

triable exclusively by the Court of
Session he must call upon the complainant
to produce all his witnesses
and examine them on oath. If after
considering the statement on oath
of the complainant and of the witnesses
and the result of the inquiry
or investigation directed by him the
Magistrate is of opinion that there
is no sufficient ground for proceeding
he must dismiss the complaint.
Where 465 the Magistrate is of opinion
that there is sufficient ground for
proceeding he must adopt the procedure
set forth in sections 204 onwards.
He must issue process for
the attendance of the accused. In
certain cases he may dispense with
the personal attendance of the accused
and permit him to appear by
his pleader. Where, however, the
proceeding is taken by an Army authority
under the Army Act reference
must be made to the provisions of
Rule 22 onwards of the Army Rules.
The Rules provide for the hearing of
a charge, in which the accused has
liberty to cross examine any witness
against him and to call any witnesses
and make any statement in his defence.
If the Commanding Officer
investigating the charge finds no offence
has been committed he must
dismiss the charge. He may also do
so if, in his discretion, he is satisfied
that the charge has not to be
proceeded with. If the charge is
to be proceeded with he may pass
any of the orders detailed in Rule
22(3). They include proceedings for
trial by a Court Martial. It is clear
that these provisions of the Army
Rules run parallel to the provisions
of the Code of Criminal Procedure
55
adverted to earlier. Now inasmuch
as there is always a possibility of the
same offence being triable either by
a Criminal Court or by a Court Martial
the law has attempted to resolve
the competings claims of the civil authority
and the military authority in
such cases. Section 475 of the Code
of Criminal Procedure empowers the
Central Government to make rules
as to cases in which persons shall be
tried by a Court to which the Code
applies or by a Court Martial, and
the section provides that whenever
a person is brought before a Magistrate
and charged with an offence for
which he is liable to be tried either by
a Court to which the Code applies
or by a Court Martial such Magistrate
must have regard to such rules
and must, in proper cases, deliver the
person together with a statement of
the offence of which he is accused
to the Commanding Officer of the
unit to which he belongs for the purpose
of being tried by a Court Martial.
The language used in s. 475
is significant. It refers to a person
who is brought before a Magistrate
and charged with an offence. In other
words, he must be a person respecting
whom the Magistrate has taken
the proceedings envisaged by ss. 200
to 204 of the Code. He will be a
person in respect of when the Magistrate
has found that there is a case
for trial. It is for that reason that
s. 475 goes on to say that when such
person is delivered to the Commanding
Officer of the unit to which he belongs
it will be for the purpose of being
tried by a Court Martial. When
he is so delivered, a statement of the
offence of which he is accused will

56 Union of India v. Maj S K Sharma 1987
also be delivered to the Commanding
Officer. The relevance of delivering
such statement can be easily understood,
for it is to enable the Army
authority to appreciate the circumstances
in which a Court Martial is
required by the law. We now turn
to the Criminal Courts and Court
Martial (Adjustment of Jurisdiction)
Rules, 1978. These Rules have been
framed under s. 475 of the Code of
Criminal Procedure. When a person
subject to military, naval or air
force law or any other law relating
to the Armed Forces is brought before
a Magistrate and charged with
an offence for which he is also liable
to be tried by a Court Martial, the
Magistrate will not proceed to try
such person or to commit the case
to the Court of Session unless (a) he
is moved to that effect by a competent
military, naval or air force authority
or (b) he is of opinion for reasons
to be recorded, that he should
so proceed or to commit without being
moved thereto by such authority.
Rule 3, in our opinion, comes into
play at the point where the person
has been brought before a Magistrate
and charged with an offence. That is
the stage adverted to earlier where
the accused is directed to appear before
the Magistrate and is charged
with an offence after the Magistrate
has determined that there is a case
for trial. Before proceeding further
with the case and either proceeding
to try the accused or to commit the
case to the Court of Session the Magistrate
must, under Rule 4, give written
notice to the Commanding Officer
of the accused and refrain for a
period of 15 days from doing any of
the acts or making any of the orders
in relation to the trial of the accused
specified in Rule 4. In the event
of the Magistrate entering upon the
trial of the accused or committing
the case to the Court of Session at
the instance of the military, naval or
air force authority it is open to such
authority or the Commanding Officer
of the accused to give notice subsequently
under Rule 5 to such Magistrate
that, in the opinion of such officer
or authority the accused should
be tried by a Court Martial. Upon
such notice, the Magistrate, if he has
not taken any action or made any
order referred to specifically in Rule
4 before receiving such notice, must
stay the proceedings and deliver the
accused together with the statement
referred to in s. 475(1) of the Code to
the Officer specified in that subsection.
In the other kind of case, where
the Magistrate intends to proceed to
try the accused or to commit the case
to a Court of Session without being
moved in that behalf by the military,
naval or air force authority, and he
has given notice under Rule 4 to the
Commanding Officer or the military,
naval or air force authority of his intention
to do so, Rule 6 empowers
the Commanding Officer or the competent
authority to give notice to the
Magistrate within the aforesaid period
of 15 days or in any event before
the Magistrate takes any action
or makes any order referred to in that
Rule, that in the opinion of such officer
or authority the accused should
be tried by a Court Martial. Upon
such notice the Magistrate must stay
the proceedings and deliver the accused
together with the statement re-

ferred to in s. 475(1) of the Code
to the officer specified in that subsection.
It is clear that when the
accused is made over by the Magistrate
to the Commanding Officer or
the competent military, naval or air
force authority it is for the purpose
of trial by a court martial or other
effectual proceedings to be taken or
ordered to be taken against him. For
Rule 7(1) provides that when an accused
has been delivered by a Magistrate
under Rule 5 or 6 the Commanding
Officer or the competent
military, naval or air force authority
must, as soon as may be, inform
the Magistrate whether the accused
has been tried by a Court Martial or
other effectual proceedings have been
taken or ordered to be taken against
him. The communication of such information
is mandatory. When the
Magistrate is informed that the accused
has not been tried or other
effectual proceedings have not been
taken or ordered to be taken against
him, he is obliged to report the circumstance
to the State Government
and the State Government, in consultation
with the Central Government
may take appropriate steps to ensure
that the accused person is dealt with
in accordance with law. The policy
of the law is clear. Once the Criminal
Court determines that there is
a case for trial. and pursuant to the
aforesaid rule, delivers the accused to
the Commanding Officer or the competent
military, naval or air force authority,
the law intends that the accused
must either be tried by a Court
Martial or some other effectual proceedings
must be taken against him.
To ensure that proceedings are taken
57
against the accused the Rules require
the Commanding Officer or the competent
authority to inform the Magistrate
of what has been done. Rule
7(2) appears to envisage the possibility
that the Commanding Officer or
the competent military, naval or air
force authority may not try the accused
or take effectual proceed- ings
against him even where the Magistrate
has found a case for trial.
To cover that exigency it provides
that the State Government in consultation
with the Central Government,
on a report from the Magistrate
to that effect, may take appropriate
steps to ensure that the accused
does not escape the attention
of the law. The policy of our Constitutional
polity is that no person
should be regarded as being above
the law. Military. naval or air force
personnel are as much subject to the
law as members of the civil population.
It is significant that Rule 8
empowers the Magistrate. on coming
to know that a person subject to
the military. naval or air force law or
any other law relating to the Armed
Forces has committed an offence and
proceedings in respect of which ought
to be instituted before him and that
the presence of such person cannot
be procured except through military.
navel or air force authorities. to require
the Commanding Officer of 468
such person either to deliver such
person to a Magistrate for being proceeded
against according to law or
to stay the proceedings against such
person before the Court Martial if
since instituted, and to make a reference
to the Central Government for
determination as to the Court be-

58 Union of India v. Maj S K Sharma 1987
fore which the proceedings should be
instituted. Reference may also be
made to s. 127 of the Army Act. It is
an important provision. It provides
that 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. This provision
is an exception to Article 20
of the Constitution which provides
that no person shall be prosecuted
and punished for the same offence
more than once. The provision has
been made possible by reason of Article
33 of the Constitution which confers
power on Parliament to modify
any Fundamental Right in its application
to the members of the Armed
Forces. It is to enable the operation
and application of s. 127 of
the Act that Rule 7(1) of the Criminal
courts and Court Martial (Adjustment
of Jurisdiction) Rules, 1978
requires the Commanding Officer or
the competent military, naval and air
force authority to inform the Magistrate
whether the accused has been
tried by a Court Martial or other effectual
proceedings have been taken
against him. Our attention has been
drawn by learned counsel for the appellants
to s. 125 of the Army Act.
Section 125 provides that when a
Criminal Court and a Court Martial
have each jurisdiction in respect of an
offence it will be in the discretion of
the Commanding Officer of the accused
to decide before which Court
the proceedings shall be instituted.
This provision is of no assistance in
deciding whether it is open to the
Army authority to take proceedings
for determining prima facie whether
there is substance in the allegations
made against the accused and decline
to try him by a Court Martial
or take other effectual proceedings
against him even where a Magistrate
has taken cognizance of the
offence and finds that there is a case
for trying the accused. On the aforesaid
analysis we are of opinion that
the Army authority is not entitled
to ignore the proceeding taken by
the Additional Chief Judicial Magistrate
and to invoke the provisions
of Rule 22 and related rules of the
Army Rules. The Additional Chief
Judicial Magistrate having hold that
there is a case for trying the two
accused officers and having directed
their appearance, the Army authority
must proceed to held a court martial
for their trial or take other effectual
proceedings against them as
contemplated by the law. The contention
advanced by learned counsel
for the appellants to the contrary
must be rejected. We have also
been referred to the provisions of the
Army Rules relating to Courts of Inquiry,
and learned counsel for the appellants
urges that notwithstanding
the proceeding taken by the Additional
Chief Judicial Magistrate it is
open to the Army authority to hold
a Court of Inquiry and deter- mine
whether there is any case for trying
the accused by a Court Martial.
We have been taken through Rule
177 and the connected Rules which
deal with the institution and conduct
of Courts of Inquiry, but we see
nothing in those provisions which can
support the contention now raised
before us. If, on the analysis de-

tailed earlier, it is not open to the
Army authority to have recourse to
Rule 22 and investigate the charge
directed against the accused officer
in this case. for the same reason it
is not open to it to hold a Court
of Inquiry and supersede the proceedings
already taken by the Additional
Chief Judicial Magistrate. We
may mention that learned counsel for
the parties placed a number of cases
before us, but having carefully perused
the judgments in those cases
we do not find any declaration of law
therein which is inconsistent with the
view taken by us. Accordingly, the
appeal is dismissed. In the Criminal
Writ Petition Major S.K. Sharma
prays for a number of reliefs. The
material reliefs are that a direction
be issued to the Army authorities
to postpone the return of the petitioner
to the Unit to which he has
been posted and direct the Army authorities
to stay all parallel proceedings
against the petitioner until the
hearing and disposal of their Special
59
Leave Petition. So far as the first
submission as concerned it refers to
the mental and physical stress suffered
by the petitioner, apparently
necessitating his treatment at a hospital
with psychiatric facilities. We
do not think it necessary to issue any
direction because, we think, it is a
matter which can be adequately and
humanely dealt with by the Army
authorities. If indeed the petitioner
should be given a posting where the
requisite medical facilities are available
we have no reason to doubt that
the Army authorities will afford such
posting to the petitioner. In doing
so it will be open to the Army authorities
to obtain the latest medical
report respecting the condition of
the petitioner. As regards the second
relief, we have already disposed of
the special leave petition today and,
therefore, no order need be passed in
respect of that relief. In the result
the writ petition is dismissed. H.L.C.
Petition dismissed.

60 Union of India v. Maj S K Sharma 1987

Chapter 4
S.K. Rao v. Union Of India
1967
S.K. Rao v. Union Of India
(Uo) on 23 February, 1967 Bench: K
Hegde, J Singh
JUDGMENT
K.S. Hegde and Jagjit Singh, JJ.
(1) On April 9, 1959, the Central
Government directed the removal
from service of Captain S.K..
Rao under rule 14 of the Army Rules,
1954. A petition under article 226 of
the Constitution was filed by Captain
Rao for quashing the order of
his removal from services on the
ground that rule 14 is ultra vires the
Army Act, 1953, and therefore, action
taken there under is without the
authority of law.
(2) The petitioner was a commissioned
officer in the Indian Army
Ordnance Corps Training Centre, Secundarabad.
It was alleged that on
April 4,1958, the petitioner committed
acts of gross-misconduct. The allegations
against him were as follows
:-
(I)Knowing her as the daughter
of Capt. Raghbir Singh, he (Capt
S.K. Rao) assisted Kumari Prakash
in going away from her perents’ protection
and planning to run away
with an Ob, by (aa) receiving her in
his house in the early hours of 4th
April 1958, and taking her in his scotoer
to 511 GR. Lines, (bb) arranging
her meeting with 9402844 Rfn Jai
Prashai Lemb’J of 5/11 GX. at the
unit lines and, (cc) acquiescing in the
girl being met by the Ob latter at
teashop nearby to receive a present
of a sari and a blouse from him in his
presence. The Officer thus actively
abetted in the attempt of brtoher officer’s
daughter to elope with an OB.
(ii) He took Kumari Prakash to a hotel
’Saidiya Lodge’ in Hyderabad and
got a room to themselves by impersonating
and giving a false identity
as “Mr. and Mrs. Prakash.”
(3) An inquiry into the matter
was made by Court of Inquiry. The
Chief of the Army Staff, after going
through the proceedings of the Court
of Inquiry, Considered that the con-

62 S.K. Rao v. Union Of India 1967
duct of Captain Rao was most unbecoming
an officer and as he was of
opinion that trial of the officer by a
General Court Martial was inexpedient,
he ordered administrative action
to be taken under rule 14.B, memorandum
ibid, 6914/88 No. 13802/15/
Tb, dated September 4, 1958, the petitioner
was called upon to submit
his explanation and defense regarding
the allegations against him. The
explanation of the petitioner, on being
submitted, was placed before the
Central Government, who found it
unsatisfactory and an order (dated
April 9, 1989) was passed removing
the petitioner from service.
(4) In the petition a some what
different version was given of what
had happened. According to the petitioner,
he did not in any way assist
Kumari Prakash, daughter of Captain
Raghbir Singh, to go away from
her parents’ house. It was stated by
him that with the help of Major A.C.
Gupta he had taken book. Kumari
Prakash from a hotel to her parents’
house.
(5) For purpose of this petition, it
is, however, not necessary to consider
as to which of the two versions is correct.
That was a matter Fur the competent
authority to determine. The
only point which has to be considered
is the validity of rule 14 of the Army
Rules, 1954 (hereinafter referred to
as “the Rules”). If rule 14 is intern
vires the Army Act, 1950 (hereinafter
referred to as “the Act”), the
petitioner has no case.
(6) Admittedly the petitioner was
subject to the Act. The Rules, including
rule 14, purported to have
been made by the Central Government
under the rule-making powers
given by section 191 of the Act. Rule
14 reads: -
14(1) When after considering the
reports on “an oncer’s misconduct,
the Central Government is satisfied
or the C-in-C is of the opinion, that
the trial of the officer by a Court
Martial is inexpedient or impractical
but considers the further retention of
the said officer in the service as undesirable,
the C-in-C shill communicated
the view of the Central Government
or his views, as the case may
be, to the officer together with all reports
adverse to him and he shall be
called upon to submit his explanation
and defense. (2) In the event
of the explanation of the officer being
considered unsatisfactory by the
C-in-C, or when so directed by the
Central Government, the case shall
be submitted to the Central Government
with the officer’s defense and
the recommendation of the C-in-C as
to whether the officer should be— (a)
dismissed from the service; or (b) removed
from the service; or (e) called
upon to retire; or (d) called upon to
resign. (3) The Central Government,
after due consideration of the reports
the officer’s defense, if any, and the
recommendation of the C-in-C, may
dismiss or remove the officer with or
without pension or call upon him to
retire or resign, on his refusing to do
so the officer may be retired from or
gazetted out of the service ...gratuity
if any admissible to him.”
(7) Thus under rule 14 action
can be taken for misconduct against
an officer, whose further retention

in service is considered undesirable,
without the officer being tried by a
General Court Martial. But before
doing so, the officer must be called
upon to submit his explanation and
defense. If the explanation is found
unsatisfactory, the Central Government
has the power to dismiss or remove
the officer.
(8) As stated above, the Rules
were made under section 191 of the
Act. Sub section (1) of section 191
give power to the Central Government
to make rules for the purposes
of carrying into effect the provisions
of the Act. Sub-section (2) mentions
specific matters about which
rules may be made, but this power is
“without prejudice to the generality
of the power conferred by sub-section
(1)”. Clause (a) of sub-section (2)
refers to the removal, retirement, release
or discharge from service of persons
subject to the Act.
(9) So far as the impugned rule
(rule 14) is concerned. its validity
depends upon the fact as to whether
it enables to carry in to effect any
provision of the Act. In order to be
valid, the rule must net be inconsistent
with the provisions of the Act.
In the State of U.P. v Babu Ram’.
it was observed by their Lordships of
the Supreme Court that one of the
principles fundamental to the rules
of construction was that the rules
should be consistent with the provisions
of the Act.
(10) Some provisions of the Act
may appropriately be mentioned
here. Section 18 provides that every
person subject to the Act shall
hold office during the pleasure of the
63
President. Section 19 is to the effect
that subject to the provisions of
the Act and the rules and regulations
made there under, the Central Government
may dismiss or remove from
service any person subject to the Act.
Chapter Vi, containing sections 34 to
70, deals with offences that may be
committed by persons subject to the
Act. Section 45 is important for purposes
of this case and is reproduced
below:-
“45.Any officer, junior commissioned
officer or warrant officer who
behave in a manner unbecoming his
position and the character expected
of him shall, on conviction by court
martial, if he is an officer, be liable
to be cashiered or to suffer such less
punishment as is in this Act mentioned;
and, if he is a junior commissioned
officer or a warrant officer
be liable to be dismissed or to suffer
such less punishment as is in this Act
mentioned”.
(11) Shri S S. Chadha, learned
counsel for the petitioner, contended
that as the services of the petitioner
were not terminated by the President,
section 18, which provides that
every person subject to the Act shall
hold office during the pleasure of the
President, has no application to the
facts of the present case. Elaborating
his argument, he seated that a distinction
has been made in Sections
18, and 19 between the power of the
President and the Central Government.
While the President could terminate
the services of the petitioner
at his pleasure, the Central Government
under section 19, could only
act “subject to the provisions of the

64 S.K. Rao v. Union Of India 1967
Act and the rules and regulations
made there under”. It was urged
that as the Act contained specific
provisions for punishing “unbecoming
conduct”, a rule could not have
been validly made in derogation of
section 46 to give power to the Central
Government to remove an officer
without being tried and convicted by
court martial. Rule 14 was, therefore,
stated to be ultra vires.
(12) On a plain reading of section
19, there can be no doubt that the
power of the Central Government to
dismiss or remove from service any
person subject to the Act can be exercised
only subject to the provisions
of the Act and the rules and regulations
made there under. As already
stated, rules can be made under
section 191 of the Act for the purpose
of carrying into effect the provisions
of the Act. Regulations can be
made under section 192, but we are
not concerned with them, as rule 14
forms part of the Rules which were
made under section 191 of the Act.
In the return submitted on behalf of
the respondent, the Union of India,
the stand taken was that rule 14 had
been made under section 191(2)(a) of
the Act and that for removal from
service under section 19, read with
rule 14 a court martial was not necessary.
(13) Shri S.N. Shankar, learned
counsel for the Union of India, aid
not dispute the proposition that act
made a, distinction between the powers
of “the President” and “the Central
Government”. He, however, contended
that the power given to the
Central Government by section 19
was not fettered by the provisions of
section 45 of the. Act. According
to him, section 19 was independent
of section 45 and consequently rule
14 could not be regarded as inconsistent
with the provisions of section
45 of the Act. In this connection, a
reference was also made by him to a
recent judgment of Kapur, J. in the
case of Om Parkash Bhardwaj v. The
Union of India”.
(14) Under Article 310 of the
Constitution, every person, who is a
member of the defense service, holds
office during the pleasure of the President.
In the case of civil servants
the Pleasure doctrine in subject to
certain restrictions provided in Article
311, but that has no application
to members of the defense service.
Section 18 embodies the rule
enunciated in Article 310 of the Constitution
so far as persons subject to
the Act are concerned. The removal
of the petitioner having been made
by the Central Government, under
section 19 of the Act, and not by
the President, the pleasure doctrine
can not be invoked. The Act, as already
stated, makes a distinction between
the power of the President and
the Central Government. the power
of the Central Government to dismiss
or remove a person subject to
the Act was specifically made subject
to the provisions of the Act and
the rules and regulations, made there
under such rules and regulations, in
order to be valid, should not be inconsistent
with the provisions of the
Act. Under the Act, “unbecoming
conduct” of an officer can be punished
only under section 45.

(15) It follows that except where
action is taken by the President, under
section 18 of the Act, any officer,
junior commissioned officer or warrant
officer subject to the Act can
only be punished under section 45 of
the Act for behaving in a manner unbecoming
the position and character
expected of him.
(16) The implication of the words
“subject to the provisions of this
Act”, occurring in section 19, is that
power of the Central Government to
dismiss or remove from service any
person subject to the Act can not be
exercised contrary to the provisions
of the Act or in other words in derogation
of the provisions of section 45.
If the intention of the legislature had
been to empower the Central Government
to exercise those powers being
restricted by the provisions of
the Act, then the use of the words
subject to the provisions of this Act
was unnecessary. That the legislature
did not intend to give unfettered
powers to the Central Government
for purpose of dismissing or
removing from service persons subject
to the Act finds further support
from the use of the words “subject to
the rules and regulations made there
under”. Rules and regulations can
be made for the purpose of carrying
into effect the provisions of the Act,
which means that a rule or regulation
can not be made which is outside
the scope of any of the provisions
of the Act. The contention of the
learned counsel for the Union of India
that section 19 of the Act is independent
of section 45 or that section 19
gives independent power to the Cen-
65
tral Government for dismissing cr removing
persons subject to the Act is,
in our opinion, not tenable. Any such
interpretation will amount to ignoring
in section 19 the words “subject
to the provisions of this Act and the
rul(r).s and regulations made there
under”.
(17) The contention of Shri
Shanker that the impugned rule was
made with a view to facilitate the
proper exercise of the power given to
the Central Government under section
19 overlooks in that section the
crucial words “subject to the provisions
of this Act”. The effect of these
words is that if a person subject to
the Act is liable under any of the
provisions of the Act to be dismissed
or removed from service as a punishment
for an offence, than without
complying with the requirements
of these provisions action can not be
taken by the Central Government by
purporting to act under section 19 of
the Act.
(18) Rule 14 of the Rules clearly
goes beyond the scope of sections 19,
45 and 191 of the Act and is inconsistent
with those provisions. The
power of the Central Government to
dismiss or remove from service being
subject to the provisions of the
Act has to be exercised in conformity
with section 46 of the Act. The rule,
as it exists, has the effect of abrogating
the provisions of but sections 19
and 45. It appears that at the time of
making this rule the opening words of
section 19 “subject to the provisions
of this Act” were lost sight of.
(19) The case of Om Parkash
Bhardwaj, cited by the learned coun-

66 S.K. Rao v. Union Of India 1967
sel for the Union of India, i elated to
dismissal of a Wing Commander on
the ground of “moral turpitude”, under
section 19 of the Air Force Act,
1950, section 19 of the Act, 1950,
corresponds to section 19 of the Act.
while dealing with section 19 of the
Air Force Act, 1950 in that case, the
learned Judge made the following observations
:- “SECTION 19 of the
said Act provides the tenure of service
to be during the pleasure of the
President. Section 19 gives an absolute
power to the Central Government
to dismiss or remove from service’
any person-subject to this Act’.
It is abundantly recognised that Persons
who enter the military service
and take the State’s pay, and who
are content to act under the President’s
commission, although they do
not cease to be citizens in respect of
responsibility yet they do, by a compact
which is intelligible, and which
requires only the statement of it to
the consideration of any one of common
sense become subject to military
rule and military discipline. In
case of civil servants certain special
safeguards have been provided by Article
311 of the constitution. Those
safeguards admittedly do not extend
to the army personnel. Admittedly,
no rules have been framed in this behalf
and there is, therefore, no question
of any violation thereof. If any
rules bad been framed and violated,
possibly different considerations may
have arisen. As the law however
stands at present it seems to recognise
that employment in Army is not
a right but only a privilege by the
sovereign at will and efficient management
demands that power to appoint
should necessarily include the
power to dismiss. In Army matters
the legislature has conferred on
the Government the same proprietary,
rights as provided to employers
to hire and fire without restrictions............”
With great respect, we are unable
to agree with this view. It appears
that distinction between sections 18
and 19 of the Air Force Act,1950,was
not urged before his Lordship and the
effect of the words “subject to the
provisions of this Act” occurring in
section 19 of that Act, was nut taken
into consideration
(20) The rule of pleasure as laid
down in Article 310 of tie Constitution
has been embodied in section 18
of the Act. When the services of a
person subject to the Act are terminated
by an authority ether then
the President, then it is incumbent
on that authority to proceed in accordance
with the provisions of the
Act. No rule can be validly made under
section 91 of the Act which may
authorise the Central Government or
any other authority to exercise the
power of dismiss I or removal in a
manner inconsistent with any provision
of the Act
(21) In conclusion, we hold that
rule 14 of the Rules is ultra vires the
provisions of sections 19, 45 and 191
of the Act. The removal of the petitioner
under rule 14 can not be sustained
as the order of removal suffers
from lack of jurisdiction. The petition
is, therefore, accepted and the
order, dated April 9, 1959 whereby
the Petitioner was removed from service,
is quashed. In the circumstances
of the case, there will be no
order as to costs.

Chapter 5
Delhi Police Est v. Lt Col S
K Loraiya 1972
DELHI SPECIAL POLICE ES-
TABLISHMENT, NEW DELHI v.
LT. COL. S. K. LORAIYA
PETITIONER: DELHI SPE-
CIAL POLICE ESTABLISHMENT,
NEW DELHI
of more than three years between
commission of offences and framing
of chargesCourt martial whether has
jurisdiction to try offences-Word jurisdiction
in s. 549(1) Cr. P.C. and
s. 125 Army Act, meaning of.
v.
HEADNOTE: The respondent
who was an army officer was alleged
RESPONDENT: LT. COL. S. K.
to have committed certain offences
LORAIYA
under the Indian Penal Code and the
DATE OF JUDGMENT24/08/1972Prevention
of Corruption Act 1947.
BENCH: DWIVEDI, S.N. The offences were alleged to have
BENCH: DWIVEDI, S.N. SHELAT, been committed in the year 1962.
J.M. PALEKAR, D.G.
The special judge, Gauhati charged
CITATION: 1972 AIR 2548 1973
SCR (1)1010 1972 SCC (2) 692 CI-
TATOR INFO : R 1986 SC1655 (8)
RF 1987 SC1878 (4)
ACT: Code of Criminal Procedure
1898, s. 549(1) and rules
made thereunderArmy Act 1950, ss.
122 and 125-Army officer charged
with offences under I.P.C. and Prevention
of Corruption Act 1947 by
Special Judge-Procedure under s.
549(1) and r. 3 not followed-Charges
whether liable to be quashed-Lapse
him with these offences in the year
1967. The High Court quashed the
charges on the ground inter alia that
the procedure in s. 549(1) Cr. P.C.
and the rules made thereunder had
not been followed. The appellant in
appeal by special leave to this Court
contended that since more than three
years had elapsed between the commission
of the offences and the framing
of the charges the court martial
had in view of s. 122(1) of the Army
Act ceased to have jurisdiction to

68 Delhi Police Est v. Lt Col S K Loraiya 1972
try the said offences and therefore s.
549(1) and the rules made thereunder
were not attracted to the case.
HELD, Section 549(1) Cr. P.C. is
designed to avoid the conflict of jurisdiction
in respect of offences which
are triable by both the ordinary criminal
court and the court- martial.
The clause for which he is liable to be
tried either by the court to which this
code applies or by a court martial
qualifies the preceding clause when
any person is charged with an offence
in s. 549(1). Accordingly the
phrase ,is liable to be tried either by
a court to which this Code applies or
a court martial imports. that the offence
for which the accused is to be
tried should be an offence of which
cognizance can be taken by an ordinary
criminal court as well as court
martial. The phrase is intended to
refer to the initial jurisdiction of the
two courts to take cognizance of the
case and not to their jurisdiction to
decide on merits. It was admitted
that both the ordinary criminal court
and the court martial had concurrent
jurisdiction with respect to the offences
for which the respondent had
been charged by the special judge.
So s. 549 and the rules made thereunder
were attracted to the case in
hand. [1013H-1014C] Again, subsection
(3) of s.122 of the Army Act
provides that while computing the
period of three years specified in subsection
(1), any time spent by the accused
as a prisoner of war or in enemy
territory, or in evading arrest after
the commission of the offence, shall
be excluded. On a con- joint reading
of sub-ss. (1) and (3) of s.122
it is evident that the court martial
and not the ordinary criminal court
has got jurisdiction to decide the issue
of limitation. If the court martial
finds that it cannot try the offence on
account of the expiry of three years
from the commission of the offence
the Central Government can under
s.127 of the Act sanction the trial of
the offender by an ordinary criminal
court. [1014D-F]
Section 125 of the Army Act provides
that when a criminal court and
a court martial have each jurisdiction
in respect of an offence, it shall be
in the discretion of the commanding
officer to decide before which court
the proceedings shall be instituted.
Section 125 supports the view that
the court martial alone has jurisdiction
to decide the issue as to limitation.
[1014H] The word jurisdiction
in s.125 really signifies the initial
jurisdiction to take congnizance of a
case. It refers to the stage at which
proceedings are instituted in a court
and not to the jurisdiction of the ordinary
criminal court and the court
martial to decide the case on merits.
Section 549(1) should be construed
in the light of s.125 of the Army Act.
Both the provisions have in mind
the object of avoiding a collision between
the ordinary criminal court
and the court martial. Both of them
should receive the same construction.
[1015B] It was an admitted fact that
in the present case the procedure
specified in rule 3 was not followed
by the Special Judge, Gauhati before
framing charges against the respondent.
Section 549(1) Cr.P.C. and
rule 3 are mandatory. Accordingly
the charges framed by the Special

Judge against the respondent could
not survive. [1013C]
JUDGMENT: CRIMINAL AP-
PELLATE JURISDICTION : Criminal
Appeal No. 79 of 1970. Appeal
by special leave from the judgment
and order dated May 23, 1969
of the Assam & Nagaland High Court
in Cr. Re- vision No. 31 of 1967.
D. Mukherjee, G. L. Sanghi and R.
N. Sachthey, for the appellant. A.
S. R. Chari and R. Nagaratnam, for
the respondent. The Judgment of
the Court was delivered by. Dwivedi,
J. The respondent, Lt. Col. S. K.
Loraiya, is in the army Service. In
November-December, 1962, he was
posted as Commander, 625, Air Field
Engineers, Tejpur. He was charged
under s. 120B, Indian Penal Code
read with s. 5 (1) (e) :and (d) and
s. 5(2) the Prevention of Corruption
Act and under ss. 467 and 471 I.P.C.
by the Special Judge, Gauhati, appointed
under the Prevention of Corruption
Act, in respect of the offences
alleged to have been committed by
him in November-December, 1962,
as Commander, 625, Air Field Engineers,
Tejpur. The trial started on
June 7, 1966. but the charges were
framed against him by the Special
Judge on January 7, 1967. The respondent
filed a revision against the
framing of the charges in the High
Court of Assam and Nagaland. The
High Court allowed the revision and
quashed the charges. Hence this appeal
by the Delhi Special Police Establishment,
New Delhi, by special
leave under Art. 136 of the Constitution.
The High Court quashed
the charges for two reasons : (1) The
69
charges were framed by the Special
Judge without following the procedure
specified in the Rules made under
s. 549 Cr.P.C.; and (2) the trial
was held in the absence of a sanction
by the appropriate authority under
S. 196A(2) of the Code of Criminal
Procedure in respect of the offences
under s. 5 of the Prevention
of Corruption Act. The High Court
took the view that such sanction was
essential as the offence under s. 5
of the Prevention of Corruption Act
is a non-cognizable offence. Counsel
for the appellant has submitted
that both the reasons given by the
High Court are erroneous. Taking
up the first reason first, s. 5(1)(b) of
the Criminal Law Amendment Act,
1966, could not give exclusive jurisdiction
to the Special Judge, Gauhati
lo try the respondent. It is true that
the trial started against him on June
7, 1966, but the charges were framed
on January 7, 1967, i.e., long after
June 7, 1966. Section 5(1)(b) does
not apply where charges are framed
after June 7, 1966. So, prima facie
both the ordinary criminal court and
court martial have concurrent jurisdiction
to try the respondent for the
aforesaid offences. And S. 549(1)
Cr.P.C. applies to such a situation.
The material part of S. 549(1) reads :
The Central Government may make
rules consistent with this Code and
the Army Act as to the cases in which
persons subject to military law shall
be tried by a court which this Code
applies or by a court martial; and
when any person is brought before a
Magistrate and charged with an offence
for which he is liable to be tried
either by a court to which this Code

70 Delhi Police Est v. Lt Col S K Loraiya 1972
applies or by a Court Martial, such
Magistrate shall have regard to such
rules and shall in appropriate cases
deliver him, together with a statement
of the offence of which he is accused,
to the commanding officer of
the regiment, corps . or detachment
to which he belongs or to the commanding
officer of the nearest military
station for the purpose of being
tried by Court Martial. The Central
Government has framed under
s. 549(1) Cr. P.C. rules which are
known as the Criminal Courts and
Courts Martial (Adjustment of jurisdiction)
Rules, 1952. The relevant
rule for our purpose is rule 3. It
requires that when a person subject
to military, naval or air force law is
brought before a Magistrate on accusation
of an offence for which he is
liable to be tried by a court martial
also, the Magistrate shall not proceed
with the case unless he is requested
to do so by the appropriate
military authority. He may, however,
proceed with the case if he is of opinion
that he should so proceed with
the case without being requested by
the said authority. Even in such a
case, the Magistrate has to give notice
to the Commanding Officer and
is not to make any order of conviction
or acquittal or frame charges or commit
the accused until the expiry of 7
days from the service of notice. The
Commanding Officer may inform the
Magistrate that in his opinion the accused
should be tried by the Court
Martial. Subsequent rules prescribe
the procedure which is to be followed
where the Commanding Officer has
given or omitted to give such information
to the magistrate. It is an ad-
mitted fact in this case that the procedure
specified in rule 3 was not followed
by the Special Judge, Gauhati
before framing charges against the
respondent. Section 549 (1) Cr.P.C.
and rule 3 are mandatory. Accordingly
the charges, framed by the Special
Judge against the respondent
cannot survive. But counsel for the
appellant has urged before us that in
the particular circumstances of this
case the respondent is not liable to
be tried by a Court Martial. Section
122(1) of the Army Act, 1950, provides
that no trial by court martial
of any person subject to the Army
Act for any offence shall be commenced
after the expiry of the period
of three years from the date of the
offence. The offences are alleged to
have been committed by the respondent
in November-December, 1962,.
So more than three years have expired
from the alleged commission of
the offence. It is claimed that having
regard to s. 122(1), the respondent is
not liable to be tried by court martial.
This argument is built on the
phrase is liable to be tried either by
the court to which this Code applies
or by a Court Martial in s. 549(1).
According to counsel for the appellant
this phrase connotes that the ordinary
criminal court as well as the
Court Martial should not only have
concurrent initial jurisdiction to take
cognizance of the case but should
also retain jurisdiction to try him up
to the last stage of conviction or acquittal.
We are unable to accept this
construction of the phrase. As regards
the trial of offences committed
by, army men, the Army Act draws
a threefold scheme. Certain offences

enume- rated in the Army Act are
exclusively triable by a Court- martial;
certain other offences are exclusively
triable by the ordinary criminal
courts; and certain other offences
are triable both by the ordinary
criminal court and the courtmartial.
In respect of the last category
both the courts have concurrent
jurisdiction. Section 549(1) Cr.
P.C. is designed to avoid the conflict
of jurisdiction in respect of the last
category of offences. The clause for
which he is liable to be tried either
by the court to which this Code applies
or by a court martial in our
view, qualifies the preceding clause
when any person is charged with an
offence in s. 549(1). Accordingly the
phrase is liable to be tried either by
a court to which this Code applies or
a court martial imports that the offence
for which the accused is to be
tried should be an offence of which
cognizance can be taken by an ordinary
criminal court as well as a court
martial. In our opinion, the phrase is
intended to refer to the initial jurisdiction
of. the two courts to take cognizance
of the case and not to their
jurisdiction to decide it on merits. It
is admitted that both the ordinary
criminal court and the Court Martial
have concurrent jurisdiction with
respect to the offences for which the
respondent has been charged by the
Special Judge. So, S. 549 and the
rules made thereunder are attracted
to the case at hand. Again, subsection
(3) of s. 122 of the Army
Act provides that while computing
the period of three years spectified
in sub-section any time spent by the
accused as a prisoner of war or in
71
enemy territory, or in evading arrest
after the commission of the offence.
shall be excluded. On a con joint
reading of sub-ss. (1) and of S. 122,
it is evident that the court martial
and not the ordinary criminal court
has got jurisdiction to decide the issue
of limitation. There it nothing on
record before us to indicate that the
respondent had not been evading arrest
after commission of the offence.
As the court martial has initial jurisdiction
to enter upon the enquiry
in the case, it alone is competent to
decide whether it retains jurisdiction
to try the respondent inspite of subs.
(1) of s. 122. The issue of limitation
is a part of the trial before it. If
the court- martial finds that the respondent
cannot be tried on account
of the expiry of three years from the
date of the commission of the offence,
he cannot be go scot free. Section 127
of the Army Act provides that when
a person is convicted or acquitted by
a court martial, he may, with the previous
sanction of the Central Government,
be tried again by an ordinary
criminal court for the same offence
or on the same facts. go it would be
open to the Central Government to
proceed against the respondent after
the court martial has recorded a finding
that it cannot try him on account
of the expiry of three years from the
date of the commission of the offence.
Section 125 of the Army Act provides
that when a criminal court and
a court martial have each jurisdiction
in respect of an offence, it shall be
in the discretion of the officer commanding
the army, army corps division
or independent brigade in which
the accused person is serving to de-

72 Delhi Police Est v. Lt Col S K Loraiya 1972
cide before which court the proceedings
shall be instituted and if that
officer decides that they should be
instituted before a court martial he
will direct that the accused person
shall be detained in military custody.
Sections 12 (1) and 12 5 both find
place in Chapter X of the Army Act.
Section 125 supports our view that
the court- martial alone has jurisdiction
to decide the issue of limitation
under s. 122(1). The word jurisdiction
in s. 125 really signifies the
initial jurisdiction to take cognizance
of a case. To put it in other words,
it refers to the stage at which proceedings
are instituted in a court and
not to the jurisdiction of the ordinary
criminal court and the court martial
to decide the case on merits. It appears
to us that s. 549 ( 1) should
be construed in the light of s. 126 of
the Army Act. Both the provisions
have in mind the object of avoiding a
collision between the ordinary criminal
court and the court martial. So
both of them should receive a similar
construction. In the result, we are
of opinion that the High Court has
rightly held that as the charges were
framed without following the procedure
specified in the rules framed under
s. 549 (1) Cr. P.C., they cannot
stand. As this finding of ours
is sufficient to dispose of this appeal,
we are not expressing any opinion on
the correctness or otherwise of the
second reason assigned by the High
Court for quashing the charges. The
appeal is dismissed. G.C Appeal dismissed.

Chapter 6
Capt Harish Uppal v. Union
Of India 1972
Captain Harish Uppal v. Union
Of India And Others on 27 November,
1972 Equivalent citations: 1973
AIR 258, 1973 SCR (2)1025 Bench:
Alagiriswami, A.
PETITIONER:
1973 AIR 258 1973 SCR (2)1025
1973 SCC (3) 319
CITATOR INFO :
RF 1991 SC 564 (5)
RF 1991 SC1070 (6)
ACT:
Army Act, 1950, Sections 158
and 160-Upward revision of sentence
Whether violative of natural justice
principle in the circumstances of the
case.
CAPTAIN HARISH UPPAL Army Act, Section 160-Whether
v.
opportunity to be heard necessary
RESPONDENT:
UNION OF INDIA AND OTH-
ERS
when Confirming Officer decides to
send back the matter to the Court
Martial for considering upward revision
of the sentence.
DATE OF JUDGMENT27/11/1972 Army Act, Sections 112 and 157-
BENCH:
Whether the words ’authority’ and
ALAGIRISWAMI, A.
BENCH:
Officer denote different authorities.
Army Act, Section 164-Whether opportunity
to be heard necessary be-
ALAGIRISWAMI, A.
fore confirmation of upward revision
VAIDYIALINGAM, C.A. of sentence by the Army Chief of the
CITATION:
Staff.
HEADNOTE:
The petitioner was found guilty
by the Court Martial (acting under
the Army Act) under section 392 IPC
of committing robberies of a bank
property and the private property

74 Capt Harish Uppal v. Union Of India 1972
of the Manager and peons of the
Batik during the period of the liberation
of Bangladesh, in Bangla Desh.
The Court Martial sentenced the petitioner
’to be cashiered’. When
the matter went to the Officer Commanding
under whom the petitioner
was working as an Officer, for confirmation
of the sentence u/s 153 of
the Act, he returned the same to
the Court Martial for re-considering
whether the upward revision of sentence
was necessary in the light of the
observations made by the Confirming
Officer. The Confirming Officer
had pointed out in his report that the
robberies were committed during the
liberation of Bangladesh where the
Indian Forces had gone as liberators
and as guardians and custodians of
the life and property of the people of
Bangladesh. Considering the nature
aid gravity and maintenance of high
standard of discipline in the Armed
Forces, the sentence awarded was not
commensurate. The Confirming Officer
further directed that the delinquent
officer should be given opportunity
to address the Court, if he so
de-sired, if the Court decides to enhance
the sentence. In the fresh proceedings
before the Court Martial,
the Officer did not present himself.
The Court Martial revoked the earlier
sentence and sentenced him to be
cashiered and to suffer rigorous imprisonment
for two years. The said
sentence was duly confirmed by the
Chief of the Army Staff. in the petition
challenging the legality of the
order under Art., 32 of the Constitution,
the petitioner contended that
the impugned order was bad for the
violation of the principle of natural
justice inasmuch as that the Court
Martial while re-considering the sentence
did not act as a free agent, that
no opportunity of being heard was
given to the Officer at the time of remand
and at the time of the final confirmation
by the Army Chief of the
Staff and that the revision was recommended
by an officer subordinate
in rank to the officer who convened
the Court Martial. In dismissing the
petition,
HELD : (i) Sec. 158 of the Army
Act describes the procedure regarding
the re-consideration of the sentence
by the Court Martial. In considering
a petition filed under Art.
32 of the Constitution, the only relevant
Article is Art. 21, and the procedure
established by law has been
cornpletely followed in this case. The
circumstances requiring the reconsideration
pointed out by the Officer
Commanding were unexceptionable
and there was no violation of the
principle of natural justice. The petitioner
failed to appear before the
Court Martial in the fresh bearing.
[1031 C-D]
A. K. Kraipak & Ors. Etc. v.
Union of India and Ors. [1970](1)
SCR 457 and Purtabpore Co. Ltd. v.
Cane Commissioner- of Bihar & Ors.
[1969] (2) SCR 807, distinguished.
(ii) No opportunity to be heard
was necessary before the Confirming
Officer formed the opinion to send
the case back to the Court Martial
for re-consideration of sentence.
[1032 C]
(ii) The words ’authority’ and
’Officer’ in Sec. 112 of the Army

Act have one and the same meaning.
The Officer recommending the
reconsideration of the sentence was
also an Officer commanding the Division
though he was only officiating
and was a Brigadier. The actual confirmation
of the enhanced sentence
was made by the Chief of Army Staff
who was higher in rank than the convening
Officer. [1033 C] (iv) In the
face of the very clear indication in
the Constitution, the provisions of
Code of Criminal Procedure cannot
be adopted in respect of Court Martial.
It is as open to the petitioner
to make a petition to the Chief of
the Army Staff under section 164 of
the Army Act which he did not do.
[1O33 H]
JUDGMENT:
ORIGINAL JURISDICTION :
Writ Petition No. 456 of 1972. Petition
under Article 32 of the Constitution
of India for a writ in the nature
of habeas corpus.
A. K. Sen and B. Datta for
the petitioner. F. S. Nariman.
Addl. Solicitor-General of India,
B. D. Sharma and S. P. Nayar for
the respondents. The Judgment of
the Court was delivered by ALA-
GIRISWAMI, J. The petitioner was
an officer of the Indian Army who
served in Bangla Desh. On 11th December,
1971 he was in a place called
Hajiganj. He was tried before the
Summary General Court Martial on
the charge of committing robbery at
Hajiganj by causing fear of instant
hurt to the Custodian of the United
Bank Ltd., of certain properties belonging
to the Bank and also the personal
property of the Manager of the
75
Bank as well as of a Chowkidar of the
Bank. The Court sentenced the petitioner
to be ’cashiered’. This sentence
was subject to confirmation under
the provisions of Chapter XII of
the Army Act, Maj-Gen. Hira, General
Officer Commanding, 23 Mountain
Division, of which the petitioner
was an officer, passed an order
directing the revision of the sentence.
Thereafter the petitioner was
brought before the same Court Martial,
as had tried him earlier, and he
was asked whether he wanted to address
the Court. On receiving a reply
in the negative, the Court, after considering
the observations of the confirming
authority, revoked the earlier
sentence which they had imposed on
the petitioner and sentenced him to
be cashiered and to suffer rigorous
imprisonment for two years. Brig. D.
P. Bhilla, the Officiating General Officer
Commanding 23 Mountain Division,
referred the finding and sentence
for confirmation to the Chief of
the Army Staff, who in due course
confirmed the finding and the sentence.
The present petition is filed
under Article 32 of the Constitution
for quashing the order passed by the
Chief of the Army Staff, after setting
aside the order passed by Maj-Gen.
Hira. Shri A. K. Sen appearing on
behalf of the petitioner raised four
points in support of his contention
that the order passed against, the petitioner
should be quashed:
1. The authority to confirm the
sentence passed by a Court Martial
does not confer on the confirming authority
the power to enhance the sentence.
That authority cannot, there-

76 Capt Harish Uppal v. Union Of India 1972
fore, achieve that object indirectly by
directing the revision of the sentence.
The Court Martial’s verdict should
be unfettered.
2. In any case, the confirming authority
should have given a hearing
to the affected party.
3. The confirmation can be made
only by the officer who convened the
Court Martial and not by a different
officer as was done in this case.
4. The officer who finally confirmed
the sentence on the petitioner
should also have heard the petitioner.
(1) The officer who convened the
Summary General Court Martial,
which tried the petitioner, was Maj-
Gen. Hira. It was he that directed
the revision of the sentence passed
on the petitioner. The argument is
that this order was in such terms that
the Court Martial which revised the
sentence was compelled to and was
left with no alternative but to enhance
the sentence and that this was
against all principles of natural justice.
Under Section 153 of the Army
Act no finding of a Court Martial
shall be valid except so far as it may
be confirmed as provided under the
Act’. Under Section 157 the findings
and sentences of summary general
courts martial may be confirmed
by the convening officer or if he so
directs, by an authority superior to
him. Under Section 158, a confirming
authority may, when confirming
the sentence of a court martial, mitigate
or remit the punishment thereby
awarded, or commute that punishment
for any punishment or punishments
lower in the scale laid down
in section 71. Under Section 160,
any finding or sentence of a court
martial which requires confirmation
may be once revised by order of the
confirming authority and on such revision,
the court, if so directed by
the confirming authority, may take
additional evidence. Even after revision
the sentence passed by the
court martial would have to be confirmed
because of provision of Section
153. The order passed by Maj-
Gen. Hira directing revision of the
sentence passed by the court martial
is as follows :
“The Summary General Court
Martial, which assembled at Field,
on 9 March 1972 and subsequent
days for the trial of IC-16394 Substantive
Lieut (Actg. Capt.) HAR-
ISH UPPAL, Arty, 198 Mountain
Regiment, will reassemble in open
court on 15 May 1972 at Field at
1000 hrs for the purpose of reconsidering
the sentence awarded by it,
whilst in no way intending the quantum
of punishment to be awarded,
the court should fully take into consideration
the following observations
of the Confirming Officer.
2. The accused was convicted
by the Court, under Army Act Section
69 for committing a civil offence,
that is to say, Robbery, contrary
to section 392 of the Indian Penal
Code, the particulars hereby averred
that he, at HAJIGANJ (BANGLA
DESH) on 11 December 1971, by
causing fear of instant hurt to the
Custodians committed Robbery in
respect of the undermentioned articles,
the property belonging to the
persons indicated as follows (a) The

property of the United Bank Ltd.
COMILLA Dist.
(i) Cash in Pakistan Currency.
Rs. 11,222.91 (ii) 28-12 Bore guns
Registered Two with s No. 027373
and 342. cartridges.
(iii) Wall clock. One
(iv) Telephone Set Auto TIP One
(Sky Blue)
(v) Telephone CE without One
hand set (Black)
(vi) Pens (eagle) Two
(vii) Locks with four keys TWO
(viii) Winter uniform of peons
and Two pairs guard.
(b) Personal property of Shri
MAKALAM, Manager, United Bank
Ltd., HAJIGANJ Branch: Wrist
Watch (Romer popular) One
(c) Personal property of Shri
Habibullah, Chowkidar, United
Bank Ltd., Hjiganj Branch: PAK-
ISTAN Currency Rs. 6/-
3. It is, therefore, apparent
that apart from the property of the
United Bank, Ltd., the accused committed
robbery in respect of the personal
properties of its two custodians
at a time when the War of liberation
of BANGLADESH was still
being waged on some fronts though
the hostility in the town had ceased
in HAJIGANJ area and the situation
was fast returning to normalcy.
4. It would be appreciated that
the charge of which the accused was
convicted is of a very serious nature.
The punishment of ’Cashiering,
therefore, awarded for the offence appears
to be palpably lenient. The
maximum punishment provided for
77
the offence under IPC Sec. 392 is
10 years RI. Even though the proper
amount of punishment to be inflicted
is the least amount by which discipline
can be effectively maintained, it
is nevertheless equally essential that
the punishment awarded should be
appropriate and commensurate with
the nature and gravity of the offence
and adequate for the maintenance
of the high standard of discipline
in the Armed Forces. It should
be clearly borne in mind that our
Forces had been ordered to march
into BANGLADESH as the liberators
of the oppressed people who had
been subjected to unotld torture and
miseries at the hands of Pak troops.
It is, therefore, clear that our Forces
had gone there as guardians and custodians
of the lives and property of
the persons of that country. The conduct
of the accused by indulging in
broad day light bank robbery is despicable
and his stooping so low as
to deprive Shri HABIBULLAH (PW-
2), Chowkidar of the United Bank
Ltd., of paltry amount of Rs. 6
in Pak currency as also his taking
away the Romer Wrist watch from
Shri MAKALAM (PW-4), Manager
of the said Bank, is indeed highly
reprehensible. Such actions on the
part of responsible officer of the Indian
Army are calculated to bring a
blot on the fair name of the Indian
Army. It is, therefore, our imperative
duty to ensure that such cases dealt
with firmly when a verdict of guilty
has been returned by the court.
5. There are certain norms and
standards’ of behaviour laid down in
the Armed Forces for strict adher-

78 Capt Harish Uppal v. Union Of India 1972
ence by persons who have the honour
to belong to the Corps of Officers of
the Indian Army. A person of the
rank, of an officer, who indulges in
such an offence, should, therefore, be
awarded suitable punishment. In the
course of six years commissioned service
he had once been convicted under
Army Act Sect-ion 41(2) for disobeying
a lawful command given by
his superior officer in the execution of
his duties for which he was severely
reprimanded on 13 June 1970.
6. The accused/or his defending
officer/counsel should be given
an opportunity to address the court,
if so desired. The court should
then carefully consider all the above
and should they decide to enhance
the sentence, then the fresh sentence
should be announced in open court
as being subject to confirmation.
7. The, attention of the court
is drawn to Army Act Section 160,
Army Rule 68 and the form of proceedings
on revision given on page
370 of N1ML (1961 Reprint), which
should be amended to conform to the
provisions of Army Rule 67(1).
8. After revision, the proceedings
shall be returned to this Headquarters.
Sd/-
(R. D. HIRA)
Maj-Gen.
General Officer Commanding 23
Mtn Div.
Field
03 May 1972.
It was contended that in the face
of such strong observations by the
General Officer Commanding the Division
the officers constituting the
court martial would have felt compelled
to enhance the sentence and
the revised sentence passed on the
petitioner was not the free act of the
court martial but one forced on them
by the Officer Commanding and that
this militates against the principle
of natural justice. But it should be
remembered that under the provisions
of the Army Act set out earlier
the confirming authority could
himself mitigate or remit the punishment
awarded by the court martial
or commute that punishment for
any lower punishment and, therefore,
when a sentence is directed to be revised
by the confirming authority it
necessarily means that the confirming
authority considers that the punishment
awarded by the court martial
is not commensurate with the
offence and it should, therefore, be
revised upwards. To object to this
is to object to the provisions of section
158 itself. A direction by the
confirming authority merely showing
that the punishment awarded by the
court martial is not commensurate
with the offence, would be certainly
unexceptionable and would be in accordance
with- the provisions of law.
Instead of baldly stating so the confirming
authority in this case has
given reasons as to why he considers
that the punishment awarded to the
petitioner was wholly inadequate.
We consider that the reasons,
given by him cannot be taken exception
to. It was urged that the confirming
authority proceeded on the
basis that in respect of the charges

against the petitioner the evidence
available was as he had set out in
his order directing revision and that
this was not correct. We must point
out that this Court cannot go into
the evidence in support of the charge
against the petitioner. Indeed the
court martial itself could not have
set out the evidence against the petitioner;
it should have only given
the finding and the sentence. Under
the provisions of Article 136(2) of the
Constitution this Court cannot grant
special leave in respect of any judgment,
determination or order passed
or made by any court or tribunal constituted
by or under any law relating
to the Armed Forces. In considering
a petition filed under Article
32 of the Constitution this Court
can only consider whether any fundamental
right of the petitioner has
been violated and the only Article
relevant is Article 21 of the Constitution.
There is no doubt that the
procedure estab- lished by law as required
under that Article has been
completely followed in this case.
It is, however, urged that the decisions
of this Court have laid down
that the rules of natural- justice operate
in areas not covered by any
law validly made and that they do
not supplant the law of the land but
supplement it and, therefore, though
the procedure established by law may
have been followed as required under
Article 21, the principles of natural
justice should also be followed.
The cases relied on are A. K. Kraipak
& Ors. etc. v. Union of India &
Ors. (1) and Purtabpore Co. Ltd. v.
Cane Commissioner of Bihar & Ors.
79
(2). This Court in the first decision
had pointed out that what particular
rule of natural justice should apply
to a given case must depend to
a great extent on the facts and circumstances
of that case, the frame
work of the law under which the enquiry
is held and the constitution of
the tribunal or body of persons appointed
for that purpose. It was also
pointed out that the Court has to decide
whether the observance of that
rule was necessary for a just decision
and that the rule that enquiries
must be held in good faith and without
bias and not arbitrarily or unreasonably
is now included among the
principles of natural justice. There is
no analogy between the facts of that
case and the present and applying
the ratio of that to the facts of this
case we are not satisfied that any rule
of natural justice has been violated.
The latter was a case where the authority
competent to pass the order
had simply passed an order adopting
what the Minister had directed and
had not applied his mind. The facts
of this case are quite different. The
confirming authority while pointing
out the facts had left the discretion
regarding the punishment to be imposed
to the court (1) [1970] 1 S.C.R.
457.(2) [1969] 2 S.C.R. 807 martial.
If the court martial in spite of the
direction given by the confirming authority
had reaffirmed its original order,
the confirming authority could
do nothing because it can exercise
its power of directing revision only
once, and that power was already
exhausted. Furthermore, when the
court martial reassembled to revise
its earlier order under the directions

80 Capt Harish Uppal v. Union Of India 1972
of the confirming authority, the petitioner
was given the reasons of the
confirming officer for requiring revision
and asked whether he wanted
to address, the court, he replied in
the negative. It was open to him to
have pointed out to the court martial
how the observations of the confirming
authority were wrong, how they
were not borne out by the evidence
on record. Having failed to avail himself
of the opportunity accorded to
him, the petitioner cannot be now
heard to complain that he was not
given an opportunity by the confirming
authority before he directed revision.
The court martial had originally
found the petitioner guilty of
the charge of robbery, under Section
392 of the Indian Penal Code. There
was, therefore, no question of the
court martial, when it proceeded to
reconsider the matter, of reconsidering
the finding of guilty. Therefore,
any attempt to question the order of
the confirming authority on the basis
that he relied upon facts which
were not proved for directing revision,
is wholly beside the point. And
as far as the question of sentence is
concerned, one cannot quarrel with
the sentiments expressed by the confirming
authority. We find ourselves
unable, therefore, to agree to petitioner’s
contention that the order of
the confirming authority directing revision
is in any way vitiated.
(2) We have already held above
that the confirming authority, when
he directed a revision of the sentence
passed on the petitioner, was only exercising
the powers conferred on him
by Section 160 of the Army Act. He
also made it clear,. that the court
martial was not bound by his opinion
by stating that should the court
martial decide to enhance the sentence
the fresh sentence should be
announced in open court as being
subject to confirmation. Right in the
beginning of his order he had also
stated ’Whilst in no way intending
the quantum of punishment to be
awarded, the court should fully take
into consideration the following observations’.
To hold in the circumstances
that the confirming authority
should have, heard the appellant
before he directed the revision of the
sentence passed on him would not be
a requirement of principle of natural
justice. In the circumstances and
facts of a case like the present one
where the petitioner had an opportunity
of putting forward whatever
contentions he wanted to rely upon
before the court martial, we do not
consider that there is any- substance
in this contention.
3) The contention here was that
while the court martial was convened
by a Maj-General the officer who directed
revision was a Brigadier, and
that only the convening officer can
confirm or direct revision. This is
perhaps the one contention with the
least substance put forward on behalf
of the petitioner. The contention is
based on the words found in Section
157 of the Army Act that the findings
and sentences of summary general
courts martial may be confirmed
by the convening officer or if he so
directs, by an authority superior to
him. The words ’convening officer’
and ’an authority superior to him are

sought to be contrasted and it is argued
that while a confirmation can
only be by a convening officer and by
no other, the authority superior to
hi-in may also confirm showing that
in the latter case neither the rank
of authority nor the person holding
the post is relevant. Section 112 of
the Act which deals with the power
to convene a summary general court
martial shows that this attempted
distinction between “authority” and
“officer” is without substance. The
officer is the authority and the authority
is the officer. Both the words
refer only to one person. To accept
this argument would mean that if the
officer who convened the court martial
is transferred to a distant place
or retires or is dead, the whole procedure
would have to be gone through
again. A useful comparison will be
of decisions under Article 311 of the
Constitution where it has been held
that the power to dial with an officer
under that Article can be exercised
even by an authority lower
in rank to the authority which originally
appointed the officer, if at the,
relevant period of time that authority
was competent to appoint the officer
sought to be dealt with. It may
be noted that in this case the officer
who convened the court martial was
a Maj-General Officer Commanding
the 23rd Mountain Division, and the
officer who directed that the findings
and sentence should be confirmed by
the Chief of Staff was also the officer
Commanding the same Division,
though he was only officiating and
was a Brigadier. The confirmation
itself was by the Chief of Army Staff,
higher in rank than the convening of-
ficer.
81
(4) The contention that Bring
Bhilla should either have given a
hearing to the petitioner or the Chief
of Army Staff should have given a
hearing to the petitioner before confirming
the subsequent sentence by
the court martial is not a requirement
under the Act. While it can be
at least said that there is some semblance
of reasonableness in the contention
that before he ordered what
in effect was an upward revision of
the sentence passed on the petitioner,
he should have been given a hearing,
to insist that the confirming authority
should give a hearing to the petitioner
before it confirmed the sentence
passed by the court martial,
is a contention which cannot be accepted.
To accept this contention
would mean that all the procedure
laid down by the Code of Criminal
Procedure should be adopted in respect
of the court martial, a contention
which cannot be accepted in
the face of the very clear indications
in the Constitution that the provisions
which are 1034
applicable to all the civil cases
are not applicable to cases; of Armed
Personnel. It is not a requirement of
the principles of natural justice. Indeed
when he was informed that the
subsequent sentence passed on him
had been sent to the Chief of the
Army Staff for confirmation it was
open to the petitioner to have availed
himself of the remedy provided tinder
Section 164 of presenting a petition
to the confirming officer, i.e. the
Chief of the Army Staff in this case.
He does not appear to have done so.

82 Capt Harish Uppal v. Union Of India 1972
We are, therefore, of the opinion that
there are no merits in this petition
and dismiss it.
S.B.W. Petition dismissed.

Chapter 7
O K Achudan Nair v. Union
of India 1975
Ous Kutilingal Achudan Nair &
Ors v. Union of India & Ors [1975]
INSC 284 (20 November 1975)
SARKARIA, RANJIT SINGH
SARKARIA, RANJIT SINGH RAY,
A.N. (CJ) BEG, M. HAMEEDUL-
LAH SHINGAL, P.N.
CITATION: 1976 AIR 1179 1976
SCR (2) 769 1976 SCC (2) 780
CITATOR INFO:
F 1983 SC 658 (10) E&R 1987 SC
379 (10) F 1987 SC 413 (2)
ACT:
Constitution of India, 1950-Art.
33-Scope of.
Army Act, 1950, S.. 2(1)-Civilian
employees of defence establishments-
If could form trade unions.
HEADNOTE:
On the question whether civilian
employees of Defence Establishments
have the right to form trade unions
under Art, 19(1) (c) of the Constitution,
HELD: Article 33 of the Consti-
tution provides an exception to the
Preceding Articles in Part III including
Act. 19(1)(c). By Art. 33, Parliament
is empowered to enact law
determining to what extent any of
the rights conferred by Part III shall.
in their application to the members
of the armed forces or forces charged
with the maintenance of public order,
be restricted or abrogated so as to
ensure the proper discharge of their
duties and the maintenance of discipline
among them. [770GH, 771A]
By virtue of s. 2(l) of the Army Act,
the Central Government was competent
to make rules restricting or
curtailing the Fundamental Rights of
civilian employees of Defence Establishments
to form trade unions under
Art.
19(1)(c) of the Constitution. Although
they are non- combatants and
are in some matters governed by
the civil service regulations, yet they
are? integral to the armed forces.
They answer the description of the
members of the armed forces within

84 O K Achudan Nair v. Union of India 1975
the contemplation of Art. 33. [771-
B-D]
CIVIL APPELLATE JURIS-
DICTION: Civil Appeal No. 18 ’1
of 1974.
Appeal by special leave from the
judgment and order dated the 18th
June 1974 of the Andhra Pradesh
High Court at Hyderabad in Writ
Appeal No. 460 of 1974.
K. R. Nambiar for the appellant.
L. N. Sinha, Sol. General of India
and Girish Chandra for respondents.
The Judgment of the Court was
delivered by SARKARIA, J. This is
an appeal by special leave against
a judgment of the High Court of
Andhra Pradesh. The appellants are
office-bearers of the Civil Employees
Unions in the various Centers of the
Defence Establishments of Secunderabad
and Hyderabad. They filed a
writ petition in the High Court to impugn
the authority of the Commandants
(Respondents 2 and 3 herein)
in declaring the Unions, represented
by the appellants as unlawful associations.
The Registrar of Trade-Unions
had issued Certificates of Registration
to the four Unions represented
by the appellants between 1954 and
1970. The General Secretary of Class
IV, Civil Employees Union, Bolaram,
Secunderabad was informed, per letter
dated 770 12-5-1971, by the Under
Secretary of the Government of
India, Ministry of Defence that their
Unions could not be granted recognition
as these employees being in the
Training Establishments, were not
entitled to form Unions. The Com-
mandant also issued a notice to the
appellants to show cause why disciplinary
action be not taken against
them for forming this unlawful association.
The main ground taken in the petition
was that the impugned action
was violative of their fundamental
right to form associations or Unions
conferred by Art. 19(1)(c) of the
Constitution.
In their reply-affidavit, the respondents
averred that the Civilian
Non-Combatants in the Defence Establishments
were governed by the
Army Act and were duly prohibited
by Rules framed thereunder from
joining or forming a Trade Union;
that the associations in question were
formed in breach of that prohibition,
and were therefore, validly declared
illegal.
The learned Judge of the High
Court, who tried the petition, held
that the right of the appellants to
form associations given by Art. 19(1)
(c) of the Constitution, had been
lawfully taken away. He accordingly
dismissed the petition.
The appellants carried an appeal
to the appellate Bench of the High
Court. The Bench dismissed the appeal
holding that the impugnea action
was not without jurisdiction.
The main contention of Mr. K.
R. Nambiyar, appearing for the appellants
is that the members of the
Unions represented by the appellants,
though attached to the Defence
Establishments, are civilians’,
designated as “Non- Combatants Un-
Enrolled”. They include cooks,

chowkidars, laskars, barbers, carpenters,
mechanics, boot makers, tailors
etc. They are governed by the
Civil Service Regulations for purposes
of discipline, leave, pay etc.
and are also eligible to serve up to
the age of 60 years unlike that of
the members of the Armed Forces.
In view of these admitted facts, proceeds
the argument, these categories
of civilian employees, attached to the
Defence Establishments, could not
be validly called “members of the
Armed Forces” covered by Art. 33 of
the Constitution. The points sought
to be made out are: that the members
of the appellants’ Unions are not
subject to the Army Act as they do
not fall under any of the categories
enumerated in sub-clauses (a) to (i)
of s. 2 of the Army Act, 1950, and
that the impugned notifications are
ultra vires the Army Act and are
struck by Arts. 19(1)(c) and 33 of
the Constitution.
For reasons that follow, the contentions
must be repelled.
Article 33 of the Constitution
provides an exception to the pre ceding
Articles in Part III including Art.
19(1) (c). By Article 33, Parliament
is empowered to enact law determining
to what extent any of the rights
conferred by Part III shall, in their
application, to the members of the
Armed Forces or Forces charged with
the main tenance of public order, be
restricted or abrogated so as to ensure
771 the proper discharge of their
duties and the maintenance of discipline
among them.
In enacting the Army Act, 1950,
in so far as it restricts or abrogates
85
any of the fundamental rights of the
members of the Armed Forces, Parliament
derives its competence from
Art.33 of the Constitution. Section
2(1) of the Act enumerates the persons
who are subject to the operation
of this Act. According to sub-clause
(i) of this section, persons governed
by the Act, include “persons not otherwise
subject to military law who,
on active service, in camp, on the
march or at any frontier post specified
by the Central Government by
notification in this behalf, are employed
by, or are in the service of, or
are followers of, or accompany any
portion of the regular army.” The
members of the Unions represented
by the appellants fall within this category.
It is their duty to follow
or accompany the Armed personnel
on active service, or in camp or on
the march. Although they are noncombatants
and are in some matters
governed by the Civil Service
Regulations, yet they are integral to
the Armed Forces. They answer the
description of the “members of the
Armed Forces” within the contemplation
of Art. 33. Consequently, by
virtue of s. 21 of the Army Act, the
Central Government was competent
by notification to make rules restricting
or curtailing their fundamental
rights under Art. 19(1) (c).
Rule 19(ii) of the Army Rules,
1954, imposes a restriction on the
fundamental rights in these terms.
“No persons subject to the Act
shall without the express sanction of
the Central Government:
(i) xx xx xx (ii) be a member of,
or be associated in any way with, any

86 O K Achudan Nair v. Union of India 1975
trade union or labour union, or any
class of trade or labour unions ” In
exercise of its powers under s.4 of
the Defence of India Act, the Government
of India has by notification
dated 11-2-1972, provided that all
persons not being members of the
Armed Forces of the Union, who are
attached to or employed with or following
the regular Army shall be subject
to the military law. The Army
Act, 1950, has also been made applicable
to them. By another notification
dated 23-2-1972, issued under
r.79, of the Army Rules, civilian
employees of the training establish-
ments and Military Hospitals have
been taken out of the purview of the
Industrial Disputes Act.
Section 9 of the Army Act further
empowers the Central Government
to declare by notification, persons
not covered by s. (i) of s. 3 also
as persons on active service.
772 In view of these notifications
issued under s.4 of the Defence of India
Act and the Army Rules, the appellants
can no longer claim any fundamental
right under Art. 19 (1) (c)
of the Constitution.
The appeal fails and is dismissed.
There will be no order as to costs.

Chapter 8
Maj Gen D.S. Nakara v.
Union Of India 1982
D.S. Nakara Others v. Union Of
India on 17 December, 1982 Equivalent
citations: 1983 AIR 130, 1983
SCR (2) 165 Bench: Desai, D.A.
PETITIONER:
D.S. NAKARA OTHERS
v.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT17/12/1982
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
CHANDRACHUD, Y.V. ((CJ)
TULZAPURKAR, V.D.
REDDY, O. CHINNAPPA (J)
ISLAM, BAHARUL (J)
CITATION:
1983 AIR 130 1983 SCR (2) 165
1983 SCC (1) 305 1982 SCALE
(2)1213
CITATOR INFO :
R 1983 SC 937 (34)
R 1984 SC 121 (28)
R 1984 SC1064 (18)
R 1984 SC1247 (1)
RF 1984 SC1361 (19)
RF 1984 SC1560 (2)
F 1985 SC1196 (2,7)
D 1985 SC1367 (39,43)
RF 1986 SC 210 (19,20,22,26)
R 1986 SC 584 (1)
R 1986 SC1907 (1,2)
R 1987 SC 943 (8)
RF 1987 SC2359 (17)
D 1988 SC 501 (3,4,6,7)
RF 1988 SC 740 (13)
D 1988 SC1291 (9)
R 1988 SC1645 (8)
D 1989 SC 665 (7)
F 1989 SC2088 (7)
R 1990 SC 334 (104)
RF 1990 SC 883 (6)
E 1990 SC1760 (9)

88 Maj Gen D.S. Nakara v. Union Of India 1982
RF 1990 SC1923 (3)
D 1990 SC2043 (2,7)
E 1991 SC1182 (6 TO
16,18,19,23)
RF 1991 SC1743 (1,2,4)
R 1992 SC 96 (11)
R 1992 SC 767 (2,4,TO 8,10)
ACT:
Constitution of India, Art. 14-
Central Civil Services (Pension)
Rules, 1972 and Regulations governing
pension for Armed Forces
Personnel-Liberalisation in computation
of pension effective from specified
date-Divides pensioners so as to
confer benefit on some while denying
it to others- Classification arbitrary,
devoid of rational nexus to object of
liberalisation and violative of Art. 14
Constitution of India, Art. 14-
Doctrine of severability-Severance
may have effect of enlarging scope of
legislation.
Rules and Regulations governing
grant of pension- Pension is a right-
Deferred portion of compensation for
service rendered-Also a social-welfare
measure.
HEADNOTE:
By a Memorandum dated May
25, 1979 (Exhibit P-1) the Government
of India liberalised the formula
for computation of pension in respect
of employees governed by the Central
Civil Services (Pension) Rules,
1972 and made it applicable to employees
retiring on or after March 31,
1979. By another Memorandum issued
on September 23, 1979 (Exhibit
P-2) it extended the same, subject
to certain limitations, to the Armed
Forces’ personnel retiring on or after
April 1, 1979. Petitioners 1 and 2
who had retired in the year 1972 from
the Central Civil Service and the
Armed Forces’ service respectively,
and petitioner No. 3, a registered society
espousing the cause of pensioners
all over the country, challenged
the validity of the above two memoranda
in so far as the liberalisation
in computation of pension had been
made applicable only to those retiring
on or after the date specified and
the benefit of liberalisation had been
denied to all those who had retired
earlier.
Counsel for petitioners contended
that all pensioners entitled to receive
pension under the relevant rules form
a class irrespective of the dates of
their retirement and there cannot be
a mini-classification within this class;
that the differential treatment accorded
to those who had retired prior
to the specified date is violative of
Art. 14 as the choice of specified date
is wholly arbitrary and the classification
based on the fortuitous circumstance
of retirement before or subsequent
to the specified date is invalid;
and that the scheme of liberalisation
in computation of pension must be
uniformly enforced with regard to all
pensioners.
Counsel for respondents contended
that a classification based on
the date of retirement is valid for the
purpose of granting pensionary benefits;
that the specified date is an
integral part of the scheme of liberalisation
and the Government would
never have enforced the scheme devoid
of the date; that the doctrine

of severability cannot be invoked to
sever the specified date from the
scheme as it would have the effect
of enlarging the class of pensioners
covered by the scheme and when the
legislature has expressly defined the
class to which the legislation applies
it would be outside the judicial function
to enlarge the class; that there
is not a single case where the court
has included some category within
the scope of provisions of a law to
maintain its constitutionality; that
since the scheme of liberalisation has
financial implications, the Court cannot
make it retroactive; that if more
persons divided the available cake
the residue falling to the share of
each, especially to the share of those
who are not before the court would
become far less and therefore no relief
could be given to the petitioners
that pension is always correlated to
the date of retirement and the court
cannot change the date of retirement
and impose fresh commutation benefit
which may burden the exchequer
to the tune of Rs. 233 crores; and
that the third petitioner has no locus
standi in the case.
Allowing the petitions,
HELD: Article 14 strikes at arbitrariness
in State action and ensures
fairness and equality of treatment.
It is attracted where equals
are treated differently without any
reasonable basis. The principle underlying
the guarantee is that all persons
similarly circumstanced shall be
treated alike both in privileges conferred
and liabilities imposed. Equal
laws would have to be applied to
all in the same situation and there
89
should be no discrimination between
one person and another if as regards
the subject-matter of the legislation
their position is substantially
the same. Article 14 forbids class legislation
but permits reasonable classification
for the purpose of legislation.
The classification must be
founded on an intelligible differentia
which distinguishes persons or things
that are grouped together from those
that are left out of the group and
that differentia must have a rational
nexus to the object sought to
be achieved by the statute in question.
In other words, there ought to
be causal connection between the basis
of classification and the object of
the statute. The doctrine of classification
was evolved by the Court for
the purpose of sustaining a legislation
or State action designed to help
weaker sections of the society. Legislative
and executive action may accordingly
be sustained by the court
if the State satisfies the twin tests
of reasonable classification and the
rational principle correlated to the
object sought to be achieved. A
discriminatory action is liable to be
struck down unless it can be shown
by the Government that the departure
was not arbitrary but was based
on some valid principle which in itself
was not irrational, unreasonable
or discriminatory.
[176 B, 178 D-E, 179 B-C, 177 C-
D, 179 C-D, 176 E-F, 179 H, 180 A-C]
Maneka Gandhi v. Union of India,
[1978] 2 S.C.R. 621; Ram Krishna
Dalmia v. Shri Justice S.R.
Tendolkar Ors., [1959] S.C.R. 279; In
re Special Courts Bill, [1979] 2 S.C.R,

90 Maj Gen D.S. Nakara v. Union Of India 1982
476; E.P Royappa v. State of Tamil
Nadu, [1974] 2 S.C.R. 348; Ajay Hasia
etc. v. Khalid Mujib Sehravardi
Ors., [1981] 2 S.C.R. 79; Air India
etc. v. Nargesh Meerza Ors., [1982]
1 S.C.R. 438 and Ramana Dayaram
Shetty v. International Airport Authority
of India Ors., [1979] 3 S.C.R.
1014, referred to.
In the instant case, looking to
the goals for the attainment of which
pension is paid and the welfare State
proposed to be set up in the light of
the Directive Principles of State Policy
and Preamble to the Constitution
it indisputable that pensioners
for payment of pension from a class.
When the State considered it necessary
to liberalise the pension scheme
in order to augment social security
in old age to government servants it
could not grant the benefits of liberalisation
only to those who retired
subsequent to the specified date and
deny the same to those who had retired
prior to that date. The division
which classified the pensioners into
two classes on the basis of the specified
date was devoid of any rational
principle and was both arbitrary and
unprincipled being unrelated to the
object sought to be achieved by grant
of liberalised pension and the guarantee
of equal treatment contained
in Art. 14 was violated inasmuch as
the pension rules which were statutory
in character meted out differential
and discriminatory treatment to
equals in the matter of computation
of pension from the dates specified in
the impugned memoranda. [190 F-H,
194 A-C, 194 F-H] (ii) Prior to the
liberalisation of the formula for com-
putation of pension average emoluments
of the last 36 months’ service
of the employee provided the measure
of pension. By the liberalised
scheme, it is now reduced to average
emoluments of the last 10 months’
service. Pension would now be on
the higher side on account of two fortuitous
circumstances, namely, that
the pay scales permit annual increments
and usually there are promotions
in the last one or two years of
the employee’s service. Coupled with
it a slab system for computation has
been introduced and the ceiling of
pension has been raised. Pensioners
who retired prior to the specified
date would suffer triple jeopardy,
viz., lower average emoluments, absence
of slab system and lower ceiling.
[191 A-D]
(iii) Both the impugned memoranda
do not spell out the raison
d’etre for liberalising the pension formula.
In the affidavit in opposition
it is stated that the liberalisation was
decided by the government in view of
the persistent demand of the employees
represented in the scheme of Joint
Consultative Machinery. This would
clearly imply that the pre-liberalised
scheme did not provide adequate protection
in old age, and that a further
liberalisation was necessary as
a measure of economic security. The
government also took note of the fact
that continuous upward movement of
the cost of living index and diminishing
purchasing power of rupee necessitated
upward revision of pension.
When the government favourably responded
to the demand it thereby

ipso facto conceded that there was a
larger available national cake, part of
which could be utilised for providing
higher security to retiring employees.
With this underlying intendment of
liberalisation, it cannot be asserted
that it was good enough only for
those who would retire subsequent to
the specified date but not for those
who had already retired. [191 F-G,
192 A, 191 H, 192 B]
2. If removal of arbitrariness can
be brought about by severing the
mischievous portion, the discriminatory
part ought to be removed retaining
the beneficial portion. [198 F]
In the instant case, the petitioners
do not challenge, but seek
the benefit of the liberalised pension
scheme. Their grievance is of the denial
to them of the same by arbitrary
introduction of words of limitation.
There is nothing immutable about
the choosing of an event as an eligibility
criteria subsequent to a specified
date. If the event is certain but
its occurrence at a point of time is
considered wholly irrelevant and arbitrarily
selected having an undesirable
effect of dividing a homogeneous
class and of introducing discrimination
the same can be easily severed
and set aside. It is therefore just
and proper that the words introducing
the arbitrary fortuitous circumstance
which are vulnerable as denying
equality be severed and struck
down. In Exhibit P-1 the words:
“That in respect of the Government
servants who were in service
on the 31st March, 1979 and retiring
from service on or after that date,
and in Exhibit P-2, the words:
91
the new rates of pension are effective
from Ist April 1979 and will
be applicable to all service officers
who became/become noneffective on
or after that date”
are unconstitutional and are
struck down with the specification
that the date mentioned therein will
be relevant as being one from which
the liberalised pension scheme becomes
operative. Omitting the unconstitutional
part it is declared that
all pensioners governed by the 1972
Rules and Army Pension Regulations
shall be entitled to pension as computed
under the liberalised pension
scheme from the specified date, irrespective
of the date of retirement.
Arrears of pension prior to the specified
date as per fresh computation is
not admissible. [190A-C, 198 G, 198
E-F, 205 F-H, 209 F-H, 210 A-D]
D.R. Nim v. UNion of India,
[1967] 2 S.C.R. 325; and Jaila Singh
Anr. v. State of Rajasthan Ors.,
[1975] Supp. S.C.R. 428, relied on.
Union of India Anr. v. M/s.
Parameswaran Match Works etc.,
[1975] 2 S.C.R. 573; and D.C. Gouse
Co. etc. v. State of Kerala Anr.
etc., [1980] 1 S.C.R. 804, explained
and distinguished.
Louisville Gas Co. v. Alabama
Power Co., 240 U.S. 30 [1927], referred
to.
(ii) The reading down of the impugned
memoranda by severing the
objectionable portion would not render
the liberalised pension scheme
vague, unenforceable or unworkable.
The Court is not legislating in reading
down the memoranda; when the

92 Maj Gen D.S. Nakara v. Union Of India 1982
Court strikes down the basis of classification
as violative of Art. 14 it
merely sets at naught the unconstitutional
portion retaining the constitutional
portion. There is no difficulty
in implementing the scheme
omitting the event happening after
the specified date, retaining the more
human formula for computation of
pension. The pension will have to be
recomputed in accordance with the
provisions of the liberalised pension
scheme as salaries were required to be
recomputed in accordance with the
recommendation of the Third Pay
Commission but becoming operative
from the specified date. The Court
is satisfied that the additional financial
liability that may be imposed by
bringing 169
in pensioners who retired prior
to April 1, 1979 within the fold of
the liberalised pension scheme is not
too high to be unbearable or such
as would have detracted the Government
from covering the old pensioners
under the scheme. The severance
of the nefarious unconstitutional part
does not adversely affect future pensioners
and their presence in these
petitions is irrelevant.
[204 G-H, 197 E-F, 206 B, 196 G,
208 G, 199 B] (iii) To say that by
its approach the Court is restructuring
the liberalised pension scheme is
to ignore the constitutional mandate.
The Court is not conferring benefits
by its approach; it is only removing
the illegitimate classification and after
its removal the law takes its own
course. [206 D-E]
(iv) It is not correct to say that
if the unconstitutional part is struck
down the Parliament would not have
enacted the measure. The executive,
with parliamentary mandate, liberalised
the pension scheme. It is implicit
in the scheme that the need
to grant a little higher rate of pension
to the pensioners was considered
eminently just. One could have understood
persons in the higher pay
bracket being excluded from the benefit
of the scheme because it would
have meant that those in the higher
pay bracket could fend for themselves.
Such is not the exclusion.
The exclusion is of a whole class of
people who retired before a certain
date. Parliament would not have
hesitated to extend the benefit otherwise
considered eminently just and
this becomes clearly discernible from
p.35 of the 9th Report of the Committee
on Petitions (6th Lok Sabha),
April 1979. [206 H, 207 A-E]
(v) Whenever classification is
held to be impermissible and the
measure can be retained by removing
the unconstitutional portion of
the classification, the resultant effect
may be of enlarging the class. In such
a situation the court can strike down
the words of limitation in an enactment.
That is what is called reading
down the measure. There is no principle
that severance limits the scope
of legislation but can never enlarge it.
[205 B-C] Jaila Singh Ors. v State of
Rajasthan Ors., [1975] Supp. S.C.R.
428 and Randhir Singh v. Union of
India Ors. [1982] 1 S.C.C. 618, relied
on.
(vi) The absence of precedent
does not deter the court. Every new
norm of socio-economic justice, every

new measure of social justice commenced
for the first time at some
point of time in history. If at that
time it was rejected as being without
a precedent, law as an instrument
of social engineering would have long
since been dead. [193 G, 193 C- D]
(vii) The court is not making
the scheme of liberalisation retroactive
by its approach. Retroactiveness
is implicit in the theory of wages.
When revised pay-scales are introduced
from a certain date, all existing
employees are brought on to the
revised scales adopting a theory of
fitments and increments for past service.
The benefit of revised scales is
not limited to those who enter service
subsequent to the date fixed for
introducing revised scales but is extended
to all those in service prior to
that date. Even in the case of the
new retiral benefit of gratuity under
the Payment of Gratuity Act, 1972,
past service was taken into consideration.
The scheme of liberalisation is
not a new retiral benefit; it is an upward
revision of an existing benefit.
Pension has correlation to average
emoluments and the length of qualifying
service and any liberalisation
would pro tanot ber etroactive in the
narrow sense of the term. Assuming
the government had not prescribed
the specified date and thereby provided
that those retiring, pre and
past the specified date, would all be
governed by the liberalised pension
scheme it would be both prospective
and retroactive. Only the pension
will have to be recomputed in the
light of the formula enacted in the
liberalised pension scheme and effec-
93
tive from the date the revised scheme
comes into force. A statute is not
properly called retroactive because a
part of the requisites for its action is
drawn from a time antecedent to its
passing.
(viii) There is no question of pensioners
dividing the pension fund
which, if more persons are admitted
to the scheme, would pro rata affect
the share. The pension scheme,
including the liberalised scheme, is
non-contributory in character. The
payment of pension is a statutory
liability undertaken by the Government.
Whatever becomes due and
payable on account of pension is
recognised as an item of expenditure
and is budgeted for every year.
At any given point of time there is
no fixed or pre-determined pension
fund which is divided amongst eligible
pensioners. [195 C-G] (ix) The
date of retirement of each employee
remaining as it is, there is no question
of fresh commutation of pension
of the pensioners who retired prior
to 31st March 1979 and have already
availed of the benefit of commutation.
It is not open to them to get
that benefit at this late date because
commutation has to be availed of
within the specified time limit from
the date of actual retirement. [206
C-D]
3. The discernible purpose underlying
the pension scheme must inform
the interpretative process and it
should receive a liberal construction.
[185 G-H]
(i) Pension is a right; not a
bounty or gratuitous payment. The
payment of pension does not depend

94 Maj Gen D.S. Nakara v. Union Of India 1982
upon the discretion of the Government
but is governed by the rules and
a government servant coming within
those rules is entitled to claim pension.
[186 A-B]
Deoki Nandan Prasad v.State of
Bihar Ors.,[1971] Supp. S.C.R. 634
and State of Punjab Anr.v Iqbal
Singh, [1976] 3 S.C.R. 360, referred
to.
(ii) The pension payable to a government
employee is earned by rendering
long and efficient service and
therefore can be said to be a deferred
portion of the compensation for service
rendered. [185 F]
(iii) Pension also has a broader
significance in that it is a socialwelfare
measure rendering socioeconomic
justice by providing economic
security in old age to those
who toiled ceaselessly in the hey-day
of their life. [185 D- E, 186 B-C]
(iv) Pension as a retirement benefit
is in consonance with and in furtherance
of the goals of the Constitution.
The goals for which pension
is paid themselves give a fillip and
push to the policy of setting up a
welfare state. The preamble to the
Constitution envisages the establishment
of a socialist republic. The basic
framework of socialism is to provide
a decent standard of life to the
working people and especially provide
security from cradle to grave.
Article 41 enjoins the State to secure
public assistance in old age, sickness
and disablement. Every state action
whenever taken must be directed and
must be so interpreted as to take society
one step towards the goal of es-
tablishing a socialist welfare society.
While examining the constitutional
validity of legislative/administrative
action, the touchstone of Directive
Principles of State Policy in the light
of the Preamble provides a reliable
yardstick to hold one way or the
other. [190 E,187 F,189 A-B,189 H]
Randhir Singh v. Union of India
Ors., [1982] I S.C.C. 618 and Minerva
Mills Ltd. Ors. v. Union of India
Ors., [1981] I S.C.R. 206, referred to.
4. Any member of the public
having sufficient interest can maintain
an action for judicial redress
for public injury arising from breach
of public duty or from violation of
some provision of the Constitution
or the law and seek enforcement of
such public duty and observance of
such constitutional or legal provision.
The locus standi of petitioner No.
3 which seeks to enforce rights that
may be available to a large number of
old, infirm retirees is unquestionable
as it is a non-political, non-profit,
voluntary organisation registered under
the Societies Registration Act,
1860 and its members consist of public
spirited citizens who have taken
up the cause of ventilating legitimate
public problems. [208 H, 209 A-C]
S.P.Gupta v. Union of India, [1981]
Supp. S.C.C.87, referred to.
JUDGMENT:
ORIGINAL JURISDICTION :
Writ Petition Nos. 5939-41 of 1980.
Anil B. Divan, Mrs. Vineeta Sen
Gupta and P.H.Parekh for the Petitioners
L.N.Sinha,Attorney General,
M.M. Abdul Khader, N. Nettar and

Miss A. Subhashini for Union of India.
G.L. Sanghi and Randhir Jain
for the interveners. S.R.Srivastava
for the Intervener.
K.K. Gupta for the Intervener.
The Judgment of the Court was
delivered by
DESAI,J.With a slight variation
to suit the context Woolesey’s prayer
: “had I served my God as reverently
as I did my king, I would not have
fallen on these days of penury” is
chanted by petitioners in this group
of petitions in the Shellian tune :
’I fall on the thorns of life I bleed.’
Old age, ebbing mental and physical
prowess, atrophy of both muscle and
brain powers permeating these petitions,
the petitioners in the fall of life
yearn for equality of treatment which
is being meted out to those who are
soon going to join and swell their own
ranks,
Do pensioners entitled to receive
superannuation or retiring pension
under Central Civil Services (Pension)
Rules, 1972 (’1972 Rules’ for
short) form a class as a whole ? Is the
date of retirement a relevant consideration
for eligibility when a revised
formula for computation of pension is
ushered in and made effective from
a specified date ? Would differential
treatment to pensioners related
to the date of retirement qua the
revised formula for computation of
pension attract Article 14 of the Constitution
and the element of discrimination
liable to be declared unconstitutional
as being violative of Art. 14
? These and the related questions debated
in this group of petitions call
95
for an answer in the backdrop of a
welfare State and bearing in mind
that pension is a socio-economic justice
measure providing relief when
advancing age gradually but irrevocably
impairs capacity to stand on
one’s own feet.
Factual matrix has little relevance
to the issues raised and canvassed
at the hearing. Petitioners 1
and 2 are retired pensioners of the
Central Government, the first being
a civil servant and the second being
a member of the service personnel of
the Armed Forces. The third petitioner
is a society registered under
the Societies Registration Act, 1860,
formed to ventilate the legitimate
public problems and consistent with
its objective it is espousing the cause
of the pensioners all over the country.
Its locus standi is in question
but that is a different matter. The
first petitioner retired in 1972 and on
computation, his pension worked out
at Rs. 675/- p.m. and along with
the dearness relief granted from time
to time, at the relevant time he was
in receipt of monthly pension of Rs.
935/-. The second petitioner retired
at or about that time and at the relevant
time was in receipt of a pension
plus dearness relief of Rs. 981/p.m.
Union of India has been revising
and liberalising the pension rules
from time to time. Some landmark
changes may be noticed.
The First Central Pay Commission
(1946-47) recommended that the
age of retirement in future should be
uniformly 58 years for all services and
the scale of pension should be 1/80 of
the emoluments for each year of ser-

96 Maj Gen D.S. Nakara v. Union Of India 1982
vice, subject to a limit of 35/80 with
a ceiling of Rs. 8,000 per year for
35 years of service, which the Government
of India while accepting the
recommendation raised to Rs. 8,100
per year which would earn a monthly
pension of Rs. 675 at the maximum.
The Second Central Pay Commission
(1957-58) re-affirmed that the
age of superannuation should be 58
years for all classes of public servants
but did not recommend any increase
in the non- contributory retirement
benefits and recommended
that if in future any improvement
is to be made, it was the considered
view of the Commission that
these benefits should be on a contributory
basis. The Administrative Reforms
Commission (’ARC’ for short)
set up by the Government of India in
1956 took note of the fact that the
cost of living has shot up and correspondingly
the possibility of savings
has gone down and consequently the
drop in wages on retirement is in reality
much steeper than what the quantum
of pension would indicate, and
accordingly the ARC recommended
that the quantum of pension admissible
may be raised to 3/6 of the emoluments
of the last three years of service
as against the existing 3/8 and
the ceiling should be raised from Rs.
675 p.m. to Rs. 1000 p.m. Before the
Government could take its decision
on the recommendations of the ARC,
the Third Central Pay Commission
was set up. One of the terms of
reference of the Third Pay Commission
was ’death-cum- retirement benefits
of Central Government employees’.
The Third Pay Commission did
not examine the question of relief to
pensioners because in its view unless
the terms of reference were suitably
amended it would not be within their
jurisdiction to examine this question
and on a reference by them, the
Government of India decided not to
amend the terms of reference. With
regard to the future pensioners the
Third Pay Commission while reiterating
that the age of superannuation
should continue to be 58 years further
recommended that no change
in the existing formula for computing
pension is considered necessary.
The only important recommendation
worth noticing is that the Commission
recommended that the existing
ceiling of maximum pension should
be raised from Rs. 675 to Rs. 1,000
p.m. and the maximum of the gratuity
should be raised from Rs. 24,000
to Rs. 30,000.
On May 25, 1979, Government
of India, Ministry of Finance, issued
Office Memorandum No. F-
19(3)-EV-79 whereby the formula for
computation of pension was liberalised
but made it applicable to Government
servants who were in service
on March 31, 1979 and retire
from service on or after that
date (specified date for short). The
formula introduced a slab system
for computation of pension. This
liberalised pension formula was applicable
to employees governed by
the 1972 Rules retiring on or after
the specified date. The pension
for the service personnel which
will include Army, Navy and Air
Force staff is governed by the relevant
regulations. By the Memorandum
of the Ministry of Defence bearing

No. B/40725/AG/PS4-C/1816/AD
(Pension)/Services dated September
28, 1979, the liberalised pension formula
introduced for the government
servants governed by the 1972 rules
was extended to the Armed Forces
personnel subject to limitations set
out in the memorandum with a condition
that the new rules of pension
would be effective from April 1,
1979, and may be applicable to all
service officers who become/became
non-effective on or after that date.
(for short specified date).
The chronology of events herein
narrated would bring to surface the
contentions raised in these petitions.
The liberalised pension formula shall
be applicable prospectively to those
who retired on or after March 31,
1979 in case of government servants
covered by 1972 Rules and in respect
of defence personnel those who
became/become non-effective on or
after April 1, 1979. Consequently
those who retired prior to the specified
date would not be entitled to
the benefits of the liberalised pension
formula. Petitioners accordingly
contend that this Court may
consider the raison d’etre for payment
of pension. If the Pension
is paid for past satisfactory service
rendered, and to avoid destitution
in old age as well as a social welfare
or socio-economic justice measure,
the differential treatment for
those retiring prior to a certain date
and those retiring subsequently, the
choice of the date being wholly arbitrary,
would be according differential
treatment to pensioners who form a
class irrespective of the date of re-
97
tirement and, therefore, would be violative
of Art. 14. It was also contended
that classification based on
fortuitous circumstance of retirement
before or subsequent to a date, fixing
of which is not shown to be related
to any rational principle, would
be equally violative of Art. 14. Primary
contention is that the pensioners
of the Central Government form a
class for purpose of pensionary benefits
and there could not be miniclassification
within the class designated
as pensioners. The expression
’pensioner’ is generally understood in
contra-distinction to the one in service.
Government servants in service,
in other words, those who have not
retired, are entitled to 175
salary and other allowances.
Those who retire and are designated
as ’pensioners’ are entitled to receive
pension under the relevant rules.
Therefore, this would clearly indicate
that those who render service and retire
on superannuation or any other
mode of retirement and are in receipt
of pension are comprehended in the
expression ’pensioners’.
Is this class of pensioners further
divisible for the purpose of ’entitlement’
and ’payment’ of pension into
those who retired by certain date and
those who retired after that date ? If
date of retirement can be accepted
as a valid criterion for classification,
on retirement each individual government
servant would form a class by
himself because the date of retirement
of each is correlated to his birth
date and on attaining a certain age
he had to retire. It is only after the
recommendations of the Third Cen-

98 Maj Gen D.S. Nakara v. Union Of India 1982
tral Pay Commission were accepted
by the Government of India that the
retirement dates have been specified
to be 12 in number being last day of
each month in which the birth date
of the individual government servant
happens to fall. In other words, all
government servants who retire correlated
to birth date on attaining
the age of superannuation in a given
month shall not retire on that date
but shall retire on the last day of the
month. Now, if date of retirement
is a valid criterion for classification,
those who retire at the end of every
month shall form a class by themselves.
This is too microscopic a classification
to be upheld for any valid
purpose. Is it permissible or is it violative
of Art. 14 ? The scope, content
and meaning of Article 14 of the
Constitution has been the subjectmatter
of intensive examination by
this Court in a catena of decisions.
It would, therefore, be merely adding
to the length of this judgment to recapitulate
all those decisions and it is
better to avoid that exercise save and
except referring to the latest decision
on the subject in Maneka Gandhi v.
Union of India(1) from which the following
observation may be extracted:
“...... what is the content and
reach of the great equalising principle
enunciated in this article ? There
can be no doubt that it is a founding
faith of the Constitution. It is indeed
the pillar on which rests securely the
foundation of our democratic republic.
And, therefore, it must not be
subjected to a narrow, pedantic or
lexicographic approach. No attempt
should be made to truncate its all-
embracing scope and meaning for, to
do so would be to violate its activist
magnitude. Equality is a dynamic
concept with many aspects and dimensions
and it cannot be imprisoned
within traditional and doctrinaire
limits..... Article 14 strikes at
arbitrariness in State action and ensures
fairness and equality of treatment.
The principle of reasonableness,
which legally as well as philosophically,
is an essential element
of equality or non-arbitrariness pervades
Article 14 like a brooding omnipresence.”
The decisions clearly lay down
that though Art. 14 forbids class
legislation, it does not forbid reasonable
classification for the purpose
of legislation. In order, however, to
pass the test of permissible classification,
two conditions must be fulfilled,
viz., (i) that the classification
must be founded on an intelligible
differentia which distinguishes persons
or things that are grouped together
from those that are left out
of the group; and (ii) that differentia
must have a rational relation to the
objects sought to be achieved by the
statute in question. (see Shri Ram
Krishna Dalmia v. Shri Justice S.R.
Tendolkar Others.(1) The classification
may be founded on differential
basis according to objects sought to
be achieved but what is implicit in
it is that there ought to be a nexus
i.e., causal connection between the
basis of classification and object of
the statute under consideration. It
is equally well settled by the decisions
of this Court that Art. 14 condemns
discrimination not only by a

substantive law but also by a law of
procedure. After an exhaustive review
of almost all decisions bearing
on the question of Art. 14, this Court
speaking through Chandrachud, C.J.
in Re. Special Courts Bill (2) restated
the settled propositions which
emerged from the judgments of this
Court undoubtedly insofar as they
were relevant to the decision on the
points arising for consideration in
that matter. Four of them are apt
and relevant for the present purpose
and may be extracted. They are:
“3. The constitutional command
to the State to afford equal protection
of its laws sets a goal not attainable
by the invention and application
of a precise formula. Therefore,
classification need not be constituted
by an exact or scientific exclusion or
inclusion of persons or things. The
Courts should not insist on delusive
exactness or apply doctrinaire tests
for determining the validity of classification
in any given case. Classification
is justified if it is not palpably
arbitrary.
4. The principle underlying the
guarantee of Article 14 is not that the
same rules of law should be applicable
to all persons within the Indian
territory or that the same remedies
should be made available to them irrespective
of differences of circumstances.
It only means that all persons
similarly circumstanced shall be
treated alike both in privileges conferred
and liabilities imposed. Equal
laws would have to be applied to
all in the same situation, and there
should be no discrimination between
one person and another if as re-
99
gards the subject matter of the legislation
their position is substantially
the same.
6. The law can make and set
apart the classes according to the
needs and exigencies of the society
and as suggested by experience. It
can recognise even degree of evil, but
the classification should never be arbitrary,
artificial or evasive.
7. The classification must not
be arbitrary but must be rational,
that is to say, it must not only be
based on some qualities or characteristics
which are to be found in all
the persons grouped together and not
in others who are left out but those
qualities or characteristics must have
a reasonable relation to the object
of the legislation. In order to pass
the test, two conditions must be fulfilled,
namely, (1) that the classification
must be founded on an intelligible
differentia which distinguishes
those that are grouped together from
others and (2) that differentia must
have a rational relation to the object
sought to be achieved by the Act.”
The other facet of Art. 14 which
must be remembered is that it eschews
arbitrariness in any form. Article
14 has, therefore, not to be held
identical with the doctrine of classification.
As was noticed in Maneka
Gandhi’s case in the earliest stages of
evolution of the Constitutional law,
Art. 14 came to be identified with
the doctrine of classification because
the view taken was that Art. 14 forbids
discrimination and there will be
no discrimination where the classification
making the differentia fulfils
the aforementioned two conditions.

100 Maj Gen D.S. Nakara v. Union Of India 1982
However, in EP. Royappa v. State of
Tamil Nadu(1), it was held that the
basic principle which informs both
Arts. 14 and 16 is equality and inhibition
against discrimination. This
Court further observed as under:
“From a positivistic point of
view, equality is antithetic to arbitrariness.
In fact, equality and arbitrariness
are sworn enemies; one
belongs to the rule of law in a republic
while the other, to the whim
and caprice of an absolute monarch.
Where an act is arbitrary it is implicit
in it that it is unequal both
according to political logic and constitutional
law and is, therefore, violative
of Art. 14, and if it affects
any matter relating to public employment,
it is also violative of Art. 16.
Articles 14 and 16 strike at arbitrariness
in State action and ensure fairness
and equality of treatment.”
Justice Iyer has in his inimitable
style dissected Art. 14 as under:
“The article has a pervasive processual
potency and versatile quality,
equalitarian in its soul and allergic
to discriminatory diktats. Equality
is the antithesis of arbitrariness
and ex cathedra ipse dixit is
the ally of demagogic authoritarianism.
Only knight- errants of ’executive
excesses’-if we may use current
cliche-can fall in love with the Dame
of despotism, legislative or administrative.
If this Court gives in here it
gives up the ghost. And so it that I
insist on the dynamics of limitations
on fundamental freedoms as implying
the rule of law; be you ever so high,
the law is above you.”(2)
Affirming and explaining this
view, the Constitution Bench in
Ajay Hasia etc. v. Khalid Mujib
Sehravardi others etc. (3) held that
it must, therefore, now be taken to be
well settled that what Art.14 strikes
at is arbitrariness because any action
that is arbitrary must necessarily
involve negation of equality. The
Court made it explicit that where an
act is arbitrary it is implicit in it that
it is unequal both according to political
logic and constitutional law and
is, therefore, violative of Art. 14. After
a review of large number of decisions
bearing on the subject, in Air
India etc. etc. v. Nargesh Meerza
Ors. etc etc. (1) the Court formulated
propositions emerging from
analysis and examination of earlier
decisions. One such proposition held
well established is that Art. 14 is
certainly attracted where equals are
treated differently without any reasonable
basis.
Thus the fundamental principle is
that Art. 14 forbids class legislation
but permits reasonable classification
for the purpose of legislation which
classification must satisfy the twin
tests of classification being founded
on an intelligible differntia which distinguishes
persons or things that are
grouped together from those that are
left out of the group and that differentia
must have a rational nexus to
the object sought to be achieved by
the statute in question.
As a corrolary to this well established
proposition, the next question
is, on whom the burden lies
to affirmatively establish the rational
principle on which the classifica-

tion is founded correlated to the object
sought to be achieved ? The
thrust of Art. 14 is that the citizen
is entitled to equality before law
and equal protection of laws. In the
very nature of things the society being
composed of unequals a welfare
state will have to strive by both executive
and legislative action to help
the less fortunate in the society to
ameliorate their condition so that the
social and economic inequality in the
society may be bridged. This would
necessitate a legislation applicable to
a group of citizens otherwise unequal
and amelioration of whose lot is the
object of state affirmative action. In
the absence of doctrine of classification
such legislation is likely to flounder
on the bed rock of equality enshrined
in Art. 14. The court realistically
appraising the social stratification
and economic inequality and
keeping in view the guidelines on
which the State action must move
as constitutionally laid down in part
IV of the Constitution, evolved the
doctrine of classification. The doctrine
was evolved to sustain a legislation
or State action designed to help
weaker sections of the society or some
such segments of the society in need
of succor. Legislative and executive
action may accordingly be sustained
if it satisfies the twin tests of reasonable
classification and the rational
principle correlated to the object
sought to be achieved. The State,
therefore, would have to affirmatively
satisfy the Court that the twin tests
have been satisfied. It can only be
satisfied if the State establishes not
only the rational principle on which
classification is founded but corre-
101
late it to the objects sought to be
achieved. This approach is noticed in
Ramana Dayaram Shetty v. The International
Airport Authority of India
Ors.(1) when at page 1034, the
Court observed that a discriminatory
action of the Government is liable
to be struck down, unless it can be
shown by the Government that the
departure was not arbitrary, but was
based on some valid principle which
in itself was not irrational, unreasonable
or discriminatory. The basic
contention as hereinbefore noticed is
that the pensioners for the purpose
of receiving pension form a class and
there is no criterion on which classification
of pensioners retiring prior
to specified date and retiring subsequent
to that date can provide a rational
principle correlated to object,
viz., object underlying payment of
pensions. In reply to this contention
set out in para 19 of the petition, Mr.
S.N. Mathur, Director, Ministry of
Finance in part 17 of his affidavit-inopposition
on behalf of the respondents
has averred as under:
“The contentions in part 18 and
19 that all pensioners form one class
is not correct and the petitioners
have not shown how they form one
class. Classification of pensioners on
the basis of their date of retirement is
a valid classification for the purpose
of pensionary benefits.”
These averments would show at a
glance that the State action is sought
to be sustained on the doctrine of
classification and the criterion on
which the classification is sought to
be sustained is the date of retirement
of the Government servant which en-

102 Maj Gen D.S. Nakara v. Union Of India 1982
titled him to pension. Thus according
to the respondents, pensioners
who retire from Central Government
service and are governed by the relevant
pension rules all do not form a
class but pensioners who retire prior
to a certain date and those who retire
subsequent to a certain date form
distinct and separate classes. It may
be made clear that the date of retirement
of each individual 181
pensioner is not suggested as a
criterion for classification as that
would lead to an absurd result, because
in that event every pensioner
relevant to his date of retirement will
form a class unot himself. What
is suggested is that when a pension
scheme undergoes a revision and is
enforced effective form a certain date,
the date so specified becomes a sort
of a Rubicon and those who retire
prior to that date form one class and
those who retire on a subsequent date
form a distinct and separate class
and no one can cross the Rubicon.
And the learned Attorney General
contended that this differentiation is
grounded on a rational principle and
it has a direct correlation to the object
sought to be achieved by liberalised
pension formula.
The approach of the respondents
raises a vital and none too easy of
answer, question as to why pension
is paid. And why was it required
to be liberalised ? Is the employer,
which expression will include even
the State, bound to pay pension ? Is
there any obligation on the employer
to provide for the erstwhile employee
even after the contract of employment
has come to an end and the em-
ployee has ceased to render service ?
What is a pension ? What are the
goals of pension ? What public interest
or purpose, if any, it seeks to serve
? If it does seek to serve some public
purpose, is it thwarted by such artificial
division of retirement pre and
post a certain date ? We need seek
answer to these and incidental questions
so as to render just justice between
parties to this petition.
The antiquated notion of pension
being a bounty a gratituous payment
depending upon the sweet will or
grace of the employer not claimable
as a right and, therefore, no right
to pension can be enforced through
Court has been swept under the carpet
by the decision of the Constitution
Bench in Deoki Nandan Prasad
v. State of Bihar Ors. (1) wherein
this Court authoritatively ruled that
pension is a right and the payment
of it does not depend upon the discretion
of the Government but is governed
by the rules and a Government
servant coming within those rules is
entitled to claim pension. It was further
held that the grant of pension
does not depend upon any one’s discretion.
It is only for the purpose
of quantifying the amount having regard
to service and other allied matters
that it may be necessary for the
authority to pass an order to that effect
but the right to receive pension
flows to the officer not because of any
such order but by virtue of the rules.
This view was reaffirmed in State of
Punjab Anr. v. Iqbal Singh (1).
There are various kinds of pensions
and there are equally various
methods of funding pension pro-

grammes. The present enquiry is
limited to non-contributory superannuation
or retirement pension paid
by Government to its erstwhile employee
and the purpose and object
underlying it. Initially this class of
pension appears to have been introduced
as a reward for loyal service.
Probably the alien rulers who recruited
employees in lower echelons
of service from the colony and exported
higher level employees from
the seat of Empire, wanted to ensure
in the case of former continued
loyalty till death to the alien
rulers and in the case of latter, an
assured decent living standard in old
age ensuring economic security at the
cost of the colony. In the course of
transformation of society from feudal
to welfare and as socialistic thinking
acquired respectability, State obligation
to provide security in old age,
an escape from undeserved want was
recognised and as a first step pension
was treated not only as a reward
for past service but with a view to
helping the employee to avoid destitution
in old age. The quid pro
quo, was that when the employee was
physically and mentally alert he rendered
unot master the best, expecting
him to look after him in the fall
of life. A retirement system therefore
exists solely for the purpose of
providing benefits. In most of the
plans of retirement benefits, everyone
who qualifies for normal retirement
receives the same amount. (see
Retirement Systems for Public Employees
by Bleakney, page 33.)
As the present case is concerned
with superannuation pension, a brief
103
history of its initial introduction in
early stages and continued existence
till today may be illuminating. Superannuation
is the most descriptive
word of all but has become obsolescent
because it seems ponderous. Its
genesis can be traced to the first Act
of Parliament (in U.K.) to be concerned
with the provision of pensions
generally in public offices. It was
passed in 1810. The Act which substantively
devoted itself exclusively
to the problem of superannuation
pension was superannuation Act of
1834. These are landmarks in pension
history because they attempted
for the first time to establish a comprehensive
and uniform scheme for
all whom we may now call civil servants.
Even before the 19th century,
the problem of providing for public
servants who are unable, through old
age or incapacity, to continue working,
has been recognised, but methods
of dealing with the problem varied
from society to society and even
occasionally from department to department.
A political society which has
a goal of setting up of a welfare
State, would introduce and has in
fact introduced as a welfare measure
wherein the retiral benefit is
grounded on ’considerations of State
obligation to its citizens who having
rendered service during the useful
span of life must not be left to penury
in their old age, but the evolving concept
of social security is a later day
development’. And this journey was
over a rough terrain. To note only
one stage in 1856 a Royal Commission
was set up to consider whether

104 Maj Gen D.S. Nakara v. Union Of India 1982
any changes were necessary in the
system established by the 1834 Act.
The Report of the Commission is
known as “Northcote-Trevelyan Report”.
The Report was pungent in
its criticism when it says that: “in
civil services comparable to lightness
of work and the certainty of provision
in case of retirement owing to
bodily incapacity, furnish strong inducements
to the parents and friends
of sickly youths to endeavour to obtain
for them employment in the service
of the Government, and the extent
to which the public are consequently
burdened; first with the
salaries of officers who are obliged to
absent themselves from their duties
on account of ill health, and afterwards
with their pensions when they
retire on the same plea, would hardly
be credited by those who have not
had opportunities of observing the
operation of the system” (see Gerald
Rhodes, Public Sector Pensions, pp.
18-19).
This approach is utterly unfair
because in modern times public services
are manned by those who enter
at a comparatively very young age,
with selection through national competitive
examination and ordinarily
the best talent gets the opportunity.
Let us therefore examine what
are the goals that pension scheme
seeks to subserve ? A pension
scheme consistent with available resources
must provide that the pensioner
would be able to live: (i)
free from want, with decency, independence
and self-respect, and (ii)
at a standard equivalent at the preretirement
level. This approach may
merit the criticism that if a developing
country like India cannot provide
an employee while rendering service
a living wage, how can one be assured
of it in retirement ? This can
be aptly illustrated by a small illustration.
A man with a broken arm
asked his doctor whether he will be
able to play the piano after the cast is
removed. When assured that he will,
the patient replied, ’that is funny, I
could not before’. It appears that determining
the minimum amount required
for living decently is difficult,
selecting the percentage representing
the proper ratio between earnings
and the retirement income is
harder. But it is imperative to note
that as self- sufficiency declines the
need for his attendance or institutional
care grows. Many are literally
surviving now than in the past.
We owe it to them and ourselves that
they live, not merely exist. The philosophy
prevailing in a given society
at various stages of its development
profoundly influences its social
objectives. These objectives are in
turn a determinant of a social policy.
The law is one of the chief instruments
whereby the social policies
are implemented and ’pension is
paid according to rules which can be
said to provide social security law by
which it is meant those legal mechanisms
primarily concerned to ensure
the provision for the individual of a
cash income adequate, when taken
along with the benefits in kind provided
by other social services (such
as free medical aid) to ensure for
him a culturally acceptable minimum
standard of living when the normal
means of doing so failed’. (see Social

Security law by Prof. Harry Calvert,
p. 1).
Viewed in the light of the present
day notions pension is a term applied
to periodic money payments to a person
who retires at a certain age considered
age of disability; payments
usually continue for the rest of the
natural life of the recipient. The
reasons underlying the grant of pension
vary from country to country
and from scheme to scheme. But
broadly stated they are (i) as compensation
to former members of the
armed forces or their dependents for
old age, disability, or death (usually
from service causes), (ii) as old age
retirement or disability benefits for
civilian employees, and (iii) as social
security payments for the aged,
disabled, or deceased citizens made
in accordance with the rules governing
social service programmes of the
country. Pensions under the first
head are of great antiquity. Under
the second head they have been in
force in one form or another in some
countries for over a century but those
coming under the third head are relatively
of recent origin, though they
are of the greatest magnitude. There
are other views about pensions such
as charity, paternalism, deferred pay,
rewards for service rendered, or as a
means or promoting general welfare
(see Encyclopaedia Britannica, Vol.
17 p.575.) But these views have become
otiose.
Pension to civil employees of the
Government and the defence personnel
as administered in India appear
to be a compensation for service rendered
in the past. However, as held
105
in Douge v. Board of Education(1)
a pension is closely akin to wages
in that it consists of payment provided
by an employer, is paid in consideration
of past service and serves
the purpose of helping the recipient
meet the expenses of living. This appears
to be the nearest to our approach
to pension with the added
qualification that it should ordinarily
ensure freedom from undeserved
want. Summing-up it can be said
with confidence that pension is not
only compensation for loyal service
rendered in the past, but pension also
has a broader significance, in that it
is a measure of socio-economic justice
which inheres economic security in
the fall of life when physical and mental
prowess is ebbing corresponding
to aging process and therefore, one is
required to fall back on savings. One
such saving in kind is when you gave
your best in the hey-day of life to
your employer, in days of invalidity,
economic security by way of periodical
payment is assured. The term has
been judicially defined as a stated allowance
or stipend made in consideration
of past service or a surrender
of rights or emoluments to one retired
from service. Thus the pension
payable to a Government employee is
earned by rendering long and efficient
service and therefore can be said to
be a deferred portion of the compensation
or for service rendered. In one
sentence one can say that the most
practical raison d’etre for pension is
the inability to provide for oneself
due to old age. One may live and
avoid unemployment but not senility
and penury if there is nothing to fall
back upon.

106 Maj Gen D.S. Nakara v. Union Of India 1982
The discernible purpose thus underlying
pension scheme or a statute
introducing the pension scheme must
inform interpretative process and accordingly
it should receive a liberal
construction and the courts may not
so interpret such statute as to render
them inane (see American Jurisprudence
2d. 881).
From the discussion three things
emerge : (i) that pension is neither
a bounty nor a matter of grace depending
upon the sweet will of the
employer and that it creates a vested
right subject to 1972 rules which are
statutory in character because they
are enacted in exercise of powers conferred
by the proviso to Art. 309 and
clause (5) of Art. 148 of the Constitution
; (ii) that the pension is not
an ex-gratia payment but it is a payment
for the past service rendered ;
and (iii) it is a social welfare measure
rendering socio-economic justice
to those who in the hey-day of their
life ceaselessly toiled for the employer
on an assurance that in their old age
they would not be left in lurch. It
must also be noticed that the quantum
of pension is a certain percentage
correlated to the average emoluments
drawn during last three years
of service reduced to ten months under
liberalised pension scheme. Its
payment is dependent upon an additional
condition of impeccable behaviour
even subsequent to requirement,
that is, since the cessation of
the contract of service and that it can
be reduced or withdrawn as a disciplinary
measure. Having succinctly
focussed our attention on the conspectus
of elements and incidents of
pension the main question may now
be tackled. But, the approach of
court while considering such measure
is of paramount importance. Since
the advent of the Constitution, the
state action must be directed towards
attaining the goals set out in Part
IV of the Constitution which, when
achieved, would permit us to claim
that we have set up a welfare State.
Article 38 (1) enjoins the State to
strive to promote welfare of the people
by securing and protecting as effective
as it may a social order in
which justice social, economic and
political shall inform all institutions
of the national life. In particular
the State shall strive to minimise the
inequalities in income and endeavour
to eliminate inequalities in status,
facilities and opportunities. Art.
39 (d) enjoins a duty to see that
there is equal pay for equal work for
both men and women and this directive
should be understood and interpreted
in the light of the judgment
of this Court in Randhir Singh
v. Union of India Ors.(1) Revealing
the scope and content of this facet of
equality, Chinnappa Reddy, J. speaking
for the Court observed as under :
“Now, thanks to the rising social and
political consciousness and the expectations
aroused as a consequence
and the forward looking posture of
this Court, the under-privileged also
are clamouring for the rights and are
seeking the intervention of the Court
with touching faith and confidence in
the Court. The Judges of the Court
have a duty to redeem their Constitutional
oath and do justice no less
to the pavement dweller than to the
guest of the Five Star Hotel.”

Proceeding further, this Court
observed that where all relevant considerations
are the same, persons
holding identical posts may not be
treated differently in the matter of
their pay merely because they belong
to different departments. If that
can’t be done when they are in service,
can that be done during their
retirement? Expanding this principle,
one can confidently say that if
pensioners form a class, their computation
cannot be by different formula
affording unequal treatment solely on
the ground that some retired earlier
and some retired later. Art. 39 (e)
requires the State to secure that the
health and strength of workers, men
and women, and children of tender
age are not abused and that citizens
are not forced by economic necessity
to enter avocations unsuited to their
age or strength. Art. 41 obligates
the State within the limits of its economic
capacity and development, to
make effective provision for securing
the right to work, to education and to
provide assistance in cases of unemployment,
old age, sickness and disablement,
and in other cases of undeserved
want. Art. 43 (3) requires the
State to endeavour to secure amongst
other things full enjoyment of leisure
and social and cultural opportunities.
Recall at this stage the Preamble,
the flood light illuminating the
path to be pursued by the State to
set up a Sovereign Socialist Secular
Democratic Republic. Expression
’socialist’ was intentionally introduced
in the Preamble by the
Constitution (Forty-Second Amend-
107
ment) Act, 1976. In the objects
and reasons for amendment amongst
other things, ushering in of socioeconomic
revolution was promised.
The clarion call may be extracted :
“The question of amending the
Constitution for removing the difficulties
which have arisen in achieving
the objective of socio-economic revolution,
which would end poverty and
ignorance and disease and inequality
of opportunity, has been engaging
the active attention of Government
and the public for some time......... It
is, therefore, proposed to amend the
Constitution to spell out expressly
the high ideals of socialism........to
make the directive principles more
comprehensive......”
What does a Socialist Republic
imply? Socialism is a much
misunderstood word. Values determine
contemporary socialism pure
and simple. But it is not necessary
at this stage to go into all its ramifications.
The principal aim of a socialist
State is to eliminate inequality
in income and status and standards
of life. The basic framework
of socialism is to provide a decent
standard of life to the working people
and especially provide security from
cradle to grave. This amongst others
on economic side envisaged economic
equality and equitable distribution
of income. This is a blend
of Marxism and Gandhism leaning
heavily towards Gandhian socialism.
During the formative years, socialism
aims at providing all opportunities
for pursuing the educational
activity. For want of wherewithal
or financial equipment the opportu-

108 Maj Gen D.S. Nakara v. Union Of India 1982
nity to be fully educated shall not
be denied. Ordinarily, therefore, a
socialist State provides for free education
from primary to Ph. D.
but the pursuit must be by those
who have the necessary intelligence
quotient and not as in our society
where a brainy young man coming
from a poor family will not be able
to prosecute the education for want
of wherewithal while the ill-equipped
son or daughter of a well-to-do father
will enter the portals of higher
education and contribute to national
wastage. After the education is completed,
socialism aims at equality in
pursuit of excellence in the chosen
avocation without let or hindrance
of caste, colour, sex or religion and
with full opportunity to reach the top
not thwarted by any considerations
of status, social or otherwise. But
even here the less equipped person
shall be assured a decent minimum
standard of life and exploitation in
any form shall be eschewed. There
will be equitable distribution of national
cake and the worst off shall be
treated in such a manner as to push
them up the ladder. Then comes
the old age in the life of everyone,
be he a monarch or a Mahatma, a
worker or a pariah. The old age overtakes
each one, death being the fulfilment
of life providing freedom from
bondage. But there socialism aims
at providing an economic security to
those who have rendered unot society
what they were capable of doing
when they were fully equipped with
their mental and physical prowess.
In the fall of life the State shall ensure
to the citizens a reasonably decent
standard of life, medical aid,
freedom from want, freedom from
fear and the enjoyable leisure, relieving
the boredom and the humility of
dependence in old age. This is what
Art. 41 aims when it enjoins the
State to secure public assistance in
old age, sickness and disablement. It
was such a socialist State which the
Preamble directs the centres of power
Legislative Executive and Judiciaryto
strive to set up. From a wholly
feudal exploited slave society to a vibrant,
throbbing socialist welfare society
is a long march but during this
journey to the fulfilment of goal every
State action whenever taken must be
directed, and must be so interpreted,
as to take the society one step towards
the goal.
To some extent this approach will
find support in the judgment in Minerva
Mills Ltd. Ors. v. Union of India
Ors.(1). Speaking for the majority,
Chandrachud, C.J. observed as
under :
“This is not mere semantics. The
edifice of our Constitution is built
upon the concepts crystallised in the
Preamble. We resolved to constitute
ourselves into a Socialist State
which carried with it the obligation
to secure to our people justice-social,
economic and political. We, therefore,
put Part IV into our Constitution
containing directive principles of
State policy which specify the socialistic
goal to be achieved.”
At a later stage it was observed
that the fundamental rights are not
an end in themselves but are the
means to an end, the end is specified
in part IV. Bhagwati, J. in his
minority judgment after extracting

a portion of the speech of the then
Prime Minister Jawahar Lal Nehru,
while participating in a discussion
on the Constitution (First Amendment)
Bill, observed that the Directive
Principles are intended to bring
about a socio-economic revolution
and to create a new socio-economic
order where there will be social and
economic justice for all and everyone,
not only a fortunate few but
the teeming millions of India, would
be able to participate in the fruits
of freedom and development and exercise
the fundamental rights. It,
therefore, appears to be well established
that while interpreting or examining
the constitutional validity
of legislative/administrative action,
the touchstone of Directive Principles
of State Policy in the light of the
Preamble will provide a reliable yardstick
to hold one way or the other.
With this background let us now
turn to the challenge posed in these
petitions. The challenge is not to the
validity of the pension liberalisation
scheme. The scheme is wholly acceptable
to the petitioners, nay they
are ardent supporters of it, nay further
they seek the benefit of it. The
petitioners challenge only that part
of the scheme by which its benefits
are admissible to those who retired
from service after a certain date. In
other words, they challenge that the
scheme must be uniformly enforced
with regard to all pensioners for the
purpose of computation of pension irrespective
of the date when the Government
servant retired subject to
the only condition that he was governed
by the 1972 Rules. No doubt,
109
the benefit of the scheme will be
available from the specified date, irrespective
of the fact when the concerned
Government servant actually
retired from service.
Having set out clearly the society
which we propose to set up, the
direction in which the State action
must move, the welfare State which
we propose to build up, the constitutional
goal of setting up a socialist
State and the assurance in the
Directive Principles of State Policy
especially of security in old age at
least to those who have rendered useful
service during their active years,
it is indisputable, nor was it questioned,
that pension as a retirement
benefit is in consonance with and furtherance
of the goals of the Constitution.
The goals for which pension is
paid themselves give a fillip and push
to the policy of setting up a welfare
State because by pension the socialist
goal of security of cradle to grave
is assured at least when it is mostly
needed and least available, namely,
in the fall of life.
If such be the goals of pension,
if such be the welfare State which we
propose to set up, if such be the goals
of socialism and conceding that any
welfare measure may consistent with
economic capacity of the State be
progressively augmented with wider
width and a longer canvass yet when
the economic means permit the augmentation,
should some be left out
for the sole reason that while in the
formative years of the nascent State
they contributed their mite but when
the fruits of their labour led to the
flowering of economic development

110 Maj Gen D.S. Nakara v. Union Of India 1982
and higher gross national produce
bringing in larger revenue and therefore
larger cake is available, they
would be denied any share of it ?
Indisputably, viewed from any angle
pensioners for payment of pension
form a class. Unquestionably
pension is linked to length of service
and the last pay drawn but the
last pay does not imply the pay on
the last day of retirement but average
emoluments as defined in the
scheme. Earlier average emoluments
of 36 months’ service provided the
measure of pension because the pension
was related to the average emoluments
during 36 months just preceding
retirement. By the liberalised
scheme it is now reduced to average
emoluments of 10 months preceding
the date. Any one in government
service would appreciate at a glance
that with an average of 10 months it
would be on the higher side on account
of the two fortuitous circumstances
that the pay- scales, if one
has not reached the maximum, permit
annual increments and there are
promotions in the last one or two
years. With a view to giving a higher
average the scheme was liberalised to
provide for average emoluments with
reference to last 10 months’ service.
Coupled with it, a slab system for
computation is introduced and the
ceiling is raised. This is liberalisation.
Now, if the pensioners who retired
prior to the specified date and
had to earn pension on the average
emoluments of 36 months’ salary just
preceding the date of retirement, naturally
the average would be lower
and they will be doubly hit because
the slab system as now introduced
was not available and the ceiling was
at a lower level. Thus they suffer
triple jeopardy, viz., lower average
emoluments, absence of slab system
and lower ceiling. What then is
the purpose in prescribing the specified
date vertically dividing the pensioners
between those who retired
prior to the specified date and those
who retire subsequent to that date?
That poses the further question, why
was the pension scheme liberalised
? What necessitated liberalisation of
the pension scheme ?
Both the impugned memoranda
do not spell out the raison d’etre for
liberalising the pension formula. In
the affidavit in opposition by Shri
S.N. Mathur, it has been stated that
the liberalisation of pension of retiring
Government servants was decided
by the Government in view of
the persistent demand of the Central
Government employees represented
in the scheme of Joint Consultative
Machinery. This would clearly imply
that the preliberalised pension
scheme did not provide adequate protection
in old age and that a further
liberalisation was necessary as a
measure of economic security. When
Government favourably responded to
the demand it thereby ipso facto
conceded that there was a larger
available national cake part of which
could be utilised for providing higher
security to erstwhile government servants
who would retire. The Government
also took note of the fact
that continuous upward movement of
the cost of living index as a sequel
of inflationary inputs and diminishing
purchasing power of rupee neces-

sitated upward revision of pension. If
this be the underlying intendment of
liberalisation of pension scheme, can
any one be bold enough to assert that
it was good enough only for those
who would retire subsequent to the
specified date but those who had already
retired did not suffer the pangs
of rising prices and falling purchasing
power of the rupee ? What is the sum
total of picture ? Earlier the scheme
was not that liberal keeping in view
the definition of average emoluments
and the absence of slab system and
a lower ceiling. Those who rendered
the same service earned less pension
and are exposed to the vagary of rising
prices consequent upon the inflationary
inputs. If therefore, those
who are to retire subsequent to the
specified date would feel the pangs
in their old age, of lack of adequate
security, by what stretch of imagination
the same can be denied to
those who retired earlier with lower
emoluments and yet are exposed to
the vagaries of the rising prices and
the falling purchasing power of the
rupee. And the greater misfortune
is that they are becoming older and
older compared to those who would
be retiring subsequent to the specified
date. The Government was perfectly
justified in liberalising the pension
scheme. In fact it was overdue.
But we find no justification for arbitrarily
selecting the criteria for eligibility
for the benefits of the scheme
dividing the pensioners all of whom
would be retirees but falling on one
or the other side of the specified date.
Therefore, let us proceed to examine
whether there was any ratio-
111
nale behind the eligibility qualification.
The learned Attorney-General
contended that the scheme is one
whole and that the date is an integral
part of the scheme and the Government
would have never enforced
the scheme devoid of the date and
the date is not severable from the
scheme as a whole. Contended the
learned Attorney-General that the
Court does not take upon itself the
function of legislation for persons,
things or situations omitted by the
legislature. It was said that when
the legislature has expressly defined
the class with clarity and precision to
which the legislation applies, it would
be outside the judicial function to enlarge
the class and to do so is not
to interpret but to legislate which
is the forbidden field. Alternatively
it was also contended that where a
larger class comprising two smaller
classes is covered by a legislation of
which one part is constitutional, the
Court examines whether the legislation
must be invalidated as a whole
or only in respect of the unconstitutional
part. It was also said that severance
always cuts down the scope of
legislation but can never enlarge it
and in the present case the scheme as
it stands would not cover pensioners
such as the petitioners and if by severance
an attempt is made to include
them in the scheme it is not cutting
down the class or the scope but enlarge
the ambit of the scheme which
is impermissible even under the doctrine
of severability. In this context
it was lastly submitted that there is
not a single case in India or elsewhere
where the Court has included some
category within the scope of provi-

112 Maj Gen D.S. Nakara v. Union Of India 1982
sions of a law to maintain its constitutionality.
The last submission, the absence
of precedent need not deter us for
a moment. Every new norm of socio
economic justice, every new measure
of social justice commenced for
the first time at some point of history.
If at that time it is rejected as
being without a precedent, the law
as an instrument of social engineering
would have long since been dead
and no tears would have been shed.
To be pragmatic is not to be unconstitutional.
In its onward march
law as an institution ushers in socioeconomic
justice. In fact, social security
in old age commended itself
in earlier stages as a moral concept
but in course of time it acquired legal
contention. The rules of natural
justice owed their origin to ethical
and moral code. Is there any
doubt that they have become the integral
and inseparable parts of rule of
law of which any civilised society is
proud ? Can anyone be bold enough
to assert that ethics and morality are
outside the field of legal formulations
? Socio-economic justice stems from
the concept of social morality coupled
with abhorrence for economic
exploitation. And the advancing society
converts in course of time moral
or ethical code into enforceable legal
formulations. Over-emphasis on
precedent furnishes an insurmountable
road-block to the onward march
towards promised millennium. An
overdose of precedents is the bane of
our system which is slowly getting
stagnant, stratified and atrophied.
Therefore absence of a precedent on
this point need not deter us at all.
We are all the more happy for the
chance of scribbling on a clean slate.
If it appears to be undisputable,
as it does to us that the pensioners
for the purpose of pension benefits
form a class, would its upward revision
permit a homogeneous class to
be divided by arbitrarily fixing an
eligibility criteria unrelated to purpose
of revision, and would such classification
be founded on some rational
principle ? The classification has
to be based, as is well settled, on
some rational principle and the rational
principle must have nexus to the
objects sought to be achieved. We
have set out the objects underlying
the payment of pension. If the State
considered it necessary to liberalise
the pension scheme, we find no rational
principle behind it for granting
these benefits only to those who retired
subsequent to that date simultaneously
denying the same to those
who retired prior to that date. If the
liberalisation was considered necessary
for augmenting social security in
old age to government servants then
those who retired earlier cannot be
worst off than those who retire later.
Therefore, this division which classified
pensioners into two classes is not
based on any rational principle and if
the rational principle is the one of dividing
pensioners with a view to giving
something more to persons otherwise
equally placed, it would be discriminatory.
To illustrate, take two
persons, one retired just a day prior
and another a day just succeeding
the specified date. Both were in the
same pay bracket, the average emolu-

ment was the same and both had put
in equal number of years of service.
How does a fortuitous circumstance
of retiring a day earlier or a day later
will permit totally unequal treatment
in the matter of pension ? One retiring
a day earlier will have to be subject
to ceiling of Rs. 8,100 p a. and
average emolument to be worked out
on 36 months’ salary while the other
will have a ceiling of Rs. 12,000 p.a.
and average emolument will be computed
on the basis of last ten months
average. The artificial division stares
into face and is unrelated to any principle
and whatever principle, if there
be any, has absolutely no nexus to
the objects sought to be achieved by
liberalising the pension scheme. In
fact this arbitrary division has not
only no nexus to the liberalised pension
scheme but it is counter productive
and runs counter to the whole
gamut of pension scheme. The equal
treatment guaranteed in Art. 14 is
wholly violated inasmuch as the pension
rules being statutory in character,
since the specified date, the
rules accord differential and discriminatory
treatment to equals in the
matter of commutation of pension. A
48 hours difference in matter of retirement
would have a traumatic effect.
Division is thus both arbitrary
and unprincipled. Therefore the classification
does not stand the test of
Art.14.
Further the classification is
wholly arbitrary because we do not
find a single acceptable or persuasive
reason for this division. This arbitrary
action violated the guarantee
of Art. 14. The next question is
what is the way you ?
113
The learned Attorney-General
contended that the scheme is to be
taken as a whole or rejected as a
whole and the date from which it
came into force is an integral and inseparable
part of the scheme. The
two sub-limbs of the submissions
were that, (i) the Court cannot make
a scheme having financial implications
retroactive, and (ii) this Court
cannot grant any relief to the pensioners
who retired prior to a specified
date because if more persons divide
the available cake, the residue
falling to the share of each especially
to those who are likely to
be benefited by the scheme will be
comparatively smaller and as they
are not before the Court, no relief
can be given to the pensioners.
Let us clear one misconception.
The pension scheme including
the liberalised scheme available
to the Government employees is noncontributory
in character. It was
not pointed out that there is something
like a pension fund. It is
recognised as an item of expenditure
and it is budgeted and voted
every year. At any given point of
time there is no fixed or predetermined
pension fund which is divided
amongst eligible pensioners. There is
no artificially created fund or reservoir
from which pensioners draw pension
within the limits of the fund, the
share of each being extensive with
the available fund. The payment of
pension is a statutory liability undertaken
by the Government and whatever
becomes due and payable is budgeted
for. One could have appre-

114 Maj Gen D.S. Nakara v. Union Of India 1982
ciated this line of reasoning where
there is a contributory scheme and a
pension fund from which alone pension
is disbursed. That being not the
case, there is no question of pensioners
dividing the pension fund which,
if more persons are admitted to the
scheme, would pro rata affect the
share. Therefore, there is no question
of dividing the pension fund. Pension
is a liability incurred and has
to be provided for in the budget.
Therefore, the argument of divisions
of a cake, larger the number of sharers,
smaller the share and absence of
residue and therefore by augmentation
of beneficiaries, pro rata share is
likely to be affected and their absence
making relief impermissible, is an argument
born of desperation, and is
without merits and must be rejected
as untenable.
By our approach, are we making
the scheme retroactive ? The answer
is emphatically in the negative. Take
a government servant who retired on
April 1, 1979. He would be governed
by the liberalised pension scheme.
By that time he had put in qualifying
service of 35 years. His length of
service is a relevant factor for computation
of pension. Has the Government
made it retroactive, 35 years
backward compared to the case of a
Government servant who retired on
30th March, 1979 ? Concept of qualifying
service takes note of length of
service, and pension quantum is correlated
to qualifying service. Is it
retroactive for 35 years for one and
not retroactive for a person who retired
two days earlier ? It must be
remembered that pension is relatable
to qualifying service. It has correlation
to the average emoluments and
the length of service. Any liberalisation
would pro tanot be retroactive
in the narrow sense of the term.
Otherwise it is always prospective.
A statute is not properly called a
retroactive statute because a part of
the requisites for its action is drawn
from a time antecedent to its passing.
(see Craies on Statute Law, sixth edition,
p. 387). Assuming the Government
had not prescribed the specified
date and thereby provided that
those retiring pre and post the specified
date would all be governed by the
liberalised pension scheme, undoubtedly,
it would be both prospective
and retroactive. Only the pension
will have to be recomputed in the
light of the formula enacted in the
liberalised pension scheme and effective
from the date the revised scheme
comes into force. And beware that it
is not a new scheme, it is only a revision
of existing scheme. It is not a
new retiral benefit. It is an upward
revision of an existing benefit. If it
was a wholly new concept, a new retiral
benefit, one could have appreciated
an argument that those who
had already retired could not expect
it. It could have been urged that it
is an incentive to attract the fresh recruits.
Pension is a reward for past
service. It is undoubtedly a condition
of service but not an incentive to attract
new entrants because if it was
to be available to new entrants only,
it would be prospective at such distance
of thirty-five years since its introduction.
But it covers all those in
service who entered thirty-five years
back. Pension is thus not an incen-

tive but a reward for past service.
And a revision of an existing benefit
stands on a different footing than
a new retiral benefit. And even in
case of new retiral benefit of gratuity
under the Payment of Gratuity Act,
1972 past service was taken into consideration.
Recall at this stage the
method adopted when pay-scales are
revised. Revised pay-scales are introduced
from a certain date. All
existing employees are brought on to
the revised scales by adopting a theory
of fitments and increments for
past service. In other words, benefit
of revised scale is not limited to
those who enter service subsequent to
the date fixed for introducing revised
scales but the benefit is extended to
all those in service prior to that date.
This is just and fair. Now if pension
as we view it, is some kind of retirement
wages for past service, can it
be denied to those who retired earlier,
revised retirement benefits being
available to future retirees only
? Therefore, there is no substance
in the contention that the court by
its approach would be making the
scheme retroactive, because it is implicit
in theory of wages.
That takes us to the last important
contention of the learned Attorney
General. It was urged that
the date from which the scheme becomes
operative is an integral part of
the scheme and the doctrine of severability
cannot be invoked. In other
words, it was urged that date cannot
be severed from the main object
of the scheme because the Government
would have never offered the
scheme unless the date was an inte-
115
gral part of it. Undoubtedly when an
upward revision is introduced, a date
from which it becomes effective has
to be provided. It is the event of retirement
subsequent to the specified
date which introduces discrimination
in one otherwise homogeneous class
of pensioners. This arbitrary selection
of the happening of event subsequent
to specified date denies equality
of treatment to persons belonging
to the same class, some preferred and
some omitted. Is this eligibility qualification
severable ?
It was very seriously contended,
remove the event correlated to date
and examine whether the scheme is
workable. We find no difficulty in implementing
the scheme omitting the
event happening after the specified
date retaining the more humane formula
for computation of pension. It
would apply to all existing pensioners
and future pensioners. In the case of
existing pensioners, the pension will
have to be recomputed by applying
the rule of average emoluments as set
out in Rule 34 and introducing the
slab system and the amount worked
out within the floor and the ceiling.
But we make it abundantly clear
that arrears are not required to be
made because to that extent the
scheme is prospective. All pensioners
whenever they retired would be
covered by the liberalised pension
scheme, because the scheme is a
scheme for payment of pension to a
pensioner governed by 1972 Rules.
The date of retirement is irrelevant.
But the revised scheme would be operative
from the date mentioned in
the scheme and would bring under its

116 Maj Gen D.S. Nakara v. Union Of India 1982
umbrella all existing pensioners and
those who retired subsequent to that
date. In case of pensioners who retired
prior to the specified date, their
pension would be computed afresh
and would be payable in future commencing
from the specified date. No
arrears would be payable. And that
would take care of the grievance of
retrospectivity. In our opinion, it
would make a marginal difference in
the case of past pensioners because
the emoluments are not revised. The
last revision of emoluments was as
per the recommendation of the Third
Pay commission (Raghubar Dayal
Commission). If the emoluments remain
the same, the computation of
average emoluments under amended
Rule 34 may raise the average emoluments,
the period for averaging being
reduced from last 36 months to
last 10 months. The slab will provide
slightly higher pension and if someone
reaches the maximum the old
lower ceiling will not deny him what
is otherwise justly due on computation.
The words “who were in service
on 31st March, 1979 and retiring
from service on or after the date” excluding
the date for commencement
of revision are words of limitation introducing
the mischief and are vulnerable
as denying equality and introducing
an arbitrary fortuitous circumstance
can be severed without
impairing the formula. Therefore,
there is absolutely no difficulty in removing
the arbitrary and discriminatory
portion of the scheme and it can
be easily severed.
There is nothing immutable
about the choosing of an event as
an eligibility criteria subsequent to
a specified date. If the event is certain
but its occurrence at a point of
time is considered wholly irrelevant
and arbitrarily selected having no
rationale for selecting it and having
an undesirable effect of dividing homogeneous
class and of introducing
the discrimination, the same can be
easily severed and set aside. While
examining the case under Art. 14,
the approach is not: ’either take it
or leave it’, the approach is removal
of arbitrariness and if that can be
brought about by severing the mischievous
portion the court ought to
remove the discriminatory part retaining
the beneficial portion. The
pensioners do not challenge the liberalised
pension scheme. They seek
the benefit of it. Their grievance is
of the denial to them of the same
by arbitrary introduction of words of
limitation and we find no difficulty
in severing and quashing the same.
This approach can be legitimised on
the ground that every Government
servant retires. State grants upward
revision of pension undoubtedly from
a date. Event has occurred revision
has been earned. Date is merely to
avoid payment of arrears which may
impose a heavy burden. If the date
is wholly removed, revised pensions
will have to be paid from the actual
date of retirement of each pensioner.
That is impermissible. The
State cannot be burdened with arrears
commencing from the date of
retirement of each pensioner. But effective
from the specified date future
pension of earlier retired Government
servants can be computed and
paid on the analogy of fitments in

evised pay-scales becoming prospectively
operative. That removes the
nefarious unconstitutional part and
retains the beneficial portion. It does
not adversely affect future pensioners
and their presence in the petitions
becomes irrelevant. But before we do
so, we must look into the reasons assigned
for eligibility criteria, namely,
’in service on the specified date and
retiring after that date’. The only
reason we could find in affidavit of
Shri Mathur is the following statement
in paragraph 5 :
“The date of effect of the impugned
orders has been selected on
the basis of relevant and valid considerations.”
We repeatedly posed a question:
what are those relevant and valid
considerations and waited for the answer
in vain. We say so because in
the written submissions filed on behalf
of the Union of India, we find
not a single valid or relevant consideration
much less any consideration
relevant to selection of eligibility criteria.
The tenor is “we select the
date and it is unquestionable; either
take it or leave it as a whole”. The
only submission was that the date
is not severable and some submissions
in support of it. Having examined
the matter on principle, let
us turn to some precedents. In D.R.
Nim v. Union of India(1) the appellant
questioned his seniority which
was to be determined in accordance
with the provisions contained in Indian
Police Service (Regulation of Seniority)
Rules, 1954. These rules required
first to ascertain the year of
allotment of the person concerned for
117
the determination of his seniority. In
doing so, the Government of India directed
that officers promoted to the
Indian Police Service should be allowed
the benefit of their continuous
officiation with effect only from 19th
May, 1951. The appellant challenged
the order because the period of officiation
from June 1947 to May 1951
was excluded for the purpose of fixation
of his seniority. His grievance
was that there was no rationale behind
selecting this date. After taking
into consideration affidavit in opposition,
this Court held as under : “It
would be noticed that the date, May
19, 1951, to begin with had nothing
to do with the finalisation of the Gradation
List of the Indian Police Service
because it was a date which had
reference to the finalisation of the
Gradation List for the IAS. Further
this date does not seem to have much
relevance to the question of avoiding
the anomalous position mentioned in
para 9 of the affidavit reproduced
above. This date was apparently
chosen for the IAS because on this
date the Gradation List for all the
earlier persons recruited to the service
had been finalised and issued in
a somewhat stable stage. But why
should this date be applied to the
Indian Police Service has not been
adequately explained. Mr. BRL
Iyengar, the learned counsel for the
appellant, strongly urges that selection
of May 19, 1951, as a crucial
date for classifying people is arbitrary
and irrational. We agree
with him in this respect. It further
appears from the affidavit of
Mr. D.K. Guha, Deputy Secretary
to the Government of India, Min-

118 Maj Gen D.S. Nakara v. Union Of India 1982
istry of Home Affairs, dated December
9, 1966 that “the Government of
India have recently decided in consultation
with the Ministry of Law
that the Ministry of Home Affairs
letter No. 2/32/51-AIS, dated the
25th August, 1955 will not be applicable
to those SCS/SPS officers, who
were appointed to IAS/IPS prior to
the promulgation of IAS/IPS (Regulation
of Seniority) Rules, 1954, and
the date of the issue of the above letter
if their earlier continuous officiation
was approved by the Ministry
of Home Affairs and Union Public
Service Commission”. It further appears
that “in the case of Shri C.S.
Prasad also, an IPS Officer of Bihar,
a decision has been taken to give
the benefit of full continuous officiation
in senior posts and to revise his
year of allotment accordingly.” But,
it is stated that “as Shri Nim was
appointed to IPS on the 22nd October
1955, i.e. after the promulgation
of IPS (Regulation of Seniority)
Rules, 1954, and after the issue of letter
dated 25.8.1955, his case does not
fall even under this category”. The
above statement of the case of the
Government further shows that the
date, May 19, 1951 was an artificial
and arbitrary date having nothing to
do with the application of the first
and the second provisos to Rule 3 (3).
It appears to us that under the second
proviso to Rule 3 (3) the period
of officiation of a particular officer
has to be considered and approved or
disapproved by the Central Government
in consultation with the Commission
considering all the relevant
facts. The Central Government cannot
pick out a date from a hat-and
that is what it seems to have done in
this case-and say that a period prior
to that date would not be deemed to
be approved by the Central Government
within the second proviso. The
Court held that the Central Government
cannot pick out a date from a
hat and that is what it seems to have
done in saying that a period prior to
that date would not be deemed to be
approved by the Central Government
within the second proviso. In case
before us, the eligibility criteria for
being eligible for liberalised pension
scheme have been picked out from
where it is difficult to gather and no
rationale is discernible nor one was
attempted at the hearing. The ratio
of the decision would squarely apply
to the facts of this case.
Similarly in Jaila Singh Anr.
v. State of Rajasthan Ors.(1), this
Court struck down as discriminatory
the division of pre-1955 and post-
1955 tenants for the purpose of allotment
of land made by the Rules under
the Rajasthan Colonisation Act,
1954 observing that the various provisions
indicate that the pre-1955
and post-1955 tenants stand on the
same footing and therefore do not
form different classes and hence the
division was held to be based on
wholly irrelevant consideration. The
court further observed that it is difficult
to appreciate how it would make
any difference from the point of view
of allotment of land, whether a tenant
has been in occupation for 16
years or 18 or 20 years and why differentiation
should be made with reference
to the date when Rajasthan
Tenancy Act came into force. This

division for the purpose of allotment
of land with reference to certain date
was considered both arbitrary and
discriminatory on the ground that it
was wholly unrelated to the objects
sought to be achieved.
As against this the learned
Attorney-General invited our attention
to Union of India Anr. v. M/s
Parameswaran Match Works etc.(2)
By a notification dated July 21, 1967,
benefit of a concessional rate of duty
was made available if a manufacturer
of matches made a declaration that
the total clearance of matches from a
factory would not exceed 75 million
during a financial year. As framed
the notification extended the benefit
to manufacturers with higher capacity
to avail of the concessional rate
of duty by filing a declaration as visualised
in the proviso to the notification
by restricting their clearance
to 75 million matches. This notification
was amended on September
4, 1967 with a view to giving bona
fide small manufacturers, whose total
clearance was not estimated to be
in excess of 75 million matches, the
benefit of concessional rate of duty
prescribed under notification dated
July 21, 1967. The respondent in the
case applied for a licence for manufacturing
matches on September 5,
1967, that is, a day after the date on
which amended notification was issued
and filed a declaration that the
estimated manufacture for the financial
year would not exceed 75 million
matches, but this was rejected. In
a writ petition filed by the respondent,
the High Court held that the
classification was unreasonable inas-
119
much as the fixation of the date for
making a declaration had no nexus
with the object of the Act. In the
appeal by the Union of India, this
Court held that the concessional rate
of duty was intended for small bona
fide units who were in the field when
the notification dated September 4,
1967 was issued. The concessional
rate of duty was not intended to benefit
the large units which had split up
into smaller units to earn the concession.
With reference to selection
of the date this Court observed as
under : “The choice of a date as
a basis for classification cannot always
be dubbed as arbitrary even if
no particular reason is forthcoming
for the choice unless it is shown to
be capricious or whimsical in the circumstances.
When it is seen that a
line or a point there must be and
there is no mathematical or logical
way of fixing it precisely, the decision
of the legislature or its delegate must
be accepted unless we can say that it
is very wide of the reasonable mark.”
In reaching this conclusion the Court
relied on Louisville Gas Co. v. Alabama
Power Co. (1) This decision is
not an authority for the proposition
that whenever a date is chosen, or
an eligibility criteria which divides a
class, the purpose of choice unrelated
to the objects sought to be achieved
must be accepted as valid. In fact
it is made clear in the decision itself
that even if no particular reason is
forthcoming for the choice unless it
is shown to be capricious or whimsical,
the choice of the legislature may
be accepted. Therefore, the choice of
the date 203

120 Maj Gen D.S. Nakara v. Union Of India 1982
cannot be wholly divorced from
the objects sought to be achieved
by the impugned action. In other
words, if the choice is shown to be
thoroughly arbitrary and introduces
discrimination violative of Art. 14,
the date can be struck down. What
facts influenced the Court’s decision
in that case for upholding the choice
of the date are worth- recalling. The
Court held that the object of granting
the concessional rate of duty was
to protect the smaller units in the industry
from the competition by the
larger ones and that object would
have been frustrated, if, by adopting
the device of fragmentation, the
larger units could become the ultimate
beneficiaries of the bounty.
This was the weighty consideration
which prompted the court to uphold
the date. The learned Attorney General
next referred to D.C. Gouse and
Co. etc. v. State of Kerala Anr. etc.
(1) This Court while repelling the
contention that the choice of April 1,
1973 as the date of imposition of the
building tax is discriminatory with
reference to Art. 14 of the Constitution,
approved the ratio in the case
of M/s. Parameswaran Match Works
etc. supra. Even while reaching this
conclusion the Court observed that it
is not shown how it could be said that
the date (April 1, 1973) for the levy
of the tax was wide of the reasonable
mark. What appealed to the Court
was that earlier an attempt was made
to impose the building tax with effect
from March 2, 1961 under the Kerala
Building Tax Act, 1961 but the Act
was finally struck down as unconstitutional
by this Court as per its decision
dated August 13, 1968. While
delivering the budget speech, at the
time of introduction of the 1970-71
budget, the intention to introduce a
fresh Bill for the levy of tax was made
clear. The Bill was published in June
73 in which it was made clear that
the Act would be brought into force
from April 1, 1970. After recalling
the various stages through which the
Bill passed before being enacted as
Act, this Court held that the choice
of date April 1, 1973 was not wide
of the reasonable mark. The decision
proceeds on the facts of the
case. But the principle that when
a certain date or eligibility criteria
is selected with reference to legislative
or executive measure which has
the pernicious tendency of dividing
an otherwise homogeneous class and
the choice of beneficiaries of the legislative/executive
action becomes selective,
the division or classification
made by choice of date or eligibility
criteria must have some relation
to the objects sought to be achieved.
And apart from the first test that the
division must be referable to some rational
principle, if the choice of the
date or classification is wholly unrelated
to the objects sought to be
achieved, it cannot be upheld on the
specious plea that was the choice of
the Legislature. Now if the choice
of date is arbitrary, eligibility criteria
is unrelated to the object sought
to be achieved and has the pernicious
tendency of dividing an otherwise
homogeneous class, the question
is whether the liberalised pension
scheme must wholly fail or that
the pernicious part can be severed,
cautioning itself that this Court does
not legislate but merely interprets

keeping in view the underlying intention
and the object, the impugned
measure seeks to subserve ? Even
though it is not possible to oversimplify
the issue, let us read the impugned
memoranda deleting the unconstitutional
part. Omitting it, the
memoranda will read like this :
“At present, pension is calculated
at the rate of 1/80th of average emoluments
for each completed year of
service and is subject to a maximum
of 33/80 of average emoluments and
is further restricted to a monetary
limit of Rs. 1,000/- per month. The
President is, now, pleased to decide
that with effect from 31st March,
1979 the amount of pension shall be
determined in accordance with the
following slabs.”
If from the impugned memoranda
the event of being in service and retiring
subsequent to specified date
is severed, all pensioners would be
governed by the liberalised pension
scheme. The pension will have to be
recomputed in accordance with the
provisions of the liberalised pension
scheme as salaries were required to
be recomputed in accordance with
the recommendation of the Third
Pay Commission but becoming operative
from the specified date. It
does therefore appear that the reading
down of impugned memoranda
by severing the objectionable portion
would not render the liberalised pension
scheme vague, unenforceable or
unworkable. In reading down the
memoranda, is this Court legislating
? Of course ’not’. When we
delete basis of classification as violative
of Art. 14, we merely set
121
at naught the unconstitutional portion
retaining the constitutional portion.
We may now deal with the
last submission of the learned Attorney
General on the point. Said the
learned Attorney- General that principle
of severability cannot be applied
to augment the class and to
adopt his words ’severance always
cuts down the scope, never enlarges
it’. We are not sure whether there
is any principle which inhibits the
Court from striking down an unconstitutional
part of a legislative action
which may have the tendency
to enlarge the width and coverage of
the measure. Whenever classification
is held to be impermissible and the
measure can be retained by removing
the unconstitutional portion of classification,
by striking down words of
limitation, the resultant effect may
be of enlarging the class. In such a
situation, the Court can strike down
the words of limitation in an enactment.
That is what is called reading
down the measure. We know
of no principle that ’severance’ limits
the scope of legislation and can
never enlarge it. To refer to the Jaila
Singh’s case (supra), when for the
benefit of allotment of land the artificial
division between pre-1955 and
post-1955 tenant was struck down by
this Court, the class of beneficiaries
was enlarged and the cake in the form
of available land was a fixed quantum
and its distribution amongst the
larger class would protanot reduce
the quantum to each beneficiary included
in the class. Similarly when
this Court in Randhir Singh’s case
(supra) held that the principle of
’equal pay for equal work’ may be

122 Maj Gen D.S. Nakara v. Union Of India 1982
properly applied to cases of unequal
pay based on no classification or irrational
classification it enlarged the
class of beneficiaries. Therefore, the
principle of ’severance’ for taking out
the unconstitutional provision from
an otherwise constitutional measure
has been well recognised. It would
be just and proper that the provision
in the memoranda while retaining
the date for its implementation,
but providing ’that in respect of Government
servants who were in service
on the 31st March, 1979 but retiring
from service in or after that date’
can be legally and validly severed and
must be struck down. The date is
retained without qualification as the
effective date for implementation of
scheme, it being made abundantly
clear that in respect of all pensioners
governed by 1972 Rules, the pension
of each may be recomputed as on
April 1, 1979 and future payments be
made in accordance with fresh computation
under the liberalised pension
scheme as enacted in the impugned
memoranda. No arrears for
the period prior to 31st March, 1979
in accordance with revised computation
need be paid.
In this context the last submission
of the learned Attorney General
was that as the pension is always
correlated to the date of retirement,
the Court cannot change the
date of retirement, and impose fresh
commutation benefit. We are doing
nothing of this kind. The apprehension
is wholly unfounded. The date
of retirement of each employee remains
as it is. The average emoluments
have to be worked out keep-
ing in view the emoluments drawn
by him before retirement but in accordance
with the principles of the
liberalised pension scheme. The two
features which make the liberalised
pension scheme more attractive is the
redefining of average emoluments in
Rule 34, and introduction of slab system
simultaneously raising the ceiling.
Within these parameters, the
pension will have to be recomputed
with effect from the date from which
the liberalised pension scheme came
into force i.e. March 31, 1979. There
is no question of fresh commutation
of pension of the pensioners who retired
prior to 31st March, 1979 and
have already availed of the benefit
of commutation. It is not open to
them to get that benefit at this late
date because commutation has to be
availed of within specified time limit
from the date of actual retirement.
May be some marginal retirees may
earn the benefit. That is inevitable.
To say that by our approach we are
restructuring the liberalised pension
scheme, is to ignore the constitutional
mandate. Similarly, the court
is not conferring benefits by this approach,
the court only removes the illegitimate
classification and after its
removal the law takes its own course.
But in this context the learned
Attorney submitted the following
quotation which appears to have
been extracted from a decision of
American Court, citation of which
was not available. The quotation
may be extracted from the written
submission. It reads as under:
“It remains to enquire whether
this plea that Congress would have

enacted the legislation and the Act
being limited to employees engaged
in commerce within the district of
Columbia and the Territory. If we
are satisfied that it would not or
that the matter is in such doubt that
we are unable to say what Congress
would have done omitting the unconstitutional
features then the statute
must fail.”
We entertain no such apprehension.
The Executive with parliamentary
mandate liberalised the pension
scheme. It is implicit in liberalising
the scheme that the deed to
grant little higher rate of pension to
the pensioners was considered eminently
just. One could have understood
persons in the higher pay
bracket being excluded from the benefits
of the scheme because it would
have meant that those in higher pay
bracket could fend for themselves.
Such is not the exclusion. The exclusion
is of a whole class of people
who retire before a certain date.
Parliament would not have hesitated
to extend the benefit otherwise considered
eminently just, and this becomes
clearly discernible from page
35 of 9th Report of Committee on
Petitions (Sixth Lok Sabha) April,
1976. While examining their representation
for better pensionary benefit,
the Committee concluded as under:
“The Committee are of the view
that Government owe a moral responsibility
to provide adequate relief
to its retired employees including
pre 1.1.1973 pensioners, whose actual
value of pensions has been eroded by
the phenomenal rise in the prices of
123
essential commodities. In view of the
present economic conditions in India
and constant rise in the cost of living
due to inflation, it is all the more
important even from purely humanitarian
considerations if not from the
stand point of fairness and justice, to
protect the actual value of their meagre
pensions to enable the pensioners
to live in their declining years with
dignity and in reasonable comfort.”
Therefore, we are not inclined to
share the apprehension voiced by the
learned Attorney that if we strike
down the unconstitutional part, the
parliament would not have enacted
the measure. Our approach may
have a parliamentary flavour to sensitive
noses.
The financial implication in such
matters has some relevance. However
in this connection, we want
to steer clear of a misconception.
There is no pension fund as it is
found either in contributory pension
schemes administered in foreign
countries or as in Insurance-linked
pensions. Non- contributory pensions
under 1972 rules is a State obligation.
It is an item of expenditure
voted year to pear depending upon
the number of pensioners and the estimated
expenditure. Now when the
liberalised pension scheme was introduced,
we would justifiably assume
that the Government servants would
retire from the next day of the coming
into operation of the scheme and
the burden will have to be computed
as imposed by the liberalised scheme.
Further Government has been granting
since nearly a decade temporary
increases from time to time to pen-

124 Maj Gen D.S. Nakara v. Union Of India 1982
sioners. Therefore, the difference
will be marginal. Further, let it not
be forgotten that the old pensioners
are on the way out and their number
is fast decreasing. While examining
the financial implication, this
Court is only concerned with the additional
liability that may be imposed
by bringing in pensioners who
retired prior to April 1, 1979 within
the fold of liberalised pension scheme
but effective subsequent to the specified
date. That it is a dwindling
number is indisputable. And again
the large bulk comprises pensioners
from lower echelons of service such
as Peons, L.D.C., U.D.C., Assistant
etc. In a chart submitted to us, the
Union of India has worked out the
pension to the pensioners who have
retired prior to the specified date and
the comparative advantage, if they
are brought within the purview of the
liberalised pension scheme. The difference
up to the level of Assistant
or even Section Officer is marginal
keeping in view that the old pensioners
are getting temporary increases.
Amongst the higher officers, there
will be some difference because the
ceiling is raised and that would introduce
the difference. It is however
necessary to refer to one figure relied
upon by respondents. It was said
that if pensioners who retired prior to
31st March, 1979 are brought within
the purview of the liberalised pension
scheme, Rs. 233 crores would be required
for fresh commutation. The
apparent fallacy in the submission is
that if the benefit of commutation
is already availed of, it cannot and
need not be reopened. And availability
of other benefits is hardly a rel-
evant factor because pension is admissible
to all retirees. The figures
submitted are thus neither frightening
nor the liability is supposed to
be staggering which would deflect us
from going to the logical end of constitutional
mandate. Even according
to the most liberal estimate, the average
yearly increase is worked out
to be Rs. 51 crores but that assumes
that every pensioner has survived
till date and will continue to
survive. Therefore, we are satisfied
that the increased liability consequent
upon this judgment is not
too high to be unbearable or such
as would have detracted the Government
from covering the old pensioners
under the scheme. Locus standi
of third petitioner was questioned.
Petitioner No. 3 is a Society registered
under the Societies Registration
Act of 1860. It is a non-political
non-profit and voluntary organisation.
Its members consist of public
spirited citizens who have taken
up the cause of ventilating legitimate
public problems. This Society received
a large number of representations
from old pensioners, individually
unable to undertake the journey
through labyrinths of legal judicial
process, costly and protracted, and.
therefore, approached petitioner No.
3 which espoused their cause Objects
for which the third petitioner-Society
was formed were not questioned. The
majority decision of this Court in
S.P. Gupta v. Union of India(1) rules
that any member of the public having
sufficient interest can maintain an action
for judicial redress for public injury
arising from breach of public
duty or from violation of some pro-

vision of the Constitution or the law
and seek enforcement of such public
duty and observance of such constitutional
or legal provision. Third petitioner
seeks to enforce rights that
may be available to a large number
of old infirm retirees. Therefore, its
locus standi is unquestionable. But it
is a point of academic important because
locus standi of petitioners Nos.
1 and 2 was never questioned.
That is the end of the journey.
With the expanding horizons
of socio-economic justice, the socialist
Republic and welfare State which
we endeavour to set up and largely
influenced by the fact that the old
men who retired when emoluments
were comparatively low and are exposed
to vagaries of continuously rising
prices, the falling value of the
rupee consequent upon inflationary
inputs, we are satisfied that by introducing
an arbitrary eligibility criteria:
’being in service and retiring
subsequent to the specified date’
for being eligible for the liberalised
pension scheme and thereby dividing
a homogeneous class, the classification
being not based on any discernible
rational principle and having
been found wholly unrelated to
the objects sought to be achieved by
grant of liberalised pension and the
eligibility criteria devised being thoroughly
arbitrary, we are of the view
that the eligibility for liberalised pension
scheme of being in service on
the specified date and retiring sub-
125
sequent to that date’ in impugned
memoranda, Exhibits P-I and P-2,
violates Art. 14 and is unconstitutional
and is struck down. Both the
memoranda shall be enforced and implemented
as read down as under:
In other words, in Exhibit P-1, the
words: “that in respect of the Government
servants who were in service
on the 31st March, 1979 and retiring
from service on or after that
date”and in Exhibit P-2, the words:
“the new rates of pension are effective
from 1st April 1979 and will
be applicable to all service officers
who became/become non-effective on
or after that date.”
are unconstitutional and are
struck down with this specification
that the date mentioned therein will
be relevant as being one from which
the liberalised pension scheme becomes
operative to all pensioners
governed by 1972 Rules irrespective
of the date of retirement. Omitting
the unconstitutional part it is declared
that all pensioners governed
by the 1972 Rules and Army Pension
Regulations shall be entitled to
pension as computed under the liberalised
pension scheme from the specified
date, irrespective of the date of
retirement. Arrears of pension prior
to the specified date as per fresh computation
is not admissible. Let a writ
to that effect be issued. But in the
circumstances of the case, there will
be no order as to costs.
H.L.C. Petition allowed.

126 Maj Gen D.S. Nakara v. Union Of India 1982

Chapter 9
Viswan v. Union Of India
1983
R. Viswan & Others v. Union
Of India & Others on 6 May, 1983
Equivalent citations: 1983 SCR (3)
60, 1983 SCC (3) 401 Bench: Bhagwati,
P.N.
PETITIONER:
R. VISWAN & OTHERS
ACT:
Army Act, 1950-S. 21-
Constitutional validity of-Whether
saved by Art. 33.
Army Act, 1950-Sub-ss. (1) and
(4) of s. 4-’Force’- Meaning of.
General Reserve Engineering
v.
Force. (GREF)-Whether it is ’force’
RESPONDENT:
within the meaning of sub-ss. (1)
and (4) of s. 4 of Army Act,
UNION OF INDIA & OTHERS
1950-Whether members of GREF
DATE OF JUDGMENT06/05/1983are
members of ’Armed Forces’
BENCH:
within the meaning of Art. 33 of
BHAGWATI, P.N.
BENCH:
Constitution- Whether S.R. Os. 329
and 330 applying provisions of Army
Act, 1950 and Army Rules 1954 to
BHAGWATI, P.N.
members of GREF in exercise of
CHANDRACHUD, Y.V. ((CJ) power under sub-ss. (1) and (4) of
REDDY, O. CHINNAPPA (J)
ERADI, V. BALAKRISHNA (J)
s. 4 of Army Act, 1959 ultra vires
Art. 33 of Constitution-Whether application
of Central Civil Services
MISRA, R.B. (J)
(Classification, Control and Appeal)
CITATION:
Rules, 1965 as also provisions of
1983 SCR (3) 60 1983 SCC (3)
401
1983 SCALE (1)497
Army Act and Army Rules to members
of GREF violative of Art. 14 of
Constitution.
HEADNOTE:

128 Viswan v. Union Of India 1983
The petitioners who belonged
to the General Reserve Engineering
Force (GREF) were charged under s.
63 of the Army Act, 1950 on allegations
inter alia that they had assembled
in front of the Chief Engineer
and shouted slogans demanding
release of personnel placed under
arrest, participated in a black
flag demonstration and associated
themselves with an illegal association.
They were tried by Court
Martial in accordance with the prescribed
procedure and, on being convicted,
were dismissed from service.
The petitioners submitted that their
convictions by Court Martial were illegal
and raised the following contentions
in support of their plea: that
the GREF was a civilian construction
agency and not a ’force’ raised and
maintained under the authority of
the Central Government and consequently,
the members of GREF were
not “members of Armed Forces or the
Forces charged with the maintenance
of public order” within the meaning
of Art. 33 of the Constitution and
therefore the application of s. 21 of
the Army Act read with rs. 19 to 21
or the Army Rules to them was unconstitutional
since it restricted their
fundamental rights in a manner not
permitted by the Constitution; that
S.R. Os 329 and 330 which were notifications
having the effect of applying
the provisions of the Army Act
and the Army Rules to the members
of the GREF were ultra vires
the powers of the Central Government
under sub-ss. (1) and (4) of
s. 4 of the Army Act; that s. 21 of
the Army Act was unconstitutional
as it was not justified by the terms
of Art. 33 since under that Article
it was Parliament alone which was
entrusted with the power to determine
to what extent any of the fundamental
rights shall, in application
to the members of the Armed Forces
or Forces charged with the maintenance
of public order, be restricted
or abrogated and Parliament could
not have left it to the Central Government
to determine the extent of
such restriction or abrogation as was
sought to be done under s. 21; that
the petitioners were entitled to exercise
their fundamental rights under
cls. (a), (b) and (c) of Art. 19 (1)
without any of the restrictions imposed
by rs. 19 to 21 of the Army
Rules and therefore they could not be
charged under s. 63 of the Army Act
on the facts alleged against them;
that their trial was not in accordance
with law; and that the application of
the provisions of the Army Act and
the Army Rules to the members of
GREF for purposes of discipline was
discriminatory and violative of Art.
14 inasmuch as the members of the
GREF were governed both by the
Central Civil Services (Classification
Control and Appeal) Rules, 1965 and
the provisions of the Army Act and
the Army Rules in matters of discipline.
Dismissing the petitions,
HELD 1. (a) The functions and
duties of GREF are integrally connected
with the operational plans
and requirements of the Armed
Forces. There can be no doubt that
without the efficient and disciplined
operational role of GREF the military
operations in border areas during
peace as also in times of war will

e seriously hampered and a highly
disciplined and efficient GREF is
absolutely essential for supporting
the operational plans and meeting
the operational requirements of the
Armed Forces. The members of
the GREF answer the description
of “members of the Armed Forces”
within the meaning of Art. 33 and
consequently the application of s. 21
of the Army Act to the members of
GREF is protected by that Article
and the fundamental rights of the
members of GREF must be held to
be validly restricted by s. 21 read
with rs. 19 to 21 of Army Rules. The
petitioners were therefore liable to be
charged under s. 63 of the Army Act
for the alleged violations of rs. 19 to
21 and their convictions and subsequent
dismissals must be held to be
valid. [88 F-89 B]
(b) The fact that the members
of the GREF are described as civilian
employees and they have their
own special rules of recruitment and
are governed by the Central Civil
Services (Classification, Control and
Appeal) Rules, 1965 is not determinative
of the question whether they
are members of the Armed Forces.
The question whether the members
of GREF can be said to be members
of the Armed Forces for the purpose
of attracting the applicability
of Art. 33 must depend essentially
on the character of GREF, its organisational
set up, its functions, the
role it is called upon to play in relation
to the Armed Forces and the
depth and intimacy of its connection
and the extent of its integration
with the Armed Forces. The history,
129
composition, administration, organisation
and role of GREF clearly show
that GREF is an integral part of the
Armed Forces and that the members
of GREF can legitimately be said
to be members of the Armed Forces
within the meaning of Art. 33. It
is undoubtedly a departmental construction
agency as contended on behalf
of the petitioners but it is distinct
from other 62
construction agencies such as the
Central Public Works Department in
that it is a force intended primarily
to support the Army in its operational
requirement. [87 D-H, 83 G]
Ous Kutilingal Achudan Nair and
Ors. v. Union of India and Ors.,
[1976] 2 S.C.R. 769, referred to.
(c) The Central Government is
empowered under sub-s. (1) of s. 4
of the Army Act to apply any of the
provisions of that Act to any force
raised or maintained in India under
the authority of that Government.
When the provisions of the Army Act
are applied to any force under sub-s.
(1) of s. 4, the Central Government
can, by notification issued under subs.
(4) thereof, direct by what authority,
the jurisdiction, powers and duties
incident to the operation of those
provisions shall be exercised or performed
in respect of that force. The
word ’force’ is not defined any where
in the Army Act but sub-s. (2) of
s. 4 clearly contemplates that ’force’
referred to in sub-s. (1) of s. 4
must be a force organised on similar
lines as the army with rank structure.
There can be no doubt that GREF
is a force organised on army pattern
with units and sub-units and rank

130 Viswan v. Union Of India 1983
structure. It is clear from the letter
dated June 16, 1960 addressed by
the Secretary, Border Roads Development
Board to the Director General
Border Roads that GREF is a
force raised and maintained under
the authority of the Central Government.
The Central Government
therefore had the power under subss.
(1) and (4) of s. 4 to issue notifications
S.R.O. 329 and S.R.O. 330
applying some of the Army Act and
the Army Rules to the GREF. [82 B-
H]
(d) There is no substance in the
contention that applying the provisions
of the Army Act and the Army
Rules to the members of GREF for
purpose of discipline is discriminatory
and violative of Art. 14. The
nature of the proceedings which may
be taken under the Central Civil
Services (Classification, Control and
Appeal) Rules against an erring employee
is different from the nature
of the proceedings which may be
taken against him under the provisions
of the Army Act read with
Army Rules, the former being disciplinary
in character while the latter
being clearly penal. There is
no overlapping between the two because
ss. 20 and 71 of the Army
Act which deal with dismissal, removal
or reduction in rank have not
been made applicable to the members
of GREF by S.R.O. 329. The
respondents have positively stated in
their affidavit that clear and detailed
administrative guidelines have been
laid down for the purpose of guiding
the disciplinary authority in exercising
its discretion whether to take ac-
tion against an employee of GREF
under Central Civil Services (Classification,
Control and Appeal) Rules
or the Army Rules and therefore it
is not possible to say that the discretion
vested in the authorities is unguided
or uncanalised. Moreover, the
decision in Northern India Caterers
v. Punjab on which this contention
is based has been overruled in Maganlal
Chhaganlal v. Municipal Corporation,
Greater Bombay. In any
event, the provisions of the Army Act
and the Army Rules as applied to the
members of GREF are protected by
Art. 33 against invalidation on the
ground of violation of Art. 14. [90
G-92 B] Northern India Caterers v.
Punjab, [1976] 3 S.C.R. 399; and Maganlal
Chhaganlal v. Municipal Corporation,
Greater Bombay, [1974] 2
S.C.C. 402, referred to. (e) The contention
that the trial of the petitioners
was not in accordance with law
was strongly resisted by the respondents
and having regard to the averments
made by them on this point
it is not possible to hold that the
convictions of the petitioners by the
Court Martial were not in accordance
with law. In any event, the allegation
of the petitioners in this behalf raised
disputed questions of fact which it is
not possible to try in a writ petition.
[90 A-F] (f) The alleged disparity between
the Army personnel posted in
GREF units and officers and men of
GREF in so far as the terms and
conditions of service such as salary,
allowances and rations has no real
bearing on the question whether the
members of GREF can be said to be
members of Armed Forces. Since the
members of GREF are drawn from

different sources it is possible that
the terms and conditions of service
of the personnel coming from the two
sources may be different. In case
it is found that there is any disparity
the Central Government may consider
the advisability of taking steps
for its removal. [89 C-H]
2. Section 21 of the Army Act
empowers the Central Government
to make rules restricting “to such extent
and in such manner as may be
necessary” three categories of rights
of any person subject to the Army
Act. These rights are part of the
fundamental rights under cls. (a),
(b) and (c) of Art. 19(1) and under
the constitutional scheme, they
cannot be restricted by executive action
unsupported by law. But s. 21
is saved by Art. 33 which carves
out an exception in so far as the applicability
of fundamental rights to
members of the Armed Forces and
the Forces charged with the maintenance
of public order is concerned.
On a plain grammatical construction
of its language, Art. 33 does not require
that Parliament itself must by
law restrict or abrogate any of the
fundamental rights in order to attract
the applicability of that Article.
What it says is only this and no
more, namely that Parliament may
by law determine the permissible extent
to which any of the fundamental
rights may be restricted or abrogated
in their application to the
members of the Armed Forces and
the Forces charged with the maintenance
of public order. Parliament
itself can by enacting a law restrict
or abrogate any of the fundamen-
131
tal rights in their application to the
members of these forces as in fact it
has done by enacting the Army Act
But having regard to the varying requirement
of army discipline and the
need for flexibility in this sensitive
area it would be inexpedient to insist
that Parliament itself should determine
what particular restrictions
should be imposed and on which fundamental
rights in the interest of
proper discharge of duties by the
members of these Forces and maintenance
of discipline among them The
extent of such restrictions would necessarily
depend upon the prevailing
situation at a given point of time and
it would be inadvisable to encase it in
a rigid statutory formula. The Constitution
makers were obviously anxious
that no more restrictions should
be placed on the fundamental rights
of the members of these Forces than
are absolutely necessary for ensuring
proper discharge of their duties and
the maintenance of discipline among
them. They therefore, decided to introduce
a certain amount of flexibility
in the imposition of such restrictions
and, by Art. 33, empowered
Parliament to determine the permissible
extent to which any of the fundamental
rights in their application
to the members of these Forces may
be restricted or abrogated so that,
within such permissible extent determined
by Parliament, any appropriate
authority authorised by Parliament
may restrict or abrogate any
such fundamental rights. Parliament
was therefore, within its power under
Art. 33 to enact s.21. The
extent to which restrictions may be
imposed on the fundamental rights

132 Viswan v. Union Of India 1983
under cls. (a), (b) and (c) of Art.
19(1) is clearly indicated in cls. (a),
(b) and (c) of s. 21 and the Central
Government is authorised to impose
restrictions on these fundamental
rights only to the extent of the
rights set out in cls. (a), (b) and (c)
of s. 21 and no more. The guidelines
for determining as to which restrictions
should be considered necessary
by the Central Government
within the permissible extent determined
by Parliament is provided in
Art. 33 itself, namely, that the restrictions
should be such as are necessary
for ensuring the proper discharge
of their duties by the members
of the Armed Forces and the maintenance
of discipline among them The
Central Government has to keep this
guideline before it in exercising the
power of imposing restrictions under
s. 21. Once the Central Government
has imposed restrictions in exercise
of this power, the Court will
not ordinarily interfere with the decision
of the Central Government that
such restrictions are necessary because
that is a matter left by Parliament
exclusively to the Central
Government which is best in a position
to know what the situation
demands. Section 21 must, in the
circumstances, be held to be constitutionally
valid as being within the
power conferred under Art. 33. [83
B-D, 78 -81 C] Ram Swarup v. Union
of India, [1964] 5 S.C.R. 931, referred
to.
JUDGMENT:
ORIGINAL JURISDICTION :
W.P. (CRL) Nos. 815, 843, 632/80,
844, 5116/81, 1301-04, 1383, 3460,
4510, 4511, 4512, 4551/80 & 3861,
3848, 8317/81 and 59 of 1982. (Under
article 32 of the Constitution of
India) AND
Special Leave Petition (Crl.)
Nos. 2061-65 of 1980. From the
Judgment and Order dated the 19th
May, 1980 of the Delhi High Court
in Criminal Writ Petition Nos. 24-
27/80 & 30/80.
K.K.Venugopal, Miss Mridula
Roy, D. P. Mukherjee, A.K. Ganguli
& G.S. Chatterjee, with him for the
Petitioners in WPs. 815, 5116, 843,
844, 8317. M. K. Ramamurthy, Janardhan
Sharma and P. Gaur with
him for the Petitioners in WPs. 3460,
1383, 4510, 4551, 1301-04, 4511, &
SLPs. 2061-65.
Miss Kailash Mehta for the Petitioners
in WP. 3861. M.M.L. Srivastava
for the Petitioner in WP. 3848.
Chandramouli-Petitioner in personin
WP.632. Nemo in WP. 59.
R.K. Mehta for the Petitioner
in WP. 4512/80. L.N. Sinha, Attorney
General, M.K.Banerji, Additional
Solicitor General, K.M. Abdul
Khader, Girish Chandra and Miss A.
Subhashini with them for the Respondents.
The Judgment of the
Court was delivered by
BHAGWATI, J. These writ petitions
raise a short but interesting
question of law relating to the interpretation
of Article 33 of the Constitution.
The question is whether section
21 of the Army Act 1950 read
with Chapter IV of the Army Rules
1954 is within the scope and ambit of
Article 33 and if it is, whether Central
Government Notifications Nos.

SRO 329 and 330 dated 23rd September
1960 making inter alia section 21
of the Army Act 1950 and Chapter
IV of the Army Rules 1954 applicable
to the General Reserve Engineering
Force are ultra vires that Article
since the General Reserve Engineering
Force is neither an Armed
Force nor a Force charged with the
maintenance of public order. It is
a question of some importance since
it affects the fundamental rights of
a large number of persons belonging
to the General Reserve Engineering
Force and in order to arrive at a correct
decision of this question, it is
necessary first of all to consider the
true nature and character of the General
Reserve Engineering Force.
In or about 1960 it was felt that
economic development of the North
and North Eastern Border areas were
greatly handicapped by meagre and
inadequate communications and defence
of these areas also required
a net work of roads for effective
movement and deployment of Armed
Forces. This was rendered all the
more necessary because the relations
of India with its neighbours were in
a state of potential conflict and part
of the Indian territory was under foreign
occupation and there were also
hostile forces inviting some sections
of the people to carry on a campaign
for secession. The Government
of India therefore, with a view
to ensuring coordination and expeditious
execution of projects designed
to improve existing roads and construct
new roads in the border areas
is order to improve the defence
preparedness of the country, created
133
several posts in the Directorate General
of Works. Army Head Quarters
for work connected with the development
of border roads as per letter
dated 9th April 1960 addressed by
the Under Secretary to the Government
of India, Ministry of Defence
to the Chief of the Army Staff. On
18th April 1960, within a few days
thereafter, the Government of India
sanctioned the post of Directorate
General Border Roads in the rank
of Major-General in the Directorate
General of Works, Army Head Quarters;
vide letter dated 18th April
1960 addressed by the Under Secretary
to the Government of India,
Ministry of Defence to the Chief of
the Army Staff. The Director General
Border Roads was placed in
charge of this new organisation which
started originally as part of the Directorate
General of Works, Army
Head Quarters. But subsequently,
for reasons of high policy, it was decided
that this Organisation should
not continue as part of the Directorate
General of Works, Army Head
Quarters but should be under the
Board Roads Development Board set
up by the Government of India as a
separate self contained Authority under
the Chairmanship of the Prime
Minister with the Defence Minister
as Deputy Chairman, the Financial
Adviser (Defence) as Financial Adviser
and a few other members nominated
by the Prime Minister. The
budget of the Border Roads Development
Board formed part of the
budget of the Ministry of Shipping
and Transport but the financial control
was vested in the Ministry of
Finance (Defence). The Govern-

134 Viswan v. Union Of India 1983
ment of India by a letter dated 16th
June 1960 addressed by the Secretary
of the Border Roads Development
Board to the Director General, Border
Roads conveyed the sanction of
the President to “raising and maintenance
of a General Reserve Engineering
Force for the construction of
roads in the border areas and such
other tasks as may be entrusted to
it by the Border Roads Development
Board”. It was directed that the
General Reserve Engineering Force
will be “under the over all command
of the Director General Border
Roads under whom will be Regional
Chief Engineers/Independent
Deputy Chief Engineers who will exercise
command Over the units of
the Force placed under their control”.
The General Reserve Engineering
Force (hereinafter referred to
as GREF) was thus raised under the
authority of the Government of India
and It was placed under the over
all command of the Director General,
Border Roads. Ever since then the
Director General, Border Roads, has
always been an army officer of the
rank of Major General and he functions
under the directions of the Border
Roads Development Board, The
General Reserve Engineering Force
(GREF) is organised on army pattern
in units and sub units with distinctive
badges of rank and a rank
structure equivalent to that in the
army. The officers and other personnel
of GREF arc required to be in
uniform right from class IV to Class
I personnel. Though GREF is undoubtedly
a departmental construction
agency, it is maintained by the
Government of India to meet the op-
erational requirements of the army
whose operational planning is based
on the availability of the units of
GREF for operational purposes. In
fact GREF pro- vided support to the
Army during Indo-China conflict of
1962 and Indo-Pakistan conflicts of
1965 and 1971 and also assisted the
Army in the maintenance of public
order during the disturbances in Mijoram
in 1966 and in Assam in 1980-
81. The personnel of GREF are primarily
drawn from two sources and
they consist of (I) officers and men
belonging to the Army and (2) officers
and men recruited, through the
Union Public Service Commission in
case of officers and departmentally in
case of other ranks. A ten per cent
quota is reserved for recruitment of
ex-servicemen. The posting of Army
officers and men in GREF is done,
not on any ad hoc basis, but in accordance
with a well thought out manning
policy laid down by the Government
of India for the purpose of
maintaining at all times and at all
levels the special character of GREF
as a force designed to Meet the operational
requirement of the Army.
The manning policy laid down by the
Government of India in respect of officers
is as under: G
Posts Army GREF
Brig/Col/Chief Engineer Gr. I &
II 75% 25% Lt. Col./Superintending
Engineer 50% 50% Major/Executive
Engineer 42% 58%
Capt./Asstt. Executive Engineer
20% 80% Assistant Engineer - 100%
So far as officers and men recruited
through the Union Public

Service Commission or departmentally
are concerned, all of them are
given training at the GREF Centre,
immediately after recruitment. The
GREF Centre is organised on lines
similar to an Army Regimental Centre
and also functions in the same
manner. It is located at a place adjoining
an Engineer Regimental Centre,
initially at Roorkee and now at
Pune, so that it can, if necessary,
draw upon the resources of the Engineer
Regimental Centre. The new
recruits are imparted training in the
following three military disciplines:
(a) Discipline, which includes
drill, marching and saluting.
(b) Combat training, including
physical training i.e. standing exercises,
beam exercises, rope work,
route marches etc., harbour deployment
drills, camp protection etc.
(c) Combat Engineering Training,
including field engineering, handling
of service explosives, camouflage,
combat equipment, bridging,
field fortifications, wire obstacles etc.
GREF personnel are not trained
in the use of arms, since the role to
be performed by GREF is such that
its personnel are not required to use
arms and they need arms only for
static protection and for use during
emergency. Therefore in GREF issue
of arms is restricted only to Army
personnel and ex- servicemen apart
from certain units like the Provost
Units (GREF Police) which having
regard to the nature of their duties,
have necessarily to be armed.
The tasks which are to be carried
out by GREF comprise not
135
only maintenance of strategic roads
but also support for the operational
plans of the Army in place of
Army Engineer Regiments. We shall
presently elaborate these tasks in order
to highlight the true character of
GREF, but before we do so, we may
point out that the role and organisation
of GREF units have been reviewed
from time to time in consultation
with the Army Headquarters
and as a result of a major review carried
out after the Indo-Pakistan Conflict
of 1971, the Army Headquarters
defined the role and organisation
of GREF units in a secret document
dated 24th January 1973. It
is clear from this document that, according
to the Army Headquarters,
a minimum of 17 Border Roads Task
Forces and 34 Pioneer Companies are
permanently required for providing
engineer support to the Army and
over the years, this minimum requirement
has been fulfilled and 17 Border
Roads Task Forces and 34 Pioneer
Companies have been made permanent.
These 17 Border Roads Task
Forces and 34 Pioneer Companies
have to be maintained as essential
units of GREF for meeting the operational
requirement of the Army, even
if sufficient work load is not available
in Border Areas at any given point of
time. There are, in fact, at present
21 Border Roads Task Forces and
34 Pioneer Companies, that is, four
Border Roads Task Forces more than
the minimum required by the Army
Authorities The requirement of these
four additional Border Roads Task
Forces is reviewed from time to time
depending on the work-load. What
should be the composition of the Bor-

136 Viswan v. Union Of India 1983
der Roads Task Forces is laid down
in the document dated 24th January
1973 and this document also sets out
the tasks to be carried out by the
Border Roads Task Forces which may
be briefly summarised as follows: (a)
Maintenance of line of communication
in rear areas of the theatre of operations
including roads constructed
by the Border Roads and roads maintained
by CPWD, State PWD and
MES.
(b) Improvement and maintenance
of operational roads and tracks
constructed by combat engineers;
(c) Construction and maintenance
of AICs and helipads; (d) Improvement
and repairs to airfields;
(e) Construction of accommodation
and all allied facilities for maintenance
areas required for sustaining
operations;
(f) Construction of defence works
and obstacles; and (g) Water supply
in difficult terrain and deserts.
These tasks are required to be carried
out by the Border Roads Task Forces
during operations with a view to
providing engineering support to the
army in its operational plans. The
Border Roads Task Forces have to
perform these tasks not only within
the country up to the border but also
beyond the border up to the extent of
advance into enemy’s territory. Even
during peace time the Border Roads
Task Forces have to be suitably positioned
in the likely area of operations
so that they can, in the event
of hostilities, be quickly deployed on
their operational tasks. The Border
Roads Tasks Forces alongwith the Pi-
oneer Companies attached to them
are also included in the Order of Battle
of the Army so that the support
of these units to the Army is
guaranteed and can be requisitioned
at any time. These units of GREF
are further sub-allotted to the lower
army formations such as Command,
Corps and Division and they appear
on the Order of Battle of these
formations. Their primary function
is to carry out works projected by
the General Staff, Army Headquarters
to meet the operational requirements
and these works, include, inter
alia, construction and maintenance
of roads operational tracks, airfields,
ditch-cum-bund. (water obstacles on
the border) and field fortifications
like bunkers fire trenches and Pill
Boxes. If after meeting the requirements
of the General Staff, Army
Headquarters, there is spare capacity
available with these units of GREF,
they undertake construction work on
behalf of other ministries or departments,
though even there, preference
is given to strategic and other roads
in sensitive border areas. The funds
allocated for the Border Roads Organisation
are non- plan funds meant
exclusively to meet the requirements
of the General Staff, Army Headquarters
and they cannot be used
for carrying out the works of other
ministries or departments. When
works are undertaken by GREF units
on behalf of other ministries or departments,
they are treated as works
on agency basis and, where applicable,
agency charges are collected
by the Border Roads Organisation
from the ministries or departments
whose work is carried out by them.

GREF units undertake, as far as possible,
only those tasks which are similar
in nature to the tasks for which
they are primarily designed to meet
Army requirements. It is apparent
from the further affidavit of Lt. Col.
S.S. Cheema that the major portion
of the work carried out by GREF
units consists of tasks entrusted by
the General Staff, Army Headquarters
and the tasks carried out on
agency basis on behalf of other ministries
or departments are comparatively
of much lesser value. In fact,
until 1966 no work on agency basis
was undertaken by GREF units and
during the period 1967 to 1970 less
than 2 percent of the total work was
executed by GREF units for other
ministries or departments. Even during
the years 1970-71 to 1980-81, the
percentage of work carried out by
GREF units on behalf of other ministries
of departments did not on an
average exceed 15 per cent of the total
work. The figures for the year
1980-81 also reveal the same pattern.
During 1981-82 the work executed by
GREF units for General Staff, Army
Headquarters consisted of construction
and maintenance of 12865 kms.
of roads out of the funds of the Border
Roads Organisation and 310 kms.
of ditch-cum-bunds out of funds provided
as the Defence Ministry while
the agency work entrusted by the
Ministry of Shipping and Transport
did not cover more than 519 km. of
strategic roads, 216 kms. of sensitive
broader area roads and 376 kms.
of National Highways in border areas
and the agency work entrusted
by other ministries was limited only
to 702 kms. of roads. It will thus be
137
seen that the major part of the work
executed by GREF units consists of
tasks entrusted by the General Staff,
Army Headquarters and only a small
percentage of work is being done on
behalf of other ministries or departments
when spare capacity is available.
So far as the personnel of GREF
are concerned, they are partly drawn
from the Army and partly by direct
recruitment. Army personnel
are posted in GREF according to
a deliberate and carefully planned
manning policy evolved with a view
to ensuring the special character of
GREF as a force intended to support
the Army in its operational requirements.
The posting of Army personnel
in GREF units is in fact regarded
as normal regimental posting and
does not entitle the Army personnel
so posted to any deputation or other
allowance and it is equated with similar
posting in the Army for the purpose
of promotion, career planning,
etc. The tenure of Army personnel
posted in GREF units is treated as
normal Regimental Duty and such
Army personnel continue to be subject
to the provisions of the Army
Act 1950 and the Army Rules 1954
whilst in GREF. But quite apart
from the Army personnel who form
an important segment of GREF, even
the directly recruited personnel who
do not come from the Army are subjected
to strict Army discipline having
regard to the special character of
GREF and the highly important role
it is called upon to play in support of
the Army in its operational requirements.
Since the capacity and effi-

138 Viswan v. Union Of India 1983
ciency of GREF units in the event
of outbreak of hostilities depends on
their all time capacity and efficiency
they are subjected to rigorous discipline
even during peace time, because
it is elementary that they cannot
be expected suddenly to rise to
the occasion and provide necessary
support to the Army during military
operations unless they are properly
disciplined and in fit condition
at all times so as to be prepared for
any eventuality. The Government of
India has in exercise of the power
conferred upon it by sub- sections
(1) and (4) of Section 4 of Army
Act 1950 issued a Notification bearing
SRO 329 dated 23rd September
1960 applying to GREF all the provisions
of that Act with the exception
of those shown in Schedule A, subject
to the modifications set forth in
Schedule B and directing that the officers
mentioned in the first column
of Schedule C shall exercise or perform,
in respect of members of the
said Force under their command, the
jurisdiction, powers and duties incident
to the operation of that Act
specified in the second column of
Schedule C. This Notification makes
various provisions of Army Act 1950
applicable to GREF and amongst
them is Section 21 which provides:
Subject to the provisions of any
law for the time being in force relating
to the regular Army or to
any branch thereof, the Central Government
may, by notification, make
rules restricting to such extent and
in such manner as may be necessary
the right of any person subject to this
Act:-
(a) to be a member of, or to be
associated in any way with, any trade
union or labour union or any class of
trade of labour unions, or and society,
institution or association or any
class of institution or associations;
(b) to attend or address any
meeting or to take part in any
demonstration organised by any
body of persons for any political or
other purposes; (c) to communicate
with the press or to publish or cause
to be published any book, letter or
other documents.
The other sections which are
made applicable deal with special
privileges, offences, punishments, penal
deductions, arrest and proceedings
before trial, Court Martial and
other incidental matters. These section
which are made applicable are
primarily intended to impose strict
discipline on the members of GREF
the same kind of discipline which is
required to be observed by the regular
Army personnel. The Government
of India has also in exercise of
the powers of conferred by Section
21, sub-section (4) of Section 102 and
section 191 of the Army Act 1950
issued another Notification bearing
SRO 330 on the same day, namely,
23rd September 1960, directing that
the Army Rules 1954 as amended
from time to time shall, with the exception
of Rules 7 to 18, 168, 172
to 176, 190 and 191, be deemed to
be Rules made under the Army Act
1950 as applied to GREF. Rules 19,
20 and 21 of the Army Rules 1954
are material for the purpose of the
present writ petitions and they provide
inter alia as follows

19. Unauthorised organisations-
No person subject to the Act shall,
without the express sanction of the
Central Government:-
(i) take official cognizance of, or
assist or take any active part in, any
society, institution or organisation
not recognised as part of the Armed
Forces of the Union; unless it be of
a recreational or religious nature in
which case prior sanction of the superior
officer shall be obtained;
(ii) be a member of, or be associated
in any way with, any trade
union or labour union, or any class
of trade or labour unions.
20. Political and non-military
activities-(1) No person subject to
the Act shall attend, address, or take
part in any meeting or demonstration
held for a party or any political purposes,
or belong to join or subscribe
in the aid of, any political association
or movement.
(2) No person subject to the Act
shall issue an address to electors or in
any other manner publicly announce
himself of allow himself to be publicly
announced as a candidate or as a
prospective candidate for election to
Parliament, the legislature of a State,
or a local authority, or any other public
body or act as a member of a candidate’s
election committee or in any
way actively promote or prosecute a
candidate’s interests.
21. Communications to the
Press, Lectures, etc-No person subject
to the Act shall.-
(i) publish in any from whatever
or communicate directly or indirectly
to the Press any matter in relation
139
to a political question or on a service
subject or containing any service information,
or publish or cause to be
published any book or letter or article
or other document on such question
or matter or containing such information
without the prior sanction
of the Central Government, or any
officer specified by the Central Government
in this behalf; or
(ii) deliver a lecture or wireless
address, on a matter relating to a political
question or on a service subject
or containing any information or
views on any service subject without
the prior sanction of the Central
Government or any officer specified
by the Central Government in this
behalf.
These rules obviously owe their
genesis to Section 21 and they impose
restrictions on the fundamental
rights of members of GREF. Since
the Army Act 1950 and Army Rules
1954 are made applicable by virtue
of SRO Nos. 329 and 330 dated 23rd
September, 1960, GREF personnel
when recruited, are required to accept
certain terms and conditions of
appointment which include inter alia
the following:
5 (iv): You will be governed by
the provisions of Central Civil Service
(Classification, Control and Appeal)
Rules, 1965, as amended from
time to time. Notwithstanding the
above, you will be further subject to
certain provisions of the Army Act,
1950, and Rules made thereunder, as
laid down in SROs. 329 and 330 of
1960, for purposes of discipline. It
will be open to the appropriate disciplinary
authority under the Army

140 Viswan v. Union Of India 1983
Act 1950 to proceed under its provisions
wherever it considers it expedient
or necessary to do so.
5 (v): You will be required to
serve anywhere in India or outside India
and when so called upon by the
Government or the appointing authority
or your superior officer, you
shall proceed on field service. 5 (vi):
You shall, if required, be liable to
serve in any Defence Service or post
connected with the defence of India.
5 (xi): On your appointment, you
will be required to wear the prescribed
uniform while on duty, abide
by such rules and instructions issued
by your superior authority regarding
discipline, turnout, undergo such
training and take such departmental
test as the Government may prescribe.”
The result is that the directly
recruited GREF personnel are governed
by the provisions of Central
Civil Service (Classification, Control
and Appeal) Rules 1965 as amended
from time to time but for purposes
of discipline, they are subject to certain
provisions of the Army Act 1950
and the Army Rules 1954 as laid
down in SROs 329 and 330 dated
23rd September 1960.
The material facts in all the writ
petitions which are being disposed
of by this Judgment are similar and
hence it is not necessary to set out
separately the facts of each writ petition.
It will suffice to set out the
facts of writ petition No. 815 of
1980 which was tried as the main writ
petition and whatever we say in regard
to the facts of this writ peti-
tion must apply equally in regard to
the other writ petitions. The petitioners
in writ petition No. 815 of
1980 are 24 in number and at all material
times they were members of
GREF. Out of them, petitioner Nos.
1 and 24 were deserters from service
and warrants were issued for their arrest
under the provisions of the Army
Act 1950 but the Police Authorities
were not able to apprehend them. So
far as petitioners Nos. 2 to 23 are
concerned, they were charged before
the Court Martial for offences under
section 63 of the Army Act 1950
in that they alongwith some other
GREF personnel assembled in front
of HQ Chief Engineer (Project) Vartak
shouting slogans and demanding
release of HQ CE (P) Vartak personnel
placed under arrest, removed
their belts and threw them on the
ground in the vicinity of OC’s Office,
participated in a black flag demonstration
and failed to fall in line
though ordered to do so by Brig. Gosain,
Chief Engineer Project, Vartak
and also associated themselves with
an illegal association called “All India
Border Roads Employees Association”.
These 22 petitioners were
tried by the Court Martial in accordance
with the procedure prescribed
by the Army Act 1950 and
the Army Rules 1954 as applicable
to the members of GREF and
on being convicted, they were dismissed
from service. The petitioners
thereupon preferred writ petition No.
815 of 1980 challenging the validity
of SROs. 329 and 330 dated 23rd
September 1960 since these Notifications
had the effect of applying the
provisions of the Army Act 1950 and

the Army Rules 1954 to the members
of GREF and restricting their fundamental
rights. The petitioners contended
that GREF was not a Force
raised and maintained under the authority
of the Central Government
and SROs. 329 and 330 dated 23rd
September 1960 were ultra vires the
powers of the Central Government
under sub-sections (1) and (4) of Section
4 of the Army Act 1950. The
petitioners also urged that in any
event the application of Section 21 of
the Army Act 1950 read with Rules
19 to 21 of the Army Rules 1954
to the members of GREF was unconstitutional
since it restricted the
fundamental rights of the members
of GREF in a manner not permitted
by the Constitution and such restriction
of the fundamental rights
was not protected by Article 33, because
the members of GREF was not
“members of the Armed Forces or the
Forces charged with the maintenance
of public order” within the meaning
of that Article. There was also
one other contention advanced on behalf
of the petitioners which, if well
founded would render it unnecessary
to examine whether GREF was a
Force raised and maintained under
the authority of the Central Government
and the members of GREF
were members of the Armed Forces
or the Forces charged with the maintenance
of public order and that contention
was that Section 21 of the
Army Act 1950 was in any event
not justified by the terms of Article
33, since under that Article it
was Parliament alone which was entrusted
with the power to determine
to what extent any of the fundamen-
141
tal rights shall, in application to the
members of the Armed Forces or the
Forces charged with the maintenance
of public order, be restricted or abrogated
so as to ensure the proper discharge
of their duties and the maintenance
of discipline amongst them
and Parliament could not leave it
to the Central Government to determine
the extent of such restriction
or abrogation as was sought to be
done under- Section 21. Section 21
was therefore, according to the petitioners,
unconstitutional and void
and alongwith Section 21 must fall
Rules 19 to 21 of the Army Rules
1954. The petitioners contended that
in the circumstances they were entitled
to exercise their fundamental
rights under Clauses (a), (b) and (c)
of Art. 19 (1) without any of the restriction
imposed by Rules 19 to 21
of the Army Rules 1954 and if that
be so, they could not be charged under
section 63 of the Army Act 1950
on the facts alleged against them and
their convictions by the Court Martial
were illegal and void and consequently
they continued in service
of GREF. The self same contentions
were repeated on behalf on the petitioners
in the other writ petitions.
The respondents disputed the validity
of these contentions and submitted
that GREF was a Force raised
and maintained under the authority
of the Central Government and having
regard to the special character of
GREF and the role which it was required
to play in support of the Army
operations, the members of GREF
could legitimately be regarded as
members of the Armed Forces within
the meaning of Art. 33 and the Cen-

142 Viswan v. Union Of India 1983
tral Government was therefore entitled
to issue SROs. 329 and 330
dated 23rd September 1960 making
the provisions of the Army Act 1950
and the Army Rules 1954 and particularly
Section 21 and Rules 19 to 21
applicable to the members of GREF.
The respondents defended the validity
of Section 21 and contended that
it was a proper exercise of power by
Parliament under Art. 33 determining
the extent to which the Fundamental
Rights may, in their application
to the members of the Armed
Forces including GREF, be restricted
or abrogated and it was not outside
the power conferred on Parliament
by that article and, read with Rules
19 to 21, it validly restricted the Fundamental
Rights of the members of
GREF. The respondents submitted
that in the circumstances the petitioners
were rightly charged under
Section 63 of the Army Act 1950 and
their convictions by the Court Martial
and subsequent dismissals were
valid. The respondents thus sought
to sustain the validity of the action
taken by the authorities against the
petitioners.
Now the first question that arises
for consideration on these rival contentions
is as to the constitutional validity
of Section 21. That section empowers
the Central Government by
notification to make rules restricting
“to such extent and in such manner
as may be necessary” three categories
of rights of any person subject
to the Army Act 1950, namely,
(a) the right to be a member of or
to be associated in any way with,
any trade union or labour union, or
any class of trade or labour unions,
or any society, institution or association
or any class of institution or
associations; (b) the right to attend
or address any meeting or to take
part in any demonstration organised
by any body of persons for any political
or other purposes; and (c)the
rights to communicate with the press
or to publish or cause to be published
any book, letter or other document.
These rights which are permitted to
be restricted are part of the Fundamental
Rights under clauses (a), (b)
and (c) of article 19(1) and under
the constitutional scheme, they cannot
be restricted by executive action
unsupported by law. If any restrictions
are to be imposed, that can be
done only by law and such law must
satisfy the requirements of clause (2),
(3) or (4) of article 19 according as
the right restricted falls within clause
(a), (b) or (c) of article 19(1). The
restrictions imposed must be reasonable
and in case of right under clause
(a) of article 19(1), they must be
“in the interest of the sovereignty
and integrity of India, the security
of the state, friendly relations with
foreign states, public order, decency
or morality, or in relation to contempt
of court, defamation or incitement
to an offence” as provided
in clause (2) of article 19, in case
of right under clause (b) of article
19(1), they must be “in the interest
of the sovereignty and integrity of India
or public order” as provided in
clause (3) of article 19 and in case
of right under clause (c) of article
19(1), they must be “in the interest
of the sovereignty and integrity
of India or public order or morality”

as provided in clause (4) of article
19. Then only they would be valid;
otherwise they would be unconstitutional
and the law imposing them
would be void. Now here we find that
Section 21 does not itself impose any
restrictions on the three categories
of rights there specified. If Section
21 had itself imposed any such restrictions,
it would have become necessary
to examine whether such restrictions
are justified under clause
(2), (3) or (4) of article 19, as may
be applicable. But Section 21 leaves
it to the Central Government to impose
restrictions on these three categories
of rights without laying down
any guidelines or indicating any limitations
which would ensure that the
restrictions imposed by the Central
Government are in conformity with
clause (2), (3) or (4) of article 19,
whichever be applicable. It confers
power on the Central Government in
very wide terms by providing that
the Central Government may impose
restrictions on these three categories
of rights “to such extent and in such
manner as may be necessary.” The
Central Government is constituted
the sole judge of what restrictions are
considered necessary and the Central
Government may, in terms of the
power conferred upon it, impose restrictions
it considers necessary, even
though they may not be permissible
under clauses (2), (3) and (4) of
article 19. The power conferred on
the Central Government to impose
restrictions on these three categories
of rights which are part of the Fundamental
Rights under clauses (a), (b)
and (c) of article 19(1) is thus a broad
uncanalised and unrestricted power
143
permitting violation of the constitutional
limitations. But, even so, section
21 cannot be condemned as invalid
on this ground, as it is saved
by article 33 which permits the enactment
of such a provision. Article
33 carves out an exception in so
far as the applicability of Fundamental
Rights to members of the Armed
Forces and the Forces charged with
the maintenance of public order is
concerned. It is elementary that a
highly disciplined and efficient armed
force is absolutely essential for the
defence of the country. Defence preparedness
is in fact the only sure
guarantee against aggression. Every
effort has therefore to be made to
build up a strong and powerful army
capable of guarding the frontiers of
the country and protecting it from
aggression. Now obviously no army
can continuously maintain its state of
preparedness to meet any eventuality
and successfully withstand aggression
and protect the sovereignty and
integrity of the country unless it is
at all times possessed of high morale
and strict discipline. Morale and discipline
are indeed the very soul of
an army and no other consideration,
howsoever important, can outweigh
the need to strengthen the morale
of the armed forces and to maintain
discipline amongst them. Any relaxation
in the matter of morale and discipline
may prove disastrous and ultimately
lead to chaos and ruination
affecting the well being and imperilling
the human rights of the entire
people of the country. The constitution
makers therefore placed the need
for discipline above the fundamental
rights so far as the members of the

144 Viswan v. Union Of India 1983
Armed Forces and the Forces charged
with the maintenance of public order
are concerned and provided in
Article 33 that Parliament may by
law determine the extent to which
any of the Fundamental Rights in
their application to members of the
Armed Forces and the Forces charged
with the maintenance of public order,
may be restricted or abrogated
so as to ensure the proper discharge
of their duties and the maintenance
of discipline among them. Article
33 on a plain grammatical construction
of its language does not require
that Parliament itself must by
law restrict or abrogate any of the
Fundamental Rights in order to attract
the applicability of that Article.
What it says is only this and no
more, namely, that Parliament may
by law determine the permissible extent
to which any of the Fundamental
Rights may be restricted or abrogated
in their application to the
members of the Armed Forces and
the Forces charged with the maintenance
of public order. Parliament
itself can, of course, by enacting a
law restrict or abrogate any of the
Fundamental Rights in their application
to the members of the Armed
Forces and the Forces charged with
the maintenance of public order as,
in fact, it has done by enacting the
Army Act, 1950, the provisions of
which, according to the decisions of a
Constitution Bench of this Court in
Ram Swarup v. Union of India(1) are
protected by article 33 even if found
to affect one or more of the Fundamental
Rights. But having regard
to varying requirement of army discipline
and the need for flexibility in
this sensitive area, it would be inexpedient
to insist that Parliament itself
should determine what particular
restrictions should be imposed and
on which Fundamental Rights in the
interest of proper discharge of duties
by the members of the Armed Forces
and the Forces charged with the
maintenance of public order maintenance
of discipline among them. The
extent of restrictions necessary to be
imposed on any of the Fundamental
Rights in their application to the
members of the Armed Forces and
the Forces charged with the maintenance
of public order for the purpose
of ensuring proper discharge
of their duties and maintenance of
discipline among them, would necessarily
depend upon the prevailing
situation at a given point of time
and it would be inadvisable to encase
it in a rigid statutory formula.
The Constitution makers were obviously
anxious that no more restrictions
should be placed on the Fundamental
Rights of the members of the
Armed Forces and the Forces charged
with the maintenance of public order
than are absolutely necessary for
ensuring proper discharge of their
duties and the maintenance of discipline
among them, and therefore
they decided to introduce a certain
amount of flexibility in the imposition
of such restrictions and by article
33, empowered Parliament to
determine the permissible extent to
which any of the Fundamental Rights
in their application to the members
of the Armed Forces and the
Forces charged with the maintenance
of public order may be restricted or
abrogated, so that within such per-

missible extent determined by Parliament,
any appropriate authority authorised
by Parliament may restrict
or abrogate any such Fundamental
Rights. Parliament was therefore
within its power under article 33 to
enact Section 21 laying down to what
extent the Central Government may
restrict the Fundamental Rights under
clauses (a), (b) and (c) of article
19(1), of any person subject to the
Army Act, 1950, every such person
being clearly a member of the Armed
Forces. The extent to which restrictions
may be imposed on the Fundamental
Rights under clauses (a), (b)
and (c) of article 19(1) is clearly indicated
in clauses (a), (b) and (c) of
section 21 and the Central Government
is authorised to impose restrictions
on these Fundamental Rights
only to the extent of the rights set
out in clauses (a), (b) and (c) of section
21 and no more. The permissible
extent of the restrictions which
may be imposed on the Fundamental
Rights under clauses (a), (b) and
(c) of Article 19 (1) having been
laid down in clauses (a), (b) and (c)
of section 21, the Central Government
is empowered to impose restrictions
within such permissible limit,
“to such extent and in such manner
as may be necessary.” The guideline
for determining as to which restrictions
should be considered necessary
by the Central Government within
the permissible extent determined by
Parliament is provided in article 33
itself, namely, that the restrictions
should be such as are necessary for
ensuring the proper discharge of their
duties by the members of the Armed
Forces and the maintenance of dis-
145
cipline among them. The Central
Government has to keep this guideline
before it in exercising the power
of imposing restrictions under Section
21 though, it may be pointed
out that once the Central Government
has imposed restrictions in exercise
of this power, the court will not
ordinarily interefere with the decision
of the Central Government that
such restrictions are necessary because
that is a matter left by Parliament
exclusively to the Central
Government which is best in a position
to know what the situation
demands. Section 21 must, in the
circumstances, be held to be constitutionally
valid as being within the
power conferred under article 33.
That takes us to the next question
whether the Central Government
was entitled to issue SROs. 329
and 330 applying certain provisions
of the Army Act 1950 and the Army
rules 1954 to the members of GREF.
We will first consider the question of
validity of SRO 329 because if that
notification has been validly issued
and the provisions of section 21, subsection
(4) of section 102 and section
191 of the Army Act 1950 made
applicable to the members of REF,
SRO 330 applying certain provisions
of the Army Rules, 1954 to the members
of GREF in exercise of the powers
conferred under section 21, subsection(4)
of section 102 and section
191 of the Army Act 1950 would be
fortiori be valid. Now SRO 329 is issued
by the Central Government under
sub-sections (1) and (4) of section
4 of the Army Act 1950 which
provide inter alia as under:

146 Viswan v. Union Of India 1983
“Sec. 4(1) The Central Government
my, by notification, apply with
or without modifications, all or any
of the provisions of this Act to any
force raised and maintained in India
under the authority of that Government,
and suspend the operation of
any other enactment for the time being
applicable to the said force.
(2) ... ... ... ...
(3) ... ... ... ...
(4) While any of the provisions
of this Act apply to the said force,
the Central Government may, by notification,
direct by what authority
any jurisdiction, powers or duties incident
to the operation of these provision
shall be exercised or performed
in respect of the said force.
The Central Government is empowered
under sub-section (1) of section
4 to apply any of the provisions
of the Army Act, 1950 to any force
raised or maintained in India under
the authority of that Government
and when any such provisions of the
Army Act, 1950 are applied to that
force under sub-section (1), the Central
Government can by notification
issued under sub-section (4), direct
by what authority, the jurisdiction,
powers and duties incident to the operation
of those provisions shall be
exercised or performed in respect of
that force. SRO 329 applying certain
provisions of the Army Act, 1950 to
the members of GREF and directing
by what authority, the jurisdiction,
powers and duties incident to the operation
of those provisions shall be
exercised or performed in respect of
GREF, would therefore be within the
power of the Central Government under
sub-section (1) and (4) of section
4, if GREF could be said to be a force
raised and maintained in India under
the authority of the Central Government.
The question is: what is the
true meaning and scope of the expression
“any force raised and maintained
in India under the authority of
the Central Government.” The word
“force” is not defined anywhere in
the Army Act, 1950. There is a definition
of the expression “the forces”
in section 3 (xi) but it does not help,
because the expregsion we have to
construe is “force” which is different
from “the forces”. There is however
an indication to be found in subsection
(2) of section 4 which throws
some light on the sense in which the
word “force” is used in sub-section
(1) of section 4. Section 4, subsection
(2) clearly contemplates that
the “force” referred to in sub-section
(1) of section 4 must be a force organised
on similar lines as the army
with rank structure. So far as GREF
is concerned, there can be no doubt
that it is a force organised on army
pattern with units and sub units and
rank structure. Moreover, as is clear
from the letter dated 16th June, 1960
addressed by the Secretary, Border
Roads Development Board to the Director
General Border Roads, GREF
is a force raised and maintained under
the 11 authority of the Central
Government. The Central Government
therefore had power under subsections
(1) and (4) of section 4 to
issue SRO 329 applying some of the
provisions of the Army Act, 1950
to GREF and directing by what authority
the jurisdiction powers and

duties incident to the operation of
these provisions shall be exercised
or performed in respect of GREF.
But the question is, and that is the
more important question to which we
have to address ourselves, whether,
even if GREF was a force raised and
maintained under the authority of
the Central Government, the Central
Government could, in exercise of the
powers conferred under sub-section
(1) of section 4, validly-apply section
21 to the members of GREF. Section
21 empowers the Central Government
to make rules restricting “to
such extent and in such manner as
may be necessary” the rights set out
in clauses (2), (b) and (c) of that section
and in exercise of this power, the
Central Government has made rules
19 to 21 to which reference has already
been made by us. Now as already
pointed out above, section 21 is
protected against invalidation by Article
33, since it lays down in clauses
(a), (b) and (c) the possible extent
to which the fundamental rights of
any person subject to the Army Act,
1950 may be restricted and every
person subject to the Army Act 1950
would clearly and indubitably be a
member of the Armed Forces within
the meaning of Article 33. But if section
21 were to be applied to persons
who are not members of the
Armed Forces of the forces charged
with the maintenance of public order,
Article 33 would not afford any protection
to section 21 in so far as it
applies to such persons and the application
of section 21 to such persons
would be unconstitutional. We
must therefore proceed to consider
whether the members of GREF could
147
be said to be members of the Armed
Forces within the meaning of Article
33. If they cannot be said to be members
of the Armed Forces, the application
of section 21 to them would
not have the protection of Article 33
and would be clearly void.
The history, composition, administration,
organisation and role
of GREF which we have described
above while narrating the facts
clearly show that GREF is an integral
part of the Armed Forces. It
is undoubtedly a departmental construction
agency as contended on behalf
of the petitioners but it is distinct
from other construction agencies
such as Central Public Works
Department etc., in that it is a force
intended primarily to support the
army in its operational requirement.
It is significant to note that the Border
Roads organisation, which is in
over all control of GREF was originally
created as part of Army Headquarters
and it was only later, for
reasons of high policy, that it was
separated from Army Headquarters
and placed under the Border Roads
Development Board. Though the
budget of the Border Roads organisation
forms part of the budget of Ministry
of Shipping and Transport, the
financial control is vested in the Ministry
of Finance (Defence). The entire
infra-structure of GREF is modelled
on the pattern of the Army and
it is organised into units and subunits
with command and control system
similar to that in the Army. The
personnel of GREF right from class
IV to class I have to be in uniform
with distinctive badges of rank and

148 Viswan v. Union Of India 1983
they have a rank structure equivalent
to that of the Army. GREF is
primarily intended to carry out defence
and other works projected by
the General Staff, Army Headquarters
and it is only where spare capacity
is available that GREF undertakes
works of other ministries or departments
on agency basis and there
also, preference is given to strategic
and other roads in sensitive areas.
The funds which are provided
to the Border Roads organisation are
meant exclusively for carrying out
the works entrusted by the General
Staff, Army Headquarters and so far
as the works carried out for other
ministries or departments on agency
basis are concerned, the funds of the
Border Roads organisation are not
permitted to be used for carrying out
those works and they are paid for by
the respective ministries or departments
and where applicable, agency
charges for executing the works are
also collected. The statistics given in
the earlier part of the judgment show
that the major portion of the work
executed by GREF units consists of
tasks entrusted by the General Staff,
Army Headquarters and only a small
percentage of the work is being done
on behalf of other ministries or departments.
GREF units carry out essentially
those tasks which are other
wise carried out by Army Engineering
Regiments and they provide engineering
support to the Army both
during peace time as also during hostilities.
It was found necessary as
a result of a major review carried
out by Army Headquarters after 1971
that a minimum of 17 Border Road
Task Forces and 34 Pioneer Compa-
nies would be permanently required
for providing engineering support to
the Army and accordingly 17 Border
Road Task Forces and 34 Pioneer
Companies have been made permanent
and their composition has been
reorganised in accordance with the
recommendations of the Army Headquarters.
These 17 Border Road
Task Forces and 34 Pioneer Companies
are being maintained as essential
units of GREF for meeting the operational
requirements of the Army,
even if sufficient work is not available
for them at any given point of
time. The operational planning of
the Army is in fact based on availability
of these 17 Border Road Task
Forces and 34 Pioneer Companies
and during operations, they have to
carry out tasks which would otherwise
have been done by equal number
of Army Engineering Regiments.
It may be pointed out that these 17
Border Road Task Forces and 34 Pioneer
Companies have replaced corresponding
number of Army Engineering
Regiments and Pioneer Companies
in the Army. The tasks required
to be carried out by the Border Road
Task Forces have already been described
in some details in the opening
part of the Judgment while narrating
the facts and we need not repeat the
same over again. Suffice it to state
that these tasks are required to be
carried out by the Border Road Task
Forces during operations with a view
to providing engineering support to
the Army in its operational plans.
The Border Road Task Forces have
to perform these tasks and provide
engineering support to the Army not
only up to the border but even be-

yond up to the exent of advance into
enemy territories. Even in peace
time, the Border Road Task Forces
have to undertake works projected by
General Staff, Army Headquarters to
meet their operational requirements
and these work include construction
and maintenance of roads, operational
tracks, ditch-cum-bund (water
obstacles on the broder), field fortifications
like bunkers, fire trenches
and pill boxes, helipads and airfields.
It is also significant to note that the
Border Road Task 1 Forces and Pioneer
Companies attached to them
are included in the order of Battle
of the Army which implies that support
of these units to the Army is
guaranteed and can be requisitioned
at any time The Border Road Tack
Forces are also sub-allotted to lower
army formations and they appear
on the order of Battle of these formations.
GREF units consisting of
these Border Road Task Forces and
Pioneer Companies are placed under
the direct control of the Army
during emergencies when the entire
control of this Force is entrusted to
the Chief of the Army Staff. Even
during peace time, the Chief of the
Army Staff exercises control over the
discipline of the members of GREF
units through the applicability of the
provisions of the Army Act 1950.
The Director General, Border Roads
who is in over-all control of GREF
units is always an army officer of the
rank of Major General and his confidential
reports are written by the
Chief of the Army Staff. The signal
communication of GREF is also
integrated with the Army communication
set up not only during op-
149
erations but also in normal peace
time. It is also a factor of vital significance
which emphasises the special
character of GREF as a force
intended to provide support to the
Army in its operational plans and requirements
that Army personnel are
posted in GREF units according to
a carefully planned manning policy
so that GREF units can in times of
war or hostilities be able to provide
effective support to the Army. The
tenure of office of the Army personnel
in GREF units is regarded as normal
regimental duty and is equated with
similar appointments in the Army
for the purpose of promotion, career
planning etc. Even the directly recruited
personnel of GREF are given
training at the GREF Centre before
they are posted and the training
given is in three military disciplines
which we have described in detail in
the opening part of the Judgment.
The training includes not only drill,
marching and saluting but also combat
training including physical training
such as standing Exercises, beam
exercises. rope work, route marches
etc. and combat engineering training
including field engineering, handling
of service cxplosives, camouflage,
combat equipment, bridging,
field fortifications, wire obstacles etc.
Moreover, the directly recruited personnel
are taken up only after they
voluntarily accept the terms and conditions
of employment which include
inter alia conditions 5 (1v), (v). 5
(vi) and 5 (xi) which have been reproduced
in full while narrating the
facts. These conditions make it clear
the directly recruited personnel my
be required to serve anywhere in In-

150 Viswan v. Union Of India 1983
dia and outside India and when directed,
they would have to proceed
on field service and if required, they
would also be liable to serve in any
Defence Service or post connected
with the defence of India. It is also
stipulated in these conditions that on
their appointment, the directly recruited
personnel would have to wear
the prescribed uniform while on duty
and that they would be subject to the
provisions of the Army Act 1950 and
the Army Rules 1954 as laid down
in SROs. 329 and 330 for purpuoses
of discipline. It is abundantly clear
from these facts and circumstances
that GREF is an integral part of the
Armed Forces and the members of
GREF can legitimately be said to be
members of the Armed Forces within
the meaning of article 33.
The petitioners however tried to
combat this conclusion by pointing
out that the services constituted under
Border Roads Engineering Service
Group A, Rules 1977 and the
Border Roads Engineering Service
Group B, Rules, 1977 both of which
were made by the President in exercise
of the powers conferred under article
309 and brought into force with
effect from 20th September 1977,
were expressly designated as Central
Civil Services and that in reply to
Unstarred Question No. 1100, the
Minister for Defence stated on 18th
June, 1980 that “GREF as at present
organized is a civilian construction
force” and similarly in reply to Unstarred
Question No. 6002, the Minister
of Defence observed on 1st April
1981 that “the civilian employees
serving with the Border Roads or-
ganisation and GREF are not under
administrative control of Ministry
of Defence but are under the
administrative control of the Border
Roads Development Board” and so
also Minister of Defence stated on
25th February 1983 in answer to Unstarred
Question No. 938 that “the
members of the General Reserve Engineer
Force of the Border Roads organisation
are civilian employees of
the Central Government”. The petitioners
contended on the basis of
these statements that GREF was not
an Armed Force but was a civilian
construction agency and the members
of GREF could not possibly be
regarded as members of the Armed
Forces so as to fall within the scope
and ambit of article 33. This contentions
though it may appear at first
blush attractive, is in our opinion
not well founded and must be rejected.
It is undoubtedly true that
as stated by the Minister of Defence,
GREF is a civilian construction force
and the members of GREF are civilian
employees under the administrative
control of the Border Roads Development
Board and that the engineer
officers amongst hem constitute
what may be designed as “Central
Civil Services, within GREF, but
that does not mean that they cannot
be at the same time form an integral
part of the Armed Forces. The fact
that they are described as civilian
employees and they have their own
special rules of recruitment and are
governed by the Central Civil Service
(Classification, Control and Appeal)
Rules, 1965 is not determinative
of The question whether they are
members of the Armed Forces lt may

e noted that even the members of
the Civil General Transport Companies
constituted under Government
of India, War Department, notification
No. 1584 dated 29th June, 1946
as also the members of the independent
Transport Platoons have been
treated as members of the Armed
Forces for the purpose of application
of the provisions of the Army Act
1950 by SRO 122 dated 22nd July
1960 and SRO 282 dated 17th August
1960. So also when personal
of Military Engineer Service have to
function in operational areas under
the army, they too are brought under
the provisions of the Army Act
1950 for the purpose of discipline.
The question whether the members
of GREF can be said to be members
of the Armed Forces for the purpose
of attracting the applicability of article
33 must depend essentially on
the character of GREF, its organisational
set up, its functions, the
role it is called upon to play in relation
to the Armed Forces and the
depth and intimacy of its connection
and the extent of its integration
with the Armed Forces and if
judged by this creterian, they are
found to be members of the Armed
Forces, the mere fact that they are
non-combatant civilians governed by
the Central Civil Services (Classification
Control and Appeal) Rules 1965,
cannot make any difference. This
view which we are taking on principle
finds ample support from the decision
of this Court in Ous Kutilingal
Achudan Nair Ors. v. Union of India
& Ors.(1) where the question was
whether certain employees in the Defence
Establishment such as cooks,
151
chowkidars, laskers, barbers, carpenters,
mechanics, boot-makers, tailors
etc. who were noncombatant civilians
governed by the Civil Service
Regulations for purpose of discipline,
leave, pay etc. and were eligible to
serve up to the age of 60 years unlike
the members of the Armed Forces,
could be validly called “members of
the Armed Forces” covered by article
33, because it Was only if they
were members of the Armed Forces
within the meaning of that article
that the restrictions imposed upon
their right to form association could
be sustained. This Court speaking
through Sarkaria, J. held that the
employees in question were members
of the Armed Forces and gave the following
reasons in support of its view:
“The members of the Unions” represented
by the appellants fall within
this category. It is their duty to follow
or accompany the Armed personnel
on active service, or in camp
or on the march. Although they
are non-combatants and are in some
matters governed by the Civil Service
Regulations, yet they are integral to
the Armed Forces. They answer the
description of the “members of the
Armed Forces” within the contemplation
of Article 33.
Here also it is indisputable on the
facts and circumstances mentioned
above that the functions and duties
of GREF are integrally connected
with the operational plans and requirements
of the Armed Forces and
the members of GREF are, to use
the words of Sarkaria, J. “integral
to the Armed Forces”. There can
be no doubt that with out the effi-

152 Viswan v. Union Of India 1983
cient and disciplined operational role
of GREF the military operations in
border areas during peace as also in
times of war will be seriously hampered
and a highly disciplined and
efficient GREF is absolutely essential
for supporting the operational
plans and meeting the operational requirements
of the Armed Forces. It
must therefore be held that the members
of GREF answer the description
of “members of the Armed Forces”
within the meaning of article 33 and
consequently the application of section
21 of the Army 89
Act 1950 to the members of
GREF must be held to be protected
by that Article and the Fundamental
Rights of the members of GREF
must be held to be validly restricted
by section 21 read with Rules 19 to
21 of the Army Rules 1954. If that
be so, the petitioners were liable to
be charged under section 63 of the
Army Act 1950 for the alleged violations
of Rules 19 to 21 and their
convictions by Court Martial as also
subsequent dismissals must be held
to be valid. Before we part with
this point, we may point out that an
anguished complaint was made before
us on behalf of the petitioners
that there is considerable disparity
between the Army personnel posted
in GREF units and the other officers
and men of GREF in so far as
the terms and conditions of service,
such as, salary, allowances and rations
arc concerned. It is not necessary
for us to consider whether this
complaint is justified; it is possible
that it may not be wholly unjustified
but we may point out that in any
event it has no real bearing. It all on
the question whether the members of
GREF can be said to be members
of Armed Forces. Since, the members
of GREF are drawn from two
different sources, it is possible that
the terms and conditions of service
of the personnel coming from the two
sources may be different. The Army
personnel posted in GREF units naturally
carry their own terms and conditions
of service while the other officers
and men in GREF are governed
by their own distinctive terms and
conditions. It is difficult to appreciate
how differences in terms and
conditions of service between GREF
personnel coming from two different
streams can possibly have any impact
on the character of GREF as a
force integral to the Armed Forces.
It is immaterial for the purpose of
determining whether the members of
GREF are members of the Armed
Forces as to what are the terms and
conditions of service of the members
of GREF and whether they are identical
with those of Armed personnel
appointed on the same or equivalent
posts in GREF units. But, we may
observe that in case it is found that
the terms and conditions of service
of officers and men in GREF directly
recruited or taken on deputation are
in any way less favourable than those
of Army personnel appointed to the
same or equivalent posts in GREF,
the Central Government might well
consider the advisability of taking
steps for ensuring that the disparity,
if any, between the terms and conditions
of service, such as, salary, allowances,
rations etc. Of Army personnel
posted in GREF units and

other officers and men in GREF is
removed.
It may be pointed out that a faint
attempt was made on behalf of the
petitioners to contend that their convictions
by Court Martial were illegal
since their trial was not in accordance
with law. This contention
was strongly resisted on behalf of
the respondents and it was positively
averred in the affidavit of Lt. Col.
Shergill that disciplinary action was
initiated and punishment awarded by
the competent disciplinary authority
after the offences were proved in accordance
with law and all possible
help and opportunity was extended
to the petitioners and others who
were tried to defend themselves with
the help of defending officers of their
choice or of civil lawyers. Lt. Col.
Shergill stated in the clearest terms
in his affidavit in reply that “out
of 357 personnel kept under military
custody, 287 have been released on
the basis of their unconditional apology
and those who failed to do so,
have been tried by GCM/SCM summarily
and awarded punishment, on
the basis of the gravity of the offence
proved against them. During
the trial, all possible help was provided
under the rules and they were
allowed to meet/employ lawyers of
their choice to defend the case. In
all the cases, defending officers as
per their choices have also been detailed
from departmental side. The
trials were held strictly in accordance
with the procedure laid down in the
rules, and there is no denial of natural
justice.” Having regard to this
positive statement made on oath by
153
Lt. Col. Shergill, it is not possible
for us to hold that the convictions
of the petitioners by the Court
Martial were not in accordance with
law. In any event, the allegations of
the petitioners in this behalf raised
disputed questions of fact which it
is not possible for us to try in a
writ petition. We cannot in the circumstances
be called upon to quash
and set aside the convictions of the
petitioners by the Court Martial or
their subsequent dismissals from service
on the ground that they were not
in accordance with law.
There was also one other contention
advanced on behalf of the petitioners
and it raised a question of
violation of Article 14 of the Constitution.
The contention was that
the members of GREF were governed
both by the Central Civil Services
(Classification, Control and Appeal)
Rules 1965 and the provisions of
the Army Act 1950 and the Army
Rules 1954 in matters of discipline
and therefore whenever a member of
GREF was charged with misconduct
amounting to an offence under the
Army Act 1950, it was left to the
unguided and unfettered discretion
of the authorities whether to proceed
against the employee under the
Central Civil Services (Classification,
Control and Appeal) Rules 1965 or
under the Army Act 1950 and the
Army Rules 1954 and SROs. 329
and 330 applying the provisions of
the Army Act, 1950 and the Army
Rules 1954 to members of GREF for
purposes of discipline were therefore
discriminatory and violative of Article
14. We do not think there is

154 Viswan v. Union Of India 1983
any substance in this contention. In
the first place, the nature of the proceedings
which may be taken under
the Central Civil Services (Classification,
Control and Appeal) Rules
1965 against an erring employee is
different from the nature of the proceedings
which may be taken against
him under the provisions of the Army
Act 1950 read with the Army Rules
1954, the former being disciplinary
in character while the latter being
clearly penal. It is significant to
note that Section 20 of the Army Act
1950 which deals with dismissal, removal
or reduction of any person subject
to that Act and clauses (d), (e),
(f), (g) and (k) of Section 71 which
provide for punishment of cashiering,
dismissal, reduction in rank forfeiture
of seniority and forfeiture of
pay and allowances, have not been
made applicable to the members of
GREF by SRO 329 with the result
that, so far as disciplinary proceeding
are concerned, there is no overlapping
between the provisions of the
Central Civil Services (Classification,
Control and Appeal) Rules 1965 and
the provisions of the Army Act 1950
and the Army Rules 1954 as applied
to the members of GREF. Secondly,
it is not possible to say that
the discretion vested in the authorities
whether to take action against
an erring member of GREF under
Central Civil Services (Classification
Control and Appeal) Rules 1965 or
under the Army Act 1950 and the
Army Rules 1954 is unguided or uncanalised.
It has been denied in
the affidavit of Lt. Col. Shergill
that unguided discretion any power
is vested in the disciplinary author-
ity to proceed against an employee of
GREF either under the Central Civil
Services (Classification, Control and
Appeal) Rules 1965 or the Army Act
1950 and the Army Rules 1954 or
to switch over from one proceeding
to the other at the any stage. Lt.
Col. Shergill has stated positively
in his affidavit that clear and detailed
administrative guidelines have
been laid down for the purpose of
guiding the disciplinary authority in
exercising its discretion whether to
take action against an employee of
GREF under the Central Civil Services
(Classification, Control and appeal)
Rules 1965 of the Army Act
1950 and the Army Rules 1954 and
these guidelines have been set out in
full in Annexure R-5 to his affidavit.
Thirdly, the decision in Northern India
Caterers Ltd. v. Punjab(1) on
which the contention of the petitioners
is based has been over-ruled by
this Court in Maganlal Chhaganla
v. Municipal Corporation, Greater
Bombay(2) where it has been held
that “the contention that the mere
availability of two procedures will vitiate
one of them, that is, the special
procedure is not supported by reason
or authority.” And lastly, it may
be noted that in any event the provisions
of the Army Act 1950 and the
Army Rules 1954 as applied to the
members of GREF are protected by
Article 33 against invalidation on the
ground of violation of Article 14. The
present contention urged on behalf of
the petitioners must also therefore be
rejected.
We may make it clear it is only in
regard to the members of GREF that

we have taken the view that they are
members of the Armed Forces within
the meaning of Article 33. So far as
casual labour employed by GREF is
concerned, we do not wish to express
any opinion on this question whether
they too are members of the Armed
155
Forces or not, since that is not a
question which arises for consideration
before us. The writ petitions are
accordingly dismissed with no order
as to costs. The special leave petitions
will also stand rejected.
H.L.C. Petitions dismissed.

156 Viswan v. Union Of India 1983

Chapter 10
Chief of The Army Staff v.
Maj Dharam Pal Kukrety
1985
Chief Of The Army Staff And
Others v. Major Dharam Pal
Kukrety on 21 March, 1985 Equivalent
citations: 1985 AIR 703, 1985
SCR (3) 415 Author: B P Narain
Bench: Madon, D.P.
1985 AIR 703 1985 SCR (3) 415
1985 SCC (2) 412 1985 SCALE
(1)582
ACT:
Constitution of India Article 226-
Maintainability of writ petition at
the stage of show cause notice to
PETITIONER:
terminate the services of a service
CHIEF OF THE ARMY STAFF personnel by the Chief of the Army
AND OTHERS
staff when the finding of a court
v.
martial even on revision is perverse
RESPONDENT:
MAJOR DHARAM
KUKRETY
PAL
or against the weight of evidence
on record-Army Act, 1950 sections
18 to 24, 108, 121, 127, 153, 154,
160(1), 191 and the Army Rules 1954
DATE OF JUDGMENT21/03/1985Rules
14 and 68 to 71, scope of-
BENCH:
MADON, D.P.
Competency of the Chief of the Army
Staff to have recourse to Rule 14
of the Army Rules, when the gen-
BENCH:
eral court martial originally and on
MADON, D.P.
revision returned a verdict of “Not
CHANDRACHUD, Y.V. ((CJ)
MISRA RANGNATH
guilty” -Principle of double jeopardy
Aufrefois Acquit applicability-
Constitution of India Article 20(2)
CITATION:
read with Army Act, section 121.
HEADNOTE:

158 Chief of The Army Staff v. Maj Dharam Pal Kukrety 1985
The respondent, a permanent
commissioned officer of the Indian
Army holding the substantive rank of
captain and the acting rank of major,
as a result of certain incidents which
are alleged to have taken place on
November 5 and 6, 1975 was ordered
to be tried by a general court martial.
On March 13, 1976, the court martial
announced its finding subject to
confirmation, the finding being “Not
guilty of all the charges.” The General
Officer Commanding, Madhya
Pradesh, Bihar and Orissa Area, the
third appellant, who was the confirming
authority, did not confirm
the verdict and by his order dated
April 3, 1976, sent back the finding
for revision. The same general
court martial, therefore, reassembled
on April 14, 1976, and after hearing
both sides and taking into consideration
the observations made by
the third appellant in his said order
dated April 3, 1976, adhered to
its original view and once again announced
the finding subject to confirmation,
that the respondent was
“Not guilty of all the charges”. The
third appellant reserved confirmation
of the finding on revision by a superior
authority, namely, the General
Officer, Commanding- in-Chief, Central
Command, Lucknow, the second
appellant, and forwarded the papers
to him. By his order dated
May 25, 1976, the second appellant
did not confirm the finding on revision
of the general court martial.
The charges made against the respondent,
the finding and the nonconfirmation
thereof were promulgated
as required by Rule 71 of the
Army Rules. Thereafter, the Chief
of the Army Staff under Rule 14
of the Army Rules 1954 issued the
impugned show cause notice dated
November 12, 1976 stating that the
Chief of the Army Staff had carefully
considered the facts of the case
as also the respondent’s defence at
the trial and being satisfied that a
fresh trial by a court martial for the
said offences was inexpedient, he was
of the opinion that the respondent’s
misconduct as disclosed in the proceedings
rendered his further retention
in the service undesirable. and
called upon the respondent to submit
his explanation and defence, if
any, within twenty-five days of the receipt
of the said notice. Along with
the said notice copies of abstracts of
evidence and the court martial proceedings
were forwarded to the respondent.
The respondent, thereupon,
filed in the High Court of Allahabad
a writ petition under Article
226 of the Constitution of India being
Civil Miscellaneous Writ No. 84
of 1976, which was allowed by a Division
Bench of the said High Court.
Hence the appeal by special leave Allowing
the appeal, the Court
HELD: 1. Where the threat of
a prejudicial action is wholly without
jurisdiction, a person cannot be
asked to wait for the injury to be
caused to him before seeking the
Court’s protection. If, on the other
hand, the Chief of the Army Staff
had the power in law to issue the
said notice, it would not be open
to the respondent to approach the
court under Article 226 of the Constitution
at the stage of notice only
and in such an event his writ peti-

tion could be said to be premature.
This was, however, not a contention
which could have been decided at the
threshold until the court had come
to a finding with respect to the jurisdiction
of the Chief of the Army
Staff to issue the impugned notice.
Having held that the impugned notice
was issued without any jurisdiction,
the High Court was right in
further holding that the respondent’s
writ petition was not premature and
was maintainable. [420C-E]
2. Whether the Chief of the
Army Staff was competent to issue
the impugned notice of show cause
depends upon the relevant provisions
of the Army Act 1950 and the Army
Rules 1954. Under Section 153 of the
Army Act, no finding or sentence of
a general, district or summary general,
court martial shall be valid except
so far as it may be confirmed
as provided by the Army Act. Under
Section ]60 of the Army Act, the
confirming authority has the power
to direct a revision of the finding of
a court martial only once. There is
no power in the confirming authority,
if it does not agree with the finding
on revision, to direct a second revision
of such finding. In the absence
of any such confirmation, whether of
the original finding or of the finding
on revision, by reason of the provisions
of Section 153 the finding is
not valid. Therefore, in the case of
the respondent, the finding of the
general court martial on revision not
having been confirmed was not valid.
Equally, there is however, no express
provision in the Army Act which empowers
the holding of a fresh court
159
martial when the finding of a court
martial on revision is not confirmed.
[427C-F]
3. Though it is open to the Central
Government or the Chief of the
Army Staff to have recourse to Rule
14 of the first instance without directing
trial by a court martial of the
concerned officer, there is no provision
in the Army Act or in Rule 14
or any of the other Rules of the Army
Rules which prohibits the Central
Government or the Chief of the Army
Staff from resorting in such a case
to Rule 14. [429F-G] In the present
case, the Chief of the Army Staff
had, on the one hand, the finding
of a general court martial which had
not been confirmed and the Chief of
the Army Staff was of the opinion
that the further retention of the respondent
in the service was undesirable
and, on the other hand, there
were three difference conflicting decisions
of different High Courts on this
point which point was not concluded
by a definitive pronouncement of this
Court. In such circumstances, to order
a fresh trial by a court martial
could certainly be said to be both
inexpedient and impracticable and
the only expedient and practicable
course, therefore, open to the Chief
of the Army Staff would be to take
action against the respondent under
Rule 14, which he did. The action of
the Chief of the Army Staff in issuing
the impugned notice was, therefore,
neither without jurisdiction nor
unwarranted in law. [430B-D] Capt.
Kashmir Singh Shergill v. The Union
of India & Another, Civil Writ No.
553 of 1974 decided on November

160 Chief of The Army Staff v. Maj Dharam Pal Kukrety 1985
6, 1974 by Prakash Narain, J., approved.
G.B. Singh v. Union of India and
Others, [1973] Crl. L.J. 485; Major
Manohar Lal v. The Union of India
and Anr., 1971 (1) S.L.R. 717;
J.C. 13018 Subedar Surat Singh v.
The Chief Engineer Projects (Beacon)
C/o.56 A.P.O. AIR 1970 J. &
K 179 referred to.
JUDGMENT:
CIVIL APPELLATE JURIS-
DICTION: Civil Appeal No. 663
of 1978.
From the Judgment and Order
dt. 9.3.77 of the Allahabad High
Court in Civil Misc. Writ No. 84/77.
Dr. Anand Prakash, V.B.. Saharaya
and Miss A. Subhashini, for
P the Appellants
H. S. Parihar, for the Respondent.
The judgment of the Court was
delivered by MADON,J. This Appeal
by Special Leave granted by this
Court is preferred against the judgment
and order of a Division Bench
of the Allahabad High Court allowing
the writ petition filed by the Respondent
under Article 226 of the
Constitution of India and quashing
a show cause notice dated November
12,1976 issued by the First Appellant,
the Chief of the Army Staff,
under Rule 14 of the Army Rules.
1954. The facts which have given
rise to this Appeal lie in a narrow
compass. The Respondent is a permanent
commissioned officer of the
Indian Army holding the substantive
rank of Captain and the acting
rank of Major. In November 1975,
he was posted in the Army School
of Mechanical Transport, Faizabad.
As a result of certain incidents which
are alleged to have taken place on
November 6 and 7, 1975, the Respondent
was tried by a general court
martial on four charges. It is unnecessary
to reproduce the charges
made against the Respondent. The
charge-sheet was dated January 20,
1976, and was issued by the Commandant,
Ordinance Depot, Fort Allahabad.
On January 24, 1976, the
Respondent was ordered to be tried
by a general court martial. The Respondent
pleaded not guilty and his
trial took place at Lucknow before
a general court martial consisting of
one Brigadier, two Majors and two
Captains Both the prosecution and
the Respondent led evidence. On
March 13, 1976, the court martial announced
its finding subject to confirmation,
the finding being “Not guilty
of all the charges”. The General Officer,
Commanding Madhya Pradesh,
Bihar and Orissa Area, the Third
Appellant, who was the confirming
authority, did not confirm the verdict
and by his order dated April 3,
1976, sent back the finding for revision.
The same general court martial,
therefore, re assembled on April
14, 1976, and after hearing both sides
and taking into consideration the observations
made by the Third Appellant
in his said order dated April 3,
1976, adhered to its original view and
once again announced the finding
that the Respondent was ’ Not guilty
of all the charges”. The said finding
was also expressly announced as
being subject to confirmation. The
Third Appellant reserved confirma-

tion of the finding on revision by a superior
authority, namely, the General
Officer, Commanding in-Chief, Central
Command, Lucknow, the Second
Appellant, and forwarded the
papers to him. By his order dated
May 25, 1976, the Second Appellant
did not confirm the finding on revision
of the general court martial.
The charges made against The Respondent,
the finding and the nonconfirmation
thereof were promulgated
as required by Rule 71 of the
Army Rules.
Thereafter the Chief of the Army
Staff under Rule 14 of the Army
Rules issued the impugned show
cause notice dated November 12,
1976. It was stated in the said notice
that the Chief of the Army Staff had
carefully considered the facts of the
case as also the Respondent’s defence
at the trial and being satisfied that a
fresh trial by a court martial for the
said offences was inexpedient, he was
of the opinion that the Respondent’s
misconduct as disclosed in the proceedings
rendered his further retention
in the service undesirable. The
Respondent was called upon by the
said notice to submit his explanation
and defence, if any, within twentyfive
days of the receipt of the said
notice. Along with the said notice
copies of abstracts of evidence and
the court martial proceedings were
forwarded to the Respondent. The
Respondent thereupon filed in the
High Court of Allahabad a writ petition
under Article 226 of the Constitution
of India being Civil Miscellaneous
Writ No. 84 of 1976, which,
as aforesaid, was allowed. It was the
161
contention of the Respondent in his
writ petition that under the Army
Act, 1950 (Act No. 46 of 1950), and
the Army rules there was an initial
option either to have the concerned
officer tried by a court martial or to
take action against him under Rule
14 and that in his case the option
having been exercised to try him by a
court martial, the Chief of the Army
Staff was not competent to have recourse
to Rule 14 after the Respondent
was - acquitted both at the time
of the original trial and on revision.
This contention found favour with
the High Court. The High Court
held that as the Respondent had in
fact been tried by a court martial
which both at the time of the original
trial and on revision had returned
a verdict of ’not guilty, it could not
be said that it was inexpedient to
try the Respondent by a court martial
and, therefore, the impugned notice
under Rule 14 was issued without
any jurisdiction. At the hearing
of the said writ petition a preliminary
objection was raised by the Appellants
that the said writ petition
was not maintainable as being premature.
The High Court held that
as the impugned notice was issued
without jurisdiction, it would be exposing
the Respondent to jeopardy
to require him to submit his reply
to the said notice and to wait until
his services were terminated. The
same contentions, as were raised before
the High Court, were taken before
us at the hearing of this Appeal.
We will first deal with the Appellants’
preliminary objection that
the Respondent’s writ petition was
not maintainable as being prema-

162 Chief of The Army Staff v. Maj Dharam Pal Kukrety 1985
ture. It was the Respondent’s case
that the Chief of the Army Staff had
no jurisdiction to issue the impugned
show cause notice after he had been
again found not guilty by the court
martial on revision. The said notice
expressly stated that the Chief
of the Army Staff was of the opinion
that the Respondent’s misconduct
as disclosed in the proceedings
rendered his further retention in service
undesirable and asked him to
submit his explanation and defence,
if any, to the charges made against
him. If the Respondent’s contention
with respect to the jurisdiction of the
Chief of the Army Staff to issue the
said notice were correct, the Respondent
was certainly exposed to the
jeopardy of having his explanation
and defence rejected and he being
removed or dismissed from services.
Were the said notice issued without
jurisdiction, the Respondent would
have then suffered a grave, prejudicial
injury by an act which was without
jurisdiction. Where the threat of
a prejudicial action is wholly without
jurisdiction, a person cannot be
asked to wait for the injury to be
caused to him before seeking the
Court’s protection. If, on the other
hand, the Chief of the Army Staff
had the power in law to issue the said
notice, it would not be open to the
Respondent to approach the court
under Article 226 of the Constitution
at the stage of notice only and in such
an event his writ petition could be
said to be premature. This was, however,
not a contention which could
have been decided at the threshold
until the court had come to a finding
with respect to the jurisdiction of the
Chief of the Army Staff to issue the
impugned notice. Having held that
the impugned notice was issued without
any jurisdiction, the High Court
was right in further holding that the
Respondent’s writ petition was not
premature and was maintainable.
Before considering the rival contentions
with respect to the validity
of the impugned notice, we may mention
that a learned Single Judge of
the Delhi High Court has held in the
case of Capt. Kashmir Singh Shergill
v. The Union of India and another
(1) that the Chief of the Army Staff
was competent to issue a show cause
notice under Rule 14 even though the
court martial had affirmed its verdict
on revision.
The answer to the question
whether the Chief of the Army Staff
was competent to issue the impugned
notice depends upon the relevant
provisions of the Army Act and the
Army Rules to which we now turn.
Chapter IV of the Army Act,
which consists of Section 18 to 24,
deals with the conditions of service
of persons appointed under
(1) Civil Writ No. 553 of 1974
decided on November 6, 1974 by
Prakash Narain, J. the Act. Section
18 provides that every person subject
to the Army . Act shall hold office
during the pleasure of the President.
Section 19 provides that subject to
the provisions of the Army Act and
the rules and regulations made thereunder,
the Central Government may
dismiss, or remove from the service,
any person subject to the Army Act.
Section 22 provides that any person

subject to the Army Act may be
retired, released or discharged from
the service by such authority and in
such manner as may be prescribed
by rules made under the Act. Section
191 confers’ upon the Central
Government the power to make rules
for the purpose of carrying into effect
the provisions of the Army Act. Rule
14 of the Army Rules, 1954, provides
as follows: ”14. Termination of service
by the Central Government on
account of misconduct-
(1) When it is proposed to terminate
the service of an officer under
Section 19 on account of misconduct,
he shall be given an opportunity to
show cause in the manner specified
in sub-rule
(2) against such action:
Provided that this sub-rule shall
not apply: (a) where the service is
terminated on the ground of conduct
which has led to his conviction by a
criminal court; or
(b) where the Central Government
is satisfied that for reasons to
be recorded in writing, it is not expedient
or reasonably practicable to
give to the officer an ’ opportunity
of showing cause. (2) When after
considering the reports of an officer’s
misconduct, the Central Government
or the Chief of the Army Staff is satisfied
that the trial of the officer by
court martial is inexpedient or impracticable,
but is of the opinion that
the further ’ retention of the said officer
in the service is undesirable the
Chief of the Army Staff shall so inform
the officer together with all reports
adverse to him and he shall be
163
called upon to submit, in writing, his
explanation and defence:
Provided that the Chief of the
Army Staff may withhold from disclosure
any such report or portion
thereof, in his opinion, its disclosure
is not in the interest of the security
of the State.
In the event of the explanation
of the officer being considered unsatisfactory
by the Chief the Army
Staff, or when so directed by the
Central Government, the case shall
be submitted to the Central Government
with the officer’s defence and
the recommendation of the Chief of
the Army Staffs to the termination
of the officer’s service in the manner
specified in sub-rule (4).
(3) Where, upon the conviction
of an officer by a criminal court, the
Central Government or the Chief of
the Army staff considers that the
conduct of the officer which has led to
his conviction renders his further retention
in service undesirable, a certified
copy of the judgment of the
criminal court convicting him shall
be submitted to the Central Government
with the recommendation of
the Chief of the Army Staff as to the
termination of the officer’s n service
in the manner specified in sub-rule
(4). (4) When submitting a case to
the Central Government under the
provisions of sub-rule (2) or sub-rule
(3), the Chief of the Army Staff shall
make his recommendation whether
the officer’s service should be terminated,
and if so, whether the officer
should be-
(a) dismissed from the service; or

164 Chief of The Army Staff v. Maj Dharam Pal Kukrety 1985
(b) removed from the service; or
(c) called upon to retire; or
(d) called upon to resign.
(5) The Central Government after
considering the reports and the
officer’s defence, if any, or the judgment
of the criminal court, as the
case may be, and the recommendation
of the Chief of the Army Staff,
may dismiss or remove the officer
with or with out pension or call upon
him to retire or resign, and on his
refusing to do so, the officer may be
compulsorily retired or removed from
the service on pension or gratuity,
if any, admissible to him.” We are
not concerned in this Appeal with a
case where an officer has been convicted
by a criminal court or with a
case where the Central Government
is satisfied that it is not expedient
or reasonably practicable to give to
the officer an opportunity of showing
cause.A show cause notice was
in fact issued to the Respondent by
the Chief of the Army Staff. Under
sub-rule (2) of Rule 14, the foundation
of the jurisdiction of the Central
B, Government or the Chief of the
Army Staff to issue a show cause notice
is the satisfaction of the Central
Government or the Chief of the Army
Staff after considering the reports of
an officer’s misconduct that the trial
OF the officer by a court martial is
inexpedient or impracticable and the
opinion formed that the further retention
of the officer in the service is
undesirable.
The contention before us was
that in the circumstances of this case
it cannot be said that the trial of the
Respondent by a court martial was
inexpedient or impracticable as in
fact the Respondent had been tried
by a court martial. It was also submitted
that on a true construction
of Rule 14, the Central Government
or the Chief of the Army Staff has
an initial option to have the officer
tried by a court martial or to take action
against him under Rule 14 and
if it were decided that he should be
tried by a court martial, then action
under Rule 14 was not permissible
in case of his acquittal by the court
martial. To test the correctness of
these submissions, we must examine
the provisions of the Army Act relating
to court martial. Section 108 provides
for four kinds of courts- martial,
namely.
(1) general courts martial;
(2) district courts martial;
(3) summary general courts martial;
and
(4) summary courts martial.
As the Respondent was tried by
a general court martial, we are not
concerned here with any other type
of courts- martial, Under section 109,
a general court martial may be convened
by the Central Government or
the Chief of the Army Staff or by
any officer empowered in that behalf
by warrant of the Chief of the
Army Staff. Section 113 provides
that a general court martial shall
consist of not less than five officers,
each of whom has held a commission
for not less than three whole
years and of whom not less than four
are of a rank not below that of captain.
Section 117 provides for cases

in which a court martial can be dissolved.
These cases are:
(1) Where after the commencement
of a trial the court martial is
reduced below the minimum number
of officers required by the Army Act.
In such a case the dissolution of the
court martial is mandatory. (2) If,
on account of the illness of the judgeadvocate
or of the accused before the
finding, it is impossible to continue
the trial. In this case also the dissolution
of the court martial is mandatory.
(3) If it appears to the officer who
convened a court martial that military
exigencies or the necessities of
discipline render it impossible or inexpedient
to continue the court martial.
In this case, the dissolution of
the court martial is discretionary.
Sub-section (4) of section 117 expressly
provides that where a court
martial is dissolved, the accused may
be tried again. Section 118 ’ confers
upon a general court martial the
power to try any person subject to
the Army Act for any offence punishable
thereunder and to pass any
sentence authorized thereby.
Section 121 provides as follows:
”121. Prohibition of second
trial.-
When any person subject to this
Act has been acquitted or convicted
of an offence by a court martial or
by a criminal court, or has been dealt
with under any of the sections 80, 83,
84 and 85, he shall not be liable to be
tried again for the same offence by a
court martial or dealt with under the
said sections.”
165
The Respondent was neither
tried by a criminal court nor dealt
with under any of the sections 80, 83,
84 and 85, most of which do not apply
to an officer of his rank- He was,
however, tried by a general court
martial which found him not guilty of
any of the charges made against him.
Under section 125, where a criminal
court and a court martial both have
jurisdiction in respect of an offence,
it is in the discretion of the officer
commanding the army, army crops,
division or independent brigade in
which the accused person is serving
or such other officer as may be prescribed
by the Army Rules to decide
before which court the proceedings
shall be instituted. Under section
127, a person convicted or acquitted
by a court martial may, with the previous
sanction of the Central Government,
be tried again by a criminal
court for the same offence or on
the same facts. There is, however,
no provision for the trial by a court
martial for the same offence or on the
same facts where a person has been
convicted or acquitted by a criminal
court. Sections 153, 154 and 160(1)
provide as follows:
”153. Finding and sentence not
valid, unless confirmed.-
No finding or sentence of a general,
district or summary general,
court martial shall be valid except so
far as it may be confirmed as provided
by this Act.
”154. Power to confirm finding
and sentence of general court
martial.-
The findings and sentences of

166 Chief of The Army Staff v. Maj Dharam Pal Kukrety 1985
general courts martial may be confirmed
by the Central Government,
or by any officer empowered in this
behalf by warrant of the Central
Government.
”160. Revision of finding or
sentence,-
(1) Any finding or sentence of a
court martial which requires confirmation
may be once revised by order
of the confirming authority and
on such revision, the court, if so directed
by the Confirming authority,
may take additional evidence.
In this connection it will also be
relevant to set out the provisions of
Rules 68, 69, 70 and 11 of the Army
Rules. These Rules provide as follows:
‘68. Revision. (1) Where the
finding is sent back for revision under
section 160, the Court shall reassemble
in open court, the revision
order shall be read, and if the court is
directed to take fresh evidence, such
evidence shall also be taken in open
court. The court shall then deliberate
on its finding - in closed court.
(2) Where the finding is sent back
for revision and the court does not
adhere to its former finding, it shall
revoke the finding and sentence, and
record the new finding, and if such
new finding involves a sentence, pass
sentence afresh.
(3) Where the sentence alone is
sent back for revision, the court shall
not revise the finding. (4) After the
revision, the presiding officer shall
date and y sign the decision of the
court, and the proceedings, upon being
signed by the judge- advocate, if
any, shall at once be transmitted for
confirmation.
”69. Review of court martial
proceedings.- The proceedings of a
general court martial shall be submitted
by the judge advocate at the
trial for review to the deputy or assistant
judge advocate general of the
command who shall then forward it
to the confirming officer. The proceedings
of a district court martial
shall be sent by the presiding officer
or the judge- advocate direct
to the confirming officer who must,
in all cases. where the sentence is
dismissal or above, seek advice of
the deputy or assistant judge advocate
general of the command before
confirmation.” ”70. Confirmation-
Upon receiving the proceedings of
a general or district court martial,
the confirming authority may confirm
or refuse confirmation, or reserve
confirmation for superior authority,
and the confirmation, nonconfirmation,
or reservation shall be
entered in and form part of the proceedings.”
”71. Promulgation-The
charge, finding, and sentence, and
any recommendation to mercy shall,
together with the confirmation or
non-confirmation of the proceedings,
be promulgated in such manner as
the confirming authority may direct;
and if no direction is given, according
to the custom of the service. Until
promulgation has been effected,
confirmation is not complete and the
finding and sentence shall not be held
to have been confirmed until they
have been promulgated.”
It is pertinent to note that under
Section 160 the confirming authority

has the power to direct a revision of
the finding of a court martial only
once. There is no power in the confirming
authority, if it does not agree
with the finding on revision, to direct
a second revision of such finding. In
the absence of any such confirmation,
whether of the original finding or of
the finding on revision, by reason of
the provisions of section l 53 the finding
is not valid. Therefore, in the
case of the Respondent, the finding of
the general court martial on revision
not having been confirmed was not
valid. Could he, therefore, be tried
again by another court martial on the
same charges ? Under Section 121,
a person subject to the Army Act,
who has been acquitted or convicted
of an offence by a court martial or by
a criminal Court, is not liable to be
tried again for the same offence by a
court martial. It can well be argued
that by reason of the provisions of
section 153 under which no finding or
sentence of a general, district or summary
general court martial is valid
except in so far as it is confirmed
as provided by the Army Act a person
cannot be said to have been acquitted
or convicted by a court martial
until the finding of ”guilty” or
”not guilty” in his case has been confirmed
by the confirming authority.
There is, however, no express provision
in the Army Act which empowers
the holding of a fresh court
martial when the finding of a court
martial on revision is not confirmed.
The decisions of three High Courts
may be referred to in this connection.
The first decision is that of
Allahabad High Court in G.B. Singh
v. Union of India and Others. (1)
167
That was a case under the Air Force
Act, 1950 (Act No. 45 of 1950). In
that case, the officer was found guilty
by a general court martial and sentenced
,. to be dismissed from service.
The finding and sentence was
referred to the confirming authority.
The confirming authority passed an
order reserving the same for confirmation
by superior authority and forwarded
the proceedings to the Chief
Of the Air Staff. The Chief of the Air
staff passed an order not confirming
the finding or sentence awarded by
the court martial. The finding and
sentence which were not confirmed
by the Chief of Air Staff were promulgated
after the lapse of about ten
months.A fresh general court martial
was convened to retry the office.
On enquiry the officer was informed
that the findings and sentence of the
general court martial had not been
confirmed as it was found that the
proceedings were not in order and,
therefore, there was no valid order
convicting or acquitting the officer.
After considering the relevant provisions
of the Air Force Act and the
Air Force Rules, 1969, which are in
pari materia with the corresponding
provisions of the Army Act and the
Army Rules, a learned Single Judge
of the Allahabad High Court held
that the effect of non-confirmation
was that though the finding and sentence
passed by the court martial existed,
they could not be put into effect
unless they had been confirmed
under the provisions of the Air Force
Act, and that in such a case section
120 of the Air Force Act (which is in
pari materia with section 121 of the
Army Act) barred a second trial by

168 Chief of The Army Staff v. Maj Dharam Pal Kukrety 1985
a court martial. In Major Manohar
Lal v. The Union of India and
Anr. (1) the petitioner was tried by
a general court martial which found
him not guilty. The General Officer
Commanding-in-Chief held the proceedings
to be null and void on the
ground that one of the members of
the court martial was of the rank of
Captain and was thus lower in the
rank to the petitioner and no certificate
had been recorded by the officer
convening the court martial as
required by Rule 40(2) of the Army
Rules, that an officer of the rank
of the petitioner was not available
and he, therefore, ordered a retrial.A
learned Single Judge of the Punjab
and Haryana High Court held that
under the Army Act and the Army
Rules, a Captain was eligible to be
made a member of a general court
martial and the mere fact that the
convening officer did not append the
certificate that an officer of the rank
of the petitioner was not available did
not make the constitution of the general
court martial invalid or the finding
given by it to be without jurisdiction
or the proceedings of the trial
before it to be null and void. He further
held that as the petitioner had
no say in the constitution of the general
court martial and had suffered
the trial before it, the proceedings
could not have been declared null and
void on a highly technical ground.
The learned Single Judge, therefore.
came to the conclusion that the second
trial of the petitioner was without
jurisdiction and the sentence imposed
upon him in consequence of
that trial was wholly illegal. In
J.C. 13018 Subedar Surat Singh v.
The Chief Engineer Projects (Beacon).
Co. 56 A.P.O. (1).A Division
Bench of the Jammu and Kashmir
High Court held that though every
finding of a general court martial,
whether of acquittal or of guilt, cannot
be recorded as valid unless it is
confirmed by the competent authority,
the Legislature could not have
reasonably intended that an officer
convening a general court martial can
go on dissolving such court martials
and reconstituting them ad infinitum
until he obtained a verdict or a finding
of his own liking. The Division
Bench further held that such a position
would not only be against public
policy and the ancient maxim ”nemo
debet bis vexari pro una et eadem
causa” (no man ought to be twice
vexed for one and the same cause)
but would also reduce the provisions
of the Army Act to a mockery and
give an appearance of mala fides. According
to the Jammu and Kashmir
High Court, in such a case the proper
course for the confirming authority
would be to refer the case to its superior
authority for confirmation.
This being the position, what
then is the course open to the Central
Government or the Chief of the
Army Staff when the finding of a
court martial even on revision is perverse
or against the weight of evidence
on record? The High Court in
its judgment under appeal has also
held that in such a case a fresh trial
by another court martial is not permissible.
The crucial question, therefore,
is whether the Central Government
or the Chief of the Army Staff
can have resort to Rule 14 of the

Army Rules. Though it is open to
the Central Government of the Chief
of the Army Staff to have recourse to
that Rule in the first instance without
directing trial by a court martial
of the concerned officer, there is
no provision in the Army Act or in
Rule l 4 or any of the other rules of
the Army Rules which prohibits the
Central Government or the Chief of
the Army Staff from resorting in such
a case to Rule 14. Can it, however,
be said that in such a case a trial
by a court martial is inexpedient or
impracticable? The Shorter Oxford
English Dictionary, Third Edition,
defines the word ”inexpedient” as
meaning ”not expedient; disadvantageous
in the circumstances, unadvisable,
impolitic”. The same dictionary
defines ”expedient’ inter alia as
meaning ”advantageous; fit, proper,
or suitable to the circumstances o the
case”. Webster’s Third New International
Dictionary also (1) A.I.R. 1970
J. & K, 179. defines the term ”expedient”
inter alia as meaning ”characterized
by suitability, practicality,
and efficiency in achieving a particular
end: fit, proper, or advantageous
under the circumstances”.
In the present case, the Chief of
the Army Staff. had, on the one
hand, the finding of a general court
martial which had not been confirmed
and the Chief of the Army
Staff was of the opinion that the further
retention of the Respondent in
the service was undesirable and, on
the other hand, there were the above
three High Court decisions and the
point was not concluded by a defini-
169
tive pronouncement of this Court. In
such circumstances, to order a fresh
trial by a court martial could certainly
be said to be both inexpedient
and impracticable and the only expedient
and practicable course, therefore,
open to the Chief of the Army
Staff would be to take action against
the Respondent under Rule 14, which
he did. The action of the Chief of the
Army Staff in issuing the impugned
notice was, therefore, neither without
jurisdiction nor unwarraned in
law. In the result, this Appeal must
succeed and is accordingly allowed
and the judgment of the Division
Beach of the Allahabad High Court
under Appeal is reversed and the order
passed by it is set aside. The writ
petition filed by the Respondent in
the Allahabad High Court, namely,
Civil Miscellaneous Writ No. 84 of
1977, is hereby dismissed. Before
parting with this Appeal, we would
like to observe that the alleged incidents
in respect of which the Respondent
was tried before the general
court martial took place nearly ten
years ago. We, therefore, feel that
the Chief of the Army Staff should
take into account the conduct and
behaviour of the Respondent during
the intervening period and if they
have been in conformity with good
order and military discipline and the
high traditions of the Indian Army,
he may consider the desirability of
proceeding further in the matter.
In the circumstances of the Case,
there Will be no order as to costs
throughout.
S. R. Appeal allowed,

170 Chief of The Army Staff v. Maj Dharam Pal Kukrety 1985

Chapter 11
Supdt. & Remembrancer Of
Legal v. Usha Ranjan Roy
Choudhury 1986
Supdt. & Remembrancer Of Legal
... v. Usha Ranjan Roy Choudhury
& Anr on 21 May, 1986
Equivalent citations: 1986 AIR
1655, 1986 SCR (3) 113
Bench: Thakkar, M.P.
PETITIONER:
SUPDT. & REMEMBRANCER
OF LEGAL AFFAIRS, WEST BEN-
GAL
v.
RESPONDENT:
THAKKAR, M.P. (J)
BENCH:
THAKKAR, M.P. (J)
ERADI, V. BALAKRISHNA (J)
CITATION:
1986 AIR 1655 1986 SCR (3) 113
1986 SCC Supl. 190 JT 1986 363
1986 SCALE (1)931
ACT:
Criminal Courts and Court Martial
(Adjustment of Jurisdiction)
Rules, 1952, Rules 3 and 4-Offences
falling within purview of section 52 of
Army Act, 1950-Trial by Magistrate-
Procedure to be followed-’Special
Judge’, whether deemed to be a Magistrate.
Criminal Law (Amendment) Act,
USHA RANJAN ROY CHOUD-
1952. Section 8(3A). ’Special Judge’-
HURY & ANR.
Whether deemed to be a Magistrate
DATE OF JUDGMENT21/05/1986for
Trial of offences under section 52
BENCH:
of the Army Act, 1950.
HEADNOTE:
The three respondents-accused
were charged with offences which fell
within the scope of section 52 of
the Army Act of 1950. The ordinary
criminal court and the Court
Martial both had concurrent jurisdic-

172
Supdt. & Remembrancer Of Legal v. Usha Ranjan Roy
Choudhury 1986
tion to try the said offences. They
were tried by the Judge presiding
over the Fourth Addl. Special Court,
Calcutta. The learned Trial Judge,
while convicting one of the respondents
and acquitting the remaining
two, failed to follow the procedure
prescribed by the Criminal Courts
and Court Martial (Adjustment of
Jurisdiction) Rules, 1952 framed under
Section 549(1) of the Code of
Criminal Procedure of 1898. The
High Court, in appeal, took the view
that the learned Judge presiding over
the Special Court had acted without
jurisdiction in taking cognizance
of the case and proceeding with the
trial of three Army officers resulting
in the conviction of one of them, and
the acquittal of the remaining two
and quashed the proceedings. Dismissing
the appeals, by the State,
HELD: 1. The High Court was
right in allowing the appeal of the officer
who was convicted and dismissing
the appeal of the State calling
into question the acquittal of the remaining
two. However, the acquittal
rendered by the High Court is on the
ground of lack of jurisdiction on the
part of the learned Special Judge who
tried the case in the Special Court
and not on merits. The expression
’acquitted’ has been employed by the
High Court though it was sufficient
to say no more than this, ’that the
order of conviction and sentence was
without jurisdiction and was therefore
being quashed’. In the eye of
law, it is not an acquittal since it
is not on merits. It is, therefore,
for the competent authority to decide
whether or not to subject the
accused to a fresh trial after following
the procedure prescribed by the
Rules. [125D-F]
2.1 In order to avoid any conflict
of jurisdiction between the criminal
court and the court martial in regard
to offenders who are charged with
having committed offences which fall
under the purview of Section 52 of
the Army Act, 1950, Section 549(1)
of Cr.P.C. provides that Central
Government may make Rules consistent
with Cr.P.C. and the Army
Act. In pursuance of this provision
contained in Section 549(1), Cr.P.C.,
the Central Government has framed
Rules known as Criminal Courts and
Court Martial (Adjustment of Jurisdiction)
Rules 1952. [117H; 118A-B]
2.2 Rule 3 of the Rules requires that
when a person subject to military,
Naval or Air Force law is brought
before a Magistrate on accusation of
an offence for which he is liable to
be tried by Court Martial also, the
magistrate shall not proceed with the
case unless he is requested to do so
by the appropriate military authority.
A combined reading of rules 3
and 4 shows that in case the Magistrate
is of the opinion that he should
proceed with the case without there
being any such request from the appropriate
military authority, the concerned
Magistrate is enjoined to give
notice to the commanding officer in
this behalf. Till the expiry of seven
days from the service of such notice
on the commanding officer, the
Magistrate is prohibited from making
any order of conviction or acquittal
or framing any charges or committing
the accused. Therefore, the

ordinary criminal court would have
no jurisdiction to take cognizance of
the case and to try the accused in
a matter where the procedure prescribed
by the Rules has not been
complied with. The initial lack of
jurisdiction to take cognizance and
try the case would, of logical necessity,
vitiate the trial and the order of
conviction and sentence would be liable
to be quashed as a result thereof.
[118B-F]
In the instant case, admittedly
the procedure prescribed by the
Rules was not followed. Under the
circumstances it is futile to contend
that the Army authorities had voluntarily
abandoned their option to
try the accused person in the court
martial. There is no substance in the
plea and it has been rightly repelled
by the High Court.[123D-E]
Delhi Police Establishment, New
Delhi v. Lt. Col. S.K. Loraiya.
[1973] (1)SCR 1010 relied upon.
Major E.G. Barsay v. The State
of Bombay [1962] (2) SCR 195 referred.
3.1 Section 13 of the West Bengal
Criminal Law Amendment (Special
Courts) Act, 1949 in terms accords
recognition to the applicability
of the Criminal Law (Amendment)
Act of 1952 enacted by the Parliament
except and save some of the sections,
namely, sections 6,7,8,9 and 10
thereof which, as provided in Section
13, shall not apply and shall be never
deemed to have applied to West Bengal.
It is implicit in Section 13 of
the West Bengal Act that the Central
Act, namely, Criminal Law (Amend-
173
ment) Act of 1952 is applicable to the
State of West Bengal except and save
the aforesaid five sections. There
can be no doubt or debate about
this position having regard to the
fact that criminal law is a subject
which falls under the concurrent list
and the Criminal Law (Amendment)
Act of 1952 enacted by the Parliament
is applicable subject to inconsistency,
if any, between the said Act
and the West Bengal Act. Moreover,
the West Bengal Act does not contain
any provision pertaining to personnel
governed by the Army Act. It
is altogether silent in regard to the
matter pertaining to the procedure
to be followed in regard to Army personnel
from the perspective of Section
549 Cr.P.C. and the rules framed
under the authority thereof. There is
thus no conflict between the Criminal
Law (Amendment) Act of 1952 and
the West Bengal Act in so far as this
matter is concerned. Such being the
position the provision contained in
Criminal Law (Amendment) Act of
1952 with a special eye on the procedure
to be followed in Section 8(3A)
and Section 11 of the Criminal Law
(Amendment) Act of 1952 will operate
in this sphere without any let or
hindrance. And inasmuch as Section
8(3A) in terms provides that the provision
of Section 549 Cr.P.C. shall so
for as may be applied to the proceeding
before the Special Judge and that
for the purposes of that provision a
Special Judge shall be deemed to be
a Magistrate, the said provisions remain
fully alive and unaffected by the
West Bengal Act. [124C-H; 125A]
JUDGMENT:

174
Supdt. & Remembrancer Of Legal v. Usha Ranjan Roy
Choudhury 1986
CRIMINAL APPELLATE JU-
RISDICTION: Criminal Appeal Nos.
170 and 171 of 1977
From the Judgment and Order
dated 29th May, 1975 of the Calcutta
High Court in Criminal Appeal No.
308 of 1972 and Govt. Appeal No.
5 of 1973. D.P. Mukherjee and G.S.
Chatterjee for the Appellant. Rathin
Dass and Pankaj Kalra for the Respondents.
The Judgment of the
Court was delivered by THAKKAR,
J. The validity of the trial of three
Army Officers is in question.
The High Court has taken the
view that the learned Judge presiding
over the Special Court had acted
without jurisdiction in taking cognizance
of the case and proceeding
with the trial of three Army Officers
resulting in the conviction of
one of them, and the acquittal of
the remaining two and has quashed
the proceedings. The question which
calls for determination in these two
allied appeals by special leave preferred
by the State of West Bengal
is whether the High Court was right
in doing so. The following facts are
not in dispute:
(1) Three accused persons who
were tried by the Judge presiding
over the Fourth Addl. Special Court,
Calcutta (hereinafter referred to as
the learned Trial Judge for the sake
of brevity) were Army Officers. They
were charged with offences in respect
of which the ordinary Criminal Court
and the Court Martial both had concurrent
jurisdiction.
(2) The Learned Trial Judge had
failed to follow the procedure pre-
scribed by the Criminal Courts and
Court Martial (Adjustment of Jurisdiction)
Rules, 1952 (referred to as
Rules hereinafter) framed under Section
549 (1) of the Code of Criminal
Procedure of 1898 (Cr.P.C.)
The following contentions were
urged before the High Court on behalf
of the State with a view to
substantiate the contention that the
learned Trial Judge had jurisdiction
to take cognizance of the case and
that the trial was not null and void
notwithstanding the fact that the
procedure prescribed by the Rules
had not been followed. (1) The
rules framed under Section 549(1) of
Cr.P.C. were not attracted inasmuch
as the rules applied to Magistrates
and not to a Judge presiding over a
Special Court.
(2) Having regard to the provision
contained in section 122 of the
Army Act, 1950, which prescribes a
period of limitation of three years,
which period had already elapsed
during the pendency of the proceedings
in the High Court, the Court
Martial would have no jurisdiction
to try the accused and that the trial
held by the learned Trial Judge could
not be said to have been vitiated in
view of this circumstance.
(3) In view of a letter addressed
by the Brigadier of the Division concerned
to the Police Officer for investigating
the offences, it can be said by
necessary implication that the Army
authorities had opted for the trial of
the case by the ordinary Civil Court.
The High Court repelled all the
three contentions, allowed the ap-

peal of the officer who was convicted,
and dismissed the appeal of the State
calling into question the acquittal of
the remaining two.
Besides reiterating the same
three contentions before this Court,
learned counsel for the appellant has
raised a new point which was not
urged before the High Court. We
propose to deal with the submissions
which were urged in the High
Court before coming to grips with
the new point sought to be raised
by the learned counsel for the appellant
State. For a proper appreciation
of the first point, a quick look
at the statutory provisions and the
position emerging therefrom is called
for. In regard to the offences which
fall within the purview of Section 70
of the Army Act of 1950, an offender
can be tried only by Court Martial
whereas in regard to offences falling
within the purview of Section 52 of
the said Act, the offences can be
tried both by the ordinary criminal
court as also by the Court Martial
both of which have concurrent jurisdiction.
The offences with which the
concerned accused were charged before
the learned Trial Judge were offences
which fell within the scope of
Section 52 of the Army Act of 1950
and accordingly the ordinary criminal
court as also the Court Martial
had concurrent jurisdiction. In order
to avoid any conflict of jurisdiction
between the criminal court and
the court martial in regard to offenders
who are charged with having
committed offences which fall under
the purview of Section 52 of the
Army Act, 1950, Section 549(1)1 of
175
Cr. P.C. provides that Central Government
may make Rules consistent
with Cr. P.C. and the Army Act. In
pursuance of this provision contained
in Section 549(1) Cr. P.C. the Central
Government has framed Rules
known as Criminal Courts and Court
Martial (Adjustment of Jurisdiction)
Rules, 1952. Rule 3 of the said Rules
requires that when person subject to
military, Naval or Air Force law is
brought before a Magistrate on accusation
of an offence for which he
is liable to be tried by Court Martial
also the magistrate shall not proceed
with the case unless he is requested
to do so by the appropriate military
authority. On a combined reading of
rules 3 and 4/2, it is evident that in
case the Megistrate is of the opinion
that he should proceed with the
case without there being any such request
from the appropriate military
authority, the concerned Magistrate
is enjoined to give notice to the commanding
officer in this behalf. Till
the expiry of seven days from the service
of such notice on the commanding
officer, the Magistrate is prohibited
from making any order of conviction
or acquittal or framing any
charges or committing the accused. 1
”The Central Government may make
rules, consistant with this Code and
the Army Act, the Naval Discipline
Act and the Indian Navy (Discipline)
Act, 1934 and the Air Force Act and
any similar law for the time being in
force, as to the cases in which persons
subject to military, naval or air-force
law shall be tried by a Court to which
this Code applies, or by court martial;
and when any person is brought
before a Magistrate and charged with

176
Supdt. & Remembrancer Of Legal v. Usha Ranjan Roy
Choudhury 1986
an offence for which he is liable to be
tried either by a Court to which this
Code applies, or by a court martial,
such Magistrate shall have regard to
such rules, and shall in proper cases
deliver him, together with a statement
of the offence of which he is
accused, to the commanding officer
of the regiment, corps, ship or detachment
to which he belongs, or to
the commanding officer of the nearest
military, naval, or air-force station,
as the case may be for the purpose
of being tried by the Court Martial.”
2. ”3. Where a person subject
to military, naval or Air Force law
is brought before a Magistrate and
charged with an offence for which he
is liable to be tried by a court martial,
such magistrate shall not proceed
to try such person or to issue
orders for his case to be referred to
a Bench, or to inquire with a view
to his commitment for trial by the
Court of Sessions or the High Court
for any offence triable by such Court,
unless
(a) he is of opinion, for reasons
to be recorded, that he should so
proceed without being moved thereto
by competent military, naval or Air
Force Authority, or
(b) he is moved thereto by such
authority.
It is in the background of these
provisions that the High Court has
taken the view that compliance with
the procedure prescribed by the
Rules is a mandatory requirement
and that any proceedings undertaken
by the learned Trial Judge with-
out compliance with the aforesaid
mandatory procedure would vitiate
the trial before the ordinary criminal
court and the entire proceedings
would be rendered null and void.
Faced with this situation, counsel for
the State contended before the High
Court that the procedure embodied
in Section 549(1) of the Cr. P.C.
and Rules framed thereunder were
applicable only to the court presided
over by a magistrate and not to a
Judge presiding over a Special Court.
This contention was negatived by the
High Court. And it has now been
reiterated before us, it being an admitted
position that the prescribed
procedure has not been followed by
the learned trial judge in the case
giving rise to the present appeals.
This argument was possibly inspired
by a point debated in Major E.G.
Barsay v. The State of Bombay.
[1962] (2) S.C.R. 195. The view
was taken therein that inasmuch as
the aforesaid Rules refer to a Magistrate
the Rules were not attracted
with regard to a trial before a Special
Judge. It was presumably on accout
of this decision that the Criminal
Law (Amendment) Act of 1952
was amended by incorporating Sections
8 (3A) and 11, reading as under:
Section 8(3A): In particular,
and without prejudice to the generality
of the provisions contained in subsection
(3), the provisions of Sections
350 and 549 of the Code of Criminal
Procedure, 1898 shall, so far as may
be, apply to the proceedings before a
Special Judge, and for the purposes
of the said provisions a Special Judge
shall be deemed to be a Magistrate.

Section 11: Military, naval and
air force laws not to be affected-
4. Before proceeding under
clause (a) of rule 3 the Magistrate
shall give written notice to the Commanding
Officer of the accused and
until the expiry of a period of seven
days from the date of the service of
such notice he shall not
(a) Convict or acquit the accused
under sections 243, 245, 247 or 248
of the Code of Criminal Procedure,
1898(V of 1898), or hear him in his
defence under section 244 of the said
Code, or
(b) frame in writing a charge
against the accused under section 254
of the said Code; or
(c) make an order committing the
accused for trial by the High Court or
the Court of Sessions under section
213 of the said Code.” 120
(1) Nothing in this Act shall affect
the jurisdiction exercisable by,
or the procedure applicable to, any
Court or other authority under any
military, naval or air-force law. This
amendement was effected by virtue
of Central Act XXII of 1966. Having
regard to the provision contained in
Section 8 (3A) of the Criminal Law
(Amendment) Act of 1952 as it now
stands it is clear that a Sepcial Judge
is deemed to be a Megistrate for the
purposes of the Rules framed under
Section 549 (1) of the Code of Criminal
Procedure with the end in view
to eschew the conflict between Court
Martial on the one hand and the ordinary
criminal courts on the other.
The High Court was therefore perfectly
justified in repelling this con-
177
tention urged on behalf of the appellant
State, albeit on a reasoning
which is somewhat obscure. Confronted
by this situation counsel for
the appellant State has raised a new
point to which a reference was made
in the earlier part of the judgment.
The new point which has been so
raised is that Sections 8(3A) and 11
quoted hereinabove which were incorporated
by Central Act 11 of 1958
as further amended by Central Act
XXII of 1966 were not applicable to
the State of West Bengal from where
the matter giving rise to the present
appeals stems. Since no such argument
was advanced before the High
Court, initially, we were reluctant
to permit counsel to raise this new
point. But having regard to the fact
that it goes to the root of the matter
we have permitted counsel to urge
this contention. We will however deal
with it after exhausting all the points
which were urged before the High
Court.
The next point which was unsuccessfully
urged before the High Court
was in the context of Section 122
of the Army Act of 1950 which prescribes
a period of limitation of three
years. The High Court did not accede
to the submission in this behalf
having regard to the law enunciated
by this Court in Delhi Police Establishment,
New Delhi v. Lt. Col. Loraiya.
[1973] (1) S.C.R. 1010. We are
of the opinion that the High Court
was right. This Court in the aforesaid
case has taken the view to the
effect that the question being essentially
one of the initial jurisdiction of
the ordinary criminal court on the

178
Supdt. & Remembrancer Of Legal v. Usha Ranjan Roy
Choudhury 1986
one hand and the court martial on
the other, unless the procedure prescribed
by the rules is complied with
the ordinary criminal court would
not have initial jurisdiction in regard
to the matter, as is evident from the
following passage:
”It is an admitted fact in this
case that the procedure specified in
rule 3 was not followed by the Special
Judge, Gauhati before framing
charges against the respondent. Section
549 (1) Cr. P.C. and rule 3 are
mandatory. Accordingly the charges
framed by the Special Judge against
the respondent cannot survive. But
counsel for the appellant has urged
before us that in the particular circumstances
of this case the respondent
is not ’Iiable to be tried’ by a
Court Martial.
Section 122 (1) of the Army Act,
1950, provides that no trial by court
martial of any person subject to the
Army Act for any offence shall be
commenced after the expiry of the
period of three years from the date
of the offence. The offences are alleged
to have been committed by the
respondent in November-December,
1962. So more than three years have
expired from the alleged commission
of the offence. It is claimed that having
regard to Sec. 122(1), the respondent
is not liable to be tried by court
martial.
This argument is built on the
phrase ”is liable to be tried either
by the court to which this Code applies
or by a Court Martial” in section
549(1). According to counsel for
the appellant this phrase cannotes
that the ordinary criminal court as
well as the court martial should not
only have concurrent initial jurisdiction
to take cognizance of the case
but should also retain jurisdiction to
try him up to the last stage of conviction
or acquittal. We are unable
to accept this construction of the
phrase.
As regards the trial of offences
committed by Army men, the Army
Act draws a threefold scheme. Certain
offences enumerated in the
Army Act are exclusively triable by
a Court Martial; certain other offences
are exclusively triable by the
ordinary criminal courts; and certain
other offences are triable both by the
ordinary criminal court and the court
martial. In respect of the last category
both the Courts have concurrent
jurisdiction. Section 549 (1) Cr.
P.C. is designed to avoid the conflict
of jurisdiction in respect of the last
category of offences. The clauase ”for
which he is liable to be tried either
by the Court to which this Code applies
or by a court martial” in our
view, qualifies the preceding clause
”when any person is charged with an
offence” in s. 549 (1). Accordingly
the phrase ”is liable to be tried either
by a court to which this Code
applies or a court martial” imports
that the offence for which the accused
is to be tried should be an offence
of which cognizance can be taken by
an ordinary criminal court as well
as a court martial. In our opinion,
the phrase is intended to refer to the
initial jurisdiction of the two courts
to take cognizance of the case and
not to their jurisdiction to decide it
on merits. It is admitted that both

the ordinary criminal court and the
court martial have concurrent jurisdiction
with respect to the offences
for which the respondent has been
charged by the Special Judge. So,
s. 549 and the rules made thereunder
are attracted to the case at hand”
Having regard to the enunciation of
law to this effect it is evident that the
ordinary criminal court would have
no jurisdiction to take cognizance of
the case and to try the accused in
a matter where the procedure prescribed
by the Rules has not been
complied with. The initial lack of
jurisdiction to take cognizance and
try the case would of logical necessity
vitiate the trial and the order of
conviction and sentence would be liable
to be quashed as a result thereof.
We are therefore unable to accede to
the submission urged on behalf of the
appellant State that even if the rules
are applicable, having regard the fact
that more than three years have expired
from the date of the commission
of the alleged offence, the trial
is not vitiated.
The last contention raised before
the High Court was that having regard
to the fact that the investigation
which preceded the lodging of the
complaint before the learned Trial
Judge was commenced in pursuance
of a letter written by the Brigadier
of the Division, which contained a request
for investigation by the Police
into alleged offences, it can be said
that the Army authorities had opted
for the trial of the accused person by
the ordinary criminal court. The argument
was that by necessary implication
this would follow as a logical
179
corollary. The High Court brushed
aside this contention as untenable,
taking into account the contents of
the letter in question. The said letter
was in the following terms:
”Dear Sir,
(1) Please refer to Memo No.
8940 dated August 28, 1963 from
Shri R.K. Bhattacharyya, Superintendent
of Police, D.E.B., Darjeeling.
(2) At appendix ’A’ please find
a copy of the investigation that had
been carried by us. We request you
to take over the case and submit your
detailed report to us at your earliest
convenience.”
The High Court relied on the
fact that the Army had called for a
detailed report by the Police which
would show that the Army authorities
had not taken any such decision
either expressly or by necessary implication.
Counsel for the appellant
has not been able to press this point
with any vigour for the obvious reason
that it relates to the stage of investigation
preceding the complaint.
The question regarding exercise of jurisdiction
by the court martial would
arise only after the investigation was
completed and the police report was
available. What is more, it is only
after the prescribed procedure under
Rules 3 and 4 of the Rules is resorted
to by the ordinary criminal court
that the question of exercising an option
can arise. In the present matter,
admittedly the procedure prescribed
by the Rules was not followed. Under
the circumstances it is futile to
contend that the Army authorities
had voluntarily abandoned their op-

180
Supdt. & Remembrancer Of Legal v. Usha Ranjan Roy
Choudhury 1986
tion to try the accused person in the
court martial. There is no substance
in the plea and it has been rightly
repelled by the High Court.
At long last, we come to the last
point, the point which was not urged
before the High Court but which
we have permitted the learned counsel
for the State to raise before us.
It is argued that the Criminal Law
(Amendment) Act of 1952 was not
applicable to the State of West Bengal
inasmuch as the State of West
Bengal had enacted an Act of its
own known as West Bengal Criminal
Law Amendment (Special Courts)
Act, 1949 which was in operation
throughout the whole of West Bengal.
No doubt it is true that Criminal
Law is a subject which falls within
the scope of Entry 1 of List III (concurrent
list) embodies in 7th Schedule
to the Constitution of India. The
Union Government as well as the
State Government both can therefore
legislate in regard to criminal
law. The contention that the Criminal
Law (Amendment) Act, 1952 enacted
by the Parliament of India is
not applicable to the State of West
Bengal is altogether misconceived. It
is necessary to advert to the legislative
history for a proper appreciation
of the point at issue. In 1938 the
Government of India had enacted the
Criminal Law (Amendment) Act of
1938. In 1949 the State of West Bengal
124
introduced the State legislation
being the West Bengal Criminal Law
Amendment (Sepcial Courts) Act,
1949 (West Bengal Act). This Act
was further amended after the en-
forcement of the Constitution of India
by incorporating Section 13 in
1953-3. The said Section 13 has great
significance from the stand point of
the present argument: ”Certain Sections
of Act XLVI of 1952, not to apply
to West Bengal:
13. Sections 6, 7, 8, 9 and
10 of the Criminal Law Amendment
Act, 1952 shall not apply and shall
be deemed never to have applied to
West Bengal.” It will thus be seen
that Section 13 of the West Bengal
Act in terms accords recognition
to the applicability of the Criminal
Law (Amendment) Act of 1952 except
and save some of the sections
namely sections, 6, 7, 8, 9 and 10
thereof which as provided in Section
13 shall not apply and shall be never
deemed to have applied to West Bengal.
It is implicit in Section 13 of
the West Bengal Act that the Central
Act namely Criminal Law (Amendment)
Act of 1952 is applicable to the
State of West Bengal except and save
the aforesaid five sections. There
can be no doubt or debate about
this position having regard to the
fact that criminal law is a subject
which falls under the concurrent list
and the Criminal Law (Amendment)
Act of 1952 enacted by the Parliament
is applicable subject to inconsistency,
if any, between the said Act
and the West Bengal Act. So far as
the coverage of the present point is
concerned, there is no such inconsistency.
The West Bengal Act does
not contain any provisions pertaining
to personnel governed by the Army
Act. It is altogether silent in regard
to the matter pertaining to the

procedure to be followed in regard
to Army personnel from the perspective
of Section 549 Cr. P.C. and
the rules framed under the authority
thereof. There is thus no conflict
between the Criminal Law (Amendment)
Act of 1952 and the West Bengal
Act in so far as this matter is
concerned. Such being the position
the provisions contained in Criminal
Law (Amendment) Act of 1952 with
a special eye on the procedure to be
followed in Section 8(3A) and Section
11 of the Criminal Law (Amendment)
Act of 1952 will operate in this
sphere without any let or hindrance.
And inasmuch as Section 8(3A) in
terms provides that the provision of
Section 549 Cr. P.C. shall so far as
may be applied to the proceeding before
the Special Judge
3. This section was added by Section
3 of the West Bengal Criminal
Law Amendment (Special Courts)
Amending Act of 1953 (West Bengal
Act of 1953). and that for the
purposes of that provision a Special
Judge shall be deemed to be a Magistrate,
the said provisions remain
fully alive and uneffected by the West
Bengal Act. In view of this provision
the procedure prescribed by Section
549 Cr. P.C. read with the rules
framed thereunder which have been
quoted in the earlier part of the judgment
will be applicable to a proceeding
before a Special Judge in West
Bengal as well. In so far as the Army
personnel are concerned therefore the
law governing them and the procedure
required to be followed in their
case would be the same in West Bengal
as elsewhere in India as it should
be. It may incidentally be mentioned
181
that in the West Bengal Act also
the Judge presiding over the Special
Court is called a Special Judge
(vide Schedule to the West Bengal
Act). He would therefore deemed to
be a Magistrate for the Purposes of
the Rules in view of Section 8(3A)
of the Criminal Law (Amendment)
Act of 1952. The mandatory procedure
prescribed by the Rules is accordingly
obligatory even in respect
of proceedings before a Special Court
under the West Bengal Act. There
is thus no substance in this point.
We are of the opinion that this feeble
and faint-hearted attempt is born
out of desperation and deserves no
more consideration. We have therefore
no hesitation in negativing this
plea. No other point has been urged.
The appeal must therefore fail. But
before we write ’finis’ it may be made
clear that the acquittal rendered by
the High Court is on the ground of
lack of jurisdiction on the part of the
learned Special Judge who tried the
case in the Special Court and not
on merits. The expression ’acquitted’
has been employed by the High
Court though it was sufficient to say
no more than this, that the order of
conviction and sentence was without
jurisdiction and was therefore being
quashed. In the eye of law, it is
not an acquittal since it is not on
merits. It is thereore for the competent
authority to decide whether
or not to subject the accused to a
fresh trial after following the procedure
prescribed by the Rules. With
these observations, we dismiss the
appeal.
M.L.A. Appeal dismissd.

182
Supdt. & Remembrancer Of Legal v. Usha Ranjan Roy
Choudhury 1986

Chapter 12
Union of India v. Maj S K
Sharma 1987
UNION OF INDIA THROUGH
MAJOR GENERALH.C. PATHAK
v. MAJOR S.K. SHARMA
PETITIONER: UNION OF IN-
DIA THROUGH MAJOR GENER-
ALH.C. PATHAK
v.
RESPONDENT: MAJOR S.K.
SHARMA
petent Authority to hold an inquiry
for determining whether there is any
case for trying the accusedIt must
proceed to hold the Court Martial or
take such other effectual proceedings
as is contemplated by r. 7(1) of the
Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules,
1978.
HEADNOTE: An officer in the
DATE OF JUDGMENT29/06/1987Army
filed a complaint before a
BENCH: PATHAK, R.S. (CJ) Magis- trate alleging that another
BENCH: PATHAK, R.S. (CJ) officer has assaulted him, that the
KHALID, V. (J)
Commanding Officer to whom he had
CITATION: 1987 AIR 1878 1987
SCR (3) 456 1987 SCC (3) 490 JT
1987 (3) 12 1987 SCALE (2)12
ACT: Criminal Procedure Code,
1973S. 475Read with ss. 200 to 204
of the Code, and the provisions of
the Army Act, 1950 and the Army
RulesWhen a Magistrate has taken
cognizance of an offence committed
by a member of the Armed Forces
and thereafter transferred the case
for trial under the Army Act and the
Rules, it is not open to the Com-
complained earlier had failed to take
satisfactory action and thus both of
them had committed offences under
the Indian Penal Code. The Magistrate
examined the complainant under
s. 200 Cr. P.C., took cognizance
of the offences under s. 190(A) and,
on being satisfied of the existence
of a prima facie case, issued summons
under s. 204(A) for the appearance
of the accused. Upon applications
being made by the appellants
urging that the case be handed over

184 Union of India v. Maj S K Sharma 1987
to the Military Authorities for disposal,
the Magistrate made an order
directing that the case be transferred
to the Army Authorities for disposal
in accordance with the provisions of
the Army Act, 1950 after trial by a
Court Martial at any place within
the jurisdiction of his Court and that
the progress of the case be reported
to him at intervals of two months.
Upon the appellants making further
applications praying for review of the
said order on the ground that under
the Army Act and the Army
Rules, it was not mandatory that
all disciplinary cases against military
personnel should culminate in
a trial by Court Martial and submitting
that the disciplinary action
against the officers concerned would
be initiated after an investigation of
the alleged offences, the Magistrate,
pointing out that the judicial process
for ascertaining the prima facie
existence of a case had already
been completed, held that the trial
of the accused by Court Martial was
mandatory under s. 475 Cr. P.C.
and, therefore, it was not permissible
for the Army Authorities to hold
a preliminary investigation. However,
having regard to s. 127 of the
Army Act, the Magistrate directed
that the progress of the case be intimated
at intervals of four months.
in the Revision filed by the appellants,
the High Court interfered with
the order of the Magistrate insofar
only that it deleted the direction requiring
the Army Authorities to inform
the Magistrate of the progress
of the case at intervals of four months
and directed instead that the result
of the Court Martial proceeding be
communicated to the Magistrate, as
soon as may be, in accordance with r.
7 of the Criminal Courts and Court
Martial (Adjustment of Jurisdiction)
Rules, 1978. Dismissing the appeal
by Special Leave, HELD: The Army
Authority is not entitled to ignore
the proceeding taken by the Magistrate
and to invoke the provisions of
r. 22 and related rules of the Army
Rules. The Magistrate having held
that there is a case for trying the two
accused officers and having directed
their appearance, the Army Authority
must proceed to hold a Court
Martial for their trial or take other
effectual proceedings against them as
contemplated by the law. [468G-H]
(i) It is open to a Magistrate under
ss. 200-203, Cr. P.C. to inquire
into a complaint of an offence alleged
to have been committed by a military
person, where it falls within his
jurisdiction and to take proceedings
for trial of the accused. Likewise, a
duly constituted Army Authority has
power under the provisions of r. 22
onwards of the Army Rules to investigate
into a charge against a military
person accused of an offence triable
under the Army Act, and after
such hearing to decide whether his
trial by a Court Martial should be
ordered. The provisions of the Army
Rules run parallel to the provisions
in the Cr. P.C. Inasmuch as there is
always a possibility of the same offence
being triable either by a Criminal
Court or by a Court Martial, s.
475, Cr. P.C. empowers the Central
Government to make rules as to cases
in which persons shall be tried by
a Court to which the Code applies
or by a Court Martial, and the sec-

tion provides that whenever a person
is brought before a Magistrate and
charged with an offence for which he
is liable to be tried either by a Court
to which the Code applies or by a
Court Martial, such Magistrate must
have regard to such rules and must,
in proper cases, deliver the person together
with a statement of the offence
of which he is accused, to the Commanding
Officer of the unit to which
he belongs for the purpose of being
tried by a Court Martial. The language
used in s. 475 is significant. It
refers to a person who is brought before
a Magistrate and charged with
an offence. In other words, he must
be a person respecting whom the
Magistrate has taken the proceedings
envisaged by ss. 200 to 204 of the
Cede. He will be a person in respect
of whom the Magistrate has found
that there is a case for trial. It is for
that reason that s. 475 goes on to say
that when such person is delivered to
the Commanding Officer of the unit
to which he belongs, it will be for
the purpose of being tried by a Court
Martial. When he is so delivered, a
statement of the offence of which he
is accused will also be delivered to
the Commanding Officer. The relevance
of deliv- ering such statement
can be easily understood, for it is to
enable the Army Authority to appreciate
the circumstances in which a
Court Martial is required by the law.
[464C-D; 465E-H] (ii) It is clear from
r. 7(1) of the Criminal Courts and
Court Martial (Adjustment of Jurisdiction)
Rules, 1978 framed under s.
475 of the Cr. P.C. that when the
accused is made over by the Magistrate
under s. 5 or 6 thereof to the
185
competent military or other authority,
it is for the purpose of trial by a
Court Martial or other effectual proceedings
to be taken or ordered to be
taken against him inasmuch as the
competent authority must, as soon
as may be, inform the Magistrate,
whether the accused has been tried
by a Court Martial or other effectual
proceedings have been taken or ordered
to be taken against him and
the communication of such information
is mandatory. When the Magistrate
is informed that the accused
has not been tried or other effectual
proceedings have not been taken
or ordered to be taken against him,
he is obliged to report the circumstances
to the State Government and
the State Government, in consultation
with the Central Government,
may take appropriate steps to ensure
that the accused person is dealt with
in accordance with law. The policy
of the law is clear. Once the Criminal
Court determines that there is
a case for trial, and pursuant to the
aforesaid rule, delivers the accused to
the competent military or other authority,
the law intends that the accused
must either be tried by a Court
Martial or some other effectual proceedings
must be taken against him.
[467B-E] (iii) The policy of our Constitutional
Polity is that no person
should be regarded as being above
the law. Military, navel or air force
personnel are as much subject to the
law as members of the civil population.
It is significant that r. 8
of the Criminal Courts and Court
Martial (Adjustment of Jurisdiction)
Rules, 1978 empowers the Magistrate,
on coming to know that a per-

186 Union of India v. Maj S K Sharma 1987
son subject to the military, naval or
air force law or any other law relating
to the Armed Forces has committed
an offence and proceedings in respect
of which ought to be instituted
before him and that the presence of
such person cannot be procured except
through military, navel or air
force authorities, to require the Commanding
Officer of such person either
to deliver such person to a Magistrate
for being proceeded against according
to law or to stay the proceedings
against such person before the
Court Martial if since instituted, and
to make a reference to the Central
Government for determination as to
the Court before which the proceedings
should be instituted. [467G-
H; 468A-B] (iv) Section 127 of the
Army Act provides that a person
convicted or acquitted by a Court
Martial, may, with the previous sanction
of the Central Government, be
tried against by a Criminal Court for
the same offence or on the same facts
which is an exception to the rule contained
in Art. 20 of the Constitution
that no person shall be prosecuted
and punished for the same offence
more than once. It is to enable
the operation and application of
s. 127 of the Act that r. 7(1) of the
Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules,
1978 requires the competent military
or other authority to inform the Magistrate
whether the accused has been
tried by a Court Martial or other effectual
proceedings have been taken
against him. [468B-D] (v) Section
125 of the Army Act, which provides
that when a Criminal Court and a
Court Martial have each jurisdiction
in respect of an offence, it will he
in the discre- tion of the Commanding
Officer of the accused to decide
before which Court the proceedings
shall he instituted, is of no assistance
in deciding whether it is open
to the Army Authority to take proceedings
for determining prima facie
whether there is substance in the allegations
made against the accused
and decline to try him by a Court
Martial or take other effectual proceedings
against him even where a
Magistrate has taken cognizance of
the offence and finds that there is a
case for trying the accused. [468E-
F] (vi) There is nothing in the provisions
of the Army Rules relating to
Courts of Inquiry which can support
the contention that notwithstanding
the proceeding taken by the Magistrate
it is open to the Army Authority
to hold a Court of Inquiry and
determine whether there is any case
for trying the accused by a Court
Martial. If, it is not open to the
Army Authority to have recourse to
r. 22 of the Army Rules and investigate
the charge directed against the
accused officer in this case, for the
same reason, it is not open to it to
hold a Court of Inquiry and supersede
the proceeding already taken by
the Magistrate. [469B-D]
JUDGMENT: CRIMINAL AP-
PELLATE ORIGINAL JURISDIC-
TION: Criminal Appeal No. 271 of
1987. From the Judgment and Order
dated 3.7. 1986 of the Gauhati
High Court in Crl. Revn. No. 229 of
1986. A.K. Ganguli, R.P. Srivastava,
P. Purameswarn and Ashok K. Srivastava
for the Appellant in Crl. A.

No. 271 of 1987 and Respondent in
W.P. (Crl.) No. 664 of 1986. R.K.
Jain, Gaurav Jain, Abha Jain and
R.P. Singh for the Respondent in Crl.
A. No. 271 of 1987 and Petitioner in
W.P. (Crl.) No. 664 of 1986. The
Judgment of the Court was delivered
by PATHAK, CJ. Special Leave
is granted. The respondent Major
S.K. Sharma addressed a letter dated
21 December 1985 to Brigadier S.S.
Randhawa, Commander, HQ 41 Sub
Area alleging that on 15 December,
1985 he was manhandled by Col.
Mir Usman Ali in the HQ 41 Sub
Area Officers Mess at Jorhat. It was
stated that the incident took place in
the presence of Major M.M. Subbaiah.
Major Sharma was attached to
B Camp. Signal Regiment while Col.
Ali belonged to HQ 41 Sub Area.
Brigadier Randhawa wrote to the Officer
Commanding, B. Comp. Signal
Regiment on 14 January 1986 seeking
clarification from Major Sharma
on some of the allegations. It appears
that correspondence was exchanged
in the matter but apparently Major
Sharma, having met with no satisfactory
response, filed a complaint 21
January 1986 in the Court of the Additional
Chief Judicial Magistrate,
Jorhat alleging that Col. Ali had
criminally assaulted him and further
that Brigadier Randhawa did not report
the matter to the higher authorities
and was attempting to protect
Col. Ali. It was alleged in the
complaint that Col. Ali had committed
the offences under sections
323, 352 and 355 of the Indian Penal
Code and Brigadier Randhawa
had committed the offence under section
2 17 of the Indian Penal Code.
187
The Additional Chief Judicial Magistrate
exam- ined the complaint, and
taking cognizance of the offences alleged
to have been committed by Col.
Ali and Brigadier Randhawa it directed
that summons be issued to
them for their appearance before him
on 7 March, 1986. On two applications
moved by Major Sharma before
him the Chief Judicial Magistrate
made an order dated 25 January.
1986 directing that the venue of a
Court of Inquiry instituted in respect
of certain complaints made against
Major Sharma by his Commanding
Officer be shifted from Mohanbari,
where it was convened, to a place
within the jurisdiction of his Court
and it was directed further that Major
Sharma should not be moved out
of the jurisdiction of the Court during
the pendency of the case. Major
Sharma had complained that the
Court of Inquiry had been ordered
by Brigadier Randhawa at Mohanbari
as a measure of retaliation because
of the institution of the criminal
case by Major Sharma before
the Additional Chief Judicial Magistrate.
On 7 February 1986 the Union
of India moved an application before
the Chief Judicial Magistrate along
with an application dated 3 February
1986 addressed to the Court by Major
General T.S. Chaudhri informing
the Chief Judicial Magistrate
that the General Officer Commanding
was of opinion that Col. Ali
should be dealt with in accordance
with the procedure laid down under
the Army Act and the Army Rules
and the Criminal Courts and Court
Martial (Adjustment of Jurisdiction)
Rules, 1978, and that therefore, the

188 Union of India v. Maj S K Sharma 1987
case may be handed over to the Military
Authorities. It was pointed
out by Major Chaudhri in his letter
that the com- plaint before the
Additional Chief Judicial Magistrate
against Col. Ali should, in his opinion,
be disposed of under the procedure
laid down in Army Rule 22
of Army Rules, 1954 and that under
s. 125 of the Army Act 1950 read
with Army Rule 197A of the Army
Rules and the Criminal Court and
Court Martial (Adjustment of Jurisdiction)
Rules 1978, Major General
Chaudhri was the competent Military
authority to claim the case. He
requested that the case should be
handed over to the Military authorities
for further necessary action. On
12 February 1986 the Union of India
moved another application before
the Chief Judicial Magistrate along
with an application dated 3 February
1986 addressed to the Chief Judicial
Magistrate by Major General T.S.
Chaudhri as General Officer Commanding
requesting that the case
against Brigadier Randhawa should
similarly be handed over to the Military
authorities for necessary action.
On 17 February 1986 the Chief Judicial
Magistrate, Jothat made an order
disposing of the two requisitions
made by Major General Chaudhri.
He noted that the cognizance of the
offences had been taken by the Additional
Chief Judicial Magistrate and
necessary process had been issued
against both accused to compel their
presence, and that in the light of
Rule 3 of the Criminal Court and
Court Martial (Adjustment of Jurisdiction)
Rules 1978 the prayer for
trial by a Court martial by the com-
petent authority was. allowed. In
this connection he made reference to
Delhi Special Police Establishment v.
Lt. Col. S.K. Loraiya, AIR 1972
SC 2548. He directed that the case
be transferred to the Army authorities
pursuant to the requisitions, and
for disposal in accordance with the
provisions of the Army Act, 1950 after
trial by a court martial at any
place within the jurisdiction of his
Court, He directed further that the
progress of the case should be reported
to his Court at intervals of
two months and ultimately intimating
the result thereof, for the purpose
of determining whether a successive
trial was necessary as provided for in
the Army Act. While making the
order the Chief Judicial Magistrate
noted that the Army authorities had
not shifted the venue of the Court
of Inquiry mentioned earlier to any
place within the jurisdiction of his
court as required by his order dated
25 January, 1986, and this prima facie
amounted to contempt for which
it was open to Major Sharma to apply
to the High Court for necessary
action. He also directed that Major
Sharma should be permitted to proceed
on leave to enable him to apply
to the Gauhati High Court for filing
a writ petition or taking other legal
proceedings. On 21, March 1986 the
Union of India through the General
Officer Commanding filed an application
before the Chief Judicial Magistrate
for modification of the order
dated 17 February 1986. In that application
it was contended that under
the Army Act and the Army Rules
it was not mandatory that all disciplinary
cases against military per-

sonnel should culminate in a trial by
the Court Martial and that the directions
made by the Chief Judicial
Magistrate with regard to the trial
of Brigadier Randhawa and Col. Ali
by Court Martial were in contravention
of the Army Act and the Army
Rules and the Criminal Court and
Court Martial (Adjust- ment of Jurisdiction)
Rules 1978. It was asserted
that the proposed disciplinary
action would be initiated by the General
Commanding Officer after an investigation
of the alleged offences in
accordance with Army Rule 22. It
was prayed that the order dated 17
February 1986 be reviewed by deleting
the direction for a trial by Court
Martial at a place within the jurisdiction
of the Court of the Chief
Judicial Magistrate and of the direction
further that the progress of
the case should be intimated to the
Chief Judicial Magistrate at intervals
of two months. On 7 April
1986 the Union of India filed another
application making more detailed
submissions for modification or
the other dated 17 February 1986.
A third application was moved by
the Union of India on 30 April 1986
to the Chief Judicial Magistrate requesting
that the records of the case
be handed over to the Army authorities.
These applications were disposed
of the Chief Judicial Magistrate
by his order dated 8 May 1986.
In that order he noted that the Additional
Chief Judicial Magistrate had,
on receipt of the complaint examined
the complainant Major S.K. Sharma
under s. 200 of the Cr. P.C. and had
taken cognizance of the offence under
s. 190(A) of the Code and on being
189
satisfied of the existence of a prima
facie case process had been issued by
him under s. 204(A) of the Code.
He noted that the judicial process
for ascertaining the prima facie existence
of a case had thereby been completed.
He held that in the circumstances
the trial of the accused officers
by a court martial appeared to
be mandatory under the provisions of
s. 475 of the Code. He observed that
the preliminary investigations by a
departmental court of inquiry did not
seem per- missible in the case. However,
having regard to s. 124 of
the Army Act which conferred absolute
power on the Army authorities
to choose the venue of trial and
keeping in view the administrative
convenience of the Army authorities
he decided to accept the request of
the General Officer Commanding for
deleting the direction in respect of
the venue of the trial. The Chief Judicial
Magistrate also directed that
instead of intervals of two months the
Army authorities should, having regard
to the provision of s. 127 of
the Army Act, inform his Court as
to the progress of the case at intervals
of four months. On 14 June 1986
the Union of India through the General
Officer Commanding filed a revision
petition before the High Court
at Gauhati, which was disposed of
by the High Court by its order dated
3 July 1986. The High Court interfered
with the order of the Chief Judicial
Magistrate in so far only that
it deleted the direction requiring the
Army authorities inform the Chief
Judicial Magistrate of the progress of
the case at intervals of four months,
and it directed instead that the re-

190 Union of India v. Maj S K Sharma 1987
sult of the Court Martial proceedings
should be communicated to the Chief
Judicial Magistrate as soon as may
be in accordance with Rule 7 of the
Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules,
1978. It may be mentioned that
according to the order of the High
Court the only submission raised on
behalf of the appellant in the revision
petition was that the Magistrate had
no jurisdiction to direct the Court
Martial to submit reports relating to
the progress of the case, including
the result thereof, at intervals of four
months. Thereafter a special Leave
Petition was filed by the Union of
India, out of which the present appal
arises. Although it appears that
the only point raised before the High
Court on the revision petition related
to the direction that the Army authorities
should report periodically
to the Chief Judicial Magistrate 464
in regard to the progress of the case,
learned counsel for the appellants has
raised a more fundamental question
before us. That question is whether
it is open to the Army authorities to
constitute a Court of Inquiry, enter
upon an inves- tigation of the charges
under Rule 22 of the Army Rules and
determine whether there is a case for
trial by a Court Martial. Learned
Counsel contends that the proceedings
already taken by the Additional
Chief Judicial Magistrate must be ignored
for the purpose and the Army
authorities are not bound to try the
accused by a Court Martial. Although
the point was not taken before
the High Court we have permitted
it to be raised before us and it
has been argued by learned counsel
at length. It is apparent from the
provisions of the Code of Crimi- nal
Procedure that it is open to a Magistrate
to inquire into a complaint of
an offence alleged to have been committed
by a military person, where it
fails within its juris- diction, and to
take proceedings either for his trial or
for committing the case to the Court
of Sessions for trial. Likewise, there
is power under the Army Act in a
duly constituted Army authorities to
investigate into a charge against a
military person accused of an offence
triable under the Army Act, and after
such hearing to decide whether
his trial by a Court Martial should be
ordered. In the former case, ss. 200
to 203 of the Code of Criminal Procedure
provide the procedure to be
followed by Magistrates taking cognizance
of an offence on a complaint.
The Magistrate is required to examine
on oath the complaint and the
witnesses present and reduce the substance
of such examination to writing
to be subsequently signed by the
complainant and the witnesses and
by the Magistrate. That is the procedure
except when the complaint
is made in writing by a public servant
or the Magistrate makes over
the case for trial or inquiry to another
Magistrate. The Magistrate
may either inquire into the case himself
or direct an investigation to be
made by a police officer or by such
other person as he thinks fit for the
purpose of deciding whether or not
there is sufficient ground for proceeding.
Where, however, it appears to
the Magistrate that the offence complained
of its triable exclusively by
the Court of Session no such direc-

tion for investigation can be made
by him. For the purpose of inquiry
be may take evidence of witnesses on
oath. If the Magistrate is of opinion
that the offence complained of is
triable exclusively by the Court of
Session he must call upon the complainant
to produce all his witnesses
and examine them on oath. If after
considering the statement on oath
of the complainant and of the witnesses
and the result of the inquiry
or investigation directed by him the
Magistrate is of opinion that there
is no sufficient ground for proceeding
he must dismiss the complaint.
Where the Magistrate is of opinion
that there is sufficient ground for
proceeding he must adopt the procedure
setforth in sections 204 onwards.
He must issue process for
the attendance of the accused. In
certain cases he may dispense with
the personal attendence of the accused
and permit him to appear by
his pleader. Where, however, the
proceeding is taken by an Army authority
under the Army Act reference
must be made to the provisions of
Rule 22 onwards of the Army Rules.
The Rules provide for the hearing of
a charge, in which the accused has
liberty to cross examine any witness
against him and to call any witnesses
and make any statement in his defence.
If the Commanding Officer
investigating the charge finds no offence
has been committed he must
dismiss the charge. He may also do
so if, in his discretion, he is satisfied
that the charge has not to be
proceeded with. If the charge is
to be proceeded with he may pass
any of the orders detailed in Rule
191
22(3). They include proceedings for
trial by a Court Martial. It is clear
that these provisions of the Army
Rules run parallel to the provisions
of the Code of Criminal Procedure
adverted to earlier. Now inasmuch
as there is always a possibility of the
same offence being triable either by
a Criminal Court or by a Court Martial
the law has attempted to resolve
the competings claims of the civil authority
and the military authori- ty
in such cases. Section 475 of the
Code of Criminal Procedure empowers
the Central Government to make
rules as to cases in which persons
shall be tried by a Court to which
the Code applies or by a Court Martial,
and the section provides that
whenever a person is brought before
a Magistrate and charged with an
offence for which he is liable to be
tried either by a Court to which the
Code applies or by a Court Martial
such Magistrate must have regard to
such rules and must, in proper cases,
deliver the person together with a
statement of the offence of which he
is accused to the Commanding Officer
of the unit to which he belongs
for the purpose of being tried by a
Court Martial. The language used in
s. 475 is significant. It refers to a
person who is brought before a Magistrate
and charged with an offence.
In other words, he must be a person
respecting whom the Magistrate has
taken the proceedings envisaged by
ss. 200 to 204 of the Code. He will be
a person in respect of when the Magistrate
has found that there is a case
for trial. It is for that reason that
s. 475 goes on to say that when such
person is delivered to the Command-

192 Union of India v. Maj S K Sharma 1987
ing Officer of the unit to which he belongs
it will be for the purpose of being
tried by a Court Martial. When
he is so delivered, a statement of the
offence of which he is accused will
also be delivered to the Commanding
Officer. The relevance of delivering
such statement can be easily understood,
for it is to enable the Army
authority to appreciate the circumstances
in which a Court Martial is
required by the law.
We now turn to the Criminal
Courts and Court Martial (Adjustment
of Jurisdiction) Rules, 1978.
These Rules have been framed under
s. 475 of the Code of Criminal
Procedure. When a person subject
to military, naval or air force law or
any other law relating to the Armed
Forces is brought before a Magistrate
and charged with an offence for
which he is also liable to be tried by
a Court Martial, the Magistrate will
not proceed to try such person or to
commit the case to the Court of Session
unless (a) he is moved to that
effect by a competent military, naval
or air force authority or (b) he is of
opinion for reasons to be recorded,
that he should so proceed or to commit
without being moved thereto by
such authority. Rule 3, in our opinion,
comes into play at the point
where the person has been brought
before a Magistrate and charged with
an offence. That is the stage adverted
to earlier where the accused is
directed to appear before the Magistrate
and is charged with an offence
after the Magistrate has determined
that there is a case for trial. Before
proceeding further with the case and
either proceeding to try the accused
or to commit the case to the Court
of Session the Magistrate must, under
Rule 4, give written notice to the
Commanding Officer of the accused
and refrain for a period of 15 days
from doing any of the acts or making
any of the orders in relation to
the trial of the accused specified in
Rule 4. In the event of the Magistrate
entering upon the trial of the
accused or committing the case to
the Court of Session at the instance
of the military, naval or air force authority
it is open to such authority
or the Commanding Officer of the accused
to give notice subsequently under
Rule 5 to such Magistrate that,
in the opinion of such officer or authority
the accused should be tried
by a Court Martial. Upon such notice,
the Magistrate, if he has not
taken any action or made any order
referred to specifically in Rule 4 before
receiving such notice, must stay
the proceedings and deliver the accused
together with the statement referred
to in s. 475(1) of the Code to
the Officer specified in that subsection.
In the other kind of case, where
the Magistrate intends to proceed to
try the accused or to commit the case
to a Court of Session without being
moved in that behalf by the military,
naval or air force authority, and he
has given notice under Rule 4 to the
Commanding Officer or the military,
naval or air force authority of his intention
to do so, Rule 6 empowers
the Commanding Officer or the competent
authority to give notice to the
Magistrate within the aforesaid period
of 15 days or in any event before
the Magistrate takes any action

or makes any order referred to in that
Rule, that in the opinion of such officer
or authority the accused should
be tried by a Court Martial.
Upon such notice the Magistrate
must stay the proceedings and deliver
the accused together with the
statement referred to in s. 475(1)
of the Code to the officer specified
in that sub-section. It is clear that
when the accused is made over by the
Magistrate to the Commanding Officer
or the competent military, naval
or air force authority it is for the
purpose of trial by a court martial
or other effectual proceedings to be
taken or ordered to be taken against
him. For Rule 7(1) provides that
when an accused has been delivered
by a Magistrate under Rule 5 or 6
the Commanding Officer or the competent
military, naval or air force authority
must, as soon as may be,
inform the Magistrate whether the
accused has been tried by a Court
Martial or other effectual proceedings
have been taken or ordered to be
taken against him. The communication
of such information is mandatory.
When the Magistrate is informed
that the accused has not been
tried or other effectual proceedings
have not been taken or ordered to be
taken against him, he is obliged to
report the circumstance to the State
Government and the State Government,
in consultation with the Central
Government may take appropriate
steps to ensure that the accused
person is dealt with in accordance
with law. The policy of the law
is clear. Once the Criminal Court
determines that there is a case for
193
trial. and pursuant to the aforesaid
rule, delivers the accused to the
Commanding Officer or the competent
military, naval or air force authority,
the law intends that the accused
must either be tried by a Court
Martial or some other effectual proceedings
must be taken against him.
To ensure that proceedings are taken
against the accused the Rules require
the Commanding Officer or the competent
authority to inform the Magistrate
of what has been done. Rule
7(2) appears to envisage the possibility
that the Commanding Officer or
the competent military, naval or air
force authority may not try the accused
or take effectual proceed- ings
against him even where the Magistrate
has found a case for trial.
To cover that exigency it provides
that the State Government in consultation
with the Central Government,
on a report from the Magistrate
to that effect, may take appropriate
steps to ensure that the accused
does not escape the attention
of the law. The policy of our Constitutional
polity is that no person
should be regarded as being above
the law. Military. naval or air force
personnel are as much subject to the
law as members of the civil population.
It is significant that Rule 8
empowers the Magistrate. on coming
to know that a person subject
to the military. naval or air force
law or any other law relating to the
Armed Forces has committed an offence
and proceedings in respect of
which ought to be instituted before
him and that the presence of such
person cannot be procured except
through military. navel or air force

194 Union of India v. Maj S K Sharma 1987
authorities. to require the Commanding
Officer of such person either
to deliver such person to a Magistrate
for being proceeded against according
to law or to stay the proceedings
against such person before the
Court Martial if since instituted, and
to make a reference to the Central
Government for determination as to
the Court before which the proceedings
should be instituted. Reference
may also be made to s. 127 of the
Army Act. It is an important provision.
It provides that a person convicted
or acquitted by a Court Martial,
may, with the previous sanction
of the Cen- tral Government, be tried
again by a Criminal Court for the
same offence or on the same facts.
This provision is an exception to Article
20 of the Constitution which
provides that no person shall be prosecuted
and punished for the same offence
more than once. The provision
has been made possible by reason
of Article 33 of the Constitution
which confers power on Parliament
to modify any Fundamental Right in
its application to the members of the
Armed Forces. It is to enable the operation
and application of s. 127 of
the Act that Rule 7(1) of the Criminal
courts and Court Martial (Adjustment
of Jurisdiction) Rules, 1978
requires the Commanding Officer or
the competent military, naval and air
force authority to inform the Magistrate
whether the accused has been
tried by a Court Martial or other effectual
proceedings have been taken
against him. Our attention has been
drawn by learned counsel for the appellants
to s. 125 of the Army Act.
Section 125 provides that when a
Criminal Court and a Court Martial
have each jurisdiction in respect of
an offence it will be in the discretion
of the Commanding Officer of
the accused to decide before which
Court the proceedings shall be instituted.
This provision is of no assistance
in deciding whether it is open
to the Army authority to take proceedings
for determining prima facie
whether there is substance in the allegations
made against the accused
and decline to try him by a Court
Martial or take other effectual proceedings
against him even where a
Magistrate has taken cognizance of
the offence and finds that there is a
case for trying the accused.
On the aforesaid analysis we are
of opinion that the Army authority
is not entitled to ignore the proceeding
taken by the Additional Chief Judicial
Magistrate and to invoke the
provisions of Rule 22 and related
rules of the Army Rules. The Additional
Chief Judicial Magistrate having
hold that there is a case for trying
the two accused officers and having
directed their appearance, the Army
authori- ty must proceed to held a
court martial for their trial or take
other effectual proceedings against
them as contemplated by the law.
The contention advanced by learned
counsel for the appellants to the contrary
must be rejected.
We have also been referred to the
provisions of the Army Rules relating
to Courts of Inquiry, and learned
counsel for the appellants urges
that notwithstanding the proceeding
taken by the Additional Chief Judicial
Magistrate it is open to the

Army authority to hold a Court of
Inquiry and determine whether there
is any case for trying the accused by
a Court Martial. We have been taken
through Rule 177 and the connected
Rules which deal with the institution
and conduct of Courts of Inquiry, but
we see nothing in those provisions
which can support the contention
now raised before us. If, on the analysis
detailed earlier, it is not open to
the Army authority to have recourse
to Rule 22 and investigate the charge
directed against the accused officer
in this case. for the same reason it
is not open to it to hold a Court
of Inquiry and supersede the proceedings
already taken by the Additional
Chief Judicial Magistrate. We
may mention that learned counsel for
the parties placed a number of cases
before us, but having carefully perused
the judgments in those cases
we do not find any declaration of law
therein which is inconsistent with the
view taken by us.
Accordingly, the appeal is dismissed.
In the Criminal Writ Petition
Major S.K. Sharma prays for a number
of reliefs. The material reliefs
are that a direction be issued to the
195
Army authorities to postpone the return
of the petitioner to the Unit to
which he has been posted and direct
the Army authorities to stay all
parallel proceedings against the petitioner
until the hearing and disposal
of their Special Leave Petition. So far
as the first submission as concerned
it refers to the mental and physical
stress suffered by the petitioner, apparently
necessitating his treatment
at a hospital with sychiatric facilities.
We do not think it necessary
to issue any direction because, we
think, it is a matter which can be
adequately and humanely dealt with
by the Army authorities. If indeed
the petitioner should be given a posting
where the requisite medical facilities
are available we have no reason
to doubt that the Army authorities
will afford such posting to the petitioner.
In doing so it will be open to
the Army authorities to obtain the
latest medical report respecting the
condition of the petitioner.
As regards the second relief, we
have already disposed of the special
leave petition today and, therefore,
no order need be passed in respect of
that relief. In the result the writ petition
is dismissed. H.L.C. Petition
dismissed.

196 Union of India v. Maj S K Sharma 1987

Chapter 13
Vidya Prakash v. Union Of
India 1988
Vidya Prakash v. Union Of India
& Ors on 10 February, 1988 Equivalent
citations: 1988 AIR 705, 1988
SCR (2) 953 Bench: Ray, B.C.
PETITIONER:
VIDYA PRAKASH
v.
RESPONDENT:
UNION OF INDIA & ORS.
out leave-Charge sheeted-Trial by
Summary Court Martial-Held guilty-
Dismissed from service-In writ petition
assailing constitution of summary
court martial by Commanding
Officer-Whether Commanding officer
of Corps competent to constitute the
summary court martial-Held order of
dismissal valid.
HEADNOTE:
DATE OF JUDGMENT10/02/1988 The appellant was appointed to
BENCH:
RAY, B.C. (J)
the post of Craftsman (Jawan) on
November 23, 1973. He was later
promoted to the post of Naik in view
BENCH:
of his good services and subsequently
RAY, B.C. (J)
confirmed in that post. He served at
SEN, A.P. (J)
CITATION:
various places in the country, including
field areas. He was, however, reverted
from the post of Naik to the
1988 AIR 705 1988 SCR (2) 953 post of Craftsman (Jawan). While
1988 SCC (2) 459 JT 1988 (1) 284 he was in service he incurred the dis-
1988 SCALE (1)313
ACT:
pleasure of the Commanding Officer
of his regiment (Major) as he did
not comply with his directions. He
Army Act, 1950/Army Rules, was consequently harassed and mal-
1954: Sections 39(a), 71(e), 108 and treated in various ways. Unable to
116/Rule 39(2)-Jawan-Absent with- bear the torture he surrendered to

198 Vidya Prakash v. Union Of India 1988
the mercy of the Commanding Officer
of the Battalion (Colonel). He,
however, directed him to surrender
to the Commanding Officer of his
regiment and gave him a certificate
of surrender. The Commanding Officer
took him into custody. He was
charge-sheeted for the purpose and
sentenced to 42 days imprisonment in
military custody. During the period
of his remaining in military custody,
his family suffered harassment. The
appellant on 12th September, 1984
left station with his wife and children
without taking any leave. He stated
that he became unwell and was under
the treatment of a doctor. When he
reported back to his unit with the fitness
certificate the Commanding Officer
of his regiment served him with
a charge-sheet on November 2, 1984
and directed that he be tried by a
summary court martial. On November
9, 1984, the order of dismissal of
the appellant from service was made
by the Commanding Officer in the
Summary Court Martial.
The appellant challenged the
aforesaid order in a writ petition to
the High Court, and sought quashing
of the same contending: that
the Commanding Officer was not
legally competent to preside a summary
court martial, that the punishment
of dismissal from service was
disproportionate to the charge, that
he was denied a fair opportunity to
defend himself, and was in fact not
permitted to question the witnesses.
A Division Bench of the High
Court however, dismissed the writ
petition holding that no objection
was taken before the Summary Court
Martial that the appellant was not
allowed to be represented by his
counsel, that no objection was taken
as to the competence of the Commanding
Officer to act as a Judge
in the Summary Court Martial, that
the appellant had earlier been convicted
four times and entries were
made in red ink in his service record,
and that as the appellant was absent
from duty without leave and pleaded
guilty before the court martial proceedings,
there was as such no illegality
in the order of dismissal made
in the court martial proceedings.
Dismissing the Appeal,
HELD: 1. Four kinds of courts
martial are specified in Section 108
of the Army Act, 1950. These
are:(a) General Courts Martial; (b)
District Courts Martial; (c) Summary
General Courts Martial and (d)
Summary Courts Martial. [959G-H;
960A]
2. Section 116 of the Act says
that a summary court martial may
be held by the Commanding Officer
of any corps or department or detachment
of the regular Army, and
he shall alone constitute the court,
and that 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. It is only in the
case if general court martial or district
court martial that Rule 39(2)
of the Army Rules 1954 is applicable
and the Commanding Officer is
not competent to convene general or
district court martial. [960B,D]

3. In the instant case, the summary
court martial was held by the
Commanding Officer of the Corps,
Major P.S. Mahant and there were
two other officers Captain K.J. Singh
and another officer to attend the
proceedings. In such circumstances,
the summary court martial had been
convened by the Commanding Officer
according to the provisions of the
Army Act, 1950. [960C, E-F]
4. Section 39(a) of the Act specifies
that to be absent without leave
constitutes an offence, while Section
71(e) provides dismissal from service
as one of the punishments for such an
offence. [960F]
5. The appellant in the instant
case, undoubtedly absented himself
from duty without taking any leave
from the lines as required under the
Army Act, was charge-sheeted for
the said offence and tried by a summary
court martial convened by the
Commanding Officer. After giving
him due opportunity it was held that
the appellant was previously punished
also for the offence of absence
from duty on four occasions and
there was a red ink entry. Considering
all this, in the summary court
martial proceedings he was convicted
and sentenced to the punishment of
dismissal from service. The submission
on behalf of the appellant
that punishment is disproportionate
to the charge is wholly unsustainable.
As such the said order of dismissal
cannot be challenged as disproportionate
to the charge or as one
tainted with illegality. It is also evident
from the judgment of the High
Court that the appellant admitted
199
his guilt of absenting from duty without
any leave. [960G-H; 961A-B,F]
JUDGMENT:
CIVIL APPELLATE JURIS-
DICTION: Civil Appeal No. 2107
of 1987.
From the Judgment and Order
dated 3.3.1986 of the Delhi High
Court in Writ Petition No. 2503 of
1985. R.K. Garg and D.K. Garg for
the Appellant. M.S. Rao and C.V.
Subba Rao for the Respondents. The
Judgment of the Court was delivered
by RAY, J. Special leave granted.
Heard arguments of learned counsel
for the parties.
This appeal by special leave is
against the judgment and order
dated 3rd March, 1986 passed by the
High Court at Delhi dismissing the
writ petition No. 2503 of 1985. The
facts of the case in brief are that the
appellant was appointed to the post
of Craftsman (Jawan) on November
23, 1973. We was sent to 3 E.M.E.
Centre, Bhopal for training. After
completion of his two years’ training
he was posted to 80 EME Battalion
C/o 56. A.P.O. on July 25,
1975. The appellant in view of his
good service was promoted to the
post of Naik and subsequently he
was confirmed in that post. During
his service as Jawan and as a
Naik, the appellant served at various
places in the country including
the field area at Punj Sector in
Jammu & Kashmir. The appellant
was reverted from the post of Naik
to the post of Jawan (Craftsman)
by Lt. Col. G.S. Srivastava and
he was, thereafter, directed to re-

200 Vidya Prakash v. Union Of India 1988
port to NEFA. The appellant joined
his post in NEFA. However, the appellant
was subsequently transferred
and posted in Panagarh. One Major
N.K. Tiwari who was the Commanding
Officer of the said regiment
became very much displeased with
the appellant as he did not comply
with his directions to go to Kanpur to
bring his personal goods from Kanpur
to Panagarh. The appellant was
harassed and maltreated in various
ways. The appellant being unable to
bear the torture caused to him approached
Col. R.K. Mehta, Commanding
Officer, EME Depot Battalion,
Sikandrabad and surrendered to
the mercy of the said Colonel. The
Colonel advised the appellant to go
back to Panagarh and report to his
Unit. The appellant was sent with
the certificate of surrender. On his
return, the appellant was not permitted
to join his duty; but he was
taken into the custody immediately
and thereafter he was directed by
Major Tiwari to be treated without
leave for three days and should be
court martialled for the same. The
appellant was charge-sheeted for the
purpose and he was convicted to 42
days imprisonment in military custody.
During the period of his remaining
in military custody, he was
given only a small sum of Rs.60 and
as such his family had to suffer much
harassment. The appellant, however,
on 12th September, 1984 left Panagarh
with his wife and children for
Kanpur without taking any leave. It
is stated that he became unwell and
he was under the treatment of a doctor.
After coming round he reported
to Panagarh and reported in his Unit
with the fitness certificate. The
appellant was called by the Officer
Commanding and he was served with
a charge-sheet on November 2, 1984
wherein it was ordered by Major P.S.
Mahant that the appellant be tried
by a Summary Court Martial. It has
been alleged that Major Mahant appointed
his close associate Captain
K.J. Singh to record summary of evidence.
The appellant was not given
proper opportunity to defend himself.
In the proceedings the appellant
was not allowed to raise any objections.
On 9th November, 1984, the
order of dismissal from service of the
appellant was made by Major P.S.
Mahant, Commanding Officer, in the
summary court martial.
The appellant challenged this order
by a writ petition being Civil
Writ Petition No. 2503 of 1985
on the ground that the Commanding
Officer was not legally competent
to preside a summary court martial.
It was also stated in the petition
that the punishment of dismissal
from service was disproportionate to
the charge; he was denied a fair opportunity
to defend himself and was
in fact not permitted to ask questions
to the witnesses. The appellant
so prayed for issuance of an appropriate
writ for quashing the impugned
order of dismissal from service
and also for a direction to the
respondents to pay the entire arrears
of salary and allowances which are
legally due to him. The writ petition
was heard by a Division Bench
of the High Court at Delhi and it was

dismissed on March 3, 1986 holding
inter alia that no objection was taken
before the Summary Court Martial
that the appellant was not allowed
to be represented by his counsel. It
was also held that in the writ petition
no objection was taken as to the
competence of Major P.S. Mahant to
act as a Judge in the Summary Court
Martial nor objection was made to
the effect that Captain K.J. Singh ordered
him to keep his mouth shut. It
was also observed that besides Major
P.S. Mahant who was presiding
Summary Court Martial there were
two other members. The appellant,
it was held, had earlier been convicted
four times and entries were
made in the red ink. The appellant
was absent from duty without any
leave and he pleaded guilty before
the court martial proceedings and as
such there was no illegality in the order
of dismissal made in the court
martial proceedings.
It is against this judgment and
order, the impugned appeal on special
leave has been preferred before
this Court.
An affidavit in counter sworn by
one Capt. D.K. Ghosh on behalf of
the respondents has been filed. In
paragraph 4 of the said affidavit, it
has been submitted that Rule 39(2)
of the Army Rules deals with the disqualification
of officers for General
and District Courts Martial. The
said rule says that an officer is disqualified
for serving on a general or
district court martial if he is the
Commanding Officer of the accused.
The appellant has assailed the court
martial proceedings on the ground
201
that the Commanding Officer served
on the Court Martial and as such
the court martial proceedings are in
breach of Rule 39(2) of the Army
Rules, 1954. It has been further
stated that the appellant was tried
by a Summary Court Martial and
not by a General or District Court
Martial and Army Rule 39(2) does
not apply to Summary Court Martial
constituted under Section 116 of the
Army Act, 1950. It has been further
stated that a Summary Court Martial
may be held by a Commanding
Officer of any Corps, Department or
Detachment of the regular army, as
stipulated by Section 116(c) of the
Army Act. It has been submitted
that the appellant has been tried by
a Summary Court Martial and he
was sentenced to dismissal from service
on November 9, 1984. It has
also been stated that the proceedings
have been attended throughout by
two other persons in accordance with
the provisions of Section 116(1) of
the said Act. It has been averred that
in a case of Summary Court Martial
as per Section 116 of the said Act,
the Commanding Officer shall alone
constitute the Court. The proceedings
of the Court shall be attended
by two officers/JCOs or one of either.
It has been further stated that the
appellant incurred the following red
ink entries while serving with various
units prior to the summary court
martial:
(i) 14 days R.I. in military custody
under AA (Army Act) Sec.
39(a) on September 3, 1975 by 80
EME Bn.
(ii) 3 days R.I. in military cus-

202 Vidya Prakash v. Union Of India 1988
tody under A.A. Sec. 39(a) on 22nd
June, 1979 by 1 EME Centre. (iii)
Reduced to the rank under AA Sec.
63 on 24 January, 1983 by 174 Fd.
Regt.
(iv) 28 days R.I. and 14 days detention
in mil. custody under AA
Sec. 39(a) on 10th July, 1984 by 986
AD. Regt WKSP.
The appellant was issued a show
cause notice for discharge being unsuitable
inefficient soldier on 30th
August, 1984 to which he replied on
2nd September, 1984. The appellant
again became absent without leave
on 13th September, 1984. The appellant
did not inform the Unit authority
again of taking his family
to Kanpur. While leaving for Kanpur
he locked his quarter securely to
keep possession of the family accommodation.
The proceedings of the
summary court martial were in accordance
with the provisions of the
Army Act and the order of dismissal
from service of the appellant is a
valid order. A rejoinder was filed by
the appellant wherein he reiterated
that the order of dismissal passed
by the Commanding Officer, Major
P.S. Mahant was illegal and contrary
to the provisions of natural justice.
The charge- sheet was given to the
appellant by the aforesaid Major alleging
that the appellant remained
absent from 13th September, 1984
to 30.10.1984 without leave from the
Unit’s line and the said officer himself
made an order that the appellant
shall be tried by a summary court
martial on that day. The said officer
constituted the court of summary
court martial and himself presided
over the same. The order of dismissal
was passed in violation of the rules
of natural justice. It has also been
submitted that the conviction of the
appellant was in utter breach of Articles
14 and 21 of the Constitution
of India and as such the said order
was liable to be set aside.
The first submission on behalf of
the appellant is that the constitution
of the Summary Court Martial by the
Commanding Officer Major P.S. Mahant
is in contravention of Rule 39(2)
of the Army Rules, 1954. the relevant
provisions of Rules 39 are in the
following terms:
”Rule 39 ........
(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.” Rule 39(2)
provides that an officer who is the
Commanding Officer of the accused
or of the corps to which the accused

elongs or who is an officer who convened
the court or who is the prosecutor
or a witness for the prosecution
and who has a personal interest
in the case, is not eligible for serving
on a general or district Court Martial.
There are four kinds of court
martials specified in Section 108 of
the Army Act, 1959. These are: (a)
General Courts Martial;
(b) District Courts Martial
(c) Summary General Courts
Martial;
(d) Summary Courts Martial
Section 116 of the said Act says
that a summary court martial may
be held by the commanding officer of
any corps or department or detachment
of the regular Army, and he
shall alone constitute the court. It
further provides that 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. In the instant case
a summary court martial was held by
the Commanding Officer, Major P.S.
Mahant in accordance with the provisions
of Section 116 of the Army
Act. The Commanding Officer of the
Corps, Department of 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 ap-
203
pellant’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. Chapter 6 of
the Army Act specifies the offences
and also the punishments for such offences.
Section 39(a) specifies that
to be absent without leave constitutes
an offence and Section 71(e)
of the said Act provides dismissal
from service as one of the punishments
for such an offence. The appellant
undoubtedly absented himself
from duty without taking any
leave from the lines as required under
the Army Act. The appellant was
charge-sheeted for the said offence
and he was tried by a summary court
martial convened by the Commanding
Officer and after giving him due
opportunity it was held that the appellant
was previously punished also
for the offence of absence from duty
on four occasions and there was a red
ink entry. Considering all this in the
summary court martial proceedings
he was convicted and sentenced to
the punishment of dismissal from service.
The submission that the pun-

204 Vidya Prakash v. Union Of India 1988
ishment is disproportionate to charge
is wholly unsustainable. The summary
court martial constituted by
Major P.S. Mahant after considering
the evidences has found the appellant
guilty of the alleged charge and
awarded the said punishment in accordance
with the provisions of the
Army Act. As such the said order
of dismissal cannot be challenged as
disproportionate to the charge or as
one tainted with illegality.
It has been urged on behalf of
the appellant that he raised an objection
to Major P.S. Mahant to preside
over the summary court martial. It
has also been urged that at the time
of taking evidence of the witnesses,
the appellant was asked to keep his
mouth shut and as such the appellant
could not cross-examine the witnesses
examined on behalf of the
prosecution, thereby the principles of
natural justice have been violated. It
appears that the appellant has not
filed any objection before the summary
court martial objecting to the
presiding of the court martial proceedings
by Major P.S. Mahant nor
any such objection had been taken
in the writ petition moved before the
High Court. It is for the first time in
the appeal which the appellant filed
before the Chief of the Army Staff
(Competent Authority), Army Headquarters,
New Delhi that he raised an
objection to the presiding of Major
P.S. Mahant as Judge of the court
martial proceedings. It has been
rightly held by the High Court that
this is an after-thought and as such
this submission cannot be permitted
to be made by the appellant after
the court martial proceedings were
completed and the order of dismissal
from service was made. As regards
the other objection that he was directed
by Capt. K.J. Singh to keep
his mouth shut, it is also without any
substance in as much as it appears
from the summary of the evidences
recorded that the appellant in fact
cross-examined the prosecution witnesses.
It is also evident from the
judgment of the Delhi High Court
that the appellant admitted his guilt
of absenting from duty without taking
any leave. Considering all these
facts and circumstances, the judgment
and order passed by the High
Court of Delhi appears to us as unassailable.
We, therefore, dismiss the
appeal and affirm the judgment and
order of the High Court. There will
be no order as to costs.
N.V.K. Appeal dismissed.

Chapter 14
Lt Col K D Gupta v. Union
of India 1988
LT. COL. K.D. GUPTA v. pointed as a Second Lieutenant. He
UNION OF INDIA & ORS rose to the level of Lt. Colonel on
PETITIONER: LT. COL. K.D. 27th February, 1975. In March, 1976
GUPTA
he was directed to report to the Mil-
v.
RESPONDENT: UNION OF IN-
DIA & ORS
itary Hospital for his psychiatric examination,
where his medical classification
was reduced from shape-I
to shape-III, and he was posted as
DATE OF JUDGMENT20/04/1988GLO
and treated as Major. There
was however no specific order reducing
him in rank.
BENCH: MISRA RANGNATH
BENCH: MISRA RANGNATH
DUTT, M.M. (J)
CITATION: 1988 AIR 1178 1988
SCR (3) 646 1988 SCC Supl. 347 JT
1988 (2) 199 1988 SCALE (1)791
ACT: Army Act, 1950: Section
20, 191 and 192 and Special
Army Instruction No. 1 dated January
9, 1974 Army Officer- Subjected
to frequent medical examination-
Downgrading and upgrading between
shape-I and shape-III-Treated
to have been reduced in rank-
Whether justified?
HEADNOTE: The appellant was
granted a permanent Commission in
the Indian Army in 1958 and ap-
In December, 1976, appellants
Classification was upgraded to shape
II and in September, 1977 to shape-
I. But it was decided that he should
be subjected to special review before
restoration of his rank. In a
special report the Brigade Commander
recorded appreciation of the appellants
work, and recommended his
promotion as Lt. Colonel. But the
Army Headquarters directed the appellant
to the Military Hospital for
further examination on the ground
that an earlier incident of 1963 had
been overlooked when the appellant
was graded as shape-I. On this ex-

206 Lt Col K D Gupta v. Union of India 1988
amination, the appellant was permanently
downgraded as shape-II. In
1980, the appellant filed a writ petition
in this Court, challenging the
action of Army Headquarters and his
downgrading. This Court directed
that he should be restored to the
rank of Acting Lieutenant Colonel
from the date he was reverted and
that his claims to advancement, pay,
arrears of pay, etc. should be considered
and disposed of within six
months (See 1984 (1) SCC 153).
After lodging his claims, the appellant
waited for a reasonable time
and then filed a writ petition in the
High Court. The respondent contended
that there was nothing wrong
in the recategorisation and the directions
of the Supreme Court had been
fully complied with. The High Court
dismissed the writ petition.
In this appeal by special leave,
the appellant contended that a prejudicial
approach developed against
him in the Headquarters establishment
without any justification and
he had been unduly subjected to psychiatric
examination from time to
time, and on the basis of the records
built up against him adverse opinion
had been forthcoming which resulted
in recategorisation from shape-I to
shape-II. To remove the apprehension
of bias, this Court directed that
the appellant may be examined by
a Board consisting of three Experts
with an outsider as Chairman.
After considering the report of
the Experts Committee this Court
allowed the appeal in part and,
HELD: 1. The appellants medi-
cal category shall be taken as being
continued to be shape-I from 1977
and on that basis his promotional
entitlements shall be finalised by
the respondents within three months
hence. It is open to the respondents
to release the appellant from service
after this has been done. [655F] 2.
The report of the Expert Committee
makes it clear that there was no
justification for the appellant to be
subjected to psychiatric test in 1978
following which he was recategorised
as shape-II. [654G] 3. This subject
of categorisation on the basis of psychiatric
test is technical and should
ordinarily be left to experts available
in the Defence Department and the
guidelines indicated by the Department
should be followed. This Court
has no intention to disturb the discipline
of the Defence Department,
but on the basis of material available
on the record and on the basis
of the report of the Committee
of Experts, the appellant is entitled
to limited relief. Though there was
no order reducing him from the rank
of Acting Lieutenant Colonel to Major,
he was treated as having been
so reduced. Then followed the frequent
psychiatric examinations without
any real justification. This recategorisation,
in these circumstances,
was without any justification. [654H;
655A-B] [Reiterating that it would
like the discipline of the Defence Department
to be maintained by itself
in the interest of the nation, this
Court observed that this case may
not be taken as a precedent.] [655F-
G]
JUDGMENT: CIVIL APPEL-

LATE JURISDICTION: Civil Appeal
No. 1702 of 1987 from the Judgment
and order dated 31.3.1987 of
the Allahabad High Court in Civil
Misc. Writ Petition No. 5702
of 1985. Petitioner in-person (Lt.
Col. K.D. Gupta) Kuldeep Singh,
Additional Solicitor General, C.V.
Subba Rao and Pramod Swarup for
the Respondents. The Judgment of
the Court was delivered by RAN-
GANATH MISRA, J. This appeal
is by special leave and is directed
against the judgment of the Allahabad
High Court dismissing the
writ application of the appellant. He
was granted a permanent Commission
in the Indian Army in 1958
and was initially appointed as a Second
Lieutenant. He obtained successive
promotions to the ranks of
Lieutenant, Captain and Major. In
December, 1974, he was selected
for promotion to the rank of acting
Lt. Colonel and was so promoted
with effect from 27th February,
1975. From the following year,
the appellant came to face a series
of set backs in his service. On March
22, 1976, his Brigade Commander directed
the appellant to report to the
Officer Commanding, Military Hospital,
Kirkee for his psychiatric examination.
He was examined by
Lt. Colonel Mukherjee, specialist
in psychiatry on 23rd March, 1976
and by Surgeon Commodore Dnetto,
Psychiatry Consultant to the Indian
Navy on the 26th March, 1976. On
the basis of their reports, the appellants
medical classification was reduced
from Shape-I to Shape III by
order dated August 13, 1976. By order
dated November 16, 1976, the
207
appellant was posted as GLO (Major/Captain)
152, G.L. Sec. Type
Vice Captain I.K. Bedi, a post ordinarily
held by a Major or Captain.
Though there was no specific order
reducing the appellant in rank from
Acting Lt. Colonel to that of Major,
he was treated as Major. On December
10, 1976, appellants classification
was upgraded to Shape-II and on a
second medical review on September
2, 1977 to Shape-I. His authorities,
however, decided the appellant
to be subjected to Special Review before
restoration of the rank of Acting
Lt. Colonel and on October 31,
1977, required the Brigadier Commander
to initiate a special report
and submit it to the Headquarters.
The Brigade Commander recorded
appreciation of the appellants work
and recommended his promotion as
Lt. Colonel. Yet, the Army Headquarters
by letters dated October 12
and November 27, 1978, directed the
appellant to be sent to the Military
Hospital at Pune for further examination
by the psychiatry consultant.
It was indicated by way of justification
for such requirement that when
the appellant was graded as Shape
I, an earlier incident of 1963 had
been overlooked. On such examination
the appellant was permanently
downgraded as Shape II. The appellant
filed an application under Article
32 being Writ Petition No. 5302
of 1980 challenging these actions and
his downgrading. A two-Judge bench
of this Court by judgment dated August
10, 1983, allowed the same. This
Court stated: According to the petitioner,
this was done entirely without
any basis and that even the clin-

208 Lt Col K D Gupta v. Union of India 1988
ical reports would reveal that the
petitioner was perfectly fit. We do
not desire to go into these claims
of the petitioner since we are satisfied
on the material placed before us
that even the very reduction of the
petitioners rank in 1976 from Acting
Lieutenant Colonel to Major was
bad. Shri Abdul Khader, learned
counsel for the respondents explained
to us that the petitioner had been reverted
from the rank of Acting Lieutenant
Colonel to Major for three
reasons: (i) Reduction in rank had
to follow as a matter of course on
placement of the petitioner in a lower
medical category; (ii) After the latest
medical examination in 1978, he was
not eligible to be considered for promotion
for one year; his earlier reduction
in rank was, therefore, justified;
and (iii) He performed no duty for six
months from March 22, 1976 when
he was admitted in the hospital and
under the rules, he stood automatically
reduced in rank. This Court
examined all the three points and ultimately
ended by saying: As stated
by us earlier, we find no substance in
any one of the reasons mentioned by
Shri Abdul Khader on behalf of the
respondents for the reversion of the
petitioner from the rank of Acting
Lieutenant Colonel to Major. The
reversion or reduction in rank cannot
be justified and it is 650 accordingly
quashed. The petitioner is directed
to be re stored to the rank of Acting
Lieutenant Colonel with effect from
the date he was reverted and stripped
off the badges indicating his rank. As
a result of the restoration of the rank
of the Acting Lieutenant Colonel to
the petitioner, other consequences,
such as, consideration of the petitioners
further claims to advancement,
pay, arrears of pay, etc., will have to
be considered by the authority and
it is directed that these claims may
be considered and disposed of within
a period of six months from today.
The appellant waited for a reasonable
time after lodging his claim and
ultimately went before the Allahabad
High Court by filing an application
under Article 226 of the Constitution
being Writ Petition No. 5702
of 1985. Before the High Court he
asked for quashing of the proceedings
of the Review Medical Board dated
11th January, 1984, and for a declaration
that he should be treated as
belonging to medical category Shape-
I for all purposes without interruption
since 2nd September, 1977. He
also asked for an appropriate posting
considering his entitlement and
other service benefits. The claim was
resisted by the respondents on the
ground that there was nothing wrong
in the recategorisation and the directions
of the Supreme Court had
been fully complied with and the appellant
has no subsisting grievance.
On 31st March, 1987, the High Court
dismissed the petition. This appeal
has been filed after obtaining the special
leave. The appellant as on the
earlier occasion argued the appeal
in person and began his arguments
by contending that the respondents
were guilty of not giving effect to the
directions contained in the judgment
of this Court. When we heard the appellant,
we realised how very correct
the observation of Chinnappa Reddy,
J., where he re corded in the judgment
of this Court were: As usual

with parties, who argued their cases
themselves, he was so full of his facts
and grievances, big and small, that
we experienced, for quite a while, difficulty
in getting a picture of the case
in its proper frame. After the matter
was heard at length, we found
that there was absolutely no merit in
the contention of the appellant that
the respondents were guilty of not
complying with the directions of this
Court. Learned Additional Solicitor
General was, therefore, right in taking
the stand that full effect had been
given to the directions contained in
the judgment of this Court. We
would like to recall here that there
were several other contentions made
in the writ petition which this Court
did not go into by saying that even
without considering them the appellant
was entitled to his relief. The
appellant had moved this Court on
the earlier occasion under Article 32
of the Constitution but on this occasion
he went before the High Court
under Article 226. Some of his allegations
had already been made in the
writ petition before this Court and
others related to subsequent events.
It is unnecessary to go into several
aspects which the appellant in his
anxiety had pleaded and even canvassed
at the hearing. It is sufficient
to indicate that the main grievance of
the appellant has been against recategorisation
from Shape-I to Shape-
II. We have already pointed out that
the appellant enjoyed Shape-I until
1976 when he was reduced to Shape-
3 in August 1976. In 1977, he was
brought back to Shape-I. According
to the appellant, there was absolutely
no justification for the direc-
209
tion made in March, 1976 to subject
the appellant for psychiatric examination.
Similarly when the appellant
had been recategorised in September,
1977, as Shape-I, there was no necessity
to require him to be subjected
to further examination at Pune. He
denied the allegation that the incident
of 1963 had not been taken
into account while recategorising him
as Shape-I. According to the appellant,
a prejudicial approach developed
against him in the Headquarters
establishment without any justification
and he has been unduly
subjected to psychiatric examination
from time to time and on the basis
of the records built up against
him, adverse opinion has been forthcoming.
To meet this objection of
the appellant and remove apprehension
of bias from his mind, in course
of hearing, we suggested to learned
Additional Solicitor General appearing
on behalf of the respondents that
the appellant may be examined by a
board consisting of three experts specially
constituted with an outsider
as Chairman. Respondents learned
counsel after obtaining instructions
accepted the suggestion. By order
made on January 25, 1988, this
Court directed: In course of hearing
of the appeal, we suggested to
learned Additional Solicitor General
appearing on behalf of the respondent
to have a fresh psychiatric evaluation
of the appellant by a competent
body of psychiatrists by including
in the board some in-service and
retired Army psychiatrists and some
from outside. This was initially opposed
by learned Additional Solicitor
General by contending that it

210 Lt Col K D Gupta v. Union of India 1988
would be against the discipline of the
Defence Department and would create
in unwholesome precedent. We
adjourned the matter and gave him
the opportunity to take instructions
from Government and we are happy
to note that on the basis of instructions,
he has agreed. as a special
case, to the constitution of such a
board of psychiatrists. Appellant has
also been heard in person in the matter.
He has made writ submissions
by way of an application we have
taken into consideration. We direct
that a board of psychiatrists consisting
of three experts be constituted
with the Professor and Head of the
Psychiatrist wing of the All India
Institute of Medical Sciences, New
Delhi, Air Com. K. Sethi Consultant
of the Army Hospital at Delhi
and Colonel M.A. Bhasin, Senior Advisor
in Psychiatry, Southern Command
Hospital, Pune. The Head of
the Department of the All India Institute
of Medical Sciences, as referred
to above, shall act as the convenor
and chairman of the Board.
The Board shall meet at Delhi at
such place, date and time as may be
fixed by the convenor in consultation
with the two other members. The
Board shall peruse all the records
relevant for the purpose of making
psychiatric evaluation of the appellant
and the respondents shall produce
all such records as may be necessary
and required for such purpose
by the Board including the relevant
instructions of the Defence Department
in the matter of such assessment.
The appellant shall appear before
the Board when directed and the
respondents shall take steps to en-
sure his availability before the Board.
The report should be made available
to this Court within six weeks from
today. The expenses including payment,
if any, necessary to be made
to any of the experts shall be borne
by respondent No. 1. The evaluation
shall inter alia indicate whether there
was any justification to categorise the
appellant as Shape-II after he had
been adjudged as Shape-I and as to
whether the present categorisation
as Shape-II permanent is justified.
We place on record that this shall
not be treated as a precedent. The
Board sent its report dated March 8,
1988, after examining the appellant
between 22nd February, 1988 and 8th
March, 1988. It evolved the following
procedure: 653 (a) Each of the
experts to examine the patient, independently
at least twice. (b) Each
expert to maintain his own observations.
(c) Daily observations reports
of the patient to be recorded by the
Senior Resident Psychiatry. (d) Psychometeric
evaluation (e) Perusal of
old records of hospitalisation by the
three consultants, after the current
examination. (f) Maintenance of
confidentiality of observation by the
experts, Sr. Resident and the Psychologist.
(g) Review of the unit reports
after current examination. (h)
Joint review and report by the board
on 7th and 8th March, after examining
all the material collected above.
In paragraph 5 of the Reports the
Board observed. (a) During September
1977, when he was recommended
to be upgraded to medical category
S-I Lt. Col. K.D. Gupta was a
symptomatic as per the medical histories
examined by the board. The

old medical records do not show any
evidence of a psychiatric disorders
between September 1977, when he
was upgraded to S-I and the review
board which took place in November
1978 following which he was recategorised
to permanent S-II as per
the opinion of that review board on
the ground that a relapse could occur
in future. (b) The current A043/78
and DG Memorandum 97 (extract
attached as appendics A & B), precludes
such an individual to be upgraded
from medical category S-II to
S-I. (c) The natural history of affective
psychosis (MDP) ICD 9, is
strongly supported of the fact that
relapse without 654 any precipitating
cause and remission without any
medical intervention can take place.
We felt that certain elucidation was
necessary and requested the presence
of the Chairman Professor Mohan
in Court. Prof. Mohan appeared
in due course and with reference to
what was stated in paragraph 5(a),
he stated: We were of the view that
there was no material in the Medical
reports justifying the recategorisation
to S-II from S-I apart from apprehensions
of relapse. In answer to a
question posed by learned Additional
Solicitor General, Dr. Mohan stated:
During September 1977, when he was
recommen- ded to be upgraded to
medical category S-I Lt. Colonel
K.D. Gupta was a symptomatic as
per the medical histories examined
by the board. We meant that there
was no record in the history of medical
papers to suggest that Lt. Col.
Gupta was unwell. Upon the suggestion
of the learned Additional Solicitor
General, Dr. Mohan was asked
211
as to whether he was of the view that
the appellant was at the time of the
present examination entitled to be
categorised as S-I and he answered.
If you take the natural history of the
illness, it is difficult to say one way or
the other, because it is self limiting
and phasic and after the phase is over
there is no residual deficit left. The
individual is as normal as anybody
else is. The period between attacks
varies from one individual to another
from months to year . The report and
the statement made by Professor Mohan
make it clear that there was no
justification for the appellant to be
subjected to phychiatric test in 1978
following which he was recategorised
as S-II. We agree with the learned
Additional Solicitor General that the
subject is technical and ordinarily
should be left to experts available
in the Defence Department and the
guidelines indicated by the Department
should be followed. This Court
has no intention to disturb the discipline
of the Defence Department but
on the basis of material 655 available
on the record which had been partly
dealt with by this Court on the earlier
occasion while disposing of the
writ petition, and what we have now
found on the basis of the report of examination
by the Committee of Experts
the appellant has become entitled
to limited relief. Though there
was no order reducing him from the
rank of acting Lieutenent Colonel to
Major, he was treated to have been
so reduced. Then followed the frequent
psychiatric examinations without
any real justification. These have
constituted the foundation of the appellants
grievance. His recategori-

212 Lt Col K D Gupta v. Union of India 1988
sation as S-II in 1978, in these circumstances,
was without justification.
He is, therefore, entitled to a
reconsideration of his claim for promotion
on the basis of his medical
categorisation continuing as S-I. In a
petition dated 2nd April, 1988, the
appellant had asked for certain directions
and reliefs. The application is
confused one inasmuch as arguments,
pleadings and prayers have been jumbled
up. The appellant, inter alia,
has asked for entitlements of promotion
in view of promotions earned by
his batchmates. We do not think
that would be a safe guide but we do
hope and trust that the respondents
should consider his case for promotion
with an open mind on the basis
of his continuity in shape-I. He
has also indicated in paragraph 8 of
that petition that he is prepared to
be released from service after his pro-
motional entilement is finalised and
he is given his dues on such basis as
may be determined. The appellant
has claimed compensation which we
see no basis to grant. The appeal
is allowed in part and to the extent
that the appellants medical category
shall be taken as being continued to
be S-I from 1977 and on that basis
his promotional entitlement shall be
finalised by the respondents within
three months hence. We make it
clear that it is open to the respondents
to release the appellant from
service after this has been done. This
case may not be taken as a precedent
and we reiterate that this Court
would like the discipline of the Defence
Department to be maintained
by itself in the interest of the nation
Parties are directed to bear their own
costs. G.N. Appeal partly allowed.

Chapter 15
Lt Col K.D. Gupta v. Union
of India 1989
Lt. Colonel K.D. Gupta v. Union
of India & Ors [1989] INSC 112 (31
March 1989)
Misra Rangnath Misra Rangnath
Dutt, M.M. (J)
CITATION: 1989 AIR 2071 1989
SCC (3) 566 JT 1989 (3) 283 1989
SCALE (2)174
ACT:
Army Act, 1964: Defence
Services–Promotion–Unlike other
government servants, requisite
experience, consequent exposure
and appropriate review by authorities,
indispensable–Individual
capacity and special qualities–
Basis for assessment–Lower medical
categorisation–Effect of for
purposes of promotion–Grant of
compensation–Relevant factors–
Considerations thereof.
HEAD NOTE:
The appellant has filed a contempt
petition against the Respondents,
alleging that the directions
dated 20.4.1988 of this Court, have
not been complied with.
The Respondents were directed
to reconsider the case of the appellant
for promotion on the basis that
his medical category continues to be
S-I from 1977, and that the medical
category would be taken into account
if the rules for promotion so
require; otherwise not. It was also directed
that the consideration of promotion
would be completed within
four weeks; (See 1988(3) SCR 646).
On behalf of the respondents, it
was stated that the promotional entitlements
of the petitioner had been
finalised as per the directions of the
Court, after re-examining the petitioner’s
case for promotion within
the specified time and since there was
no failure to comply with the directions,
no contempt had been committed.
It was also submitted that
the petitioner’s medical categorisation
has nothing to do with the refusal
to promote him.
Disposing of the petition,
HELD: 1. The judgment of this

214 Lt Col K.D. Gupta v. Union of India 1989
Court did clearly proceed on the
footing that the lower medical categorisation
prejudiced the petitioner
in the matter of obtaining appropriate
promotions. For the first time,
the respondents have taken the stand
in the contempt proceeding that the
lower categor- isation has nothing to
do with the refusal to accord promotion
to the petitioner. The plea
now advanced cannot therefore be
accepted. [377E-F] 371
2. The .defence services have
their own peculiarities and special
requirements. The considerations
which apply to other government servants
in the matter of promotion cannot
as a matter of course be applied
to defence personnel of the petitioner’s
category and rank. Requisite
experience, conse- quent exposer
and appropriate review are indispensable
for according promotion,
and the petitioner, therefore cannot
be given promotions as claimed by
him on the basis that his batch-mates
have earned such promotions. Individual
capacity and special qualities
on the basis of assessment have to
be found but in the case of the petitioner
these are not available. [377G-
H; 378A-B]
3.1 As regards compensation, the
petitioner advanced tail claims by
contending that he has suffered physical
and mental torture, loss of reputation
and of social acceptance and
financial loss. What promotions
the petitioner would otherwise have
earned would be a matter of speculation
and cannot be ascertained at
this stage for lack of appropriate decisive
criteria. His grievance that he
suffered in dignity and humiliation as
a result of being looked down upon
by his batch-mates, friends and relatives,
has perhaps been sufficiently
met by the appellate judgment which
has declared that his lower medical
categorisation was unjustified and
the petitioner continued to be Shape-
I without break from 1977. [368E-G]
3.2 The defence personnel have
peculiar incidence of service. Life’s
course does not run smoothly for everyone.
Some relevant factors to be considered
for award of compensation
are the duration of time for which
the petitioner was subjected to various
medical checks and hospitalisation,
and the consequent suffering
which he underwent, the loss of promotional
prospects and the fact that
he would now be obliged to request to
be released from service prematurely.
A total compensation of RS.4
lakhs would meet the ends of justice.
The petitioner would not be
entitled to any other claim on these
heads, but he would be entitled to all
other service benefits which an officer
of the Lt. Colonel’s rank would
be entitled to hold. [378G-H; 379A-
B] Major K.D. Gupta v. Union of
India, [1984] 1 S.C.C. 153 and Lt.
Col. K.D. Gupta, v. Union of India,
[1988] 3 SCR 646. referred to.
This Court directed that the
amount of Rs.4 lakhs be paid to the
petitioner within 2 months and the
petitioner may be released from the
defence service in accordance with
any decision that might be taken on
his request for such release. [379C-D]

372
CIVIL APPELLATE JURIS-
DICTION: Civil Misc. Petition No.
20065 of 1988.
In Civil Appeal No. 1702 of 1987.
From the Judgment and Order
dated 31.3.1987 of the Allahabad
High Court in C.M.W.P. No. 5702
of 1985.
Petitioner-in-person.
G. Ramaswamy, Additional Solicitor
General, C.V.S. Rao and A.K.
Srivastava for the Respondents.
The Judgment of the Court was
delivered by RANGANATH MISRA,
J. Petitioner, a Lt. Colonel in the
Indian Army, has filed this application
for taking contempt proceeding
against the respondents on the allegation
that the directions contained
in the judgment of this Court, dated
20th April, 1988, in Civil Appeal No.
1702 of 1987 have not been complied
with. This Court in the Civil Appeal
found that the petitioner was entitled
to a reconsideration of his claim for
promotion on the basis of his medical
categorisation continuing as S-I and
directed:
”The appeal is allowed in part
and to the extent that the appellant’s
medical category shall be taken as
being continued to be S-I from 1977
and on that basis his promotional
entitlement shall be finalised by
the respondents within three months
hence.” After this Court’s decision,
by a letter dated 17th of June, 1988,
the respondents informed the petitioner
to the following effect:
”In this connection, I have been
215
directed to inform you that your case
has been reexamined in the light of
the judgment of the Supreme Court
of India dated 20th April, 1988.
It may kindly be recalled that
acting rank of Lt. Col. was granted
to you with your original seniority
based on the earlier directions of the
Hon’ble Court. Substantive 373 rank
of Lt. Col. was also granted to you
along with your batch-mates. Consequent
to the Supreme Court’s judgment
dated th August, 1983, your
case for promotion to the rank of
A/Colonel was considered on three
occasions viz., July 86, April 87,
November 87 and rejected on all the
three occasions based on your overall
performance and merit of your batch.
Your medical category was not taken
into consideration as per the laid
down procedure. Therefore, upgradation
of your medical category from
Shape-2 to Shape-I by the Supreme
Court vide their orders dated 20th
April, 1988, does not warrant reconsideration
of your case for promotion
because your medical category
had not affected your case for promotion
to the rank of A/Colonel on
any occasion. You failed to make
the grade for promotion not on the
basis of your medical category but
on the basis of your overall performance
and merit of your batch ”
Upon notice in this miscellaneous
proceeding a counter affidavit was
filed on behalf of the respondents
stating that the petition was misconceived
and he was not entitled to any
relief as claimed. It was stated that
the promotional entitlements of the
petitioner had been finalised as per

216 Lt Col K.D. Gupta v. Union of India 1989
the directions of this Court after reexamining
the petitioner’s case for
promotion within the specified time
and as there was no failure to comply
with the directions, no contempt
had been committed. The counteraffidavit
proceeded to state:
”As per the selection procedure
explained in the proceeding paragraphs,
the medical category of Lt.
Col. K.D. Gupta was not taken into
cognizance. On receipt of the directions
of the Supreme Court dated
20th April, 1988, Lt. Cot. Gupta’s
case for promotion was reexamined.
Since the Hon’ble Court had given
no such directions to the effect that
the case of Lt. Col. Gupta shall
be placed before the Selection Board
and has only directed that the petitioner’s
promotional entitlements be
finalised in view of his continued
medical category in Shape-I since
1977, his case was reexamined and
finalised and the same was intimated
to him vide our letter dated 17th
June, 1988”.
The record of consideration for
promotion of the petitioner at the
various stages by the Board was directed
to be produced before the
Court. In a further affidavit on
behalf of the respondents, Col.
Bharucha stated that:
”By letter dated 26.5. 1988, the
Military Secretary observed as under:
The Officer was considered by
No. 3 Selection Board for promotion
to the acting rank of Colonel and
awarded the following:
(a) ’R’ (Unfit) in July 1986 with
ACR 84/85 (b) ’R’ (Unfit) in April,
1987 with ACR 6/85 to 2/86.
(c) ’R’ (Unfit) in November, 1987
with ACR 6/86 to 5/87
The Officer has been finally superseded
for promotion to the rank
of acting Colonel based on his overall
profile and his medical category
was not taken into account during
the above three considerations. However,
the officer has been granted the
substantive rank of Lt. Colonel w.e.f.
01 August, 1979 vide Gazette Notification
No. 1774/87 dated 19th
September, 1987.
Therefore, no further action is
required by the department in pursuance
of the judgment of this
Hon’ble Court dated 20.4.1988.” ”I
state that the petitioner had addressed
a demi official letter dated
02.5.1988 to the Chief of Army Staff
in this regard. The Chief of Army
Staff called for the details of the case
of the petitioner and the same were
placed before the Chief of Army Staff
on 03.6.1988. The Chief of Army
Staff after considering the note put
up to him, directed the office to intimate
the petitioner accordingly. By
letter dated 17.6.1983, the office has
informed the petitioner, a copy of
which is enclosed herewith. It is,
therefore, humbly submitted that the
case of the petitioner was considered
after the judgment of this Hon’ble
Court dated 20th April, 1988 by the
Military Secretary of the rank of Lt.
General and it was found that it is
not neces- sary to send him for selection
board as he was already found
unfit without reference to his medical
certificate Shape-II”.

On 24th of January, 1989, this
Court made the following order:
”After carefully considering the
matter, we direct the respondents to
reconsider the case of the appellant
for promotion on the basis that his
medical category continues to be S-I
from 1977. The medical category will
be taken into account if the rules for
promotion so require, otherwise not.
The consideration of promotion will
be completed within four weeks from
today ...... ” We have been informed
that the petitioner’s case was considered
on the basis of record and he was
not found fit for any promotion.
It is relevant to notice at this
stage that the petitioner had come
before this Court on an earlier occasion
by filing writ petition No. 5302
of 1980 which was disposed of on August
10, 1983 (1984 1 SCC 153). This
Court in its judgment indicated:
”Shri Abdul Khader, learned
counsel for the respondents explained
to us that the petitioner had been reverted
from the rank of Acting Lt.
Colonel to Major for three reasons:
(i) Reduction in rank had to follow
as a matter of course on placement
of the petitioner in a lower medical
category;
(ii) After the latest medical examination
in 1978, he was not eligible
to be considered for promotion
for one year; his earlier reduction in
rank was, therefore, justified; and
(iii) He performed no duty for six
months from March 22, 1976 when he
was admitted in the hospital and under
the rules, he stood automatically
reduced in rank.
217
We find no substance in any of
the reasons mentioned by Shri Abdul
Khader. Shri Khader was unable
to draw our attention to any rule, order
or circular which prescribed that
reduction in rank should inevitably
follow on placement of an officer in
a lower medical category. In fact it
was conceded by Shri Khader that an
officer whose medical classification is
downgraded, will not be reduced in
rank on that account, but will continue
to hold the same rank as 376
before. We are, therefore, unable to
understand why the petitioner had
to be reduced in rank because subsequent
to his promotion, his medical
classification was downgraded. The
second reason given by Shri Khader
that the petitioner would not be eligible
to be promoted for a year after
the latest medical examination
and, therefore, his earlier reduction
in rank was justified, is only to be
stated as rejected. When the petitioner
was promoted, he satisfied all
the requirements including that of
medical categorisation, if any.. We
find it impossible to agree with the
proposition that since he would be
ineligible to be promoted today, he
could not have been promoted yesterday
when he satisfied all the requirements.
The reason really pressed before
us was the third reason, namely, that
the petitioner had not performed any
duty for six months and, therefore,
he had to be reduced in rank in accordance
with paragraph 5 of Special
Army Instruction No. 1 dated January
9, 1974. We do not propose to
examine the question whether Spe-

218 Lt Col K.D. Gupta v. Union of India 1989
cial Army Instruction No. 1 authorises
a reduction in rank for failure
to rejoin duties for more than
six months since that appears to be
the case of the petitioner also.” The
counter-affidavit filed in the writ petition
and the submissions of counsel
advanced at the hearing thereof
clearly indicate that the medical category
of the petitioner was connected
with his entitlement to promotion.
In fact in the civil appeal itself the
petitioner’s claim for promotion to
higher ranks, keeping the promotions
accorded to his batch-mates in view,
was challenged on the basis of the
petitioner’s lower medical category.
In the affidavits filed in the civil
appeal the respondents never took
the stand that entitlement to promotion
as claimed by the petitioner
had nothing to do with the state of
his health physical and mental. If
that stand had been adopted, this
Court would certainly have gone into
that question before directing the petitioner’s
case to be reexamined by
a Special Board of Psychiatrists, on
the basis of whose report, the petitioner
was allowed to be continued in
shape-I from 1977 without any break.
It is not disputed that the petitioner
had in the second round of the litigation
mainly pressed for his promotion
by contending that his medical
categorisation was vitiated. Counsel
for the respondents at no stage
during the hearing of the appeal advanced
the contention that the claim
for promotion was not, in any manner,
connected with the medical category
of the petitioner. That is why
this Court in its judgment stated:
” ..... on the basis of material
available on the record which
had been partly dealt with by this
Court on the earlier occasion while
disposing of the writ petition, and
what we have now found on the basis
of the result of examination by
the Committee of Experts the appellant
has become entitled to limited
relief. Though there was no
order reducing him from the rank
of acting Lt.Colonel to Major, he
was treated to have been so reduced.
Then followed the frequent psychiatric
examinations without any real
justification. These have constituted
the foundation of the appellant’s
grievance. His recategorisation as S-
II in 1978, in these circumstances,
was without justification. He is,
therefore, entitled to a reconsideration
of his claim for promotion on
the basis of his medical categorisation
continuing as S-I.” ”The appellant,
inter alia, has asked for entitlement
to promotion in view of promotions
earned by his batchmates.
We do not think that would be a
safe guide but we do hope and trust
that the respondents would consider
his case for promotion with an open
mind on the basis of his continuity
in Shape- I.” The judgment of
this Court did clearly proceed on the
footing that the lower medical categorisation
prejudiced the petitioner
in the matter of obtaining appropriate
promotions. For the first time,
the respondents have taken the stand
in the contempt proceeding that the
lower categorisation has nothing to
do with the refusal to accord promotion
to the petitioner. In the circumstances
indicated above, the plea

now advanced cannot be accepted.
In fact, Mr. Ramaswamy, Additional
Solicitor General, appearing
for the respondents being cognizant
of this situation stated to us during
the hearing of this application that
the petitioner has justification to feel
aggrieved.
The respondents have maintained
that the petitioner has not served in
the appropriate grades for the requisite
period and has not possessed
the necessary experience and training
and consequential assessment of
ability which are a precondition for
promotion. The defence services
have their own peculiarities and special
requirements. The considerations
which apply to other government
servants in the matter of promotion
cannot as a matter of course
be applied to defence personnel of the
petitioner’s category and rank.
Requisite experience, consequent
exposer and appropriate review are
indispensable for according promotion
and the petitioner, therefore,
cannot be given promotions as
claimed by him on the basis that his
batch-mates have earned such promotions.
Individual capacity and
special qualities on the basis of assessment
have to be found but in the
case of the petitioner these are not
available. We find force in the stand
of the respondents and do not accept
the petitioner’s contention that
he can be granted promotion to the
higher ranks as claimed by him by
adopting the promotions obtained by
his batch-mates as the measure.
In the appellate judgment, this
Court said:
219
”He has also indicated in paragraph
8 of that petition that he is
prepared to be released from service
after his promotional entitlements
are finalised and is given his
dues on such basis as may be determined.
The appellant has claimed
compensation which we see no basis
to grant”.
The petitioner also told us in
course of the hearing of this case that
even if he is not accorded promotions
as claimed by him, he should suitably
be compensated and thereafter
he should be released from the Army
on the basis of voluntary retirement.
The respondents have also indicated
that his retirement is being processed
separately.
The question for consideration
now is as to how the petitioner has
to be compensated and what should
be its measure. The petitioner has, of
course, advanced tall claims by contending
that he has suffered physical
and mental torture, loss of reputation
and of social acceptance and
financial loss. What promotions
the petitioner would otherwise have
earned would be a matter of speculation
and cannot be ascertained at
this stage for lack of appropriate decisive
criteria. His grievance that he
suffered in dignity and humiliation as
a result of being looked down upon
by his batch-mates, friends and relatives
has perhaps been sufficiently
met by the appellate judgment which
has declared that his lower medical
categorisation was unjustified and
the petitioner continued to be Shape-
I without break from 1977.
The defence personnel have pecu-

220 Lt Col K.D. Gupta v. Union of India 1989
liar incidence of service. Life’s course
does not run smoothly for everyone.
In the present proceeding which is
for contempt, we do not think that
we can award compensation under
every head of claim. Some of factors
relevant for such purpose are the
duration of time for which the petitioner
was subjected to various medical
checks and hospitalisation, and
the consequent suffering which he
underwent, the loss of promotional
prospects and the fact that he would
now be obliged to request to be released
from service prematurely. We
are of the view that a total compensation
of Rs. four lakhs would meet
the ends of justice. This would obviously
mean that the petitioner would
not be entitled to any other claim on
these heads but we make it clear that
he would be entitled to all other service
benefits which an officer of the
Lt. Colonel’s rank, which the petitioner
admittedly holds, would be
entitled to.
This judgment should serve the
petitioner in vindication of his stand
and to dispel clouds cast on his physical
and mental health by the purported
lower medical characterisation
and obviously in the event of his
being considered for reemployment
after retirement his suitability would
be considered on the basis of his service
records and the judgment of this
Court.
We direct that the amount of Rs.
four lakhs be paid to the petitioner
within two months and the petitioner
may be released from the defence service
in accordance with any decision
that may be taken on his request for
such release.
The contempt proceeding is disposed
of with these directions and no
order as to costs.
G.N. Petition disposed of.

Chapter 16
S N Mukherjee v. Union Of
India 1990
S.N. Mukherjee v. Union Of India
on 28 August, 1990 Equivalent
citations: 1990 AIR 1984, 1990 SCR
Supl. (1) 44
Bench: Agrawal, S.C.
PETITIONER:
S.N. MUKHERJEE
v.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT28/08/1990
BENCH:
AGRAWAL, S.C. (J)
BENCH:
AGRAWAL, S.C. (J)
MUKHARJI, SABYASACHI
(CJ)
KANIA, M.H.
SHETTY, K.J. (J)
SAIKIA, K.N. (J)
CITATION:
1990 AIR 1984 1990 SCR Supl.
(1) 44
1990 SCC (4) 594 JT 1990 (3) 630
1990 SCALE (2)383
CITATOR INFO :
RF 1991 SC 564 (6)
R 1992 SC1256 (7,9,11,14)
ACT:
Army Act 1950: Section
164–Court Martial–Post confirmation
petition–Central Government–
Whether bound to give reasons.
HEADNOTE:
The Appellant was officiating as
a Major though he held a substantive
rank of Captain as a permanent
Commissioned Officer of the army
when on December 27, 1974 he took
over as the Officer Commanding 38
Coy. A.S.C. (Sup) Type ’A’ attached
to the Military Hospital, Jhansi. In
August, 1975 the Appellant went
to attend a training course and returned
in the first week of November.
1975. In his absence Captain
G.C. Chhabra was commanding the
unit of the appellant and he submitted
a Contingent Bill dated Septem-

222 S N Mukherjee v. Union Of India 1990
ber 25, 1975 for Rs.16,280 for winter
liveries of the depot civilian chowkidars
and sweepers. The said Bill
was returned by the Controller of
Defence Accounts (CDA) with certain
objections. Thereupon the appellant
submitted a fresh contingent
Bill dated December 25, 1975 for a
sum of Rs.7,029.57. In view of the
wide difference in the two Contingent
Bills, the CDA reported the matter
to the Headquarters for investigation
and a Court Enquiry blamed
the appellant for certain lapses. After
considering the said report of the
Court of Enquiry the General Officer
Commanding, M.P., Bihar and
Orissa recommended that ’severe displeasure’
(to be recorded) of the General
Officer Commanding-in-Chief of
the Central Command be awarded to
the appellant. The General Officer
Commanding-in-Chief Central Command,
however. did not agree with
the said opinion and by order dated
August 26, 1977 directed that disciplinary
action be taken against the
appellant for the lapses.
Pursuant to the said order a
charge sheet dated July 20, 1978 containing
three charges was served on
the appellant and it was directed that
he be tried by General Court Martial.
The first charge was, doing of a thing
with intent to defraud under section
52(f) of the Act. The second charge
was alternative to the first charge
i.e. committing an act prejudicial
to good order and military discipline
under section 63 of the Act and the
third charge was also in respect of
offence under section 63 of the Act.
’the appellant pleaded not guilty to
the charges. The General Court
Martial on November 29, 1978 found
him guilty of first and third charge
and awarded the sentence of dismissal
from service. Thereupon the
appellant submitted petition dated
December 18, 1978 to the Chief of
Army Staff praying that the findings
of the General Court Martial be not
confirmed. The Chief of the Army
Staff by his order dated May 11,
1979 confirmed the findings and sentence
of the General Court Martial.
The appellant thereafter submitted a
post-confirmation petition under section
164(2) of the Act. This was rejected
by the Central Government by
order dated May 6, 1980. Thereupon
the appellant filed a writ petition in
the High Court of Delhi which was
dismissed in limine. Hence this appeal
by special leave directed to be
heard by the Constitution Bench for
the reason that it involves the question
as to whether it was incumbent
for the Chief of the Army Staff, while
confirming the findings and sentence
of the General Court Martial and for
the Central Government while rejecting
the post-confirmation petition of
the appellant to record their reasons
for the orders passed by them.
Dismissing the appeal, this
Court,
HELD: The requirement that
reasons be recorded should govern
the decisions of an administrative authority
exercising quasi-judicial functions
irrespective of the fact whether
the decision is subject to appeal, revision
or judicial review. It may,
however, be added that it is not required
that the reasons should be

as elaborate as in the decision of a
Court of law. The extent and nature
of the reasons would depend on
particular facts and circumstances.
What is necessary is that the reasons
are clear and explicit so as to indicate
that the authority has given due
consideration to the points in controversy.
[62H; 63A-B]
The need for recording of reasons
is greater in a case where the order
is passed at the original stage. The
appellate or revisional authority, if it
affirms such an order, need not give
separate reasons if the appellate or
revisional authority agrees with the
reasons contained in the order under
challenge. [63B]
Except in cases where the requirement
has been dispensed with
expressly or by necessary implication,
an administrative authority
exercising judicial or quasi-judicial
functions is required to record’ the
reasons for its decision.
The provisions contained in the
Army Act, 1950 and the Army Rules,
1954 negative a requirement to give
reasons for its findings and sentence
by a Court Martial and reasons are
not required to be recorded in cases
where the Court Martial makes a
recommendation to mercy. Similarly,
reasons are not required to be
recorded for an order passed by the
confirming authority confirming the
findings and sentence recorded by the
Court Martial as well as for the order
passed by the Central Government
dismissing the post-confirmation petition.
[70E-F]
Sub-section (1) of section 164 of
223
the Army Act enables a person aggrieved
by an order passed by a
Court Martial to present a petition
against the same. The expression
”order” under sub-section (1) does
not include a finding or sentence of
the Court Martial and in so far as
the finding and sentence of the Court
Martial is concerned the only remedy
that is available to a person aggrieved
by the same is under subsection
(2) of section 164 of the Army
Act and the said remedy can be invoked
only after the finding or sentence
has been confirmed by the confirming
authority and not before the
confirmation of the same. [72B; D-E]
Though a person aggrieved by the
finding or sentence of a Court Martial
has no right to make a representation
before the confirmation of
the same by the confirming authority,
but in case such a representation
is made by a person aggrieved by the
finding or sentence of a Court Martial
it is expected that the confirming
authority shall give due consideration
to the same while confirming
the finding and sentence of the Court
Martial. [72H; 73A]
Som Datt Datta v. Union of
India & Ors., [1969] 2 S.C.R. 177;
Bhagat Raja v. The Union of India
& Ors., [1967] 3 S.C.R. 302;
Mahabir Prasad Sanotsh Kumar v.
State of U.P. & Ors., [1971] 1 S.C.R.
201; Woolcombers of India Ltd. v.
Woolcombers Workers Union & Ant.,
[1974] I S.C.R. 503; Siemens Engineering
& Manufacturing Co. of India
Ltd. v. Union of India & Anr.,
[1976] Suppl. S.C.R. 489; Phelps
Dodge Corporation v. National

224 S N Mukherjee v. Union Of India 1990
Labour Relations Board, [1940] 85
Law Edn. 1271 at p. 1284; Securities
and Exchange Commission v.
Chenery Corporation, [1942] 87 Law
Ed. 626 at p. 636; John T. Dunlop
v. Waiter Bachewski, [1975] 44
Law Ed. 2 377; Regina v. Gaming
Board for Great Britain, Exparte Benaim
& Khaida, [1970] 2 Q.B. 417 at
p. 431; Mc Innes v. Onslow-Fane
& Anr., [1978] 1 W.I..R. 1520 at p.
1531; Breen v. Amalgamated Engineering
Union & Ors., [1971] 2 Q.B.
175; Alexander Machinery (Dudley)
Ltd. v. Crabtree, [1974] I.C.R.
120; Regina v. Immigration Appeal
Tribunal Ex Parte Khan (Mahmud),
[1983] Q.B. 790; Pure Spring Co.
Ltd. v. Minister of National Revenue,
47
[1947] 1 D.L.R. 501 at p. 539;
Re R.D.R. Construction Ltd. &
Rent Review Commission, [1983] 139
D.L.R. 3d. 168; Re Yarmouth Housing
Ltd. & Rent Review Commission,
[1983] 139 D.L.R. (3d). 544;
Osmond v. Public Service Board of
New South Wales, [1985] 3 NSWLR
447; Public Service Board of New
South Wales v. Osmond, [1986] 63
A.L.R. 559; M/s. Harinagar Sugar
Mills Ltd. v. Shyam Sundar Jhunjhunwala
& Ors., [1962] 2 S.C.R.
339; Madhya Pradesh Industries Ltd.
v. Union of India & Ors., [1966] 1
S.C.R. 466; Tranvancore Rayon Ltd.
v. Union of India, [1970] 3 S.C.R.
40; Tarachand Khatri v. Municipal
Corporation of Delhi & Ors., [1977] 2
S.C.R. 198; Raipur Development Authority
& Ors. v. M/s. Chokhamal
Contractors & Ors., [1989] 2 S.C.C.
721; A.K. Kraipak & Ors. v. Union
of India & Ors., [1970] 1 S.C.R. 457;
R. v. Deputy Industrial Injuries
Commissioner ex P. Moore, [1965] 1
Q.B. 456 and Mahon v. Air New
Zealand Ltd., [1984] A.C. 648, referred
to.
JUDGMENT:
CIVIL APPELLATE JURIS-
DICTION: Civil Appeal No. 417
of 1984.
From the Judgment and Order
dated 12.8.1981 of the Delhi High
Court in C.W.P. No. 1835 of 1981.
A.K. Ganguli, A. Sharan for the
Appellant.
Kapil Sibal, Additional Solicitor
General, Raju Ramachandran, Rajiv
Dhawan, C.V. Subba Rao and Mrs.
Sushma Suri for the Respondents.
T. Prasad for the Secretary, Ministry
of Defence. The Judgment of
the Court was delivered by
S.C. AGRAWAL, J. This appeal,
by special leave, is directed against
the order dated August 12, 1981,
passed by the High Court of Delhi
dismissing the writ petition filed by
the appellant. In the writ petition
the appellant had challenged the validity
of the finding and the sentence
recorded by the General Court Martial
on November 29, 1978, the order
dated May 11, 1979, passed by the
Chief of Army Staff confirming the
findings and the sentence recorded by
the General Court Martial and the
order dated May 6, 1980, passed by
the Central Government dismissing
the petition filed by the appellant under
Section 164(2) of the Army Act,
1950 (hereinafter referred to as ’the

Act’). 48
The appellant held a permanent
commission, as an officer, in the regular
army and was holding the substantive
rank of Captain. He was officiating
as a Major. On December
27, 1974, the appellant took over as
the Officer Commanding of 38 Coy.
ASC (Sup) Type ’A’ attached to the
Military Hospital, Jhansi. In August
1975, the appellant had gone to
attend a training course and he returned
in the first week of November
1975. In his absence Captain G.C.
Chhabra was the officer commanding
the unit of the appellant. During this
period Captain Chhabra submitted a
Contingent Bill dated September 25,
1975 for Rs.16,280 for winter liveries
of the depot civilian chowkidars
and sweepers. The said Contingent
Bill was returned by the Controller
of Defence Accounts (CDA) Meerut
with certain objections. Thereupon
the appellant submitted a fresh Contingent
Bill dated December 25, 1975
for a sum of Rs.7,029.57. In view of
the difference in the amounts mentioned
in the two Contingent Bills,
the CDA reported the matter to the
headquarters for investigation and a
Court of Enquiry blamed the appellant
for certain lapses.
The said report of the Court of
Enquiry was considered by the General
Officer Commanding, M.P., Bihar
and Orissa Area, who, on January
7, 1977 recommended that ’severe
displeasure’ (to be recorded) of
the General Officer Commanding-in-
Chief of the Central Command be
awarded to the appellant. The General
Officer Commanding-in-Chief.
225
Central Command did not agree with
the said opinion and by order dated
August 26, 1977, directed that disciplinary
action be taken against the
appellant for the lapses.
In view of the aforesaid order
passed by the General Officer
Commanding-in-Chief, Central
Command, a charge sheet dated July
20. 1978, containing three charges
was served on the appellant and it
was directed that he be tried by General
Court Martial. The first charge
was in respect of the offence under
Section 52(f) of the Act, i.e. doing
a thing with intent to defraud.
the second charge was alternative to
the first charge and was in respect
of offence under Section 63 of the
Act, i.e. committing an act prejudicial
to good order and military
discipline and the third charge was
also in respect of offence under Section
63 of the Act. The appellant
pleaded not guilty to the charges.
The prosecution examined 22 witnesses
to prove the charges. The
General Court Martial. on November
29, 1978, found the appellant
not guilty of the second charge but
found him guilty of the first and the
third charge and awarded the sentence
of dismissal from service. The
appellant submitted a petition dated
December 18, 1978, to the Chief of
Army Staff wherein he prayed that
the findings and the sentence of the
General Court Martial be not confirmed.
The findings and sentence
of the General Court Martial were
confirmed by the Chief of the Army
Staff by his order dated May 11,
1979. The appellant, thereafter, sub-

226 S N Mukherjee v. Union Of India 1990
mitted a post-confirmation petition
under Section 164(2) of the Act. The
said petition of the appellant was rejected
by the Central Government by
order dated May 6, 1980. The appellant
thereupon filed the writ petition
in the High Court of Delhi. The
said writ petition was dismissed, in
limine, by the High Court by order
dated August 12, 1981. The appellant
approached this Court for grant
of special leave to appeal against the
said order of the Delhi High Court.
By order dated January 24, 1984,
special leave to appeal was granted
by this Court. By the said order it
was directed that the appeal be listed
for final hearing before the Constitution
Bench. The said order does not
indicate the reason why the appeal
was directed to be heard by the Constitution
Bench. The learned counsel
for the appellant has stated that
this direction has been given by this
Court for the reason that the appeal
involves the question as to whether
it was incumbent for the Chief of
the Army Staff, while confirming the
findings and the sentence of the General
Court Martial, and for the Central
Government, while rejecting the
post-confirmation petition of the appellant,
to record their reasons for
the orders passed by them. We
propose to deal with this question
first. It may be mentioned that this
question has been considered by this
Court in Som Datt Datta v. Union
of India and Others, [1969] 2 S.C.R.
177. In that case it was contended
before this Court that the order of
the Chief of Army Staff confirming
the proceedings of the Court Martial
under Section 164 of the Act was ille-
gal since no reason had been given in
support of the order by the Chief of
the Army Staff and that the Central
Government had also not given any
reason while dismissing the appeal of
the petitioner in that case under Section
165 of the Act and that the order
of the Central Government was
also illegal. This contention was negatived.
After referring to the provisions
contained in Sections 164, 165
and 162 of the Act this Court pointed
that while Section 162 of the Act expressly
provides that the Chief of the
Army Staff may ”for reasons based
on the merits of the case” set aside
the proceedings or reduce the sentence
to any other sentence which
the Court might have passed, there
is no express obligation imposed by
Sections 164 and 165 of the Act on
the confirming authority or upon the
Central Government to give reasons
in support of its decision to confirm
the proceedings of the Court Martial.
This Court observed that no other
section of the Act or any of the rules
made
50
therein had been brought to its
notice from which necessary implication
can be drawn that such a duty is
cast upon the Central Government or
upon the confirming authority. This
Court did not accept the contention
that apart from any requirement imposed
by the statute or statutory rule
either expressly or by necessary implication,
there is a general principle
or a rule of natural justice that a
statutory tribunal should always and
in every case give reasons m support
of its decision.

Shri A.K. Ganguli has urged that
the decision of this Court in Som
Datt Datta’s case (supra) to the extent
it holds that there is no general
principle or rule of natural justice
that a statutory tribunal should
always and in every case give reasons
in support of its decision needs reconsideration
inasmuch as it is not in
consonance with the other decisions
of this Court. In support of this submission
Shri Ganguli has placed reliance
on the decisions of this Court
in Bhagat Raja v. The Union of India
and Others, [1967] 3 SCR 302;
Mahabir Prasad Sanotsh Kumar v.
State of U.P. and Others, [1971] 1
SCR 201; Woolcombers of India Ltd.
v. Woolcombers Workers Union and
Another, [1974] 1 S.C.R. 503 and
Siemens Engineering & Manufacturing
Co. of India Limited v. Union
of India and Another, [1976] Suppl.
S.C.R. 489. The learned Additional
Solicitor General has refuted the said
submission of Shri Ganguli and has
submitted that there is no requirement
in law that reasons be given by
the confirming authority while confirming
the finding or sentence of the
Court Martial or by the Central Government
while dealing with the postconfirmation
petition submitted under
Section 164 of the Act and that
the decision of this Court in Som
Datt Datta’s case (supra) in this regard
does not call for reconsideration.
The question under consideration
can be divided into two parts:
(i) Is there any general principle
of law which requires an administrative
authority to record the reasons
for its decision; and
227
(ii) If so, does the said principle
apply to an order confirming the findings
and sentence of a Court Martial
and post-confirmation proceedings
under the Act? On the first
part of the question there is divergence
of opinion in the common law
countries. The legal position in the
United States is different from that
in other common law countries.
51
In the United States the courts
have insisted upon recording of reasons
for its decision by an administrative
authority on the premise that
the authority should give clear indication
that it has exercised the
discretion with which it has been
empowered because ”administrative
process will best be vindicated by
clarity in its exercise” Phelps Dodge
Corporation v. National Labour Relations
Board, [1940] 85 Law Edn.
1271 at P. 1284. The said requirement
of recording of reasons has also
been justified on the basis that such
a decision is subject to judicial review
and ”the Courts cannot exercise
their duty of review unless they are
advised of the considerations underlying
the action under review” and
that ”the orderly functioning of the
process of review requires that the
grounds upon which the administrative
agency acted be clearly disclosed
and adequately sustained.” Securities
and Exchange Commission v.
Chenery Corporation, [1942] 87 Law
Ed. 626 at P. 636. In John T. Dunlop
v. Waiter Bachowski, [1975] 44
Law Ed. 2 377) it has been observed
that a statement of reasons serves

228 S N Mukherjee v. Union Of India 1990
purposes other than judicial review
inasmuch as the reasons promotes
thought by the authority and compels
it to cover the relevant points
and eschew irrelevancies and assures
careful administrative consideration.
The Federal Administrative Procedure
Act, 1946 which prescribed the
basic procedural principles which are
to govern formal administrative procedures
contained an express provision
(Section g(b) ) to the effect that
all decisions shall indicate a statement
of findings and conclusions as
well as reasons or basis the, for upon
all the material issues of fact, law
or discretion presented on the record.
The said provision is now contained
in Section 557(c) of Title 5 of the
United States Code (1982 edition).
Similar provision is contained in the
state statutes.
In England the position at Common
law is that there is no requirement
that reasons should be given
for its decision by the administrative
authority (See: Regina v. Gaming
Board for Great Britain Ex Party Benaim
and Khaida, [1970] 2 Q.B. 417
at p. 431 and McInnes v. Onslow-
Fane and Another, [1978] 1 W.L.R.
1520 at p. 1531). There are, however,
observations in some judgments
wherein the importance of reasons
has been emphasised. In his dissenting
judgment in Breen v. Amalgamated
Engineering Union and Others,
[1971] 2 Q.B. 175 Lord Denning
M.R., has observed that:
”the giving of reasons is one of
the fundamental of good administration.”
(P. 191)
In Alexander Machinery (Dud-
ley) Ltd. v. Crabtree, [1974] ICR
120 Sir John Donaldson, as President
of the National Industrial Relations
Court, has observed that: 52
”failure to give reasons amounts
to a denial of justice.” In Regina
v. Immigration Appeal Tribunal Ex
parte Khan (Mahmud), [1983] QB
790 Lord Lane, CJ., while expressing
his reservation on the proposition
that any failure to give reasons
means a denial of justice, has observed:
”A party appearing before a
tribunal is entitled to know either expressly
stated by the tribunal or inferentially
stated, what it is to which
the tribunal is addressing its mind.”
(P. 794)
The Committee on Ministers’
Powers (Donoughmore Committee)
in its report submitted in 1932, recommended
that ”any party affected
by a decision should be informed
of the reasons on which the decision
is based” and that ”such a decision
should be in the form of a reasoned
document available to the parties
affected.” (P. 100) The Committee
on Administrative Tribunals and
Enquiries (Franks Committee) in its
report submitted in 1957, recommended
that ”decisions of tribunals
should be reasoned and as full as possible.”
The said Committee has observed:
”Almost all witnesses have advocated
the giving of reasoned decisions
by tribunals. We are convinced that
if tribunal proceedings are to be fair
to the citizen reasons should be given
to the fullest practicable extent. A
decision is apt to be better if the
reasons for it have to be set out in

writing because the reasons are then
more likely to have been properly
thought out. Further, a reasoned decision
is essential in order that, where
there is a right of appeal, the applicant
can assess whether he has good
grounds of appeal and know the case
he will have to meet if he decides to
appeal.” (Para 98)
The recommendations of the
Donoughmore Committee and the
Franks Committee led to the enactment
of the Tribunals and Enquiries
Act, 1958 in United Kingdom. Section
12 of that Act prescribed that
it shall be the duty of the Tribunal
or Minister to furnish a statement,
either written or oral, of the reasons
for the decision if requested, on
or before the giving of notification
of the decision to support the decision.
The said Act has been replaced
by the Tribunals and Enquiries Act,
1971 which contains a similar provision
in Section 12. This requirement
is. however, confined. in its applications
to tribunals and statutory authorities
specified in Schedule I to the
said enactment. In respect of the tribunals
and authorities which are not
covered by the aforesaid enactment,
the position, as prevails at common
law, applies. The Committee of JUS-
TICE in its Report, Administration
Under Law, submitted in 1971, has
expressed the view:
”No single factor has inhibited
the development of English administrative
law as seriously as the absence
of any general obligation upon
public authorities to give reasons for
their decisions.”
The law in Canada appears to be
229
the same as in England. In Pure
Spring Co. Ltd. v. Minister of National
Revenue, [1947] 1 DLR 501
at P. 539 it was held that when a
Minister makes a determination in
his discretion he is not required by
law to give any reasons for such a
determination. In some recent decisions,
however, the Courts have
recognised that in certain situations
there would be an implied duty to
state the reasons or grounds for a
decision (See: Re R D.R. Construction
Ltd. And Rent Review Commission,
[1983] 139 DLR (3d) 168)
and Re Yarmouth Housing Ltd. And
Rent Review Commission, [1983] 139
DLR (3d) 544. In the Province of
Ontario the Statutory Powers Procedure
Act, 1971 was enacted which
provided that ”a tribunal shall give
its final decision, if any, in any proceedings
in writing and shall give
reasons in writing therefore if requested
by a party.” (Section 17).
The said Act has now been replaced
by the Statutory Powers and Procedure
Act, 1980, which contains a similar
provision.
The position at common law is
no different in Australia. The Court
of Appeal of the Supreme Court
of New South Wales in Osmond v.
Public service Board of New South
Wales, [1985] 3 NSWLR 447) had
held that the common law requires
those entrusted by Statute with the
discretionary power to make decisions
which will affect other persons
to act fairly in the performance of
their statutory functions and normally
this will require an obligation
to state the reasons for their deci-

230 S N Mukherjee v. Union Of India 1990
sions. The said decision was overruled
by the High Court of Australia
in Public Service Board of New South
Wales v. Osmond, [1986] 63 ALR 559
and it has been held that there is
no general rule of the common law,
or principle of natural justice, that
requires reasons to be given for administrative
decisions, even decisions
which have been made in the exercise
of a statutory discretion and
which may adversely affect the interests
or defeat the legitimate or reasonable
expectations, of other persons.
Gibbs CJ., in his leading judgment,
has expressed the view that
”the ’rules of natural justice are designed
to ensure fairness in the making
of a decision and it is difficult
to see how the fairness of an administrative
decision can be affected by
what is done after the decision has
been made.” The learned Chief Justice
has. however. observed that
”even assuming that in special circumstances
natural justice may require
reasons to be given, the present
case is not such a case.” (P. 568).
Deane J., gave a concurring judgment,
wherein after stating that ”the
exercise of a decision making power
in a way which adversely affects others
is less likely to be. or appear to
be, arbitrary if the decision maker
formulates and provides reasons for
his decision”, the learned Judge has
proceeded to hold that ”the stage
has not been reached in this country
where it is a general prima facie
requirement of the common law
rules of natural justice or procedural
fair play that the administrative
decision maker having extended to
persons who might be adversely af-
fected by a decision an adequate opportunity
of being heard. is bound
to furnish reasons for the exercise of
a statutory decision making power.”
(P. 572). The learned Judge has further
observed that the common law
rules of natural justice or procedural
fair play are neither standardized
nor immutable and that their content
may vary with changes in contemporary
practice and standards. In
view of the statutory developments
that have taken place in other countries
to which reference was made
by the Court of Appeal, Deane, J.
has observed that the said developments
”are conducive to an environment
within which the courts should
be less reluctant than they would
have been in times past to discern
in statutory provisions a legislative
intent that the particular decision
maker should be under a duty to give
reasons.” (P. 573).
This position at common law
has been altered by the Commonwealth
Administrative Decisions (Judicial
Review) Act. 1977. Section
13 of the said Act enables a person
who is entitled to apply for review
the decision before the Federal Court
to request the decision maker to furnish
him with a statement in writing
setting out the findings on material
questions of fact, referring to the
evidence or other material on which
those findings were based and giving
the reasons for the decision and on
such a request being made the decision
maker has to prepare the statement
and furnish it to the persons
who made the request as soon as
practicable and in any event within

28 days. The provisions of this Act
are not applicable to the classes of
decisions mentioned in Schedule I to
the Act. A similar duty to give
reasons has also been imposed by
Sections 28 and 37 of the commonwealth
Administrative Appeals Tribunal
Act. 1975.
In India the matter was considered
by the Law Commission in the
14th Report relating to reform in
Judicial Administration. The Law
Commission recommended:
“In the case of administrative decisions
provision should be made that
they should be accompanied by reasons.
The reasons will make it possible
to test the validity of these decisions
by the machinery of appropriate
writs.” (Vol. II P. 694).
No laws has, however, been enacted
in pursuance of these recommendations,
imposing a general duty
to record the reasons for its decision
by an administrative authority
though the requirement to give reasons
is found in some statutes.
The question as to whether
an administrative authority should
record the reasons for its decision
has come up for consideration before
this Court in a number of cases.
In M/s. Harinagar Sugar Mills Ltd.
v. Shyam Sundar Jhunjhunwala and
Others, [1962] 2 SCR 339, a Constitution
Bench of this Court. while
dealing with an order passed by the
Central Government in exercise of
its appellate powers under Section
111(3) of the Companies Act, 1956
in the matter of refusal by a company
to register the transfer of shares, has
231
held that there was no proper trial of
the appeals before the Central Government
since no reasons had been
given in support of the order passed
by the Deputy Secretary who heard
the appeals. In that case it has been
observed:
“If the Central Government acts
as a tribunal exercising judicial powers
and the exercise of that power
is subject to the jurisdiction of this
Court under Article 136 of the Constitution
we fail to see how the power
of this Court can be effectively exercised
if reasons are not given by the
Central Government in support of its
order.” (P. 357) In Madhya Pradesh
Industries Ltd. v. Union of India
and Others, [1966] 1 S.C.R. 466 the
order passed by the Central Government
dismissing the revision petition
under Rule 55 of the Mineral Concession
Roles, 1960, was challenged before
this Court on the ground that it
did not contain reasons. Bachawat,
J., speaking for himself and Mudholkar,
J., rejected this contention
on the view that the reason for rejecting
the revision application appeared
on the face of the order because
the Central Government had
agreed with the reasons given by the
State Government in its order. The
learned Judges did not agree with
the submission that omission to give
reasons for the decision is of itself
a sufficient ground for quashing it
and held that for the purpose of an
appeal under Article 136 orders of
courts and tribunals stand on the
same footing. The learned Judges
pointed out that an order of court
dismissing a revision application of-

232 S N Mukherjee v. Union Of India 1990
ten gives no reasons but this is not
a sufficient ground for quashing it
and likewise an order of an administrative
tribunal rejecting a revision
application cannot be pronounced to
be invalid on the sole ground that
it does not give reasons for the rejection.
The decision in Hari Nagar
Sugar Mills case (supra) was distinguished
on the ground that in that
case the Central Government had reversed
the decision appealed against
without giving any reasons and the
record did not disclose any apparent
ground for the reversal. According
to the learned Judges there is a vital
difference between an order of reversal
and an order of affirmance. Subba
Rao, J., as he then was, did to concur
with this view and found that the
order of the Central Government was
vitiated as it did not disclose any reasons
for rejecting the revision application.
The learned Judge has observed:
“In the context of a welfare State,
administrative tribunals have come
to stay. Indeed, they are the necessary
concomitants of a Welfare State.
But arbitrariness in their functioning
destroys the concept of a welfare
State itself. Self-discipline and supervision
exclude or at any rate minimize
arbitrariness. The least a tribunal
can do is to disclose its mind.
The compulsion of disclosure guarantees
consideration. The condition
to give reasons introduces clarity and
excludes or at any rate minimizes
arbitrariness; it gives satisfaction to
the party against whom the order is
made; and it also enables an appellate
or supervisory court to keep the
tribunals within bounds, A reasoned
order is a desirable condition of judicial
disposal.” (P. 472). “If tribunals
can make orders without giving reasons,
the said power in the hands
of unscrupulous or dishonest officer
may turn out to be a potent weapon
for abuse of power. But, if reasons
for an order are given, it will be an
effective restraint on such abuse, as
the order, if its discloses extraneous
or irrelevant considerations, will be
subject to judicial scrutiny and correction.
A speaking order will at its
best be a reasonable and at its worst
be at least a plausible one. The public
should not be deprived of this only
safeguard.” (P. 472).
“There is an essential distinction
between a court and an administrative
tribunal. A Judge is trained
to look at things objectively, uninfluenced
by considerations of policy
or expediency; but an executive officer
generally looks at things from the
standpoint of policy and expediency.
The habit of mind of an executive officer
so formed cannot be expected to
change from function to function or
from act to act. So it is essential that
some restrictions shall be imposed on
tribunals in the matter of passing orders
affecting the rights of parties;
and the least they should do is to
give reasons for their orders. Even
in the case of appellate courts invariably
reasons are given, except when
they dismiss an appeal or revision in
limine and that is because the appellate
or revisional court agrees with
the reasoned judgment of the subordinate
court or there are no legally
permissible grounds to interfere with

it. But the same reasoning cannot
apply to an appellate tribunal, for as
often as not the order of the first tribunal
is laconic and does not give any
reasons.” (P. 472-73).
With reference to an order of affirmance
the learned Judge observed
that where the original tribunal gives
reasons, the appellate tribunal may
dismiss the appeal or the revision, as
the case may be, agreeing with those
reasons and that what is essential
is that reasons shall be given by an
appellate or revisional tribunal expressly
or by reference to those given
by the original tribunal. This matter
was considered by a Constitution
Bench of this Court in Bhagat Raja
case (supra) where also the order under
challenge had been passed by the
Central Government in exercise of its
revisional powers under Section 30
of the Mines and Minerals (Regulation
and Development) Act, 1957
read with rules 54 and 55 of the Mineral
Concession Rules, 1960. Dealing
with the question as to whether it
was incumbent on the Central Government
to give any reasons for its
decision on review this Court has observed:
“The decisions of tribunals in India
are subject to the supervisory
powers of the High Courts under Art.
227 of the Constitution and of appellate
powers of this Court under Art.
136. It goes without saying that both
the High Court and this Court are
placed under a great disadvantage if
no reasons are given and the revision
is dismissed curtly by the use of the
single word ’rejected’, or ’dismissed’.
In such a case, this Court can prob-
233
ably only exercise its appeallate jurisdiction
satisfactorily by examining
the entire records of the case and after
giving a hearing come to its conclusion
on the merits of the appeal.
This will certainly be a very unsatisfactory
method of dealing with the
appeal.” (P. 309).
This Court has referred to the decision
in Madhya pradesh Industries
case (supra) and the observations of
Subba Rao, J., referred to above,
in that decision have been quoted
with approval. After taking note of
the observations of Bachawat, J., in
that case, the learned Judges have
held: “After all a tribunal which exercises
judicial or quasijudicial powers
can certainly indicate its mind as
to why it acts in a particular way
and when important rights of parties
of far reaching consequences to them
are adjudicated upon in a summary
fashion, without giving a personal
hearing when proposals and counter
proposals are made and examined,
the least that can be expected is that
the tribunals shall tell the party why
the decision is going against him in
all cases where the law gives a further
right of appeal.“ (P.315).
Reference has already been made
to Som Datt Datta’s case (supra)
wherein a Constitution Bench of this
Court has held that the confirming
authority, while confirming the findings
and sentence of a Court Martial,
and the Central Government, while
dealing with an appeal under Section
165 of the Act, are not required to
record the reasons for their decision
and it has been observed that apart
from any requirement imposed by the

234 S N Mukherjee v. Union Of India 1990
statute or statutory rule either expressly
or by necessary implication,
it could not be said that there is any
general principle or any rule of natural
justice that a statutory tribunal
should always and in every case give
reasons in support of its decision. In
that case the Court was primarily
concerned with the interpretation of
the provisions of Act and the Army
Rules, 1954. There is no reference
to the earlier decisions in Harinagar
Sugar Mills case (supra) and Bhagat
Raja case (supra) wherein the
duty to record reasons was imposed
in view of the appellate jurisdiction
of this Court and the supervisory jurisdiction
of the High Court under
Articles 136 and 227 of the Constitution
of India respectively.
In Travancore Rayon Ltd. v.
Union of India, [1970] 3 SCR 4(1 this
Court has observed:
“The Court insists upon disclosure
of reasons in support of the order
on two grounds; one, that the
party aggrieved in a proceedings before
the High Court or this Court has
the opportunity to demonstrate that
the reasons which persuaded the authority
to reject his case were erroneous;
the other, that the obligation
to record reasons operates as a deterrent
against possible arbitrary action
by the executive authority invested
with the judicial power.” (P. 46) In
Mahabir Prasad Sanotsh Kumar v.
State of U.P. and Others (supra) the
District Magistrate had cancelled the
licence granted under the’ U.P Sugar
Dealers’ Licensing Order, 1962 without
giving any reason and the State
Government had dismissed the ap-
peal against the said order of the
District Magistrate without recording
the reasons. This Court has held:
“The practice of the executive authority
dismissing statutory appeal
against orders which prima facie seriously
prejudice the rights of the aggrieved
party without giving reasons
is a negation of the rule of law.” (P.
204) “Recording of reasons in support
of a decision on a disputed claim
by a quasi-judicial authority ensures
that the decision is reached according
to law and is not the result of
caprice, whim or fancy or reached
on grounds of policy or expediency.
A party to the dispute is ordinarily
entitled to know the grounds on
which the authority has rejected his
claim. If the order is subject to appeal,
the necessity to record reasons
is greater, for without recorded reasons
the appellate authority has no
material on which it may determine
whether the facts were properly ascertained,
the relevant law was correctly
applied and the decision was
just.” (P. 205)
In Woolcombers of India Ltd.
case (supra) this Court was dealing
with an award of an Industrial Tribunal.
It was found that the award
stated only the conclusions and it did
not give the supporting reasons. This
Court has observed: “The giving of
reasons in support of their conclusions
by judicial and quasi-judicial
authorities when exercising initial jurisdiction
is essential for various reasons.
First, it is calculated to prevent
unconscious unfairness or arbitrariness
in reaching the conclusions.
The very search for reasons will put

the authority on the alert and minimise
the chances of unconscious infiltration
of personal bias or unfairness
in the conclusion. The authority
will adduce reasons which will be
regarded as fair and legitimate by a
reasonable man and will discard irrelevant
or extraneous considerations.
Second, it is a well known principle
that justice should not only be done
but should also appear to be done.
Unreasoned conclusions may be just
but they may not appear to be just
to those who read them. Reasoned
conclusions, on the other hand, will
have also the appearance of justice.
Third, it should be remembered that
an appeal generally lies from the decision
of judicial and quasi-judicial
authorities to this Court by special
leave granted under Article 136. A
judgment which does not disclose the
reasons, will be of little assistance to
the Court.” (P. 507)
In Siemens Engineering & Manufacturing
Co. of India Limited case
(supra) this Court was dealing with
an appeal against the order of the
Central Government on a revision
application under the Sea Customs
Act, 1878. This Court has laid down:
“It is now settled law that where
an authority makes an order in exercise
of a quasi-judicial function it
must record its reasons in support of
the order it makes. Every quasijudicial
order must be supported by reasons.”
(P 495) “If courts of law are
to be replaced by administrative authorities
and tribunals, as indeed, in
some kinds of cases, with the proliferation
of Administrative Law they
may have to be so replaced, it is es-
235
sential that administrative authorities
and tribunals should accord fair
and proper hearing to the persons
sought to be affected by their orders
and give sufficiently clear and explicit
reasons in support of the orders made
by them. Then along administrative
authorities and tribunals, exercising
quasi-judicial function will be
able to justify their existence and
carry credibility with the people by
inspiring confidence in the adjudicatory
process. The rule requiring reasons
to be given in support of an order
is, like the principle of audi alteram
partera, a basic principle of
natural justice which must inform
every quasi-judicial process and this
rule must be observed in its proper
spirit and mere pretence of compliance
with it would not satisfy the requirement
of law.” (496)
Tarachand Khatri v. Municipal
Corporation of Delhi & Others,
[1977] 2 SCR 198 was a case where an
inquiry was conducted into charges of
misconduct and the disciplinary authority,
agreeing with the findings of
the Inquiry Officer, had imposed the
penalty of dismissal. The said order
of dismissal was challenged on the
ground that the disciplinary authority
had not given its reasons for passing
the order. The said contention
was negatived by this Court and distinction
was drawn between an order
of affirmance and an order of reversal.
It was observed:
“ ..... while it may be necessary
for a disciplinary or administrative
authority exercising quasijudicial
functions to state the reasons
in support of its order if it differs

236 S N Mukherjee v. Union Of India 1990
from the conclusions arrived at and
the recommendations made by the
Inquiry Officer in view of the scheme
of a particular enactment or the rules
made thereunder, it would be laying
down the proposition too broadly
to say that even an ordinary concurrence
must be supported by reasons.”
(P. 208) In Raipur Development
Authority and Others v. Mls.
Chokhamal Contractors and Others,
[1989] 2 S.C.C. 721 a Constitution
Bench of this Court was considering
the question whether it is obligatory
for an arbitrator under the Arbitration
Act, 194(1 to give reasons
for the award. It was argued that
the requirement of giving reasons for
the decision is a part of the rules of
natural justice which are also applicable
to the award of an arbitrator
and reliance was placed on the decisions
in Bhagat Raja case (Supra)
and Siemens Engineering Co. case
(Supra). The said contention was
rejected by this Court. After referring
to the decisions in Bhagat
Raja case (Supra); Som Datt Datta
case (Supra) and Siemens Engineering
Co. case (Supra) this Court has
observed:
“It is no doubt true that in the
decisions pertaining to Administrative
Law, this court in some cases has
observed that the giving of reasons in
an administrative decision is a rule
of natural justice by an extension of
the prevailing rules. It would be in
the interest of the world of commerce
that the said rule is confined to the
area of Administrative Law ..... But
at the same time it has to be borne
in mind that what applies generally
to settlement of disputes by authorities
governed by public law need not
be extended to all cases arising under
private law such as those arising under
the law of arbitration which is intended
for settlement of private disputes.”
(P. 751-52)
The decisions of this Court referred
to above indicate that with
regard to the requirement to record
reasons the approach of this Court is
more in line with that of the American
Courts. An important consideration
which has weighed with the
Court for holding that an administrative
authority exercising quasijudicial
functions must record the
reasons for its decision, is that such
a decision is subject to the appellate
jurisdiction of this Court under
Article 136 of the Constitution as
well as the supervisory jurisdiction
of the High Courts under Article 227
of the Constitution and that the reasons,
if recorded, would enable this
Court or the High Courts to effectively
exercise the appellate or supervisory
power. But this is not the
sole consideration. The other considerations
which have also weighed
with the Court in taking this view
are that the requirement of recording
reasons would (i) guarantee consideration
by the authority; (ii) introduce
clarity in the decisions; and
(iii) minimise chances of arbitrariness
in decisionmaking. In this regard
a distinction has been drawn between
ordinary Courts of law and tribunals
and authorities exercising judicial
functions on the ground that a
Judge is trained to look at things objectively
uninfluenced by considera-

tions of policy or expediency whereas
an executive officer generally looks at
things from the standpoint of policy
and expediency.
Reasons, when recorded by an
administrative authority in an order
passed by it while exercising quasijudicial
functions, would no doubt
facilitate the exercise of its jurisdiction
by the appellate or supervisory
authority. But the other considerations,
referred to above, which have
also weighed with this Court in holding
that an administrative authority
must record reasons for its decision,
are of no less significance. These
considerations show that the recording
of reasons by an administrative
authority serves a salutary purpose,
namely, it excludes chances of arbitrariness
and ensures a degree of fairness
in the process of decision making.
The said purpose would apply
equally to all decisions and its application
cannot be confined to decisions
which are subject to appeal,
revision or judicial review. In our
opinion, therefore, the requirement
that reasons be recorded should govern
the decisions of an administrative
authority exercising quasijudicial
functions irrespective of the fact
whether the decision is subject to appeal,
revision or judicial review. It
may, however, be added
63
that it is not required that the
reasons should be as elaborate as
in the decision of a Court of law.
The extent and nature of the reasons
would depend on particular facts and
circumstances. What is necessary is
that the reasons are clear and explicit
237
so as to indicate that the authority
has given due consideration to the
points in controversy. The need for
recording of reasons is greater in a
case where the order is passed at the
original stage. The appellate or revisional
authority, if it affirms such an
order, need not give separate reasons
if the appellate or revisional authority
agrees with the reasons contained
in the order under challenge.
Having considered the rationale
for the requirement to record the reasons
for the decision of an administrative
authority exercising quasijudicial
functions we may now examine
the legal basis for imposing this
obligation. While considering this
aspect the Donough more Committee
observed that it may well be argued
that there is a third principle of natural
justice, namely, that a party is entitled
to know the reason for the decision,
be it judicial or quasi-judicial.
The committee expressed the opinion
that “there are some cases where
the refusal to give grounds for a decision
may be plainly unfair; and this
may be so, even when the decision is
final and no further proceedings are
open to the disappointed party by
way of appeal or otherwise” and that
“where further proceedings are open
to a disappointed party, it is contrary
to natural justice that the silence of
the Minister or the Ministerial Tribunal
should deprive them of the opportunity.”
(P 80) Prof. H.W.R.
Wade has also expressed the view
that “natural justice may provide the
best rubric for it, since the giving
of reasons is required by the ordinary
man’s sense of justice.” (See

238 S N Mukherjee v. Union Of India 1990
Wade, Administrative Law, 6th Edn.
P. 548). In Siemens Engineering Co.
case (Supra) this Court has taken the
same view when it observed that “the
rule requiring reasons to be given in
support of an order is, like the principles
of audi alteram parlem, a basic
principle of natural justice which
must inform every quasi-judicial process.”
This decision proceeds on the
basis that the two well known principles
of natural justice, namely (i)
that no man should be a Judge in
his own cause and (ii) that no person
should be judged without a hearing,
are not exhaustive and that in addition
to these two principles there may
be rules which seek to ensure fairness
in the process of decision making and
can be regarded as part of the principles
of natural justice. This view is
in consonance with the law laid down
by this Court in A.K. Kraipak and
Others v. Union of India and Others,
[1970] 1 SCR 457, wherein it has
been held:
“The concept of natural justice
has undergone a great deal of change
in recent years. In the past it was
thought that it included just two
rules namely (i) no one shall be a
Judge in his own cause (nemo dabet
esse judex propria causa) and (ii)
no decision shall be given against
a party without affording him a
reasonable hearing (audi alteram
partem). Very soon thereafter a
third rule was envisaged and that is
that quasi-judicial enquiries must be
held in good faith, without bias and
not arbitrarily or unreasonably. But
in the course of years many more subsidiary
rules came to be added to the
rules of natural justice.” (P. 468-69)
A similar trend is discernible in the
decisions of English Courts wherein
it has been held that natural justice
demands that the decision should be
based on some evidence of probative
value. (See: R. v. Deputy Industrial
Injuries Commissioner ex P. Moore,
[1965] 1 Q.B. 456; Mahon v. Air New
Zealand Ltd., [1984] A.C. 648.
The object underlying the rules
of natural justice “is to prevent miscarriage
of justice” and secure “fairplay
in action.” As pointed out earlier
the requirement about recording
of reasons for its decision by
an administrative authority exercising
quasi-judicial functions achieves
this object by excluding chances of
arbitrariness and ensuring a degree
of fairness in the process of decision
making. Keeping in view the expanding
horizon of the principles of
natural justice, we are of the opinion,
that the requirement to record
reason can be regarded as one of the
principles of natural justice which
govern exercise of power by administrative
authorities. The rules of
natural justice are not embodied
rules. The extent of their application
depends upon the particular
statutory framework whereunder jurisdiction
has been conferred on the
administrative authority. With regard
to the exercise of a particular
power by an administrative authority
including exercise of judicial
or quasi-judicial functions the legislature,
while conferring the said power,
may feel that it would not be in the
larger public interest that the reasons
for the order passed by the adminis-

trative authority be recorded in the
order and be communicated to the
aggrieved party and it may dispense
with such a requirement. It may do
so by making an express provision to
that affect as those contained in the
Administrative Procedure Act, 1946
of U.S.A. and the Administrative Decisions
(Judicial Review) Act, 1977 of
Australia whereby the orders passed
by certain specified authorities are
excluded from the ambit of the enactment.
Such an exclusion can also
arise by necessary implication from
the nature of the subject matter, the
scheme and the provisions of the 65
enactment. The public interest
underlying such a provision
would outweight the salutary purpose
served by the requirement to
record the reasons. The said requirement
cannot, therefore, be insisted
upon in such a case.
For the reasons aforesaid, it must
be concluded that except in cases
where the requirement has been dispensed
with expressly or by necessary
implication, an administrative
authority exercising judicial or
quasi-judicial functions is required to
record the reasons for its decision.
We may now come to the second
part of the question, namely, whether
the confirming authority is required
to record its reasons for confirming
the finding and sentence of the court
martial and the Central Government
or the competent authority entitled
to deal with the post-confirmation
petition is required to record its reasons
for the order passed by it on
such petition. For that purpose
it will be necessary to determine
239
whether the Act or the Army Rules,
1954 (hereinafter referred to as ’the
Rules’) expressly or by necessary implication
dispense with the requirement
of recording reasons. We propose
to consider this aspect in a
broader perspective to include the
findings and sentence of the court
martial and examine whether reasons
are required to be recorded at
the stage of (i) recording of findings
and sentence by the court martial;
(ii) confirmation of the findings
and sentence of the court martial;
and (iii) consideration of postconfirmation
petition. Before referring
to the relevant provisions of the
Act and the Rules it may be mentioned
that the Constitution contains
certain special provisions in regard to
members of the Armed Forces. Article
33 empowers Parliament to make
law determining the extent to which
any of the rights conferred by Part
Ill shall, in their application to the
members of the Armed Forces be restricted
or abrogated so as to ensure
the proper discharge of their duties
and the maintenance of discipline
amongst them. By clause (2) of Article
136 the appellate jurisdiction of
this Court under Article 136 of the
Constitution has been excluded in
relation to any judgment, determination,
sentence or order passed or
made by any Court or tribunal constituted
by or under any law relating
to the Armed Forces. Similarly
clause (4) of Article 227 denies to the
High Courts the power of superintendence
over any Court or tribunal
constituted by or under any law relating
to the Armed Forces. This
Court under Article 32 and the High

240 S N Mukherjee v. Union Of India 1990
Courts under Article 226 have, however,
the power of judicial review in
respect of proceedings of courts martial
and the proceedings subsequent
thereto and can grant appropriate relief
if the said proceedings have resulted
in denial of the fundamental
rights guaranteed under Part III of
the Constitution or if the said proceedings
suffer from a jurisdictional
error or any error of law apparent on
the face of the record.
Reference may now be made to
the provisions of the Act and the
Rules which have a bearing on the
requirement to record reasons for the
findings and sentence of the court
martial. Section 108 of the Act
makes provision for four kinds of
courts martial, namely, (a) general
courts martial; (b) district courts
martial; (c) summary general courts
martial and (d) summary courts
martial. The procedure of court martial
is prescribed in Chapter XI (Sections
128 to 152) of the Act. Section
129 prescribes that every general
court martial shall, and every district
or summary general court martial,
may be attended by a judge advocate,
who shall be either an officer
belonging to the department of
the Judge Advocate General, or if
no such officer is available, an officer
approved of by the Judge Advocate
General or any of his deputies.
In sub-section (1) of Section 131 it
is provided that subject to the provisions
of sub-sections (2) and (3) every
decision of a court martial shall
be passed by an absolute majority of
votes, and where there is an equality
of votes on either the finding or
the sentence, the decision shall be
in favour of the accused. In subsection
(2) it is laid down that no
sentence of death shall be passed by
a general court martial without the
concurrence of at least two-thirds of
the members of the court and subsection
(3) provides that no sentence
of death shall be passed by a summary
general court martial without
the concurrence of all the members.
With regard to the procedure at
trial before the General and District
courts martial further provisions are
made in Rules 37 to 105 of the Rules.
In Rule 60 it is provided that the
judge advocate (if any) shall sum up
in open court the evidence and advise
the court upon the law relating
to the case and that after the summing
up of the judge advocate no
other address shall be allowed. Rule
61 prescribes that the Court shall deliberate
on its findings in closed court
in the presence of the judge advocate
and the opinion of each member
of the court as to the finding shall
be given by word of mouth on each
charge separately. Rule 62 prescribes
the form, record and announcement
of finding and in sub-rule (1) it is
provided that the finding on every
charge upon which the accused is arraigned
shall be recorded and, except
as provided in these rules, shall
be recorded simply as a finding of
“Guilty” or of “Not guilty”. Sub-rule
(10) of Rule 62 lays down that the
finding on charge shall be announced
forthwith in open court as subject
to confirmation. Rule 64 lays down
that in cases where the finding on
any charge is guilty, the court, before
deliberating on its sentence, shall,

whenever possible take evidence in
the matters specified in sub-rule (1)
and thereafter the accused has a right
to address the court thereon and in
mitigation of punishment. Rule 65
makes provision for sentence and provides
that the court shall award a single
sentence in respect of all the offences
of which the accused is found
guilty, and such sentence shall be
deemed to be awarded in respect of
the offence in each charge and in
respect of which it can be legally
given, and not to be awarded in respect
of any offence in a charge in
respect of which it cannot be legally
given. Rule 66 makes provisions for
recommendation to mercy and subrule
(1) prescribes that if the court
makes a recommendation to mercy,
it shall give its reasons for its recommendation.
Sub-rule (1) of Rule
67 lays down that the sentence together
with any recommendation to
mercy and the reasons for any such
recommendation will be announced
forthwith in open court. The powers
and duties of judge advocate are
prescribed in Rule 105 which, among
other things, lays down that at the
conclusion of the case he shall sum
up the evidence and give his opinion
upon the legal bearing of the case before
the court proceeds to deliberate
upon its finding and the court, in following
the opinion of the judge advocate
on a legal point may record that
it has decided in consequences of that
opinion. The said rule also prescribes
that the judge advocate has, equally
with the presiding officer, the duty
of taking care that the accused does
not suffer any disadvantage in consequences
of his position as such, or
241
of his ignorance or incapacity to examine
or cross-examine witnesses or
otherwise, and may, for that purpose,
with the permission of the court, call
witnesses and put questions to witnesses,
which appear to him necessary
or desirable to elicit the truth.
It is further laid down that in fulfilling
his duties, the judgeadvocate
must be careful to maintain an entirely
impartial position. From the
provisions referred to above it is evident
that the judge advocate plays an
important role during the courts of
trial at a general court martial and he
is enjoined to maintain an impartial
position. The court martial records
its findings after the judge advocate
has summed up the evidence and has
given his opinion upon the legal bearing
of the case. The members of the
court have to express their opinion as
to the finding by word of mouth on
each charge separately and the finding
on each charge is to be recorded
simply as a finding of “guilty” or of
“not guilty”. It is also required that
the sentence should be announced
forthwith in open court. Moreover
Rule 66(1) requires reasons to be
recorded for its recommendation in
cases where the court makes a recommendation
to mercy. There is no
such requirement in other provisions
relating to recording of findings and
sentence. Rule 66(1) proceeds on the
basis that there is no such requirement
because if such a requirement
was there it would not have been necessary
to have a specific provision for
recording of reasons for the recommendation
to mercy. The said provisions
thus negative a requirement
to give reasons for its finding and

242 S N Mukherjee v. Union Of India 1990
sentence by the court martial and
reasons are required to be recorded
only in cases where the court martial
makes a recommendation to mercy.
In our opinion, therefore, at the stage
of recording of findings and sentence
the court martial is not required to
record its reasons and at that stage
reasons are only required for the recommendation
to mercy if the court
martial makes such a recommendation.
As regards confirmation of the
findings and sentence of the court
martial it may be mentioned that
Section 153 of the Act lays down 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 as provided by
the Act. Section 158 lays down that
the confirming authority may while
confirming the sentence of a court
martial mitigate or remit the punishment
thereby awarded, or commute
that punishment to any punishment
lower in the scale laid down
in Section 71. Section 160 empowers
the confirming authority to revise the
finding or sentence of the court martial
and in sub-section (1) of Section
160 it is provided that on such revision,
the court, if so directed by the
confirming authority, may take additional
evidence. The confirmation of
the finding and sentence is not required
in respect of summary court
martial and in Section 162 it is provided
that the proceedings of every
summary court martial shall Without
delay be forwarded to the officer
commanding the division or brigade
within which the trial was held or to
the prescribed officer; and such officer
or the Chief of the Army Staff or
any officer empowered in this behalf
may, for reasons based on the merits
of the case, but not any merely
technical grounds, set aside the proceedings
or reduce the sentence to
any other sentence which the court
might have passed. In Rule 69 it
is provided that the proceedings of
a general court martial shall be submitted
by the judge advocate at the
trial for review to the deputy or assistant
judge advocate general of the
command who shall then forward it
to the confirming officer and in case
of district court martial it is provided
that the proceedings should be sent
by the presiding officer, who must, in
all cases. where the sentence is dismissal
or above, seek advice of the
deputy or assistant judge advocate
general of the command before confirmation.
Rule 70 lays down that
upon receiving the proceedings of a
general or district Court Martial, the
confirming authority may confirm or
refuse confirmation or reserve confirmation
for superior authority, and
the confirmation, non-confirmation,
or reservation shall be entered in and
form part of the proceedings. Rule
71 lays down that the charge, finding
and sentence, and any recommendation
to mercy shall, together with the
confirmation or non-confirmation of
the proceedings, be promulgated in
such manner as the confirming authority
may direct, and if no direction
is given, according to custom
of the service and until promulgation
has been effected, confirmation is not
complete and the finding and sentence
shall not be held to have been

confirmed until they have been promulgated.
The provisions mentioned above
show that confirmation of the findings
and sentence of the court martial
is necessary before the said finding
or sentence become operative. In
other words the confirmation of the
findings and sentence is an integral
part of the proceedings of a court
martial and before the findings and
sentence of a court martial are confirmed
the same are examined by the
deputy or assistant judge advocate
general of the command which is intended
as a check on the legality and
propriety of the proceedings as well
as the findings and sentence of the
court martial. Moreover we find that
in Section 162 an express provision
has been made for recording of reasons
based on merits of the case in relation
to the proceedings of the summary
court martial in cases where
the said proceedings are set aside or
the sentence is reduced and no other
requirement for recording of reasons
is laid down either in the Act or in
the Rules in respect of proceedings
for confirmation. The only inference
that can be drawn from Section 162
is that reasons have to be recorded
only in cases where the proceedings
of a summary court martial are set
aside or the sentence is reduced and
not when the findings and sentence
are confirmed. Section 162 thus negatives
a requirement to give reasons
on the part of the confirming authority
while confirming the findings
and sentence of a court martial and
it must be held that the confirming
authority is not required to record
243
reasons while confirming the findings
and sentence of the court martial.
With regard to post-confirmation
proceedings we find that subsection
(2) of Section 164 of the Act provides
that any person subject to the
Act who considers himself aggrieved
by a finding or sentence of any court
martial which has been confirmed,
may present a petition to the Central
Government, the Chief of the Army
Staff or any prescribed officer superior
in command to the one who confirmed
such finding or sentence and
the Central Government, the Chief
of the Army Staff or other officer, as
the case may be, may pass such orders
thereon as it or he thinks fit. In
so far as the findings and sentence of
a court martial and the proceedings
for confirmation of such findings and
sentence are concerned it has been
found that the scheme of the Act and
the Rules is such that reasons are
not required to be recorded for the
same. Has the legislature made a departure
from the said scheme in respect
of post-confirmation proceedings?
There is nothing in the language
of sub-section (2) of Section
164 which may lend support to such
an intention. Nor is there anything in
the nature of post confirmation proceedings
which may require recording
of reasons for an order passed on
the post-confirmation petition even
though reasons are not required to
be recorded at the stage of recording
of findings and sentence by a court
martial and at the stage of confirmation
of the findings and sentence of
the court martial by the confirming
authority. With regard to recording

244 S N Mukherjee v. Union Of India 1990
of reasons the considerations which
apply at the stage of recording of
findings and sentence by the court
martial and at the stage of confirmation
of findings and sentence of the
court martial by the confirming authority
are equally applicable at the
stage of consideration of the postconfirmation
petition. Since reasons
are not required to be recorded at
the first two stages referred to above,
the said requirement cannot, in our
opinion, be insisted upon at the stage
of consideration of post-confirmation
petition under Section 164(2) of the
Act.
For the reasons aforesaid it must
be held that reasons are not required
to be recorded for an order
passed by the confirming authority
confirming the findings and sentence
recorded by the court martial as well
as for the order passed by the Central
Government dismissing the postconfirmation
petition. Since we have
arrived at the same conclusion as in
Sorn Datt Datta case (Supra) the
submission of Shri Ganguli that the
said decision needs reconsideration
cannot be accepted and is. therefore,
rejected. But that is not the end
of the matter because even though
there is no requirement to record
reasons by the confirming authority
while passing the order confirming
the findings and sentence of the
Court Martial or by the Central Government
while passing its order on
the post-confirmation petition, it is
open to the person aggrieved by such
an order to challenge the validity of
the same before this Court under Article
32 of the Constitution or before
the High Court under Article 226
of the Constitution and he can obtain
appropriate relief in those proceedings.
We will, therefore, examine
the other contentions that have
been urged by Shri Ganguli in support
of the appeal. The first contention
that has been urged by Shri
Ganguli in this regard is that under
sub-section (1) of Section 164 of
the Act the appellant had a right
to make a representation to the confirming
authority before the confirmation
of the findings and sentence
recorded by the court martial and
that the said right was denied inasmuch
as the appellant was not supplied
with the copies of the relevant
record of the court martial to enable
him to make a complete representation
and further that the representation
submitted by the appellant
under sub-section (1) of Section 164
was not considered by the confirming
authority before it passed the order
dated May 11, 1979 confirming
the findings and sentence of the court
martial. The learned Additional Solicitor
General, on the other hand,
has urged that under sub-section (1)
of Section 164 no right has been conferred
on a person aggrieved by the
findings or sentence of a court martial
to make a representation to the
confirming authority before the confirmation
of the said findings or sentence.
The submission of learned
Additional Solicitor General is that
while sub-section (1) of Section 164
refers to an order passed by a court
martial, sub-section (2) of Section
164 deals with the findings or sentence
of a court martial and that the
only right that has been conferred

on a person aggrieved by the finding
or sentence of a court martial is
that under sub-section (2) of Section
164 and the said right is available after
the finding and sentence has been
confirmed by the confirming authority.
We find considerable force in the
aforesaid submission of learned Additional
Solicitor General.
Section 164 of the Act provides as
under:
“(1) Any person subject to this
Act who considers himself aggrieved
by any order passed by any court
martial may present a petition to
the officer or authority empowered
to confirm any tinging or sentence of
such court martial and the confirming
authority may take such steps as
may be considered necessary to satisfy
itself as to the correctness. legality
or propriety of the order passed
or as to the regularity of any proceeding
to which the order relates.
(2) Any person subject to this Act
who considers himself aggrieved by
a finding or sentence of any court
martial which has been confirmed,
may present a petition to the Central
Government, the Chief of the Army
Staff or any prescribed officer superior
in command to the one who confirmed
such finding or sentence and
the Central Government, the Chief
of the Army Staff or other officer, as
the case may be, may pass such orders
thereon as it or he thinks fit.”
In sub-section (1) reference is
made to orders passed by a court
martial and enables a person aggrieved
by an order to present a petition
against the same. The said petition
has to be presented to the officer
245
or the authority empowered to confirm
any finding or sentence of such
court martial and the said authority
may take such steps as may be
considered necessary to satisfy itself
as to the correctness, legality or propriety
of the order or as to the regularity
of any proceedings to which
the order relates. Sub-section (2), on
the other hand, makes specific reference
to finding or sentence of a
court martial. and confers a right
on any person feeling aggrieved by
a finding or sentence of any court
martial which has been confirmed,
to present a petition to the Central
Government, Chief of the Army Staff
or any prescribed officer. The use of
the expression “order” in sub-section
(1) and the expression “finding or
sentence” in sub-section (2) indicates
that the scope of sub-section (1) and
sub-section (2) is not the same and
the expression “order” in sub-section
(1) cannot be construed to include
a “finding or sentence”. In other
words in so far as the finding and
sentence of the court martial is concerned
the only remedy that is available
to a person aggrieved by the
same is under sub-section (2) and the
said remedy can be invoked only after
the finding or sentence has been
confirmed by the confirming authority
and not before the confirmation
of the same. Rule 147 of the Rules
also lends support to this view. In
the said Rule it is laid down that
every person tried by a court martial
shall be entitled on demand, at
any time after the confirmation of
the finding and sentence, when such
confirmation is required, and before
the proceedings are destroyed, to ob-

246 S N Mukherjee v. Union Of India 1990
tain from the officer or person having
the custody of the proceeding a
copy thereof including the proceedings
upon revision, if any. This Rule
envisages that the copies of proceedings
of a court martial are to be
supplied only after confirmation of
the finding and sentence and that
there is no right to obtain the copies
of the proceedings till the finding
and sentence have been confirmed.
This means that the appellant cannot
make a grievance about nonsupply
of the copies of the proceedings
of the court martial and consequent
denial of his right to make a
representation to the confirming authority
against the findings and sentence
of the court martial before the
confirmation of the said finding and
sentence. Though a person aggrieved
by the finding or sentence of a court
martial has no right to make a representation
before the confiramtion of
the same by the confirming authority,
but in case such a representation
is made by a person aggrieved by the
finding or sentence of a court martial
it is expected that the confirming
authority shall give due consideration
to the same while confirming
the finding and sentence of the court
martial.
In the present case the representation
dated December 18, 1978 submitted
by the appellant to the confirming
authority was not considered
by the confirming authority when
it passed the order of confirmation
dated May 11, 1979. According to
the counter affidavit filed on behalf
of Union of India this was due to
the reason that the said representa-
tion had not been received by the
confirming authority till the passing
of the order of confirmation. It appears
that due to some communication
gap within the department the
representation submitted by the appellant
did not reach the confirming
authority till the passing of the order
of confirmation. Since we have
held that the appellant had no legal
right to make a representation at
that stage the non-consideration of
the same by the confirming authority
before the passing of the order of confirmation
would not vitiate the said
order.
Shri Ganguli next contended that
the first and the second charge levelled
against the appellant are identical
in nature and since the appellant
was acquitted of the second charge
by the court martial his conviction
for the first charge can not be sustained.
It is no doubt true that the
allegations contained in the first and
the second charge are practically the
same. But as mentioned earlier, the
second charge was by way of alternative
to the first charge. The appellant
could be held guilty of either
of these charges and he could not
be held guilty of both the charges
at the same time. Since the appellant
had been found guilty of the first
charge he was acquitted of the second
charge. There is, therefore, no
infirmity in the court martial having
found the appellant guilty of the first
charge while holding him not guilty
of the second charge. Shri Ganguli
has also urged that the findings
recorded by the court martial on the
first and third charges are perverse

inasmuch as there is no evidence to
establish these charges. We find no
substance in this contention. The
first charge was that the appellant
on or about December 1975, having
received 60.61 meters woollen serge
from M/s Ram Chandra & Brothers,
Sadar Bazar, Jhansi for stitching
19 coats and pants for Class IV
civilian employees of his unit with
intent to defraud got altered ordnance
pattern woollen pants issued
to the said civilian employees instead
of pants stitched out of the cloth
received. To prove this charge the
prosecution examined Ram Chander
P.W. 1 and Triloki Nath P.W. 2
of M/s Ram Chandra & Brothers,
Sadar Bazar, Jhansi who have deposed
that 60.61 meters of woollen
serge cloth was delivered by them to
the appellant in his office in December,
1975. The evidence of these witnesses
is corroborated by B.D. Joshi,
Chowkidar, P.W. 3, who has deposed
that in the last week of December,
1975, the appellant had told him in
his office that cloth for their liveries
had been received and they should
give their measurements. As regards
the alteration of 19 ordnance pattern
woollen pants which were issued
to the civilian employees instead of
the pants stitched out of the cloth
that was received, there is the evidence
of N/sub. P. Vishwambharam
P.W. 19 who has deposed that he was
called by the appellant to his office
in the last week of December, 1975
or the first week of January, 1976
and that on reaching there he found
ordnance pattern woolien pants lying
by the side of the room wall next
to the appellant’s table and that the
247
appellant had called Mohd. Sharif
P.W. 15 to his office and had asked
him to take out 19 woolien trousers
out of the lot kept there in the office.
After Mohd. Sharif had selected
19 woollen trousers the appellant
told Mohd. Sharif to take
away these pants for alteration and
refitting. The judge advocate, in his
summing up, before the court martial,
has referred to this evidence on
the first charge and the court martial,
in holding the appellant guilty
of the first charge, has acted upon
it. It cannot, therefore, be said that
there is no evidence to establish the
first charge levelled against the appellant
and the findings recorded by
the court martial in respect of the
said charge is based on no evidence
or is perverse.
The third charge, is that the appellant
having come to know that
Capt. Gian Chand Chhabra while
officiating OC of his unit, improperly
submitted wrong Contingent Bill No.
341/Q dated September 25, 1975 for
Rs.16,280 omitted to initiate action
against Capt. Chhabra.
In his summing up before the
court martial the judge advocate referred
to the CDA letter M/IV/191
dated November 20, 1975 (Exh.
’CC’) raising cert in objection
with regard to Contingent Bill No.
341/Q dated September 25, 1975
for Rs.16,280 and pointed out that
the said letter was received in the
unit on or about November 28, 1975
and bears the initials of the appellant
with the aforesaid date and remark
“Q Spk with details”. This
would show that the appellant had

248 S N Mukherjee v. Union Of India 1990
knowledge of the Contingent Bill on
November 28, 1975. It is not the case
of the appellant that he made any
complaint against Captain Chhabra
thereafter. It cannot, therefore, be
said that the finding recorded by the
court martial on the third charge is
based on no evidence and is perverse.
In the result we find no merit in
this appeal and the same is accordingly
dismissed. But in the circumstances
there will be no order as to
costs.
R.N.J. Appeal dismissed.

Chapter 17
Ex-Hav Ratan Singh v.
Union of India 1991
EX-HAVILDAR RATAN SINGH
v. UNION OF INDIA AND ORS.
mary Court Martial held without jurisdiction.
PETITIONER: EX-HAVILDAR HEADNOTE: The appellant, a
RATAN SINGH
Havildar, was charge-sheeted on the
v.
ground that during an armed action
against a group of militants when
RESPONDENT: UNION OF INthe
militants opened fire he ran away
DIA AND ORS.
in a cowardly manner and left his
DATE OF JUDGMENT19/11/1991post
without permission of his su-
BENCH: SHARMA, L.M. (J) perior. The respondent-authorities
BENCH: SHARMA, L.M. (J) proceeded on the ground that his of-
VERMA, JAGDISH SARAN (J) fence was covered by section 36 of the
AGRAWAL, S.C. (J)
Army Act, 1950 and accordingly sec-
CITATION: 1992 AIR 415 1991
SCR Supl. (2) 370 1992 SCC Supl.
(1) 716 JT 1991 (4) 427 1991 SCALE
(2)1047
ACT: Army Act, 1950. Section
3(x), 34(a)(h), 36 and 120. Summary
Court MartialJurisdiction ofHavildar
engaged in armed action against militantsCharge
of running away in a
cowardly manner and leaving the
post without permission of superiorNature
of offence and jurisdiction-
Held offence covered by Section 34
and not by section 36Trial by Sumtion
120 (1) of the Act was applicable.
Consequently, he was tried by a
summary court Martial and was convicted
and reduced in rank and imprisoned
for one year. He filed an
application under Article 226 before
the Delhi High Court which was dismissed.
In appeal to this Court it
was contended on behalf of the appellant
that having regard to the nature
of the charge against him section 34
of the Army Act was attracted and
in view of section 120(2) of the Act
trial by summary Court was not per-

250 Ex-Hav Ratan Singh v. Union of India 1991
mitted. Allowing the apeal and setting
aside the judgment of the High
Court, this Court, HELD: 1. Under
section 120 (2) of the Army Act,
1950 if an offence is covered by section
34 and immediate action for the
specified reasons is not warranted,
the summary court martial shall not
have jurisdiction to hold the trial.
[372 D-F] 2. Section 36 covers a wide
range of offences and the scope of
371 section 34 is limited to a smaller
area where the offence is more serious
attracting more severe punishments.
The operation in which the
appellant was engaged was directed
against the militants who were undisputedly
included in the expression
enemy within section 3 (x). If the
allegations are assumed to be true,
than the appellant, on the militants
opening fire shamefully abandoned
the place comitted to his charge and
which he was under a duty to defend.
Both clauses (a) and (h) of section
34 are clearly attracted. The appellant
was therefore guilty of a more
serious offence under clauses (a) and
(h) of section 34 of the Act than
under section 36. 1373 D-G] It is
also not suggested on behalf of the
respondents that there was in existence
any grave reason for immediate
action so as to justify trial by an
officer holding summary court martial.
Consequently the impugned,
hed trial by Summary Court Martial
and the decision thereby must
be held to be without jurisdiction
and is quashed. The conviction and
sentence passed against the appellant
is set aside. [373 E-G] 3. The
respondents-authorities can proceed
to hold a fresh trial of the appellant
in accordance with law. [374.-C]
JUDGMENT: CRIMINAL AP-
PELLATE JURISDICTION: Criminal
Appeal No. 710 of 1991. From
the Judgment and Order dated 29.1.
1991 of the Delhi High Court in
Cr. W.P. No. 9 of 1991. B.Pajha
and Manoj Prasad for the Appellant.
V.C.Mahajan, S.D.Sharma and
S.N.Terde for the Respondents. The
Judgment of the Court was delivered
by SHARMA, J. Special leave
is granted. 2. The appellant, Havildar
Ratan Singh was tried and convicted
by Summary Court martial.
He was reduced in rank and sentenced
to suffer rigorous imprisonment
for one year. He filed an application
under Article 226 of the Constitution
of India before the Delhi
High Court, which was dismissed by
the impugned judgment. 372 3. Although
a number of questions were
raised in the writ petition and the
special leave petition, the ground
urged by the learned counsel for the
appellant before us is confined to one
point. It has been contended that
having regard to the nature of the
charge against the appellant, the provisions
of section 34 of the Army
Act, 1950 (herein-after referred to as
the Act) are attracted, and in view
of section 120 (2) of the Act, trial
by summary not permitted. The
learned counsel has placed the relevant
provisions of the Act indicating
that the appellant would have
been entitled to a qualitatively better
right of defence before a court
martial other than a summary court
martial which was denied to him on
a wrong assumption that the case

was covered by section 36, and not
by section 34. The question which
arises in this case, is whether the
Summary Court Martial had jurisdiction
to try the appellant in the
facts as alleged in the present case.
4. The charge sheet states that when
fired upon by a group of terroristmilitants
during an armed operation
against them, the appellant quitted
his place without orders from his superior
officer. Section 120 of the
Act states that subject to the provisions
of sub-section (2) of the section
a summary court martial may
try any offence punishable under the
Act. Sub-section (2) reads as follows
:- (2) When there is no grave reason
for immediate action and reference
can without detriment to discipline
be made to the officer empowered to
convene a district court martial or
on active service a summary general
court martial for the trial of the alleged
offender, an officer holding a
summary court martial shall not try
without such reference any offence
punishable under any of the sections
34, 37 and 69, or any offence against
the officer holding the Court. The position,
thus, is that if the offence is
covered by section 34 and immediate
action for the specified reasons
is not warranted, the summary court
martial shall not have jurisdiction to
hold the trial. 5. Section 34 states
that any person subject to the Act,
who commits any of the offences enumerated
thereunder, shall on conviction
by court martial, be liable to suffer
death or such less punishment as
prescribed. The offences are detailed
in 12 clauses and clauses (a) and (h)
appear to be relevant in the present
251
context. They are quoted below:-
(a) shamefully abandons or delivers
up any garrison, fortress, post, place
or guard, committed to his charge,
or which it is his duty to defend
or uses any means to compel or induce
any 373 commanding officer or
other person to commit any or the
said acts; or (h) in time of action
leaves his commanding officer or his
post,guard, picquet, patrol or party
without being regularly, relived or
without leave; or. 6. The evidence
in the case, included in the paper
book prepared by the appellant, indicates
that the appellant while engaged
in an armed action against a
group of militants is alleged to have
run away when the militants opened
fire and he, thus, in a cowardly manner
left his post without permission
of his superior officer. The allegations
included in the charge sheet on
the basis of which the appellant was
tried are also to the same effect. The
appellant is, therefore, right in his
stand that if the prosecution case be
assumed to be correct (which he denies)
he was guilty of a more serious
offence under clauses (a) and (h) of
section 34 of the Act than under section
36. In reply it is contended on
behalf of the respondents that the
case is covered by section 36, and,
therefore, the Summary Court Martial
was fully authorised to try the
appellant under section 120 (1). 7.
There is no dispute that the appellant
is governed by the provisions of
the Act. It is also not suggested on
behalf of the respondents that there
was in existence any grave reason for
immediate action so as to justify trial
by an officer holding summary court

252 Ex-Hav Ratan Singh v. Union of India 1991
martial. The Operation in which the
appellant was engaged was directed
against the militants who were undisputedly
included in the expression
enemy within section 3(x). The impugned
order is attempted to be justified
solely on the ground that section
36 covers the case. The argument
overlooks the position that it
is not the scope of section 36 which
can answer the question raised in the
present case. The issue is whether
the offence is punishable under section
34 or not. Section 36 covers a
wide range of offences and the scope
of section 34 is limited to a smaller
area where the offence is more serious
attracting more severe punishments.
If the allegations are assumed
to be true then the appellant,
on the militants opening fire, shamefully
abandoned the place committed
to his charge and which he was under
a duty to defend. Both clauses
(a) and (h) are, therefore, clearly attracted.
The impugned trial by summary
court martial and the decision
thereby must be held to be without
jurisdiction and have to be quashed.
8. We do not find any merit in the
other points mentioned in the writ
petition or in the special leave petition.
They are finally rejected. 9.
During the course of the hearing we
drew the pointed attention of the
learned counsel for the appellant that
if he succeeded on the basis that the
Summary Court Martial was without
jurisdiction, he (the appellant)
may have to be retired and awarded a
more severe punishment, The learned
counsel, however, decided to press
the point even at the risk of a second
trial of the. appellant. The
learned counsel for the respondents
stated that a fresh proceeding may
now be barred by the law of Limitation,
and in view of the fact that the
appellant is guilty of a very serious
charge, this Court should decline to
exercise its power under Article 136.
In reply the learned counsel for the
appellant pointed out that the period
of limitation for commencing a
fresh proceeding against the appellant
shall not expire before 05.02.92
and the apprehension expressed on
behalf of the respondents that the
appellant, even if guilty, may escape
a trial is misconceived. We hold that
the appellant is correct. Accordingly
we set aside the impugned judgment
of the High Court as also the conviction
and sentence passed against
the appellant by the Summary Court
Martial, but allow the respondentsauthorities
to proceed to hold a fresh
trial of the appellant in accordance
with law. The appeal is accordingly
allowed. T.N.A. Appeal allowed.

Chapter 18
Bhuwneshwar Singh v.
Union Of India 1993
Bhuwneshwar Singh vs Union
Of India (Uoi) And Ors. on 1
September, 1993 Equivalent citations:
(1993) 2 CALLT 31 SC, 1993
CriLJ 3454, JT 1993 (5) SC 154 Author:
A S Anand Bench: J Verma, A
Anand
JUDGMENT
A. S. Anand, J.
1. This appeal by special leave is
directed against the judgment of the
Division Bench of the Calcutta High
Court in FMAT No. 3636/91 decided
on 1st April, 1992.
2. Pursuant to his trial by the
District Court Martial, on various
charges, the appellant, who was a
sepoy in the Indian Army, was dismissed
from service and also sentenced
to suffer rigorous imprisonment
for four months. Through a
writ petition in the High Court of
Calcutta, he challenged his dismissal,
conviction and sentence. In the writ
petition, apart from disputing the
factual foundation of the charges and
the unsatisfactory nature of evidence
to establish the same he also alleged
violation of Rule 22 of the Army
Rules; denial of his right to be represented
by a Defending Officer at the
DCM; defect in the promulgation of
the findings and sentence, contrary
to the mandate of Rule 71 of the
Army Rules; the defect in the signing
of the warrant for commitment to
civil prison, by the officiating Commander
instead of the Head of the
Unit and violation of Rule 27 of the
Army Rules read with Sections 101-
103 of the Army Act as regards his
pre-trial detention beyond the permissible
period. Besides, the appellant
also raised a plea that the period
undergone by him in custody, before
the trial by DCM was required to be
set off against the sentence imposed
on him by virtue of the provisions of
Section 428 of the CrPC 1974. All
the contentions raised by the appellant
were considered by the learned
single Judge who rejected the same,
except the grievance concerning his
pre-trial detention beyond the period
prescribed under Sections 101-

254 Bhuwneshwar Singh v. Union Of India 1993
103 of the Army Act read with Rule
27 of the Army Rules. The learned
single Judge found that the appellant
had been detained beyond a period
of three months, before the convening
of the District Court Martial,
without obtaining approval of
the Central Government which rendered
his detention beyond the period
of three months illegal. The
learned single Judge accordingly directed
the respondents to pay a sum
of Rs. 1,000/- by way of compensation
to the appellant for his illegal
detention of about one month, beyond
the permissible period of three
months. The appellant unsuccessfully
pursued the matter by way of
an appeal before the Division Bench
of the High Court, which confirmed
the findings recorded by the learned
single Judge and dismissed the appeal.
3. The appellant has appeared
in person before us and made his
submissions in Hindi, not being familiar
with the court language. We
suggested to him that we could provide
him the assistance of an advocate
through the Legal Aid Board or
request one of the advocates to appear
for him, amicus curiae, without
any financial burden on him, but
the appellant did not want the assistance
of any counsel and insisted
on arguing the matter himself. Not
being conversant with the procedure
of the Court or the law, the appellant
took time to argue on matters,
which were strictly speaking not relevant,
and inspite of our advising
him to allow us to appoint a counsel
for him, in his own interest, he re-
mained adamant and therefore lot of
judicial time, which could have been
utilised for other work, was spent by
us in trying to grasp his grievances,
in which task, Mr. Reddy the learned
Additional Solicitor General gave us
his valuable assistance. Taking note
of the increase in the number of cases
in which the parties appear in person
in this Court, we feel that a stage
has now reached when this Court, on
the administrative side, is required
to consider the desirability of providing
some procedure to scrutinise
their petitions and screen the parties,
appearing in person, and only
such of the parties who are certified
by an authority/committee as “competent”
to assist the Court in person,
may, with the leave of the Court, be
permitted to argue in person. Those
of the litigants, who are not so certified,
or those to whom leave is not
granted by the court, should be referred
to the Legal Aid and Advice
board or the “Supreme Court Senior
Advocates Free Legal Aid Society”,
which is a voluntary body
and offers assistance, in appropriate
cases, irrespective of the financial
position of the concerned litigant.
Apart from providing proper assistance
to the Court, the assistance
by the lawyers would ultimately tend
to be in the interest of the litigants
themselves. It would also take care of
preventing objectionable and unparliamentary
language in the pleadings,
which some of the “parties in person”
permit themselves the liberty of
indulging in, not being familiar with
the court craft and the bounds of law
within which the parties must formulate
their pleadings in proper lan-

guage. Such a course would advance
public interest while safeguarding individual
interest also. Our experience
shows that every advocatesenior,
not so senior and juniorwhenever
requested by the Court to
offer assistance has responded positively
and generously and therefore
the interest of the “party in person”
who would be represented by such a
counsel would stand adequately protected.
We say no more on this aspect
at this stage.
4. The appellant invited us to go
through the evidence recorded by the
District Court. Martial and examine
the discrepancies appearing therein.
He disputed the correctness of the
factual basis on which the proceedings
had commenced, for recording
of the summary of evidence and the
trial by the District Court Martial.
Undeterred by the findings recorded
by the District Court Martial, which
were confirmed by the confirming authority
and against which the departmental
appeal had also failed, as well
as the judgments of the single Judge,
and the Division Bench of the High
Court, the appellant insisted that we
should reappraise the evidence and
accept his version regarding the incident
and set aside his conviction
and sentence. We politely but firmly
declined the invitation to reappraise
the evidence for testing the validity
of the findings, as indeed it is not a
case, nor was it the contention of the
appellant in the High Court or before
us, that the findings of the District
Court Martial -were based on no evidence
at all. Both the single Judge
and the Division Bench of the High
255
Court found that the proceedings before
the District Court Martial had
been conducted in accordance with
law and that there was no defect in
the appraisal of evidence by the District
Court Martial. We agree. This
Court cannot, in an appeal under Article
136 of the Constitution of India,
be requested to reappraise the evidence
and examine whether the incident
took place in the manner suggested
by the appellant or the prosecution.
5. Both the learned single Judge
and the Division Bench of the High
Court have considered the grievance
of the appellant, based on the alleged
non-compliance with Rule 22
of the Army Rules which requires
hearing of the charge in the presence
of the accused and found that
Rule 22 had been properly complied
with. We agree. The charges were
heard on 29.3.1989 by Lt. Col. R.S.
Sidhu, the then Commanding Officer,
in the presence of the appellant,
who was afforded ample opportunity
to cross-examine the prosecution witnesses.
It was only after considering
the evidence so recorded, that
the Commanding Officer ordered the
recording of summary of evidence. In
the counter affidavit filed by the respondents
in the High Court, it was
clearly brought out that the requirements
of Rule 22 had been complied
with. The appellant was unable to
point out any infirmity in the findings
recorded by the learned single
Judge or the Division Bench of the
High Court on this aspect of the case.
6. The grievance of the appellant
that he was denied an opportunity to

256 Bhuwneshwar Singh v. Union Of India 1993
be represented by a Defending Officer
is wholly untenable. The High
Court also found it so. A perusal
of the record reveals that though the
appellant had requested that one of
the three officers named by him be
nominated as defence counsel, on being
informed that none of those three
officers were available at the station,
and having been supplied with a list
of the officers available at the station,
he was represented by Major
S.K. Sharma as his defence counsel.
Not only did the appellant agree to
the appointment of Major Sharma
but the said Defending Officer crossexamined
the witnesses on behalf of
the appellant and also filed written
submissions at the close of the address.
The appellant, during the proceedings
in the District Court Martial
did not raise any objection to
be defended by Major S.K. Sharma.
There has, thus, been no denial of
providing proper defence assistance
to the appellant during the Court
Martial proceedings.
7. Both the leaned single Judge
and the Division Bench also did not
find any merit in the submission of
the appellant that the warrant for
his committal to civil prison had
not been signed by the competent
authority as envisaged by Section
169(2) of the Army Act. The appellant
submitted before us also that
since, the warrant for committal of
a person sentenced by court martial,
to a civil prison under Section 169(2)
of the Army Act read with Rule 166
of the Army Rules, is required to be
signed and forwarded either by the
Commanding Officer or such other
officer as may be prescribed, but in
his case had been signed by respondent
No. 4, in spite of the presence of
the Commanding Officer in the unit,
it was illegal. We cannot agree. Under
Section 169(2) of the Army Act
read with Army Rule 166, a warrant
for the committal of a person
sentenced by court martial to a civil
prison is required to be forwarded
and signed either by the Commanding
Officer or such other Officer as
may be prescribed. Respondent No.
4, at the relevant time was performing
the duties as an officiating Commanding
Officer of the Unit to which
the appellant was attached, as an
officiating incumbent, and therefore,
Respondent No. 4 was fully competent
to sign the warrant.
8. The grievance that there has
been no promulgation of the findings
and sentence recorded by the DCM,
as required by Rule 71 of the Army
Rules is also without any merit. A
perusal of the record, which was produced
before the High Court, establishes
that the sentence was in
fact promulgated together with its
confirmation on 18.10.1989 as evidenced
by letter of 3/4 Gorkha Rifles
No. 425287-1K/TCM/BS/A dated
18.10.1989, addressed to the Head
Quarters Calcutta, Sub-Area with a
copy for record to the Defence Security
Corps and 376 DSC Planoton.
There has, thus, been no defeat in
the promulgation of the findings and
the sentence.
9. We, however, find good and
genuine basis for the grievance of the
appellant that he had been detained
beyond the permissible period, as

prescribed under Sections 101-103 of
the Army Act read with Rule 27 of
the Army Rules, before his trial by
the DCM. This grievance had found
acceptance by the High Court also
and-the respondents have not questioned
the finding of the High Court
in that behalf in this Court either.
10. Section 101 of the Army Act
provides that any person subject to
the Army Act charged with an offence
may be taken into military custody,
under orders of the superior officer.
The method of arresting a person
subject to Army Act, however,
is informal. Section 102 of the Act
provides that a Commanding Officer
shall ensure that such a person is
not detained for more than 48 hours
after the committal of such person
into custody, without the charge being
investigated, unless investigation
within that period appears to the
Commanding Officer to be impracticable
having regard to the public
service. In case the period of detention
is to exceed 48 hours, Section
102(2) of the Act enjoins that
the reasons thereof shall be reported
by the Commanding Officer to the
General or other officer, competent
to convene a general or district Court
Martial for the trial of the person
charged. In calculating the period
of 48 hours, Sundays and other public
holidays, are required to be excluded.
Section 103 of the Act then
deals with the intervals between committal
and the court martial and provides
that where a person remains
in custody for a period longer than
8 days, without the Court Martial
for his trial being ordered to assem-
257
ble, a special report giving reasons
for the delay shall be made by the
Commanding Operator and a similar
report shall be forwarded at the interval
of every 8 days, till the Court
Martial is convened or the person is
released from custody. The form in
which the report is required to be
made, every 8 days of the continued
detention of such a person, is prescribed
by Army Rules 27. Sub Rule
3 of Rule 27 lays down that the detention
in military custody beyond 2
months of a person in whose case a
court martial has been ordered to assemble
(before the commencement of
the trial), would require sanction of
the Army Chief or any officer authorised
in that behalf with the approval
of the Central Government and that
the period of detention in such a case
may extend to a total period of three
months but not beyond. Rule 27
(3)(ii) of the Rules then mandates
that any detention beyond a period
of three months, would required the
approval of the Central Government.
The basic object of Sections 101-103
of the Act read with Rule 27 of the
Rules appears to be to dispose of
court martial cases expeditiously and
to minimise the period of pre-trial
detention. The object is both salutary
and laudable. It is not disputed
that in the instant case, the
appellant was taken into custody on
28th March 1989 and the District
Court Martial was convened on 25th
July 1989. The appellant, therefore,
remained in custody for more
than three months prior to his trial
by the District Court Martial. No
sanction or approval of the Central
Government for the detention of the

258 Bhuwneshwar Singh v. Union Of India 1993
appellant beyond a period of three
months was obtained and, therefore,
the safeguards provided for in Sections
101-103 of the Army Act read
with Rule 27 of the Rules were respected
in their breach, without any
explanation being furnished for noncompliance
with the requirements of
those provisions. The learned single
Judge noticed this and observed:
Therefore, the petitioner was
kept in custody for more than 3
months. Any detention beyond a
period of 3 months requires the approval
of the Central Government.
There is nothing to show that any
approval of the Central Government
has been obtained. Therefore, I am
of the view that the petitioner has
been detained from 29th June 1989
to 25th July 1989 illegally without
any approval of the Central Government.
There is no explanation as to
why no such approval of the Central
Government was taken.
(Emphasis ours)
11. The Single Judge, however,
held that the “illegal detention” of
the appellant did not vitiate his “detention”
and came to the conclusion
that the appellant deserved to be
awarded compensation for his illegal
detention and awarded Rs. 1,000/as
compensation to him. The Division
Bench concurred with the above
findings. In the established facts and
circumstances of the case, we agree
with the findings recorded by the
High Court that the pre-trial detention
of the appellant for a period beyond
three months without the approval
of the Central Government
as required by Rule 27(3)(ii) of the
Rules was illegal. Would this illegal
vitiate the trial and if not, is the compensation
of Rs. 1,000/-awarded by
the High Court proper and reasonable,
is the question which now needs
our attention?
12. The continued pre-trial detention
of the appellant for a period
beyond three months was on account
of the fact that there was delay in
the convening of the District Court
Martial. No mala fide have been alleged,
let alone established, for detaining
the appellant beyond a period
of three months, without obtaining
the approval of the Central Government.
The authorities appear to
have been negligent and have shown
scant respect for the provisions of
the Army Act and the Rules. That
is objectionable. Those who feel
called upon to deprive other persons
of their liberty in the discharge of
their duty, must strictly and scrupulously
observe the norms and rules of
law. The object of Sections 101-103
of the Army Act read with Rule 27
of the Army Rules is that a person
charged under the Act should not be
unnecessarily deprived of his freedom
on the ground that he is accused of
an offence triable by the Court Martial.
The protection granted to persons
subject to the Act by the above
provision would become meaningless
if one who is supposed to be the protector
of the person concerned acts
callously and unconcerned with the
rights available to such a person.
13. Keeping in view the limited
nature of judicial review in matters
arising out of Court Martial proceedings,
it is not only desirable but nec-

essary that the authorities under the
Army Act strictly follow the requirements
of the Act and the Rules. The
authorities cannot be permitted to
deal with the liberty of a person subject
to the Army Act, in a casual
manner and cannot be allowed by
their commission or omission, to frustrate
the object of speedy trial as envisaged
by the Act, of the persons
to be tried by a Court Martial In
our opinion, however, keeping in view
the object of the provisions of Section
101-103 of the Act and Rule 27
of the Rules, the illegal detention of
the person charged under the Army
Act, for a period beyond the prescribed
one, before commencement
of his trial by the Court Martial,
would neither vitiate the Constitution
of the District Court Martial nor
effect the trial held by the District
Court Martial under the provisions
of the Army Act, much less render
the conviction and sentence recorded
thereat bad. The failure to prevent
unnecessary and prolonged custody
prior to the trial by the Court
Martial would not, in any way, effect
the Court Martial would not,
in any way effect the Court Martial
proceedings or render negatory the
findings of the District Court Martial
or the General Court Martial, as
the case may be. Since the proceedings
of the District Court Martial
were held strictly in accordance with
the provisions of the Army Act and
the Rules framed thereunder and do
not suffer from any infirmity whatsoever,
the pre-trial illegal detention of
the appellant for a period of about
one month or so would not vitiate
the finding of guilt and the sentence
259
recorded by the District Court Martial,
which was confirmed by the confirming
authority and against which
departmental appeal was dismissed
by the appellate, authority and the
challenge in the High Court failed.
We, therefore, hold that for the failure
of the authorities to obtain approval
of the Central Government for
detaining the appellant in custody,
prior to his trial by DCM, for a period
beyond 3 months, would not vitiate
his trial by the DCM or otherwise
effect his conviction and sentence.
The pre-trial illegal detention
does not effect the jurisdiction of the
DCM, validly convened, and such an
illegal detention would not amount
to a jurisdictional defeat vitiating the
trial or the findings.
14. We, however find that
the award of compensation of Rs.
1,000/- by the High Court for the
established illegal detention of the
appellant, for about one month or
so, is grossly inadequate and hopelessly
unimaginative. After having
recorded the findings that the appellant
had been illegally detained from
29th June 1989 to 25th July 1989,
the High Court was expected to take
a more realistic view of the deprivation
of the personal liberty of the appellant,
rather than indulge only in a
lip service, by awarding him a poultry
sum of Rs. 1,000/- as compensation.
15. This Court in Nilabati Behera
v. State or Orissa and Ors. (1)
observed:
This Court and the High Courts,
being the protectors of the civil liberties
of the citizen, have not only

260 Bhuwneshwar Singh v. Union Of India 1993
the power and jurisdiction but also
an obligation to grant relief in exercise
of its jurisdiction under Article
32 and 226 of the Constitution to the
victim or the heir of the victim whose
fundamental rights under Article 21
of the Constitution of India are established
to have been flagrantly infringed
by calling upon the State to
repair the damage done by its officers
to the fundamental rights of the
citizen, notwithstanding the right of
the citizen to the remedy by way of a
civil suit or criminal proceedings....
It is a sound policy to punish the
wrongdoer and it is in that spirit that
the courts have moulded the relief by
granting compensation to the victims
in exercise of their writ jurisdiction.
In doing so the courts take into account
not only the interest of the applicant
and the respondent but also
the interests of the public as a whole
with a view to ensure that public
bodies or officials do not act unlawfully
and do perform their public duties
properly particularly where the
fundamental right of a citizen under
Article 21 is concerned.
16. The Court then opined:
The public law proceedings serve
a different purpose than the private
law proceedings. The relief of monetary
compensation, as exemplary
damages, in proceedings under Article
32 by this Court or under Article
226 by the High Courts for established
infringement of the indefeasible
right guaranteed under Article
21 of the Constitution is a remedy
available in public law and is based
on the strict liability for contravention
of the guaranteed basic and in-
defeasible rights of the citizen. The
purpose of public law is not only to
civilize public power but also to assure
the citizen that they live under
a legal system which aims to protect
their interests and preserve their
rights. Therefore, when the court
moulds the relief by granting ’compeasation’
in proceedings under Article
32 or 226 of the Constitution
seeking enforcement or protection of
fundamental rights, it does so under
the public law by way of penalising
the wrongdoer and fixing the liability
for the public wrong on the State
which has failed in its public duty to
protect the fundamental rights of the
citizen. The payment of compensation
in such case is to be understood,
as it is generally understood in a civil
action for damages under the private
law but in the broader sense of providing
relief by an order of making
’monetary amends’ under the public
law for the wrong done due to
breach of public duty, of not protecting
the fundamental rights of the citizen.
The compensation is in the nature
of ’exemplary damages’ awarded
against the wrongdoer for the breach
of its public law duty.
17. This Court as also the High
Courts under Article 226 have the
power of judicial review, in respect
of proceedings of court martial as
well as the proceedings subsequent
thereto, even though to a limited extent,
and can in appropriate cases
grant relief, where there has been denial
of the fundamental rights of the
citizen or if the proceedings before
the Court Martial suffer from a jurisdictional
defect or any other sub-

stantive error of law apparent on the
face of the record See S.N. Mukherjee
v. Union of India - Constitution
Bench.
Having found that the appellant
was in illegal detention from 29th
June 1989 to 25th July 1989, in our
opinion it would be appropriate to
award him adequate compensation
for violation of his fundamental right
of personal liberty as guaranteed by
Article 21 of the Constitution and
we accordingly direct that the appellant
shall be entitled to a sum of Rs.
30,000/- as compensation for his illegal
pre-trial detention and we make
an order accordingly.
18. In so far as the last submission
made by the appellant i.e. with
regard to the set off of the period
of pre-trial detention against the period
of sentence is concerned, suffice
it to say that it is now settled by this
Court in Ajmer Singh and Ors. v.
Union of India and Ors. (2) that in
the case of person tried by court
mertial, there is neither any investigation
nor inquiry, nor trial under
the CrPC and as such the provisions
of set off contained in Section
428 of the Cr.P.C. are not attracted
to the cases of persons convicted
and sentenced by court martial
to undergo imprisonment. The
High Court was therefore, perfectly
justified in rejecting the prayer of the
appellant and the view of the High
Court is unexceptionable.
19. Since, the period of pre-trial
detention is not set off against the
sentence of imprisonment under Section
428 Cr. PC, the Parliament with
261
a view to avoid hardship to the persons
convicted by Court Martial, has
in 1992 incorporated in the Army Act
itself a provision similar in terms as
Section 428 Cr. PC. Section 169A of
the Army Act, as introduced by the
Army Amendment Act, 1992, provides:
169A. Period of detention undergone
by the accused to be setoff
against the sentence of imprisonment.
- When a person or officer
subject to this Act is sentenced by a
court-martial to a term of imprisonment,
not being an imprisonment in
default of payment of fine, the period
spent by him in civil or military custody
during investigation, inquiry or
trial of the same case and before the
date of order of such sentence, shall
be set off against the term of imprisonment
imposed upon him and the
liability of such person or officer to
undergo imprisonment on such order
of sentence, shall be restricted to the
remainder, if any, of the term of imprisonment
imposed upon him.
Section 169A of the Army Act
would, therefore, after 1992 mitigate
the hardship of the persons sentenced
by the Court Martial under the Army
Act. However, the benefit of this provision
is not available to the appellant,
because he was sentenced to suffer
the imprisonment long before this
amendment came into force in 1992.
20. Thus, except for the enhancement
of compensation from Rs.
1,000/- to Rs. 30,000/- payable by
the respondent to the appellant for
his pre-trial illegal custody. We do
not find any infirmity in any other
finding recorded by the High Court

262 Bhuwneshwar Singh v. Union Of India 1993
and therefore in all other respects,
the appeal Sails and is dismissed.
21. The amount of compensation
shall be paid by the respondents to
the appellant within Three months
from the date of this order provided,
however, the appellant shall deposit
his kit etc. with the competent authority,
in case he is still retaining
the same, before receiving the compensation.

Chapter 19
P Chandramouli v. Union Of
India 1994
P. CHANDRAMOULY v.
UNION OF INDIA AND ANR.
CASE NO.: Appeal (crl.) 623-24
of 1987
PETITIONER: P. CHAN-
DRAMOULY
RESPONDENT: UNION OF IN-
DIA AND ANR.
DATE OF JUDGMENT:
22/07/1994
BENCH: M.M. PUNCHHI & KJ.
REDDY
JUDGMENT:
WITH
Criminal Appeal Nos. 620-22 of
1987 and Criminal Appeal No. 625
of 1987.
1994 SUPPL. (2) SCR 43
The following Order of the Court
was delivered ;
Criminal Appeal Nos. 620 to 622
of 1987 on behalf of three members of
the General Reserve Engineers Force,
Criminal Appeals Nos. 623-624 by
one more such member and Crim-
inal Appeal No. 625 of 1987 by
the Union of India are against the
common judgment and order dated
31.3.1987 passed by a Division Bench
Of the Gauhati High Court in Writ
Appeals Nos. 1,2 and 3 of 1980.
The four appellants, members of
the General Reserve Engineers Force
(hereinafter referred to as the Force)
were accused of having committed offences
punishable under Section 63 of
the Army Act under four counts, as
also under Section 39(a) and 41 of
the said Act under one count each.
For the six charges framed they were
tried by a Court Martial and convicted
under all the six counts and
awarded sentences of imprisonment,
They invoked the jurisdiction of the
Central Government under Sections
164 and 165 of the Army Act, 1950
but with no success. They filed
two separate writ petitions before
the Gauhati High Court challenging
their convictions and sentences. The
writ petitions to the officers were accepted
partially to the extent that of-

264 P Chandramouli v. Union Of India 1994
fence under Section 63 in relation to
one count was quashed. The learned
Single Judge also took the view that
orders of the Competent Authority
under Sections 164 and 165 of the
Army Act required a speaking order.
The learned Single Judge in relation
to the other charges suggested
to the Competent Authority whether
it would be worthwhile to keep operating
the sentence s imposed under
other charges due to the quashing of
one of the charges under Section 63
of the Act. Against the partial acceptance
of their writ petitions, the
four officers filed their respective letters
patent appeals before the Division
Bench of that Court as did the
Union of India, aggrieved as it was
against the quashing of charge under
one count under Section 63 of
the Act. The Division Bench on
reappraisal of the entire matter came
to the conclusion that all the six
charges against the officers stood established
and that there was no occasion
for the learned Single Judge
to have quashed one charge. While
doing so it agreed with the learned
Single Judge that the Authority exercising
jurisdiction under Sections 164
and 165 of the Army Act was required
to pass a speaking order. All
the same, the convictions and sentences
were maintained despite the
requirement of the Authority passing
a speaking order. Recommendation,
however, as made to the Union of India
that it was a case where sentences
of the officers deserve commuting.
We are told that the Union of India
accepting the suggestion committed
accordingly the sentences of imprisonment
of the four members and they
are at large.
It is the conceded case of the
officer-appellants that the provisions
of the Army Act, subject to some exceptions
are applicable to the Force
with effect from 23.9.1960. The offences
herein were committed in the
year 1971. The plea of the appellants
is that the Court Martial set
up under a warrant of the Chief
of the Army Staff, authorising the
Chief Engineer to conduct it, was not
legally constituted under the Army
Act since there was no parallel officer
of an Army rank posted in the Force.
It is stated that this objection to jurisdiction
was taken before the Court
Martial but not ignored. The appellants
learned counsel was unable to
support his contention. We do not
find any material in support thereof
because the proceedings of the Court
Martial have not been placed before
us as part of the record. The judgment
under appeal is also not reflective
of the question of jurisdiction
having been raised in such manner.
Even otherwise it is not available
to the appellants because of the
settled position in law that the General
Reserve Engineers Force is part
and parcel of the Armed Forces to
which the Army Act is applicable. In
this connection R. Viswan & Ors. v.
The Union of India & Ors, [1983] 3
S.C. R. 60 and Devi Prasad Mishra v:
Union of India and Ors., S L P. (Crl.)
No. 1020 of 1978 may with advantage
be seen. Such argument is not
open to the appellants. The ancillary
question raised that those judgments
applied prospective and did
not cover the state of law as exist-

ing prior thereto and the instant being
a case which arose priority is to
be noted and rejected. That Court,
in those cases, not only declared the
state of law as existing but interpreted
it to have always existed from
the date of the notification applying
the Army Act to the Force.
Undeniably, when the Army Act
is applicable, the Chief of the Army
Staff is the person, besides the Central
Government, to issue a warrant
for convening a Court Martial. He
can, therefore, authorise not only
anyone from the personnel directly
governed under the Army Act but
also from the personnel to which the
Army Act stands extended. Here the
Chief Engineer could be issued a warrant
for the purpose being on the
roll of the Force to which the Army
Act had been extended. The argument
thus being of no substance is
rejected.
Lastly, it has been contended on
behalf of the appellants that while
these appeals were pending in this
Court they have been served Show
Cause Notices under the Central
Civil Services (Classification, Control
and Appeal) Rules so as to take
disciplinary action against them on
the basis of their convictions. It has
been urged that offence of violation
of good Order and discipline punishable
under Section 63 of the Army
Act had come to be committed because
the appellants genuinely believed
that they were not members
of the Armed Forces and thus not
bound by the strict standards of good
order and discipline as expected from
the Armed Forces. Now while pro-
265
ceeding with this judgment our attention
has been drawn to the limited
leave granted in these matters,
only on two questions. One of the
questions is to examine the effect of
substitution of the word discipline in
place of the expression military discipline
in Section 63 of the Act by order
of the Central Government dated
September 23, 1960 issued in exercise
of the powers conferred under Section
4(1) of the Act, as applicable to
the members belonging the General
Reserve Engineers Force and questions
incidental thereto. It was also
made clear that such grant of leave
would not entitle the parties to reopen
the questions decided by the
Constitution Bench in R. Viswan &
Ors. v. Union of India & Ors.,
yet the learned counsel for the appellants
went on raising the question
of applicability of the Army Act to
the members of the General Reserve
Engineers Force and transgressed the
limits of special leave. Keeping that
apart. Section 63 of the Act nevertheless
is applicable to the members
of the Force and they can be tried for
any act or omission which, though
not specified in the Act, is prejudicial
to good order and discipline and
can be convicted by a Court Martial
and be held liable to suffer imprisonment
for a term which may extend to
seven years or less, As we view it, the
dropping of the word military from
the text of Section 63 rather enlarges
its scops in a sense for it obligates
maintenance of discipline in a wider
sense. It may be true, as has been
contended by the learned counsel for
the appellants, that the discipline envisaged
for the Engineers Force can-

266 P Chandramouli v. Union Of India 1994
not be of such strict standards as is
regimental or military discipline but
it is, however, forgotten when so canvassing
that even ordinary discipline,
which is expected to be observed by
the members of the Engineers Force,
when violated, would attract the jurisdiction
of the Court Martial which
is empowered to impose sentences of
imprisonment. Such imprisonment
is extendable up to seven years and
can be either rigorous or simple as
is plain from the language of Section
71(c) of the Army Act. Other
punishments enumerated in clauses
(d), (e), (f), (g) and (h) of Section
71, though forming part of the
Army Act, are excepted from application
to the Engineers Force. Those
are cashiering, dismissal from service,
reduction in rank, forfeiture of
seniority of rank or forfeiture of service.
These cannot be imposes by
the Court Martial when trying offences
against the members of the
Engineers Force. Since these punishments
do hot fall within the domain
of the Court Martial insofar as members
of the Engineers Force are concerned,
then obviously the Central
Civil Services (C.CA) Rules come in
to fill the vacuum. The members
of the Engineers Force are not due
for a better treatment than ordinary
Government servants who have to
suffer disciplinary action under the
said Rules on the basis of criminal
convictions. Therefore, we are of
the considered view that the expression
military discipline when substituted
as discipline, for the purpose of
the Engineers Force serves the purpose
above-mentioned. It goes without
saying that the behaviour of the
members of the Engineers Force subjected
to good order and discipline
cannot work to its prejudice. Anyone
violating that good order and discipline
would thus have to suffer. We
hold accordingly.
The second question on which the
limited leave was granted was to discover
the duty of the Confirming Authority
to pass a reasoned order under
Sections 150, 154 and 164 of the
Act. The understanding of Sections
154, 164 of the Act would govern
the role assigned under Section 165
of the Act. These provisions do not
specifically require any speaking order
to be passed. The learned Single
Judge as also the Division Bench of
the High Court opined that passing
of a speaking order would be: necessary.
The High Court has taken
this view against the Constitution
Bench of this Court in Som Datta
v. Union of India & Ors., [1969] 2
S.C.R. 177 wherein it has been authoritatively
held that there is no
express obligation imposed by Section
164 or Section 165 of the Army
Act on the Conforming Authority
or upon the Central Government to
give reasons in support of its decision
to confirm the proceedings of the
Court Martial. Before the Constitution
Bench, as here, no provision of
the Act or any Rule made thereunder
has been shown from which implication
can be drawn that such a
duty was cast upon the Government
and the Confirming Authority. This
Bench is bound by the view express
by the Constitution Bench. Additionally,
we do not see that absence
of a speaking order, in these circum-

stances, b any way thwarts judicial
review should the court undertake
the exercise since the parent order is
always available to build argument?
upon. This part of the view of the
High Court relating to the passing
of the speaking order, we cannot approve
and thus we set it aside retrieving
it from the judgment under appeal.
Before we part With the judgment,
we need to observe that much
of our time was employed by learned
267
Counsel without bringing to our notice
the limitations within which the
debate could go on terms of the special
leave. Therefore, We are constrained
to award costs. Criminal
Appeals Nos. 620 to 624 are, therefore,
dismissed with costs which we
quantify at Rs. 5,000.
Criminal Appeal No. 625 of 1987
filed on behalf of the Union. of India
is allowed in the above terms. In this
appeal there shall be no costs.

268 P Chandramouli v. Union Of India 1994

Chapter 20
Union Of India v. R.K.L.D.
Azad 1995
Union Of India & Ors v.
R.K.L.D. Azad on 9 August, 1995
Equivalent citations: 1996 AIR 845,
1995 SCC Supl. (3) 426 Author: M
Mukherjee Bench: M M.K.
PETITIONER:
M.K. MUKHERJEE, J.
Special leave granted.
The two short questions that ate
required to be answered in these appeals
are:-
(i) whether a person who is sub-
UNION OF INDIA & ORS. ject to the Army Act, 1950 (‘Act’
v.
for short) can be dismissed from ser-
RESPONDENT:
vice for committing an offence under
the Act even after he had retired
R.K.L.D. AZAD
on attaining the age of superannua-
DATE OF JUDGMENT09/08/1995tion?
and (ii) whether a Junior Com-
BENCH:
missioned Officer of the Indian Army
MUKHERJEE M.K. (J)
BENCH:
who has to his credit the minimum
period of qualifying service required
to earn a pension or gratuity is eli-
MUKHERJEE M.K. (J) gible for the same in case he is dis-
JEEVAN REDDY, B.P. (J) missed from service under the provi-
CITATION:
1996 AIR 845 1995 SCC Supl. (3)
426 1995 SCALE (4)711
sions of the Act? The question arise
in the wake of the following undisputed
facts. While employed as a Junior
Commissioned Officer in the In-
ACT:
dian Army the respondent herein was
HEADNOTE:
placed under closed arrest on August
JUDGMENT:
J U D G M E N T
7, 1990 pending his trial by a General
Court Martial for an offence under
Section 64 (e) of the Act. Since the

270 Union Of India v. R.K.L.D. Azad 1995
respondent was due to retire on August
31, 1990 on attaining the age of
superannuation the Army authorities
passed an order on August 23, 1990,
extending his subjection to the Act
till completion of the trial. In the
trial that commenced from November
1, 1990 and ended on November
26, 1990, the respondent was convicted
and the sentences imposed for
the conviction were rigorous imprisonment
for one year and dismissal
from service. After due confirmation
in accordance with Section 154 of the
Act the order of conviction and sentence
was promulgated on January
15, 1991.
Assailing the above order of the
General Court Martial the respondent
filed a writ petition in the
Andhra Pradesh High Court which
was heard by a learned Single Judge.
The learned Judge allowed the writ
petition in part by setting aside the
order of dismissal of the respondent,
but upholding his conviction
and sentence of rigorous imprisonment
for one year. The reason which
weighed with the learned Judge in
setting aside the dismissal was that
consequent his retirement on August
31, 1990 the question of his dismissal
from service could not have
arisen. According to the learned
Judge the order dated August 23,
1990, whereby the respondent was to
be subject to the Act till conclusion
of the trial, only entitled the General
Court Martial to proceed with the
trial which, otherwise, would have
been impermissible and illegal from
the date of the respondent’s retirement.
Such an order under Section
123 of the Act, the learned Judge observed,
could not give any statutory
imprimatur to an order of dismissal
passed against an officer of the Army
after he had ceased to hold his post
consequent upon his retirement.
As success of either of the contesting
parties in the writ petition
was only partial, both preferred Letters
Patent Appeals in the High
Court but they were dismissed and
the order of the learned Single Judge
was confirmed. Aggrieved thereby
these appeals have been filed at the
instance of the Army authorities.
Relying upon the provisions of
sub-section (1) and (2) of Section 123
of the Act which read as under: “123
Liability of offender who ceases to be
subject to Act-
(1) Where an offence under this
Act had been committed by any person
while subject to this Act, and he
has ceased to be so subject, he may
be taken into and kept in military
custody, and tried and punished for
such offence as if he continued to be
so subject.
(2) No such persons shall be tried
for an offence, unless his trial commences
within a period of three years
after he had ceased to be subject to
this Act; and in computing such period,
the time duting which such person
has avoided arrest by absconding
or concealing himself or where the
institution of the proceeding in respect
of the offence has been stayed
by an injunction or order, the period
of the continuance of the injunction
or order, the day on which it
was issued or made, and the day on

which it was withdrawn, shall be excluded.”
it was contended on behalf
of the appellants that a plain reading
thereof made it abundantly clear that
notwithstanding the fact that the respondent
had ceased to be subject to
the Act consequent upon his retirement,
he could be tried for the offence
under Section 64(e) of the Act,
as it was committed before his retirement,
and punished for the same in
view of the deemed extension of his
subjection to the Act under Section
123 of the Act. It was next contended
that both the trial, and the punishment
of dismissal that followed,
were legal and valid as the former
commenced within the period stipulated
under sub-section (2) of Section
123 and the latter could be combined
with the sentence of imprisonment
imposed upon the respondent in view
of Section 73 of the Act. In support
of their contention the appellant
relied upon Major (Retd.) Hari
Chand Pahwa v. Union of India &
Anr. 1995 Supp (1) SCC 221. While
repudiating the above contention of
the appellants by adopting the reasoning
of the learned single Judge in
this regard, as confirmed by the Division
Bench in the Letters Patent
Appeal, the learned counsel for the
respondent submitted that in case it
was held that the order of dismissal
of the respondent was legally sustainable
still he could not be deprived of
his pension and gratuity in the absence
of any express embargo to that
effect in the dismissal order.
In the case of Maj. (Retd.) Hari
Chand Pahwa (supra) this Court
while repelling the contention raised
271
on behalf of the appellant therein
that he could only be awarded a
punishment of imprisonment after
conviction but not also of being
cashiered from the Army (which was
imposed upon the appellant therein)
because he had earlier retired this
Court observed:
Though the appellant had retired
from the Army service but by operation
of sub-section (1) of Section
123 of the Army Act, he could be
tried by the GCM in respect of the
offences committed by him during
the period of his actual service and
could be committed and punished in
the same manner who was subject
to the Army Act could be tried and
punished. The said provision clearly
states that a retired person can be
tried and punished for such offences
as if he continued to be so subject.
We, therefore, do not agree with the
first contention raised by the learned
counsel for the appellant and reject
the same. The GCM could award
any of the punishments which could
be awarded by the said court under
law including to be cashiered from
the Army. The provisions of section
123 make no difference between
an officer who is still in service and
who was retired from service provided
the GCM proceedings are initiated
within the period of limitation
provided under sub-section (2)
of Section 123 of the Army Act.”
As the facts of the case presented
before us are on all fours with those
in Hari Chand Pahwa (Supra) and as
we respectfully agree with the above
quoted observations, the first question
must be answered in the affir-

272 Union Of India v. R.K.L.D. Azad 1995
mative. Coming now to the second
question we find that the grant of
pension and gratuity to Junior Commissioned
Officers, other Ranks and
Non-Combatants (Enrolled) is regulated
by Chapter III of the Pension
Regulations for the Army, 1961 (Part
I). Regulation 113 which comes under
Section I of the above Chapter
reads, after its amendment in 1967,
as follows:
“113 (a) An individual who is dismissed
under the provisions of the
Army Act, is ineligible for pension or
gratuity in respect of all previous service.
In exceptional cases, however,
hemay, at the discretion of the President
be granted service pension or
gratuity at a rate not exceeding that
for which he would have otherwise
qualified had he been discharged on
the same date.
(b) An individual who is discharged
under the provisions of
Army Act and the rules made thereunder
remains eligible for pension or
gratuity under these Regulations.”
In view of the plain language
of the above regulation the respondent
cannot lay anylegal or legitimate
claim for pension and gratuity
on the basis of his previous service
as, admittedly, he stands dismissed
in accordance with Section 73
read with Section 71 of the Act. The
second question must, therefore, be
answered in the negative. On the
conclusions as above these appeals
are allowed. The impugned judgments
of the High Court so far as
they held that the dismissal of the
respondent was legally unsustainable
are hereby set aside and the writ petition
filed by the respondent is dismissed.
There will be no order as to
costs.
Before we part with this record
we make it clear that this judgment
of ours will not stand in the way of
the respondent to make a representation
seeking exercise of the discretionary
powers of the President under
Regulation 113 to grant pension
or gratuity.

Chapter 21
Union Of India v. Major
General Madan Lal Yadav
1996
Union Of India & Ors v. Major
General Madan Lal Yadav ... on
22 March, 1996 Equivalent citations:
1996 AIR 1340, 1996 SCC (4) 127
Author: K Ramaswamy Bench: Ramaswamy,
K.
PETITIONER:
UNION OF INDIA & ORS.
v.
RESPONDENT:
MAJOR GENERAL MADAN
LAL YADAV [RETD.]
DATE OF JUDGMENT:
22/03/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
AHMAD SAGHIR S. (J)
G.B. PATTANAIK (J)
CITATION:
1996 AIR 1340 1996 SCC (4) 127
JT 1996 (3) 465 1996 SCALE
(3)72
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
K. Ramaswamy, J.
This appeal on reference to this
Bench raises an interesting question
of law. The respondent while working
as Major General, Army Ordnance
Corps., Southern Command,
Pune between December 1, 1982 and
July 7, 1985 was in-charge of purchase.
The Controller General of Defence
Accounts in special audit on
the local purchases sanctioned by the
respondent prima facie found that
respondent had derelicted his duty
and action under the Act was initiated
against him. At that time,
the respondent was attached to College
of Military Engineering, Pune
and was promoted as Major Gen-

274 Union Of India v. Major General Madan Lal Yadav 1996
eral. After initiation of the proceedings
he was ordered to retire which
he had challenged by filing Writ Petition
No.3189 of 1986 in the Bombay
High Court which stood dismissed on
August 29, 1986.
On August 30, 1986, action was
initiated against the respondent under
Section 123 of the Army Act,
1950 [for short, the ’Act’]. He was
kept under open arrest from that
date onwards and retired from service
on August 31, 1986 as Major
General. On September 22, 1986, the
respondent was issued a chargesheet
and recording of the summary evidence
commenced on September 25,
1986. The respondent filed habeas
corpus petition in this Court under
Article 32 of the Constitution on
September 26, 1986 and refused to
cross-examine witnesses examined at
preliminary enquiry between October
20 and 25, 1986. He sought for,
and the proceedings were adjourned
to November 3, 1986, on the ground
that his lawyer from Delhi was to
come to Pune for cross-examination
of the witnesses. Due to nonavailment
of the opportunity given
to the respondent to cross-examine
the witnesses between November 20,
1986 and December 8, 1986, the
case was closed for prosecution on
November 20, 1986. The respondent
sought 14 days’ time to prepare
his case which was duly allowed.
However, the respondent did
not give list of his defence witnesses
till November 30, 1986. Consequent
upon it, on December 26, 1986, the
Controller General of Defence Accounts
directed the Controller, De-
fence Accounts, Southern Command
to carry out special audit for the period
in question. The respondent
had sought permission to go to Delhi
in connection with his writ petition
which was granted between December
16 and 18, 1986. The writ petition
was dismissed by this Court on
December 18, 1986 against which he
filed special leave petition. On January
3, 1987, the recording of summary
evidence against the respondent
was concluded. He sought permission
to go to Delhi in connection
with his special leave petition
which was granted between January
12 and February 5, 1987. The summary
evidence was considered and
GOC in Command, Southern Command
submitted his report on February
2, 1987. The special leave petition
came to be dismissed by this
Court on February 5, 1987. Pursuant
thereto, general Court martial [for
short, ’GCM’] was ordered on February
24, 1987; the GCM assembled to
try the respondent on February 25,
1987. On perusal of the report, it was
found that the respondent should be
tried for the offence. He was directed
to be produced on February 26, 1987
but it transpired that the respondent
had escaped lawful military custody
on the intervening night of February
15 and 16, 1987. Warrant was issued
for his arrest. The respondent
voluntarily surrendered on March 1,
1987 and was placed under closed arrest
w.e.f. 2130 hours on the said
day. The Court Martial assembled
on March 2, 1987 but it appears that
the respondent had, in the meanwhile,
filed writ petition in the Bombay
High Court challenging the ju-

isdiction of the Court Martial to try
him. In W.P. No.301 or 1987, invoking
the provisions of Section 123 [2]
of the Acts the Division Bench had
held that the trial of the accused had
not commenced within six months of
his ceasing to be subject to the Act.
The trial by the Court Martial was,
therefore, held to be illegal and accordingly
writ was issued. Calling in
question this order, this appeal has
been filed.
It is undisputably clear that the
respondent had retired from service
on August 31, 1986. He was kept under
open arrest from August 26, 1986
and had escaped from lawful military
custody on the intervening night
of February 15 and 16, 1987 and
voluntarily surrendered on March 1,
1987. Though the respondent has
pleaded in the High Court that he
had gone with prior permission of the
authorities, the same has been denied
by the officer concerned. The
High Court has recorded, as a fact,
that the respondent had absconded
himself. Section 123 of the Act fastens
culpability of the offender who
ceased to be subject to the provisions
of the Act. Sub-section [1] postulates
that where an offence under the Act
had been committed by any person
while subject to the Act, and he has
ceased to be so subject, he may be
taken into and kept in military custody,
and tried and punished for such
offence as if he continued to be so
subject. Sub section [2] which stands
amended by Army Act [Amendment]
Act, 37 of 1992, prescribed limitation
on such action, at the relevant
time, that no such person shall be
275
tried for an offence, unless his trial
commences within six months after
he had ceased to be subject to the
Act. The amended sub-section [2] is
not relevant for our purpose since the
offence in question was indisputably
committed prior to the Amendment
came into existence. The proviso and
other sub-sections are also not relevant
for our purpose. The question,
therefore, is: on which date
did the trial of the respondent commence?
In other words, whether the
trial of the respondent commenced
within six months from the date of
his retirement, viz., August 31, 1986?
By prescription of six months’ limitation
under sub-section [2], the trial
of the respondent was to commence
before February 28, 1987. Consequently,
the question, therefore, is:
what is the meaning of the words
“trial commenced” as used in subsection
[2] of Section 123 and as to
when it commences?
It is contended by Shri Malhotra,
learned counsel for the appellants,
that the word ’commenced’
must be understood and considered
in the setting and scenario of the operation
of relevant provisions of the
Act and the rules framed thereunder,
viz., the Army Rules, 1954 [for short,
the ’Rules’]. Their conjoint reading
would indicate that the moment the
Court martial assembles, takes cognisance
of the offence and direct to
proceed further, the trial must be
deemed to have been commenced,
as all the steps from the stage are
integrally connected with the trial.
When Court martial assembled on
February 25, 1987 and found prima

276 Union Of India v. Major General Madan Lal Yadav 1996
facie case against the respondent to
proceed with the trial and directed
to secure his presence, it was discovered
that the respondent had escaped
the lawful open military custody and
made himself unavailable. Consequently,
Court Martial could not proceed
with the trial of the respondent
until he was arrested and brought before
the Court martial or he himself
surrendered. Since presence and participation
by the respondent in the
trial was a condition precedent, due
to non-availability of the respondent,
the Court martial could not be proceeded
with. After re-appearance of
the respondent or, March 1, 1987,
further steps were taken to conduct
the trial by the Court martial. The
trial, therefore, was not barred by operation
of sub-section [2] of Section
123. Shri Bobde, appearing for the
respondent, on the other hand, contended
that Section 122 [3] provides
for exclusion of time during which
the accused avoided arrest after the
commission of the offence. Similar
provision, preceding amendment to
sub-section [2] of Section 123 is not
expressly made available on statute.
The offence being of criminal nature,
having regard to the provisions of
Section 123 limitation should strictly
be construed, particularly when it involves
liberty of the citizen. He argues
that the legislature had made
a dichotomy of Sections 122 and 123
of the Act. The time during which
the accused was not available cannot,
therefore, be excluded in computation
of six months’ period prescribed
in sub-section [2] of Section
123. It is further contended that
the trial commenced only when the
Court martial assembled, took oath
in terms of Rule 45; applied their
mind under Rule 41 to proceed further
under Rule 43. The oath envisages
thus: “.....I will well and truly
try the accused before the Court according
to the evidence and that I
will duly administer justice according
to the Army Act without partiality,
favour or affection and if any
doubt shall arise, then, according to
my conscience, the best of my understanding
and the customs of war
and....”. The scheme would indicate
that there is a distinction between
inquiry and trial and the trial commences
only when the Court Martial
arraigns the accused on the charge
against him under Rule 48 whereby
the accused shall be required to plead
separately to each charge. Since the
above Procedure had not been followed,
the trial did not commence.
It is further argued that the accused
has a valuable right under Rule 48
to object to the charge. If the objection
is sustained, the charge is required
to be amended under Rule
50. He has also right to object to
the members of the Court Martial
empanelled. He is also entitled under
Rule 51 to object to the jurisdiction
of the Court Martial. Until
the Court martial assembles to
proceed further, the trial cannot be
said to have commenced. The question,
therefore, is: as to when the
trial commences within the meaning
of Section 123 [2]? With a view to
appreciate the rival contentions it is
necessary to grasp the relevant provision
of the Act and the Rules. Article
33 of the Constitution empowers
the Parliament to modify the funda-

mental rights enshrined in Part III
in their application to the members
of the Armed Forces or members of
the Forces charged with the maintenance
of the public order etc. The
Act was made to regulate the governance
of the regular Army. Under
Section 2 [1] (a), officers shall be subject
to the Act wherever they may be.
Under Section 3, unless the context
otherwise requires “active service” as
applied to a person subject to this
Act, means the time during which
such person is attached to, or forms
part of, a force which is engaged in
operations against any enemy, or...”
“Court Martial” under sub-section
[vii] means a court martial held under
the Act. “Military custody” under
sub-section [xiii] means the arrest
or confinement of a person according
to the usages of the service and
includes naval or air force custody.
“Offence” has been defined under
sub-section [xvii] to mean “any act or
omission punishable” under the Act
and “includes a civil offence as hereinbefore
defined”. Chapter IX deals
with ”arrest and proceedings before
trial”. Section 101 enables custody
of offenders. Under sub-section [1]
thereof, any person subject to the
Act who is charged with an offence
may be taken into military custody.
Under subsection [3] thereof, an officer
may order into military custody
of any “officer”, though he may be
of a higher rank, engaged in a quarrel,
affray or disorder. Chapter X
deals with “Court Martial” The details
thereof are not material for the
purpose of this case since the admitted
position is that G.C.M. was ordered
against the respondent which
277
is not under challenge. Section 122
deals with “period of limitation for
trial” of “any person” subject to the
Act. As stated earlier, sub-section
[3] thereof make provision for exclusion
of time, in computation of the
prescribed periods i.e., of any time
spent by such person as a prisoner
of war, or in enemy territory, or in
evading arrest after the commission
of the offence. Section 123 deals with
liability of offenders who cease to be
subject to the provisions of the Act.
Sub-section [1] thereof envisages that
where an offence under the Act had
been committed by any person while
subject to the Act, and he has ceased
to be so subjects he may be taken
into and kept in military custody,
and tried and punished for such offence
as if he continued to be so subject
In other words, though the officer
governed by the provisions of Act
ceases to be the person governed by
the provisions of the Act, no trial
for an offence under the Act shall
be proceeded with and no such person
shall be tried for an offence unless
the trial commences within six
months of his ceasing to be subject
to the Act. Chapter V of the Rules
relates to investigation of the charge
and trial by court martial. Rule 22
deals with hearing of charge. Subrule
[1] provides the procedure to
deal with the charge in the presence
of the accused who shall have full liberty
to cross-examine any witness examined
against him and he may call
any witness and make any statement
in his defence. Rule 23 provides procedure
for taking down the summery
of evidence. Rule 24 empowers remand
of the accused. Rule 25 pre-

278 Union Of India v. Major General Madan Lal Yadav 1996
scribes procedure on charge against
officer. Rule 26 provides procedure
for summary disposal of the charge
against the officers. If delay occasions
in postal, under Rule 27, it is
required to be reported. Rule 28
deals with framing of charge-sheet
containing the details and issue or
issues to be tried by a Court Martial.
The charge-sheet may contain
one charge or several charges. Rule
29 deals with commencement of the
charge-sheet. Rule 30 contains contents
of the charge. Rule 33 provides
procedure for preparation or defence
by the accused. Rule 34 enjoins that
before the accused is arraigned for an
offence, he shall be informed by an
officer of every charge for which he is
to be tried and also that on his giving
the names of the witnesses whom he
desire to call in his defence, reasonable
steps will be taken for procuring
their attendance etc. Rule 35
deals with Joint-trial of several accused
persons. Due to military exigencies
or on grounds of necessity of
discipline Rule 36 empowers the suspension
of rules.
In Section 2 of the Rules dealing
with General and District Courts
Martial, convening the Court martial
has been envisaged. Under Rule
38, Court Martial may be adjourned
if before arraigning the accused insufficient
number of officers of the
Court martial are noticed. Rule 39
speaks of disqualification and ineligibility
of officers for Court Martial.
Rule 40 envisages composition of the
GCM Rule 41 prescribes procedure
to be followed at trial and constitution
of Court Martial which is rele-
vant for the purposes of this Court.
The rule reads as under: “41. Inquiry
be court as to legal constitution.
[1] On the court assembling,
the order convening the court shall
be laid before it together with the
charge sheet and the summary of evidence
or a true copy thereof, and
also the ranks, names, and corps of
the officers appointed to serve on the
court; and the court shall satisfy itself
that it is legally constituted; that
is to say-
(a) that, so far as the court can
ascertain, the court has been convened
in accordance with the provisions
of the Act and these rules;
(b) that the court consists of a
number of officers, not less than the
minimum required by law and, save
as mentioned in rule 38, not less than
the number detailed;
(c) that each of the officers so assembled
is eligible and not disqualified
for serving on that court martial;
and
(d) that in the case of general
court martial, the offices are of the
required rank.
[2] The court shall, further, if it is
a general or district court martial to
which a judge advocate has been appointed,
ascertain that the judge advocate
is duly appointed and is not
disqualified for sitting on that court
martial.
[3] The court, if not satisfied with
regard to the compliance with the
aforesaid provisions, shall report its
opinion to the convening authority,
and may adjourn for that purpose.
Rule 43 prescribes procedure of

trial - challenge and swearing. if the
court has satisfied itself that the provisions
of Rule 41 and 42 have been
complied with, it shall cause the accused
to be brought before the court
and the prosecutor, who must be a
person subject to the Act, shall take
his due place in the court. As seen,
under Rule 45, oath is to be administered
to the members of the Court
Martial etc. They are required to
swear by Almighty God or affirmation
to “well and truly try the accused”.
Similar oath may be administered
to Judge Advocate and
other officers under Rules 46 and
47. Rule 48 speaks of “arraignment
of accused”. It envisages that “after
the members of the Court Martial
and other persons are sworn or
affirmed as above mentioned, the
accused shall be arraigned on the
charges against him which shall be
read out and, if necessary, translated
to him in his mother tongue, and
he shall be required to plead separately
to each charge”. Rule 49 deals
with objection by the accused to the
charge and Rules 50 allows amendment
of the charge, if necessary. Rule
51 gives him right to take a special
plea on the jurisdiction of GCM and
under Rule 52 he can plead guilty
or not guilty. Rule 53 deals with
“plea in bar” and Rule 54 with “procedure
after plea of guilty”. Rule 56
deals with plea of not guilty, application
and adduction of evidence by the
prosecution. Rule 57 deals with plea
of no case and Rule 58 with “close of
case for the prosecution and procedure
for defence where accused does
not call witness”. Rule 59 deals with
the “defence where the accused calls
279
witnesses” and Rule 60 with “summing
up of the case by the judge advocate”.
Rule 61 deals with “consideration
of finding” and Rule 62 with
“forms record and announcement of
finding”. Rule 63 concerns “procedure
on acquittal” and Rule 64 “procedure
on conviction”. Rule 65 gives
power to the Court Martial to impose
sentence and Rule 66 deals with
recommendation to mercy. Rule 67
deals with “announcement of sentence
and signing and transmission
of proceedings”. It is true, as rightly
contended by Shri Bobde that on administration
of oath to the members
of the Court Martial, the members
swear to try the accused according
to the provisions of Act and Rules
etc. and to administer justice according
to the Act without partiality,
favour or affection. Under Rule 44,
names of the members of the Court
and presiding officer will be read over
to the accused. He shall be asked,
under Section 130, of his objections,
if any, for trial by any officer sitting
on the court. Any such objection
shall be disposed or according to
the Rules. The presence and participation
by the accused, therefore, is
an indispensable pre-condition. Rule
42 enjoins the court to be satisfied
that the requirements of Rule 41 have
been complied with. It shall, further,
satisfy itself in respect of the charge
brought before it and then proceed
further. If he pleads “guilty”, the
procedure contemplated in Rule 54 is
to be followed and if he pleads “not
guilty”, the procedure contemplated
in Rule 56 shall be proceeded with
and evidence recorded etc.

280 Union Of India v. Major General Madan Lal Yadav 1996
The words “trial commences”
employed in Section 123 [2] shall be
required to be understood in the light
of the scheme of the Act and the
Rules. The question is as to when
the trial is said to commence? The
word ’trial’ according to Collins English
Dictionary means:
“the act or an instance of trying
or proving; test or experiment...
Law. a. the judicial examination of
the issues in a civil or criminal cause
by a competent tribunal and the determination
of these issues in accordance
with the law of the land. b.
the determination of an accused person’s
guilt or innocence after hearing
evidence for the prosecution and nor
the accused and the judicial examination
of the issues involved”.
According to Ballentine’s Law
Dictionary [2nd ed.] ’trial’ means:
“an examination before a competent
tribunal according to the law
of the land, of the facts or law put
in issue in a cause, for the purpose
of determining such issue. When a
court hears and determines any issue
of fact or law for the purpose of determining
the right of the parties, it
may be considered a trial”
In Block’s Law Dictionary [Sixth
Edition] Centennial Edition, the
word ’trial’ is defined thus: “A judicial
examination and determination
of issues between parties to action,
whether they be issues of law or of
fact, before a court that has jurisdiction...
A judicial examination, in accordance
with law of the land, of a
cause, either civil or Criminal, of the
issues between the parties, whether
of law or facts, before a court that
has proper jurisdiction”.
In Webster’s Comprehensive Dictionary
International Edition, at
page 1339, the word ’trial’ is defined
thus: “....The examination, before a
tribunal having assigned jurisdiction,
of the facts or law involved in ail
issue in order to determine that issue.
A former method of determining
guilt or innocence by subjecting
the accused to physical tests of endurance,
as by ordeal or by combat
with his accuser... In the process of
being tried or tested... Made or performed
in the course of trying or testing...”.
The word ‘commence’ is defined
in Collins English Dictionary to
mean “to start or begin; come or
cause to come into being, operation
etc.” In Black’s Law Dictionary it is
defined to mean : “to initiate by performing
the first act or step. To begin,
institute or start Civil action in
most jurisdictions is commenced by
filing a complaint with the court....
Criminal action is commenced within
statute of limitations at time preliminary
complaint or information is filed
with magistrate in good faith and a
warrant issued thereon... A criminal
prosecution is “commenced” [1]
when information is laid before magistrate
charging commission of crime,
and a warrant of arrest is issued, or
[2] when grand jury has returned an
indictment”.
In the “Words and Phrases” [Permanent
Edition] Vol.42A, at page
171, under the head “Commencement”,
it is stated that “.4 ’trial’
commences at least from the time

when work of empanelling of a jury
begins”.
It would, therefore, be clear that
trial means act of proving or judicial
examination or determination of
the issues including its own jurisdiction
or authority in accordance with
law or adjudging guilt or innocence of
the accused including all steps necessary
thereto. The trial commences
with performance of the first act or
steps necessary or essential to proceed
with trial. It would be seen from
the scheme of the Act and the Rules
that constitution of court martial for
trial of an offence under the Act is
a pre-condition for commencement of
trial. Members of the court martial
and the presiding officer on nomination
get jurisdiction to try the person
for offence under the Act. On their
assembly, the accused has the right
to object to the nomination of any
or some of the members of the court
martial or even the presiding officer,
On the objection(s) so raised, it is to
be dealt with and thereafter the preliminary
report recorded after summary
trial and the charge trammed
would be considered. The charge is
required, if need be or asked by the
accused to be read over and could be
objected by the accused and found
tenable, to be amended. Thereafter,
the accused would be arraigned and
in his presence the trial would begin.
The accused may plead guilty
or not guilty. If he pleads guilty, the
procedure prescribed under Rule 54
should be followed and if he pleads
not guilty, procedure prescribed under
Rule 56 is to be followed. Before
actual trial begins, oath would
281
be administered to the members of
the court martial the Judge Advocate
and the staff. The regular
trial begins and ends with recording
the proceedings either convicting
and sentencing or acquitting the accused.
Thus two views would be possible
while considering as to when the
trial commences. The broader view
is that the trial commences the moment
the GCM assembles for proceeding
with the trial, consideration
of the charge and arraignment of the
accused to proceed further with the
trial including all preliminaries like
objections to the inclusion of the
members of the Court Martial. reading
out the charge/charges, amendment
thereof etc. The narrow view is
that trial commences with the actual
administration of oath to the members
etc. and to the prosecution to
examine the witnesses when the accused
pleads not guilty. The question
then emerges: which of the two
views would be consistent with and
conducive to a fair trial in accordance
with the Act and the Rules?
It is true that the legislature has
made a distinction between Section
122 [3] and Section 123 [2]. While
in the former, power to exclude time
taken in specified contingencies is
given, in the little, no such provision
is made for exclusion of the time
since the accused will be kept under
detention after he ceased to be governed
by the Act. It is equally settled
law that penal provisions would
be construed strictly. As posed earlier,
which of the two views broader
or narrow - would subserve the object
are purpose of the Act is the ques-

282 Union Of India v. Major General Madan Lal Yadav 1996
tion We are of the considered view
that from a conpectus of the scheme
or the Act and Rules the broader
view appears to be more conducive
to and consistent with the scheme
of the Act and the Rules. As soon
as GCM assembles the members are
charged with the duty to examine
the charge/charges framed in summary
trial to give an opportunity to
the accused to exercise his right to
object to the empanelment of member/members
of the GCM to amend
the charge and the right to plead
guilty or not guilty. These procedural
steps are integral and inseparable
parts of trial. If the accused
pleads guilty further trial by adducing
evidence by the prosecution is obviated.
The need for adduction of evidence
arises only where the accused
pleads “not guilty”. In that situation,
the members are required to
take oath or affirmation according to
Rule 45. It is to remember that the
members get right power and duty
to try an accused only on appointment
and the same ends with the
close of the particular case. Therefore,
Rule 45 insists on administration
of oath in the prescribed manner.
For a judicial officer the act of
appointment gives power to try the
offender under Criminal Procedure
Code; warrant of appointment by the
President of India and the oath taken
as per the form prescribed in Schedule
III of the Constitution empowers
the High Court/Supreme Court
Judges to hear the petition or appeals.
For them, need to take oath
on each occasion of trial or hearing
is obviated. Therefore, the occasion
to take oath as per the procedure for
GCM and the right of the member
of the GCM arises with their empanelment
GCM and they get power to
try the accused the moment they assemble
and commence examination
of the case, i.e., charge-sheet and the
record. The trial, therefore, must be
deemed to have commenced the moment
the GCM assembles and examination
of the charge is undertaken.
Our view gets fortified by two decisions
of this Court in Harish Chandra
Baijapi & Anr. v Triloki Singh
& Anr. [AIR 1957 SC 444] wherein
the question was: as to when the
trial begins in an election dispute
under the provisions of the Representation
of the People Act, 1951?
The respondents had filed election
petitions against the appellant under
Section 81 of that Act alleging that
the appellant had committed number
of corrupt practices and the respondents
prayed for declaration that the
appellant’s election was void. After
trial, the election was set aside
against which the appeal came to be
filed ultimately in this Court. One of
the questions was: whether the particulars
of the corrupt practices and
amendment therefore is vaild in law
and whether they are maintainable
in appeal? In that context, the question
arose: as to when the trial began?
It was contended therein that
the order amending pleadings under
Order 6 Rule 17, CPC was not part of
the trial and, therefore, it could not
be subject of consideration in appeal.
Considering the above question, this
Court held that:
“Taking the first contention, the
point for decision is as to what the

word ’trial’ in s.90(2) means.
According to the appellants, it
must be understood in a limited
sense, as meaning the final hearing
of the petition, consisting of examination
of witnesses, filing documents
and addressing arguments. According
to the respondent, it connotes
the entire proceedings before the Tribunal
from the time that the petition
is transferred to it under s.86 of the
Act until the pronouncement of the
award. While the word ’trial’ standing
by itself is susceptible of both
the narrow and the wider senses indicated
above, the question is, what
meaning attaches to it in s.90(2),
and to decide that, we must have
regard to the context and the setting
of the enactment. Now, the
provisions of the Act leave us in no
doubt as to in what sense the word
is used in s.90(2). It occurs in Chapter
III which is headed “Trial of election
petitions”. Section 86(4) provides
that if during the course of
the trial any member of a Tribunal
is unable to perform his functions,
the Election Commission is to appoint
another members, and thereupon
the trial is to be continued.
This provision must apply to retirement
or relinquishment by a member,
even before the hearing commences
and the expression “during
the course of trial” must therefore include
the stages prior to the hearing.
Section 88 again provides that
the trial is to be held at such places
as the Election Commission may appoint.
The trial here must necessarily
include the matters preliminary
to the hearing such as the settlement
283
of issues, issuing direction and the
like. After the petition is transferred
to the Election Tribunal under s.86,
various steps have to be taken before
the stage can be set for hearing it.
The respondent has to file his written
statement, issues have to be settled.
If ’trial’ for the purpose of s.90(2) is
to be interpreted as meaning only the
hearing, then what is the provision
of law under which the Tribunals to
call for written statements and settle
issues? Section 90(4) enacts that
when an election petition does not
comply with the provisions s.81, s.83
or s.117, the Tribunal may dismiss
it. But if it does not dismiss it,
it must necessarily have the powers
to order rectification of the defects
arising by reason of non-compliance
with the requirements of s.81, s.83
or s.117. That not being a power
expressly conferred on it under s.92
can only be sought under s. 90(2),
and resort to that section can be
had only if trial is understood as
including proceedings prior to hearing.
Section 92 enacts that the Tribunal
shall have powers in respect
of various matters which are vested
in 3 court under the Civil Procedure
Code when trying a suit, and among
the matters set out therein are discovery
and inspection, enforcing attendance
of witnesses and compelling
the production of documents, which
clearly do not form part of the hearing
but precede it. In our opinion,
the provisions of Chapter III read
as a whole, clearly show that ’trial’
is used as meaning the entire proceedings
before the Tribunal from the
time when the petition is transferred
to it under s.86 until the pronounce-

284 Union Of India v. Major General Madan Lal Yadav 1996
ment of the award.”
In Om Prabha Jain v. Gian
Chand & Anr. [AIR 1959 SC 837], it
was held that the word “trial” clearly
means entire proceedings before tribunal
from the reference to it by
the Election Commission to the conclusion.
This Court found no reason
to attribute a restricted meaning
to the word ’trial’ in Section 98
of the Representation of the People
Act, 1951. In the light of the
above discussion, we hold that the
trial commences the moment GCM
assembles to consider the charge and
examines whether they would proceed
with the trial. The preceding
preliminary investigation is only
part of the process of investigation
to find whether a charge could be
framed and placed before the competent
authority to constitute GCM.
On February 25, 1987, the GCM assembled
and recorded the proceedings
as under:
“Trial of Shri Yadava, Madan Lal
formerly IC-5122N Lt. Gen [Substantive
Maj Gen] Yadava Madan Lal
of Army Ordnance Corps. School Jabalpur,
attached to National Defence
Academy, Khadakwasla. The order
convening the court, the charge-sheet
and the summary of evidence are laid
before the court. The court satisfy
themselves as provided by Army
Rules 41 and 42.
I have satisfied myself, that no
Court of Inquiry was held respect the
matters forming the subject or the
charge before this court martial.
At this stage, the court observe
that the Prosecutor and the Defend-
ing Officer have taken their respective
places but the accused is not
present before the court. The Prosecutor
submits that the accused Shri
Madan Lal Yadava formerly Lt Gen
[Substantive Maj Gen] Madan Lal
Yadava of Army Ordnance Corps
School, Jabalpur retired from service
with effect from 31 August 86 [AN].
He has been subjected to the provisions
of Section 123 of the AA with
effect from the same date and put
under open arrest with effect from
1200 h on 30 August 1986. According
to a note dated 15 February
1987, found in his room the accused
had proceeded to Bombay to engage
a suitable counsel. Though he had
stated therein that he would keep the
Comdt, NDA Khadakwasla informed
about his whereabouts, they are not
yet known. Vigorous efforts are being
made to trace him out and produce
him before the Court. In view
of this he requests that the Court
be adjourned till 1100 h 26 February
1987.
The Defending Officer, IC-6727F
Maj Gen Yadav Yitendra Kumar,
who is present in the court submits
in reply that he too had had no opportunity
to get in touch with the
accused and as such has no information
regarding whereabouts of the accused”.
“Advice by the Judge Advocate
Gentlemen, you have heard the submission
made by the Prosecutor with
regard to the absence of the accused
as also reply of the learned Defending
Officer. The Prosecutor has given
the detailed circumstances in which
the accused had escaped from mili-

tary custody. He further submitted
before you that vigorous efforts were
being made to secure his presence before
you to stand the trial and to this
effect, prayed for the adjournment of
the Court until 1100 h on 26 Feb
87. In view of the foresaid submission
made by the Prosecutor, I advise
you to consider granting him suitable
adjournment to secure the presence
of the accused. The Court decide to
adjourn until 1100 h 26th Feb 1987.
The above decision is announced in
the court”.
On February 26, 1987 when it
again assembled, the GCM was informed
by the prosecutor that despite
their diligent steps taken to
have the accused traced and produced
before the court they were unable
to do that and a request for adjourning
the proceedings to the next
day was made and the defence counsel
also had expressed his inability to
know the whereabouts of the respondent.
On advice by the Judge Advocate,
the court adjourned the case
to February 27, 1987. Similarly, the
case was adjourned to February 28,
1987 on which date when it assembled,
the proceedings were recorded
as under:
“At 1000 h on 28 February 1987,
Court re-assemble, pursuant to the
adjournment; present the same members
and the Judge Advocate as on
27 February, 1987. The Court observe
that the accused is still not
present before the court.
The Prosecutor submits that despite
the best efforts including taking
help from the various civil agencies
to locate the accused he has not
285
yet been able to find out his whereabouts
and as such unable to produce
him before the court. It is, however,
earnestly hoped that he would
be able to get some clue about his
whereabouts by 01 March 1987. In
that event he would be able to produce
him before the court on 02
March 1987. He therefore, prays
that an adjournment until 1000 h 02
March 1987 be granted. He further
gives an undertaking that he will seek
no further adjournment on this account
and if he is not in a position
to produce the accused by that dates
will seek sine die adjournment of the
Court.
The learned Defending Officer
submits that he too has so far no information
about the accused.
Advice by the Judge Advocate:
Gentlemen, you have heard the
submissions of the Prosecutor and
the learned Defending Officer. The
Prosecutor submitted before you
that he would be in a position to produce
the accused on 02 March 1987
and that he would not seek any further
adjournment of the Court on
this account in case he failed to secure
his presence on or before that
date. In the interest of the justice,
you may therefore, consider granting
him yet another adjournment to help
secure the presence of the accused .
The Court decide to adjourn until
0900 h on 2 March 1987.”
Accordingly, on March 2, 1987
when the court re-assembled the accused
was present, the charge was
handed over to him and he asked for
adjournment for 15 days and on ad-

286 Union Of India v. Major General Madan Lal Yadav 1996
vice it was adjourned to March 18,
1987 on which day the respondent
informed the court of his filing the
writ petition and the assurance given
by the counsel appearing for the appellants
in the High Court not to
proceed with the trial. Accordingly,
it was adjourned pending Writ Petition
No.301 of 1987, the subject
of this appeal. It would thus be
clear that the respondent having escaped
from the open military detention
caused adjournment of the trial
beyond February 28, 1987 to secure
the presence and arrangement of the
respondent at the trial by GCM.
Our conclusion further gets fortified
by the scheme of the trial
of a criminal case under the Code
of Criminal Procedure, 1973, viz.,
Chapter XIV “Conditions requisite
for initiation of proceedings” containing
Sections 190 to 210, Chapter
XVIII containing Sections 225 to
235 and dealing with “trial before a
Court of Sessions” pursuant to committal
order under Section 209 and in
Chapter XIX “trial of warrant-cases
by Magistrates” containing Sections
238 to 250 etc. It is settled law that
under the said Code trial commences
the moment cognizance of the offence
is taken and process is issued
to the accused for his appearance etc.
Equally, at a Sessions trial, the court
considers the committal order under
Section 209 by the Magistrate and
proceeds further. It takes cognizance
of the offence from that stage and
proceeds with the trial. The trial
begins with the taking of the cognizance
of the offence and taking further
steps to conduct the trial.
Even if narrow interpretation is
plausible, on the facts in this case, we
have no hesitation to conclude that
the trial began on February 25, 1987
on which date the Court Martial assembled,
considered the charge and
the prosecution undertook to produce
the respondent who was found
escaped from the open detention, before
the Court. It is an admitted
position that GCM assembled on
February 25, 1987. On consideration
of the charge, the proceedings were
adjourned from day to day till the respondent
appeared on March 2, 1987.
It is obvious that the respondent had
avoided trial to see that the trial
would not get commenced. Under
the scheme of the Act and the Rules,
presence of the accused is a precondition
for commencement of trial.
In his absence and until his presence
was secured, it became difficult, may
impossible, to proceed with the trial
of the respondent-accused. In this
behalf, the maxim nullus commodum
capere potest de injuria sua propriameaning
no man can take advantage
of his own wrong - squarely stands
in the way of avoidance by the respondent
and he is estopped to plead
bar of limitation contained in Section
123 [2]. In Broom’s Legal Maximum
[10th Edn.] at page 191 it is stated
“it is a maxim of law, recognized and
established, that no man shall take
advantage of his own wrong”; and
this maxim, which is based on elementary
principles, is fully recognized
in Courts of law and of equity,
and, indeed, admits of illustration
from every branch of legal procedure.
The reasonableness of the
rule being manifest, we proceed at

once to show its application by reference
to decided cases. It was noted
therein that a man shall not take
advantage of his own wrong to gain
the favourable interpretation of the
law. In support thereof, the author
has placed reliance on another
maxim frustra legis auxilium quoerit
qui in legem committit. He relies
on Perry v. Fitzhowe [8 Q.B. 757].
At page 192, it is stated that if a
man be bound to appear on a certain
day, and before that day the
obligee put him in prison, the bond
is void. At page 193, it is stated that
“it is moreover a sound principle that
he who prevents a thing from being
done shall not avail himself of the
non-performance he has occasioned”.
At page 195, it is further stated that
“a wrong doer ought not to be permitted
to make a profit out of his own
wrong”. At page 199 it is observed
that “the rule applies to the extent of
undoing the advantage gained where
that can be done and not to the extent
of taking away a right previously
possessed”.
The Division Bench of the High
Court has recorded the finding that
the respondent has absconded from
open military detention. From the
narration of the facts it is clear that
the respondent was bent upon protracting
preliminary investigation.
Ultimately, when the GCM was constituted,
he had challenged his detention
order. When he was unsuccessful
and the trial was to begin
he escaped the detention to frustrate
the commencement of the trial
and pleaded bar of limitation on and
from March 1, 1987. The respondent
287
having escaped from lawful military
custody and prevented the trial from
being proceeded with in accordance
with law, the maxim nullus commodum
capere potest de injuria sua
propria squarely applies to the case
and he having done the wrong, cannot
take advantage of his own wrong
and plead bar of limitation to frustrate
the lawful trial by a competent
GCM. Therefore, even on the narrow
interpretation, we hold that continuation
of trial from March 2, 1987
which commenced on February 25,
1987 is not a bar and it is a valid trial.
It is next contended that trial of the
respondent at this distance of time
is not justiciable. In support of this
contention, reliance is placed by Shri
Bobde on Devi Lal & Anr. v. The
State of Rajasthan [(1971) 3 SCC
471] wherein the High Court had confirmed
the conviction under Section
302 read with Section 34, IPC and
sentence for imprisonment for life.
This Court found that the prosecution
had not proved as to which of
the two persons had opened the fire
as found by the Sessions Court and
the distinction between Section 149
and 34, IPC was not clearly noticed
by the Sessions Court and the High
Court. When retrial was sought for
by the prosecution, this Court rejected
the contention on the ground
that retrial at such a belated stage
was not justifiable. The ratio has no
application to the facts in this case.
Therein, the trial was proceeded with
and when the accused was convicted
by the Sessions Court and confirmed
by the High Court, this Court found
that the prosecution had not established
the case in accordance with

288 Union Of India v. Major General Madan Lal Yadav 1996
law and had not proved the guilt beyond
reasonable doubt. Under those
circumstances, this Court had rightly
declined to order retrial. But the ratio
does not fit into the facts of this
case. It is seen that the respondent
had frustrated the trial by escaping
from detention and reappeared after
the limitation for trial of the offence
was barred. Therefore, acceptance
of the contentions would amount to
putting a premium on avoidance.
We find ourselves unable to agree
with the view expressed by the Assam
High Court in Gulab Nath Singh
v. The Chief of the Army Staff [1974
Assam LR 260]. It is next contended
that since the respondent had surrendered
himself, trial could be con-
ducted by GCM at Delhi. We find no
equity in this behalf. The witnesses
are at Pune; records are at Pune, and
the offence has taken place at Pune.
Therefore, the GCM should be conducted
at Pune. We find no justification
in shifting the trial to Delhi.
The appeal is accordingly allowed.
The judgment of the High
Court is set aside. The writ petition
stands dismissed. The appellants are
at liberty to secure the presence of
the respondent; it would be open to
the respondent to surrender himself
to closed military detention; and the
respondent would keep him in detention
and conduct the trial as expeditiously
as possible.

Chapter 22
Major Kadha Krishan v.
Union Of India 1996
Major Kadha Krishan v. Union
Of India & Ors on 25 March, 1996
Equivalent citations: 1996 SCC (3)
507, JT 1996 (3) 650 Author: M
Mukherjee Bench: M M.K.
PETITIONER:
MAJOR KADHA KRISHAN
v.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT:
25/03/1996
BENCH:
MUKHERJEE M.K. (J)
BENCH:
MUKHERJEE M.K. (J)
G.B. PATTANAIK (J)
CITATION:
1996 SCC (3) 507 JT 1996 (3) 650
1996 SCALE (3)241
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
M.K. MUKHERJEE, J.
Leave granted.
The appellant was a permanent
Commissioned Officer of the Indian
Army holding the substantive rank
of Major. While he was posted at
the Military Farm in Jullunder City
he was served with a notice dated
September 10, 1990 issued under the
directions and on behalf of the Chief
of the Army Staff calling upon him
to show cause why his services should
not be terminated under Section 19
of the Army Act, 1950 (‘Act’ for
short) read with Rule 14 of the Army
Rules, 1954 (‘Rules’ for short) for
the misconducts he was found to
have committed during his tenure as
the Officer in-charge of the Military
Farm, Jaipur. The misconducts are
set out in paragraph 3 of the notice
but as they are not germane for
the purpose of this appeal, it is not
necessary to detail them. The reasons
which prompted the Chief of the
Army Staff to take recourse to the

290 Major Kadha Krishan v. Union Of India 1996
above provisions of the Act and the
Rules are contained in paragraph 4
of the notice, which reads as under:
“And whereas the Chief of the
Army Staff is further satisfied that
your trial for the above misconduct
is impracticable having become time
barred by the time the court of inquiry
was finalized and he is of the
opinion that your further retention in
service is undesirable.”
In due course the appellant
showed cause against his proposed
termination of services but it did
not find favour with the authorities.
Hence, on their recommendations,
the Central Government issued an
order on February 28, 1992 terminating
the service of the appellant. Aggrieved
thereby the appellant filed a
writ position before a learned Judge
of the Rajasthan High Court. In assailing
the order of termination the
principal ground that was raised by
the appellant was that the provisions
of Section 19 of the Act and Rule 14
of the Rules could not be inverted
as the period of limitation prescribed
under Section 122 of the Act for holding
his trial by a Court Martial was
long over. Besides, it was contended
that the satisfaction of the authorities
that it was impracticable to hold
the trial was not obtained in accordance
with Rule 14. The appellant
also denied that he was guilty of
the misconducts alleged in the notice
and gave out his defence against
the same. The learned Judge allowed
the writ petition, quashed the order
under challenge and directed that
the appellant be reinstated in service
with all consequential benefits. In
passing the above order the learned
Judge firstly held that the appellant
was made a scape goat for the lapses
and delinquencies of others. As regards
the applicability of Section 19
of the Act and Rule 1 of the Rules
the learned Judge concurred with the
submissions of the appellant relying
principally upon the Division Bench
judgment of the Delhi High Court
in Lt. Col. (T.S.) H.C. Dhingra
v. Union of India & Anr. 1988
(2) Delhi lawyer 109. In appeal preferred
by the respondent - Union of
India a Division Bench of the High
Court set aside the above judgment
of the learned Single Judge and dismissed
the writ petition of the appellant.
The Division Bench held that
the view taken by the Delhi High
Court in H.C. Dhingra’s case (supra)
was not correct and that proceedings
under Section 19 of the Act read with
Rule 14 of the Rules could be taken
even after the expiry of the period of
limitation prescribed under Section
122 of the Act. The findings of fact
recorded by the learned Single Judge
in favour of the appellant were also
upset. The above order of the Division
bench is under challenge in this
appeal.
To appreciate the contentions
raised by Mr. Ramachandran in support
of the appeal it will be appropriate
to first refer to the relevant provisions
of the Act and the Rules. Section
19 of the Act reads as under:
“Subject to the provisions of this
Act and the rules and regulations
made thereunder the Central Government
may dismiss or remove from
the service, any person subject to

this Act.”
The other section of the Act
which need reproduction is Section
122 which, at the material time,
stood as under: “(1) Except as provided
by sub- section (2), no trial by
court martial of any person subject
to this Act for any offence shall be
commenced after the expiration of a
period of three years from the date
of such offence.
(2) The provisions of sub-section
(1) shall not apply to a trial for an
offence of desertion or fraudulent enrollment
or for any of the offences
mentioned in Section 37.
(3) In the computation of the period
of time mentioned in subsection
(1), any time spent by such person
as a prisoner of war, or in enemy territory,
on in evading arrest after the
commission of the offence, shall be
excluded.
(4) No trial for an offence of desertion
other than desertion on active
service or of fraudulent enrollment
shall be commenced if the person
in question, not being an officer,
has subsequently to the commission
of the offence, served continuously
in an exemplary manner for not less
than three years with any portion of
the regular Army.”
Rule 14 of the Rules, so far as it
is relevant for our present purposes,
reads as follows:
“Termination of service by the
Central Government on account of
misconduct - (1) When it is proposed
to terminate the service of an officer
under Section 19 on account of misconduct,
he shall be given an oppor-
291
tunity to show cause in the manner
specified in sub-Rule (2) against such
action:
Provided that this sub-rule shall
not apply -
(a) when the service is terminated
on the ground of conduct
which has led to his conviction by a
criminal court; or
(b) where the Central Government
is satisfied that for reasons, to
be recorded in writing, it is not expedient
or reasonably practicable to
give to the officer an opportunity of
showing cause.
(2) When after considering the
reports on an officer’s misconduct,
the Central Government, or the
Chief of the Army Staff is satisfied
that the trial of the officer by a court
martial is inexpedient or impracticable,
but is of the opinion that the further
retention of the said officer in
the service is undesirable, the Chief
of the Army Staff shall so inform the
officer together with all reports adverse
to his had he shall be called
upon to submit, in writing, the explanation.”
(emphasis supplied)
Mr. Ramachandran first contended
that one of the requisites to
invoke the summary procedure envisaged
under Rule 14 (2) to terminate
the services of an officer by the
Central Government in exercise of its
powers under Section 19 of the Act
is to obtain a satisfaction that his
trial by a Court Martial is inexpedient
or impracticable. Such a satisfaction,
according to Mr. Ramachandran,
can be arrived only at a time

292 Major Kadha Krishan v. Union Of India 1996
when trial by a Court Martial is permissible
or possible. As in the instant
case, admittedly, such a trial
was barred by limitation under Section
122 of the Act the above Rule
could not be invoked. We find much
substance in the above contention of
Mr. Ramachandran. It is not in dispute
that at the time the impugned
notice was sent, no trial of the appellant
by Court Martial could be held
for sub-section (1) of Section 122 (as
it then stood) clearly envisaged that
it should not be commenced after expiration
of three years from the date
of commission of the offence which
in the instant case was about 7 years
prior to the issuance of the notice,
indeed, as seen earlier, in the notice
itself it is stated that the trial
had become time barred. When, the
trial itself was legally impossible and
impermissible the question of its being
impracticable, in our view cannot
or does not arise, ‘Impracticability’
is a concept different from ‘impossibility’
for while the latter is absolute,
the former introduces at all
events some degree of reason and involves
some regard for practice. According
to Webster’s Third New International
Dictionary ‘impracticable’
means not practicable; incapable
of being performed or accomplished
by the means employed or at command.
‘Impracticable’ presupposes
that the action is ‘possible’ but being
to certain practical difficulties or
other reasons it is incapable of being
performed. The same principle will
equally apply to satisfy the test of
‘inexpedient’ as it means not expedient;
disadvantageous in the circumstances,
inadvisable, impolitic. It
must therefore be held that so long
as an Officer can be legally tried y a
Court Martial the concerned authorities
may, on the ground that such a
trial is not impracticable for inexpedient,
involve Rule 14 (2). In other
words, once the period of limitation
of such a trial is over the authorities
cannot take action under Rule 14
(2). While passing the impugned order
the Division Bench however did
not at all consider, while interpreting
Rule 14 (2), the import of the
words ‘impracticable’ or ‘inexpedient’
as appearing therein and proceeded
on the basis that since Section
127 of the Act (since repealed) permitted
trial even after a conviction or
acquittal by a Court Martial, it necessarily
meant that the Rule could be
pressed into service even after the period
of limitation. It appears that
in making the above observation the
High Court did not notice that Section
127 relates to a trial by a ‘criminal
court’ and not ‘Court Martial’
and speaks of a stage after the trial
by the letter is over. The matter can
be viewed from another angle also.
So far as period of limitation of trials
by Court Martial is concerned Section
122 of the Act is a complete
Code in itself for not only it provides
in its sub-section (1) the period of
limitation for such trials but specifies
in sub-section (2) thereof the offences
in respect of which the limitation
clause would not apply. Since
the term of the above section is absolute
and no provision has been made
under the Act for extension of time -
like Section 473 Criminal Procedure
Code - it is obvious that any trial
commenced after the period of lim-

itation will be patently illegal. Such
a provision of limitation prescribed
under the Act cannot be overridden
or circumvented by an administrative
act, done in exercise or powers conferred
under a Rule. Mr. Ramachandran
was, therefore, fully justified in
urging that power under Rule 14 of
the Army Rules could not be exercised
in a manner which would get
over the bar of limitation laid down
in the Act and that if Rule 14 was to
be interpreted to give such power it
would clearly be ultra vires. We are
therefore in complete agreement with
the observations made by the Delhi
High Court in H.C. Ohinura’s case
(supra) that in purported exercise of
administrative power Under Rule 14,
in respect of allegations of misconduct
tribal by Court Martial, the authorities
cannot override the statutory
bar of subsection (1) of Section
122 of the Act for no Administrative
act or fiat can discard, destroy
or annul a statutory provision. The
other contention of Mr. Ramachandran
was that the satisfaction with
regard to inexpediency or impracticability
of a trial by Court Martial
must be only on a consideration of
the reports of misconduct. According
to Mr. Ramachandran if on a
perused of the reports the authorities
found that the nature of misconduct
or the context in which it
had been committed were such that
it was impracticable or inexpedient
to hold the Court Martial, the procedure
under rule 14 might be resorted
to. In other words, Mr. Ramachandran
submitted, the satisfaction
regarding the inexpediency or
impracticability to hold a Court Mar-
293
tial must flow from the nature and
the context of the misconduct itself
and not from any extraneous factor
which in the instant case was that the
Court Martial proceedings would be
time barred. This contention of Mr.
Ramchandran is also, in our view, indefensible.
As noticed earlier, Rule 14 (2)
opens with the words “when after
considering the reports on an officer’s
misconduct, the Central Government,
or the Chief of the Army
Staff is satisfied.........”. It is evident,
therefore, that the satisfaction about
the inexpediency or impracticability
of the trial has to be obtained on
consideration of the reports on the
officer’s misconduct. That necessarily
means, that the misconduct and
other attending circumstances relating
thereto have to be the gole basis
for obtaining such a satisfaction.
The purport of the above Rule
can be best understood by way of
an illustration. The Chief of Army
Staff receives a report which reveals
that an Army Officer has treacherously
communicated intelligence to
the enemy - an Offence punishable
under Section 34 of the Act. He however
finds that to successfully prosecute
the officer it will be necessary
to examine some witnesses, ensuring
presence of whom will not be feasible
and exhibit in the interest of the security
of the State. In such an eventuality
he may legitimately invoke
the Rule to dispense with the trial
on the grounds that it would be impracticable
and/or inexpedient. But
to dispense with a trial on a satisfaction
doctors the misconduct - like

294 Major Kadha Krishan v. Union Of India 1996
the bar of limitation in the present
case - will be wholly alien to Rule
14 (2). For the foregoing discussion
we set aside the impugned order of
the Division Bench of the High Court
and restore that of the learned Single
Judge. The appeal is thus allowed
with costs which is assessed at Rs.
10,000/-.

Chapter 23
Major R.S. Budhwar v.
Union Of India 1996
Major R.S. Budhwar v. Union Of
India & Ors on 8 May, 1996
Equivalent citations: 1996 AIR
2000, JT 1996 (5) 39
Author: M Mukherjee.
Bench: M M.K.
PETITIONER:
MAJOR R.S. BUDHWAR
v.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT:
08/05/1996
BENCH:
MUKHERJEE M.K. (J)
BENCH:
MUKHERJEE M.K. (J)
ANAND, A.S. (J)
CITATION:
1996 AIR 2000 JT 1996 (5) 39
1996 SCALE (4)269
ACT:
HEADNOTE:
JUDGMENT:
W I T H
CRIMINAL APPEAL No. 625 of
1996.
(Arising out of SLP (Crl.) No.
2126 of (1994)
Mahavir Singh
V.
Union of India
W I T H
CRIMINAL APPEAL NO. 626
OF 1996
(Arising out of SLP (Crl.) No.
2138 of 1994)
Inder Pal Singh
V.
Union of India
J U D G M E N T
M.K. MUKHERJEE. J.
The above appeal and the two
Special Leave Petitions were directed
to be heard together as they relate to
one and the same incident but having
to the facts regard to the facts

296 Major R.S. Budhwar v. Union Of India 1996
that over that incident two separate
trials were held by General Court
Martial (GCM’ for short), assailing
their verdicts two independent writ
petitions were filed and the Delhi
High Court dismissed them by two
separate judgments, which are under
challenge herein, we have heard them
one after the other and proceed to
dispose of them accordingly. CRIM-
INAL APPEAL NO. 1194 OF 1195
“Army Act COMMITTING A
CIVIL OFFENCE, THAT IS TO
SAY Section 69 ABETMENT OF
AN OFFENCE SPECIFIED IN
SECTION 302 OF INDIAN PE-
NAL CODE, IN CONSEQUENCE
OF WHICH ABETMENT SUCH
OFFENCE WITH COMMITTED,
CONTRARY TO SECTION 109
READ WITH SECTION 34 OF IN-
DIAN PENAL CODE.
in that they together, at Field,
on or before 14 June, 1987, abetted
No. 3173368H Sep (L/nk) Inder Pal
Singh and No. 3174523 L. Sep Mahavir
Singh, both of 8 JAT to commit
murders of IC 14807N Colonel SS
Sahota and IC 28739H Major Jaspal
Singh of the same unit, which was
committed in consequence of such
abetment by the said Sep (L/NK)
Inder Pal Singh and Sep. Mahavir
Singh.”
The GCM found the appellant
and one of the other two (since
dead) guilty of the above charge and
awarded them punishment of imprisonment
for life and cashiering. Aggrieved
thereby the appellant presented
a petition under Section 164
(1) of the Army Act, 1950 (’Act’
for short) wherein he prayed that
the findings and sentences recorded
against him be not confirmed. The
GOC-in-C Eastern Command however
rejected that petition and confirmed
the findings and sentences of
the GCM. He then filed another petition
in accordance with Section 164
(2) of the Act which was rejected by
the Central Government. The appellant
then approached the Delhi High
Court with a petition under Article
226 of the Constitution of India
which was also dismissed. Hence this
appeal.
Mr. Lalit, the learned counsel appearing
for the appellant, first contended
that there being not an iota
of evidence in the proceedings of the
G.C.M.to indicate that L/NK Inder
Pal Singh and Sep. Mahavir Singh
(the petitioners in the two special
leave petitions) committed the murders
of the two officers mentioned in
the charge the High Court ought to
have held that the findings of the
G.C.M. as recorded against the appellant
were perverse. While on this
point, Mr. Lalit however fairly conceded
that having regard to the limited
scope of enquiry the High Court
exercises while sitting in its extraordinary
writ jurisdiction it was difficult
for him to assail the finding
rcorded by the G.C.M. that the appellant
had instigated the above two
persons to commit the murders on
the ground that it was based on ’no
evidence’, but he strenuously urged
that mere proof of the said fact could
not in any way saddle the appellant
with the offence of abetment of the
commission of the murders, in absence
of any evidence whatsoever to

prove that they actually committed
the murders, and, that too on being
instigated by the appellant. The
other point that was raised by Mr.
Lalit was that even if it was assumed
that there was some evidence
to connect the appellant with the
offence alleged against him as furnished
by Inder Pal Singh and Mahabir
Singh, even then the GCM,
which functions as a judicial Tribunal,
ought not to have relied upon
ths same, in absence of any independent
corroboration thereof, as such
evidence was adduced by the two
assailants mentioned in the charge,
who were undoubtedly accomnplices.
Mr. Goswami, learned cuunsel appearing
for the respondents on the
other hand contended that ib could
not be said that there was no evidence
to cnnnect the appellant with
the charge leveiled against him and,
therefore, this Court would nut be
justified in interfering with the findings
of the G.C.H.even if it, on its,
own appraisal, found the evidence
to be insufficient or unreliable. In
responding to the other contention
of Mr. Lalit, Mr. Goswami first
drew our attention to Section 133 ot
the Act which makes, subject to its
provisions, Evidence Act, 1872 applicable
to a]l proceedings before a
Court Martial and contended that in
view of section 133 thereof (Evidence
Act), a conviction based on the uncorrcborated
testimony of an accomplice
could not be held to be illegai.
However, Mr. Goswami submitted
that in the instant case there was
ampie material to corroborate the evidence
of the accomplices. In the context
of the rival stands of the par-
297
ties the crucial point that falls for
our consideratinn is whether there is
any evidence to prove that Inder Pal
Singh and Mahavir Singh committed
the murders of Col. S.S. Sahola, the
Commanding Officer and major Jaspal
Singh, Second-in-Command of 8,
JAT Unit (hereinafter referred to as
’CO’ and ’2IC’ respectively) on June
16, 1987 as alleged by the prosecution.
If this question is to be answered
in the negative, then the fact
that there is evidence to prove that
the appellant had instigated them to
commit the murder - which is conceded
by Mr. Lalit also - would be
redundant; and, resultantly, the impugned
order of the G.C.M. would
have to be quashed. To find an answer
to the above question we have
carefully gone through the evidence
adduced during the G.C.M. proceedings.
On perusal of the evidence of
Mahavir Singh (PW 10 ) and Inder
Pal Singh (PW 16), the two
accomplices, who, admittedly were
the most important witnesses for the
prosecution, we find that they first
spoke of the orders they had earlier
received from the appellant and others
to commit the two murders. In
narrating the incident of the fateful
day, both of them stated that
at or about 12 noon they went towards
the office of CO and 2IC with
arms and ammunitions. After moving
some distance together, Mahavir
Singh went towards the office of CO
and Inder Pal Singh towards that
of 2IC. According to Mahavir Singh,
enroute he met L/NK Ranbir Singh
(PW 21) who asked him why he had
come there. Mahavir Singh then
fired one round towards him, who im-

298 Major R.S. Budhwar v. Union Of India 1996
mediately caught hold of the muzzle
of his (Mahavir’s) rifle. Mahavir
Singh next stated what at that point
of time, rapid fire came from the drill
shed side towards the CO’s jonga
which was standing there. Simultaneously,
he (Mahavir Singh) fired one
round which injured Ranbir’s hand
and he fell down. The version of Inder
Pal Singh (PW 16) as regards
the firing is that when he reached
the office of the 21C he found that
he was not there. He then went towards
the office of the Adjutant. On
the way he heard sounds of firing.
When he reached the office of Adjutant
he could not see clearly as to
who were inside as the room was dark
and windows were covered with curtains.
Through the window he saw a
Captain sitting inside and talking to
some one, who might be 2IC. He then
fired several rounds in the air. In the
meantime Mahavir Singh came there
and told him to run away. Then both
of them ran towards the jungle.
Drawing our attention to the
above statements of the two accomplices,
Mr. Lalit argued that as neither
of them admitted to have committed
the murders it must be said
that the finding of the G.C.M. That
the appellant was guilty of the charge
levelled against him was perverse -
being based on ’no evidence’. We
are unable to accept the contention
of Mr. Lalit for, later on in his evidence
P.W.10 fully supported the
charge levelled against the appellant
- though PW 16 did not - and there
is other circumstantial evidence on
record to substantiate the prosecution
case. On being examined further
during crial PW 10 testified:
“It is correct that I alongwith
L/NK Inder Pal Singh had killed the
CO and 2IC on the orders of accused
No. 1 (the appellant).” He further
stated: “It is correct that accused
No.1 appellant) had asked me a question
as to with what aim I was trying
to implicate him in this case and
I had replied that I was not trying
to implicate him in any case and he
had given a task which I had aacomplished.”
Then again when asked about
what he knew about the loss of
grenades of the Unit he said the
grenades were stolen to kill CO and
2IC. He also stated that he has already
been sentenced to be hanged
for committing the murders of CO
and 2IC for obeying the orders of
Major Sahib (the appellant). Again
in cross-examination he testified that
his job was to eliminate CO and
2IC. The other piece of his evidence,
which clearly indicates that he had
committed the murders on the instigation
of the appellant, reads as under:
On 18 June 87, after 1600 hrs.
I and L/NK Inder Pal surrendered
to Hav Nav Rattan of my unit near
Kambang Bridge. We have also surrendered
our arms to him. We were
made to sit in a 1 Ton vehicle of our
unit. After some time one capt. of
16 Madras alongwith a guard of 3-4
OR came to the 1 Ton vehicle. 2 or
3 OR sat with us in the vehicle. The
guard Commander remained outside
the vehicle. The first officer of my
unit to come the site of surrender
was Maj Lamba. He had come in

a RCL and it was parked ahead of
1 Ton vehicle. He wished him Ram
Ram while his vehicle crossed 1 Ton
vehicle. He replied by saluting but
did not speak anything. After about
half an hour of our surrender, accused
No.1 came to us to the 1 Ton
vehicle. He was looking as if he had
come running and he was perspiring.
When he came close to us, we
wished him Ram Ram. He came
further close to us and patted me
on my back and said “Shabash Kam
Kar Diya, Chettri Sahib or Doctor
Sahib Ko Kiyon Rager Diya” meaning
thereby,“well done, the job has
been done, why Chettri Sahib and
Doctor Sahib killed.”
In view of the above testimony of
P.W.10 it cannot at all be said that
he did not support the charge levelled
against the appellant. It is of course
true that PW 10 is an accomplice but
from the proceedings of the trial we
find that the Judge Advocate in his
closing address properly explained to
the GCM the value of the evidence of
an accomplice with reference to Section
133 and Section 114 (Illustration
b) of the Evidence Act. If inspite of
such explanation the GCM found the
appellant guilty it could not be said
that its finding was perverse. This
apart, the following circumstances
proved through other witnesses amply
corroborate the evidence of P.W.
10:
i) on 16 June, 1987 both Inder Pal
Singh and Mahavir Singh were found
going towards the main office building
with rifles and some rounds of
ammunitions. While Mahavir Singh
went towards the office of the CO, In-
299
der Pal Singh went towards the office
of the 2IC:
ii) Near CO’s office when NK
Ranbir (PW 21) caught hold of the
muzzle of the rifle of Mahavir Singh
he fired or round as a result of which
Ranbir sustained an injury on his
hand and fell down unconscious. After
regaining his senses when he went
to the office of the CO he found him
lying on the ground near his revolving
chair gasping for breeth; iii) After
the firing incident Mahavir Singh and
Inder Pal Singh together ran away
towards the jungle along with their
arms and ammunition;
iv) Both of them surrendered on
June 18, 1987 with their rifles and
ammunitions which were seized and
sent to Forensic Science Laboratory,
Calcutta for examination; v) On examination
it was found that ten cartridges
cases were fired through one
of those rifles bearing Regd. No 9744
which was issued to Inder Pal Singh
and two cases were fired through the
other rifle, bearing. Regd No.7343
which was issued to Mahavir Singh,
in the morning of June 16, 1987: vi)
While sitting in the office of Adjutant,
Major Chandal (CW 1) saw
through the window Ranbir Singh
holding the muzzle of a rifle. At
that moment he heard another bullet
being fired from the side of his
back. He than ducked down on the
table with face downward and saw,
through the window, Inder Pal Singh
firing about 10 to 15 rounds. After
the firing had stopped when he
came out of the office of the CO he
found him lying in a reclining position
against the wall and he was

300 Major R.S. Budhwar v. Union Of India 1996
badly injured and gasping for breath;
and vii) Dr. Senewal, (PW 15) who
held post mortem examination on
the dead bodies of CO and 2IC found
injuries on their persons which, in his
opinion, were caused by bullets and
resulted in their deaths.
When the above circumstantial
evidene is considered along with the
evidence of P.W.10 the conclusion is
irresistable that it is not a case of ’no
evidence’ but one of ’sufficient evidence
. The findings of the GCM
not having been assailed in any other
court, the conviction and sentence of
the appellant is well merited. We
therefore hold that there is no merit
in this appeal. It is accordingly dismissed.
CRIMINAL APPEAL NO
.......OF 1996 OUT OF SLP (CRL
.NO.2126 OF 1994) AND CRIM-
INAL APPEAL NO.....OF 1994
(ARISING OUT OF S.L.P.(CRL.)
NO.2158 OF 1994)
Leave granted in both the petitions,
limited to the question of sentence.
Sep Mahavir Singh and L/NK Inder
Pal Singh the appellants in these
two appeals, were tried by the General
Court Martial (‘GCM’) for committing
the murders of four Army Officers,
namely, Col.S.S. Sahota, Major
Jaspal Singh, Captain B.K. Chottri
and Captain A. Srivastava on
June 16, 1987. Of them Col. Sahota
was the Commanding Officer, Major
Jaspal Singh was the Second-in-
Command and Captain Chottri was
an officer attached to 8 JAT Unit
while Captain Srivastava belonged to
302 Field Ambulance. The two appellants
were also attached to the
above unit. By its order dated December
10, 1988 the GCM held them
guilty of the above offences and sentenced
each of them to death. Aggrieved
thereby they presented petitions
under Section 164 (1) of the
Army Act (’Act’ for short) wherein
they prayed that the findings and
sentence of the GCM be not confirmed.
Those petitions were rejected
and the findings and sentence
recorded against thems were confirmed.
The appellants thereafter
filed another petition under Section
164 (2) of the Act which was also rejected.
They then moved the Delhi
High Court with a petition under Article
226 of the constitution of India
wherein they confined their challenge
to the sentence imposed upon them
on the ground that the GCM did not
take into consideration the mitigating
circumstances while awarding the
punishment. In resisting the petition,
the respondents contended that
having regard to the fact that the
appellants committed the murders in
a planned manner they deserved the
sentence of death. The High court
rejected the contention of the appellants
and for that matter their writ
petition with the following observations:
“The question of sentence has to
be decided by taking into account the
aggravating circumstances as well as
mitigating circumstances and then
drawing a balance. The manner in
which the crime was commited, the
weapons used and brutality or lack of
it are some of these relevant consid-

erations to be borne in mind. Due regard
is to be given both to the crime
and the criminal. This was a case
of killing of a Commanding Officer,
an Officer Second in Command and
two other officers. The Commanding
Officer in an Army Regiment is
like a father of his subordinates. The
contention that the petitioners had
good service record and had no advantage
in killing these officers and
they had killed these officers on instigation
of major Budhwar cannot
be accepted in the present petition
as without going into these aspects
but assuming two views on question
of sentence were possible, it is not for
this court to substitute its view for
that of the authority under the Act.
It cannot be held that the view of authorities
in awarding death penalty
was in manner perverse. We may
notice that according to respondents
life sentence was imposed on Major
Budhwar as he was charged for abetment
whereas petitioners were actual
perpetrators of the crime.
Hence these two appeals.
Drawing inspiration from the
judgment of this Court in Triveniben
& ors. v. State of Gujarat &
Ors. 1989 (1) SCR 509, wherein this
Court has held that undue and prolonged
delays occurring at the instance
of the executive in dealing
with the petitions of convicts filed in
exercise of their legitimate right is a
material consideration for commuting
the death penalty, the learned
counsel for the appellants submitted
that the appellants were entitled to
the commutation of their sentence
as it took the respondent more than
301
three and half years to dispose of
the petitions presented by the appellants
under sub-sections (1) and (2)
of section 164 of the Act. On going
through the record we find much substance
in the above grievance of the
appellants.
Following the death sentence pronounced
by the GCM on December
10, 1988 the appellants filed their
application under sub-section (i) of
Section 164 on December 31, 1988
which was disposed of on February
13, 1991, that is, after a period
of more than two years and
one month. Thereafter the appellants
moved their petition under subsection
(2) of Section 164 on March
7, 1991 and this petition was disposed
of after a delay of more than
one year and six months. The total
delay therefore, comes to more
than three years and seven months;
and needless to say during this period
the appellants were being haunted by
the shadow of death over their heads.
No explanation is forthcoming for
these unduly long delays and therefore,
the appellants can legitimately
claim consideration of the above factor
in their favour, but, then, it has
also been observed in Triveniben’s
case (supra), relying upon the following
passage from the earlier judgment
of this Court in Sher Singh v.
State of Punjab (1983) 2 SCC 344:
“The nature of the offence, the
upon it, its impact upon the contemporary
society and the question
whether the motivation and pattern
of the crime are such as are likely to
lead to its repetition, if the death sentence
is vacated, are matters which

302 Major R.S. Budhwar v. Union Of India 1996
must enter into the verdict as to
whether the sentence should be vacated
for the reseon that its execution
is delayed.”
that such consideration cannot be
divorced from the dastardly and diabolic
circumstance of the crime itself.
Having given our anxious consideration
to all aspects of this case
in the light of the above principles we
feel that the appellants do not deserve
the extreme penalty of death,
notwithstanding the fact that two
of the murders, namely, that of the
Commanding Officer and Second-in-
Command were diabolically planned
and committed in cold blood. From
the record, particularly the confessions
made by the two appellants
which formed the principal basis for
their conviction we find that the appellants
did not commit the above
two murders on their own volition
prompted by any motive or greed
much less, evincing total depravity
and meanness. Indeed, it was the
case of the respondents themselves at
the GCM - which has been accepted
by us also in the earlier appeal, that
Major R.S. Budhwar alongwith other
Officers of the Unit of the appellants
instigated and compelled them
to commit the above two murders
by exploiting their religious feelings.
The record further indicates that initially
the appellants declined to take
any step towards the commission of
the offences but ultimately they succumbed
to the “threat, command
and influence” of their superiors. So
far as the murders of the other two
officers are concerned we find that
they became the unfortunate victims
of circumstances as they happened to
be present at the time of the incident.
Another mitigating factor which in
our opinion calls for commutation of
the sentence is that Major Budhwar
who alongwith another officer (since
dead) masterminded the two murders
were awarded life imprisonment
whereas the appellants who carried
out their orders have been sentenced
to death. In dealing with this aspect
of the matter the High Court
however observed, as noticed earlier,
that the appellants committed the
offences while the officers were only
abettors. In our considered view in
a case of the present nature which
relates to a disciplined force as the
Army, the offence committed by the
officers who conceived the plan, was
more heinous that of the appellants
who executed the plan as per their
orders and directions. It is of course
true that those orders being not lawful
the appellants, even as disciplined
soldiers, were not bound to comply
with the same nor their carrying
out such order minimised the offences
but certainly this is a factor
which cannot be ignored while deciding
the question of sentence. Another
factor which persuades us to commute
the sentence is the post murder
repentance of the appellants who
not only surrendered before the authorities
within two days but also
spoke out the truth in their confessional
statements. In fact, but
for their confessional statements the
Officers, who were the masterminimize,
could not have been brought
to book. None of the mitigating circumstances,
as noticed by us above,
were taken into consideration by the

High Court. It was obliged to consider
both the aggravating and the
mitigating circumstances and therefore
by ignoring consideration of the
mitigating circumstances, the High
Court apparently fell in error.
303
For the foregoning discussion we
allow those appeals and commute the
sentence of death imposed upon each
of the appellants to imprisonment
for life, for the conviction recorded
against them.

304 Major R.S. Budhwar v. Union Of India 1996

Chapter 24
Anuj Kumar Dey & Anr v.
Union Of India 1996
Anuj Kumar Dey & Anr v. Union
Of India & Ors on 28 November, 1996
Author: Sen Bench: J Verma, S C
Sen
PETITIONER:
ANUJ KUMAR DEY & ANR.
v.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT:
28/11/1996
BENCH:
J.S. VERMA, SUHAS C. SEN
ACT:
HEADNOTE:
JUDGMENT:
(With Writ Petition (C) No. 831
of 1993 and Writ Petition (C) Nos.
293, 752 & 601 of 1994)
J U D G M E N T
SEN, J.
Anuj Kumar Dey, the appellant
herein, joined Indian Navy as Artificer
Apprentice on 12th August, 1971.
On 17th August, 1971 the statutory
oath of allegiance was administered
to him. He claims that his service
in the Indian Navy must be calculated
from that date, that is, 17th
August, 1971. ON 11th August, 1975
the appellant’s training as Artificer
Apprentice was over. Immediately
thereafter, he was advanced to Electrical
Artificer Vth Class on 12th
August, 1975. Various promotions
were given to the appellant thereafter
from time to time. On 31st
January, 1988 the appellant was released
from the Nay. The dispute in
this case is about the entitlement of
the appellant to get pensionary benefits
for his service under the Navy.
According to the appellant, he has
served the Navy for more than fifteen
years which must be counted from
17th August, 1971 when he was administrated
oath of allegiance. According
to the respondents, the four
years spent by the appellant as’ Artificer
Apprentice was training period
only and, therefore, the service of the
appellant commenced only on 12th

306 Anuj Kumar Dey & Anr v. Union Of India 1996
August, 1975 when he was appointed
Electrical Artificer Vth Class, after
completion of his training as Artificer
Apprentice on 11th August, 1975.
The question is whether this period
of four years, 17.8.71 to 11.8.75 during
which the appellant was undergoing
training as Artificer Apprentice
under the Navy, should be counted
in the period of service rendered by
the appellant. Before going into the
merits of the case, it will be necessary
to refer to the relevant provisions of
the Navy Act, 1957 and also to some
of the Regulations framed under the
said Act:-
THE NAVY ACT, 1957
CHAPTER - I
PRELIMINARY
3. In this Act, unless the context
otherwise requires:-
(16) ‘officer’ means a commissioned
officer and includes a subordinate
officer but does not include a
petty officer;
(17) ‘petty officer’ means a sailor
rated as such and includes a chief
petty officer and a master chief petty
officer
(20) ‘sailor’ means a person in the
naval service other than an officer;
CHAPTER - IV
COMMISSIONS, APPOINT-
MENTS AND ENROLLMENTS
9. (1) No person who is not a
citizen of India shall be eligible for
appointment or enrolment in the Indian
Navy or the Indian Naval Reserve
Forces except with the consent
of the Central Government:
10. (1) Officers other than sub-
ordinate officers shall be appointed
by commission granted by the President.
(3) Subordinate officers shall be
appointed in such manner and shall
hold such rank as may be prescribed.
11. (1) Save as otherwise provided
in this Act, the terms and conditions
of service of sailors, the person
authorised to enrol for service as
sailors and the manner and procedure
of such enrolment shall be such
as may be prescribed.
(2) No person shall be enroled as
a sailor in the India Navy for a period
exceeding twenty years in the first instance;
12. Where a person after his
enrolment has for a period of three
months from the date of such enrolment
been in receipt of pay as a
sailor, he shall be deemed to have
been duly enrolled and shall not
thereafter be entitled to claim his
discharge on the ground of any irregularity
or illegality in his engagement
or any other ground whatsoever;
and if within the said three
months such person claims his discharge,
no such irregularity or illegality
or other ground shall, until such
person is discharged in pursuance of
his claim effect his position as a sailor
in the naval service or invalidate any
proceedings, act or thing taken or
done prior to his discharge.
13. Every officer and every sailor
shall, as soon as may be, after appointment
or enrolment make and
subscribe before the commanding officer
of the ship to which he belongs,
or the prescribed officer on oath or af-

firmation in the following form that
is to say:-
I........... do swear in the name
of God/solemnly affirm that I will
bear true faith and allegiance to the
Constitution of India as by law established
and that I will, as in duty
bound, honestly and faithfully serve
in the naval service and go wherever
ordered by sea, land or air, and that I
will observed and obey all commands
of the President and the commands
of any superior officer set over me,
even to the paril of my life”.
14. Liability for service of officers
and sailors-(1) Subject to the
provision of sub-section (4), officers
and sailors shall be liable to serve in
the Indian Navy or the Indian Naval
Reserve Forces, as the case may be,
until they are duly discharged, dismissed,
dismissed with disgrace, retired,
permitted to resign, or released.
15. Tenure of service of officers
and sailors.-(1) Every officer and
sailor shall hold office during the
pleasure of the President.
16. Discharge on expiry of engagement.
Subject to the provisions
of Section 18, a sailor shall be entitled
to be discharged at the expiration
of the term of service for which
he is engaged unless-
17. (1) A sailor entitled to he
discharged under section 16 shall be
discharged with all convenient speed
and in any case within one month of
his becoming so entitled:
(4) Every sailor who is dismissed,
discharged, retired, permitted to resign
or released from service shall
307
be furnished by the prescribed officer
with a certificate in the language
which is the mother tongue of such
sailor and also in the English language
sating forth-
(a) the authority terminating his
service;
(b) the cause for such termination;
and
(c) the full period of his service
in the Indian Navy and the Indian
Naval Reserve Forces.
Apart from the aforesaid provisions
of the Navy Act, by Section 184
the Central Government has been
empowered to make regulations in respect
of, inter alia, “the terms and
conditions of service, the pay, the
pensions, allowances and other benefits
of persons in the naval service,
including special provision in this behalf
during active service”. In exercise
of this power, the Central Government
has framed the regulations
called “the Navy (Pension) Regulations,
1964”, “Service in the Indian
Navy.” Chapter III of the Regulations
deals with Sailors. In this
Chapter, Regulation 69(2) deals with
Service Pension and Gratuity of the
Sailors. Regulation 78 lays down,
“Unless otherwise provided, the minimum
service which qualifies for service
pension is fifteen years.” Regulation
79 is important for the purpose
of this case and lays down.“All
service from the date of enrolment or
advancement to the rank of ordinary
sea-man or equivalent to the date of
discharge shall qualify for pension or
gratuity”. Regulation 261 deals with

308 Anuj Kumar Dey & Anr v. Union Of India 1996
recruitment and provides:-
”261. RECRUITMENT - (1)
The Chief of Naval Staff may recruit
sailors required for the service.
(2) recruitment of sailors shall be
made through boy entry, artificer apprentice
entry and direct entry as
necessary. The recruitment shall be
carried out by the Recruitment Organisation
established for the purpose
and by any other authority as
may be decided upon by the Chief
of the Naval Staff from time to time.
Persons authorised to enrol sailors,
the manner, procedure and terms
and conditions of enrolment shall be
as laid down in the appropriate Regulations.”
Regulations 290 and 291 are also
important for the purpose of this case
and are as under:-
“290. AWARD OF GOOD CON-
DUCT BADGE -
GOOD CONDUCT BADGE
shall not be awarded or restored as
a matter of course merely because
a man has avoided serious punishments.
If the Captain is satisfied that
a man is fully qualified in accordance
with regulations 291 to 293 and subregulation
(1) of regulation 294 and
is deserving of the award a badge
shall be conferred, when due, under
provisions of this regulation. The
maximum number of bedges that a
sailor may earn during his service
shall be three.
291. SERVICE QUALIFICA-
TION - (1) Before a sailor can be
considered for the award of a Good
Conduct Badge, he must have completed
the following periods:
For 1st Good Conduct Badge ...
4 years.
For 2nd Good Conduct Badge ...
8 years.
for 3rd Good Conduct Badge ...
12 years.”
The first question in this case
is whether the appellant can be regarded
as a “Sailor”. The argument
on behalf of the respondents has been
that the appellant was undergoing
training as an Artificer Apprentice.
He could not be treated as a Sailor
during this period of training. It was
only when he was advanced to Electrical
Artificer Vth Class after completion
of his training that he became
a Sailor.
Various provisions of this Act and
the regulations set out hereinabove,
do not support this contention. The
definition of ‘sailor’, as given in Section
3(20), is of wide amplitude and
means “person in the naval service
other than an officer”. The provisions
of Sections 9, 10 and 11 of the
Act go to show that an officer, who
is not a subordinate officer, is ‘appointed’
by commission granted by
the President. Subordinate officers
may be ‘appointed’ in the prescribed
manner, but the sailors are ‘enrolled’
in the Navy. The Chapter Heading
is Commissions. Appointments and
Enrollments. Section 13 lays down
that every officer and every sailor
shall, as soon as may be possible after
appointment or enrolment, make
and subscribe an oath on affirmation
in the prescribed form.
These statutory provisions go to
show that a person can join Indian

Navy as an officer or a sailor. An
officer and a petty officer have been
defined in subsections (16) and (17)
of Section 3 and any person who is
other than an officer and is in naval
service has been defined as a sailor.
The appellant was not an officer. He
had joined Indian Navy and immediately
after his enrolment he was
made to take oath which every officer
and every sailor under Section
13 is bound to take. Moreover, Regulation
261 clearly lays down that
recruitment of sailors shall be made
through boy entry, artificer apprentice
entry and direct entry as officer.
Therefore, the fact that the appellant
was enrolled as an Artificer Apprentice,
does not in any way go to show
that he was not a sailor and was not
serving the Navy as a sailor. Section
12 lays down that where a person
after his enrolment has for a period
of three months from the date
of such enrolment been in receipt of
pay as Sailor, he shall be deemed to
have been duly enrolled. Now, there
is no dispute that the appellant had
received pay regularly after his enrolment.
It has been contended on behalf
of the respondents that the appellant
was allowed an allowance during
the term of the training. The case
of the appellant is that he used to get
a fixed pay during the period of the
training. The fact that he used to get
a fixed pay does not go to show that
he did not receive pay regularly after
his enrolment.
The position becomes even
clearer if a reference is made to Section
13 which provides that every
officer and every Sailor shall as soon
309
as may be after the appointment or
enrolment make and subscribe an
oath or affirmation in the prescribed
form. This is something which only
an officer or a Sailor is required to
do. There is no dispute that the appellant
was administered oath. This
could only be done under the Act if
he was either an officer or a Sailor.
If the contention of the respondents
that the appellant was not even a
“Sailor” during the period of training,
then it has not been explained
why he was administered oath. The
next objection was that even if the
appellant could be treated as a sailor,
he could not be said to have been in
the service of the Navy during the
period of training. This argument is
also unacceptable in the facts of the
case and in view of the provisions
of the Act and the Regulations. In
the prescribed form of oath that was
administered to the appellant, he
had to swear “.......I will, as in duty
bound, honestly and faithfully serve
in the naval service ..........”. It is
clear that the appellant was enrolled
as a Sailor, took oath as a Sailor and
drew salary as a Sailor and was in the
service of the Navy as a Sailor during
the period of undergoing training as
Artificer Apprentice. The qualifying
period for earning pension is service
of 15 years under the Navy. having
regard to the facts of the case and
the documents annexed to the appeal,
there is little doubt that the
training period as Artificer Apprentice
will have to be included in the
computation of the qualifying period
of service. Regulation 79 lays down
that all service from the date of enrolment
or advancement to the rank

310 Anuj Kumar Dey & Anr v. Union Of India 1996
of ordinary sea-man or equivalent to
the date of discharge shall qualify
for pension or gratuity. Therefore,
the date of advancement is not the
only starting point for computation
of the qualifying period of service.
In the case of the appellant the date
of enrolment should be the material
date. He was administered oath as
a Sailor even before the date of his
advancement to the rank of Electrical
Artificer Vth Class. In fact, the
Discharge Certificate issued by the
Navy to the appellant is to the following
effect ad puts the matter beyond
any doubt:- “This is to certify
that ANUJ KUMAR DEY, CHIEF
ELECTRICAL ARTIFICER (AIR),
NO. 052264-H has served in the Indian
Navy from 12 AUGUST 1971 to
31ST JANUARY, 1988 as per details
overleaf.”
This is a statutory certificate
which has to be given under subsection
(4) of Section 17 of the Navy
Act. The discharge Certificate must
state the full period of service in the
Indian Navy. According to the calculation
made by the Navy itself, this
period of service is more than the
qualifying period of 15 years.
Not only that. In the details
that had been given along with the
Discharge Certificate, it has been
mentioned that “Joined on 12th August,
1971. released on 31st January,
1988.” The Date of Attestation
in the Indian Navy is given as
“17th August, 1971 (Oath of allegiance
taken)”. This is a certificate
given by the Indian Navy in accordance
with requirement of Section
17.
There is another document described
as “Certificate of the Service”
where Period of Engagement
has been shown as twelve years (from
16.8.75 to 15.8.1985 and from 16.8.85
to 31.1.1988). On behalf of the respondents,
strong reliance has been
placed on this document. However,
this document does not say that the
appellant was in service for twelve
years only. This is an entry in a
column headed “Period of engagement”.
In fact, in the very next page
of that document, details of the service
of the appellant and Substantive
Rank held by him have given. There,
it has been shown that the appellant
was serving in the ship “VAL-
SURA” in the Substantive Rank Art.
(App) from 12th August, 1971 to
27th November, 1973. It has also
been recorded in that document that
the oath of allegiance was taken on
18th August, 1971. In the column
headed “Good Conduct Badges”, it
has been shown that the appellant
was awarded Good Conduct Badges
in August, 1975, August, 1979 and
August, 1983. That document was
given to show “Character and Efficiency
on 31st December yearly, on
final discharge and other occasions
prescribed by regulation”. It appears
that in the yearly column on
and from 31st December, 1971 to
31st December, 1988 (the date of discharge),
every year the appellant’s
character has been certified as V.G.
(Very Good). Under Regulation 291,
these badges can be awarded only
after completion of four years (first
badge). 8 years (second badge) and
12 years (third badge) of service. It
has been laid down under Regulation

290 that “the maximum number of
badges that a sailor may earn during
his service shall be three”.
All these facts and the various
provisions of the Act and the Regulations
leave no room for doubt that
the appellant even during the period
he was working as Artificer Apprentice
was in the service of the Navy,
was given Good Conduct Badges for
this service and four years’ service
was counted from the year 1971.
The Discharge Certificate which is a
statutory document clearly records
that he has served in the Indian
Navy from 12th August, 1971 to 31st
January, 1988. The respondents after
granting all these certificates and
badges, cannot be heard to say that
the appellant had not put in the
qualifying period of service of fifteen
years and, therefore, was not entitled
to get pension. Our attention
311
was drawn to a judgment of Andhra
Pradesh High Court in the case of
H.S. Sarkar v. Union of India & Ors.
1994 (2) An W.R. 221, where it was
held that “it does not stand to reason
that when the training period of four
years is reckoned for the purpose of
computation of 15 years for retiring
a person., the same is not reckoned
for the purpose of pension........ Payment
of only a consolidated pay during
the training period and not regular
scale of pay is immaterial in so
far as the computation of the period
is concerned”.
We are of the view that the Division
Bench of the High Court was
in error in holding that the period
of four years when the appellant was
employed Artificer Apprentice could
not be counted for computation of
the qualifying period of pension.

312 Anuj Kumar Dey & Anr v. Union Of India 1996

Chapter 25
Union Of India And Others
v. Major A. Hussain 1997)
Union Of India And Others v.
Major A. Hussain, IC-14827 on 8 December,
1997 Author: D Wadhwa.
Bench: S V Manohar, D Wadhwa
PETITIONER:
UNION OF INDIA AND OTH-
ERS
v.
RESPONDENT:
MAJOR A. HUSSAIN, IC-14827
DATE OF JUDGMENT:
08/12/1997
BENCH:
SUJATA V. MANOHAR, D.P.
WADHWA
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
D.P. Wadhwa. J.
Appellants are aggrieved by the
judgment dated February 21, 1994 of
the Division Bench of the High Court
of Judicature: Andhra Pradesh dis-
missing their appeal against judgment
date April 25, 1991 of the
learned single Judge of that High
Court whereby the learned single
Judge allowed writ petition filed
by the respondent and quashed
the court martial proceedings held
against him including the confirmation
of sentence passed upon him by
the court martial.
A General Court Marital (GCM)
under the Army Act, 1950 (for short
’the Act’) was convened to try the respondent
holding the rank of Major
in the army on the following charge:
“Charge Sheet”
The accused IC-14827F Major
Arshad Hussain, 225 Ground Liaison
Section Type ’C’ attached to AOC
Centare, an officer holding a permanent
commission in the Regular
Army, is charged with :-
Army Act AN ACT PREJUDI-
CIAL TO GOOD ORDER AND
MILITARY Section 63’ DISCI-
PLINE,

314 Union Of India And Others v. Major A. Hussain 1997)
in that he,
at Field, between 17 Sep 84
Ground Liaison Section Type ’C’,
lost by neglect twelve (12) pages of
the Commander’s Operational Brief
taken on charge at Serial 115 on
the Incoming TOP SECRET Register
of HW 150 Inf Bde which were entrusted
to in for safe custody. Place:
Secunderabad Sd/-
)
Date: 14 Aug 87 (Gautam Mitra
Brig
Commandant
AOC Center
To be tried by General Court
Martial. Station: Madras - 9 Sd/-
Dated: 25 Aug 87 (Deepak Sehdev)
Colonel
Colonel A
For General Officer Commanding
Andhra Tamil Nadu Karnataka
and Kerala Area.
Section 63 of the Act reads as under;
“63. Any person subject to that
Act who is guilty of any or omission
which, though not specified in
this act, is prejudicial to good order
and military discipline shall, on conviction
by court martial, be liable to
suffer imprisonment for a term which
may extend to seven years or such
less punishment as is in this Act mentioned.”
After conclusion of the GCM proceedings
the respondent was held
guilty of the charge and was sentenced
to be dismissed from service
by order dated December 26, 1987 of
the General Court Martial. The sen-
tence passed against the respondent
was confirmed by the confirming authority
as required under the Act.
The respondent challenged his
conviction and sentence in a writ petition
filed by him in the High Court
which, as noted above, allowed the
same and quashed the court martial
proceedings and confirmation of sentence
against the respondent. The
ground which appealed to the High
Court in setting aside the court martial
proceedings and subsequent confirmation
of sentence may be stated
from the judgment of the of the single
Judge which is as under:
“The Petitioner has been denied
a reasonable opportunity to defend
himself by not communicating the
conclusion reached in Rule 22 Inquiry
as contemplated by Army Order
70/84. In the proceedings under
Section 22 by not supplying the
copies of statements in earlier court
of Inquiry: (i) during General Court
Martial by not giving assistance of
a defending officer of his choice; (ii)
not providing him load which was already
sanctioned to manage a new
counsel as the earlier counsel engaged
by him had retired for no fault of
the petitioner; (iii) by not providing
him the documents for which he
had made a request to the convening
authority long before assembly of
the Court Martial and for which his
counsel had also made a request.”
Now to understand if the High
Court rightly exercised its power of
judicial review of the court martial
proceedings, we may refer to a
few relevant facts and briefly to the
court martial proceedings. In the

year 1984 respondent was serving as
Ground liaison Officer in a Brigade
which was situated somewhere in Rajasthan
in close proximity of international
border with Pakistan. One
Major P.C.Bakshi was also posted
a Brigade Major in that Brigade.
Brig. A.S. Bains was the commander
of the Brigade. Major Bakshi
was on annual leave with effect from
17.9.84 to 16.11.84 but before proceeding
on leave he handed over certain
classified documents to the respondent.
Under provisions of Handing
of Classified documents, the secret/top
secret documents are to be
in safe custody of an officer not below
the rank of Major. Accordingly,
Brig. Bains ordered the respondent
to take charge of classified documents
from Major Bakshi which classified
documents the respondent took over
charge and duly signed the handing/taking
over of these documents
by signing a certificate to that effect.
When Major Bakshi rejoined from
his annual leave, he was required to
take back the charge of classified documents
from the respondent. When
handing/taking over was commenced
it was discovered that 12 pages of
“Top Secret” documents were missing.
A detailed search was carried
out but the documents could not be
traced and a report of this fact was
communicated to all concerned in accordance
with laid procedure. Major
Bakshi declined to take charge
and under orders of Brig. Bains the
charge of the documents was ordered
to be handed over to one Major D.K.
Sharma, Deputy Assistant and Quarter
Master General in the Brigade,
which he did. it is stated that these
315
“Top Secret” documents contained
vital information adversely affecting
the security of the country as these
documents reflected deployment of
troops along the international border
with Pakistan. In accordance
with Army Rules 1954 framed under
Section 191 of the Act “staff court
of inquiry” was ordered under Rule
177 to investigate the loss, apportion
blame and to suggest remedial measures
to prevent such loss occurring
in future but the court of injury, however,
failed to give any definite findings.
Additional court of inquiry was
ordered which examined additional
witness. Appellants submitted that
respondent was afforded full opportunity
to be present throughout the
proceedings in the court of inquiry
in accordance with Army Rule 180
and for submitting anything in his
defence. The Court of Inquiry apportioned
blame on the respondent and
it was recommended to initiate disciplinary
proceedings against him.
In accordance with Rule 22(1)
of the Army Rules read with Army
Order No. 70/84 respondent was
brought before the Commanding Officer
on April 8, 1985 and hearing
of the charge was conducted in the
presence of Major. D.K. Sharma.
Summary of Evidence was recorded
by Lt. Col. B. P. Singh from
April 15, 1985 onwards in which
the respondent participated. He
cross-examined witnesses during the
recording of Summary of Evidence.
The respondent did not complain
about the non-supply of the Court of
Inquiry proceedings which were provided
to him before the commence-

316 Union Of India And Others v. Major A. Hussain 1997)
ment of the General Court Martial
in accordance with Army Rule 184.
The Commanding Officer of the
respondent requested the trial of the
respondent by General Court Martial
which was approved by the convening
authority. The respondent
was informed that he would be tried
by General Court Martial and was
advised to submit a list of defence
witnesses as well as his choice for
a defending officer. The respondent
instead proceeded on leave for
sixty days with effect from 10.6.85
to 8.8.85 which was granted. He did
not rejoin his duty and instead got
himself admitted in Military Hospital
in Secunderabad which the appellants
contend was to avoid the trial
by General Court Martial. The appellants
complain that the respondent
adopted tactics to delay the
commencement of the General Court
Martial. He filed a writ petition (No.
17828/86) in the Andhra Pradesh
High Court at Hyderabad. The High
Court by order dated August 3,1987
directed the appellants to post the
respondent at Secunderabad. Respondent
was thus attached to AOC
Center at Secunderbad. He was supplied
with copy of the chargesheet,
copy of the Court of Inquiry proceeding
and summary of evidence.
He was also informed that General
Court martial was likely to be convened
by August 28, 1987. The
respondent again moved the High
Court by filing another writ petition
(No. 12561/87) and obtained
an order staying the General Court
Martial proceeding. It is not necessary
to refer to proceedings in the
High Court in that writ petition
in any detail, except to note that
Court Martial proceeding was interrupted
though ultimately the stay
ranted by the High Court was vacated.
The General Court Martial
assembled on September 14, 1987
and on being arraigned the respondent
pleaded “not guilty” to the
charge. Thereafter General Court
Martial was adjourned.
For the purpose of recording of
evidence, General Court Martial resembled
on November 30, 1987. In
the absence of the Judge advocate, it
was adjourned to the following day.
On December 1, 1987, the record
shows that defending officer stated
that full facilities in accordance with
the Army Act, Army Rules and
Regulations for the Army had been
afforded to the respondent in the
preparation of his defence and that
the respondent had also been given
full opportunity to consult and confer
with him as also his defence counsel.
The respondent had engaged the
services of a civilian defence counsel
the respondent was given an advance
of Rs. 10,000/- on his request by the
Army authorities. The Court also
recorded submission of the defence
counsel that all papers pertaining to
preparation of defence of the respondent
as requested earlier on August
24, 1987 and of which reminder was
also sent on November 26, 1987 be
made available to the defence counsel
for proper conduct of the defence
of the case. During the course of
the proceedings, it was submitted by
the defence counsel that a copy of
the Summary of Evidence recorded

against the respondent, a copy of the
court of enquiry proceedings and a
copy of the additional court of enquiry
proceedings had been received
by the respondent in due time an
that he had no grievance to that extent.
He, however, submitted that
there were some other documents
which had not been made available
to the respondent and as a result he
was unable to conduct the defence
case effectively. Proceedings of the
court martial, however, show that
whatever documents the respondent
had asked for, he was given opportunity
to inspect the same and in spite
of the documents being made available
to the respondent and his defence
counsel, no attempt was made
to inspect the same. We find that
most of the documents which the respondent
had asked for were quite
irrelevant to the proceedings. During
the course of the proceedings of
the Court martial, respondent had
submitted certain applications which
were duly considered by the General
Court Martial and orders passed.
We find that full opportunity was
granted to the respondent to conduct
his case and proceedings could not
be more fair. However, request of
the defence counsel for a long adjournment
wad declined. His submission
that the court martial proceedings
were being conducted with
great haste had no basis. On one day
only one witness was being examined
and his cross-examination was
being deferred at a request of the defence
counsel himself. Court Martial
was convinced for the trial of the respondent.
It was not a regular court
in the sense that where many cases
317
are fixed and adjournments granted.
Under Army Rule 82, when a court
is once assembled and the accused
has been arraigned, the court shall
continue the trial from day-to-day
in accordance with Rule 81 unless
it appears to the court that an adjournment
was necessary for the ends
of justice or that such continuance
is impracticable. That the defence
counsel had other case to attend to
would hardly be a ground to adjourn
the court martial. At one stage in
midst of the case, the defence counsel
withdrew. Grievance of the respondent
that since further advance
of Rs. 15,000/- was not given to
him to engage another defence counsel,
he could not effectively defend
his case found favour with the High
Court. The High Court, however,
failed to take notice of the fact that
the respondent was not entitled to
any advance for the purpose of engaging
the defence counsel and earlier
as a special case an advance of
Rs.10,000/- had been sanctioned. No
Rule or Army Instruction has been
shown under which the respondent
was entitled to an advance. The
respondent refused to cross-examine
the witnesses on the specious ground
that services of defence counsel were
not made available to him due to
paucity of funds. We noted that
during the curse of enquiry proceedings,
the respondent himself extensively
cross-examined the witnesses.
It is not therefore possible to accept
the submission of the respondent
that due to lack of funds he
could not engage the services of a defence
counsel particularly when during
the course of court martial pro-

318 Union Of India And Others v. Major A. Hussain 1997)
ceedings, he knocked the doors of the
High Court thrice.
On being asked by the convening
officer respondent had given names of
three officers one of whim he wanted
to be his defending officer. A defending
officer is to be provided to
the respondent in terms of the Army
Rule 95. The services of none of
the named officers could be provided
to the respondent due to exigency of
services and particularly when the officers
belonged to the Judge Advocate
General branch and were not
available. The names of the officers
which the respondent gave were (1)
Maj. Gen. A.B. Gorthi, (2) Brig.
Mohinder Krishan and (3) Lt. Col.
R.P. Singh. It was submitted before
us that though there is no bar
in the Rules to provide the services
of an officer of the JAG Branch as
a defending officer but as a general
policy it is not done. That would
appear to be a sound policy considering
the nature of functions and
duties of an officer of JAG Branch
when appointed to a court martial
as hereinafter mentioned. Moreover
we find that General Court martial
was presided over by an officer of the
rank of Colonel. The respondent was
asked to give the name of any other
officer to be appointed as his defending
officer but he declined to do
so. The appellants provided the services
of three defending officers one
after the other but the respondent
declined to avail of their services and
did not give them right of audience.
All the three officers were of the
rank of lieutenant Colonel and two
of them were experienced and were
legally qualified. prosecution examined
Six witness including Major.
P.C. Bakshi, Lieutenant colonel A.K.
Sharma and Brigadier A.S. Bains
and also brought on record various
documents. The respondent was also
examined by the Court. In the absence
of any cross-examination by
the respondent, the court itself put
several questions to the witnesses in
the nature of cross-examination.
At this stage we may refer to the
relevant provisions of law. Section 1
of Chapter V of the Army Rules deals
with investigation of charges. Under
Rule 22 every charge against a
person subject to the Act other than
an officer shall be heard in the presence
of the accused who shall have
the full liberty to cross-examine any
witness against him and to call any
witnesses and make any statement in
his defence. The commanding officer
shall dismiss the cargo brought
before him if, in his opinion, the
evidence does not show that an offence
under the Act has been committed.
However, if he is of the opinion
that the charge ought to be proceeded
with, he has four options, one
of which is to adjourn the case for the
purposes of having the evidence reduced
to writing. Under Rule 23 procedure
is prescribed for taking down
the summary of evidence and statement
taken down in writing shall either
remand the accused for trial by
court martial and in that case apply
to the proper military authority to
convene a court martial. Under Rule
25 where an officer is charged with an
offence under the Act, the investigation
shall, if he requires it, be held,

and the evidence, if he so requires,
be taken in his presence in writing,
in the same manner as nearly as circumstances
admit, as is required by
Rules 22 and 23 in the case of other
persons subject to the Act . Army
Order No. 70/84 which deals with
hearing of a charge by the commanding
officer may be set out as under :
“AO 70/84 Discipline: Hearing of a
Charge by the commanding Officer.
1. Discipline process under the
Military law commences with Army
Rule 22 which lays down that every
charge against a person subject
to the Army Act, other than an
officer, shall be heard in the presence
of accused. The accused shall
have full liberty to cross- examine
any witness against him. This is a
mandatory requirement and its nonobservance
will vitiate any subsequent
disciplinary proceedings. In
the case of officers, the rule becomes
equally mandatory if the accused officer
requires its observance under
Army Rule 25.
2. It is, therefore, incumbent on
all Commanding Officers proceeding
to deal with a disciplinary case to
ensue that “Hearing of Charge” enjoined
by Army Rule 22 is scrupulously
held in each and every case
where the accused is a person other
than an officer and also in case of
an officer, if he is so requires it. In
case an accused officer does not require
“Hearing of the Charge ” to
be held, the Commanding Officer
may, at his discretion, proceed as described
in Army Rule 22(2) or Army
Rule 22(3).
3. It may be clarified that the
319
charge at this stage is a ’Tentative’
charge which may be modified after
the hearing or during the procedure
as described in Army Rule
22 (3) (c) or during examination after
completion of the procedure under
Army Rule 22(3) (c), depending
on the evidence adduced. Further,
as long as the Commanding Officer
hears sufficient evidence in support
of the charge
(s) to enable him to take action
under sub-rules (2) and (3) of
Army Rule 22, it is not necessary at
this stage to hear all possible prosecution
witnesses. As a matter of
abundant caution it would be desirable
to have one or two independent
witnesses during the hearing of the
charge(s).
4. After the procedure laid down
in Army Rule 22 has been duly followed,
other steps as provided in
Army rules 23 to 25, shall be followed
both in letter and spirit. It may be
clarified that the statutory requirements
of Army Rules 22 to 25 cannot
dispensed with simply because
the case had earlier been investigated
by a court of Inquiry where the accused
person (s) might have been afforded
full opportunity under Army
Rule 180.”
Army Rules 180 and 184 which
fall in chapter VI of Army Rules relating
to Courts of Inquiry are as under
: “180. Procedure when character
of a person subject to the Act is
involved.- Save in the case of a prisoner
of war who is still absent, whenever
any inquiry affects the character
or military reputation of a person
subject to the Act, full opportunity

320 Union Of India And Others v. Major A. Hussain 1997)
must be afforded to such person of
being present throughout the inquiry
and of making any statement, and of
giving any evidence he may wish to
make or give, and of cross-examining
any witness whose evidence, in his
opinion, affects his character or military
reputation and producing any
witnesses in defence of his character
or military reputation. The presiding
officer of the Court shall take
such steps as may be necessary to ensure
that any such person so affected
and not previously notified, receives
notice of and fully understands his
rights, under this rule 184. Right
of certain persons to copies of statements
an documents:-
(1) any person subject to the Act
who is tried by a court martial shall
be entitled to copies of such statements
and documents contained in
the proceedings of a court of Inquiry,
as are relevant to his prosecution or
defence at his trial.
(2) Any person subject to the Act
whose character or military reputation
is affected by the evidence before
a court of Inquiry shall be entitled
to copies of such statements
and documents as have a bearing on
his character or military reputation
as aforesaid, unless the Chief of the
Army Staff for reasons recorded by
him writing, orders otherwise.”
Present Rule 184 was substituted
by SRO 44 dated January 24, 1985
and prior to its substitution Rule 184
reads as under:
“184. Right of certain persons to
copies of proceedings.- The following
persons shall be entitled to a copy
of the proceedings of a court o inquiry
including any report made by
the court on payment for the same of
a sum not exceeding eight annas for
every two hundred words:-
(a) any person subject to the Act,
who is tried by a court martial in respect
of any matter or thing which
has been reported on by a court of
inquiry, or
(b) any person subject to the Act,
whose character or military reputation
is, in the opinion of the Chief of
Army Staff affected by anything in
the evidence before, or in the report
of a court of inquiry, unless the Chief
of the Army Staff sees reason to order
otherwise.”
Under Rule 95 in any General
Court Martial an accused person
may be represented by any officer
subject to the Act who shall be called
“the defending officer”. Sub-rule (2)
of Rule 95 Casts duty on the convening
officer to ascertain whether the
accused person desires to have a defending
officer assigned to represent
him and if he does so desire, the convening
officer shall use his best endeavors
to ensure that the accused
shall be so represented by a suitable
officer. This sub-rule (2) is as under:
“(2) It shall be the duty of
the convening officer to ascertain
whether an accused person desires
to have a defending officer assigned
to represent him at his trial and, if
he does so desire, the convening officer
shall use his best endeavors to
ensure that the accused shall be so
represented by a suitable officer. If
owning to military exigencies, or for

any other reason, there shall in the
opinion of the convening officer be
no such officer available for the purpose,
the convening officer shall give
a written notice to the presiding officer
of the Court Martial, and such
notice shall be attached to the proceedings.”
Under Rule 96 a civil counsel
can also be allowed in General
Court Martial to represent the accused
subject to his being allowed
but he convening officer which in the
present case was done and the accused
was represented by a counsel
of his choice.
Judge Advocate administers path
to the members of t he court martial
(Rule 47) and he himself be sworn as
per the forms prescribed (Rule 46).
It is he who sums up in an open court
the evidence and advise the court
upon the law relating to the case. If
we refer to Rule 105 we fine the powers
and duties of the judge advocate.
This rule is as under:
“105. Powers and duties of judge
advocate.- The powers and duties of
judge advocate are as follows:-
(1) The prosecutor and the accused,
respectively, are at all times
after the judge advocate is named to
act on the Court, entitled to his opinion
on any question of law relative to
the charge or trial whether he is in or
out of Court, subject, when he is in
Court to the permission of the Court.
(2) At a Court Martial, he represents
the Judge Advocate General.
(3) He is responsible for informing
the Court of any informality or
irregularity in the proceedings.
321
Whether consulted or not, he
shall inform the convening officer and
the court of any informality or defect
in charge, or in the constitution of
the Court, and shall give his advice
on any matter before the Court.
(4) Any information or advice
given to the Court, on any matter
before the Court shall, if he or the
Court desires it, be entered in the
proceedings.
(5) At the conclusion of the case,
he shall sum up the evidence and give
his opinion upon the legal bearing of
the case, before the Court proceeds
to deliberate upon its finding.
(6) The Court, n following the
opinion of the judge advocate on a
legal point, may record that it has
decided in consequence of that opinion.
(7) The judge advocate has,
equally with the presiding officer, the
duty of taking care that the accused
does not suffer any disadvantage in
consequence of his position as such,
or if his ignorance or incapacity to examine
or cross-examine witnesses or
otherwise and may, for that purpose,
with the permission of the Court,
Call witnesses and put questions to
witnesses which appear to him necessary
or desirable to elicit the truth.
(8) In fulfilling his duties, he
judge advocate must be careful to
maintain and entirely impartial position.”
No fault could be found with the
recording of summary evidence. Respondent
has been unable to show if
there was any non-compliance with
the provisions of Rules 22, 23 and

322 Union Of India And Others v. Major A. Hussain 1997)
24 and Army Order No. 70/84. We
have been referred to two decisions
of the Supreme Court in Lt. Col.
Prithi Pal Singh Bedi v. Union of India
and Ors. [(1982) 3 SCC 140] and
Major G.S. Sodhi v. Union of India [
(1991) 2 SCC 382] laying the scope
of the provisions regarding recording
of summary of evidence. In G.S.
Sodhi’s case this Court with reference
to Rules 22 to 25 said that procedural
defects, less those were vital
and substantial, would not affect the
trial. The Court, in the case before
it, said that the accused had duly
participated in the proceedings regarding
recording of summary of evidence
and that there was no flagrant
violation of any procedure or provision
causing prejudice to the accused.
Provisions of Rules 180 and 184
had been complied. Rule 184 does to
postulate that an accused is entitled
to a copy of the report of court of inquiry.
Proceedings before a court of
inquiry are not adversarial proceedings
and is also not a part of pretrial
investigation. In Major General
Inder Jit Kumar v. Union of India
& Ors. [(1997) 9 SCC 1] this Court
has held that the Court of Inquiry
is in the nature of a fact-finding enquiry
committee. The appellant in
that case had contended that a copy
of the report of the Court o Inquiry
was not given to him and the had vitiated
the entire court martial. He
had relied upon Rule 184 in this connection.
With reference to Rule 184,
the Court said that there was no provision
for supplying the accused with
a copy of the report of the Court
of Inquiry. This Court considered
the judgment in Major G.S. Sodhi’s
case and observed that supply of a
copy of the report of enquiry to the
accused was not necessary because
proceedings of the court of enquiry
were in the nature of preliminary enquiry
and further that rules of natural
justice were not applicable during
the proceedings of the court of
enquiry though adequate protection
was given by Rule 180. This Court
also said that under Rule 177, a court
of inquiry can be set up to collect evidence
and to report, if so required,
with regard to any matter which may
be referred to it. Rule 177, therefore,
does not mandate that a court of inquiry
must invariably be set up in
each and every case prior to recording
of summary of evidence or convening
of a court martial.
As noted above, when none of the
three officers who were all from JAG
Branch could be made available to
the respondent as defending officer
he was asked to give the name of any
officer who could be deputed his defending
officer. It is not the case of
the respondent that the convening officer
did not use his best endeavor
to ensure that the respondent was
represented by a suitable defending
officer. It was the respondent himself
who declined to give any other
name. Nevertheless the convening officer
did depute three officers one after
the other to represent as defending
officer for the respondent. But
the respondent declined to avail their
services.
We may also refer to Rule 149
which lays down that a Court Martial
would not be held to be invalid

even if there was an irregular procedure
where no injustice was done.
This Rule is as under:
“Validity of irregular procedure
in certain cases - Whenever it appears
that a court martial had jurisdiction
to try any person and make
a finding and that there is legal evidence
or a plea of guilty to justify
such finding, such finding and
any sentence which the court martial
had jurisdiction to ass thereon
may be confirmed, and shall, if so
confirmed and in the case of a summary
court martial where confirmation
is not necessary, be valid,
notwithstanding any deviation from
these rules or notwithstanding that
the charge-sheet has not been signed
by the commanding officer or the
convening officer, provided that the
charges have, in fact, before trial
been approved by the commanding
officer and the convening officer or
notwithstanding any defect or objection,
technical or other, unless it
appears that any injustice has been
done to the offender, and where any
finding and sentence are otherwise
valid they shall not be invalid by reason
only of a failure to administer an
path or affirmation to the interpreter
or shorthand writer; but nothing in
this rule shall relieve an officer from
any responsibility for any willful or
negligent disregard of any of these
rules.”
We find the proceedings of the
General Court Martial to be quite
immaculate where trial was fair and
every possible opportunity was afforded
to the respondent to defend
his case. Rather it would appear that
323
the respondent made all efforts to delay
the proceedings of the court martial.
Thrice he sought the intervention
of the High Court. Withdrawal
of the defence counsel in the midst
of the proceedings was perhaps also
a part of plan to delay the proceedings
and to make that a ground if
the respondent was ultimately convicted
and sentenced. Services of
qualified defending officer was made
available to the respondent to defend
his case, but he had rejected
their services without valid reasons.
He was repeatedly asked to give the
names of the defending officers of his
choice but he declined to do so. The
court martial had been conducted in
accordance with the Act and Rules
and it is difficult to find any fault
in the proceedings. The Division
Bench said that the learned single
Judge minutely examined the record
of the court martial proceedings and
after that came to the conclusion
that the respondent was denied reasonable
opportunity to defend himself.
We think this was fundamental
mistake committed by the High
Court. It was not necessary for the
High Court to minutely examining
the record of the General Court martial
as if it was sitting in appeal. We
find that on merit, the High Court
has not said that there was no case
against the respondent to hold him
guilty of the offence charged.
Though Court Martial proceedings
are subject to judicial review
buy the High Court under Article 226
of t he Constitution, the Court Martial
is not subject to the superintendency
of the High Court under Ar-

324 Union Of India And Others v. Major A. Hussain 1997)
ticle 227 of the Constitution. If a
court martial has been properly convened
and there is no challenge to
its composition and the proceedings
are in accordance with the procedure
prescribed, the High Court or for
that matter and court must stay its
hands. Proceedings of a court martial
are not to be compared with the
proceedings in a criminal court under
the Code of Criminal Procedure
where adjournment have become a
matter of routine though that is also
against the provisions of law. It has
been rightly said that Court Martial
remains to a significant degree,
a specialised part of overall mechanism
by which the military discipline
is preserved. it is for the especial
need for the armed forces that a person
subject to Army Act is tried by
court martial for an act which is an
offence under the Act. Court Martial
discharges judicial function and
to a great extent is a court where
provisions of Evidence Act are applicable.
A court martial has also
the same responsibility as any court
to protect the rights of the accused
charged before it and to follow the
procedural safeguards. If one looks
at the processions of law relating to
Court Martial in the Army Act, the
Army Rules, Defence Service Regulations
and other Administrative Instructions
of the Army, it is manifestly
clear that the procedure prescribed
is perhaps equally fair if not
more than a criminal trial provides
to the accused. When there is sufficient
evidence to sustain conviction,
it is unnecessary to examine if pretrial
investigation was adequate or
not. Requirement of proper and ad-
equate investigation is not jurisdictional
and any violation thereof does
not invalidate the court martial unless
it is shown that accused has been
prejudiced or a mandatory provisions
has been violated. One may usefully
refer to Rule 149 quoted above.
The High Court should not allow
the Challenge to the validity of conviction
and sentence of the accused
when evidence is sufficient, court
martial has jurisdiction over the subject
matter and has followed the prescribed
procedure and is within its
powers to award punishment.
After ourselves examining the
record of the court martial, we find
that the high Court completely misdirected
itself in coming to the conclusion
that the respondent was denied
reasonable opportunity to defend
himself. He was given copies
of all the relevant papers and also
given opportunity to inspect whatever
record he wanted; allowed services
of a civilian counsel; special advance
was given to engage the services
of civil counsel as requested by
the respondent; there was no rule to
give further advance to engage yet
another civil counsel when first one
withdrew; respondent was not hampered
by paucity of funds as made
out by him; no fault could be found
with the covening officer if the respondent
himself did not avail the
services of a defending officer when
provided; cross-examination of important
witnesses was deferred at
the request of the respondent; and
he had participated in the recording
of Summary of Evidence without
raising any objection. The General

Court Martial took into consideration
all the evidence and other materials
produced before it; found the
respondent guilty of the charge and
sentenced him to be dismissed from
service. Pre-confirmation petition
submitted by the respondent was rejected
by the Chief of the Army Staff
and finding and sentence of the General
Court Martial were confirmed by
him. Thus, examining the case of
the respondent from all angles which
325
led the High court to set aside his
conviction and sentence, we are satisfied
that there was no irregularity
or illegality and respondent was provided
with reasonable opportunity to
defend himself and the proceedings
were fair. We, therefore, set aside
the impugned judgment of the High
Court and dismiss the writ petition
filed by the respondent.
The appeal is allowed with costs.

326 Union Of India And Others v. Major A. Hussain 1997)

Chapter 26
The General Court Martial
v. Col. Aniltej Singh
Dhaliwal 1997
The General Court Martial & Ors
v. Col. Aniltej Singh Dhaliwal on 12
December, 1997 Author: Srinivasan
Bench: M Punchhi, M Srinivasan
PETITIONER:
THE GENERAL COURT MAR-
TIAL & ORS.
v.
RESPONDENT:
COL. ANILTEJ SINGH DHALI-
WAL
DATE OF JUDGMENT:
12/12/1997
BENCH:
M.M. PUNCHHI, M. SRINI-
VASAN
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
Srinivasan, J.
The respondent was an Army Of-
ficer of the rank of Lt. Col. and was
posted as Commanding Officer under
116 Engineer Regiment, with head
quarter, 17 Mtn. Arty. Brde. Nine
charges were framed against him on
24.6.1995 and General Court Martial
was held from 1.7.95 to 10.11.95. He
was found guilty on charges 2,3,8 and
9. He filed Crl. Writ Petition No.1 of
1995 in the High Court of Sikkim on
11.12.95. Thereafter on 2.3.1996 the
order of the Court Martial was confirmed
under Section 154 of the Army
Act. By judgment dated 9.8.96 the
High Court allowed the writ petition
and quashed the order or the Court
Martial. The appellant has preferred
this appeal against the judgment of
the High Court.
2. The main contention of the appellant
is that the High Court has
exceeded its power of judicial review
under Article 226 and acted as a
court of appeal by discussing and appreciating
the evidence. Reliance is

328 The General Court Martial v. Col. Aniltej Singh Dhaliwal 1997
placed on Nagendra Nath Bora Versus
The Commissioner of Hills Diven
and Appeals 1958 SCR 1240 wherein
this court held that the High Court
had no power under Article 226 to
issue a writ of certiorari in order to
quash an error of fact, even though it
may be apparent on face of the record
unless there is an error of law which
is apparent on the face of the record.
The court observed that the jurisdiction
of the High Court is limited
to seeing that the judicial or quasijudicial
tribunals or administrative
bodies exercising quasi-judicial powers
do not exceed their statutory jurisdiction
and correctly administer
the law laid down by the Statute under
which they act.
3. In H.S. and I.E. Board, U.P.
Versus Bagleshwar AIR 1966 SC 875,
the court held that an order passed
by a Tribunal holding a quasi judicial
enquiry which is not supported
by any evidence is in order which is
erroneous on the face of it and as
such is liable to be quashed by the
High Court under Article 226. In
Parry & Co. Versus Judge, 2nd I.T.
Cal. AIR 1970 SC 1334 the court
held that a writ is granted generally
when a court has acted without or in
excess of its jurisdiction or where the
Tribunal acts in flagrant disregard of
the rules of procedure or violates the
principle of natural justice where no
particular procedure is prescribed.
4. In Bhagat Ram Versus State
of H.P. AIR 1983 SC 454 the court
held that where a finding of the disciplinary
authority is utterly perverse,
the High Court can interfere with the
same.
5. In S.N. Mukherjee Versus
Union of India (1990) 4 SCC 594,
the Constitution Bench dealt with
a case wherein the appellant had
challenged the validity of the finding
and the sentence recorded by the
General Court Martial and the order
of the Chief of Army Staff confirming
the same. The court held
that the Supreme Court under Article
32 and the High Court under
Article 226 have the power of judicial
review in respect of proceedings
of courts martial and the proceedings
subsequent thereto and can grant appropriate
relief if the said proceedings
have resulted in denial of the
fundamental rights guaranteed under
Part III of the Constitution or if the
said proceedings suffer from a jurisdictional
error or any error of law apparent
on the face of the record. After
elaborately considering the provisions
of the Army Act and Rules, the
court pointed out that at the stage
of recording of findings and sentence
the Court Martial is not required to
record its reasons. It will be advantageous
to extract the following passage
in the judgment:
“From the provisions referred to
above it is evident that the Judge advocate
plays an important role during
the course of trial at general court
martial and he is enjoined to maintain
an impartial position. The court
martial records its findings after the
judge advocate has summed up the
evidence and has given his opinion
upon the legal bearing of the case.
The members of the court have to
express their opinion as to the finding
by word of mouth or each charge

separately and the finding on each
charge is to be recorded simply as a
finding of “guilty” or of “not guilty”.
It is also required that the sentence
should be announced for the with
in open court. Moreover Rule 66(1)
requires reasons to be recorded for
its recommendation in cases where
the court makes a recommendation
to mercy. There is no such requirement
in other provisions relating to
recording of findings and sentence.
Rule 66(1) proceeds on the basis that
there is no such requirement because
if such a requirement was there it
would not have been necessary to
make a specific provision for recording
of reasons for the recommendation
to mercy. The said provisions
thus negative a requirement to give
reasons for its finding and sentence
by the court martial and reasons are
required to be recorded only in cases
where the court martial makes a recommendation
to mercy. In our opinion,
therefore, at the stage of recording
of findings and sentence the court
martial is not required to record its
reasons and at that stage reasons are
only required for the recommendation
to mercy if the court martial
makes such a recommendation”.
6. In Chaturvedi Versus Union
of India (1995) 6 SCC 749, the court
observed that judicial review is not
an appeal from a decision but a review
of the manner in which the decision
is made and the power of judicial
review is meant to ensure that
the individual receives fair treatment
and not to ensure that the conclusion
which the authority reaches is necessarily
correct in the eye of the court.
329
7. Relying on the aforesaid relines
learned counsel for the appellants
submit that the High Court in
this case has exceeded its jurisdiction
not only by reappreciating the evidence
but also by erroneous understanding
provisions of the Evidence
Act. It is argued by him that in this
case there has been no violation of
principles of natural justice or rules
of procedure and that there is ample
evidence on record to support the
findings of the Court Martial.
8. Learned counsel for the respondent
contends that the court
martial has relied on inadmissible evidence
and over looked certain relevant
evidence on record and its findings
are vitiated. He has placed reliance
on the ruling in Ranjit Thakur
Versus Union of India & Ors. (1987)
4 SCC 611. In that case the court
found that there was failure to enquire
from accused as required by
section 130 of the Army Act whether
he objects to trial by any of the officers
present and held that the entire
proceedings was vitiated. The court
went on to hold that the punishment
awarded was disproportionately excessive
and quashed the same.
9. Now, we shall proceed to consider
the four charges found against
the respondent and the decisions of
the High Court thereon.
10. (a) Charge No. 2 reads as
under:
“IN A DOCUMENT SIGNED
BY HIM KNOWINGLY MAKING A
FALSE STATEMENT ( Army Act
Section 57 [a] ) :
In that he, at field, on 23rd

330 The General Court Martial v. Col. Aniltej Singh Dhaliwal 1997
October 1993, while being Commanding
Officer 116 Engr. Regt.
signed 116 Engr. Regy. letter
No. 2012/Gen/SAT/OPV dated
23rd October 1993 addressed Maj.
Gen. K.C. Dhingra, V.S.M., GOC
17 Mtn. Div. stating “It is brought
fwd for your information that all the
SRTs procured from M/s. Dhariwal
Steel Pvt. Ltd. Calcutta have
since been issued out for the constr.
of PDs are likely to be completely
ground applied by 30th October,
1993”, well knowing the said
statement to be false”.
(b) The Court Martial dealt with
it in the following manner:
“Second Charge”
After considering the evidence on
record the court find that there is no
denial on the part of accused for having
written the said letter to Maj.
Gen. K.C. Dhingra, V.S.M. It has
also nowhere being brought on record
that prior to date of writing this letter
dated 23rd October , 1992 (Ext.
Q), the accused had ascertained that
the said Arts. had been issued for
ground application although the accused
has averred in his unsworn
statement (Ext. BT) that he had
checked up with Maj P.K. Mangal
(PW 16). In addition to the above
the following reasons clearly indicate
the guilt of the accused:-
(a) Maj P.K. Mangal (PW 16)
has deposed that on 27th September,
1992 he was told by the accused that
he was issuing SRTs from defence
brick stores so that early completion
of permanent Defence OP Task could
be ensured.
(b) PW 16 has further stated
that on the inster of the accused
he wrote letter dated 24th October,
1993 (Ext.M) to all coys asking them
to identify such PDs where the said
SRTs have been utilise and confirm
the same by 13th October, 1992, this
action of accused is subsequent to
and not prior to his writing the said
letter (Ext.Q)
(c) Vide his noting sheet dated
20th October, 1993 (Ext.M) addressed
to Maj. Gen. K.C. Dhingra,
V.S.M. the accused in para (c)
had mentioned that he had accepted
below specification SRTs to make up
the SRTs of defence brick issued by
him for Job s
(d) Vide his letter to Maj. Gen.
K.C. Dhingra, V.S.M. dated 20th
October, 1993 (Ext. O) the accused
had stated therein his opinion the
SRTs supplied by M/s. Dhariwal
Steel Ltd. should be utilise for making
up of the deficiency of Defence
Brick SRTs which had been issued for
consturction of PDs.
(e) 673 SRT out of a total of 680
were found at ETP-V when checked
by Lt. Col. K.K. Khosla (PW 27)
and Capt. Sant Ram Verma (PW 25)
on 10th December, 1993.
(f) By common military knowledge
it can be inferred that between
the date of writing the letter Ext. Q-
10 i.e. 23rd October, 1993 and probable
date of completion given therein
i.e. 30th October, 1993 it is not possible
to apply the said quantity of
SRTs on ground”.
11. Before the High Court the
contention of the respondent was

that the letter Ext. Q-10 on the basis
of which charge No. 2 was framed
was written by him in response to
a query from the staff Court of Inquiry
and it was therefore not admissible
in evidence. The High Court accepted
that contention and held that
the said letter was not admissible in
view of the provisions in Rule 182 of
Army Rules. It is also held by the
High Court of Army Rules. It is also
held by the High Court that the court
material had not taken into consideration
a report of Lt.Col. K.K. Khosla
which was marked as Ex. AW. On
those grounds the High Court held
that the findings of the Court Martial
were wholly unsustainable.
12. Both the reasons given by
the High Court for quashing the finding
of the Court Martial, as stated
above, are totally erroneous. As regards
the admissibility of Ex. Q-10
in evidence, Rule 182 of the Army
Rules is not applicable to the same.
It is brought to our notice that factually,
the Court of Inquirty commenced
on 28th September, 1992 and
culminated on 14th October, 1993.
The letter Ex. Q-10 was written only
on 23.10.1993 i.e. after the Court of
Inquiry concluded. Further the letter
was addressed to Maj. Gen. K.C.
Dhingra, VSM. Admittedly he was
not a member of the Court of Inquiry
and had nothing to do with the same.
The only contention urged before us
is that he was the Commanding officer
Incharge at the time when the
alleged offence took place. That is
not sufficient to attract Rule 182 of
the Army Rules.
13. The Rule reads as follows:
331
“182 Proceedings of Court of Inquiry
not admissible in evidence The
proceedings of a Court of Inquiry.
or any confession, statement or answer
to a question made or given at
a Court of Inquiry shall not be admissible
the Act, nor shall any evidence
respecting the proceeding of
the Court be given against any such
person except upon the trial of such
person for willfully giving false evidence
before the Court.”
The Rule refers only to the proceedings
of a Court of Inquiry or any
confession, statement or answer to a
question made or given at a Court
of Inquiry. Ex. Q 10 does not belong
to any of the above categories.
The latter part of the Rules refers to
evidence respecting the proceedings
of the Court and prohibits the same
being given except upon the trial of
such person for wilfully giving false
evidence before that Court. That
part of the rule is also not acceptable.
Moreover, Ex.Q-10 does not
refer to any query being put by the
addressee. It has only referred to an
earlier letter dated 20.10.1993. Reliance
is placed upon the caption in
Ex. Q-10 which makes a reference to
staff of Court of Inquiry. That does
not help the respondent in any manner.
We have been taken through the
averments contained in the writ petition
filed by the respondent before
the High Court. They do not disclose
as to how the letter could be said to
be falling within the scope of Rule
182 of the Army Rules. Hence, the
view of the High Court is based on a
flagrant error that the document was
inadmissible in evidence.

332 The General Court Martial v. Col. Aniltej Singh Dhaliwal 1997
14. The other reason given by the
High Court for interferring with the
findings is that Ex. AW by Lt. SRTs
out of a total of 680 were found at
ETP-V when he checked the same
on 10.12.1993. Lt. Khosla was examined
as PW 27 before the Court
Martial and there is a specific reference
to the same in the order of
the Court Martial. The respondent
places reliance on a portion of that
report in which the responsibility for
the lapses was attributed to Son.
Sukhdev Singh. It is argued that
the report of Lt. Col. Khosla fixing
the responsibility on Sub. sukhdev
Singh should have been accepted by
the Court Martial. There is no merit
in this contention. In the first place,
the High Court is error in thinking
that the Court Martial had not taken
into consideration Ex.A.W. On the
other hand, the Court Martial has
expressly referred to the evidence of
Lt. Col. Khosla himself and contents
of Ex.AW. Secondly, the High Court
is wrong in thinking that the report
fixing the responsibility on Sub.
Sukhdev Singh should have been accepted
and the respondent should
have been exonerated. Admittedly,
Sub. Sukhdev Singh is a subordinate
official. The responsibility for the
stores was with the respondent. He
cannot escape by contending that a
subordinate official was responsible.
It is for the Court Martial to consider
the said question and come to
a conclusion. When the Court Martial
has held that the respondent was
responsible for the lapse, it was not
for the High Court to interfere with
the same as there was no omission
on the part of the Court Martial to
consider the relevant evidence.
15.(a) Turning to Charge No.3
the same is to the following terms:
IN A DOCUMENT SIGNED BY
HIM KNOWINGLY MAKING A
FALSE STATEMENT:- Army Act -
Sec. 57(a) In that he,
as filed, on 23rd Oct. 1993 while
being Commanding Office 116 Engr.
Regt. signed 116 Engr. Regt. letter
OPW dated 23rd VSM, DOC 17
MTN Div. stating “It is brought
fwd. for your info. that all the
FRTs procured from M/s. Dhariwal
Steel Pct. Lt. Calcutta has since
been issued out for the constr. of
PDs in the current working season.
On these PDS are likely to be completely
ground applied by 30th Oct,
1993, well knowing the said statement
to the false” (b) The decision
of the Court Martial was a followed:
THIRD CHARGE:- In support of
this finding the evidence i.e.on record
is as follows:
(a) Lt. Col. B. Manickam, PW-5
has deposed that during second week
of November 1992 he was called by
the accused in his office where he
was made to sign the Bd. proceedings
pertaining to generators and alternators
(Ex.U). At the same time
the accused asked him to take the
Bd. proceeding to Maj. G.K. Mediratta
(PW 21) and obtained his signatures
also on the Bd. proceeding
to whom the accused had already
spoken to PW 6 has also stated that
at no stage the Bd. of offers has physically
assembled to check the generators/alternators
after repairs.
(b) Maj. G.K. Mediratta, 9PW

21) has deposed that the Bd. proceeding
were brought to him by PW
6 and he signed the said Bd. proceedings.
he has also averred that the
Board physically never assembled.
(c) Sub. KKV Pilla (PW 24) has
deposed that he signed the Board
proceedings on insistence of PW 21
and he did not even known at that
stage which Bd. proceeding he was
signing.
(d) Major MMS Bharaj (PW 11)
has deposed that before making the
payment he had told the accused that
the said Bd. proceeding (Ex.U) were
neither countersigned nor dated and
on the inster. of accused he put the
date as ’27’ (Exhibited as U-5)d. He
(PW 11) has further stated that at
the time of making payment he had
also informed the accused that it will
not be correct to make the payment
since all generators had not come after
repairs.
(e) According to deposition of
Hav. Amin ali (PW 12) and Hay.
B.L. Prajapati (PW 28), the generators
kept coming even after 30th Nov.
1992 i.e. the date of payment”.
16. The respondent contended
before the High Court that the oral
evidence of PWs6, 21 and 24 was
not admissible in view of the provisions
of Section 94 of the Evidence
Act as the same was contrary
to the proceedings of the Board.
The High Court has accepted the
said contention and held that Section
94 of the Evidence Act barred
the admissibility of the oral evidence.
The High Court has also observed
that the Members of the Board who
333
has deposed that they had assigned
the Board proceedings because the
respondent wanted them to do so
should have been proceeded against
for their lapses. According to the
High Court the non consideration of
the said aspect of the matter was
a gross omission on the part of the
Court Martial. It was further observed
by the High Court that the
evidence of PW 20 was omitted to
be considered by the Court Martial.
17. None of the reasons given by
the High Court is sustainable. A perusal
of Section 94 of the Evidence
Act shows that it has no applicability
whatever. The Section reads thus:
94. Exclusion of Evidence against
application of document to existing
facts:-
“When language used in a document
is plain in itself and when it applies
accurately to existing facts, evidence
may not be given to show that
it was not meant to apply to such
facts”
The Section will come into play
only when there is document and the
language of it has to be considered
with reference to a particular factual
situation. That Section will apply
only when the execution of the document
is admitted and no vitiating
circumstance has been put forward
against the same. In the present
case, the document in question is a
proceeding of the Board. If at all,
it can only be said that said document
contains an admission made by
the signatories thereto that they had
checked the materials and the serviceability
thereof. It is well settled

334 The General Court Martial v. Col. Aniltej Singh Dhaliwal 1997
that an admission can be explained
by the markers thereof. In Naqubai
Versus B. Shama Rao AIR 1956 S.C.
593 the Court held an admission is
not conclusive as to the truth of the
matter stated therein and it is only
a piece of evidence, the weight to be
attached to which must depend upon
the circumstances under which it is
made. The Court said that it may
be shown to be erroneous or nature
so long as the person to whom it was
made has not acted upon it at the
time when it might become conclusive
by way of estoppel. The same
principle has been reiterated in K.S.
Srinivasan versus Union of India AIR
1958 S.C. 419, Basant Singh Versus
Janki Singh AIR 1967 S.C. 341 and
P.Ex-s. Co-op. T. F.S. Versus State
of Haryana. AIR 1974 S.C. 1121.
18. The appellants herein contended
before the High Court that
the relevant provision of the evidence
Act is Section 92, Proviso 1. The
same contention was repeated before
us. In our view neither Section 92 nor
Section 94 is attracted in this case.
Hence, the view of the High Court
that the oral evidence given by PWs
6, 21 and 24 is inadmissible is totally
erroneous.
19. There is another aspect of
the matter to be considered. Section
133 of the Army Act provides that
the Indian Evidence Act shall subject
to the provisions of the Act applied
to all proceedings before the Court
Martial. Section 134 provides that a
Court Martial may take judicial notice
of any matter within the general
military knowledge of the members.
It is quite obvious that in this case
the Court Martial had taken judicial
notice of the fact that a lower official
obeys implicitly the directions of
a higher official. The respondent being
an official higher in rank to the
aforesaid witnesses, the latter carried
out his directions by signing the
Board proceedings. The High Court
has also observed that the evidence
of PW 20 was not considered by the
Court Martial. We are unable to appreciate
how the evidence of PW 20
is relevant in this regard. Hence, the
reasoning of the High Court for setting
aside the finding of the Court
Martial on Charge No.3 is wholly unsustainable.
20. (a) Charge No.8 was
in the following terms:-
SUCH AN DEFENCE AS IS
MENTIONED IN CLAUSE (f) OF
SECTION 52 OF THE ARMY ACT
WITH INTENT TO DEFRAUD
in that he,
at field, between 30 Dec. 1992
and
22 July 1993, while being the
Commanding Officer of 116 Engr.
Regt. with intent to defraud, made
payments of Rs. 7,720/- (Rupees
seven thousand seven hundred
twenty only) against purported supply
of AIG Stores as per Appx ’B’ to
the charge-sheet, well knowing that
no such items were infact received in
the said unit
(b). It is dealt with by the Court
Martial in the following terms.
“Eight Charge:- The reasons are
as follows:
(a) Hav. Rajkumar Singh (PW
30) has deposed that on 18 March

1993, Hav. Pillai brought a CRX
for 2 Ltrs of paint and 4 brushes 75
mm. As he was not dealing with A10
stores he refused to sign the CRV.
Thereafter he was called by the accused
and ordered to sign the CRV
and he accordingly signed CRV dt.
18 March 1993 (Ex. BL)
(b) Capt. A.K.Gautam (PW 32)
has deposed that he had not received
any ARG stores in February
1993. He has further deposed
that he signed the Bill No.420/92-
93 dated 27 February 1993 after he
had informed the accused that Capt.
A.K. Jain has refused to sign since
no stores have been received. Capt.
A.K. Jain was also not available at
Mile 2 location at that time. The
accused, thereafter, instructed Capt.
A.K. Gautam (PW 32) to sing the
said bill and he accordingly signed.
(c) Lt. Col. B. Manickam
(PW 6) has deposed that the accused
asked him to take on charge
ATG stores which he refused since
no stores had arrived. He further reflected
the deficiency of ATG stores
in handing taking over noted ME-2
which was brought to the notice of
accused on 09 June 1993.
(d) The fact that accused was
made aware on 09 June 1993 that
physically no ATG store had been received
and yet he did not take any
action, is an indication of his intent.”
21. The High Court reversed the
finding on this charge on the same
reasoning as with reference to Charge
No.3. The High Court has held that
the oral evidence adduced before the
Court Martial was inadmissible. The
335
reasons which we have already give
when we dealt with Charge No.3 are
equally applicable here.
22. Hence, we hold that the High
court s in error in interferring with
the findings of the Court Martial on
Charge No.8.
22. The Nineth Charge read as
follows:
AN OMISSION PREJUDICIAL
TO GOOD
ORDER AND MILITARY DIS-
CIPLINE
In that he, at filed, between 01
Nov. 92 and 21 Nov. 93 while being
the Commanding Officer of 116
Engr. Regt. and having come to
know about the losses/deficiencies of
Defence Brick Stores on charge of
his regiment, improperly omitted to
report the said losses/deficiencies in
contravention of Para 1(c) of SAO
13/s/80.
23. It is unnecessary for us to
consider the discussion of this charge
by the Court Martial for on the
face of it the charge is unsustainable.
The charge is under Para
1(c) of SAO 13/2/80. A copy of
the said SAO has been produced
before us. The relevant part of it
reads as follows: ADJUTANT GEN-
ERAL’S BRANCH SAO 13/s/80
DISCIPLINE-PROCEDURE FOR
SUBMISSION OF REPORTS RE-
GARDING INCIDENTS AND OF-
FENCES INVOLVING ARMY
PERSONNEL AND FOR THEIR
INVESTIGATION. Incidents and offences
to be reported.
1. The following incidents and offences
will be reported:

336 The General Court Martial v. Col. Aniltej Singh Dhaliwal 1997
(a) All cases of assault and affray
where persons subject to Army Act
are involved.
(b) Breaches of discipline:-
(i) Collective insubordinations.
(ii) Suicide, attempted or suspected
suicide: (iii) Murder or an attempt
to murder. (iv) Rape
(v) MT accidents resulting in fatal
or serious causalities, accidents
involving civilian vehicles resulting
in damage to property or injuries to
civilians or persons subject to Army
Act. (c) Other serious cases e.g.
unnatural deaths not covered under
sub-para (b) above.
24. It is quite obvious that
the charge framed against the respondent
will not fall under Para
1(c). The charge is not that
some other persons brought about
losses/deficiencies of defence Brick
Store and the same was not reported
by the respondent. Not is the charge
to the effect that it was the respondent
himself who caused such
losses/deficiencies. The charge itself
is very vague. The High Court is
therefore justified in holding that the
charge is defective and the respondent
cannot be made guilty.
25. There is no doubt that the
High Court has erroneously set aside
the findings of the Court Martial on
Charges 2,3 and 8. Now that we uphold
the findings of the Court Martial
on the said charges, the only
question which remains to be considered
is that of punishment awarded
to the respondent. Prima facie, the
sentence awarded by the Court Mar-
tial appears to be very service. But
we do not want to decide the question
here. As the Court Martial
awarded such a sentence on the basis
of the findings on all the four charges,
namely, 2, 3, 8 and 9 the same cannot
be sustained as we have now
held that Charge No.9 is unsustainable
and the finding thereon has been
rightly quashed. Hence, the question
of sentence has to be considered on
the basis of three charges namely 2,
3 and 8 being found against the respondent.
That has to be done by
the Court Martial. Therefore, the
matter has to be remanded back to
the Court Martial for deciding that
question.
26. Consequently the appeal is
partly allowed and the judgment of
the High Court is set aside except
with reference to its conclusion on
charge No.9. The sentence awarded
by the Court Martial is set aside and
the matter is remitted to the Court
Martial for considering and passing
an appropriate sentence on the basis
of findings on Charges 2, 3 and 8.
27. In the facts and circumstances
of the case we find it necessary
to invite attention of appellants
2 to 4 to consider initiating appropriate
proceedings against PWs 6, 21
26, 30 and 32 who deposed at the
Court Martial that they had signed
or prepared official record on the oral
directions of the respondent without
verifying the correctness thereof
which act of their was in direction of
duties. These state of affairs is highly
distressing. We record our displeasure.

Chapter 27
Union of India v. Capt. A.P.
Bajpai 1998
Union of India & Ors v. Capt.
A.P. Bajpai [1998] INSC 119 (20
February 1998)
Sujata V. Manohar, D.P. Wadhwa
D.P. Wadhwa. J.
ACT:
HEAD NOTE:
THE 20TH DAY OF FEBRU-
ARY, 1998 Present :
Hon’ble Mrs. Justice Sujata
V. Manohar Hon’ble Mrs. Justice
D.P. Wadhwa P.P. Malhotra, N.N.
Goswami, Sr, Advs., A.K. Srivastava,
Hemant Sharma and Ms. Anil
Katiyar, Advs, with them for the appellants.
J.S. Sinha, Rajiv Dutta,
Randhir Singh, Advs, for the Respondent
The following Judgment of the
Court was delivered:
The respondent, an officer in the
army, was tried by General Court
Martial on the following two charges:
“(i) Under Army Act Section
52(a) for committing theft of property
belonging to the Government in
that he, at Pithoragarh on 08 Sep
77 committed theft of the following
property belonging to the Govt :-
(aa) Jam td Kissan 4 tins (450
gms each) - 1.800 Kgs
(bb) Pine apple td 6 tins (850 gms
each) - 5.100 Kgs.
(cc) Sausage td 9 tins (400 gms
each) - 3.600 Kgs.
(dd) Coffee 1 tins (500 gms) -
0.500 Kgs.
(ee) Milk td 54 tins (397 gms
each) - - 21. 438 Kgs.
(ii) Under Army Act Section 39
(b) for absenting himself without
leave in that he, at Pithoragarh, in
03 Jun 78, while attached to Station
Headquarters Pithoragarh, absented
himself without leave until voluntarily
rejoined on 07 Jun 78.” After
the conclusion of the trial by order
dated January 21, 1979 General
Court Martial held the respondent
not guilty of the first charge of theft,
but found him guilty of the second
charge and sentenced him to forfeit

338 Union of India v. Capt. A.P. Bajpai 1998
three years’ service for the purpose
of promotion and to be severely reprimanded.
Under Section 153 of the
Army Act, 1953 (for short ‘the Act’),
the finding or sentence shall be valid
except so far as it may be confirmed
as provided by the’ Act. Under Section
154 the finding and sentence of
General Government, or by any officer
empowered in this behalf by
warrant of the Central Government.
When the matter was placed before
the General Officer Commanding
U.P. Area, the competent confirming
authority, he in the exercise
of his power under Section 160 of
the Act revised the findings of the
General Court martial on the first
charge and directed it to reconsider
the entire evidence relating to the
first charge in the light of the observation
made by him in the order. He
gave the following directions for the
General Court Martial to observe:
“If the Court, on revision, revokes
its earlier finding on the first charge
and find the accused guilty of the
first charge, it shall revoke its earlier
sentence and pass a suitable fresh
sentence.
After this revision order is read
in open Court, the accused shall be
given a further opportunity to address
the Court. Therefore, if it becomes
necessary to clear any points
raised by the accused, the Judge Advocate
may give a further Summing
up.
The attention of the Court is invited
to Army Act Section 160 and
Army Rule 68 and the form of proceedings
on revision on page 370 of
the MIML 1961 reprint, which should
be modified to conform to Army Rule
62(10).”
In pursuance to the aforesaid
order of the confirming authority,
General Court Martial assembled on
March 10, 1979 and on the request
of the respondent was adjourned
to the following day. The respondent
made written submissions which
were taken on record. After reconsideration
the court held the respondent
guilty of both first and the second
charges.
Respondent was thereafter sentenced
to be dismissed from service
by order dated March 11, 1979. The
conviction and sentence so passed on
the respondent was confirmed by the
Chief of the Army Staff by order
dated September 14, 1979 which was
promulgated on September 24, 1979.
The respondent under Section
164 (2) of the Act preferred a post
confirmation petition before the Central
Government which was rejected.
The respondent thereafter filed the
writ petition in the High Court of
Judicature at Allahabad challenging
his conviction and sentence. A Division
Bench of the High Court by
impugned judgment dated December
22. 1992 set aside the conviction and
sentence passed on the respondent on
the first charge and held that punishment
on the second charge was yet to
be confirmed by the confirming authority
so as to make the same operative.
On leave being granted, the appellants
have filed this appeal.
The stage from which the High
Court thought it necessary to in-

terfere in the proceedings was when
the confirming authority passed order
under Section 160 of the Act revising
the order of the General Court
Martial holding the respondent not
guilty of the first charge. High Court
was of the view that the confirming
authority had analysed the evidence
minutely almost returning the finding
of guilt against the respondent
and leaving no discretion with the
General Court Martial to act otherwise.
High Court termed the observations
of the confirming authority
unwarranted and said that even
the subsequent confirming authority
being the Chief of the Army Staff
overlooked the abuse of the power
committed by the first confirming
authority under Section 160 of the
Act in reappreciating the whole evidence
on record in respect of the quilt
of the respondent and further that
the authorities did not care to read
the revisional order of the confirming
authority properly and rejected
the statutory representation of the
respondent. High Court did notice
the following observations of the confirming
authority in its order of revision
but said it was a very ingenious
method adopted by the confirming
authority to influence the Court Martial
and said that the whole thing was
a mere camouflage:
“While in no way wishing to interfere
with the discretion of the
court to arrive at a particular finding
or sentence, and regarding the
value to be attached to the evidence
on record and the inference to be
deducted therefrom, I, as the confirming
officer, am of the view that
339
the finding of ‘not guilty’ on the
first charge arrived at by the court
is perverse being against the weight
of overwhelming evidence....” High
Court was thus of the view that
the first confirming authority overstepped
its jurisdiction and that its
order was invalid. High Court relied
on a decision of the Delhi High Court
in Naib Subedar Avtar v. Union of
India [1989 Cr1.L.J. 1986 rendered
by a single Judge where that Court
took the view that the confirming
authority could not appreciate evidence
as its jurisdiction was limited
and that where the confirming authority
had given directions to the
Court Martial to reverse the findings
of “not guilty” into “guilty”,
the order of the confirming authority
was held to be bad and liable to
be quashed.
In our view, the High Court did
not properly appreciated the scope
and intent of Section 160 of the Act.
Section 160 is as under:
“160. (1) Any finding or sentence
of a court martial which requires confirmation
may be once revised by order
of the confirming authority and
on such revision, the court, if so directed
by the confirming authority,
may take additional evidence.
(2) The court, on revision, shall
consist of the same officers as were
present when the original decision
was passed, unless any of those officers
are unavoidably absent.
(3) In case of such unavoidable
absence the cause thereof shall be
duly certified in the proceedings, and
the court shall proceed with the revi-

340 Union of India v. Capt. A.P. Bajpai 1998
sion provided that, if a general court
martial, it still consists of five officers,
or, if a summary general or
district court martial of three officers.”
Rule 68 of Army Rules, 1954
deals with confirmation and revision
of finding or sentence of a Court Martial.
There are Notes under this Rule
and Note 6 is relevant. These are:
“68. Revision.- (1) Where the
finding is sent back for revision under
Section 160, the court shall reassemble
in open court, the revision
order shall be read, and if the court is
directed to take fresh evidence, such
evidence shall also be taken in open
court. The court shall then deliberate
on its finding in closed court.
(2) Where the finding is sent back
for revision and the court does not
adhere to its former finding, it shall
revoke and finding and sentence and
record the new finding, and if such
new finding involves a sentence, pass
sentence afresh.
(3) Where the sentence alone is
sent back for revision, the court shall
not revise the finding.
(4) After the revision, the presiding
officer shall date and sign the
decision of the court, and the proceedings,
upon being signed by the
Judge Advocate, if any, shall at once
be transmitted for confirmation.
NOTES 1 to 5 xxx xxx xxx
6. If a court brings in a finding
of “not guilty” against the weight
of evidence, the court may be reassembled
and the confirming officer
may give his views on the evidence,
directing the attention of the court to
any special points which it appears to
have failed to appreciate. “The finding
of sentence of the Court Martial
can be revised once by the confirming
authority. If after remand the Court
Martial returns the same finding or
sentence confirming authority would
be bound by the same. As to why the
confirming authority would like the
Court Martial to reconsider the matter,
it has per force to give its views
which it can do only after examining
the evidence on record and the proceedings
of the Court Martial.”
In Capt. Harish Uppal v. Union
of India and Others [1973 2 SCR
1023] the petitioner, an officer in the
Army, was tried before the Summary
General Court Martial on the charge
of committing robbery on December
11, 1971 at Hajiganj (in Bangladesh)
of the properties of the Bank, its
Manager as well as of the Chowkidar.
The court sentenced him to be
cashiered. This sentence was subject
to confirmation.
The confirming authority passed
an order directing the revision of the
sentence. Thereafter the petitioner
was brought before the same Court
Martial and after considering the observations
of the confirming authority
revoked the earlier sentence and
now sentenced him to be cashiered
and to suffer rigorous imprisonment
for two years. This finding and sentence
were subsequently confirmed.
It was challenged in the Supreme
Court in a petition under Article 32
of the Constitution and one of the
arguments was that the authority
to confirm the sentence passed by a
Court Martial did not confer on the
confirming authority the power to en-

hance the sentence and that authority
could not achieve that object indirectly
by directing the revision of
the sentence. It was contended that
the Court Martial verdict should be
unfettered. This Court examined the
order of revision of the confirming
authority. While sending the matter
back of the Court martial the confirming
authority gave a caution that
“whilst in no way intending the quantum
of punishment to be awarded,
the court should fully of punishment
to be awarded, the court should
fully take into consideration the following
observations of the Confirming
Officer” and also that the court
should then carefully consider all the
above and should they decide the enhance
the sentence, then fresh sentence
should be announced in open
court as being subject to confirmation.
This Court held that the order
of the confirming authority directing
revision was in no way vitiated.
In Gian Chand v. Union of India
and others [1983 Crl.L.J. 1059] a division
bench of the Delhi High Court
said that a direction given by the
confirming authority to the General
Court Martial to reconsider the finding
or sentence could not be said to
be a fetter on the exercise of powers
of the General Court Martial. High
Court said that an order under Section
160 was a sort of an application
for review which was made by the
confirming authority and the statute,
thereupon, caste a duty on the General
Court Martial to reconsider its
earlier finding or sentence but it was
not obliged to change its earlier view.
It further said that the Court Martial
341
when it was reconsidering the matter
in pursuance of a direction having
been issued under Section 160 had to
apply its mind to the case independently,
uninfluenced by any observations
which might have been made in
the direction given by the confirming
authority. These two decision, it
would appear, were not brought to
the notice of the Judges of the Allahabad
High Court while delivering
the impugned judgment as there is no
reference to the aforesaid two decisions,
one of the Supreme Court and
the other of the Division Bench of the
Delhi High Court.
In Ex. Lieut Jagdish Pal Singh
v. Union of India and Ors. [Criminal
Appeal NO. 104 of 1991 decided
on May 7, 1997] the appellant
was a commissioned officer in the
Army and faced trial before a Court
Martial on the accusation of taking
away large number of bottles of Rum
worth about Rs.5616/- from the military
canteen. After trial the Court
Martial held the charge not proved
against the appellant.
When the matter was placed before
the confirming authority as required
under Section 153 of the Act,
the confirming authority remitted
the matter to the Court Martial indicating
various aspects of the case
which had not been considered properly.
It was made clear by the confirming
authority at the outset that
the observations made by the confirming
authority were not made to in
any way interfere with the discretion
of the members of the Court Martial
in basing its finding on reconsideration
of the matter.

342 Union of India v. Capt. A.P. Bajpai 1998
Thereafter the Court Martial met
again and on reconsideration came to
the finding that the appellant was
held guilty of the offence and sentenced
him to be dismissed from service.
The finding and sentence were
later confirmed by the confirming authority.
The appellant filed a writ petition
in the Delhi High Court it was
contended that the revisional authority
was empowered merely to direct
for additional evidence and that no
such direction had been given and on
the contrary observation on merits of
the case was made overstepping the
limit of jurisdiction by the confirming
authority. This Court held that the
confirming authority had not made
any finding which was likely to cause
prejudice against the appellant and
that it had at the very outset made
it clear that the Court Martial was
free to decide by adverting to certain
basic features indicated by the confirming
authority. This Court therefore
refused to interfere in the matter.
We are unable to subscribe to the
submissions now advanced before us
that the jurisdiction of the confirming
authority is confined only to giving
of directions for recording additional
evidence by General Court
Martial or that from the order of the
confirming authority “inference cannot
be escaped that this is based not
on any independent judgment but influenced
by the undisguised opinion
expressed by the confirming authority
on merits of the case” or that the
revisional order contained such unwarranted
observations, which were
tantamount to recording of finding,
which was in no way the function of
the confirming authority or that jurisdiction
by confirming authority. It
was asserted that the order in revision
was liable to be quashed and
rightly done so by the High Court.
All this, however, appears to us to
be mistaken view entertained by the
High Court both in law and from the
facts of the case.
There is no dispute that in the
conduct of the Court Martial proceedings
before and at the stage
of reconsideration procedure as prescribed
was followed. It is the true
that the confirming authority did
analyses the evidence on the record
of proceedings of the Court Martial
but that was so done in the context
of indicating where the Court Martial
could have gone wrong in appreciation
of evidence and nevertheless
caution had been administered to the
Court Martial that what was said in
the revision order was not intended
in any way to interfere with the discretion
of the Court Martial to arrive
at a particular finding or sentence
and regarding the value to be attached
to the evidence on record and
the inference to be deducted there
from. Confirming authority said:
“Consequently, I am also of the
view that the sentence awarded on
finding the accused quality of the
second charge is not commensurate
with the gravity of the offence. At
the very outset, I wish to impress
that where the Court ignores the
broad features of the prosecution
case, and restricts itself to a consideration
of minor discrepancies and further
meticulously juxtaposes the ev-

idence of different witnesses on disputed
points and discards the evidence
in its entirety when discrepancies
are found, the method can
rightly be criticised as fallacious. It
has to consider whether there is any
direct/reliable evidence on questions
which have to be established by the
prosecution.
Undoubtedly, in considering
whether evidence is reliable, it is justified
in directing attention to other
evidence which contradicts or is inconsistent
with the evidence relied
upon by the prosecution. But to discard
all evidence because there are
discrepancies without any attempt
at evaluation of the inherent quality
of the evidence is unwarranted. The
court should make an effort to disengage
the truth from falsehood. It
is an error to take and easy course
by holding the evidence discrepant
and the whole case untrue. Even
when the prosecution witnesses have
not deposed the whole truth and although
it may not be possible to
get an absolutely true picture of the
events from their evidence, it is not
proper and justifiable to say that
the prosecution case is a complete
fabrication. Bearing in mind these
principles the Court should examine
the evidence adduced before them
in respect of each charge.” It was
contended by the respondent that
the very use of the expression “perverse”
in the revision order would
have influenced the mind of the members
of the General Court Martial as
the officers constituting the General
Court Martial were lower in rank
than the confirming authority who
343
was of the rank of Major General
and that the confirming authority of
its own appreciated whole of the evidence
instead of saying as to what
evidence was to be considered by the
General Court Martial which had
the effect of influencing the General
Court Martial. An argument
was also raised that when the Court
Martial reassembled after the revision
order the whole proceeding concluded
within half an hour and the
General Court Martial returned finding
of guilt against the respondent.
That according to the respondent
would show that the General Court
Martial did not apply its mind independently
and was swayed by the
opinion of the confirming authority.
It was lastly submitted that there
was no ground for the confirming authority
to interfere in the proceeding
of the General Court Martial which
had considered the evidence and argument
in depth and held the first
charge not proved against the respondent.
We are unable to agree to
any of the submissions. Confirming
authority cannot act merely as a rubber
stamp. The fact that the finding
and sentence of Court Martial should
be valid only after it is confirmed by
the competent authority would show
that it has to examine the whole of
the record of the proceeding of the
Court Martial before confirming the
finding or sentence. It is the requirement
of Section 160 that when the
confirming authority wished that the
finding or sentence of a Court Martial
required revision it should not
send back the case as a matter of
course but record reasons as to why
the confirming authority thought so

344 Union of India v. Capt. A.P. Bajpai 1998
as to where the Court Martial has
failed in its duty to properly examine
the facts and in application of
correct law. When the matter is remitted
back to the Court Martial
under Section 160 the Court Martial
may take additional evidence if so
directed by the confirming authority.
In the present case no such direction
was given by the confirming authority
and there was no occasion for the
General Court Martial to record additional
evidence. Full opportunity
was given to the respondent to make
submission before the General Court
Martial after it had reassembled and
as the record would show copy of the
revisional order was also supplied to
respondent and he made his submission
in writing. The Court thereafter
that it revoked its earlier finding and
sentence and held the respondent
guilty of the first and second charge.
It cannot be said that the finding
and sentence after reconsideration
was arrived at in a hurried fashion.
We have noted above that now it
was the Chief of the Army Staff who
confirmed the finding and sentence
and when he did so it could not be
said that the whole of the record was
not before him. We do not think that
the confirming authority exceeded its
jurisdiction in analysing the evidence
recorded during Court Martial proceedings.
The revision order was not
intended in any way to interfere with
the discretion of the Court Martial
and the Court Martial was also not
bound by any such observation.
We, therefore, allow the appeal,
ser aside the Judgment of the High
Court and dismiss the writ petition
filed by the respondent.

Chapter 28
Union Of India v. Subedar
Ram Narain 1998
Union Of India v. Subedar Ram
Narain on 15 September, 1998 Equivalent
citations: AIR 1998 SC 3225,
JT 1998 (6) SC 383, 1998 LablC
3530 Author: B Kirpal Bench: S
Bharucha, G Nanavati, B Kirpal
JUDGMENT
B.N. Kirpal, J.
1. The only question which arises
for consideration in this and the connected
appeals is whether the respondent
who was junior commissioned
officer, would be ineligible for pension
or gratuity in respect of all his
previous service on his being dismissed
under the Army Act, 1950.
2. The respondent was enrolled
in the Indian Army on 17.03.1962.
He was promoted to the rank of
Subedar Major with effect from 1st
March, 1984. While he was serving
with 75 Medium Regiment he
was kept in close arrest with effect
from 17.11.1988 and was then court
martialed under the provisions of the
Army Act. He was charged Under
Section 40(a), using criminal force to
his superior officer, and Section 48 of
the Army Act, 1950 for being in a
state of intoxication while on duty.
3. The General Court Martial
found the respondent guilty and
thereupon he was dismissed from service
on 01.08.1989. He filed an appeal
to the Chief of the Army Staff
against the decision of the General
Court Martial but the same was rejected
after due consideration.
4. The respondent then filed writ
petition No. 423 of 1989 in the High
Court of Jammu and Kashmir praying
for quashing of the court martial
proceedings. This petition was however,
withdrawn and another writ petition
No. 917 of 1991 was filed in
the Delhi High Court for the grant
of pensionary benefits. The High
Court while relying upon the decision
of this Court in the case of
Major G.S. Sodhi v. Union of India,
, came to the conclusion that as
the General Court Martial had not
passed an order depriving the respondent
of pensionary benefits, there-

346 Union Of India v. Subedar Ram Narain 1998
fore, he would be entitled to the same
notwithstanding his dismissal from
service.
5. In this appeal by special leave
the challenge is to the aforesaid conclusion
of the High Court.
6. On behalf of the appellant
it was contended by Sh. N.N.
Goswami, learned senior counsel,
that the provision with regard to eligibility
for receipt of pensionary benefits
by the junior commissioned officer
on being dismissed or discharged
under the Army Act is governed by
Regulation 113(a). This provision,
it was contended, was different from
the provision which was applicable
in the case of dismissal of commissioned
officers. It was submitted
that the High Court, in the instant
case, erred in relying upon a decision
of this Court in Major Sodhi’s case
(supra) which did not pertain to the
applicability of Regulation 113(a).
Our attention was drawn to Regulation
16(a) which related to the payment
of pension to an officer who
is cashiered, dismissed, removed or
called upon to retire, it was that regulation
which had application in Major
Sodhi’s case.
7. Chapter III of the Regulations
relates to junior commissioned
officers, other ranks and noncombatants
(enrolled). It is not in
dispute that the provisions of this
chapter applied to the respondent
in this and other appeals. Regulation
113 with which we are concerned
reads as follows :
“113(a) An individual who is dismissed
under the provisions of the
Army Act, is ineligible for pension or
gratuity in respect of all previous service.
In exceptional cases, however, he
may at the discretion of President be
granted service pension or gratuity at
a rate not exceeding that for which he
would have otherwise qualified had
he been discharged on the same date.
(b) As individual who is discharged
under the provisions of
Army Act the rules made thereunder
remains eligible for pension or gratuity
under these Regulations.”
Regulation 16(a) falls in Chapter
II of the Regulations which relates to
the commissioned officers. The said
regulation, in so far as it is relevant,
reads as follows :
“16(a) When an officer who has
to his credit the minimum period of
qualifying service required to earn
pension, is cashiered or dismissed or
removed from service, his pension
may, at the discretion of the President
be either forfeited or be granted
at a rate not exceeding that for which
he would have otherwise qualified
had he retired on the same date.”
8. Referring to the said regulations
this Court has held in Maj.
(Retd.) Hari Chand Pahwa v. Union
of India and Anr., [1995] Supp. 1
Supreme Court Cases 221 and Union
of India v. Brig. P.K. Dutta (Retd.),
that even if these regulations are not
statutory the same are still binding
because pensionary benefits are
payable only under these regulations
and, therefore, the same can be forfeited
in the manner and circumstances
as provided for by the said

egulations.
9. The first sentence of Regulation
113(a) clearly provides that an
individual who is dismissed under the
provisions of the Army Act is ineligible
for pension or gratuity in respect
of all previous service. In other
words a person like the respondent
to whom Section 113(a) applies will
not be entitled to receive any pension
on an order of his dismissal being
passed. Clause (b) of Section
113 makes a distinction in the case
of a person who is discharged, and
not dismissed, under the provisions
of the Army Act. In the case of discharge
a person remains eligible for
pension or gratuity under the said
regulation. The latter part of Section
113(a) provides that in exceptional
cases the President may, at his
discretion, grant service pension or
gratuity at a rate not exceeding that
for which an individual would have
otherwise qualified had he been discharged,
and not dismissed, on the
same day. Reading Regulation 113
it is clear that in the case of a junior
commissioned officer or a person
belonging to other rank or a noncombatant
(enrolled), he would become
ineligible for grant of pension
or gratuity on the passing of an order
of dismissal. The disentitlement
to pensionary benefits is the normal
result of a dismissal order. But the
President may, in exceptional cases,
at his discretion, order the grant of
pension. Therefore, if no order is
passed by the President then the result
is that the dismissed junior commissioned
officer remains disentitled
to pension or gratuity.
347
10. The terms of Regulation
16(a) are clearly different from Regulation
113(a). According to Regulation
16(a) when an officer, as defined
in Section 3(xviii) of the Army Act,
1950, is cashiered or dismissed or removed
from service then the President
has the discretion of either forfeiting
his pension or ordering that
he be granted pension at a lesser
rate. The dismissal, removal etc. of
a commissioned officer does not, in
other words automatically result in
the forfeiture or lessening of his pension.
Power is, however, given to
the President that in such a case he
may either direct the forfeiture of the
officer’s pension or reduction in the
rate thereof, Major Sodhi’s case was
one which dealt with the question of
forfeiture of a commissioned officer’s
pension on his being dismissed from
service. It is in the context of Regulation
16(a) that it was observed
that as no order was passed under
the said regulation, therefore, the officer
concerned would be entitled to
the receipt of full amount of pension
or gratuity which would normally be
payable to him.
11. The question with regard to
forfeiture of pension in the case of a
junior commissioned officer to whom
the provisions of Regulation 113 applied
came up for consideration before
this Court in Union of India and
Ors. v. R.K.L.D. Azad, [1995] Supp
3 Supreme Court Cases 426. After
referring to Regulation 113(a), this
Court at page 429 observed as follows
:
“In view of the plain language
of the above regulation the respon-

348 Union Of India v. Subedar Ram Narain 1998
dent cannot lay any legal or legitimate
claim for pension and gratuity
on the basis of his previous service
as, admittedly, he stands dismissed
in accordance with Section 73 read
with Section 71 of the Act. The second
question must, therefore, be answered
in the negative.”
12. Sh. Prem Malhotra, learned
counsel for the respondent submitted
that withholding the pension when
the respondent had been court martialed
and dismissed would amount
to double jeopardy. It was submitted
that Under Section 71(j) of the
Army Act one of the punishments
which could be inflicted after a court
martial was that of “forfeiture of pay
and allowances for a period not exceeding
three months for an offence
committed on active service”. Elaborating
this contention, it was submitted
that like dismissal from service
as provided by Clause (e) of Section
71 of the Army Act, forfeiture of pay
and allowances was one of the punishments
which could be imposed under
Clause (j). If such a punishment
of forfeiture had been awarded, the
respondent would have continued to
remain in service but by ordering the
dismissal from service Under Section
71(e) he is also being deprived, under
Regulation 113(a), of the pension
which he had earned.
13. We find no merit in this
contention. Section 71 of the Army
Act provides for different types of
punishments which could be inflicted
in respect of an offence committed
by a person subject to the Army
Act and convicted by courts martial.
The punishments are of vary-
ing degrees, from death as provided
by Section 71(a) to stoppage of pay
and allowance as provided by Section
71(h). The punishment of forfeiture
of pay and allowances as provided by
Section 71(j) is of a lesser nature than
that of dismissal from service as provided
by Section 71(e). When punishment
Under Section 71(j) is imposed
no recourse can be had to Regulation
113(a), because the said regulation
applies only if an order of
dismissal is passed against the person
concerned. In other words Section
71(j) and Regulation 113(a) cannot
apply at the same time. On
the other hand when the punishment
of dismissal is inflicted Under Section
71(e) the provisions of Regulation
113(a) become attracted. The
result of punishment is that the benefit
of pension or gratuity which is
given under the regulation is taken
away. The order of dismissal under
the provisions of the Army Act in
the case of an employee like the respondent
would make him ineligible
for pension or gratuity. For a person
to be eligible to the grant of pension
or gratuity it is imperative that he
should not have been dismissed from
service. The dismissal under the provisions
of the Army Act is, therefore,
a disqualification for getting pension
or gratuity.
14. It was also submitted by Sh.
Malhotra that Regulation 113(a) was
discriminatory and, further, pension
which is earned becomes the property
of the person concerned and the
same cannot be taken away. But
no such contention was raised before
the High Court. In any case we

see no merit in the said contention.
Firstly, junior commissioned officers
and commissioned officers belong to
different classes. They are not similarly
situated. Moreover pension
is granted by the rules and regulations
which can and do provide
for the circumstances which would
make a person ineligible to receive
the same. Dismissal makes a junior
commissioned officer disentitled
to receive pension or gratuity. Regulation
113(a) is not in any way invalid.
15. For the aforesaid reasons we
come to the conclusion that unlike
Regulation 16(a) which applies to
the commissioned officers, in the case
of non-commissioned officers other
ranks and non-combatants (enrolled)
the dismissal of such a person under
the Army Act would ipso facto render
him ineligible for pension or gratuity.
The President, however, has
349
a right, in the case of a person dismissed
under the provisions of the
Army Act but in exceptional circumstances
and at his discretion to grant
service pension at a rate not exceeding
that for which the individual concerned
would have otherwise qualified
had he been discharged on the
same day.
16. In view of the aforesaid this
appeal is allowed, the judgment of
the High Court is set aside the result
of which would be that the writ petition
filed by the respondent would
stand dismissed. There will be no order
as to costs.
Civil Appeal Nos. 3613/94,
7467/94 and 4852 of 1995.
17. The question involved in
these appeals is identical to the one
in Civil Appeal No. 3609 of 1996.
For the reasons stated therein these
appeals are also allowed but with no
order as to costs.

350 Union Of India v. Subedar Ram Narain 1998

Chapter 29
Union of India v. Hav Clerk
SC Bagari 1999
Union of India & Ors v. No.
664950 Im Havildar/Cierk Sc Bagari
[1999] INSC 150 (15 April 1999)
Syed Shah Mohammed Quadri,
S.N. Phukan. S.N.Phukan, J.
This appeal is directed against
the full bench decision dated
24.12.1993 of the High Court of Himachal
Pradesh in Civil Writ petition
No, 747 of 1991.
For the purpose of appreciating
the points urged in this appeal we
may briefly state the facts. The respondent
appeared in person before
the High Court. In this Court though
notices were issued he did not appear
hence the matter was taken up
for hearing in his absence. The respondent
is a Havildar/Clerk in Indian
Army and he was interested in
prosecuting his studies further for obtaining
higher educational qualifications
such as post-graduation in law
but he felt handicapped because of
the provisions contained in Army Instruction
namely Army Order No. 11
of 1987 according to which only Reg-
ular Commissioned Officers can be
granted extra-ordinary leave subject
to certain conditions and not persons
like the petitioner, who is not
an officer. Therefore, he challenged
the said Army Order before the High
Court on the grounds of discrimination,
without any lawful basis etc.
Before the High Court the
present appellants took the stand
that study leave is granted to a
Regular Commissioned Officer to get
higher studies having a direct and
close connection with the spheres
of his duties. It was also stated
that the nature of duties of Junior
Commissioned Officers and non-
Commissioned Officers is different as
compared to Regular Conimissioned
Officers. The appellants took the
stand that the matter of grant or
refusal of study leave is purely discretionary.
The allegation of discrimination
was denied. It was also
sated that for Junior Commissioned
Officers and Noncommissioned Officers
there are institutions of the

352 Union of India v. Hav Clerk SC Bagari 1999
appellants where these Officers are
trained.
We find from the judgment that
& prayer made on behalf of the
present appellants for adjournment
was denied on the ground stated in
the judgment and the writ petition
was disposed of without hearing the
learned counsel for the appellants.
The High Court relying on the
decisions of this Court came to the
finding that the duties of clerical nature
are also important and therefore,
rejected the stand of the appellants
and held that higher educational
qualification is also necessary
for clerical staff.
According to the High Court
the present classification for granting
study leave was not founded on an intelligible
differentia and the same has
also no relation to the object sought
to be achieved and benefit of study
leave must be made available equally
to all classes of above officers of Indian
Army.
We have heard Mr. P.N. Mishra,
learned Senior counsel for the appellant.
Before entering into the reasoning
given by the High Court let us now
first consider the scope and ambit of
Articles 14 and 16 vis-a-vis different
classes of employees.
We may refer to:
In All India Station Masters’ and
Assistant Station Masters’ Association
Delhi and others Versus General
Manager, General Railway and others
AIR 1960 SC 384 = 1960 (Vol.II
SCR 311 while considering Article
16 of the Constitution the Constitu-
tion Bench of this Court inter alia
held that equality means - equality as
between members of the same class
of employees, and not equality between
members of separate, independent
classes.
Similar views were expressed by
the Constitution Bench of this Court
in Jagannath Prasad Sharma Versus
The State of Uttar Pradesh and
others AIR 19661 SC 1245 = 1962
(Vol.I) SCR 151 and in paragraph 15
it was inter alia held that equal protection
of the laws does not postulate
equal treatment of all persons
without distinction, it merely guarantees
the application of the same
laws alike and without discrimination
to all persons similarly situated.
In The State of Mysore and another
Versus P. Narasinga Rao AIR
1968 SC 3349 = 1966 (Vol. I) SCR
407 this Court considered the validity
of the Rules and it was inter
alia held that it is well settled that
though Article 14 forbids class legislation,
it does not forbid reasonable
classification for the purposes of legislation
and when any impugned rule
or statutory provision is assailed on
the ground that it contravenes Article
14, its validity can be sustained if
two tests are satisfied namely classification
on which it is founded must
be based on an intelligible differentia
which distinguishes persons or
things ground together from others
left out of the group, and the second
test is that the differentia in question
must have a reasonable relation to
the object sought to be achieved and
in other words there must be some
rational nexus between the basis of

classification and the object intended
to be achieved. It was also held that
Articles 14 and 16 form part of the
same constitutional code of guarantees
and supplement each other and
in other words Article 16 is only an
instance of the application of the general
rule of equality laid down in Article
14 and it should be construed as
such and, therefore, there is no denial
of equality of opportunity unless
the person who complains of discrimination
is equally situated with the
person or persons who are alleged to
have been favoured.
In the decision of this Court in
Indian Railway SAS (1998 (2) SCC
651), it was held that there can
be many criteria for classification of
posts such as administrative procedure
and others which have to be
taken into consideration by the authorities
concerned before deciding
on the classification.
Situated thus, broadly speaking,
concept of equality has an inherent
limitation arising from very nature
of the guarantee under the Constitution
and those who are similarly
circumstanced are entitled to equal
treatment. If there is a rational
classification consistent with the purpose
for which such classification was
made, equality is not violated. Article
16 of the Constitution does not
bar a reasonable classification of employees
or reasonable tests for selection.
Equality of opportunity of employment
means equality as between
members of the same class of employees
and not equality between members
of separate independent classes.
Mr. Mishra, learned counsel for
353
the appellant, has drawn our attention
to Clauses (XII), (XV) and
(XVIII) of Section 3 of The Army
Act, 1950. These clauses define
’Junior Commissioned Officer’, Non-
Commissioned Office’ and ’Officer’.
Clause (XVIII) of Section 3 of The
Army Act, 1950, while defining the
term ’Officer’, has clearly stated that
the Officer or Non-Commissioned Officer.
Relying on the above definitions,
Mr. Mishra has rightly pointed
out that legislature has classified the
personnel of the Armed Forces into
different categories and this classification
has not been challenged. We
are of the opinion that legislature
while creating different classes of officers
has classified them on the basis
of the requirement of armed forces
and thus this classification cannot be
said to be arbitrary. If pay, perks and
other privileges granted to these officers
are different, we are, therefore,
of the opinion that there is no question
of violation of provisions of articles
14 and 16 of the Constitution.
Now the question is whether the
impugned order, namely, Army Order
No. 11 of 1987 is discriminatory.
We quote below the relevant portion
of the order as quoted in the impugned
judgment of the High Court
:- Rule 1 and 2 are given below :-
“1. All regular Officers will be eligible
for the grant of extra leave known
as Study Leave for pursuing special
studies in India or Ex-India under
the conditions specified in para 2 below.
2. Conditions for the grant of
study leave are as under :
(a) Study leave will be admissible

354 Union of India v. Hav Clerk SC Bagari 1999
to Officers of all Arms and Services.
(b) Study Leave may be
granted to an officer enabling him
to undergo, in or Ex-India, a
non academic full time regular
course/programme/doctoral studies
leading to a recognised formal
diploma/degree in institutions recognised
by the Ministry of Education,
Science and Technology, certified by
Army Headquarters as enhancing the
usefulness as an officer.
Study Leave will not be granted
for correspondence courses, part time
courses and attending night classes.
(c) Study Leave shall not be
granted to an officer who is due to
retire from service within 5 years or
the date of return to duty from study
leave in respect of Cols and above,
and 7 years for Lt.Cols and below.
Residual service will be calculated in
the rank of the officer at the time of
sanction of study leave.
Study leave shall not be granted
to an officer who has rendered less
than 10 years service. However, the
minimum service can be lowered under
special service can be lowered under
special circumstances on merits
of the case by the sanctioning authority.
Residual service for battle
casualties and permanent low medical
category officers whose category
is either attributed or aggravated due
to uncongenial military service shall
be three years.
(d) The maximum period of
study leave will be up to 24 months.
It may be extended by a period of
two months annual leave (if not already
availed) of the year in which
study leave commences, plus an additional
two three years cycle spanning
the study leave period, if so required
for the specific study being undertaken.
Furlough rates of pay will
be admissible during furlough leave
when granted. The maximum period
of study leave, including annual leave
and furlough will be 28 months during
the entire service of the officer.
(e) Study leave Ex-India will ordinarily
be admissible for those nonacademic
courses which are not available
at any University or Institution
in India.
(f) Study leave will be admissible
not more than twice throughout
the service, subject to the over all 28
months limit prescribed in sub-para
(d) above.
(g) Study leave vacancies will be
filled up.”
“The application for approving
study leave has to be scrutinised by
the Screening Committee as per the
impugned order and priorities which
are to be followed by the Screening
Committee are quoted below :-
(a) Usefulness of the subject of
study to Arms/Service.
(b) Subjects contributing to an
officer’s employability in the service.
(c) Residual Service of the officer
from the point of view of utility of his
education to the service.
(d) Officers who have obtained
admission in recognised Universities
or Institutions will be preferred.
(e) Officers who have been away
from regimental duties for the last
two years after specialised courses or

post graduate courses will be given
lower priority.
(f) Officers with a good career
profile will be given preference.
(g) Battle casualties and disabled
officers who have limited scope for
furthering their career will be given
preference.” The High Court after
stating the law laid down by this
Court in various decisions including
Maneka Gandhi v. Union of India
and others (AIR 1978 SC 597), Ajay
Hasia v. Khallid Mujib Sehravardi
and others (AIR 1981 SC 487), R.D.
others (AIR 1979 SC 1628), Union of
India and another etc.
Army Order is not based on reasonable
classification and denial of
study leave to Junior Commissioned
Officers, Non-Commissioned Officers
and other ranks is not only irrational
and arbitrary and the classification is
not founded on an intelligible different
but the same also has no rational
relation with the object sought to be
achieved.
According to High Court, benefit
of study leave must be made applicable
equally to all.
The Army authorities have given
reasons for not making available the
benefit of study leave to the other
categories of officers except Commissioned
Officers. It has been categorically
stated that for officers of
other rank, there are other institutions
where courses are conducted
for these categories of personnel and
by sending them for these courses,
proper care is taken to ensure efficiency
in the armed forces. In
fact, the petitioner has admitted, as
355
stated in the writ petition, that two
weeks’ Computer Course in Jodhpur
University was organised by the
Army Authorities.
It has also been stated in the
counter that there cannot be any dispute
that character and duties of Junior
Commissioned Officers and Non-
Commissioned Officers are different
as compared to that of regular Commissioned
officers. If the competent
authority thought it fit and proper
that case for study leave for Commissioned
Officers should be considered
and this benefit should not be
given to other categories of officers,
as for this category Army Authorities
take adequate care for training them
in their own institutions or outside,
it cannot be said that impugned Order
No.11 of 1987 is arbitrary or irrational.
The object as stated in the
counter, of granting study leave is to
enhance the knowledge of Commissioned
Officers who have an important
role to play not only to maintain
discipline but also for performing
their duties as Commissioned Officers.
Therefore, it cannot be said that
Army Order No.11 of 1987 was not
founded on intelligible differentia and
it has no relation with the object
sought to be achieved and we hold
that the Order in question is not violative
of Article 14 of the Constitution.
For the reasons stated above, we
find merit in the appeal and accordingly
it is allowed by setting aside the
impugned order. Costs on the parties.

356 Union of India v. Hav Clerk SC Bagari 1999

Chapter 30
Union Of India v. Himmat
Singh Chahar 1999
Union Of India & Ors v. Himmat
Singh Chahar on 12 May,
1999 Author: Pattanaik Bench:
G.B.Pattanaik, K.T.Thomas
PETITIONER:
UNION OF INDIA & ORS.
v.
RESPONDENT:
HIMMAT SINGH CHAHAR
DATE OF JUDGMENT:
12/05/1999
BENCH:
G.B.Pattanaik, K.T.Thomas
JUDGMENT:
PATTANAIK,J.
The Union of India in this appeal
has challenged the judgment dated
12.11.1993, of the Division Bench
of Bombay High Court in Criminal
Writ Petition No. 1511 of 92.
The respondent Himmat Singh Chahar,
who was serving as a petty
High Court assailing the order passed
against him in the Court Martial
Proceedings and the High Court by
the impugned judgment quashed the
said order in the Court Martial Proceeding.
In the Court Martial the respondent
was found guilty of offence
under Section 354 and was sentenced
to imprisonment for 9 months, and
his services were terminated. Facts
culminating in the aforesaid order of
the High Court may be briefly stated
as under.
The respondent had joined the
Indian Navy on 24.6.78 and in
November 1990 he was a petty officer
(Telegraphist) in the submarine
and was thus away from his quarters
on the shore. On 28.11.1990 one
R.K. Sharma, another officer belonging
to Navy came with his wife Mrs.
Nirmala Sharma and having failed in
his attempt to get any vacant quarters
moved into Quarter No. 3B
and shared the same with the family
members of the respondent. On
3.12.90 said respondent took permission
from his authorities to leave submarine
and come to the shore for taking
his family members to the hos-

358 Union Of India v. Himmat Singh Chahar 1999
pital for medical check up and early
morning came to his quarters and left
for the hospital with his wife and two
sons. It is alleged that he returned
back home at about 9.00 a.m. while
Mrs. Nirmala Sharma was alone and
tried to outrage her modesty when
said Mrs. Nirmala Sharma opened
the door. Mrs. Sharma then somehow
extricated from the clutches of
the respondent and rushed to the
house of one Mrs. Mandal whom she
knew earlier and persuaded her to
intimate her husband who was also
away from the quarters so that he can
come back. Mrs. Sharma did not
intimate about the aforesaid criminal
assault on her by the respondent
to said Mrs. Mandal though
she insisted that she will not leave
her house until and unless her husband
comes. Her husband came on
the next day i.e. 4.12.90 to whom
Mrs. Sharma narrated all that happened
on the previous day whereafter
a complaint was made to the superior
authority against the respondent
alleging that modesty of Mrs.
Nirmala Sharma had been outraged
by the respondent. On the basis of
the complaint a Court Martial Proceeding
was initiated and in the said
proceeding the respondent was found
guilty of the charge under Section
354 of Indian Penal Code and Section
77(2) of the Navy Act, 1957 (hereinafter
referred to as ’an Act’) and
was directed to be kept under imprisonment
for the term of 24 calendar
months and be dismissed from
the Naval services. This order was of
16th May, 1991. Against the aforesaid
order the respondent moved the
Chief of the Naval Staff under Sec-
tion 163(1) of the Act and the Chief
of the Naval Staff though sustained
the conviction but reduced the punishment
of imprisonment for a term
of 9 calendar months. The punishment
of removal from service, however,
was maintained. The respondent
then moved the Central Government
for re-consideration of the
matter. But the Central Government
having confirmed the decision of the
Chief of Naval Staff the respondent
moved the High Court by way of a
Criminal Writ Petition. By the impugned
judgment the High Court of
Bombay considered the evidence of
Mrs. Nirmala Sharma and by way of
sifting her evidence came to hold :-
“After a meticulous examination
of the record and particularly the evidence
of Nirmala that the credibility
of the evidence is such that the
charge cannot be said to have been
brought home on the basis of this material.”
The High Court, therefore, ultimately
came to hold that the authorities
were wrong in having recorded
the guilt against the respondent on
the strength of material that was
adduced before the Court Martial
Proceedings. The Court ultimately
quashed the conviction and sentence
passed against the respondent in the
Court Martial Proceeding ,and hence
the present appeal.
Mr. Ashok Bhan, learned counsel
appearing for the Union of India
contended with vehmence that
the Court Martial Proceeding having
been continued in accordance
with the procedure laid down under
the Navy Act and the Compe-

tent Authority on the basis of the
evidence of Mrs. Nirmala Sharma
having found the respondent guilty of
charge under Section 354 and punishing
him thereunder, the High Court
mis-directed itself in exercise of its
jurisdiction under Article 226 of the
Constitution to re-appreciate the evidence
and in coming to the conclusion
that the Authorities committed
error in recording the finding of guilt
against the respondent on the basis
of the evidence of Mrs. Nirmala
Sharma. According to Mr. Bhan,
the learned counsel, though a judicial
review against the order of the
Competent Authority in the Court
Martial Proceeding is available but
the said judicial review could not
clothe the High Court with the jurisdiction
to re-appreciate the evidence
and substitute the findings of
the Court Martial Proceedings by
its own. According to Mr. Bhan
unless the Court Martial Proceeding
is found to have contravened any
mandatory provisions of the Act or
Rules or can be said to be in violation
of the principles of natural justice
or can be said to be without jurisdiction,
it would be, impermissible
for the High Court to interfere with
the conclusion on the ground of sufficiency
of evidence. In support of this
contention reliance has been placed
on the recent decision of this Court
in the case of Union of India & Ors.
v. Major A. Hussain - Judgment Today
1997 (9) S.C. 676. Mr. Uday
U. Lalit, learned counsel appearing
for the respondent on the other hand
contended that it is no doubt true
that the High Court would not be
justified in interfering with the find-
359
ings of the Authority in Court Martial
Proceeding by appreciation of evidence
ordinarily but if the evidence
is of such nature that no reasonable
man can come to the conclusion that
an offence under Section 354 of the
Indian Penal Code has been committed
then certainly the Court would
be justified in interfering with the
findings arrived at by the Authorities
in the Court Martial Proceedings and
judged from that stand point there
has been no infirmity with the impugned
judgment of the High Court.
In view of the rival submissions at
the Bar the short question that arises
for consideration is what would be
the extent of the jurisdiction in exercising
power under Article 226 of the
Constitution over the findings of the
Authority in Court Martial Proceeding?
The Defence personnel serving
in Army, Navy or Air force when
commit any offence are dealt with
by the special provisions contained in
the Army Act or the Navy Act or the
Air Force Act and not by the normal
Procedure Code. The said Navy
Act is a complete code by itself and
prescribes the procedure to be followed
in case it is decided that an
officer should be tried by Court Martial.
The Act also provides sufficient
safeguard by way of further appeal to
the Chief of the Staff and then ultimately
to the Union Government.
Since the entire procedure is provided
in the Act itself and the Act
also provides for a further consideration
by the Chief of the Naval
Staff and then by the Union Government
then ordinarily there should
be a finality to the findings arrived

360 Union Of India v. Himmat Singh Chahar 1999
at by the Competent Authority in
the Court Martial Proceeding. It is
of course true that notwithstanding
the finality attached to the orders
of the Competent Authority in the
Court Martial Proceeding the High
Court is entitled to exercise its power
of judicial review by invoking jurisdiction
under Article 226 but that
would be for a limited purpose of
finding out whether there has been
infraction of any mandatory provisions
of the Act prescribing the procedure
which has caused gross miscarriage
of justice or for finding out
that whether there has been violation
of the principles of natural justice
which vitiates the entire proceeding
or that the authority exercising
the jurisdiction had not been vested
with jurisdiction under the Act. The
said power of judicial review cannot
be a power of an Appellate Authority
permitting the High Court to reappreciate
the evidence and in coming
to a conclusion that the evidence
is insufficient for the conclusion arrived
at by the Competent Authorities
in Court Martial Proceedings.
At any rate it cannot be higher than
the jurisdiction of the High Court exercised
under Article 227 against an
order of an inferior Tribunal. This
being the parameter for exercise of
power of judicial review against the
findings of a Competent Authority
in a Court Martial Proceeding, and
applying the same to the impugned
judgment of the High Court we have
no hesitation to come to the conclusion
that the High Court overstepped
its jurisdiction in trying to
re-appreciate the evidence of Mrs.
Nirmala Sharma and in coming to
the conclusion that her evidence is
not credible enough to give a finding
of guilt of the respondent of a charge
under Section 354. We have also perused
the statement of Mrs. Nirmala
Sharma and the conclusion becomes
inescapable on the basis of the said
statement of Mrs. Nirmala Sharma
that the respondent has been rightly
found to have committed offence under
Section 354 by the Authorities in
the Court Martial Proceedings.
In the aforesaid premises, we set
aside the impugned judgment of the
Bombay High Court and dismiss the
Criminal Writ Petition filed by the
respondent and affirm the ultimate
order passed by the Competent Authority
in the Court Martial Proceeding
and this appeal is allowed.

Chapter 31
Union of India v. Sadha
Singh 1999
Union of India And Others v.
Sadha Singh on 25 October, 1999
Author: Shah Bench: K.T.Thomas,
M.B.Shah
PETITIONER:
UNION OF INDIA AND OTH-
ERS
v.
RESPONDENT:
SADHA SINGH
DATE OF JUDGMENT:
25/10/1999
BENCH:
K.T.Thomas, M.B.Shah
JUDGMENT:
Shah,J.
Leave Granted.
This appeal is filed against the
judgment and order dated 22.9.1998
passed by the High Court of Punjab
& Haryana at Chandigarh in Criminal
Writ Petition No.1752 of 1997
filed by the respondent.
Respondent was awarded life im-
prisonment and dismissed from service
by the General Court Martial
after being tried for the offence under
Section 302 I.P.C. and under Section
69 of the Army Act, 1950. He
preferred a writ petition in the High
Court for his immediate release from
the imprisonment on the ground that
he has undergone imprisonment exceeding
14 years. The High Court
arrived at the conclusion that in view
of the decision in Ajit Kumar etc.
v. Union of India, 1987 Supp. SCC
493 the respondent would be entitled
to remissions earned in the jail and
thereby respondent spent total period
of 15 years 8 months and 29 days
of imprisonment which obviously exceeded
14 years. The Court, therefore,
directed immediate release of
the respondent. That order is challenged
by filing this appeal.
It has been pointed out by the
learned counsel for the appellant that
respondent has not undergone actual
imprisonment for 14 years. Before
the High Court, it was admitted that

362 Union of India v. Sadha Singh 1999
respondent had spent 11 years and
1 month in actual custody, 1 year
7 months and 29 days in pre-trial
custody and has earned 4 years remission
in the jail. It is, therefore,
submitted that the order passed by
the High Court is, on the face of it,
against the provision of
Section 433A Cr.P.C. and its interpretation
given by this Court in
the case of Maru Ram. v. Union of
India & Anr., (1981) 1 S.C.R. 1196.
A Constitution Bench of this
Court in Maru Rams case (Supra)
held that Section 433A, Cr.P.C. overrides
all other laws which reduce or
remit the term of life sentence and
mandates that minimum of 14 years
of actual imprisonment should be
undergone by convict where a sentence
of life is imposed for an offence
for which death is one of the
punishments provided by law and
remissions vest no right to release
when sentence is for life imprisonment.
The Court also reiterated
that imprisonment for life lasts until
the last breath and whatever be
the length of remission earned, the
prisoner can claim release only if the
remaining sentence is remitted by the
Government. The Court further negatived
the contention that Section 5
of Criminal Procedure Code saves all
remissions, short-sentencing schemes
as special and local laws and, therefore,
they must prevail over the Code
including Section 433A. For that purpose,
Section 5 was referred to which
is as under:-
Nothing contained in this Code
shall, in the absence of a specific provision
to the contrary, affect any spe-
cial or local
law for the time being in force,
or any special jurisdiction or power
conferred, or any special form of procedure
prescribed, by any other law
for the time being in force.
The Court observed that broadly
speaking, the said Section consists
of three components (i) the Procedure
Code generally governs matters
covered by it; (ii) if a special or local
law exists covering a certain area,
such law will be saved and will prevail
over the provisions in the Code
(The short-sentencing measures and
remission schemes promulgated by
the various States are special and local
laws); and (iii) if there is a specific
provision to the contrary, then
that will over-ride the special or local
law. After considering the submissions
and decisions cited by the
parties, the Court held thus:-
The Criminal Procedure Code is
a general Code. The remission rules
are special laws but Section 433A is
a specific, explicit, definite provisions
dealing with a particular situation
or narrow class of cases, as distinguished
from the general run of cases
covered by Section 432 Cr.P.C. Section
433A picks out of a mass of imprisonment
cases a specific class of
life imprisonment cases and subjects
it explicity to a particularised treatment.
It follows that Section 433A
applies in preference to any special
or local law because Section 5 expressly
declares that specific provisions,
if any, to the contrary will prevail
over any special or local law.
We have said enough to make the
point that specific is specific enough

and even though special to specific is
near allied and thin partition do their
bounds divide the two are different,
Section 433A escapes the exclusion of
Section 5.
In the present case, respondent
was convicted under Section 69 of the
Army Act, 1950 for the offence of
murder. It is true that Army act is a
special act inter alia providing for investigation,
trial and punishment for
the offences mentioned therein by a
special procedure. Section 177 empowers
the Central Government to
make rules in respect of prisons and
prisoners. Sections 179 to 190 provide
for pardon, remissions and suspension
of the sentence. There is no
specific provision similar to Section
433A or contrary to it. Hence, Section
433A would operate in the field
and a prisoner, who is undergoing
sentence of imprisonment for life and
is convicted for an offence for which
death is one of the punishments provided
by law or where a sentence
of death imposed on a person has
been commuted under Section 433(1)
Cr.P.C. to imprisonment for life, has
to serve at least 14 years of imprisonment
excluding remissions earned
in the jail.
However, learned counsel for the
respondent submitted that in the
case of Ajit Kumar (Supra), this
Court dealt with a similar question
and held that prisoners, who have
been convicted and sentenced by the
General Court Martial under the
Army Act and who have been lodged
in civil prison, were not entitled to
the benefit of set-off provided under
Section 428 Cr.P.C. In
363
that case, this Court held that in
view of the provisions in the Army
Act, which is a special enactment
containing elaborate procedure for
trial of the persons covered therein,
prisoners, who have been convicted
and sentenced by the General Court
Martial under the Army Act are not
entitled to get benefit of set-off under
Section 428 of the Code. In the said
case, the Court considered Section
167 of the Army Act, which provides
that the term of sentence imposed by
a Court Martial shall be reckoned to
commence on the day on which the
original proceedings were signed by
the Presiding Officer or by the Officer
holding the Court Martial as the
case may be. In view of this specific
provision, the Court held that benefit
of Section 428 cannot be claimed by
the person convicted under the provisions
of Army Act. In our view,
the said decision will have no bearing
on the applicability of Section 433A
Cr.P.C., as in the Army Act there is
no specific or contrary provision covering
the same area. Section 433A,
Cr.P.C. is a special provision applicable
to all the convicts, who are undergoing
imprisonment for life as provided
thereunder. For such convicts,
it puts an embargo for reduction of
sentence below 14 years of actual imprisonment.
We would also mention
that after the decision in Ajit Kumar
(Supra), Army Act is amended (by
Act
No.37 of 1992) and Section 169A
is added, which is similar to Section
428 of Criminal Procedure Code.
In view of the above, as the respondent
has not completed 14 years

364 Union of India v. Sadha Singh 1999
of actual imprisonment, the order
passed by the High Court is quashed
and set- aside.
The appeal is allowed accordingly.

Chapter 32
Union Of India v. Charanjit
S. Gill 2000
Union Of India & Anr v. Charanjit
S. Gill & Ors on 24 April, 2000
Author: Sethi Bench: G Pattanaik,
R Sethi, S V Patil.
CASE NO.:
Special Leave Petition (civil)
7347 of 1999
PETITIONER:
UNION OF INDIA & ANR.
v.
RESPONDENT:
CHARANJIT S. GILL & ORS.
DATE OF JUDGMENT:
24/04/2000
BENCH:
G.B. Pattanaik, R.P. Sethi &
Shivaraj V. Patil.
JUDGMENT:
SETHI, J.
Leave granted. Finding that the
Judge Advocate was lower in rank
to the accused facing trial before a
General Court Martial (hereinafter
referred to as “GCM”), the Division
Bench of the High Court set aside the
order of the Trial Court and the entire
Court Martial proceedings conducted
against the respondent No.1.
The Bench, however, observed that
the quashing of the proceedings of
the GCM will not prevent the authorities
concerned to initiate fresh
court martial proceedings if they are
so advised in accordance with law
and also in the light of the judgment
delivered. Feeling aggrieved by the
aforesaid judgment the present appeal
has been filed with a prayer for
setting aside the impugned judgment
and upholding the order of the GCM
as well as the learned Single Judge.
The relevant and almost admitted
facts for determining the controversy
in this appeal are that the
first respondent joined the Indian
Army as a Commissioned Officer in
1971 and was promoted to the rank
of Major in 1984. He was posted
at Fort William, Calcutta in April,
1990. While attached with 235 IWT
company, Engineers, the respondent

366 Union Of India v. Charanjit S. Gill 2000
No.1 was alleged to have absented
himself without leave on four occasions
which was an offence under Section
39(1) of the Army Act. He was
also charged under Section 63 of the
Army Act for violation of good order
and military discipline. A GCM
was convened by the General Officer
Commanding (GOC), Bengal Area
by his order dated 23rd December,
1991. The court martial comprised
of Col.Rabinder Bahadur Singh as
Presiding Officer and Col. Kunjachen
Puthenveetil Sebastian, Col.
Prakash Nambiar, Col. Mahitosh
Deb and Major Kadam Netaji Kesharuo
as Members. Capt. Vashishta
Arun Kumar, Dy. Assistant Judge
Advocate General was appointed as
Judge Advocate in the court martial
proceedings. The respondent No.1
was found guilty of four out of five
charges by the GCM and was sentenced
to forfeit six months service
for the purposes of promotion. The
order of conviction and sentence was,
however, made subject to the confirmation
by the Confirming Authority
to whom the proceedings were
transmitted by the GCM in terms of
Section 153 of the Army Act. The
Confirming Authority felt that the
sentence awarded to the respondent
No.1 by the GCM was grossly inadequate
and inappropriate which required
review. The order of the
Confirming Authority dated 2.5.1992
was conveyed to the GCM which on
19.5.1992 upon, re-consideration revoked
the earlier sentence and passed
a fresh order of sentence of dismissing
the respondent No.1 from service.
This order was also made subject to
confirmation by the Confirming Au-
thority.
Aggrieved by the order of conviction
and sentence passed by the
GCM, the respondent No.1 filed writ
petition being CO No.7102(W) of
1992 in the High Court at Calcutta
praying therein for quashing orders
dated 23.12.1991, 10.2.1992, 2.5.1992
and 19.5.1992. At the time of admission
of the writ petition a learned
Single Judge of the High Court
passed an interim order on 29th May,
1992 directing the appellants not to
confirm the impugned order of dismissal
and not to take any steps
against respondent No.1, without the
leave of the Court. The interim order
was, however, vacated by the learned
Single Judge on 16.12.1996 allowing
the Confirming Authority to complete
the process of confirmation and
passing appropriate orders. Consequently,
the GCM proceedings were
confirmed on 17.12.1996 and the respondent
No.1 was dismissed from
service on 18.12.1996. The writ petition
filed by the first respondent
was dismissed by the learned Single
Judge on 3rd July, 1997. Feeling
aggrieved by the judgment of
the learned Single Judge the respondent
No.1 preferred appeal being
MAT No.2181/97 before the Division
Bench which was allowed vide the order
impugned in this appeal.
In his writ petition the respondent
No.1 is stated to have alleged
that in the year 1987-88 when he
was posted as Garrison Engineer
in Jammu & Kashmir State under
the Northern Command, he had
pointed out to the higher authorities
some embezzlement instances in-

volving Rs.22.49 lacs in which Major
S.K. Datta and Col. S.C. Gulati
were allegedly involved. He alleged
that because of his reporting
the case of embezzlement he incurred
animosity of the persons in the higher
echelons of the Army. He submitted
that in the year 1990 he had made
a direct complaint to the Chief of
the Army Staff, Army Headquarters,
New Delhi with regard to the aforesaid
embezzlement which, according
to him, generated further feelings of
animosity and ill-will against him.
He was attached to 235 IWT Company
on 14th September, 1990 and
allegedly not given any duty after attachment
to the said unit. On 22nd
October, 1990, the Commanding Officer
of 235 IWT Company called
upon the respondent No.1 to produce
the evidence by 25th October, 1990
in connection with his allegations of
embezzlement. At that time the
Company to which he was attached
was stationed at Alambazar, near
Dakshineswar, just outside Calcutta
and his family was residing at Fort
Williams, Calcutta. He was served
with a chargesheet on 18th November,
1991 signed by the Commanding
Officer, 121, Infantry Battalian
(TA) which was endorsed by the
General Officer Commanding, Bengal
Area. Though the respondent
No.1 was posted to 235 IWT Company
vide order dated 12th September,
1990 he was attached on 23rd
March, 1991 under the provisions of
Army Instructions 30 of 1986 to 121
Infantry Battalion (TA) till finalisation
of the disciplinary proceedings
which had been initiated against
him. The charge-sheet dated 18th
367
November, 1991 disclosed the commission
of offences punishable contrary
to Sections 39(a) and 63 of the
Army Act. The respondent No.1 in
his petition had prayed for quashing
and setting aside of orders dated 23rd
December, 1991 convening the GCM,
order dated 10th February, 1992 finding
the respondent No.1 guilty and
imposition of the sentence by GCM,
order dated 2nd May, 1992 exercising
the revisional jurisdiction by the
GOC, BA and order dated 19th May,
1992 revising the initial sentence and
dismissing the respondent No.1 from
service. The grounds of challenging
the aforesaid orders were as under:
“1. The composition of the
GCM, as was determined by the Convening
Order dated 23rd December,
1991 was bad in law because Captain
Arun Kumar Vashistha was not qualified
to be appointed as a Judge Advocate
in the said GCM. This ground
of challenge is based on two counts,
firstly because no officer of a rank
inferior to the accused can be appointed
as a Judge - Advocate in
GCM and secondly the participation
of the Judge Advocate in the proceedings
held on 18th and 19th May,
1982 upon revision was bad since
he was not entitled to take part in
the proceedings after 10th February,
1992 when the GCM proceedings had
originally stood concluded.
2. GOC, BA had no jurisdiction
to either convene the GCM vide his
order dated 23rd December, 1991 or
to pass the order dated 2nd May,
1992, as he was neither a properly
appointed nor a properly designated
Convening Authority for the pur-

368 Union Of India v. Charanjit S. Gill 2000
poses of convening a GCM nor could
he be deemed considered to be a
legally and validly appointed conforming
authority for the purposes
of exercising the power under Section
160 of the Army Act. In either event,
his act of convening the GCM was illegal
and therefore the proceedings of
the GCM on that ground were void
ab initio. Similarly since he did not
have any power to act a confirming
authority, he had no jurisdiction to
exercise any power under section 160
of the Army Act and order revision
of the sentence. Reliance was placed
upon Regulation 472 of the Regulations
for the Army in support of this
contention.
3. The order dated 2nd May,
1992 was bad in law because while
exercising revisional jurisdiction under
Section 160 of the Army Act,
the GOC, BA not only expressed his
views and opinion about the merits
of the case but the order amounted
to almost a direction upon the GCM,
and the GCM comprising, as it were,
of the officers subordinate to GOC,
BA had no option but to revise the
sentence, as was desired by GOC,
BA.
4. GOC, BA was also not an
appropriate Convening Authority for
the purposes of convening a GCM as
the petitioner was not serving under
him. Since the petitioner was
serving in the Head Quarter, Eastern
Command, it was only GOC-in-
C who could be considered to be the
appropriate, convening authority in
respect of the petitioner for convening
a GCM. Merely because the petitioner
was attached to a unit which
was under the control of GOC, BA,
that by itself did not make GOC,
BA the duly appointed convening authority
for convening a GCM. Reliance
was placed upon the contents
of warrant A-1 appointing GOC, BA
and GOC-in-C as respective convening
authorities.
5. The sentence of dismissal for a
minor offence like being absent without
leave, and for committing an offence
under section 63 of the Army
Act was highly and grossly disproportionate
to the gravity of the offence.
Even if the proceedings of the
GCM and the finding of “guilty” was
to be upheld by this court, the initial
sentence of forfeiture of six months of
service for the purpose of promotion
was a reasonable punishment in the
facts and circumstances of this case.
6. Distinction has to be drawn
between “absent from a place” and
“absence from duty” because in the
facts and circumstances in which the
petitioner was placed, the petitioner
was not allocated or entrusted with
any duties and therefore if he absented
from a place, without there
being any duty that he was to perform,
Section 39 of the Army Act
could not be attracted in his case and
therefore he could not be held guilty
of the charges levelled against him.
7. The appropriate Confirming
Authority have been prescribed in
Regulation 472 and even though this
Regulation is not statutory in character
and has not been issued under
Section 192 of the Army Act, yet it
amounting to an executive instruction
has the force of law and thus supersedes
the warrants issued by the

Central Government under Section
164 of the Army Act. The contention
is that the authorities prescribed in
Regulation 472 alone are competent
to act as confirming or convening authorities
and that the authorities appointed
under the warrants by the
Central Government in exercise of
the powers vesting in its under Section
154 have no jurisdiction to act
as such.
8. The order dated 17th December,
1996 is bad because it was
passed without affording the petitioner
an opportunity of submitting
a pre-confirmation representation, as
was directed by this court on 16th
December, 1996.”
None of the grounds found favour
with the learned Single Judge who
after hearing dismissed the writ petition.
The respondent No.1 was, however,
given two weeks time to vacate
the accommodation occupied by him
upon his giving an undertaking. The
appeal filed against the judgment of
the learned Single Judge was allowed
holding: “However, without deciding
any other point we are of the view
that a Judge Advocate being lower
in rank to an accused officer should
not be able to take part in the general
court martial proceedings for the
above reason.”
Mr.Rawal, the learned Additional
Solicitor General appearing for
the appellants has vehemently argued
that as the Judge Advocate
is only a Legal Advisor and not a
member of the Court Martial, his
rank is not material for being appointed
as such to assist the GCM.
It is further contended that under
369
the Army Act, Rules and Regulations
made thereunder, there was no
obligation for the appellants to appoint
a Judge Advocate who should
have been senior in rank to the accused
on the analogy that the members
of the court martial who tried
the accused are required to be of the
same or higher rank to the accused
officers. According to him there are
separate provisions under the Act,
Rules and Regulations for members
and Judge Advocate at GCM laying
down their eligibility, disqualifications,
duties, etc. Relying upon Note
2 attached to Rule 102, the learned
counsel has submitted that the disqualification
for being a Judge Advocate
in a court martial is referable
to Rule 39(2) alone which cannot be
stretched further to Rule 40(2) of
the Rules. It is contended that the
Division Bench of the High Court
has not properly interpreted the provisions
of Sections 113 and 129 of
the Act and Rules 39, 40 and 102
of the Army Rules. Appearing for
the respondent No.1 Mr.Ranjit Kumar,
Advocate has submitted that
the combined reading of Rules 39,
40 and 102 makes it clear that if
the Judge Advocate is lower in rank
than the accused facing the trial in
GCM, the proceedings are liable to
be quashed. According to him the
provisions of Rule 39 read with Rules
40 and 102 of the Army Rules leave
no doubt that the Judge Advocate
appointed for the trial of an officer
by the GCM should be a rank not
lower than that of the Officer facing
the trial. He has submitted that
though, technically the Judge Advocate
is an Advisor to the prosecution,

370 Union Of India v. Charanjit S. Gill 2000
yet in practice he wields a great influence
upon the verdict of the court
in view of the powers conferred upon
him under the Act and the Rules. He
has specifically referred to the provisions
of Rules 60, 61, 62 and 105
of the Rules to emphasise the importance
of the role played by the
Judge Advocate during the trial in a
court martial. In order to appreciate
the rival contentions of the learned
counsel for the parties it is necessary
to take note of some of the relevant
provisions of the Act, the Rules
and the Regulations made thereunder.
The Act was enacted on 20th
May, 1950 and enforced w.e.f. 22nd
July, 1950 to consolidate and amend
the law relating to the Government
of the regular Army keeping in view
the report of the Select Committee
appointed for the purpose. Prior to
the enactment of Army Act, 1950,
there existed the Indian Army Act,
1911 made and applied by the British
Rulers. Feeling that some of the provisions
of the 1911 Act had become
out of date and insufficient for modern
requirements after independence,
a need for revision was felt to have
become imperative for obvious reasons.
However, the scheme of the Act
by and large remained the same as
was incorporated in Army Act, 1911.
The Act has been found to be suffering
from various draw-backs as were
pointed out by this Court in Lt.Col.
Prithi Pal Singh Bedi v. Union of
India & Ors. [1982 (3) SCC 140].
This Court hoped and stressed that
changes all over the English speaking
democracies would awaken the Parliament
to the changed system as regards
the Armed Forces. Merely by
joining the Armed Forces a person
does not cease to be a citizen so as to
be wholly deprived of his rights under
the Constitution. While dismissing
the writ petitions in that case, this
Court noticed with anguish and concern
and observed: “Reluctance of
the apex court more concerned with
civil law to interfere with the internal
affairs of the Army is likely to create
a distorted picture in the minds
of the military personnel that persons
subject to Army Act are not
citizens of India. It is one of the
cardinal features of our Constitution
that a person by enlisting in or entering
Armed Forces does not cease to
be a citizen so as to wholly deprive
him of his rights under the Constitution.
More so when this Court held
in Sunil Batra v. Delhi Administration
[1979 (1) SCR 394] that even
prisoners deprived of personal liberty
are not wholly denuded of their fundamental
rights. In the larger interest
of national security and military
discipline Parliament in its wisdom
may restrict or abrogate such rights
in their application to the Armed
Forces but this process should not be
carried so far as to create a class of
citizens not entitled to the benefits of
the liberal spirit of the Constitution.
Persons subject to Army Act are citizens
of this ancient land having a
feeling of belonging to the civilised
community governed by the libertyoriented
constitution. Personal liberty
makes for the worth of human
being and is a cherished and prized
right. Deprivation thereof must be
preceded by a judge of unquestioned
integrity and wholly unbiased. A
marked difference in the procedure

for trial of an offence by the criminal
court and the court martial is apt
to generate dissatisfaction arising out
of this differential treatment. Even
though it is pointed out that the procedure
of trial by court martial is almost
analogous to the procedure of
trial in the ordinary criminal courts,
we must recall that Justice William
O’Douglas observed: “[T]that civil
trial is held in an atmosphere conducive
to the protection of individual
rights while a military trial is marked
by the age-old manifest destiny of
retributive justice. Very expression
’court martial’ generally strikes terror
in the heart of the person to be
tried by it. And somehow or the
other the trial is looked upon with
disfavour.” In Reid v. Covert 1 L
Ed 2d 1148: 354 US 1 (1957)] Justice
Black observed at page 1174 as
under:
Court martial are typically ad
hoc bodies appointed by a military
officer from among his subordinates.
They have always been subject to
varying degrees of ’command influence’.
In essence, these tribunals
are simply executive tribunals whose
personnel are in the executive chain
of command. Frequently, the members
of the court marital must look to
the appointing officer for promotions,
advantageous assignments and efficiency
ratings - in short, for their future
progress in the service. Conceding
to military personnel that high
degree of honesty and sense of justice
which nearly all of them undoubtedly
have, the members of a court martial,
in the nature of things, do not
and cannot have the independence of
371
jurors drawn from the general public
or of civilian judges.
Absence of even one appeal with
power to review evidence, legal formulation,
conclusion and adequacy
of otherwise of punishment is a glaring
lacuna in a country where a counterpart
civilian convict can prefer
appeal after appeal to hierarchy of
courts. Submission that full review
of finding and/or sentence in confirmation
proceedings under Section
153 is provided for is poor solace.
A hierarchy of courts with appellate
powers each having its own power
of judicial review has of course been
found to be counter productive but
the converse is equally distressing in
that there is not even a single judicial
review. With the expanding
horizons of fair play in action even in
administrative decision, the universal
declaration of human rights and
retributive justice being relegated to
the uncivilised days, a time has come
when a step is required to be taken
for at least one review and it must
truly be a judicial review as and
by way of appeal to a body composed
of non-military personnel or
civil personnel. Army is always on
alert for repelling external aggression
and suppressing internal disorder
so that the peace-loving citizens
enjoy a social order based on rule of
law; the same cannot be denied to
the protectors of this order. And
it must be realised that an appeal
from Ceaser to Ceaser’s wife - confirmation
proceedings under Section
153 - has been condemned as injudicious
and merely a lip sympathy to
form. The core question is whether

372 Union Of India v. Charanjit S. Gill 2000
at least there should be one appeal
to a body composed of non-military
personnel and who would enjoy the
right of judicial review both on law
and facts as also determine the adequacy
of punishment being commensurate
with the gravity of the offence
charged. Judicial approach by
people well-versed in objective analysis
of evidence trained by experience
to look at facts and law objectively,
fair play and justice cannot always
be sacrificed at the altar of military
discipline. Unjust decision would be
subversive of discipline. There must
be a judicious admixture of both. An
nothing revolutionary is being suggested.
Our Army Act was more or
less modelled on the U.K. Act. Three
decades of its working with winds of
change blowing over the world necessitates
a second look so as to bring
in it conformity with liberty-oriented
constitution and rule of law which
is the uniting and integrating force
in our political society. Even U.K.
has taken a step of far-reaching importance
for rehabilitating the confidence
of the Royal Forces in respect
of judicial review of decisions of court
martial. U.K. had enacted a Court
Martial (Appeal) Act of 1951 and
it has been extensively amended in
Court Martial (appeals) Act, 1968.
Merely providing an appeal by itself
may not be very reassuring but the
personnel of the appellate court must
inspire confidence. The court martial
appellate court consists of the
ex officio and ordinary judges of the
Court of Appeal, such of the judges
of the Queen’s Bench Division as the
Lord Chief Justice may nominate after
consultation with the Master of
the Rolls, such of the Lords, Commissioners
of Justiciary in Scotland
as the Lord Chief Justice generally
may nominate, such Judges of the
Supreme Court of the Northern Ireland
as the Lord Chief Justice of
Northern Ireland may nominate and
such of the persons of legal experience
as the Lord Chancellor may
appoint. The court martial appellate
court has power to determine
any question necessary to be determined
in order to do justice in the
case before the court and may authorise
a new trial where the conviction
is quashed in the light of fresh evidence.
The court has also power inter
alia, to order production of documents
or exhibits connected with the
proceedings, order the attendance of
witnesses, receive evidence, obtain
reports and the like from the members
of the court martial or the person
who acted as Judge Advocate,
order a reference of any question to
a Special Commissioner for Enquiry
and appoint a person with special
expert knowledge to act as an assessor
(Halsbury’s Laws of England,
4th Edn., paras 954-955 pp. 458-
59). Frankly the appellate court has
power to full judicial review unhampered
by any procedural claptrap.
Turning towards the U.S.A., a
refernece to Uniform Code of Military
Justice Act, 1950, would be instructive.
A provision has been made
for setting up of a court of military
appeals. The Act contained many
procedural reforms and due process
safeguards not then guaranteed in
civil courts. To cite one example,
the right to legally qualified coun-

sel was made mandatory in general
court martial cases 13 years before
the decision of the Supreme Court
in Gideon v. Waiwright (372 US
335 1963)). Between 1950 and 1968
when the Administration of Justice
Act, 1968 was introduced, many advances
were made in the administration
of justice by civil courts but they
were not reflected in military court
proceedings. To correct these deficiencies
the Congress enacted Military
Justice Act, 1968, the salient
features of which are: (1) a right
to legally qualified counsel guaranteed
to an accused before any special
court martial; (2) a military
judge can in certain circumstances
conduct the trial alone and the accused
in such a situation is given
the option after learning the identity
of the military judge of requesting
for the trial by the judge alone.
A ban has been imposed on command
interference with military justice,
etc. Ours is still an antiquated
system. The wind of change blowing
over the country has not permeated
the close and sacrosanct precincts
of the Army. if in civil courts the
universally accepted dictum is that
justice must not only be done but
it must seem to be done, the same
holds good with all the greater vigour
in case of court martial where the
judge and the accused don the same
dress, have the same mental discipline,
have a strong hierarchical subjugation
and a feeling of bias in such
circumstances is irremovable. We,
therefore, hope and believe that the
changes all over the English-speaking
democracies will awaken our Parliament
to the changed value system.
373
In this behalf, we would like to draw
pointed attention of the Government
of the glaring anomaly that courts
martial do not even write a brief reasoned
order in support of their conclusion,
even in cases in which they
impose the death sentence. This
must be remedied in order to ensure
that a disciplined and dedicated Indian
Army may not nurse a grievance
that the substance of justice and fair
play is denied to it.”
Despite lapse of about two
decades neither the Parliament nor
the Central Government appears
to have realised their constitutional
obligations, as were expected by this
Court, except amending Rule 62
providing that after recording the
finding in each charge the Court
shall give brief reasons in support
thereof. The Judge Advocate has
been obliged to record or caused to
be recorded brief reasons in the proceedings.
Even today the law relating
to Armed Forces remains static
which requires to be changed keeping
in view the observations made by this
Court in Prithi Pal Singh Bedi’s case
(supra), the constitutional mandate
and the changes effected by other
democratic countries. The time has
come to allay the apprehension of all
concerned that the system of trial
by court martial was not the arch
type of summary and arbitrary proceedings.
In the absence of effective
steps taken by the Parliament
and the Central Government, it is
the constitutional obligation of the
courts in the country to protect and
safeguard the constitutional rights of
all citizens including the persons en-

374 Union Of India v. Charanjit S. Gill 2000
rolled in the Armed Forces to the extent
permissible under law by not forgetting
the paramount need of maintaining
the discipline in the Armed
Forces of the country. The court
martials under the Act are not courts
in the strict sense of the term as understood
in relation to implementation
of the civil laws. The proceedings
before court martial are more
administrative in nature and of the
executive type. Such courts under
the Act, deal with two types of offences,
namely, (1) such acts and
omissions which are peculiar to the
Armed Forces regarding which no
punishment is provided under the ordinary
law of the land and (2) a class
of offences punishable under the Indian
Penal Code or any other legislation
passed by the Parliament.
Chapter VI of the Act deals with the
offences. Sections 34 to 68 relate to
the offences of the first description
noted hereinabove and Section 69
with civil offences which means the
offence triable by an ordinary criminal
court. Chapter VII provides for
punishments which can be inflicted
in respect of offences committed by
persons subject to the Act and convicted
by court martial, according to
the scale provided therein. Chapter
X deals with court martials. Section
108 provides that for the purposes of
the Act there shall be four kinds of
court martials, that is to say,
(a) general court martial;
(b) district court martial;
(c) summary general court martial;
and
(d) summary court martial.
Court martials can be convened
by persons and authorities as specified
in Sections 109, 110, 112 and
118 of the Act. The procedure of
court martials is detailed in Chapter
XI of the Act. Section 129 mandates
that every general court martial shall
be attended by a judge advocate,
who shall be either an officer belonging
to the department of Judge
Advocate-General or if no such officer
is available, an officer approved
by the Judge Advocate General or
any of his deputies. The accused has
a right to challenge the name of any
officer composing the court martial
which obviously means that no such
objection can be raised regarding the
appointment of the Judge Advocate.
No findings or sentence of a general,
district or summary general court
martial shall be valid except so far as
it may be confirmed as provided under
the Act. Under Section 158, the
confirming authority has the power
to mitigate or remit the punishment
awarded by the court martial or commute
that punishment for any punishment
or punishments lower in the
scales laid down in Section 71. Under
Section 160 the confirming authority
has the power to direct a revision
of the finding of a court martial
and on such revision, the court, if so
directed by the confirming authority,
may take additional evidence. Any
person, subject to the Act, who considers
himself aggrieved by any order
passed by the court martial can
present a petition to the officer or
authority empowered to confirm any
finding or sentence of such court martial
and in that case the confirming
authority may take such steps as may

e considered necessary to satisfy itself
as to the correctness, legality or
propriety of the order passed or as
to the regularity of any proceedings
to which the order relates. There is
no provision for preferring an appeal
against the findings of the court martial.
In exercise of the powers conferred
by Section 191 of the Act the
Central Government have framed the
Rules called the Army Rules, 1954.
Chapter V of the Rules deals with
the investigation of charges and trial
by court martial. Court Martials
are convened in terms of Rule 37.
Rule 39 prescribes ineligibility and
disqualification of officers for court
martial. It reads:
“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
squardon, 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
375
(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.
Rule 40 provides:
“40. Composition of General
Court Martial (1) A general court
martial shall be composed, as far as
seems to the convening officer practicable,
of officers of different corps or
departments, and in no case exclusive
of officers of the corps or department
to which the accused belongs.
(2) The members of a court martial
for the trial of an officer shall
be of a rank not lower than that
of the officer unless, in the opinion
of the convening officer, officers of
such rank are not (having due regard
to the exigencies of the public service)
available. Such opinion shall be
recorded in the convening order.
(3) In no case shall an officer below
the rank of captain be a member
of court martial for the trial of a field
officer.”
Rule 44 provides that the order
convening the court and the names
of the Presiding Officer and the members
of the court shall be read over to
the accused and he shall be asked as
required by Section 130 whether he
has any objection to being tried by
any officer sitting on the court. Such
objection when raised is required to

376 Union Of India v. Charanjit S. Gill 2000
be disposed of in accordance with the
provisions of Section
130. The accused before pleading
to a charge, may offer a special plea
to the jurisdiction of the court and if
he does so, the court shall decide it.
If the objection regarding such plea
is overruled, the court shall proceed
with the trial and if such plea is allowed,
the court is required to record
its reason and report to the convening
authority and adjourn the proceedings
(Rule 51). Rules 52, 53, 54,
55 and 56 deal with the recording of
the plea of “guilty” or “not guilty”.
In case the accused pleds not guilty,
the trial is to commence and after the
close of the case of the prosecution,
the Presiding Officer or the Judge
Advocate is required to explain to
the accused that he may make an
unsworn statement orally or in writing
giving his account of the subject
of charges against him or if he wishes
he may give evidence as witness on
oath or affirmation, in disproof of the
charges against him or any person
to be charged with him at the same
trial. After the examination of the
witnesses, the prosecutor may make
a closing address and the accused or
his counsel or the defending officer,
as the case may be, shall be entitled
to reply. The Judge Advocate is authorised
to sum up in open court the
evidence and advise the court upon
the law relating to the case. Rule
61 provides that the court shall deliberate
on its finding in closed court
in the presence of the Judge Advocate
and Rule 62 provides the form,
record and announcement of finding.
Referring to various provisions of
the Act and the Rules as noticed earlier,
the learned counsel appearing
for respondent No.1 has argued that
in effect and practice the Judge Advocate
is the ’court’ and the ’court
martial’ is the jury for all practical
purposes so far as the trial of the accused
is concerned. The argument
may be exaggerated version of the reality
but is not totally without substance
inasmuch as the powers exercised
by the Judge Advocate indicate
that though not forming part
of the court martial, he is an integral
part thereof particularly in court
martials which cannot be conducted
in his absence. It cannot be denied
that the justice dispensation system
in the Army is based upon the system
prevalent in the Great Britain.
The position of the Judge Advocate
is by no means less than that of a
Judge Advocate associated with a
court martial in that country. The
importance of the role of the Judge
Advocate in U.K. was noticed and
considered in R v. Linzee [1956 (3)
All E.R.].
It is true that Judge Advocate
theoritically performs no function as
a judge but it is equally true that he
is an effective officer of the court conducting
the case against the accused
under the Act. It is his duty to inform
the court of any defect or irregularity
in the charge and , in the constitution
of the court or in the proceedings.
The quality of the advise
tendered by the Judge Advocate is
very crucial in a trial conducted under
the Act. With the role assigned
to him a Judge Advocate is in a position
to sway the minds of the mem-

ers of the court martial as his advise
or verdict cannot be taken lightly by
the person composing the court who
are admittedly not law knowing persons.
It is to be remembered that the
court martials are not part of the judicial
system in the country and are
not permanent courts.
The importance of role played by
a Judge Advocate was noticed by this
Court in S.N. Mukherjee v. Union
of India [1990 (4) SCC 594] wherein
it was held: “From the provisions
referred to above it is evident that
the judge advocate plays an important
role during the course of trial
at a general court martial and he
is enjoined to maintain an impartial
position. The court martial records
its findings after the judge advocate
has summed up the evidence and has
given his opinion upon the legal bearing
of the case. The members of the
court have to express their opinion as
to the finding by word of mouth on
each charge separately and the finding
on each charge is to be recorded
simply as a finding of “guilty” or of
“not guilty”. It is also required that
the sentence should be announced
forthwith in open court. Moreover
Rule 66(1) requires reasons to be
recorded for its recommendation in
cases where the court makes a recommendation
to mercy. There is no
such requirement in other provisions
relating to recording of findings and
sentence. Rule 66(1) proceeds on the
basis that there is no such requirement
because if such a requirement
was there it would not have been necessary
to make a specific provision for
recording of reasons for the recom-
377
mendation to mercy. The said provisions
thus negative a requirement
to give reasons for its finding and
sentence by the court martial and
reasons are required to be recorded
only in cases where the court martial
makes a recommendation to mercy.
In our opinion, therefore, at the stage
of recording of findings and sentence
the court martial is not required to
record its reasons and at that stage
reasons are only required for the recommendation
to mercy if the court
martial makes such a recommendation.
As regards confirmation of the
findings and sentence of the court
martial it may be mentioned that
Section 153 of the Act lays down 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 as provided by
the Act. Section 158 lays down that
the confirming authority may while
confirming the sentence of a court
martial mitigate or remit the punishment
thereby awarded, or commute
that punishment to any punishment
lower in the scale laid down
in Section 71. Section 160 empowers
the confirming authority to revise the
finding or sentence of the court martial
and in sub-section (1) of Section
160 it is provided that on such revision,
the court, if so directed by the
confirming authority, may take additional
evidence. The confirmation of
the finding and sentence is not required
in respect of summary court
martial and in Section 162 it is provided
that the proceedings of every
summary court martial shall with-

378 Union Of India v. Charanjit S. Gill 2000
out delay be forwarded to the officer
commanding the division or brigade
within which the trial was held or to
the prescribed officer; and such officer
or the Chief of the Army Staff or
any officer empowered in this behalf
may, for reasons based on the merits
of the case, but not any merely
technical grounds, set aside the proceedings
or reduce the sentence to
any other sentence which the court
might have passed. In Rule 69 it
is provided that the proceedings of
a general court martial shall be submitted
by the judge advocate at the
trial for review to the deputy or assistant
judge advocate general of the
command who shall then forward it
to the confirming officer and in case
of district court martial it is provided
that the proceedings should be sent
by the presiding officer, who must, in
all cases, where the sentence is dismissal
or above, seek advice of the
deputy or assistant judge advocate
general of the command before confirmation.
Rule 70 lays down that
upon receiving the proceedings of a
general or district court martial, the
confirming authority may confirm or
refuse confirmation or reserve confirmation
for superior authority, and
the confirmation, non-confirmation,
or reservation shall be entered in and
form part of the proceedings. Rule
71 lays down that the charge, finding
and sentence, and any recommendation
to mercy shall, together with
the confirmation, non-confirmation
of the proceedings, be promulgated
in such manner as the confirming authority
may direct, and if no direction
is given, according to custom
of the service and until promulgation
has been effected, confirmation is not
complete and the finding and sentence
shall not be held to have been
confirmed until they have been promulgated.”
In view of what has been noticed
hereinabove, it is apparent that if
a ’fit person’ is not appointed as a
judge advocate, the proceedings of
the court martial cannot be held to
be valid and its finding legally arrived
at. Such an invalidity in appointing
an ’unfit’ person as a judge
advocate is not curable under Rule
103 of the Rules. If a fit person possessing
requisite qualifications and
otherwise eligible to form part of the
general court martial is appointed
as a judge advocate and ultimately
some invalidity is found in his appointment,
the proceedings of the
court martial cannot be declared invalid.
A “fit person” mentioned in
Rule 103 is referable to Rules 39 and
40. It is contended by Shri
Rawal, learned ASG that a person fit
to be appointed as judge advocate is
such officer who does not suffer from
any ineligibility or disqualification in
terms of Rule 39 alone. It is further
contended that Rule 40 does not
refer to disqualifications. We cannot
agree with this general proposition
made on behalf of the appellant
inasmuch as Sub-rule (2) of Rule 40
specifically provides that members of
a court martial for trial of an officer
should be of a rank not lower than
that of the officer facing the trial unless
such officer is not available regarding
which specific opinion is required
to be recorded in the convening
order. Rule 102 unambiguously

provides that “an officer who is disqualified
for sitting on a court martial
shall be disqualified for acting as
a judge advocate in a court martial”.
A combined reading of Rules 39, 40
and 102 suggest that an officer who
is disqualified to be a part of court
martial is also disqualified from acting
and sitting as a judge advocate at
the court martial. It follows, therefore,
that if an officer lower in rank
than the officer facing the trial cannot
become a part of the court martial,
the officer of such rank would be
disqualified for acting as a judge advocate
at the trial before a GCM. Accepting
a plea to the contrary, would
be invalidating the legal bar imposed
upon the composition of the court in
sub-rule (2) of Rule
Arguments of the learned ASG,
if analysed critically, and accepted
would mean that in effect and essence
no disqualification or eligibility can
be assigned to any officer in becoming
a judge advocate. Stretching it
further it can be argued that as Rule
40 does not refer to the ineligibility
or disqualification of an officer to be
a judge advocate, even an officer below
the rank of a Captain can become
a member of the court martial
for the trial of a Field Officer as bar
of sub-rule (3) of Rule 40 is not applicable.
Such an interpretation is uncalled
for and apparently contradictory
in terms.
The purpose and object of prescribing
the conditions of eligibility
and qualification along with desirability
of having members of the
court martial of the rank not lower
than the officer facing the trial is
379
obvious. The law makers and the
rule framers appear to have in mind
the respect and dignity of the officer
facing the trial till guilt is proved
against him by not exposing him
to humiliation of being subjected to
trial by officers of lower in rank. The
importance of the judge advocate as
noticed earlier being of a paramount
nature requires that he should be
such person who inspires confidence
and does not subject the officer facing
the trial to humiliation because
the accused is also entitled to the
opinion and services of the judge advocate.
Availing of the services or
seeking advise from a person junior
in rank may apparently be not possible
ultimately resulting in failure of
justice.
It has been argued that as officers
of the same rank or higher in rank
than the officers facing the trial in
court martials are not available, an
interpretation as rendered by the impugned
judgment would render the
holding of court martials impossible.
Such an argument is to be noticed for
only being rejected. Sub-rule (2) of
Rule 40 itself gives a discretion to the
convening officer who is authorised to
appoint a member of the court martial
or judge advocate who is lower
in rank than the officers facing the
trial, if he is of the opinion that officer
of such rank is not (having due
regard to the exigencies of the public
service) available, subject to a further
condition that such opinion is
required to be recorded in the convening
order. It implied, therefore,
that the provisions of sub-rule (2) of
Rule 40 are not mandatory because

380 Union Of India v. Charanjit S. Gill 2000
they give a discretion to appoint a
member of the court martial or a
judge advocate who is lower in rank
than the officer facing the trial under
the circumstances specified. Rule 39,
admittedly, has no exception and is
thus mandatory.
Further relying upon Note 2 mentioned
at the foot of Rule 102 providing,
“as to disqualification of a judge
advocate CAR 39(2)”, the learned
ASG submitted that the said Note
having the force of law has been followed
by the Army authorities from
the very beginning and thus disqualifications
of a judge advocate are
referable to only Rule 39(2) of the
Rules. It is contended as the source
of the Rules and the Note thereto is
the same, the efficacy of Note 2 cannot
be minimised. The Army authorities,
according
to the learned ASG have understood
Rules 39, 40 and 102 in this
context while making appointments
of the judge advocate.
In response to our directions an
affidavit has been filed on behalf of
the appellants with respect to:
(a) the authority which had prepared
the Notes appearing in Army
Act, 1950 and Army Rules, 1954
(b) the year in which these Notes
were incorporated in the Army Act,
1950 and Army Rules, 1954.
(c) the authority which had approved
these Notes to be incorporated
in the Army Act and the Rules
framed thereunder. stating therein:
“That Army Act, 1950 was enacted
on the pattern of the Indian
Army Act, 1911 and Army Rules,
1954 are on the pattern of Indian
Army Act Rules, Army Rule 89 of Indian
Army Act Rules dealt with disqualifications
of Judge Advocate. It
also had note stating that for disqualification,
see the Rule dealing with
the Rule pari materia to Rule 39 of
the present Rules that is Army Rules,
1959.
That the manual of Indian Military
Law, 1937, published by Govt.
of India, Ministry of Defence (Corrected
up to 1960) Reprint 1967, also
contains Indian Army Act, 1911 with
Notes as well as the Indian Army
Act Rules with Notes. Since this
was 1967 reprint, in this manual even
Army Act, 1950 and Army Rules,
1954 are also contained.
That in the year 1978 the JAG’s
Department compiled the Army Act
& Rules in the new Manual with
a view to make it more convenient
for reference. Prior to it, as stated
above, the Military Law of the country
was outlined in the Manual of
Military Law, 1937. The Manual
contained the Indian Army Act,
1911, the Indian Army Act & Rules
and explanatory notes under various
Sections and Rules. The passage
of time necessitated revision of
the Manual and incorporation of explanatory
notes under the relevant
sections and clauses of the Army
Act, 1950 and Army Rules, 1954.
It also became necessary to include
some other enactments essential to
the subject, and to exclude from the
Manual the repealed Indian Army
Act, 1911 and the superseded Indian
Army Act Rules. The Manual of
Military Law containing explanatory

Notes under the current and operative
Army Act & Rules were issued
in 1983.
That as stated above, the Manual
of Military Law issued in 1983 was
compiled by the office of Judge Advocate
General and approved by the
Govt. as evident from the preface of
the Manual.
That the Notes to Army Act and
Army Rules were appended to Indian
Army Act, 1911 and the Indian
Army Act Rules and were followed
as explanatory Notes and guidance.
These suitably modified and
amended were formally appended to
the relevant provisions of the Army
Act, 1950 and Army Rules, 1954 in
1983 after the same were duly approved
by the Govt. That no facts
which were not pleaded before court
below have not been pleaded.”
However, no material has been
placed on record to show that the
Notes appended to the Rules were
duly approved by the Government.
Per contra the respondent No.1 in
his affidavit has submitted that the
Notes under Sections and Rules as
are found under various provisions of
law compiled by the Army authorities
in the Manual of Military Law
do not form part of the Army Act,
1950 and Army Rules, 1954. The
Rules of 1954 are stated to have been
borrowed from the Indian Army Act,
1911 and the Rules framed thereunder.
It is contended that the Notes
are not law passed by Parliament and
have not been vetted even by the
Ministry of Law & Justice or by the
Law Commission. It is not disputed
that Section 191 of the Army Act em-
381
powers the Central Government to
make rules for the purpose of carrying
into effect the provisions of the
Act and Section 192 to make regulations
for all or any of the provisions
of the Act other than those specified
in Section 191. All Rules and
Regulations made under the Act are
required to be published in the official
gazette and on such publication
shall have the effect as if enacted in
the Act. No power is conferred upon
the Central Government of issuing
Notes or issuing orders which could
have the effect of the Rules made
under the Act. Rules and Regulations
or administrative instructions
can neither be supplemented nor substituted
under any provision of the
Act or the Rules and Regulations
framed thereunder. The administrative
instructions issued or the Notes
attached to the Rules which are not
referable to any statutory authority
cannot be permitted to bring about
a result which may take away the
rights vested in a person governed
by the Act. The Government, however,
has the power to fill up the
gaps in supplementing the rules by
issuing instructions if the Rules are
silent on the subject provided the
instructions issued are not inconsistent
with the Rules already framed.
Accepting the contention of holding
Note 2 as supplementing Rules 39
and 40 would amount to amending
and superseding statutory rules by
administrative instructions. When
Rule 39 read with Rule 40 imposes
a restriction upon the Government
and a right in favour of the person
tried by a court martial to the effect
that a person lower in rank shall

382 Union Of India v. Charanjit S. Gill 2000
not be a member of the court martial
or be a judge advocate, the insertion
of Note 2 to Rule 102 cannot
be held to have the effect of a
Rule or Regulation. It appears that
the ’notes’ have been issued by the
authorities of the Armed Forces for
the guidance of the officers connected
with the implementation of the provisions
of the Act and the Rules and
not with the object of supplementing
or superseding the statutory Rules
by administrative instructions. After
examining various provisions of
the Act, the Rules and Regulations
framed thereunder and perusing the
proceedings of the court martial conducted
against the respondent No.1,
we are of the opinion that the judge
advocate though not forming a part
of the court, yet being an integral
part of it is required to possess all
such qualifications and be free from
the disqualifications which relate to
the appointment of an officer to the
court martial. In other words a judge
advocate appointed with the court
martial should not be an officer of a
rank lower than that the officer facing
the trial unless the officer of such
rank is not (having due regard to
the exigencies of public service) available
and the opinion regarding nonavailability
is specifically recorded in
the convening order. As in the instant
case, judge advocate was lower
in rank to the accused officer and no
satisfaction/opinion in terms of subrule
(2) of Rule 40 was recorded, the
Division Bench of the High Court
was justified in passing the impugned
judgment, giving the authorities liberty
to initiate fresh court martial
proceedings, if any, if they are so ad-
vised in accordance with law and also
in the light of the judgment delivered
by the High Court.
Fears have been expressed that
in case the proceedings of the court
martial are quashed on the ground
of the judge advocate being lower in
rank than the officer facing trial before
the court marital, many judgments
delivered, orders passed and
actions taken by various court martials
till date would be rendered illegal
as according to appellants a
number of court martials have already
been held and conducted under
the assumption of the disqualification
not being referable to Rule
40(2), on the strength of Note 2 attached
to Rule 102 of the Rules.
In that event, it is apprehended, a
flood-gate of new litigation would
be opened which ultimately is likely
to not only weaken the discipline
in the Armed Forces but also result
in great hardship to all those
whose rights have already been determined.
Such an apprehension is
misplaced in view of “de facto doctrine”
born out of necessity as acknowledged
and approved by various
pronouncements of the courts.
This Court in Gokaraju Rangaraju
v. State of Andhra Pradesh [1981
(3) SCC 132] applying the de facto
doctrine in a case where the appointment
of a judge was found to be invalid,
after reference to various judgments
and the observations of the
constitutional experts held:
“A judge, de facto, therefore, is
one who is not a mere intruder or
usurper but one who holds office, under
colour of lawful authority, though

his appointment is defective and may
later be found to be defective. Whatever
be the defect of his title to the
office, judgments pronounced by him
and acts done by him when he was
clothed with the powers and functions
of the office, albeit unlawfully,
have the same efficacy as judgments
pronounced and acts done by a judge
de jure. Such is the de factor doctrine,
born of necessity and public
policy to prevent needless confusion
and endless mischief. There is yet another
rule also based on public policy.
The defective appointment of a
de facto judge may be questioned directly
in a proceeding to which he
be a party but it cannot be permitted
to be questioned in a litigation
between two private litigants,
a litigation which is of no concern
or consequence to the judge except
as a judge. Two litigants litigating
their private titles cannot be permitted
to bring in issue and litigate
upon the title of a judge to his office.
Otherwise so soon as a judge
pronounces a judgment a litigation
may be commended for a declaration
that the judgment is void because the
judge is no judge. A judge’s title
to his office cannot be brought into
jeopardy in that fashion. Hence the
rule against collateral attack on validity
of judicial appointments. To
question a judge’s appointment in an
appeal against his judgment is, of
course, such a collateral attack.
We do not agree with the submission
of the learned counsel that
the de facto doctrine is subject to the
limitation that the defect in the title
of the judge to the office should not
383
be one traceable to the violation of
a constitutional provision. The contravention
of a constitutional provision
may invalidate an appointment
but we are not concerned with that.
We are concerned with the effect of
the invalidation upon the acts done
by the judge whose appointment has
been invalidated. The de facto doctrine
saves such acts. The de facto
doctrine is not a stranger to the Constitution
or to the Parliament and
the Legislatures of the States. Article
71(2) of the Constitution provides
that acts done by the President
or Vice-President of India in the exercise
and performance of the powers
and duties of his office shall not
be invalidated by reason of the election
of a person as President or Vice-
President being declared void. So
also Section 107(2) of the Representation
of the People Act, 1951 (43
of 1951) provides that acts and proceedings
in which a person has participated
as a member of Parliament
or a member of the legislature of a
State shall not be invalidated by reason
of the election of such person being
declared to be void. There are innumerable
other Parliamentary and
State legislative enactments which
are replete with such provisions. The
twentieth amendment of the Constitution
is an instance where the de
facto doctrine was applied by the
constituent body to remove any suspicion
or taint of illegality or invalidity
that may be argued to have attached
itself to judgments, decrees,
sentences or orders passed or made
by certain District Judges appointed
before 1966, otherwise than in accordance
with the provision of Article

384 Union Of India v. Charanjit S. Gill 2000
233 and Article 235 of the Constitution.
The twentieth amendment
was the consequence of the decision
of the Supreme Court in Chandra
Mohan v. State of U.P. [1967 (1)
SCR 77], that appointments of District
Judges made otherwise than in
accordance with the provisions of Article
233 and 235 were invalid. As
such appointments had been made
in many States, in order to pre-empt
mushroom litigation springing up all
over the country, it was apparently
though desirable that the precise position
should be stated by the constituent
body by amending the Constitution.
Shri Phadke, learned counsel
for the appellants, argued that
the constituent body could not be
imputed with the intention of making
superfluous amendments to the
Constitution. Shri Phadke invited us
to say that it was a necessary inference
from the twentieth amendment
of the Contitution that, but for the
amendment, the judgments, decrees,
etc. of the District Judges appointed
otherwise than in accordance with
the provisions of Article 233 would
be void. We do not think that the
inference suggested by Shri Phadke
is a necessary inference. It is true
that as a general rule the Parliament
may be presumed not to make superfluous
legislation. The presumption
is not a strong presumption and
statutes are full of provisions introduced
because abundans cautela non
nocet (there is no harm in being cautious).
When judicial pronouncements
have already declared the law
on the subject, the statutory reiteration
of the law with reference to particular
case does not lead to the nec-
essary inference that the law declared
by the judicial pronouncements was
not thought to apply to the particular
cases but may also lead to
the inference that the statute-making
body was mindful of the real state
of the law but was acting under the
influence of excessive caution and
so to silence the voices of doubting
Thomases by declaring the law declared
by judicial pronouncements to
be applicable also to the particular
cases. In Chandra Mohan case this
Court had held that appointments of
District Judges made otherwise than
in accordance with Article 233 of the
Constitution were invalid. Such appointments
had been made in Uttar
Pradesh and a few other States.
Doubts had been cast upon the validity
of the judgments, decrees etc.
pronounced by those District Judges
and large litigation had cropped up.
It was to clear those doubts and not
to alter the law that the twentieth
amendment of the Constitution was
made. This is clear from the statements
of Objects and Reasons appended
to the Bill which was passed
as Constitution (20th Amendment)
Act, 1966. The statement said:
Amendments of District Judges
in Uttar Pradesh and a few other
States have been rendered invalid
and illegal by a recent judgment of
the Supreme Court on the ground
that such appointments were not
made in accordance with the provisions
of Article 233 of the Constitution...
As a result of these judgments,
a serious situation has arisen
because doubt has been thrown on
the validity of the judgments, de-

crees, orders and sentences passed or
made by these District Judges and a
number of writ petitions and other
cases have already been filed challenging
their validity. The functioning
of the District Courts in Uttar
Pradesh has practically come to a
standstill. It is, therefore, urgently
necessary to validate the judgments,
decrees, orders and sentences passed
or made heretofore by all such District
Judges in those States....”.
This position of law was again reiterated
in State of U.P. v. Rafiquddin
[1988 (1) SLR 491=1987 Supp.
SCC 401] wherein it was held: “We
have recorded findings that 21 unplaced
candidates of 1970 examination
were appointed to the service illegally
in breach of the Rules. We
would, however, like to add that even
though their appointment was not
in accordance with the law but the
judgment, and orders passed by them
are not rendered invalid. The unplaced
candidate are not usurpers of
office, they were appointed by the
competent authority to the posts of
munsifs with the concurrence of the
High Court, though they had not
been found suitable for appointment
according to the norms fixed by the
Public Service Commission. They
have been working in the judicial service
during all these years and some
of them have been promoted also and
they have performed their functions
and duties as de facto judicial officers.
“A person who is ineligible to
385
judgeship, but who has nevertheless
been duly appointed and who exercise
the powers and duties of the office
of a de facto judge, he acts validly
until he is properly removed.” Judgment
and orders of a de factor judge
cannot be challenged on the ground
of his ineligibility for appointment.”
In view of this position of law
the judgments rendered by the court
martial which have attained finality
cannot be permitted to be re-opened
on the basis of law laid down in this
judgment. The proceedings of any
court martial, if already challenged
on this ground and are pending adjudication
in any court in the country
would, however, be not governed by
the principles of ’de facto doctrine’.
No pending petition shall, however,
be permitted to be amended to incorporate
the plea regarding the ineligibility
and disqualification of judge
advocate on the ground of appointment
being contrary to the mandate
of Rule 40(2). This would also
not debar the Central Government or
the appropriate authority in passing
fresh orders regarding appointment
of the fit persons as judge advocate
in pending court martials, if so required.
In the light of what has been
stated hereinabove, the appeal is dismissed
with the observations and
findings noticed in the preceding
paragraph and the judgment of the
Division Bench of the High Court is
upheld. No costs.

386 Union Of India v. Charanjit S. Gill 2000

Chapter 33
Sukhdev Singh Gill v. State
Of Punjab 2000)
Sukhdev Singh Gill v. State Of
Punjab & Ors. on 19 October, 2000
Equivalent citations: 2000 (87) FLR
951, 2000 (7) SCALE 259, (2000) 8
SCC 492 Author: M J Rao Bench:
M Rao, M Shah
JUDGMENT
M. Jagannadha Rao, J.
CIVIL APPEAL NO. 499 OF
1992:
1. This is an appeal by Sukhdev
Singh Gill who filed Writ Petition
No. 6160 of 1987. In the writ
petition the appellant unsuccessfully
claimed the benefit of military service
towards fixation of his seniority
in terms of the Punjab Government
National Emergency (Concession)
Rules, 1965 (hereinafter referred
to as ’the Rules’).
2. The appellant joined as Superintendent
in General Reserve Engineering
Force (hereinafter referred
to as G.R.E.F.) on 8-11-1966. He was
confirmed in the said post. He rendered
the service in this post during
the period of external emergency. He
therefore, claimed that the Armed
Force called by the name G.R.E.F.
was an integral part of the Indian
Army and that in terms of the above
Rules, he was entitled to count the
military service rendered by him for
the purpose of seniority in the Municipal
Administration of the State
which was a provincialised service.
As the question of seniority was involved,
the impleaded Respondent
Nos. 3, 4 & 5 in the writ petition
who would be affected if he was given
the benefit of military service.
3. Learned Single Judge allowed
the writ petition but on appeal the
Division Bench of the High Court
set aside the said judgment in Letters
Patent Appeal No. 1372 of 1988
and dismissed the writ petition. It is
against this judgment that this appeal
has been preferred.
4. The appellant joined service as
a Superintendent in the G.R.E.F. on
8-11-1966 and was discharged sometime
before 24-11-1972. He joined

388 Sukhdev Singh Gill v. State Of Punjab 2000)
the Punjab Agriculture University as
a Section Officer and on 7-9-1973, in
the Municipal Committee, Ludhiana.
In the year 1976 the services of the
employees of the Municipal Committee
were provincialised and the appellant
was posted in the Municipal
Corporation, Amritsar. The writ petition
relating to seniority was filed
in the year 1986 but pending the
writ petition, the representation of
the appellant was rejected on 3-3-
1987. Thereafter, the writ petition
was amended challenging the said order
dated 3-3-1987.
2. Definition– for the purposes
of these rules, the expression ’military
service’ means enrolled or commissioned
service in any of the three
wings of the Indian Armed Forces
(including service as a warrant officer)
rendered by a person during the
period of Operation of the Proclamation
of Emergency made by the President
under Article 352 of the Constitution
on the 26th October, 1962 or
such other service as may hereafter
be declared as military service for the
purposes of these rules. Any period
of military training followed by military
service shall also be reckoned as
military service.
6. It is the case of learned se-
5. The relevant notification
nior counsel appearing for the appellant,
Shri Rajinder Sachar that the
issued under the Punjab Govern- military service defined in Rule 2 in
ment National Emergency (Conces- the above notification includes the
sion) Rules, 1965, is dated 20-7-1965 service rendered by the appellant in
being G.S.R. 160/Const.Art.309/65. the G.R.E.F. and that the said ser-
Relevant part of material for the purvice should be added to his service
pose of this case reads as follows: in the Municipal Department of the
No. G.S.R. 160/Const./Art.309/65-State
of Punjab and if that is done,
In exercise of the powers conferred he would be senior to the private
by the proviso enabling him in this respondents. This plea is opposed
behalf, the Governor of Punjab is by Shri Adarsh Goel, learned senior
pleased to make the following rules: counsel for the private respondent.
1. Short title, commencement
and application (1) These rules
may be called the Punjab Government
National Emergency (Concession)
Rules, 1965.
(2) They shall come into force at
once.
(3) They shall apply to all classes
of services and posts in connection
with the affairs of the State of Punjab
except Medical and Health services.
7. Therefore, the limited question
before us is whether the appellant
could be said to have been “enrolled
or commissioned” in any of the
“three wings” of the Indian Armed
Forces (including service as a warrant
officer) as required by Rule 2
(first part) or whether the appellant
was a member of any other service as
might have been declared as military
service for the purposes of the said
Rules, as required by Rule 2 (second
part).
8. So far as the second part of
Rule 2 which refers to “such other
service as may be declared” as ’mili-

tary service’, it is not in dispute that
there is no separate notification issued
by the Punjab Government, notifying
the service in the G.R.E.F. for
the purposes of Rule 2 of the said
Rules.
9. Under these circumstances,
the question is confined to the first
part of Rule 2, namely; whether the
appellant could be said to have been
“enrolled” or “commissioned” in any
of the “three services” of the Indian
Armed Forces.
10. Learned senior counsel for
the appellant relied upon the judgment
of this Court in R. Viswan and
Ors. v. Union of India and Ors. ,
where this Court considered the nature
of the service in the G.R.E.F.
and the applicability of certain provisions
of the Army Act, 1950 for the
purpose of taking disciplinary action
against the Officers of the G.R.E.F.
In that judgment this Court exhaustively
dealt with the provisions of Article
33 of the Constitution of India
and the relevant notification issued
by the Government of India under
Sections 4(1) and 4(4) of the Army
Act, 1950 under SRO 329 dated 23-
9-1960. The said notification issued
under the Army Act, reads as follows:
SRO 329 dated 23rd September
1960 In exercise of the powers conferred
by Sub-section (1) and (4) of
Section 4 of the Army Act, 1950 (46
of 1950), the Central Government
hereby:
(a) applies to the General Reverse
Engineer Force, being a force
raised and maintained in India un-
389
der the authority of the Central Government,
all the provisions of the
said Act with the exception of those
shown in Schedule ’A’ subject to the
modifications set forth in Schedule
’B’, and
(b) direct that the officers mentioned
in the first column of Schedule
’C shall exercise or perform in respect
of members of the said force under
their command the jurisdiction,
powers and duties incidental to the
operations of the said Act, specified
in the second column thereof.
11. So far as Schedule ’A’ of
the SRO is concerned, it excepts certain
provisions of the Army Act and
states that they do not apply to the
members of G.R.E.F. whereas Schedule
’B’ of the Notification relates to
certain amendments in Sections 3,
63, 73, 81(4), 113, 114 and 116(1) of
the said Act. In the above judgment,
this Court noticed the definition of
the word, ’the Forces’ in Section 3(xi)
of the Army Act which reads as follows:
(xi) “the Forces” means the regular
Army, Navy and Air Force or any
part of any one or more of them;
12. This Court also referred to
Section 4(1) & (4) of the Army Act,
1950 which read as follows:
4(1) The Central Government
may, by notification, apply, with or
without modifications, all or any of
the provisions of this Act to any force
raised and maintained in India under
the authority of that Government,
including any force maintained by a
Part B State, and suspend the operation
of any other enactment for

390 Sukhdev Singh Gill v. State Of Punjab 2000)
the time being applicable to the said
force.
(4) While any of the provisions of
this Act apply to the said force, the
Central Government may, by notification,
direct by what authority any
jurisdiction, powers or duties incident
to the operation of these provisions
shall be exercised or performed
in respect of the said force.
13. It was held in that case that
G.R.E.F. came within Sub-section
(1) of Section 4 inasmuch as it was
a “Force” raised and maintained in
India under the authority of the Central
Government. It was further
held that the entire infrastructure of
GREF was modelled on the pattern
of the Army and it was organised
into units and sub-units with command
and control system similar to
that in the Army. The personnel of
GREF right from Class IV to Class I
had to be in uniform with distinctive
badges of rank and they had a rank
structure equivalent to that of the
Army. GREF was primarily intended
to carry out defence and other works
projected by the General Staff of the
Army Headquarters and it was only
when spare capacity was available
that GREF could undertake works
of other ministries or departments or
agency basis and there also, preference
would be given to strategic and
other roads in sensitive areas. This
Court referred to the definition of
the Armed Forces in Section 3(xi)
(at page 420) and observed that the
word, ’Force’ was not defined anywhere
under the Army Act, 1950 but
there was definition of the words,
’the Forces’ in Section 3(xi), but it
would not help because the expression
to be construed was the word
“Force” which was different from the
words, ’the Forces’. After having
so observed, this Court referred to
the question whether the members
of GREF could be considered to be
the members of the “Armed Forces“
within the meaning of Article 33 of
the Constitution of India. This became
necessary in that case because
the question was whether the fundamental
rights of the GREF Officers
stood restricted as in the case of the
three principal Forces. If Article 33
applied, the State would be protected
under Article 33 of the Constitution
of India and it could take disciplinary
action within the limits permitted by
a restrictive law. After going through
various provisions, this Court held
that GREF was an integral part of
the Armed Forces and the members
of the GREF were the members of
the Armed Forces within the meaning
of Article 33 of the Constitution
of India and the disciplinary action
taken in that case was not ultra vires.
14. In fact, there is a notification
dated 14-8-1985 which forms part
of the paper book before us issued
by the Government of India being
No. F 81(l)/64-Eastt.70463/GREF
which states that in view of the judgment
in R. Viswan and Ors. v.
Union of India and Ors., the President
of India is pleased to declare
General Reserve Engineer Force to
be an integral part of the Armed
Forces of India.
15. Relying on the above said
judgment and the order issued by
the Government of India dated 14-

8-1986 and Section 4(1) of the Army
Act, 1950, learned senior counsel for
the appellant contended that GREF
was a Force falling within the connotation
of Armed Forces under Article
33 of the Constitution of India
and that is why Section 4(1) of the
Army Act was made applicable to
the GREF and if that was the position
of law, the appellant was entitled
to claim that his past service
fell within the definition of “military
service” under Rule 2 of the Punjab
Government National Emergency
(Concession) Rules, 1965.
16. There cannot be any difficulty,
in view of the judgment of this
Court in the above case and the subsequent
notification dated 14-8-1985
issued by the Government of India,
that the appellant’s service in GREF
could be treated as service in the
“Armed Forces” for purposes of Article
33 of the Constitution of India.
But the question is whether that is
sufficient for the purpose of attracting
Rule 2 of the above said 1965
Punjab Rules dated 21-7-1965 ?
17. We have already extracted
the above rule and it would be noticed
that the military service which
would be counted as service must be
service as an “enrolled” or “commissioned”
officer in the “three wings” of
the Indian Armed Forces (including
the service as Warrant Officer) That
is what Rule 2 of the Punjab Rules
of 1965 requires.
18. It appears to us that the
words, “three wings” used in Rule 2
of the above said Rules has to be understood
in the light of Section 3(xi)
of the Army Act, 1950 which defines,
391
the word, the Forces’ as the regular
Forces, namely, the Army, Navy and
Air Force or any part of any one or
more of them. The Punjab Rules
permitting computation of ’military
service’ therefore, appear to us to restrict
the benefit of military service
only to those Officers who are enrolled
or commissioned in the three
principal wings of the Armed Forces,
namely, Army, Navy and Air Force
and it was not intended to extend to
any other Armed Force to which the
provisions of the Indian Army Act
are extended under Section 4(1) of
the Army Act, 1950.
19. Thus, even though the appellant
can be said to belong to the
“Armed Forces” for purposes of the
Army Act and Article 33 of the Constitution
of India, and even assuming
that he was enrolled or commissioned
in the GREF, still his service
could not be treated as service rendered
in the “three principal wings”
of the Armed Forces, namely, Army
Navy and Air Force. We are, therefore,
of the view that the judgment of
the Division Bench of the High Court
is correct and the appellant is not
entitled to count his service in the
GREF for the purpose of seniority in
the provincialised service under the
State of Punjab. The Punjab Rules
of 1965 are thus not applicable to the
appellant.
20. Learned senior counsel for the
appellant, however, invited our attention
to a statement made in the
counter affidavit filed by Mr. Om
Prakash Tandon, PGS (I), Under
Secretary to Government of Punjab,
Department of Local Government on

392 Sukhdev Singh Gill v. State Of Punjab 2000)
behalf of Respondent Nos. 1 & 2 in
the writ petition. (Respondent No.
1 in the writ petition is the State of
Punjab and respondent No. 2 is the
Director, Local Self Government Department,
Punjab, Chandigarh). At
page 75 of the paper book, we find
in the said counter affidavit filed by
the said Officer it was stated that the
appellant was entitled for the benefit
of previous military service for
the purpose of “pay and leave” but
he was not entitled for the benefit of
said service for “seniority”. We take
note of the fact that such a statement
is made in the counter affidavit.
21. For the aforesaid reasons, this
appeal fails and is hereby dismissed,
but in the circumstances of the case
with no order as to costs.
CIVIL APPEAL NO. 500 OF
1992
22. In view of the order passed
in Civil Appeal No. 499 of 1992, this
appeal also fails and is hereby dismissed,
but in the circumstances of
the case with no order as to costs.

Chapter 34
Union Of India v. R P
Yadav 2000
Union Of India & Others v. R.P.
Yadav on 10 May, 2000 Author:
D Mohapatra Bench: K.T.Thomas,
D.P.Mohapatro
PETITIONER:
UNION OF INDIA & OTHERS
v.
RESPONDENT:
R.P. YADAV
DATE OF JUDGMENT:
10/05/2000
BENCH:
K.T.Thomas, D.P.Mohapatro
JUDGMENT:
D.P. MOHAPATRA,J.
Leave granted.
The question that arises for
determination in these appeals is
whether an Artificer Apprentice of
Indian Navy who has been given a reengagement
for a certain period after
obtaining his consent for it is entitled
to withdraw the consent and demand
his release from the force as of
right? Another question which also
arises is what bearing the decision of
this Court in Anuj Kumar Dey and
Another v. Union of India and others
1997 (1) SCC 366 on the above
question.
In the appeal arising from SLP
(C) No.9839 of 1999, the respondent
R.P. Yadav has already been released
from the force in compliance with
the direction of the Delhi High Court
in the impugned judgment. Indeed
in the Order dated 14-2-2000, this
Court recorded the submission of Mr.
Soli J. Sorabjee, learned Attorney
General for India, that so far as the
respondent R.P. Yadav is concerned,
the Union of India is only interested
in having the question of law decided
and even if it is decided in favour
of the Union of India, they will not
deny the benefit which R.P. Yadav
has claimed in this petition. The period
of re-engagement granted in the
case of R.P. Yadav has also expired.
But in the case of Raj Kumar, the respondent
in the appeal arising from

394 Union Of India v. R P Yadav 2000
SLP (C) No. 16848 of 1999, the period
of re-engagement granted to the
said respondent is due to expire on
31st January, 2002. Therefore, it will
be convenient to refer to the relevant
facts in the case of Raj Kumar that
is the civil appeal arising from SLP
(C) No.16848 of 1999.
Raj Kumar was appointed as an
Artificer Apprentice in the Indian
Navy on 14-1-1983. The period of
initial engagement of 15 years expired
on 31-1-1998. Before expiry
of the said period he exercised option
for re-engagement for a further
period of four years and signed
the requisite papers on 26-4-1996.
The option was accepted and reengagement
till 31-1-2002 was approved
by the competent authority.
On 9-4-1997, the respondent made a
request for withdrawl of his option
for re-engagement and cancellation of
the order. The request was turned
down by the authority vide the rejection
order dated 11-6-1997. He filed
the writ petition, CW No. 3833 of
1997, before the Delhi High Court
seeking the following reliefs:
“[i] issue a writ of certiorari or
any other appropriate writ, order or
direction quashing the impugned order
dated 11- 06-97.
[ii] issue a writ of mandamus or
any other appropriate writ, order or
direction directing the respondents
to release the petitioner on the scheduled
date of 31- 01-98 and grant him
the pension and other retiremental
benefits as applicable to on the expiry
of 15 years including 4 years
training period”.
The main contention raised by
the respondent in support of his case
was that he had given his option for
re-engagement under the impression
that the period of 4 years of initial
training after appointment was
not to be counted for the purpose
of qualifying service for pension and
therefore he has to serve for four
years more to earn pension under the
rules. This Court in A.K. Dey &
another v. Union of India & others
(supra) ruled that the period of
initial training is also a part of qualifying
service for the purpose of pension.
The contention by the respondent
was that in view of the change
in the legal position brought about
the decision of this Court, it is no
more necessary for him to continue
in service and he should be released
from the force with all retiral benefits
with immediate effect. A learned
single Judge of the High Court of
Delhi by the Judgment dated 4th
May, 1999, accepted the case of the
respondent, allowed the writ petition
and issued the direction, “the respondents
shall release the petitioners and
send them to Commodore, Bureau of
Sailors Chhetah Camp, Mankhurd,
Mumbai-400 088, within 3 months
for this purpose”. The learned Judge
further ordered that the respondents
shall pass appropriate orders releasing
the petitioner granting him all
retiral benefits. The respondents in
the writ petition filed letters patent
appeal, LPA No. 327 of 1999, challenging
the above judgment/order of
the learned single Judge. The appeal
was dismissed by a Division Bench
of the High Court by the Judgment
dated 3-8-1999, which is under chal-

lenge in the present appeal filed by
the respondents of the writ petition.
The factual position in the case of
R.P. Yadav is similar on all material
aspects excepting the difference as
noted above. The case of the respondents
in the writ petition, shortly
stated, was that an Artificer Apprentice
who is granted re- engagement
for a certain period after obtaining
his consent cannot subsequently resile
from it and cannot claim release
from the force as a matter of right.
It was the further case of the respondents
that the decision of this Court
in A.K. Dey (supra) has no bearing
on the controversy raised in the case.
On the case of the parties gist
of which has been stated above, the
points formulated earlier arise for
determination. The thrust of the
contentions of Shri Altaf Ahmed,
learned Additional Solicitor General
was that the practice prevailing in
the Navy is to ask for option of
the Artificer Apprentice concerned,
his option for re-engagement much
before (one year) completion of the
initial period of engagement (fifteen
years then) so that the authorities
may have sufficient time to collect informations
about the vacancy position
and proper planning for maintaining
the strength of the Naval
Force can be made well in time. This,
according to the learned counsel is
necessary to keep the force in readiness
for any eventuality. Elucidating
the paint, the learned counsel submitted
that if the case of the respondent
is accepted then an Artificer
Apprentice who is a ’Sailor’ as held
by this Court in A.K. Dey (supra),
395
can just walk out of the force at any
time according to his sweet will and
such a situation will seriously erode
the discipline and efficiency of the
Navy.
Shri K.G. Bhagat, learned counsel
appearing for the respondent, on
the other hand, contended that in
A.K. Dey (supra), this Court has
held that the period of initial training
of four years as an Artificer Apprentice
is to be taken into account
for the purpose of determining the
qualifying service for pension which
under the service rules/regulations is
15 years. This position came to the
knowledge of the respondent and the
authorities concerned only after the
Judgment in A.K. Dey’s case was
rendered. The position of law laid
down by this Court is binding on the
authorities concerned and therefore
they cannot stand on the way of release
of the respondent from the force
on completion of 15 years which is
also the qualifying service for pension.
The learned counsel further
contended that it is how the matter
has been understood by officers of the
department which is evident from the
letter HQNTG/3/ADM[S]/I of the
Director(ADL) dated 9-4-1997, recommending
the case of the respondent
for release.
In our view the answer to the
first question rests on the interpretation
of relevant provisions of the
Navy Act, 1957, The Navy (Discipline
and Misc. Provision) Regulation
1965 and Navy Order No. Stp
17 of 1994 regarding re-engagement
of ’Sailors’ (RP/0805/93). In Section
3 (20) “sailor” is defined as a per-

396 Union Of India v. R P Yadav 2000
son in the naval service other than
an officer. In Section 11, it is laid
down inter alia, that no person shall
be enrolled as a sailor in the Indian
Navy for a period exceeding 15
years (subsequently amended as 20
years) in the first instance. In Section
14(1) it is provided that subject
to the provisions of sub-section
(4), officers and sailors shall be liable
to serve in the Indian Navy or the
Indian Naval Reserve Forces, as the
case may be, until they are duly discharged,
dismissed, dismissed with
disgrace, retired, permitted to resign,
or released. In sub-section (2), it is
laid down inter alia that no sailor
shall be at liberty to resign his post
except with the permission of the
prescribed officer.
Chapter V contains the provisions
regarding conditions of service.
In Section 15, which deals
with tenure of service of officers and
sailors it is declared in sub-section
(1) that every officer and sailor shall
hold office during the pleasure of the
President. In sub-section (2), it is
laid down that subject to the provisions
of this Act and the regulations
made thereunder,- (a) the Central
Government may discharge or retire
from the naval service any officer;
(b) the Chief of the Naval Staff
or any prescribed officer may dismiss
or discharge from the naval service
any sailor. In Section 16, it is provided
inter alia that a sailor shall
be entitled to be discharged at the
expiration of the term of service for
which he is engaged unless - (a) such
expiration occurs during active service
in which case he shall be li-
able to continue to serve for such
further period as may be required
by the Chief of the Naval Staff; (b)
he is re-enrolled in accordance with
the regulations made under this Act.
Section 17 which makes provision as
to discharge provides in sub-section
(1) that a sailor entitled to be discharged
under Section 16 shall be
discharged with all convenient speed
and in an case within one month of
becoming so entitled. In sub-section
(3) of the said section it is laid down
that notwithstanding anything contained
in the preceding sub-sections,
an enrolled person shall remain liable
to serve until he is duly discharged.
This provision is made subject
to Section 18 which makes provision
regarding savings of powers of
dismissal by Naval tribunals. Chapter
VI contains the provisions regarding
service privileges. In Chapter VII
are included the provisions regarding
pay, pension, etc. and maintenance
of families. Chapter VIII contains
the provisions regarding articles of
war. In Section 41, it is provided inter
alia that every person subject to
naval law, who (a) deserts his post
shall be punished with imprisonment
for a term which may extend to two
years or such other punishment as is
hereinafter mentioned.
Chapter XX which deals with
provisions regarding regulations provides
in Section 184 (1) that the Central
Government may, by notification
in the official Gazette, make regulations
for the governance, command,
discipline, recruitment, conditions of
service and regulation of the naval
forces and generally for the purpose

of carrying into effect the provisions
of this Act.
Reliance has been placed on the
Navy Order No. (Str.)17 of w1994 by
learned Additional Solicitor General
in which are contained the provisions
regarding re-engagement of sailors.
In introduction to this Navy Order
it is stated inter alia that the period
of enrollment in respect of non
Artificer /Artificer sailor and terms
and conditions governing their further
re-engagement of service have
been laid down in this Navy Order.
In clause (4) it is declared grant of
re-engagement is subject to service
requirement, and is not to be construed
as a matter of right. Depending
upon the requirement of service
a sailor can be re- engaged only if he
fulfills the conditions set out in clause
(4). The criteria for re-engagement
are provided in clause (5) of the Order.
In clause (6) it is laid down that
a sailor is required to exercise his
option for re-engagement for further
service on the following occasions :
(a) On receipt of Expiry of Engagement
Serial from CABS. (b) On selection
for higher rank professional
courses/specialist courses/nonprofessional
pre-promotion courses
in India (c) On selection for Deputation
for new acquisitions/ courses
postings abroad.
In clause (13) provision is made,
inter alia, that on publication of Expiry
of Engagement Serial if a sailor
does not wish to re-engage for further
service a certificate of unwillingness
as per Appendix ’D’ to this order
is obtained from him. A copy
397
of this certificate is to be retained
with sailors service documents and
another forwarded to the Bureau of
Sailors, Bombay. Under sub-clause
(c) of this Regulation it is provided
that sailors who have once expressed
their unwillingness to sign an undertaking
for further service and subsequently
wish to be re-engaged on
promotion, will be considered for reengagement
only if they are willing
to sign for a minimum period of two
years, provided the request is put
up at least nine months prior to the
date of release. In the said provision
it is expressly declared that “short
term re-engagements of one to nine
months in order to earn pension of
the rank will not be granted”. (emphasis
supplied).
In clause (16) of the order it
is made explicit that re-engagement
is a service requirement, therefore,
there is no provision to give reengagement
to sailors only on compassionate
grounds; however, while
reviewing the re-engagement cases of
deserving cases, the welfare of sailors
is also given due consideration to the
possible extent. Clause 18 of the
Naval order which is important for
the purpose of the present case reads
as follows:
“18. Cancellation of Reengagement.
Once re-engagement
has been granted to a sailor consequent
to his willingness, the engagement
will generally not be cancelled
due to any altered circumstances affecting
the sailor. The sailor will be
required to serve up to the period
re-engaged for.
The provisions of the Naval

398 Union Of India v. R P Yadav 2000
Str.17, leave no manner of doubt that
re-engagement of sailors can neither
be claimed by a sailor as a matter
of right nor can cancellation of
re-engagement and release from the
force be claimed by a sailor as a matter
of right. It is to be decided by
the competent authority keeping in
view the relevant factors, the most
important one being the service requirements.
From the conspectus of the relevant
provisions of the Act, the Regulations
and the Navy Orders including
those noted above, the position
is manifest that the Naval Service is
to be maintained as a highly disciplined
service always kept in readiness
to face any situation of emergency.
The personnel of the naval
service are provided with various facilities
and privileges different from
those available to other civil services.
As noticed earlier in Section 16
of the Act a provision is made that
a sailor shall be entitled to be discharged
at the expiration of the
terms of service for which he is engaged.
One of the circumstances
when this general rule shall not apply
is that he is re-enrolled in accordance
with the requirements made in the
Act. No provision in the Navy Regulations,
1965, has been brought to
our notice which expressly or by implication
provides that a sailor can
at any time during the subsistence
of period of re-engagement demand
release from service. On the contrary
a fair reading of the provisions
of the Regulations shows that a very
high standard of discipline is to be
maintained by members of the Naval
Force including sailors. Under Regulation
127 sailors who may have quit
their ships without leave, or have
overstayed their leave or have improperly
absented themselves when
detached on duty, and who may be
apprehended before the expiration of
seven days, beyond the precincts of
a dockyard or other government establishment
in which they may have
been employed, shall be treated either
as absentees or as deserters, according
to the circumstances which
are to be judged by their respective
commanding officers. From provisions
in the Regulations it is also
manifest that stringent measures of
punishment are prescribed for any
act of indiscipline. It is also a matter
of common knowledge that the Naval
Force which is entrusted with the
sacred duty of guarding the shores
of the country against any form of
aggression should be a highly disciplined
and efficient service.
An incidental question that arises
is whether the claim made by the
respondents to be released from the
force as of right is in keeping with
the requirements of strict discipline
of the Naval Service. In our considered
view the answer to the question
has to be in the negative. To vest a
right in a member of the Naval Force
to walk out from the service at any
point of time according to his sweet
will is a concept abhorrent to the
high standard of discipline expected
of members of defence services. The
consequence in accepting such contention
raised on behalf of the respondents
will lead to disastrous results
touching upon security of the

nation. It has to be borne in mind
that members of the defence services
including the Navy have the proud
privilege of being entrusted with the
task of security of the Nation. It is
a privilege which comes the way of
only selected persons who have succeeded
in entering the service and
have maintained high standards of
efficiency. It is also clear from the
provisions in Regulations like Regulation
217 and 218 that persons who
in the opinion of the prescribed authority,
are not found permanently
fit for any form of naval service may
be terminated and discharged from
the service. The position is clear that
a sailor is entitled to seek discharge
from service at the end of the period
for which he has been engaged
and even this right is subject to the
exceptions provided in the Regulations.
Such provisions, in our considered
view, rule out the concept of any
right in a sailor to claim as of right
release during subsistence of period
of engagement or re-engagement as
the case may be. Such a measure is
required in the larger interest of the
country. A sailor during the 15 or 20
years of initial engagement which includes
the period of training attains
a high degree expertise and skill for
which substantial amounts are spent
from the exchequer.
Therefore, it is in the fitness of
things that the strength of the Naval
Force to be maintained is to be determined
after careful planning and
study. In a situation of emergency
the country may ill afford losing
trained sailors from the force. In
such a situation if the sailors who
399
have completed the period of initial
engagement and have been granted
re-engagement demand release from
the force and the authorities have no
discretion in the matter, then the efficiency
and combat preparedness of
the Naval Force may be adversely affected.
Such a situation has to be
avoided. The approach of the High
Court that a sailor who has completed
15 years of service and thereby
earned the right of pension can claim
release as a matter of right and the
authority concerned is bound to accept
his request does not commend
us. In our considered view, the High
Court has erred in its approach to
the case and the error has vitiated
the judgment.
At this stage it will be relevant
to deal with the contention which
has been raised on behalf of the respondents
that they agreed for reengagement
only for the reason that
they were not eligible to receive
pension under the Navy (Pension)
Amendment Regulations, 1982, and
since that position no longer holds
good in view of the decision of this
Court in Anuj Kumar Dey’s case
(supra) they are entitled to withdraw
the option given by them earlier.
This contention is wholly unacceptable
and has to be rejected.
Reasons for which a sailor may exercise
option for re-engagement may
be very many. Such reasons will vary
from person to person. No provision
in the Act or Regulation has been
placed before us which shows that
the sailor is required to state the reason
in support of the option given by
him for re-engagement. Therefore,

400 Union Of India v. R P Yadav 2000
the reason which played in the mind
of the sailor concerned to exercise
option in favour of re-engagement is
not relevant for determination of the
question raised in the case. In that
view of the matter the decision of
this Court in Anuj Kumar Dey’s case
(supra) is of little assistance to the
respondents in the case. All that was
decided by this Court in that case
is that the training period as Artificer
Apprentice, will be included in
the computation of the qualifying period
of service for earning pension
for the reason that during the period
of training as Artificer Apprentice
the sailor was in the service of
the Navy. This Court did not consider
any other question which may
have a direct or indirect bearing on
the controversy raised in the present
case. It follows that the decision of
this Court in Anuj Kumar Dey’s case
(supra) cannot provide a legitimate
basis for claim of the respondents to
be discharged from the Naval force as
a right.
In the result the appeals are
allowed. The Judgment of the
learned single Judge of the High
Court in C.W.P. No. 3833/97 dated
4.5.99 as confirmed by the Division
Bench of the High Court of
Delhi in L.P.A.No.327 of 1999 and
C.W.P. No. 1368/98 as confirmed
in L.P.A.No. 579/98, are set aside.
There will however, be no order as
to costs.

Chapter 35
Union Of India v. Harjeet
Singh Sandhu 2001
Union Of India And Ors. v. Harjeet
Singh Sandhu Etc. on 11 April,
2001 Equivalent citations: AIR 2001
SC 1772, JT 2001 (4) SC 597, 2001
LablC 1707 Author: R Lahoti Bench:
R Lahoti, B Kumar, . A Anand
JUDGMENT
R.C. Lahoti, J.
1. Harjeet Singh Sandhu, the respondent
in S.L.P.(C) No.5155/1998
was a captain in the Army. On
the night intervening 27th & 28th
March, 1978, the respondent along
with three other officers interrogated
one Bhagwan Das, who was also a
defence employee, in connection with
an incident of theft. During the
course of interrogation the respondent
and his co-associates used third
degree methods in orders to extract a
confession as a result whereof Bhagwan
Das died. A General Court martial
(GCM, for short) was convened
under Section 109 of Army Act, 1950
which tried the respondent and the
other officers. On 26.12.1978 the
GCM awarded the sentence of forfei-
ture of three years service for purpose
of promotion and severe reprimand
to the respondent. The confirming
authority formed an opinion
that the sentence passed on the respondent
was very lenient and therefore
vide order dated 19.4.1979, in
exercise of the powers conferred by
Section 160 of the Army Act sent the
case back for revision. On 10.5.1979,
the GCM, on revision, enhanced the
punishment inflicted on the respondent
to forfeiture of three years of
service for the purpose of promotion
and also for the purpose of pay and
pension. On 24.9.1979 the Chief of
the Army Staff in exercise of the
power conferred by Section 165 annulled
the GCM proceedings on the
ground that the proceedings were unjust.
On 20.12.1979, a show cause
notice was issued to the respondent
under Section 19 of the Act read with
Rule 14 of the Army Rules, 1954
(hereinafter the Rules, for short) calling
upon the respondent to show
cause why his services should not be
terminated. Reply was filed by the

402 Union Of India v. Harjeet Singh Sandhu 2001
respondent defending himself. On
16.7.1982 a fresh cause notice was
issued to the respondent requiring
him to show cause why his service be
not terminated under Section 19 read
with Rule 14. Both the notices dated
20.12.1979 and 16.7.1982 recorded on
the part of the Chief of the Army
Staff - (i) a satisfaction that the respondent’s
retrial by a court martial
consequent to the annulment of
the GCM proceedings was impracticable,
and (ii) formation of opinion
that the respondent’s further retention
in the service was undesirable.
The latter notice also stated that the
earlier notice was thereby cancelled
though the reason for such cancellation
was not mentioned. The respondent
filed a reply dated 9.9.1982 in
defence of himself. On 2.1.1984 the
Chief of the Army Staff passed an order
dismissing the respondent from
service. On 16.2.1984 the respondent
filed a civil writ petition before
the High Court of Allahabad laying
challenge to the order of termination.
The singular contention raised before
the High Court was that the incident,
in which the respondent was involved
had taken place in the night intervening
27th & 28th March, 1979 and
Court martial proceedings had become
barred by time on 28th March,
1981 under Section 122 of the Act
whereafter Section 19 of the Act was
not available to be invoked. The
High Court of Allahabad in its impugned
judgment, formed an opinion
that the decision of this Court
in Major Radha Krishan v. Union of
India , squarely applies to the facts
of this case and therefore the exercise
of power under Section 19 read
with Rule 14 was vitiated. The writ
petition has been allowed and the impugned
order of termination dated
2.1.1984 has been quashed.
2. In S.L.P(C) No.3233/2000 the
respondent Harminder Kumar was
a Captain in the Army. In the
year 1979 the respondent was found
blameworthy for discrepancies in respect
of stocks in Fuel Petroleum
Depot, Leh between the period
10.3.1979 to 22.3.1979. Summary of
evidence having been recorded, on
5.8.1981 a General Court Martial was
ordered to be convened on 18.8.1981.
On 14.8.1981 the respondent filed a
civil writ petition under Article 32
of the Constitution of India in this
Court wherein, by an interim order,
the proceedings in the court martial
were directed to be stayed. On
26.11.1982 the writ petition filed by
the respondent was dismissed, consequent
whereupon the interim order
of stay also stood vacated. On
7.2.1983 the respondent as informed
that General Court Martial against
the respondent was fixed to be convened
on 28.2.1984. However, on
28.2.1984 the Chief of the Army Staff
in exercise of the power conferred
by Section 19 read with Rule 14 issued
a notice to the respondent calling
upon him to show cause why his
services be not terminated in view
of the fact that the court martial
proceedings against the respondent
were impracticable and the Chief of
the Army Staff was of the opinion
that further retention of the respondent
in the service was not desirable.
Immediately, the respondent
filed a writ petition in the High Court

of Delhi submitting that the general
court martial proceedings having become
barred by time against him on
account of lapse of three years from
the date of the offence, the notice
issued to him was without jurisdiction.
Vide order dated 8th September,
1998 the High Court has held,
placing reliance on the decision of
this Court in Major Radha Krishan
v. Union of India , that once the
court martial proceedings have become
time-barred the Chief of the
Army Staff could not have had recourse
to Section 19 of the Act read
with Rule 14 of the Rules. Consequently,
the writ petition has been
allowed and show cause notice dated
8th February, 1984 directed to be
quashed.
3. The Union of India has filed
these petitions for special leave to appeal.
4. Delay condoned in filing
SLP(C) No.5155/1998.
5. Leave granted in both the
SLPs.
6. We have heard Shri Altaf Ahmad,
the learned Additional Solicitor
General for the appellant and Shri
Prem Prasad Juneja, Ms. Indu Malhotra
and Shri A. Mariarputham,
Advocates for the respondents. The
principal plea raised on behalf of the
appellant and forcefully pressed by
the learned Additional Solicitor General
at the time of hearing was the
Major Radha Krishan’s case was not
correctly decided and therefore needs
to be reconsidered by this Court for
two reasons: firstly, because Major
Radha Krishan’s case is a decision
403
rendered by two Judges-Bench which
does not take notice of the law laid
down by this Court in Chief of Army
Staff v. Major Dharam Pal Kukrety -
which is three-judges Bench decision;
and secondly, the proposition laid
down therein is too wide a proposition
wholly unsustainable in the light
of the express provisions contained in
the Army Act and the Army Rules
and the underlying scheme of the
Legislation.
7. We would first set out the
facts in brief and the ration of the
decisions rendered by this Court
in the case of Major Radha Krishan
(supra) and Major Dharam
Pal Kukrety (supra) before dealing
with other contentions raised by the
learned counsel for the parties because
the major part of submissions
made by the learned counsel center
around the above said two decisions.
8. To appreciate the ratio of the
above said two cases it will be necessary
to keep in view the provisions
contained in Section 19 and 122 of
the Army Act, 1950 and Rule 14
of Army Rules, 1954 which are extracted
and reproduced hereunder :-
Army Act, 1950
19. Termination of Service by
Central Government. - Subject to
the provisions of this Act and the
rules and regulations made thereunder
the Central Government may dismiss,
or remove from the service, any
person subject to this Act.
122. Period of limitation for trial.
- (1) Except as provided by subsection
(2), no trial by court martial
of any person subject to this Act

404 Union Of India v. Harjeet Singh Sandhu 2001
for any offence shall be commenced
after the expiration of a period of
three years [and such period shall
commence, -
(a) on the date of the offence; or
(b) where the commission of the
offence was not known to the person
aggrieved by the offence or to the authority
competent to initiate action,
the first day on which such offence
comes to the knowledge of such person
or authority, whichever is earlier;
or
(c) where it is known by whom
the offence was committed, the first
day on which the identity of the offered
is known to the person aggrieved
by the offence or to the authority
competent to initiate action,
whichever is earlier.]
(2) The provisions of sub-section
(1) shall not apply to a trial for an offence
of desertion or fraudulent enrolment
or for any of the offences mentioned
in section 37.
(3) In the computation of the period
of time mentioned in sub-section
(1), any time spent by such person as
a prisoner of war, or in enemy territory,
or in evading arrest after the
commission of the offence, shall be
excluded.
(4) No trial for an offence of desertion
other than desertion on active
service or of fraudulent enrolment
shall be commenced if the person
in question, not being an officer,
has subsequently to the commission
of the offence, served continuously in
any exemplary manner for not less
than three years with any portion of
the regular Army.
Army Rules, 1954
[14. Termination of service by
the Central Government on account
of misconduct. - (1) When it is proposed
to terminate the service of an
officer under section 19 on account of
misconduct, he shall be given an opportunity
to show cause in the manner
specified in sub-rule (2) against
such action -
Provided that this sub-rule shall
not apply -
(a) where the service is terminated
on the ground of misconduct
which has led to his conviction by a
criminal court; or
(b) where the Central Government
is satisfied that for reasons, to
be recorded in writing, it is not expedient
or reasonably practicable to
give to the officer an opportunity of
showing cause.
(2) When after considering the
reports on an officer’s misconduct,
the Central Government or the Chief
of the Army Staff is satisfied that the
trial of the officer by a court martial
is inexpedient or impracticable, but
is of the opinion, that the further retention
of the said officer in the service
is undesirable, the Chief of the
Army Staff shall so inform the officer
together with all reports adverse
to him and he shall be called upon
to submit in writing, his explanation
and defence:
Provided that the Chief of the
Army Staff may withhold from disclosure
any such report or portion
thereof if, in his opinion, its disclosure
is not in the interest of the security
of the State.

In the event of the explanation
of the officer being considered unsatisfactory
by the Chief of the Army
Staff, or when so directed by the
Central Government, the case shall
be submitted to the Central Government,
with the officer’s defence and
the recommendation of the Chief of
the Army Staff as to the termination
of the officer’s service in the manner
specified in sub-rule (4).
(3) Where, upon the conviction
of an officer by a criminal court, the
Central Government or the Chief of
the Army Staff considers that the
conduct of the officer which has led
to his conviction renders his further
retention in service undesirable a certified
copy of the judgment of the
criminal court convicting him shall
be submitted to the Central Government
with the recommendation of
the Chief of the Army Staff as to the
termination of the officer’s service in
the manner specified in sub-rule (4).
[(4) When submitting a case to
the Central Government under the
provisions of sub-rule (2) or sub-rule
(3), the Chief of the Army Staff shall
make his recommendation whether
the officer’s service should be terminated,
and if so, whether the officer
should be -
(a) dismissed from service; or
(b) removed from service; or
(c) Compulsory retired from the
service.
(5) The Central Government after
considering the reports and the
officer’s defence, if any, or the judgment
of the criminal court, as the
case may be, and the recommenda-
405
tion of the Chief of the Army Staff,
may -
(a) dismiss or remove the officer
with or without pension or gratuity;
or
(b) compulsorily retire him from
the service with pension and gratuity,
if any, admissible to him.]]
9.Other provisions of the Act and
the Rules, to the extent necessary,
shall be adverted to as and when required.
10. In Major Radha Krishan’s
case the officer had committed misconduct
and the trial thereof by
Court martial had become timebarred
under Section 122 of the Act
whereafter, on 10.9.1990, a notice
was issued by the Chief of the Army
Staff to the officer which inter alia
stated - “and whereas the COAS is
further satisfied that your trial for
the above misconduct is impracticable
having become time-barred by
the time the court of inquiry was finalised
and he is of the opinion that
your further retention in service is
undesirable”. This Court for the purpose
of finding out the meaning of
’impracticable’, the term occurring
in sub-rule (2) of Rule 14, referred
to dictionary meanings of ’impracticable’,
and ’inexpedient’ and then
concluded that ’impracticability’ is a
concept different from ’impossibility’
for while the latter is absolute, the
former introduces at all events some
degree of reason and involves some
regard for practice. As the provision
of limitation prescribed under Act
prohibited a trial by court martial
being held on expiry of the period of

406 Union Of India v. Harjeet Singh Sandhu 2001
limitation such a provision could not
be overridden by invoking Section 19
and thus achieving a purpose by an
administrative act which could not
be achieved by holding a trial under
a statutory provision. Once a misconduct
was rendered legally impossible
and impermissible to be tried on
account of bar of limitation it could
not be said that the trial of the officer
was impracticable and therefore
resort could not be had to sub-Rule
(2) of Rule 14. Vide para 10, yet another
reason assigned by this court is
that the satisfaction with regard to
inexpediency or impracticability of a
trial by Court martial must be arrived
at only on consideration of the
reports of misconduct for the purpose
of resorting to Rule 14. The
satisfaction regarding the inexpediency
or impracticability to hold a
Court martial must flow from the nature
and the context of the misconduct
itself and not from any other
extraneous factor such as that the
Court martial proceedings had become
time-bared. The contention advanced
on behalf of the officer was,
in the view of the court, ’indefensible’.
Vide paras 11 and 12, this
court held that the misconduct and
other attending circumstances relating
thereto have to be the sole basis
for obtaining a satisfaction within
the meaning of Rule 14(2) and dispensing
with a trial on a satisfaction
de hors the misconduct - like the bar
of limitation - will be wholly alien to
rule 14(2). Dharam Pal Kukrety’s
case was neither placed before nor
considered by the learned judges deciding
Major Radha Krishan’s case.
11. Major Dharam Pal Kukrety
was a permanent commissioned officer
of the Indian Army holding the
substantive rank of Captain and acting
rank of Major. He was tried
by a general court martial on four
charges referable to certain incidents
which had taken place on November
6 and 7, 1975. On March 13, 1976
the court martial announced its finding
(subject to confirmation) of ’not
guilty of all the charges’. The confirming
authority did not confirm the
verdict and by order dated Aril 3,
1976 sent back the finding for revision.
The same general court martial
re-assembled on April 14, 1976.
Once again the general court martial,
adhering to its original view,
announced the finding that the respondent
was “not guilty of all the
charges” (subject to confirmation).
On May 25, 1976 the confirming authority
refused to confirm the finding
and promulgated, as required by
Rule 71, the charges against the officer,
the findings of the court martial
and the non-confirmation thereof.
Thereafter, the Chief of the Army
Staff exercising power under Rule
14 issued a show cause notice dated
November 12, 1976 which notice
recorded inter alia the satisfaction
of the COAS that a fresh trial by
a court martial for the said offences
was inexpedient, as also his opinion
that the officer’s misconduct rendered
his further retention in the service
undesirable. The officer filed a
civil writ petition in the High Court
of Allahabad laying challenge to the
validity of the show cause notice.
The contention of the officer was that
there was an initial option either to

have the officer tried by a court martial
or to take action against him
under Rule 14 and the option having
been exercised to try him by a
court martial and the officer having
been acquitted both at the time
of the original trial and on revision,
it was not competent for the Chief
of the Army Staff to have recourse
to Rule 14. The contention found
favour with the High Court. The
High Court held that the officer having
been in fact tried by a court martial
twice and a verdict of not guilty
having been rendered twice the impugned
notice Rule 14 was without
jurisdiction. In the appeal preferred
by Chief of the Army Staff before this
Court two contentions were raised on
behalf of the officer : firstly, that it
could not be said that the trial of the
officer by a court martial was inexpedient
or impracticable as in fact
he had been tried by a court martial;
and secondly, that on a true construction
of Rule 14 the Central Government
or the Chief of the Army
Staff had an initial option to have
the officer tried by a Court martial
or to take action against him under
Rule 14 and if the decision to
have the officer tied by court martial
was taken then action under Rule 14
was not permissible in case of finding
of acquittal being rendered by
the court martial. Vide para 14, this
court noticed decisions rendered by
different High Courts of the country
throwing light on the issue before
the Court. Allahabad High Court
was of the view that in spite of nonconfirmation
of the finding and sentence
passed by the court martial
such finding and sentence did exist
407
though they could not be put into
effect for want of confirmation and
therefore a second trial by court martial
would be barred. Jammu &
Kashmir High Court was of the view
that the Legislature could not have
reasonably intended that an officer
convening a general court martial can
go on dissolving such courts martial
and reconstituting them ad infinitum
until he obtained a verdict or a finding
of his own liking. Such a decision
would not only be against public
policy and violative of the rule
of double jeopardy but would also
reduce the provisions of the Army
Act to a mockery and give an appearance
of mala fides. Having noticed
the decisions of High Courts,
this Court then concentrated on the
question whether in such a case trial
by a court martial is inexpedient or
impracticable? Dictionary meaning
of the term ’inexpedient’ was relied
on. The Court then summed up its
conclusion as under :-
“In the present case, the Chief of
the Army Staff had,on the one hand,
the finding of a general court martial
which had not been confirmed and
the Chief of the Army Staff was of
the opinion that the further retention
of the respondent in the service
was undesirable and, on the other
hand, there were the above three
High Court decisions and the point
was not concluded by a definitive
pronouncement of this Court. In
such circumstances, to order a fresh
trial by a court martial could certainly
be said to be both inexpedient
and impracticable and the only expedient
and practicable course, there-

408 Union Of India v. Harjeet Singh Sandhu 2001
fore, open to the Chief of the Army
Staff would be to take action against
the Respondent under Rule 14, which
he did. The action of the Chief of the
Army Staff in issuing the impugned
notice was, therefore, neither without
jurisdiction nor unwarranted in
law.”
12. The decision of Allahabad
High Court under appeal was reversed
and the writ petition filed by
the respondent therein was directed
to be dismissed.
13. We would revert back to the
above two decisions of this Court a
little afterwards. We now proceed
to notice the legislative scheme underlying
Section 19 of the Act and
Rule 14 of the Rules. Section 19 of
the Act and Rule 14 of the Rules are
to be read together and as integral
parts of one whole scheme. Section
191 of the Act empowers the Central
Government generally to make
rules for the purpose of carrying into
effect the provisions of this Act and
without prejudice to the generality of
such power, specifically to make rules
providing for inter alia the removal,
retirement, release or discharge from
the service of persons subject to the
Army Act. Section 19 empowers the
Central Government to dismiss or remove
from the service any person
subject to this Act which power is
subject to: (i) the (other) provisions
of this Act, and (ii) the rules and regulations
made under the Act. Under
Section 193, all rules made under
the Act shall be published in
the official gazette and on such publication
shall have effect as if enacted
in this Act. Under Section
193-A, such rules shall be laid before
each House of Parliament. In
State of U.P. v. Babu Ram the
Constitution Bench has held, quoting
from Maxwell on Interpretation
of Statutes, that rules made under a
Statute must be treated for all purposes
of construction or obligation
exactly as if they were in the Act
and are to be of the same effect as
if contained in the Act, and are to be
judicially noticed for all purposes of
construction and obligation; an action
taken under the Act or the rules
made thereunder must confirm to the
provisions of the Act and the rules
which have conferred upon the appropriate
authority the power to take
an action. The Constitution Bench
decision has been followed by this
court in State of Tamil Nadu v. M/s
Hind Stone -
holding that a statutory rule,
while ever subordinate to the parent
statute, is, otherwise, to be treated
as part of the statute and as effective.
[Also see Peerless General Finance
and Investment Co.Ltd. v. Reserve
Bank of India - .]
14. Section 19 and Rule 14 so
read together and analysed, the following
legal situation emerges :-
1) The Central Government may
dismiss, or remove from the service,
any person subject to the Army Act,
1950, on the ground of misconduct.
2) To initiate an action under
Section 19, the Central Government
or the Chief of the Army Staff after
considering the reports on an officer’s
misconduct;
a) must be satisfied that the trial

of the officer by a Court martial is
inexpedient or impracticable,
b) must be of the opinion that the
further retention of the said officer in
the service is undesirable.
3. Such satisfaction having been
arrived at and such opinion having
been formed, as above said, the officer
proceeded against shall be given
an opportunity to show cause against
the proposed action which opportunity
shall include the officer being informed
together with all reports adverse
to him to submit in writing his
explanation and defence. Any report
on an officer’s misconduct or portion
thereof may be withheld from being
disclosed to the officer concerned if
the Chief of the Army Staff is of the
opinion that such disclosure is not
in the interest of the security of the
State.
4) Opportunity to show cause in
the manner as above said need not
be given to an officer in the following
two cases:-
a) Where the misconduct forming
the ground for termination of service
is one which has led to the officer’s
conviction by a criminal court;
b) Where the Central Government
is satisfied that for reasons, to
be recorded in writing, it is not expedient
or reasonably practicable to
give to the officer an opportunity of
showing cause.
5) The explanation of the officer
shall be considered by the Chief of
the Army Staff. If the explanation is
found satisfactory, further proceedings
need not be pursued. The explanation,
if considered unsatisfactory
409
by the Chief of the Army Staff or
when so directed by the Central Government,
in either case, hall be submitted
to the Central Government
with the officer’s defence and the recommendation
of the COAS as to the
termination of the officer’s service i.e.
whether the officer should be (a) dismissed,
or (b) removed, or (c) compulsorily
retired, from the service.
6) The Central Government shall
after taking into consideration the reports
(on the officer’s misconduct)
the officer’s defence, if any, and the
recommendation of the COAS, shall
take a decision which if unfavourable
to the officer may be (a) to dismiss
or remove the officer with or without
pension or gratuity; or (b) to compulsorily
retire him from service with
pension and gratuity, if any, admissible
to him.
15. The case of an officer whose
service is proposed to be terminated
on the ground of misconduct which
has led to his conviction by a criminal
court is to be treated differently.
He need not be given an opportunity
to show cause against the proposed
termination. A decision as to termination
in one of the modes provided
by sub-rule (4) of Rule 14 can be
taken by the Central Government on
its own or on the recommendation of
the Chief of the Army Staff if he considers
that the conduct of the officer
leading to his conviction renders his
further retention in service undesirable
in which case his recommendation
accompanied by a certified copy
of the judgment of the criminal court
convicting him shall be submitted to
the Central Government which will

410 Union Of India v. Harjeet Singh Sandhu 2001
take the decision in accordance with
sub-rule (5).
16. The learned ASG submitted
that the defence services under the
law of the land are treated as a class
apart as can be spelled out from the
different provisions of the Constitution
and the Army Act and other
laws. As the defence of the country
is involved, in the very nature of the
things, a cautious approach has to be
adopted while interpreting the several
legal provisions, the security of
the State and welfare of the nation
being supreme. He submitted that
under the scheme of the Legislation
there is no warrant for holding that a
decision to take action under Section
19 read with Rule 14 or to convene a
court martial ,must be taken only in
the first instance and before the time
limited for commencing court martial
proceedings comes to an end. He further
submitted that power vesting in
the Central Government and Chief of
the Army Staff under Section 19 of
the Act can be exercised whether before
or after convening and holding
trial by court martial and even after
the expiry of the limitation prescribed
by Section 122 for commencement
of the court martial. On the
other hand, the learned counsel appearing
for the respondents (writpetitioners
before the High Court)
submitted that the scheme of the
Army Act and the Rules made thereunder
provides for an officer subject
to the Army Act being dealt with
either by a criminal court or by a
court martial or by an appropriate
action under Section 19 of the Act
and cannot be subjected to duality
of the proceedings, or to one of the
three proceedings after the other one
of the there has been set in motion
and accomplished. To e more specific,
submitted the learned counsel,
once an officer has been subjected to
court martial proceedings or if such
proceedings cannot be held or have
proved to be abortive as having become
barred by time or impossible or
impermissible then Section 19 cannot
be invoked. In order to test the validity
of such rival contentions forcefully
advanced before us we would examine
the scheme of the Act and the implications
of the relevant provisions
contained therein.
17. Army defends the country
and its frontiers. It is entrusted with
the task of protecting against foreign
invasion and preserving the national
independence. The arduous nature
of duties, the task they have to perform
in emergent situations and the
unknown lands and unknown situations
wherein they have to function
demand an exceptionally high standard
of behavior and discipline compared
to their counterparts in civil
services. That is why the military
people command the respect of the
masses. Such factors taken together
demand the military services being
treated as a class apart and a different
system of justice - military justice
- being devised for them. Article
33 empowers the Parliament to restrict
or abrogate fundamental rights
in their application to the members
of the armed forces so as to ensure
the proper discharge of their duties
and the maintenance of discipline
among them. Right to file special

leave to appeal before the Supreme
Court and power of superintendence
vesting in the High Courts do not extend
over judgment, determination,
sentence or order passed or made
by any Court or Tribunal dealing
with armed forces. Members of the
defence services hold office during
pleasure of the President under Article
310 but they are not entitled
to the protection offered by Article
311. The principles of interpretation
of statutes which apply to any
other statute also apply to the legislation
dealing with defence services;
however, the considerations of the security
of the State and enforcement
of a high degree of discipline additionally
intervene and have to be assigned
weightage while dealing with
any expression needing to be defined
or any provision needing to be interpreted.
18. Section 19, with which we are
concerned, is to be found placed in
Chapter IV of the Act entitled ’Conditions
of Service’. Chapter VI deals
with offences. Sections 34 to 68,
finding place in Chapter VI are very
widely worded and embrace within
their realm practically every type
of misconduct, its abetment and attempt
as well, which any person subject
to the Act may commit. Section
69 defined civil offences, the commission
whereof shall be triable by a
court martial. Section 70 defines civil
offences not triable by court martial.
Chapter VII deals with punishments.
Therein Section 71 provides as under:
“71. Punishments awardable by
courts martial. - Punishments may
be inflicted in respect of offences
411
committed by persons subject to this
Act and convicted by courts martial,
according to the scale following, that
is to say,-
(a) death;
(b) transportation for life or for
any period not less than seven years;
(c) imprisonment, either rigorous
or simple, for any period not exceeding
fourteen years;
(d) cashiering, in the case of officers;
(e) dismissal from the service;
(f) reduction to the ranks or to a
lower rank or grade or place in the
list of their rank, in the case of warrant
officers; and reduction to the
ranks or to a lower rank or grade,
in the case of non-commissioned officers:
Provided that a warrant officer
reduced to the ranks shall not be required
to serve in the ranks as a sepoy;
(g) forfeiture of seniority of rank,
in the case of officers, junior commissioned
officers, warrant officers and
non-commissioned officers; and forfeiture
of all or any part of their service
for the purpose of promotion, in
the case of any of them whose promotion
depends upon length of service;
(h) forfeiture of service for the
purpose of increased pay, pension or
any other prescribed purpose;
(i) severe reprimand or reprimand,
in the case of officers, junior
commissioned officers, warrant officers
and non-commissioned officers;
(j) forfeiture of pay and allowances
for a period not exceeding

412 Union Of India v. Harjeet Singh Sandhu 2001
three months for an offence committed
on active service;
(k) forfeiture in the case of a person
sentenced to cashiering or dismissal
from the service of all arrears
of pay and allowances and other public
money due to him at the time of
such cashiering or dismissal;
(l) stoppage of pay and allowances
until any proved loss or
damage accessioned by the offence of
which he is convicted is made good.”
19. According to Section 74, before
an officer is awarded any of the
punishments specified in clauses (a)
to (c) of Section 71, he shall be sentenced
to be cashiered. Other provisions
in this chapter are not relevant
of our purpose.
20. Under Section 101, any
person subject to this Act, who is
charged with an offence, may be
taken into military custody. Chapter
X deals with Courts Martial.
Therein under Section 121, any person
subject to this Act having been
acquitted or convicted of an offence
by a court martial or a criminal court
shall not be liable to be tried again
for the same offence. Section 122,
provides period of limitation for commencement
of trial by court martial.
Once the period prescribed has expired
a trial before a court martial
cannot be commenced.
21. Under Section 153 no finding
or sentence of a court martial shall be
valid unless confirmed as provided by
the Act. Section 158 gives power to
confirming authority to mitigate, remit
or commute sentences. Section
165 empowers the Central Govern-
ment, the Chief of the Army Staff
or any prescribed officer to annul the
proceedings of any court martial on
the ground that they are illegal or unjust.
22. ’Misconduct’ as a ground for
terminating the service by way of dismissal
or removal, is not to be found
mentioned in Section 19 of the Act;
it is to be read therein by virtue of
Rule 14. Misconduct is not defined
either in the Act or in the Rules. It
is not necessary to make a search for
the meaning, for it would suffice to
refer to State of Punjab & Ors. v.
Ram Singh, Ex-Constable, wherein
the term ’misconduct’ as used in
Punjab Police Manual came up for
the consideration of this court. Having
referred to the meaning of ’misconduct’
and ’misconduct in office’
as defined in Black’s Law Dictionary
and Iyer’s Law Lexicon, this court
held:-
“.... the word ’misconduct’
though not capable of precise definition,
on reflection receives its connotation
from the context, the delinquency
in its performance and its effect
on the discipline and the nature
of the duty. It may involve moral
turpitude, it must be improper or
wrong behavior; unlawful behavior,
wilful in character; forbidden act, a
transgression of established and definite
rule of action or code of conduct
but not mere error of judgment, carelessness
or negligence in performance
of the duty; the act complained of
bears forbidden quality or character.
Its ambit has to be construed
with reference to the subject matter
and the context wherein the term oc-

curs, regard being had to the scope
of the statute and the public purpose
it seeks to serve. The police service
is a disciplined service and it requires
to maintain strict discipline. Laxity
in this behalf erodes discipline in the
service causing serious effect in the
maintenance of law and order.”
23. In the context in which then
term ’misconduct’ has been used in
Rule 14, it is to be given a wider
meaning and any wrongful act or any
act of delinquency which may or may
not involve moral turpitude, would
be ’misconduct’, and certainly so, if
it is subversive of army discipline or
high traditions of army and/or if it
renders the person unworthy of being
retained in service. The language
of sub-rule(2) of Rule 14 employing
the expression ’the reports on an officer’s
misconduct’ uses ’reports’ in
plural and misconduct in singular.
Here plural would include singular
and singular would include plural. A
single report on an officer’s misconduct
may invite an action under Section
19 read with Rule 14 and there
may be cases where there may be
more reports than one on a singular
misconduct or more misconducts
than one in which case it will be
the cumulative effect of such reports
on misconduct or misconducts, which
may lead to the formation of requisite
satisfaction and opinion within
the meaning of sub-rule (2) of Rule
14.
24. The learned counsel for the
respondents submitted that a court
martial convened under the Act is a
high powered special tribunal vested
with very wide jurisdiction. It can-
413
not appropriately be called either a
criminal court merely or a service tribunal
simply. It is a combination of
the two and much more than that.
A perusal of the provisions of Section
71 clearly indicates that court
martial is empowered to inflict such
punishments which are otherwise inflicted
by a competent criminal court
while there are punishments such as
those provided by clauses (d) to (l)
thereof which belong to the realm of
service jurisprudence and can ordinarily
be inflicted y way of penalty
for a misconduct which a person in
service may be found to have committed.
The learned counsel went
on to submit that the scheme of the
Act and the Rules thus shows that
a person subject to the Act having
committed a misconduct amounting
to an offence within the meaning
of Chapter VI should ordinarily
be subjected to trial by a court martial.
And if that has been done, then
the power to act under Section 19 is
taken away. So also if the period of
limitation for trial by court martial is
over, then also by necessary implication
resort cannot be had to Section
19. We find it the difficult to agree
with the submission so made.
25. In Union of India v. S.K.
Rao, , the gross
misconduct alleged against the
delinquent officer was of having actively
abetted in the attempt of
brother officer’s daughter eloping
with a sepoy. An inquiry into the
grave misconduct was made by Court
of Inquiry. The Chief of the Army
Staff considered the conduct of the
officer unbecoming of an officer. He

414 Union Of India v. Harjeet Singh Sandhu 2001
also formed an opinion that trial of
the officer by a general court martial
was inexpedient and, therefore,
he ordered an administrative action
to be taken under Rule 14 by removing
the officer service. The order
of removal was put in issue on
the ground that the Army Act contained
specific provisions, viz. Section
45, for punishment for unbecoming
conduct and as Section 19 itself
suggests that power being “subject
to the provisions of this Act”, Section
19 would be subject to Section
45 and therefore the Central Government
would have no power to remove
a person from, the service in
derogation of the provision of Section
45. The plea was repelled by this
court holding that the power under
Section 19 is an independent power.
Though Section 45 provides that on
conviction by court martial an officer
is liable to be cashiered or to suffer
such less punishment as mentioned as
the Act, for removal from service under
Section 19 read with Rule 14, a
court martial is not necessary. The
court specifically held that the power
under Section 19 is an independent
power and “the two Section 19 and
45 of the Act, therefore, mutually exclusive.”
26. It is true that some of
the punishments provided by Section
71 as awardable by court martial
are not necessarily punishments
in the sense of the term as ordinarily
known to criminal jurisprudence,
but are penalties as known to
service jurisprudence. The fact remains
that such penalties have been
treated as punishments awardable by
court martial under Section 71 of the
Army Act, 1950. The power conferred
by Section 19 on the Central
Government and the power conferred
on court martial by Section 71
are clearly distinguishable from each
other. They are not alternatives to
each other in the sense that the exercise
of one necessarily excludes the
exercise of the order. The distinction
may be set out in a tabular form:-
Sr. No. Name of the candidate
Party affiliation No. of valid votes
polled
1. Rao Om Parkash, Engineer
BSP 5819
2. Sh. Jagat Singh JD[U] 113
3. Sh. Narender Singh INC
31755
4. Sh. J.D. Yadav HVP 500
5. Smt. Sanotsh D/o Sh. Bagwan
Singh INLD 31421
18
6. Sh. Yogesh Kumar RJD 205
7. Sh. Laxmi Narain SP 785
8. Sh. Vinod Kumar SJP [R] 212
9. Sh. Om Parkash Yadav IND
10. Sh. Om Parkash IND 178
11. Sh. Naresh Yadav IND 19855
12. Comrade Balbir Singh IND
476
13. Sh. Ram Singh IND 111
14. Sh. Rama Nand Sharma IND
194
15. Smt. Sanotsh W/o Yudhvir
IND 40
16. Sh. Satbir IND 92
17. Sh. Surender IND 18

27. It is relevant to note that
when an offence is triable by a criminal
court and also by a court martial,
each having jurisdiction in respect
of that offence, a discretion is conferred
by Section 125 on the officer
commanding to decide before which
court the proceedings shall be instituted.
The Parliament has obviously
made no such provision in the Act for
the exercise of a choice between proceeding
under Section 19 or convening
of a court martial. The element
of such option, coupled with the factors
which would be determinative
of the exercise of option, is provided
by Rule 14(2). When an officer,
subject to the Army Act, is alleged
to have committed a misconduct, in
view of Section 125 and Section 19
read with Rule 14, the following situation
emerges. If the alleged misconduct
amounts to an offence including
a civil offence, Section 125, vests
discretion in the officer commanding
the Army, Army Corpse Division or
independent Brigade in which the accused
person is serving or such other
officer as may be prescribed, to decide
before which court the proceedings
shall be instituted, i.e. before
a court martial or a criminal court.
If the decision is to have the delinquent
officer tried by a criminal court
and if the is acquitted by the criminal
court, then that is the end of
the matter. The pronouncement of
judicial verdict would thereafter exclude
any independent disciplinary
action being taken against the delinquent
officer on the same facts which
constituted the misconduct amounting
to an offence for which he was
charged before the criminal court.
415
In the event of his being convicted
if some further disciplinary action is
still proposed to be taken, then it is
the conduct of the officer leading to
his conviction (as found by the criminal
court) which is capable of being
taken into consideration by the
Central Government or the COAS
under sub-rules (3),(4) and (5) of
Rule 14 for the purpose of such action.
The facts forming the conduct
of the officer leading to his conviction
shall alone form basis of the formation
of opinion as to whether his further
retention in service is undesirable
whereupon he may be dismissed,
removed or compulsorily retired from
the service in the manner prescribed
by the said sub-rules. But, on the
other hand, if the initial decision was
to have the delinquent office tried not
by a criminal court but a court martial,
then under sub-rule (2) of Rule
14 it is for the Central Government or
the COAS to arrive at a satisfaction
whether the trial of the officer by a
court martial is expedient and practicable
whereupon the court martial
shall be convened. The Central Government
or the COAS may arrive at
a satisfaction that it is inexpedient
or impracticable to have the officer
tried by court martial then the court
martial may not be convened and additionally,
subject to formation of the
opinion as to undesirability of the officer
for further retention in the service,
the power under Section 19 read
with Rule 14 may be exercised. Such
a decision to act under Section 19
read with Rule 14 may be taken either
before convening the court martial
or even after it has been convened
and commenced subject to sat-

416 Union Of India v. Harjeet Singh Sandhu 2001
isfaction as to the trial by a court
martial becoming inexpedient or impracticable
at which stage the Central
Government or the COAS may
revert back to Section 19 read with
Rule 14. It is not that a decision
as to inexpediency or impracticability
or trial by court martial can be
taken only once and that too at the
initial stage only and once taken cannot
be changed in spite of a change in
fact situation and prevailing circumstances.
28. Section 127 was to be found
in Army as originally enacted which
provided that a person convicted or
acquitted by a court martial could be
tried again by a criminal court for
the same offence or on the same facts
subject to previous sanction of the
Central Government. The provision
was deleted by Act No.37 of 1992.
This deletion is suggestive of the legislative
intent to confer finality to the
finding and sentence of court martial
subject to their being confirmed
and not annulled. Power to confirm
finding and sentence of court martial
and the power to annual the proceeding
on the ground of being illegal or
unjust, both provisions read together
indicate that the finding and sentence
of court martial if legal and just
have to be ordinarily confirmed but
they may be annulled on the ground
of illegality or unjustness. An obligation
is cast on the confirming authority
to examine the legally and justness
of the proceedings before confirming
them. Questions of correctness,
legality and propriety of the order
passed by any court martial and
the regularity of any proceedings to
which the order of court martial relates
can be raised by way of petition
under Section 164. Once the finding
and the sentence, if any have been
confirmed, the court martial being a
special tribunal dispensing military
justice, it would not be permissible to
exercise additionally the power conferred
by Section 19 read with Rule
14 and to inflict a penalty thereunder
if the court has not chosen to inflict
the same by way of punishment
under Section 71. To permit such a
course would be violative of the principle
of double jeopardy and would
also be subversive of the efficacy of
the court martial proceedings, finding
and sentence. So long as final
verdict of guilty or not guilty, pronounced
by court material and confirmed
by competent authority so as
to be effective is not available, the
power to proceed under Section 19
read with Rule 14(2) exists and remains
available to be exercised.
29. The learned counsel for the
respondents submitted the term ‘impracticable’
has been used in Rule 14
in contradistinction with ‘impossible’
or ‘impermissible’ and therefore if a
trial by court martial though practicable
but has been rendered impermissible
because of a bar created by
the rule of limitation or rendered impossible
because of a fact situation
then resort cannot be had to Section
19 read with Sub-rule (2) of Rule
14 by treating the impossibility or
impermissibility as impracticability.
The learned counsel for the respondents
went on to submit that even
Dharam Pal Kukrety’s case required
reconsideration as in their submis-

sion it does not lay down the correct
law. It was urged that to the extent
Dharam Pal Kukrety’s case treats
‘impermissibility’ as impracticability
it is mistaken view . On the other
hand, the learned ASG submitted
Dharam Pal Kukrety’s case has correctly
laid down the law and mistake
has been committed by this court
in deciding Radha Krishan’s case by
over looking Dharam Pal Kukrety’s
case and therefore Radha Krishan’s
case must be held to have been decided
per incuriam.
30. Let us first examine what is
the meaning of term ‘impracticable’
in sub-rule(2) of Rule 14?
In Major Radha Krishan’s case
this court has held,
“...When the trial itself was
legally impossible and impermissible
the question of its being impracticable,
in our view cannot or
does not arise. ‘Impracticability’
is a concept different from ‘impossibility’
for while the latter is absolute,
the former introduces at all
events some degree of reason and involves
some regard for practice. According
to Webster’s Third New International
Dictionary ‘impracticable’
means not practicable; incapable
of being performed or accomplished
by the means employed or at command.
‘Impracticable’ presupposes
that the action is ‘possible’ but owing
to certain practical difficulties or
other reasons it is incapable of being
performed. The same principle will
equally apply to satisfy the test of
‘inexpedient’ as it means not expedient;
disadvantageous in the circumstances,
inadvisable, impolitic. It
417
must therefore be held that so long
as an offer can be legally tried by
a court martial the authorities concerned
may, on the ground that such
a trial is not impracticable or inexpedient,
invoke Rule 14(2). In other
words, once the period of limitation
of such a trial is over the authorities
cannot take action under Rule
14(2).”
31. The above passage shows
that the learned Judges went by the
dictionary meaning of the term ‘impracticable’,
placed the term by placing
it juxta position with ‘impossibility’
and assigned it a narrow meaning.
With respect to the learned
judges deciding Major Radha Krishan’s
case, we find ourselves not persuaded
to assign such a narrow meaning
to the term. ‘Impracticable’ is
not defined either in the Act or in
the Rules. In such a situation, to
quote from “Principles of Statutory
Interpretation” (Chief Justice G.P.
Singh, Seventh Edition, 1999, pp.
258-259), “When a word is not defined
in the Act itself, it is permissible
to refer to dictionaries to find
out the general sense in which that
word is understood in common parlance.
However, in selecting one out
of the various meanings of a word, regard
must always be had to the context
as it is a fundamental rule that
’the meanings of words and expressions
used in an Act must take their
colour from the context in which they
appear’. Therefore, ‘when the context
makes the meaning of a word
quite clear, it becomes unnecessary
to search for and select a particular
meaning out of the diverse meanings

418 Union Of India v. Harjeet Singh Sandhu 2001
a word is capable of, according to
lexicographers’. As stated by KR-
ISHNA IYER, J. ‘Dictionaries are
not dictators of statutory construction
where the benignant mood of
a law, and more emphatically, the
definition clause furnish a different
denotation’. In the words of JEE-
VAN REDDY,J.: ‘A statute cannot
always be construed with the dictionary
in one hand and the statute
in the other. Regard must also
be had to the scheme, context and
to the legislative history.’ JUDGE
LEARNED HAND cautioned ‘not to
make a fortress out of the dictionary’
but to more attention to ‘the sympathetic
and imaginative discovery’ of
the purpose or object of the statute
as a guide to its meaning.”
32. In Words and Phrases (Permanent
Edition, Vol.20, page 480-
461) it is stated that the term ‘impossible’
may sometimes be synonymous
with ‘impracticable’; ‘impracticable’
means ‘not practicable’, incapable
of being performed or accomplished
by the means employed or at
command; ‘impracticable’ is defined
as incapable of being effected from
lack of adequate means, impossible of
performance, not feasible; ‘impracticable’
means impossible or unreasonably
difficult of performance, and is a
much stronger term than ‘expedient’.
In Law Lexicon (P.Ramanatha Iyer,
Second Edition, page 889) one of the
meanings assigned to impracticable
is ‘not possible or not feasible’: at
any rate means something very much
more than ‘not reasonably practicable’.
In The New Oxford Dictionary
of English (1998, at p.918), imprac-
ticable (of a course of action) is defined
to mean ‘impossible in practise
to or carry our’. The same dictionary
states the usage of the term in these
words - ‘Although there is considerable
overlap, impracticable and impractical
are not used in exactly the
same way. Impracticable means ‘impossible
to carry out’ and is normally
used of a specific procedure or course
of action, ...Impractical, on the other
hand, tends to be used in more general
senses, often to mean simply ‘unrealistic’
or ‘not sensible’.
33. We may with advantage
refer to certain observations made
by the Constitution Bench (majority
view) in Union of India & Anr.v.
Tulsi Ram Patel, . Article 311(2),
proviso (b) contemplates a government
servant being dismissed or removed
or reduced in rank, dispensing
with a enquiry, if it is not ‘reasonably
practicable’ to hold such enquiry.
The Constitution Bench dealt
with meaning of the expression ‘reasonably
practicable’ and the scope
of the provision vide para 128 to
138 of its judgment. The Constitution
Bench pertinently noted that
the words used are ‘not reasonably
practicable’ and not ‘not practicable’
nor ‘impracticable’ (as is the term
used in sub-rule(2) of Rule 14 of the
Army Rules). Thus, the decision in
Tulsi Ram Patel’s case may not ipso
facto throw light on the issue before
us but some of the observation made
by the Constitution Bench can usefully
be referred to. A few illustrative
cases mentioned by the Constitution
Bench, wherein it may be ‘not reasonably
practicable’ to hold an en-

quiry, are:-
(i) a situation which is of the creation
of the concerned government
servant himself or of himself acting in
concert with others or his associates;
(ii) though, the government servant
himself is not a party to bringing
about of a situation yet the exigencies
of a situation may require
that prompt action should be taken
and not taking prompt action may
result in the trouble spreading and
the situation worsening and at time
becoming uncontrollable and necessary
concomitance of such an action
resulting from a situation which is
not of the creation of the authorities.
34. The Constitution Bench has
further held that disciplinary enquiry
is not expected to be dispensed with
lightly or arbitrarily or out of ulterior
motive or merely to avoid the holding
of an enquiry or because the department’s
case against the government
servant is weak and must fail. It is
not necessary that a situation which
the holding of an enquiry not reasonably
practicable should exist before
the disciplinary enquiry is initiated
against the government servant; such
a situation can also come into existence
subsequently during the course
of an enquiry. Reasonable practicability
of holding an enquiry is a matter
of assessment to be made by the
disciplinary authority. The satisfaction
of the authority is not immune
from judicial review on well settled
parameters of judicial review of administrative
decisions. However,if on
the satisfaction reached by the authority
two views are possible, the
court will decline to interfere.
419
35. As the term used in subrule
(2) of Rule 14 is ‘impracticable’
and not ‘not reasonably practicable’,
there is more an element of
subjectivity sought to be introduced
by this provision in the process of arriving
at the satisfaction, obviously
because the rule is dealing with the
satisfaction arrived at by the Central
Government or the Chief of the Army
Staff, in the matter of disciplinary action
on account of misconduct committed
by an officer of Army which
decision would have been arrived at
by taking into consideration the then
prevailing fact situation warranting
such decision after considering the reports
on officer’s misconduct.
36. The learned Additional Solicitor
General cited a few examples
wherein the trial by court martial
may be rendered ‘impracticable’, to
wit:-
i) a misconduct amounting to an
offence having been rendered not triable
by court martial by expiration
of the period of limitation prescribed
by Section 122;
ii) a court martial having been
dissolved after its commencement on
account of the number of officers required
by the Act to validly constitute
a court martial being reduce below
the minimum or any other exigency
contemplated by Section 117
occurring and the court martial cannot
be convened to commence afresh
on account of bar of limitation under
Section 122 having come into play;
iii) The Central Government, the
Chief of the Army Staff or any prescribed
officer having annulled the

420 Union Of India v. Harjeet Singh Sandhu 2001
proceedings of any court martial on
the ground that they are illegal or
unjust within the meaning of Section
165 of the Act and by that time the
bar of limitation under Section 122
having come into play;
iv) Any finding or sentence of a
court martial requiring confirmation
having been ordered to be revised
by order of the confirming authority
but in spite of such revision having
not been confirmed once again and s
subsequent revision of finding or sentence
being not contemplated by the
provisions of the Act; further a revised
(SIC) having been provided by
Section 160;
v) A person subject to the provisions
of Army Act having secured
a stay order from a court of law on
commencement of court martial and
by the time the stay order is vacated
by the court of law the bar of limitation
provided by Section 122 coming
into play.
37. On the meaning which we are
placing on the term ‘impracticable’
as occurring in Rule 14(2) we proceed
to provide resolutions to the several
problems posed by the illustrations
given by the learned ASG. According
to us:
38. In illustration (i) the expiry
of the period of limitation prescribed
by Section 122 renders the trial by
court martial ‘impracticable’ on the
wider meaning of the term. There
is yet another reason to take this
view. Section 122 prescribes a period
of limitation for the commencement
of court martial proceedings but the
Parliament has chosen not to provide
any bar of limitation on exercise of
power conferred by Section 19. We
cannot, by an interpretative process,
read the bar of limitation provided by
Section 122 into Section 19 of Act in
spite of a clear and deliberate legislative
abstention. However, we have to
caution that in such a case, though
power under Section 19 read with
Rule 14 may be exercised but the
question may still be - who has been
responsible for the delay? The period
prescribed by Section 122 may
itself be taken laying down a guideline
for determining the culpability of
delay. In spite of power under Section
19 read Rule 14 having become
available to be exercise on account of
a trial by a court martial having been
rendered impracticable on account of
bar of limitation created by Section
122, other considerations would assume
relevance, such as-whether the
facts or set of facts constituting misconduct
being three years or more
old have ceased to be relevant for exercising
the power under Section 19
read with Rule 14? If there was inaction
on the part of the authorities resulting
into delay and attracting bar
of limitation under Section 122 can it
be said that the authorities are taking
advantage of their own inaction
or default? If the answer be yes, such
belated decision to invoke Section 19
may stand vitiated, not for any lack
of jurisdiction but for colourable or
malafide exercise of power.
39. In illustration (ii), the court
martial has stood dissolved for fortuitous
circumstance for which no
one is to be blamed - neither COAS
nor the delinquent officer. The

delinquent officer, howsoever grave
his misconduct amounting to offence
may have been,would go scot free. It
would be fastidious to hold that bar
of limitation under Section 122 would
also exclude the exercise of power under
Section 19 read with Rule 14.
40. In illustrations (iii) and (iv)
also, in our opinion, the exercise of
power under Section 19 read with
Rule 14 cannot be excluded. The
finding and sentence of the court
martial are ineffective unless confirmed
by the confirming authority.
The Act not contemplate that the
finding and sentence of a court martial
must necessarily be confirmed
merely because they have been returned
for the second time. Section
165 vests power in the Central
Government, the COAS and any prescribed
officer, as the case be, as
the case may be, to annul the proceedings
of any court martial if the
same are found to be illegal or unjust.
The delinquent officer cannot be allowed
to escape the consequences of
his misconduct solely because court
martial proceedings have been adjudged
illegal or unjust for the second
time. The power under Section
19 read with Rule 14 shall be available
to be exercised in such a case
though in an individual case the exercise
of power may be vitiated as an
abuse of power. The option to have
a delinquent officer being tried by
court martial having been so exercise
and finding as to guilt and sentence
having been returned for or against
the delinquent officer by the court
martial for the second time, on just
and legal trial, ordinarily such find-
421
ing and sentence should be acceptable
so as to be confirmed. Power to
annul the proceedings cannot be exercised
repeatedly on the sole ground
that the finding or the sentence does
not meet the expectation of the confirming
authority. Refusal to confirm
is a power to be exercised, like all
other powers to take administrative
decision, reasonably and fairly and
not by whim,caprice or obstinacy.
Exercising power under Section 19
read with Rule 14 consequent upon
court martial proceedings being annulled
for the second time because
of having been found to be illegal or
unjust, the exercise would not suffer
from lake of jurisdiction though
it may be vitiated on the ground
of ‘inexpediency’ within the meaning
of Rule 14(2) or on the ground
of abuse of power or colourable exercise
of power in a given case.
41. In illustration (v), the ball
will be in the court of the delinquent
officer. Once stay order has been vacated,
in spite of the expiry of limitation
for commencement of court martial
proceedings under Section 122 of
the Act, the option to have the delinquent
tried by a court martial or to
invoke Section 19 read with Rule 14,
depending on the facts and circumstances
of an individual case, would
still be available to the Central Government
or the COAS. In Union of
India & Ors. v. Major General
Madan Lal Yadav (Retd.) , , this
court has invoked applicability of the
maxim nulls commode capers potest
de injury sua propria - no man can
take advantage of his own wrong - to
hold that the delinquent officer hav-

422 Union Of India v. Harjeet Singh Sandhu 2001
ing himself created a situation withholding
commencement of trial, he
would be estopped from pleading the
bar of limitation and the trial commenced
on vacating of the judicial order
of restraint of court martial shall
be a valid trial. The learned Additional
Solicitor General pointed out
that although in the category of case
illustrated by (v) above in case of an
offender who ceases to be subject to
the Act, the Parliament has by Act
No.37 of 1992 amended sub-section
(2) of section 123 so as to exclude the
time during which the institution of
the proceedings in respect of the offence
has been stayed by injunction
or order from, computing the period
of limitation but a similar provision
is not made is not made in respect of
the period of limitation for trial by
court martial of any person subject
ot the Act, as the respondents herein
are. This deliberate omission by the
Parliament to provide for exclusion
from calculating period of limitation
in Section 122 on the lines of the provision
for execution in Section 123
lings strength to his submission that
in as much as person subject to the
Act would be amenable to Section
19 of the act even after the expiry
of the period of limitation for trial,
provision for extension in period of
limitation under Section 122 was unnecessary.
If the expiry of the period
of limitation for commencement
of court martial was to be given effect
to, the consequence to follow would
be that the person would not be liable
to be inflicted with a wide variety
of punishments awardable by
court martial under Section 71; nevertheless
he would be liable to be dis-
missed or removed from service under
Section 19, though that action
shall be capable of being taken subject
to formation of opinion as to the
undesirability of person for further
retention in service. We find merit in
the submission of the learned ASG.
42. Having thus explained the
law and clarified the same by providing
resolutions to the serveral illustrative
problems posed by the
learned ASG for the consideration of
this Court (which are illustrative and
not exhaustive), we are of the opinion
that the expiry of period of limitation
under Section 122 of the Act
does not ipso facto take away the exercise
of power under Section 19 read
with Rule 14. The power is available
to be exercised though in the
facts and circumstances of an individual
case, it may be inexpedient to
exercise such power or the exercise
of such power may stand vitiated if
it is shown to have been exercised
in a manner which may be called
colourable exercise of power or an
abuse of power, what at times is also
termed in administrative law as fraud
on power. A misconduct committed
a number of years before, which
was not promptly and within the
prescribed period of limitation subjected
to trial by court martial, and
also by reference to which the power
under Section 19 was not promptly
exercised may cease to be relevant by
long lapse of time. A subsequent misconduct
though less serious may aggravate
the gravity of an earlier misconduct
and provide need for exercise
of power under Section 19. That
would all depend on the facts and cir-

cumstances of an individual case. No
hard and fast rule can be laid down
in that behalf. A broad proposition
that power under Section 19 read
with Rule 14 cannot be exercised
solely on the ground of court martial
proceedings having not commenced
within the period of limitation prescribed
by Section 122 of the Act,
cannot be accepted. In the scheme of
the Act and the purpose sought to be
achieved by Section 19 read Rule 14,
there is no reason to place a narrow
construction on the term ‘impracticable’
and therefore on availability or
happening of such events as render
trial by court martial impermissible
or legally impossible or not practicable,
the situation would be covered
by the expression-the trial by court
martial having become ‘impracticable’.
43. Exercise of power under Section
19 read with Rule 14 is open
to judicial review on well settled parameters
of administrative law governing
judicial review of administrative
action such as when the exercise
of power is shown to have been vitiated
by malafides or is found to be
based wholly on extraneous and/or
irrelevant grounds or is found to be a
clear case of extraneous and/or abuse
to power or what is sometimes called
fraud on power,i.e.where the power
is exercised for achieving an oblique
end. The truth or correctness or the
adequacy of the material available
before the authority exercising the
power cannot be revalued or weighed
by the court while exercising power
of judicial review.Even if some of the
material, on which the action is taken
423
is found to be irrelevant, the court
would still not interfere so long as
there is some relevant material available
on which the action can be sustained.
The court would presume
the validity of the exercise of power
but shall into hesitate to interfere if
the invalidity or unconstitutionally is
clearly demonstrated. If two views
are possible, the court shall not interfere
by substituting its own satisfaction
or opinion for the satisfaction
or opinion of the authority exercising
the power.
44. We are also of the opinion
that Major Radha Krishna’s case
lays down propositions too brand to
be acceptable to the extent in holds
that once the period of limitation for
trial by court martial is over, the
authorities cannot take action under
Rule 14(2). We also do not agree
with the proposition that for the purpose
of Rule 14(2), impracticability
is a concept different from impossibility
(or impermissibility, for that matter).
The view of the court in that
case should be treated as confined to
the fact and circumstances of that
case alone. We agree with submission
of the learned Additional Solicitor
General that the case of Dharam
Pal Kukrety being a Three-Judges
Bench decision of this court, should
have been placed before the Two-
Judges Bench which heard and decided
Major Radha Krishan’s case.
45. Reverting back to the two
cases under appeal before us, we are
of the opinion that High Court was
not right in allowing the two writ petitions
filed by Harjeet Singh Sandhu
and Harminder Kumar, respectively,

424 Union Of India v. Harjeet Singh Sandhu 2001
by placing reliance on the decision
of this court in Major Radha Krishan’s
case and holding that the exercise
of power under Section 19 read
with Rule 14 by the COAS was vitiated
solely on account of the bar of
limitation created by Section 122 of
the Act. Both the judgments of the
High Court, which are under appeal,
are accordingly set aside and the writ
petitions filed by the two respondents
are directed to be dismissed. However,
consistently with the observation
made by this court vide para
18 of Major Dharam Pal Kukrety’s
case, we would like to impress upon
the Chief of the Army Staff and the
Central Government,as the case may
be, that the incidents leading to ac-
tion against the two respondents are
referable to late 17s. By this time
a period of more than 20 years has
elapsed in between. Before any decision
to initiate disciplinary action
against any of the two respondents is
taken, the conduct and behavior of
the respondents is taken, the conduct
and behavior of the respondents concerned
during the intervening period
shall also be taken into consideration
while deciding upon the desirability
of proceeding further in the matter
at this belated stage, and keeping in
view, of course, the requirement of
military discipline and the high traditions
of the Indian Army. No order
as to the costs.

Chapter 36
Union Of India v. R.K.
Sharma 2001
Union Of India And Ors. v. R.K.
Sharma on 9 October, 2001 Equivalent
citations: AIR 2001 SC 3053,
2001 (91) FLR 1006, JT 2001 (9)
SC 76 Author: S Variva Bench: K
Thomas, S Variave
JUDGMENT
S.N. Variva, J.
1. Leave granted.
2. Heard parties.
3. These Appeals are against an
Order dated 16th March, 2001 by
which two Appeals, one filed by the
Appellant (herein) and the other filed
by the Respondent (herein), were dismissed.
4. Briefly stated the facts are as
follows:
5. The Respondent was, at
the relevant time, serving as Deputy
Commandant of Assam Rifles. On
28th November, 1986 he was served
with a charge sheet. Thereafter a
General Court Martial was held and
the Respondent was found guilty of
four of the charges. The penalty of
dismissal from service was imposed
on the Respondent. The Central
Government dismissed the Appeal
filed by the Respondent then filed a
Writ Petition in the High Court. By
an Order dated 14th October, 1999, a
Single Judge of the High Court Martial
had been properly conducted and
that there was no breach of principles
of natural justice. It was further held
that the four charges had been established
in the General Court Martial
and that the Respondent was liable
for punishment. It was however held
that having regard to the nature and
degree of the offences established the
extreme and severe punishment of
dismissal from service was violative
of the provisions of Section 72 of the
Army Act, 1950. The order of dismissal
was set aside and the matter
was sent back to the General Court
Martial for awarding any lesser punishment
than dismissal from service.
It was directed that the Respondent
would not receive any salary and allowances
for the period when he was
out of service.

426 Union Of India v. R.K. Sharma 2001
6. Both the Appellant and the
Respondent filed Appeals. The Appellate
Court refused to grant any
stay to the Appellants herein. The
Appellants, therefore, approached
this Court. This Court by an Order
dated 7th August, 2000 granted
an interim stay. This was then confirmed
by an Order dated 16th October,
2000. By the Order dated 16th
October, 2000 the High Court was
requested to dispose of the Appeals
expeditiously.
7. The Division Bench has, in the
impugned Order, relied upon the authority
of this Court in the case of
Bhagat Ram v. State of H.P. , for
proposition that the penalty must be
commensurate with the gravity
of mis-conduct and that any penalty
disproportionate to the gravity of
mis-conduct would be violative of Article
14 of the Constitution. To be
noted that this case was not under
the Army Act, but in respect of a
civil servant.
8. The Division Bench also relied
upon the following observations in
the case of Ranjit Thakur v. Union
of India :
“Judicial review generally speaking,
is not directed against a decision,
but is directed against the “decision
making process”. The question of
choice and quantum of punishment is
within the jurisdiction and discretion
of the Court Martial. But the sentence
has to suit the offence and the
offender. It should not be vindictive
or unduly harsh. It should not be so
disproportionate to the offence as to
shock the conscience and amount in
itself to conclusive evidence of bias.
The doctrine of proportionality, as
part of the concept of judicial review,
would ensure that even on an aspect
which is, otherwise, within the exclusive
province of the Court Martial,
if the decision of the Court even
as to sentence is an outrageous defiance
of logic, then the sentence would
not be immune from correction. Irrationality
and perversity are recognized
grounds of judicial review.”
9. Based on the above authorities
the Division Bench has held that the
sentence awarded was too harsh considering
the nature of the allegation
and the charge established. The Division
Bench has also directed that
if the original General Court Martial
was not available, as two of its
members have retired, then another
General Court Martial could be constituted
with available members for
purpose of imposing a lesser punishment.
Being aggrieved by this Order
the Appellants have filed this Appeal.
10. In order to consider the correctness
of the impugned Order it is
necessary to see the charges which
have been held proved. The four
charges read as follows:
“First Charge AN ACT PREJU-
DICIAL TO
Army Act GOOD ORDER AND
MILITARY
Section 63 DISCIPLINE
In that he,
at field, on 31 Oct 84 while being
the Officer Commanding ’A’ Coy, 11
Assam Rifles on receipt of signal No.
O 2140 dated 31 Oct 84 from Tac

HQ 11 Assam Rifles directing Coy
Cdrs to visit fwd posts immediately
to check alertness and report all OK
did not himself visit the fwd post but
improperly detailed JC-111310 Sub
GS Panthi, the Senior JCO of the
Coy for the task.
Second Charge BEING AN OF-
FICER
Army Act BEHAVING IN A
MANNER
Section 45 UNBECOMING HIS
POSITION
AND EXPECTED OF HIM.
In that he,
at field, between the period 14
Oct 84 to 30 Nov 84 drew ration for
personal consumption of Rs. 930.37
(Rupees Nine hundred thirty and
paise thirty seven) only from the
Quartermaster ’A’ Coy but did not
pay for the same.
Third Charge IN A TOUR DI-
ARY
Army Act MADE BY HIM
KNOWINGLY
Section 57(a) MAKING A
FALSE
STATEMENT
In that he,
At field, on 17 Dec 84 while being
the Officer Commanding ’A’ Coy
in his Tour Diary stated that he left
Man going on 20 Oct 84 for Tatadege
well knowing the said statement to
be false. Fourth Charge IN A TOUR
DIARY
Army Act MADE BY HIM
KNOWINGLY
Section 57(a) MAKING A
FALSE
STATEMENT
In that he,
427
at field, on 07.01.85, while being
the October Commanding ’A’ Coy
in Tour Diary stated that he left
Manigong on 26 No 84 for Sheet well
knowing the said statement to be
false.”
11. At this state the Sections of
the Army Act, 1950, on which these
charges are framed, may be looked
at. The first charge is based on Section
63. Section 63 provides for violation
of good order and discipline.
Under Section 63 if such a charge
is found proved, then on conviction
by Court Martial, the person found
guilty could be sentenced to suffer
imprisonment for a term which may
extend to seven years or to some
other lesser punishment. The second
charge is under Section 45. It is in
respect of unbecoming conduct. The
punishment is dismissal or such lesser
punishment as is mentioned in the
Act. The third and fourth charges
are under Section 57. They relate
to falsifying official documents and
making false declarations. On conviction
the punishment could be for
a term which may extend to 14 years
or any other lesser punishment.
12. Section 72 of the Army Act,
1950, reads as follows:
“72. Alternative punishments
awardable by court martial.- Subject
to the provisions of this Act, a court
martial may on convicting a person
subject to this Act of any of the offences
specified in Secs. 34 to 68 inclusive,
award either the particular

428 Union Of India v. R.K. Sharma 2001
punishment with which the offence is
state in the said sections to be punishable
or in lieu thereof, any one of
the punishments lower in the scale
set out in Sec. 71, regard being had
to the nature and degree of the offence.”
13. Under Section 71 various
punishments are prescribed according
to scale. One of them, at item
(e) is dismissal from service. Above
this at items (a) to (d) are: (a) death;
(b) transportation for life or for any
period not less than seven years; (c)
imprisonment, either rigorous or simple,
for any period not exceeding
fourteen years; (d) cashiering, in the
case of officers. Various other punishments
with which we are not concerned
are prescribed after item (e).
Thus it is to be seen that dismissal
from service is a lesser punishment
that imprisonment for either 7 years
or 14 years as contemplated under
Sections 57 and 63 of the Army Act,
1950.
14. The law on the subject is
aptly set out in the case of Union of
India v. Major A. Hussain . This
was a
case where a Major had been
court martialled and dismissed from
service. The High Court quashed the
Court Martial and the sentence on
the ground that the delinquent had
been denied a reasonable opportunity
to defend himself. This Court,
after considering various Army Orders,
Rules and Provisions of the
Army Act, concluded that the Court
Martial had been properly held. It
was then held as follows:
“23. Though court martial proceedings
are subject to judicial review
by the High Court under Article
226 of the Constitution the court
martial is not subject to the superintendence
of the High Court under
Article 227 of the Constitution. If
a court martial has been properly
convened and there is no challenge
to its composition and the proceedings
are in accordance with the procedure
prescribed, the High Court or
for the matter any court must stay its
hands. Proceedings of a court martial
are not to be compared with the
proceedings in a criminal court under
the Code of Criminal Procedure
where adjournments have become a
matter of routine though that is also
against the provisions of law. It has
been rightly said that court martial
remains to a significant degree, a specialised
part of overall mechanism by
which the military discipline is preserved.
It is for the special need for
the armed forces that a person subject
to Army Act is tried by court
martial for an act which is an offence
under the Act. Court Martial
discharges judicial function and
to a great extent is a court where
provisions of Evidence Act are applicable.
A court martial has also
the same responsibility as any court
to protect the rights of the accused
charges before it and to follow the
procedural safeguards. If one looks
at the provisions of law relating to
court martial in the Army Act, the
Army Rules, Defence Service Regulations
and other Administrative Instructions
of the Army, it is manifestly
clear that the procedure prescribed
is perhaps equally fair if nor

more than a criminal trial provides to
the accused. When there is sufficient
evidence to sustain conviction, it is
unnecessary to examine if pre-trial
investigation was adequate or not.
Requirement of proper and adequate
investigation is not jurisdictional and
any violation thereof does not invalidate
the court martial unless it
is shown that the accused has been
prejudiced or a mandatory provision
has been violated. One may usefully
refer to Rule 149 quoted above.
The High Court should not allow the
challenge to the validity of conviction
and sentence of the accused when evidence
is sufficient, court martial has
jurisdiction over the subject-matter
and has followed the prescribed procedure
and is within its power to
award punishment.”
15. As stated above, both the
single Judge as well as the Division
Bench have held that the four
charges set out have been proved and
that he Respondent was guilty of
those charges. Having so held it was
not open to the Court to have interfered
in the sentence. The awarding
of sentence is within the powers of
the Court Martial. These are not
matters in which Court should interfere.
16. In our view, the observation
in Ranjit Thakur’s case (supra) extracted
above, have been misunderstood.
In that case the facts were
such that they disclosed a bias on
the part of the Commanding Officer.
In that case the Appellant Ranjit
Thakur had fallen to of favour
of the Commanding Officer because
he had complained against the Com-
429
manding Officer. For making such a
complaint the Commanding Officer
had sentenced him to 28 days rigorous
imprisonment. While he was
serving the sentence he was served
with another charge-sheet which read
as follows:
“Accused 1429055-M Signalman
Ranjit Thakur of 4 Corps Operating
Signal Regiment is charged with -
Army Act Disobeying lawful
command given by his Section 41(2)
superior officer
In that he
At 15.30 hrs on May 29, 1985
when ordered by JC 106251-P Sub
Ram Singh, the orderly Officer of the
same Regiment to eat his food, did
not so.”
17. On such a ridiculous charge
rigorous imprisonment of one year
was imposed. he was then dismissed
from service, with the added disqualification
of being declared unfit for
any future civil employment. It was
on such gross facts that this Court
made the observations quoted above
and held that the punishment was
so strikingly disproportionate that it
called for interference. The above
observations are not to be taken to
mean that a Court can, while exercising
powers under Article 226 or
227 and/or under Article 32, interfere
with the punishment because it
considers the punishment to be disproportionate.
It is only in extreme
cases, which on their face show perversity
or irrationality that there can
be judicial review. Merely on compassionate
grounds a Court should
not interfere.

430 Union Of India v. R.K. Sharma 2001
18. We find that the lower Court
erred in coming to the conclusion
that the punishment of dismissal was
violative of provisions of Section 72
of the Army Act, 1950. Section
72 merely provides that the Court
Martial may, on convicting a person,
award either the punishment which is
provided for the offence or any of the
lesser punishment set out in the scale
in Section 71. Section 72 does not
set out that in all cases, a lesser punishment
must be awarded. In other
words, merely because a lower punishment
is not granted, it would not
mean that the punishment was violative
of Section 72. In any case, in this
case, under Section 63 there could
have been a punishment of imprisonment
for a term which may extend to
7 years. Under Section 57 there could
have been a punishment for imprisonment
for a term which may extend
to 14 years. The charges under Sections
57 and 63 had been held to be
proved. The General Court Martial
could have imposed a punishment of
imprisonment. The General Court
Martial has chosen to give a lower
punishment of dismissal from service.
The Court below should not have interfered
on the erroneous assumption
that provisions of Section 72 of the
Army Act, 1950 had been violated.
19. Even otherwise, in our view,
both the Courts below have erred in
coming to the conclusion that the
sentence awarded was too harsh considering
the nature and degree of the
offence established. The first charge,
as set to here in above, indicates that
the Respondent, who was the Commanding
Officer of ’A’ Company 11
Assam Rifles had received a signal
to visit the forward post, check alterness
and report all OK. It is not
denied that the signal had been received.
It has been proved that the
Respondent did not visit the forward
post. The Respondent improperly
detailed JCO of the Commanding
Officer breaches orders received from
the Head Quarters how can discipline
be maintained in the Army.
20. Mr. J. M. Sharma submitted
that during the period, i.e. in
October 1984, there was an operation,
known as operation “Ran Vijay”,
in progress. He submitted that
as a result of the operation the troops
were already on high alert. He submitted
that ’A’ Company had four
forward posts. He submitted that
just a few days before the receipt of
the signal, the Respondent had already
visited two of the forward posts
viz. Tatadege and Henakar. He submitted
that as the troops were already
on high alert and as be had just
returned back from two of the forward
post the Respondent sent the
JCO to check alertness in the remaining
two forward posts. He further
submitted that there was to be
a visit, to the ’A’ Company, of a
VIP and the Respondent was therefore
required to remain in Manigong.
He submitted that for that reason
also the Respondent could not personally
visit the forward posts. It
was further submitted that in that
area apart from ’A’ Company, there
were three other Companies, namely
’B’, ’C’ and ’D’ Companies. He submitted
that the Commandants of ’C’
Company and ’D’ Company had also

not visited the forward post after receipt
of signal. He submitted that
therefore the charge was not that
serious and that this was the factor
which was taken into consideration
by both the Courts below. Mr.
Sharma further submitted that even
the other charges were not a very serious
nature inasmuch as the second
charge only related to non payment
of a small sum of Rs. 930.37. He
submitted that the third and fourth
charges only related to making entries
in the tour Diary maintained by
the Respondent.
21. We are unable to accept the
submissions of Mr. Sharma, It has to
be immediately noted that the Company
Commandants of ’C’ and ’D’
Companies had stayed back after getting
permission from the Head Quarters.
The Respondent did not apply
for any permission. The further case
that the Respondent was required to
stay back because a VIP was to visit
the ’A’ Company is also of no substance.
The VIP was to visit only
on 5th November. By that time the
JCO, who had been improperly deputed
by the Respondent, had already
visited the forward posts and
come back. Thus the Respondent
could also have visited the post and
returned well in time to receive the
VIP. It is also not possible to accept
the case that the Respondent had already
visited two of the forward posts
a few days earlier. It is to be seen
that the third Charge is in respect
of making a false entry in the tour
diary to show that the Respondent
had gone to the forward posts. That
charge was proved. This showed
431
that a false entry had been made to
show that the Respondent had gone
to those posts when in fact he had
not gone there. Not only did the
Respondent not obey the command
from the Headquarters but he falsified
records in order to make out a
case that he had already gone to two
of the forward posts. These are very
serious affiances. These are offences
for which the General Court Martial
would have been justified in awarding
imprisonment. The General Court
Martial took a lenient view by merely
dismissing him from service. There
was just no justification for interference
by the High Court.
22. Mr. Sharma next submitted
that the General Court Martial
was not properly convened. When
asked whether such a contention was
taken up in the Writ Petition, Mr.
Sharma placed reliance on the following
observations in the Judgment of
the Single Judge:
“The petitioner vehemently argued
that preliminary hearing when
the summary evidence was recorded,
the provisions of rules 22, 23 and 24
of the Army Rules, 1954, as well as
Army Order 70/84 were not strictly
followed. In this context, he pointed
out that the Army Order 70/80 prescribed
a form which was required to
be filled up by the Commanding Officer
at the time of hearing of a charge
against a person subjected to Army
Act, 1950, but the said from was not
duly filled up by the Commanding
Officer.”
23. We are unable to accept that
the above observations show that in
the Writ Petition there was a chal-

432 Union Of India v. R.K. Sharma 2001
lenge to the constitution of the General
Court Martial. The above observations
are in respect of a preliminary
hearing under rules 22, 23 and
24 of the Army Rules, 1954. This is
a hearing which precedes the Court
Martial. In any event the High Court
has held against the Respondent on
this point and no Appeal was filed
by him. This point not having been
raised in the Writ Petition cannot
now be urged before this Court for
the first time. We therefore did not
permit Mr. Sharma to argue this
point.
24. Under these circumstances,
we set aside the Order passed by the
learned single Judge as well as the
impugned Order. The Writ Petition
filed by the Respondent shall stand
dismissed. There will be no Order as
to costs.

Chapter 37
Union Of India v. P.D.
Yadav 2001
Union Of India And Anr. v. P.D.
Yadav on 16 October, 2001 Equivalent
citations: 2001 IXAD SC 30,
2001 (91) FLR 961, JT 2001 (8) SC
617 Author: S V Patil Bench: B Kirpal,
S V.Patil, P V Reddi
JUDGMENT
Shivaraj V. Patil, J.
1. In short the facts leading to
filing of these appeals, are as stated
below.
Civil Appeal No. 7805/1997
The respondent herein joined
Navy as a Sailor in April, 1965 and
was commissioned in October, 1980.
On account of certain alleged misconduct
and irregularities, he was tried
by General Court Martial on five
charges. He was found guilty of the
charge 2, 3, 4 and 5 and consequently
a penalty of dismissal from service
was imposed on him on 26.2.1990.
He was given a show-cause notice
on 21.6.1991 under Regulation 15(2)
on the Navy (Pension) Regulations,
1964 as to why his pensionary bene-
fits should not be forfeited. He sent
a reply on 24.7.1991. The appellants
informed him on 7.5.1992 that the action
will be taken soon pursuant to
the show-cause notice issued. However,
without waiting any further, he
filed a writ petition on 20.1.1993 in
the High Court. After the filing of
the said writ petition, an order was
passed on 28.3.1994 forfeiting 50% of
the pensionary benefits. The High
Court partly allowed his writ petition
and remanded the case giving certain
directions to the appellants by the order
dated 4.3.1997. Feeling aggrieved
by the same, the appellants are before
this Court in this appeal.
Civil Appeal No. 7806/1997
The respondent was commissioned
in the Indian Army on
30.6.1963 and was due to retire on
31.3.1989. On 17.2.1988, he was tried
by General Court Martial on certain
charges and was dismissed from
service on 13.6.1988 under Section
71 of the Army At. He submitted
papers for payment of pension

434 Union Of India v. P.D. Yadav 2001
stating that he had qualifying service.
Since pension was not given
to him, he filed Civil Writ Petition
No. 1249/90 in the High Court on
3.3.1990. On 16.4.1991, a show-cause
notice was issued under Section 16(a)
of the Pension Regulations of the
Army (Part-I Proposing forfeiture of
pension on the ground that he was
dismissed from service. He submitted
reply to the said show-cause notice.
However, the President of India
by order dated 22.7.1992 under said
Regulation 16(a) forfeited 50% of the
pensionary benefits. He filed Writ
Petition No. 2866/90 for amendment
of the writ petition challenging the
said order. The High Court by the
impugned order quashed the order
dated 22.7.1992 and directed the appellants
to reconsider his case in the
light of the directions given in the
judgment. Hence this appeal.
Civil Appeal No. 7807 of 1997
The respondent was commissioned
in the Army as Engineer
Graduate Officer on 11.1.1968. He
was tried by General Court Martial
on the allegation of splitting purchase
orders for shelters, to bring
them within the financial limits and
for making purchases at rates higher
than scheduled and sanctioned rates.
After trial by General Court Martial
he was cashiered on 11.3.1994 and
was directed to undergo rigorous imprisonment
for two months. He forwarded
papers on 29.6.1994 to the
authorities for grant of pension. On
22.2.1995, a show-cause notice was
issued to him under Regulation 16(a)
of Army Pension Regulations for forfeiture
of pension. He claimed to
have sent a reply to the show cause
notice but the order was passed forfeiting
his pensionary benefits stating
that he had not sent any reply to the
show-cause notice. The High Court
quashed the impugned order forfeiting
is pension and directed the appellants
for re-consideration and passing
fresh order. Aggrieved by the said
order of the High Court dated 4th
March, 1997, this appeal is filed.
Civil Appeal No. 7808 of 1997
The respondent herein entered
Army service and was commissioned
on 12.6.1960. He was promoted
to Selection Grade rank of Acting
Brigadier in December, 1986. He
retired from services on 31.5.1990
on attaining the age of superannuation.
He was tried by General
Court Martial between 26.5.1990 to
26.9.1990 on certain charges of misconduct.
Charges 2, 3, 5, 9 10
were held proved. Consequently he
was ordered to be (i) cashiered (ii)
to suffer rigorous imprisonment for
six months and (iii) to forfeit all
arrears of pay and allowances and
other public money due to him at
the time of cashiering. The first two
of the sentences were confirmed by
the Chief of Army Staff on 12.2.1991
but the third one was remitted. Consequently,
it stood set aside. After
retirement on 31.5.1990, he was initially
paid provisional pension w.e.f.
1.6.1990. However, a show-cause notice
was issued to him on 13.11.1992
under Regulation 16(a) of Army Regulations.
He sent a reply to the said
notice. Since no order was passed for
quite some time, he sent reminders
to the authorities. A final order was

passed by the President on 4.1.1994
forfeiting the entire pensionary benefits.
Questioning this order, he filed
Civil Writ Petition No. 2813/1994
in the High Court. The High Court
quashed the order impugned in the
writ petition and directed the appellants
to reconsider and pass fresh orders
in the light of certain directions
given. Hence this appeal is filed by
the appellants aggrieved by the impugned
judgment.
2. Mr. Mukul Rohtagi, learned
Additional Solicitor General, urged
that -
1. Section 71 and Regulation
16(a) are distinct and operate in different
fields. While Section 71(h)
contemplates a punishment at the
conclusion of the Court Martial, Regulation
16(a) contemplates a stage
subsequent to the awarding of punishment
by Court Martial and its
confirmation; Regulation 16(a) deals
with the pension of an officer, who is
cashiered, dismissed or removed from
service.
2. Though the Army Pension
Regulations are non-statutory
in character the pensionary benefits
are provided for and payable under
them; these very Regulations provide
for forfeiting pension in given situations;
in other words, the Regulations
which provide for grant of pension
also provide for taking it away
on justifiable ground; further these
Regulations may not have statutory
force but they are not contrary to any
statutory provisions under the Act or
the Rules.
3. The High Court committed
435
an error in stating that the authorities
did not consider in forfeiting pension,
partly or fully, that the services
of the respondents up to the date of
commission of offences were satisfactory
and that the Court Martial did
not inflict the punishment of forfeiture
of services.
4. The orders passed by the President
of India forfeiting pension were
neither arbitrary nor unreasonable;
in fact they were passed after taking
into consideration the nature of offences,
the punishments awarded and
all relevant factors.
5. (a) The High Court has also
failed to see that the right to grant
pension is not with the Court Martial
under Section 71; the grant of
pension is within the powers of the
President under Regulations, who
can grant/forfeit pension to the officers
who are cashiered, dismissed,
removed or called upon to retire.
(b) In passing the orders forfeiting
pension of the respondents,
partly or fully, well established procedure
was followed in that a show
cause notice was issued; on receipt of
reply to the show cause notice from
the respondents and after consideration
orders were passed.
6. The High Court was also not
right in saying that the services of the
respondents cannot be termed as unsatisfactory
because of their involvement
in the cases of misconduct; the
High Court was not right in giving
directions to the appellants to reconsider
the matter after issuing a supplementary
show cause notice.
3. He added that Army Pension

436 Union Of India v. P.D. Yadav 2001
Regulation 16(a) and Navy Pension
Regulation 15(2) are similar in content
except that the authority to pass
order under Regulation 16(a) vests
with the President and whereas under
Regulation 15(2) it vests in the
Central Government; the Army Pension
Regulations are non-statutory
and Navy Pension Regulations are
statutory; hence the same submissions
cover the cases dealt with Army
Pension Regulations and Navy Pension
Regulations.
4. In short and substance the
arguments advanced by the learned
counsel on behalf of the respondents
are:-
1. Pension is not a bounty or
a charity given by the State; it is
a deferred portion of compensation
for services rendered; right to receive
pension is a Fundamental Right
and is right to property under Article
300A of the Constitution of India
which cannot be taken away except
by authority of law.
2. Under the Army Act it is
only the Court Martial, which can
order for forfeiture of service for purposes
of increased pay, pension or
any other prescribed purpose under
Section 71(h) or 71(k) of the Army
Act; in case service of army personnel
is terminated on the administrative
side (without holding court martial)
then the statutory authority to decide
forfeiture or the grant of these
benefits is the competent authority
under Rule 14(5) and 15 of the Army
Rules. Therefore, there is no question
of applying non-statutory pensionary
regulations to the respondents;
alternatively Regulation 16(a)
is inconsistent with and contrary to
Section 71(h) and 71(k) of the Army
Act and Rules 14(5) and 15 of the
Army Rules.
3. If the Court Martial has not
thought fit to forfeit the pensionary
benefits then those benefits cannot
be forfeited by the non-statutory regulations
and there has been undue
delay in passing the order forfeiting
the pension in some cases.
4. The orders passed forfeiting
the pensionary benefits, fully or partially,
as the case may be, are unreasonable
and without proper application
of mind to the facts and circumstances
of the case.
5. Since no punishment was
imposed forfeiting pensionary benefits
under Section 71(h) or (k) by
the General Court Martial, it was
not open to pass orders forfeiting
pension, partially or fully, exercising
power under Regulation 16(a); it
may amount to imposing punishment
twice in respect of the same charges
of misconduct.
5. It may be necessary to narrate
in brief as to the nature of charges
framed against the respondents and
the punishment imposed on them to
appreciate the contentions urged on
behalf of the respondents as to the
validity, reasonableness and justification
in passing the orders forfeiting
pension.
6. Five charges were framed
against P.D. Yadav (respondent in
CA 7805/97). He was found guilty
in respect of charges 2 to 5. The said
charges 2 to 5 are:-
2. Did on Twenty ninth day of

September one thousand nine hundred
eighty nine at about 1401 hours
wilfully disobey the lawful command
of Lieutenant Commander (Special
Duties Communication) Man Singh
Rawat (81917 Z), his superior officer
in the office of the Officer-in-Charge,
Communication center, Delhi when
ordered to go out of the said office
and to come afterwards and thereby
committed an offence punishable under
Section 47(a) of the Navy Act,
1957.
3. Did on the Twenty ninth day
of September one thousand nine hundred
eighty nine at about 1402 hours
behave in a disorderly manner in the
office of the Officer-in-Charge. Communication
center, Delhi and thereby
committed an offence punishable under
Section 48(c) of the Navy Act,
1957.
4. Did on the Twenty ninth
day of September one thousand nine
hundred eighty nine at about 1402
hours strike Lieutenant Commander
(Special Duties Communication)
Man Singh Rawat (81917 Z) his superior
officer in the Office of the Officerin-Charge.
Communication center,
Delhi and thereby committed an offence
punishable under Section 45(a)
of the Navy Act, 1957.
5. Did on the Twenty ninth day
of September one thousand nine hundred
eighty nine at about 1403 hours
use violence against Lieutenant Commander,
(Special Duties Communication)
Man Singh Rawat (81917 Z)
his superior officer in the Office of
the Officer-in-Charge. Communication
center, Delhi and thereby committed
an offence under Section 45(c)
of the Navy Act, 1957.
437
7. Twelve charges were framed
against B.S. Ahluwalia (respondent
in CA 7806/97) but the Court Martial
found him guilty of charges 5, 7
and 10 and with certain variations of
charges 1, 2 and 3. They are:-
1. At Dehradun on 22.2.1985,
while employed as CWE, Dehradun
and having already given technical
sanction for Table Dining (OR) FD-
165 @ 450/- per table, with intent
to defraud, vide Contract Agreement
No. CWE/CLT 23 of 84-85, entered
into an agreement with M/s.
Doon Furnishers for 496 dining tables
@ Rs. 760/- per table and thereby
caused loss to the State to the tune
of Rs. 1,38,800/-.
2. At Dehradun, on 21.6.1985,
while employed as CWE, Dehradun
with intent to defraud vide CA
No. CWE/DDN/6 of 85-86, finalized
a contract agreement with Allied
Traders for supply and fixing of ceiling
fans at an exorbitant rate of Rs.
498/- per fan, while DGSD contract
rate was Rs. 413.56 per fan.
3. At Dehradun, on 21.6.1985,
while employed as CWE Dehradun
with intent to defraud vide CA No.
CWE/CLT/7 of 85-86 finalised a
contract agreement with M/s. Allied
Traders for supply and fixing of
ceiling fans at an exorbitant rate of
Rs.488/- per fan, while DGS&D contract
rate was Rs. 413.56 per fan.
5. At the place and date mentioned
in the Charge No. 4, improperly
accepted the contract agreement
with the altered rates as mentioned
in the said charge.

438 Union Of India v. P.D. Yadav 2001
7. At the place and date mentioned
in the charge 6 (21.6.1985) improperly
accepted the contract agreement
with the altered rates as mentioned
in the said charge.
10. At Dehradun between
29.3.1985 and 5.7.1985, while employed
as CWE, Dehradun, contrary
to the provisions of para 24
of the General conditions of contract
(IAFW-1815Z) instead of claiming
composition from M/s. Doon Furnishers
for failure to complete the
work by due date, improperly allowed
extension of time by 15 days
and 30 days for phases I and II respectively.
8. Thirteen charges were framed
against E.K. Sugathan (respondent
in CA 7807/97) and was found guilty
of charges 6, 10, 11 and 12 and of
charges 1, 2, 3, 4, 5, 7, 8 and 9 with
certain variations. He was sentenced
to be cashiered and to suffer rigorous
imprisonment for two months.
However, while confirming the finding
and sentence GOC-in-C. Northern
Command remitted the sentence
of rigorous imprisonment. The said
charges are:-
1. He at field between 28th January,
1991 to 6th March, 1991 while
being Garrison Engineer 671 Engr.
Park when ordered to fabricate 28
SL shelters at the cost of Rs. 10
lacs with intent to defraud, splitted
the purchases of said order by placing
the supply orders in contravention to
para 748 of Military Engr. Services
Regulations 1968 edition read with
HQ Northern Command letter No.
12846/2/policy/II/SB dt. 31 October,
1975 which prohibited splitting
of the purchase order to avoid the
necessity of obtaining the sanction
of higher authority with reference to
the total amount of the said order.
2. He at field, between 25th January,
1991 to 6th March, 1991 while
being Garrison Engineer 571 Engr.
Park when ordered to purchase 5 Sl
Shelters, 6 bathing cubicles flock and
6 latrine cubicles valued at Rs. 10
lacs, with intent to defraud splitted
the said purchase order by placing
the supply orders in contravention to
para 748 of Military Engr. Services
Regulations 1968 edition read with
the Northern Command letter No.
42346/2/policy/11/Eng. Dated 31
October, 1975 which prohibit splitting
of the purchase order to avoid
the necessity of obtaining the sanction
of higher authority with reference
to the total amount of the said
amount.
3. He, at field, between 12th
March, 1991 to 25th March, 1991,
while being Garrison Engineer 571
Eng. Park when ordered to purchase
10 Sl shelters valued Rs. 10 lacs, with
intent to defraud, splitted the said
purchase order by placing the supply
orders in contravention to para 748
of Military Engineer Services Regulations
edition read with HQ Northern
Command letter No.
42346/2/policy/11/E3 dt. 31 October,
1975 which prohibited splitting
of the purchase order to avoid
the necessity of obtaining the sanction
of higher authority with reference
to the total amount of the said
order.
4. He, at field between Febru-

ary 1, 1991 to February 18, 1991
while being Garrison Engineer 571
Engr. Park when ordered to purchase
713 chassis valued Rs. 4.281
lacs, with intent to defraud splitted
the said purchase order by placing
the supply order in contravention to
para 748 of Military Engineering Services
Regulations 1968 edition read
with HQ Northern Command letter
No. 42346/2/policy/11/EB dated
31st October, 1975 which prohibited
splitting of the purchase order to
avoid the necessity of obtaining the
sanction of higher to authority with
reference to the total amount of the
said order.
5. He, at field, between February
1, 1991 to February 18, 1991,
while being GE 571 Engr. Park,
when directed by Chief Engineer
Northern Command vide letter No.
42392/203/E3 RR dated November
17, 1990 to procure 713 chassis, without
authority purchased 213 timber
planks of various sizes for which no
sanction existed.
6. He, at field, on 13 Feb. 1991,
when Garrison Engineer 571 Engr.
Park with intent to defraud placed
supply order No. 3027/169 IWS dt.
13th February, 1991 for ”Steel door
size 6’-10” double leaf type each divided
in the four parts for fixing
of glass sheets of size 12-3/4”x20 4
Nos. and PGI sheets 27”x20” duly
fixed and welded provided with two
lower bolt 6” sliding door belt duly
fixed for looking arrangements. The
frame of door made out of angle
iron 40x4x40x6mm thick door leaf
duly fixed with three hinges of 4” to
each leaf with two bow handle of 9”
439
size and leaf made out of angle iron
32x32x6mm qty 20 on M/s. CDS
Traders Malhard Road, Garhi Udhampur
at the rate of Rs. 1650/each
well knowing that the rate approved
by him was higher than the
prevailing market rate of Rs. 1329/each.
7. He, at field, on 12th
March, 1991, when Garrison Engineer,
571 Engr. Park with intent
to defraud placed supply order No.
3027/185/IWS dt. 12th March, 1991
for ”Rear corner column made out
of ISMB 6”x3”x10’ long welded with
base plate 10”x10”x10mm thick having
4 holes of 7/8” dia and gusset
plate 4”x4”x6” mm thick welded to
base plate. Top plate 7”x7”x10mm
thick having 2 holes of 9/10” dia
welded at tope cleats of angle iron
50x50x6mm 9” long 4 nos. having
two holes of 9/16” dia welded to the
column at place sq. 10, on M/s. Indow
Traders, Transport Yard, Udhampur,
at the rate of each well
knowing that the rate approved by
him was higher than the prevailing
market rate of Rs. 1147.50 each Rs.
2680/-.
8. He, at field, on 13th
March, 1991, when Garrison Engineer,
571 Engr. Park with intent
to defraud placed the supply order
No. 3027/199/IWS dt. 13th
March, 1991 for ”front right hand
side column made out of ISMB
6”x3”x10” long welded with base
plate 10”x10”x10mm thick having
4 holes of 7/8” dia and gusset
plate 4”x4”x6mm thick welded to the
base plate, top plate 7”x7”x10mm
thick having 2 holes of 9/10” dia

440 Union Of India v. P.D. Yadav 2001
welded atop. 4 cleats of angle iron
50x60x6mm 6” long having 2 holes
of 9/16” dia welded to the column
at places, qty. 10 on M/s. Mushtak
Hardware, Garhi Udhampur at the
rate of Rs. 2680/- each well knowing
that the rate approved by him
was higher than the prevailing market
rate of Rs. 1147.50 each.
9. He, at field on 16th March,
1991, Garrison Engineer, 571 Engr.
Park with intent to defraud placed
the supply order No. 3027/205/IWS
dt. 16th March, 1991 for middle column
made of ISMB 6”x3”x10 long
welded with base plate 10”x10”mm
thick having four holes of 7/8”
dia and gusset plate 4”x4”x6mm
thick having four holes of 7/8” dia
and gusset plate 4”x4”x6mm thick
welded to the base plate, top plate
7”x7”x10mm thick having two holes
of 9/10 welded at top. 4 cleats of
angle iron 50x50x6mm 6” long having
two holes of 9/10” dia welded to
the column at places qty 10, on M/s.
Vickey Enterprises Dhar Road, Udhampur
at the rate of Rs. 2680/each
well knowing that the rate approved
by him was higher than the
prevailing market rate of 1147.50
each.
10. He, at field, on 12th March,
1991, when Garrison Engineer, 571
Engr. Park with intent to defraud
placed the supply order No.
3027/183/IWS dated 12th March,
1991 for middle side made out of
at 50x50x6mm welded to 6mm thick
plate of size 14x7” 1 nos. at joints,
6 cleats of AI 50x50x6mm 6” long
welded attend to each truss having
9/16” dia hole for fixing columns 6
nos cleats angle iron 50x50x6mm 4
”long having two holds 9x16” dia
welded to truss for fixing of purl in
at places” qty. 10 on M/s. Bansi
Dhar and Sone near Krishna Mandir,
Adarsh Colony, Udhampur at the
rate of Rs. 27770/- each well knowing
that the rate approved by market
rate of Rs. 2218.72 which was higher
than the prevailing market rate.
11. He, at field on 1 Feb.,
1991, when Garrison Enginner, 571
Engr. Park with intent to defraud
placed the supply order No.
3027/148/IWS dt. 1 Feb., 1991 for
”timber plank partal 11x11”x8-3/4”
free from cracks qty. 60 on M/s. Akbar
Furniture House and Saw Mills,
Garhi, Udhampur, at the rate of Rs.
570/- each well knowing that the rate
approved by him was higher than the
prevailing market rate of Rs. 429/each.
12. He, at field, on 12th
Feb.,. 1991, when Garrison Engineer,
571 Engr. Park with intent
to defraud placed the supply
order No. 3027/162/IWS dt.
12th Feb., 1991 for sal wood plants
3600mx 225mmx100mm” qty. 25 on
M/s. Sharma Saw Mills Ram Nagar
Chowk. Udhampur at the rate
of Rs. 1250/- each well knowing that
the rate approved by him was higher
than the prevailing market rate of Rs.
858/- each.
9. A.K. Malhotra (respondent
in CA 7808/97) was tried on elven
charges. He was not found guilty of
charges 1, 2, 4 and 6 to 11, He was
found guilty of charges 3 and 5. He
was sentenced to be cashiered and his
five years service was forfeited for the

purpose of pension. On revision he
was not found guilty of charges 1, 6,
7, 8 and 11 but was found guilty of
charges 2, 9 and 10 with exceptions.
Consequently there was revision in
sentence also sentencing him to be
cashiered, to suffer rigorous imprisonment
for six months and to forfeit
all the arrears of pay due to him at
the time of his cashiering. Confirming
authority while confirming the
finding and sentence, had revised and
remitted the sentence of forfeiture of
all arrears of pay na allowances and
other public money due to him at the
time of his cashiering on 13.2.1991,
which was promulgated on 16.3.1991.
Charges 2, 3, 5, 9 and 10 are:-
2. At Madras, between Aug.
87 and Nov. 87, when DDST HQ
ATNKK & G Area. improperly ordered
dispensation of sample testing
from Composite Food Laboratory,
of 41.098 tons of Tea (CTC)
locally purchased by Supply Depot,
Madras, from M/s. Vickey Enterprises,
Madras, contrary to Army
HQ letter No. 72312/III/2/SI-4
dated 11 Nov. 86.
3. At Madras between October,
1987 and November, 1987,
when DDST HQ ATNKK and G
Area, improperly ordered dispensation
of sample testing from Composite
Food Laboratory or Defence Research
Laboratory (Material), Kanpur,
of 19.85 IL of Cresol Liquid
Black locally purchased from
M/s. Gautam Chemicals, Madras
and M/s. Testo Chemicals, Madras,
contrary to Para 1086 of ALC Training
Volume II (Supplies) 1968.
5. At Madras, between 24th Oc-
441
tober, 1987 and 14th December, 1987
when DDST HQ ATNKK & G Area,
improperly and without justification
obtained approval for local purchase
of 29 KL of Cresoli Liquid Black from
MG ASC HQ Southern Command,
when there was no emergent requirement
of local purchase of that quantity
of the said item.
9. At Madras, between 31
Oct. 1987 and 25 November, 1987
when DDST HQ ATNKK & G
Area, improperly allowed supply Depot,
Madras, to split-up the sanctioned
local purchase of 19.85 KL
of Cresoli Liquid Black valued at
Rs. 2,67.975.00 (Rupees two lakhs
sixty seven thousand nine hundred
seven five only), in order to bring
the same within the financial powers
of MG ASC, HQ Southhern Command,
contrary to Rule 133 of Financial
Regulation Part I (Volume I).
1983. Which prohibits such splittingup.
10. At Madras, between November
1987 and February 1988, When
DDST HQ ATNKK & G Area, with
intent to defraud, directed Supply
Depot, Margao, to split-up the sanctioned
local purchase of 86, 190.800
Kgs of Meat Tinned valued at Rs.
61,19,451.23 (Rupees sixty one lakhs
nineteen thousand four hundred fifty
one and paise twenty three only), in
order to bring the same within the
financial powers of MG ASC, HQ
Southern Command.
10. We notice the relevant provisions
of the Acts and Regulations:-
The Army Act 1950
”71. Punishments awardable by

442 Union Of India v. P.D. Yadav 2001
courts martial.- Punishments may be
inflicted in respect of offences committed
by persons subject to this Act
and convicted by courts martial, according
to the scale following, that is
to say,-
(a) ...
(b) ...
(c) ...
(d) ...
(e) ...
(f) ...
(g) ...
(h) forfeiture of service for the
purpose of increased pay, pension or
any other prescribed purpose;
(i) ...
(j) ...
(k) forfeiture in the case of a person
sentenced to cashiering or dismissal
form the service of all arrears
of pay and allowances and other public
money due to him at the time of
such cashiering or dismissal;
(l) ...”
Pension Regulations for the
Army, 1961
”1. Unless otherwise provided,
these Regulations shall apply to the
personnel of the Army and all claims
to pension, gratuity or allowances
shall be regulated by the regulations
in force at the time of an individual’s
retirement, release, resignation, discharge,
death etc., as the case may
be.”
”2-A Unless there be something
repugnant in the subject of context,
the terms defined in this Chapter are
used in the regulations in the sense
here explained:-
(1) to (3) ...
(4) Pension shall include gratuity
except when it is used in contradiction
to term gratuity.
(5) to (7) ...”
”3. The full rate of pension or
gratuity provided for in these Regulations
shall not be granted unless
the service rendered has been satisfactory.
If the service has not been
satisfactory, the competent authority
may make such reduction in the
amount of pension or gratuity as it
thinks proper.”
”4. Future good conduct shall be
an implied condition of every grant
of a pension or allowance.”
”16. (a) When an officer who
has to his credit the minimum period
of qualifying service required to earn
a pension, is cashiered or dismissed
or removed from the service, his/her
pension, may at the discretion of the
President, be either forfeited or be
granted at a rate not exceeding that
for which he/she would have otherwise
qualified, had he/she retired on
the same date.”
The Navy Act, 1957
”81. (1) The following punishments
may be inflicted under this
Act, namely:-
(a) ...
(b) ...
(c) dismissal with disgrace from
the naval service;
(d) ...
(e) dismissal from the naval service;

(f) to (1) ...
(m) forfeiture of pay, head money,
bounty, salvage, prize money and allowances
earned by and all annuities,
pensions, gratuities, medals and decorations
granted to, the offender or
of any one or more of the above particulars;
also in the case of desertion,
of all clothes and effects left by the
deserter in the ship to which he belongs;
(h) ...
(2) ..”
The Navy (Pension) Regulations,
1964
”15. Officers dismissed, discharged,
etc.- (1) No pension shall be
granted to an officer who is dismissed
with disgrace from service.
(2) In the case of an officer who
is dismissed otherwise than with disgrace
from the service, the question
whether any pension shall be granted
and if so, the rate of such pension
shall be the rate of such pension shall
be decided by the Central Government,
provided that hate pension,
if granted shall not exceed the rate
which would have been admissible to
him if he had retired on the same
date.
(3) ...”
11. It is useful to look at the position
of law emerging from various
decisons. The facts of the case in Lt.
Col (T.S.) Harbans Singh Sandhu v.
Union or India & Ors., [Writ Petition
No. 553 of 1972 decided on
November 22, 1978] were that a General
Court Martial tried the petitoner
and imposed a punishment of
443
cashiering under Section 71(d) of the
Army Act and no further punishment
was imposed under Section 71(h) of
the Army Act for forfeiture of service
for the purpose of increased pay,
pension or any other prescribed purpose;
he applied for grant of pensionary
benefits; the authorities did
not respond; hence, he filed writ petiton
seeking direction to the authorities
for granting gratuity and pension
due. Both the sides pointed to
Regulation 16(a). From the records,
it was found that no order had been
passed under the said Regulation. In
the absence of passing any order under
Section 16(a), the Court directed
the respondent to pay the sum due
towards gratuity and pension. Under
Section 71(h) a punishment of forfeiture
of service for the purpose of pension
could be passed but neither that
punishment was imposed on the petitioner
nor order was passed under
Regulation 16(a) forfeiting his pensionary
benefits. In those circumstances,
the Court gave direction as
stated above.
12. It is clear from the
said judgment that the question of
law, whether regulations being nonstatutory
could be enforced fcr denying
pension; whether those regulations
were contrary to the provisions
of the Act or Rules or whether when
punishment wa snot imposed under
SEction 71(h) or (k), even then pension
could be forfeited under Regulation
16(a) that arise for consideration
in the present cases, were neither
raised nor decided.
13. In the case of Major G.S.
Sodhi v. Union of India also, re-

444 Union Of India v. P.D. Yadav 2001
lief was granted relying on the decision
of Harbans Singh Sandhu mentioned
above without deciding questions
of law as is clear from para 3 of
the Judgment. This judgment proceeded
on the ground that in Harbans
Singh Sandhu’s case, a question
of law that if no other penalty
of forfeiting the pensionary benefits
was passed under Section 71, pensionary
benefits could not be withheld;
but in Harbans Singh Sandhu’s
case, this question was not decided; it
was only noticed as a fact that no further
penalty was imposed under Section
71(h) of the Act. The direction
was given in that case as no order
had been passed forfeiting pension
under Regulation 16(a). No principle
of law was decided in the said cases.
In this view, these two judgments
do no support hte respondents. The
Full Bench of the High Court itself
in Malhotra’s case has said that in
G.S.Sodhi’s case, no legal issue was
decided and, therefore, it cannot be
a precedent. The High Court in Yadav’s
case specifically referring tot he
cases of Harbans Singh Sandhu and
G.S. Sodhi held that they were not
applicable to support the case of the
petitoner.
14. This Court in Major (Retired)
Hari Chand Pahwa v. Union
of India & Anr. while dealing with
the specific contention that pension
have no statutory force and pensionary
benefits could not be forfeited
under Regulation 16(a), has
in clear terms in para 5 stated that
” We do not agree with the second
contention advanced by the learned
counsel. The provision of Regulation
16(a) are clear. Even if it is assumed
that the Pension Regulation have no
statutory force, we fail to understand
how the provisions of the said Regulations
are contrary to the statutory
provisions under the Act or the
Rules. The pension has been provided
under these Regulations. It is
not disputed by the learned counsel
that pension was granted to the appellant
under the said Regulations.
The regulations which provided for
the grant of pension can also provide
for taking it away on justifiable
grounds. A shoe-cause notice
was issued to the appellant. his
reply was considered and thereafter
the President passed the order forfeiting
the pension and death-cumretirement
gratuity. We see no infirmity
in the order. The appeal is,
therefore dismissed.” We are in respectful
agreement with the view expressed
in the aforementioned decision
that the Regulations, which provide
for grant of pension, can also
provide for taking it away not arbitrarily
but subject to satisfying the
conditions incorporated in the Regulations.
15. In Union of India & Ors.
v. Brig. P.K. Dutta (Retd.) [1995
Supp. (2) SCC 29] while specifically
dealing with the effect of order
passed under Section 71(h) and (k)
and the order passed under Regulation
19(a) directly arising on the contentions
as are raised in the present
cases held that clause (h) of Section
71 contemplates forfeiture of service
for the purpose of increased pay, pension
or any other prescribed purpose
and is wholly different from Regula-

tion 16(a). It is further stated that
a reading of both these provisions
clearly brings out the distinct fields
occupied by them and this Court
went on to say:-
”Regulation 16(a) contemplates
a situation where an officer is
cashiered, dismissed or removed from
service and provides how his pension
is to be dealt with. Whereas
Section 71(h) provides the punishments
which can be awarded by the
Court Martial. Section 71(h) contemplates
a punishment awarded at
the conclusion of the Court Martial
while Regulation 16(a) contemplates
a stage subsequent to the awarding of
punishment of Court Martial and its
confirmation. The nature and content
of both the impositions is altogether
different and distinct. So is
the field occupied by clause (K) of
Section 71 wholly distinct from Regulation
16(a). We are, therefore, unable
to see any inconsistency between
Section 71(h) and Regulation 16(a).”
In this judgment, a reference is
made to the case of Major Hari
Chand Pahwa (supra) and affirmed
that the pension regulations, though
non-statutory in character, the pensionary
benefits are provided for and
are payable under the said regulations;
therefore, the same can be
withheld or forfeited as provided by
the regulations. In this judgment, it
is also stated that Army Rule 14 has
absolutely no relevance in regard to
the forfeiture of pension under Regulation
16(a).
16. Yet again in the case of Union
of India & Ors. v. Lt. Col. P.S.
Bhargava it is stated that Regulation
445
16(a) gives the President the power
either to forfeit or to reduce the rate
of pension in the event of an officer
being cashiered, dismissed or removed
from the service. Reference is
made to Regulation 4 to say that conduct
of the officer must be good as a
condition for the grant of pension or
allowance.
17. Dealing with the ’contention
that withholding the pension when
the respondent had been Court Martial
led and dismissed, would amount
to double jeopardv, this Court in
Union of India & Ors. v. Subedar
Ram Narain & Ors. , did not find
any merit in the contention and held
thus:-
”Section 71 of the Army Act provides
for different types of punishments
which could be inflicted in respect
of an offence committed by a
person subject to the Army Act and
convicted by courts martial. The
punishments are of varying degrees,
from death as provided by Section
71(a) to stoppage of pay and allowance
as provided by Section 71(j)
is of a lesser nature than that of
dismissal from service as provided
by Section 71(e). When punishment
under Section 71(j) is imposed, no
recourse can be had to Regulation
113(a), because the said regulation
applly only if an order of dismissal is
passed against the person concerned.
In other words Section 71(j) and Regulation
113(a) cannot apply at the
same time. On the other hand, when
the punishment of dismissal is inflicted
under Section 71(e) the provisions
of Regulation 113(a) become
attracted. The result of punishment

446 Union Of India v. P.D. Yadav 2001
is that the benefit of pension or gratuity
which is given under the regulation
is taken away. The order of
dismissal under the provisions of the
Army Act in the case of an employee
like the respondent would make him
ineligible for pension or gratuity. For
a person to be eligible to the grant
of pension or gratuity, it is imperative
that he should not have been dismissed
from service. The dismissal
under the provisions of the Army Act
is therefore, a disqualification for getting
pension or gratuity.”
18. The High Court in the impugned
judgments has held that Regulation
16(a) is not inconsistent with
Section 71(h) and (k) of the Army
Act and that they cover different
fields: so also Regulation 16(a) and
Rules 14(5) and 15 of the Army
Rules operate in different fields. The
High Court has upheld the validity of
Army Pension Regulation 16(a) and
Navy Pension Regulation 15(2). The
High Court also did not find that
these Regulations were inconsistent
with or contrary to relevant provisions
of the Act relating to punishment
referred to in the judgment. We
approve these conclusions of the High
Court. The High Court quashed the
impugned orders forfeiting pension
on the ground that prior satisfactory
service of the respondents, coupled
with the fact that Court Martial did
not consider it appropriate to impose
the punishment under Section 71(h),
was not taken into consideration by
the authorities. The High Court was
of the view that although a person
may be cashiered or dismissed from
service; that itself was not enough
to forfeit pension and that prior satisfactory
services of the respondents
ought to have been taken into consideration
before passing the order forfeiting
pension fully or partly. The
High Court also held that provisions
of Regulation 15(2) of the Navy Pension
Regulation are not ultra vires
of the provisions of Section 81, 82,
47 and 27 of the Navy Act and that
where the Court Martial has imposed
a punishment (like dismissal) which
does not entail forfeiture of pension,
it is still open to the competent authority
under the Regulation 15(2) to
forfeit a part or whole of the pension
by following due procedure. With regard
to the delay in passing orders
under the pension regulations, the
High Court observed that the orders
should be passed within a reasonable
period, preferably within six months
of cessation of service. Of course,
whether there was delay or not, in
passing the order forfeiting pension
depends on the facts of each case.
However, the High Court having regard
to the facts of the cases did not
consider the delay unreasonable and,
therefore, declined to quash the orders
of forfeiting pension merely on
the ground of delay in passing them
and rightly so in our opinion.
19. Section 71 of the Army Act
provides for various kinds of punishments
which may be imposed for
offences committed by persons subject
to the Act and convicted by
Court Martial which may vary from
death to stoppage of pay and allowances.
In terms of Army Pension
Regulation 16(a) and Navy Pension
Regulation 15(2), pension may

e forfeited partly or fully subject
to the conditions mentioned therein.
These Regulations are independent
and the authority to grant or forfeit
pension is the President of India
and the Central Government respectively.
As rightly found by the High
Court, the said Regulations are neither
inconsistent with not contrary
to the provisions of the Army Act
or the Navy Act as the case may
be. The said Regulations and the
provisions dealing with the punishments
under the Acts cover different
fields and have different purposes
to serve. Punishments are imposed
after trial on the basis of the misconduct
proved. The pension regulation
deal with the grant or refusal
of pension depending on satisfactory
qualifying service earned by a person
and depending on the nature of punishments
imposed, mentioned in the
Regulations. The Regulations come
into play at a stage subsequent to
the imposition of punishment. No
doubt, pension is not a bounty but
it is the earning of a person after
satisfactory completion of qualifying
service and if not otherwise disentitled.
Under Section 71(h), a punishment
of forfeiture of service for the
purpose of increased pay, pension or
any other prescribed purpose, can be
imposed. If forfeiture of service has
the effect of reducing total qualifying
service required to earn pension,
a person concerned is disentitled for
pension itself. In other cases, it may
have bearing in regard to claim for
increased pay or any other purpose.
If by virtue of such punishment itself,
a person is not entitled for any pension,
the question of passing an order
447
forfeiting pension under Regulation
16(a) may not arise. As per Section
71(k), in case of a person sentenced
to cashiering or dismissal from the
service, a further punishment of forfeiture
of all arrears of pay and allowances
and other public money due
to him at the time of such cashiering
or dismissal may be imposed. Clause
(k) of Section 71 does not speak of
pension unlike clause (h) of the same
Section.
20. The argument that since
no punishment was imposed under
clause (k) by the authorities, although
it could have been done, then
is no warrant to pass an order forfeiting
pension under the Army Pension
Regulations in respect of same offence
cannot be accepted. As already
noticed above, the provisions relating
to punishments under the Acts
and pension Regulations operate in
different fields. Clause (k) refers to
forfeiture of arrears of pay and allowances
and other public money due
to a person at the time of cashiering
or dismissal. Pension is one, which
becomes due subsequent to retirement
or termination of service subject
to satisfying certain conditions of
satisfactory qualifying service and if
not otherwise disentitled for claiming
pension. Firstly, clause (k) does not
speak of pension as such: it speaks
of all arrears. pay, allowances and
other public money due to a person.
It cannot be said that on the date
of cashiering or dismissal there could
be any arrears of pension. Section
73 of the Army Act enables the authorities
to impose punishments in
combination. Merely because pun-

448 Union Of India v. P.D. Yadav 2001
ishment is not imposed under clause
(h) or (k) of Section 71 and other
punishments are imposed, it does not
mean that the President is deprived
of his power and jurisdiction to pass
order under Regulation 16(a); so also
the Central Government under Regulation
15(2)( of the Navy Pension
Regulations taking note of the punishment
imposed under Section 81
of the Navy Act. In a case where
punishment is imposed under Section
81(m) of the Navy Act forfeiting pension
and/or gratuity, need for passing
an order forfeiting pension under
Regulation 15(2) of the Navy (Pension)
Regulations may not arise. But
that does not mean that in cases of
punishments imposed, which are covered
by Regulation 15 the Central
Government is deprived of its power
to pass appropriate order under the
said Regulation, when such power is
specifically conferred on the Central
Government under the very Regulations,
which enables granting of pension
and/or gratuity. It is rather
not possible to accept the contention
that a General Court Martial and
confirming authorities imposing punishments
can debar the President or
the Central Government from passing
orders as provided for specifically
and expressly under the Pension Regulations.
21. A contention, though feebly,
was advanced on behalf of some
of the respondents that forfeiture of
pension in addition to the punishment
imposed under Section 71 of the
Army Act amounted to double jeopardy.
In our view, this contention
has no force. There is no question
of prosecuting and punishing a person
twice for the same offence. Punishment
is imposed under Section 71
of the Army Act after trial by Court
Martial. Passing an order under Regulation
16(a) in the matter of grant
or forfeiture of pension comes thereafter
and it is related to satisfactory
service. There is no merit in the
contention that the said Regulation
is bad on the ground that it authorized
imposition of a double penalty;
may be in a given case, penalty of
cashiering or dismissal from service
and the consequential forfeiture of
pension may be harsh and may cause
great hardship but that is an aspect
which is for the President to consider
while exercising his discretion
under the said Regelation. May be
in his discretion, the President may
hold that the punishment of cashiering
or dismissal or removal from service
was sufficient having regard to
circumstances of the case and that a
person need not be deprived of his
right to pension. A crime is a legal
wrong for which an offender is liable
to be prosecuted and punished
but only once for such a crime. In
other words, an offender cannot be
punished twice for the same offence.
This is demand of justice and public
policy supports it. This principle
is embodied in the well-known
maxim ”Nemo debet bis vexari, si
contest curiae quod sit prouna et sadem
causa” meaning no one ought
to be vexed twice if it appears to
the court that it is for one and the
same cause. Doctrine of double jeopardy
is a protection against prosecution
twice for the same offence. Under
Articles 20-22 of the Indian Con-

stitution, provisions are made relating
to personal liberty of citizens and
others. Article 20(2) expressly provides
that ”No one shall be prosecuted
and punished for the same
offence more than once.” Offences
such as criminal breach of trust, misappropriation,
cheating, defamation
etc., may give rise for prosecution on
criminal side and also for action in
civil court/other forum for recovery
of money by way of damages etc., unless
there is a bar created by law.
In the proceedings before General
Court Martial, a person is tried for
an offence of misconduct and whereas
in passing order under Regulation
16(a) for forfeiting pension, a person
is not tried for the same offence
or misconduct after the punishment
is imposed for a proved misconduct
by General Court Martial resulting
in cashiering, dismissing or removing
from service. Only further action is
taken under Regulation 16(a) in relation
to forfeiture of pension. Thus,
punishing a person under Section 71
of the Army Act and making order
under Regulation 16(a) are entirely
different. Hence, there is no question
of applying principle of double jeopardy
to the present cases.
22. Our discussion and reasoning
with reference to scope and application
of Army Pension Regulation
16(a) will equally apply in relation
to Navy Pension Regulation 15(2).
23. It is to be noted that the
punishment imposed on these respondents
by Court Martial, as confirmed,
have become final as the respondents
have not questioned their
validity and correctness any further.
449
The High Court having rejected all
other contentions raised by the respondents,
partly allowed their claim
on the ground that the otherwise
prior satisfactory services of the respondents
till the date of imposition
of various punishments on them
was not taken into consideration by
the President or the Central Government,
as the case may be, in passing
the orders under the Pension Regulations
forfeiting their pension. Mainly
on this ground, the High Court directed
the authorities to reconsider
the cases of the respondents and pass
orders after issuing supplementary
show-cause notices. Consideration of
prior satisfactory service of a person
till the date of imposition of punishment
of cashiering or dismissal or removal
from service cannot be read
into Army Pension Regulation 16(1)
or Navy Pension Regulation 15(2).
For exercise of power under the said
Regulations, what is to be seen is
whether the very terms of these Regulations
are satisfied or not. A plain
reading of these Regulations shows
that in case of a person who has
been cashiered or dismissed or removed
from service, at the discretion
of the President under Regulation
16(a) and in case of an officer
who is dismissed otherwise than with
disgrace from the service, the Central
Government under Regulation 15(2)
of the Navy Pension Regulations can
pass order forfeiting pension, partly
or fully. The very fact that such
punishment is imposed on a person
for proved misconduct after trial by
the Court Martial, itself shows his
unsatisfactory service. In our view,
the High Court has read something

450 Union Of India v. P.D. Yadav 2001
more in these Regulations in insisting
for considering prior satisfactory
service of a person up to the date
of imposition of punishment. Which
is not required by the very Regulations.
We may clarify here itself that
in these cases we are only considering,
so far as they relate to grant
or forfeiture of pension in relation
to and in the context of regulation
16(a) of Pension Regulations for the
Army and Regulation 15(2) of the
Navy (Pension) Regulations. Under
Regulation 2-A(4) of the Army Pension
Regulations ’pension’ is defined
as including gratuity except when it
is used in contradiction to the term
gratuity. Hence the pension and gratuity.,
as defined, are included for
consideration. Regulation 3 shows
that full rate of pension of gratuity
shall not be granted unless the service
rendered has been satisfactory;
if the service has not been satisfactory
the competent authority may reduce
the rate of pension or gratuity
as it thinks proper. Thus, Regulation
3 and Regulation 16(a) of
the Army Pension Regulations deal
with distinct and different situations.
Further, Regulation 4 states that future
good conduct shall be an implied
condition for every grant of pension
or allowances. Consideration of satisfactory
service may be relevant in
terms of Regulation 3 for granting
pension in the normal course after
satisfactory qualifying service. But
Regulation 16(a) being a distinct and
specific Regulation enables for forfeiture
of pension, partly or fully, as
a sequel to imposition of a particular
type of punishment. Regulation
16(a) in this regard is self-contained.
The High Court clearly committed
an error in holding that previous satisfactory
service of a person up to
the date of imposition of punishment
should have been taken into consideration
for exercise of power under
Regulation 16(a) and it cannot
be sustained. This being the position
we are unable to agree with
the High Court that a previous satisfactory
service of a person prior to
the date of imposition of punishment
should be considered for the purpose
of Regulation 16(a). Consequently
the impugned judgments cannot be
sustained.
24. What remains to be seen
is whether the orders passed by the
President and the Central Government,
as the case may be, forfeiting
pension of the respondents, were arbitrary,
unreasonable or without application
of mind.
25. It is the case of the appellants
that before passing orders forfeiting
pension either under Army Pension
Regulation 16(a) or Navy Pension
Regulation 15(2), show cause
notices were issued to the respondents;
replies received from the respondents
and all the relevant factors
appearing from the records were
considered. According to them, the
orders passed in their discretion by
the President or the Central Government
as the case may be, having
regard to all aspects, are justified
and sustainable. We have perused
copies of the notings of the
Ministry of Defence and the orders
made pursuant thereto. From the
said records, we find that there has
been application of mind and hav-

ing regard to the serious nature of
charges already narrated above and
keeping in view the relevant circumstances
including the punishments
imposed on proved charges, the impugned
orders appear to have been
passed forfeiting pension. The said
orders passed forfeiting pension are
not merely based on the fact that the
appellants were punished by Court
Martial, as assumed by the High
Court. Moreover, by issuing showcause
notices giving opportunity to
the respondents to explain the circumstances
and their hardship before
passing the impugned order, the
principles of natural justice were also
complied. In the given circumstances
when the impugned orders forfeit-
451
ing pension were passed in the discretion
of the authorities exercising
the power available under the Regulations,
we cannot find fault with
them. Thus, the orders passed are
neither arbitrary nor unreasonable.
In this view, we do not find any error
or infirmity or illegality in passing
the said orders.
26. Having regard to the provisions
and position of law, the discussion
made and for the reasons
recorded hereinabove, we find merit
in these appeals and they deserve to
be accepted, Hence, the impugned
judgments of the High Court are set
aside and the appeals are allowed.
No costs.

452 Union Of India v. P.D. Yadav 2001

Chapter 38
Union of India v. L.D.
Balam Singh 2002
Union of India & Ors v. L.D.
Balam Singh [2002] Insc 216 (24
April 2002)
U.C. Banerjee & Y.K. Sabharwal
Banerjee, J.
While it is true that Army personnel
ought to be subjected to
strictest form of discipline and Article
33 of the Constitution has conferred
powers on to the Parliament
to abridge the rights conferred under
Part III of the Constitution in
respect of the members of the Armed
Forces, but does that mean and imply
that the Army Personnel would
be denuded of the Constitutional
privileges as guaranteed under the
Constitution ? Can it be said that
the Army Personnel form a class of
citizens not entitled to the Constitution’s
benefits and are outside the
purview of the Constitution ? To answer
above in the affirmative would
be a violent departure to the basic
tenets of the Constitution. An Army
Personnel is as much a citizen as any
other individual citizen of this coun-
try. Incidentally, the provisions as
contained in Article 33 does not by itself
abrogate any rights and its applicability
is dependent on Parliamentary
legislation. The language used
by the framers is unambiguous and
categorical and it is in this perspective
Article 33 may be noticed at this
juncture. The said Article reads as
below :-
”33. Power of Parliament to
modify the rights conferred by this
Part in their application to Forces,
etc. - Parliament may, by law, determine
to what extent any of the rights
conferred by this Part shall, in their
application to, -
(a) the members of the Armed
Forces; or
(b) the members of the Forces
charged with the maintenance of
public order;or
(c) persons employed in any bureau
or other organisation established
by the State for purposes of
intelligence or counter intelligence; or

454 Union of India v. L.D. Balam Singh 2002
(d) persons employed in, or in
connection with, the telecommunication
system set up for the purposes
of any Force, bureau or organisation
referred to in clauses (a) to (c), be
restricted or abrogated so as to ensure
the proper discharge of their duties
and the maintenance of discipline
among them.”
A plain reading thus would reveal
that the extent of restrictions
necessary to be imposed on any of
the fundamental rights in their application
to the armed forces and
the forces charged with the maintenance
of public order for the purpose
of ensuring proper discharge of
their duties and maintenance of discipline
among them would necessarily
depend upon the prevailing situation
at a given point of time and it would
be inadvisable to encase it in a rigid
statutory formula. The Constitutions
makers were obviously anxious
that no more restrictions should be
placed than are absolutely necessary
for ensuring proper discharge of duties
and the maintenance of discipline
amongst the Armed Force Personnel
and therefore Article 33 empowered
the Parliament to restrict or abridge
within permissible extent, the rights
conferred under Part III of the Constitution
in so far as the Armed Force
Personnel are concerned.
(In this context reference may be
made to the decision of the Supreme
Court in the case of B. Viswar & Ors.
v. Union of India & Ors., reported
in AIR 1983 S.C. 658) as also a judgment
of the Calcutta High Court in
the case of Lt. Col. Amal Sankar
Bhaduri v. Union of India & Ors.
(1987 CLT 1) of which one of us
(U.C. Banerjee,J.) was a party.
This Court in the case of Prithi
Pal Singh v. The Union of India
(AIR 1982 SC 1413) observed :
”It is one of the cardinal features
of our Constitution that a person by
enlisting in or entering armed forces
does not cease to be a citizen so as to
wholly deprive him of his rights under
the Constitution. More so when
this Court held in Sunil Batra v.
Delhi Administration (1979) 1 SCR
392 at p. 495 :
(AIR 1978 SC 1675 at p. 1727)
that even prisoners deprived of personal
liberty are not wholly denuded
if their fundamental rights.
In the larger interest of national
security and military discipline Parliament
in its wisdom may restrict
or abridge such rights in their application
to the Armed Forces but this
process should not be carried so far
as to create a class of citizen not entitled
to the benefits of liberal spirit
of the Constitution.
Persons subject to Army Act are
citizens of this ancient land having
feeling of belonging to the civilized
community governed by the liberty
oriented Constitution.” While
answer to the first question posed
above is in the affirmative, the contextual
facts bear out and pose a
further issue as regards availability
of substantive and procedural safeguards
under a specific legislation the
High Court answered it in the affirmative
since such procedural safeguards
are said to be mandatory in
nature.

Adverting to the factual matrix
presently under consideration, it appears
that on a petition filed under
Articles 226/227 of the Constitution
of India, the respondent
herein prayed for quashing of the
charge-sheet, sentence of the General
Court Martial, order of confirmation
of General Officer Commanding and
also to quash the trial of the General
Court Martial. The facts of the matter
however briefly are as below:
The petitioner was serving the Indian
Army having joined the same on
28.10.1976. He was posted to 18 Cavalry
C/o 56 A.P.O. during the year
1990-91 at Patiala Cantt. He was residing
with his family in a Government
married accommodation being
House No.255/30 K.S. Colony, Patiala
Cantt. On 28.12.1991 a search
of his residence was conducted by
Army Officers/Officials and allegedly
opium weighing 4.900 Kgs. was recovered
from his family quarter. The
petitioner was thereafter placed under
Arrest in military custody and
was put in the quarter guard of his
unit aforesaid and F.I.R. No.378 was
lodged at Police Station Sadar Patiala
on 28.12.1991. A sample of
the opium recovered was forwarded
to the Chemical Examiner for analysis
and the remaining quantity of the
opium, a contraband was kept with
the Police.
The summary of evidence was ordered
by the Commanding Officer of
64 Cavalry and on the basis of directions
from the Brigade Commander,
the petitioner was put to trial by the
General Court Martial convened under
the Convening Order. The peti-
455
tioner was tried under Section 69 of
the Army Act for an offence punishable
under Section 18 of the Narcotic
Drugs and Psychotropic Substances
Act, 1985 (hereinafter referred to as
NDPS Act). After the trial was over,
the petitioner was convicted and sentenced
by the General Court Martial.
Before adverting, however, to the
rival contentions as advanced before
this Court, it would be worthwhile
to refer to the relevant provisions of
the Army Act and the Rules framed
thereunder. Chapter VI of the Army
Act, 1950 stands ascribed to the offences
and Section 69 therein deals
with the civil offences, which reads
as below :-
69. Civil offences Subject to the
provisions of Section 70, any person
subject to this Act who at any place
in or beyond India, commits any civil
offence, shall be deemed to be guilty
of an offence against this Act and, if
charged therewith under this section,
shall be liable to be tried by a court
martial and, on conviction, be punishable
as follows, that is to say, -
(a) if the offence is one which
would be punishable under any law
in force in India with death or with
transportation, he shall be liable to
suffer any punishment, other than
whipping, assigned for the offence, by
the aforesaid law and such less punishment
as is in this Act mentioned;
and
(b) in any other case, he shall be
liable to suffer any punishment, other
than whipping, assigned for the offence
by the law in force in India, or
imprisonment for a term which may

456 Union of India v. L.D. Balam Singh 2002
extend to seven years, or such less
punishment as is in this Act mentioned.”
It is on this score that Section
109 in Chapter X ought also to
be noticed at this juncture. The Section
reads as below :
”109. Power to convene a general
court martial. A general court
martial may be convened by the Central
Government of [the Chief of the
Army Staff] or by any officer empowered
in this behalf by warrant
of [the Chief of the Army Staff].”
Having outlined the factual score as
above and upon noting of the two
several provisions of the Army Act,
it would be worthwhile to note Section
18 of the Narcotic Drugs and
Psychotropic Substances Act, 1985
(NDPS Act). Needless to record that
the petitioner was tried under Section
69 of the Army Act for an offence
punishable under Section 18
of the NDPS Act the trial did take
place before a General Court Martial
and conviction and sentence was
also passed therein. It is this sentence
and conviction which stands
challenged in the writ petition moved
before the High Court, as noticed
above. The NDPS Act admittedly
contains certain safeguards and the
law reports are replete with case laws
pertaining to these safeguards.
Dilution of the safeguards as prescribed
in the statute has strongly
been criticised and negated and the
same were ascribed to be strictly
mandatory in nature. The issue thus
: whether by reason of the respondent
being a member of the Armed
Forces would stand denuded of such
a safeguard in the event the General
Court Martial takes note of an offence
under a specific statute. Article
33 of the Constitution though
conferred a power but has not been
taken recourse to put a bar or restraint
as regards the non-availability
of the statutory safeguards in terms
therewith. Before proceeding further,
however, it would be convenient
to note certain provisions of
the NDPS Act, namely, Sections
18:42:50, which read as under :
18. Punishment for contravention
in relation to opium poppy and
opium. Whoever, in contravention
of any provision of this Act or any
rule or order made or condition of licence
granted thereunder, cultivates
the opium poppy or produces, manufactures,
possesses, sells, purchases,
transports, imports inter-State, exports
inter-State or uses opium shall
be punishable
(a) where the contravention involves
small quantity, with rigorous
imprisonment for a term which may
extend to six months, or with fine
which may extend to ten thousand
rupees, or with both;
(b) where the contravention involves
commercial quantity, with rigorous
imprisonment for a term which
shall not be less than ten years but
which may extend to twenty years
and shall also be liable to fine which
shall not be less than one lakh rupees
which may extend to two lakh
rupees:
Provided that the court may, for
reasons to be recorded in the judgment,
impose a fine exceeding two
lakh rupees.

(c) in any other case, with rigorous
imprisonment which may extend
to ten years and with fine which may
extend to one lakh rupees.
42. Power of entry, search,
seizure and arrest without warrant or
authorisation :
(1) Any such officer (being an officer
superior in rank to a peon, sepoy
or constable) of the department
of central excise, narcotics, customs,
revenue, intelligence or any other
department of the Central Government
including para-military forced
or armed forces as is empowered in
this behalf by general or special order
by the Central Government, or any
such officer (being an officer superior
in rank to a peon, sepoy or constable)
of the revenue, drugs control, excise,
police or any other department
of a State Government as is empowered
in this behalf by general or special
order of the State Government,
if he has reason to believe from personal
knowledge or information given
by any person and taken down in
writing, that any narcotic drug, or
psychotropic substance, or controlled
substance in respect of which an offence
punishable under this Act has
been committed or any document or
other article which may furnish evidence
of the commission of such offence
or any illegally acquired property
or any document or other article
which may furnish evidence of holding
any illegally acquired property
which is liable for seizure or freezing
or forfeiture under Chapter VA
of this Act is kept or concealed in
any building, conveyance or enclosed
place, may between sunrise and sun-
set :-
457
(a) enter into and search any such
building, conveyance or place;
(b) in case of resistance, break
open any door and remove any obstacle
to such entry;
(c) seize such drug or substance
and all materials used in the manufacture
thereof and any other article
and any animal or conveyance which
he has reason to believe to be liable
to confiscation under this Act and
any document or other article which
he has reason to believe may furnish
evidence of the commission of any offence
punishable under this Act or
furnish evidence of holding any illegally
acquired property which is liable
for seizure or freezing of forfeiture
under Chapter VA of this Act;
and
(d) detain and search and, if
he thinks proper arrest any person
whom he has reason to believe to
have committed any offence punishable
under this Act :
Provided that if such officer has
reason to believe that a search warrant
or authorisation cannot be obtained
without affording opportunity
for the concealment of evidence or facility
for the escape of an offender, he
may enter and search such building,
conveyance or enclosed place at any
time between sunset and sunrise after
recording the grounds of his belief.
(2) Where an officer takes down
any information in writing under
Sub-Section (1) or records grounds
for his belief under the proviso
thereto, he shall within seventy-two
hours send a copy thereof to his im-

458 Union of India v. L.D. Balam Singh 2002
mediate official superior.
50. Conditions under which
search of persons shall be conducted
:- (1) When any officer duly authorised
under Section 42 is about to
search any person under the provisions
of Section 41, Section 42 or
Section 43, he shall, if such person
so requires, take such person without
unnecessary delay to the nearest
Gazetted Officer of any of the departments
mentioned in Section 42 or to
the nearest Magistrate.
(2) If such requisition is made,
the officer may detain the person
until he can bring him before the
Gazetted Officer or the Magistrate
referred to in sub-section (1).
(3) The Gazetted Officer or the
Magistrate before whom any such
person is brought shall, if he sees no
reasonable ground for search, forthwith
discharge the person but otherwise
shall direct that search be made.
(4) No female shall be searched
by anyone excepting a female.
(5) When an officer duly authorised
under section 42 has reason
to believe that it is not possible to
take the person to be searched to the
nearest Gazetted Officer or Magistrate
without the possibility of the
person to be searched parting with
possession of any narcotic drug or
psychotropic substance, or controlled
substance or article or document, he
may, instead of taking such person to
the nearest Gazetted Officer or Magistrate,
proceed to search the person
as provided under section 100 of the
Code of Criminal Procedure, 1973 (2
of 1974).
(6) After a search is conducted
under sub- section (5), the officer
shall record the reasons for such belief
which necessitated such search
and within seventy-two hours send a
copy thereof to his immediate official
superior.” As regards the mandatory
effect of the provisions as contained
in Section 50 above, the Constitution
Bench of this Court in Baldev Singh
(State of Punjab v. Baldev Singh
(1999) 6 SCC 172) has the following
to state :
”24. There is, thus, unanimity of
judicial pronouncements to the effect
that it is an obligation of the empowered
officer and his duty before
conducting the search of the person
of a suspect, on the basis of prior
information, to inform the suspect
that he has the right to require his
search being conducted in the presence
of a Gazetted officer or a Magistrate
and that the failure to so inform
the suspect of his right, would
render the search illegal because the
suspect would not be able to avail of
the protection which is inbuilt in Section
50. Similarly, if the person concerned
requires, on being so informed
by the empowered officer or otherwise,
that his search be conducted in
the presence of a Gazetted officer or
a Magistrate, the empowered officer
is obliged to do so and failure on his
part to do so would also render the
search illegal and the conviction and
sentence of the accused bad.
25. To be searched before a
Gazetted officer or a Magistrate, if
the suspect so requires, is an extremely
valuable right which the legislature
has given to the person con-

cerned having regard to the grave
consequences that may entail the
possession of illicit articles under the
NDPS Act. It appears to have been
incorporated in the Act keeping in
view the severity of the punishment.
The rationale behind the provision
is even otherwise manifest. The
search before a Gazetted officer or a
Magistrate would impart much more
authenticity and creditworthiness to
the search and seizure proceedings.
It would also verily strengthen the
prosecution case.
There is, thus, no justification
for the empowered officer, who goes
to search the person, on prior information,
to effect the search, of not
informing the person concerned of
the existence of his right to have his
search conducted before a Gazetted
officer or a Magistrate, so as to enable
him to avail of that right. It
is, however, not necessary to give
the information to the person to be
searched about his right in writing.
It is sufficient if such information
is communicated to the person concerned
orally and as far as possible
in the presence of some independent
and respectable persons witnessing
the arrest and search.
The prosecution must, however,
at the trial, establish that the empowered
officer had conveyed the information
to the person concerned
of his right of being searched in
the presence of a Magistrate or a
Gazetted officer, at the time of the
intended search.
Courts have to be satisfied at the
trial of the case about due compliance
with the requirements provided
459
in Section 50. No presumption under
Section 54 of the Act can be raised
against an accused, unless the prosecution
establishes it to the satisfaction
of the court, that the requirements
of Section 50 were duly complied
with.” On the factual matrix
Mrs. Indu Malhotra appearing for
the respondent rather emphatically
contended that it is an admitted situation
that there is non-compliance of
Sections 41 and 42 of the NDPS Act
since no search warrants were issued
and officers conducting the search
were admittedly not duly authorised
under the Act and by reason therefor
the resultant effect of state of the situation
as above, rendered the entire
proceeding stand vitiated.
The decision in Baldev Singh
(supra) mainly dealt with the provisions
of Section 50, which would
be dealt with shortly hereafter but
presently having a perusal of the relevant
statutory provisions (in particular
Sections 41 and 42) the submission
as above cannot but be termed
as it has been inevitable and inescapable.
A recent decision of this
Court in Roy V.D. v. State of Kerala
(2001 SCC (Cri) 42) however, lends
credence to conclusion as above since
this Court as a matter of fact dealt
with the true purport of Sections 41
and 42 of the NDPS Act. The felicity
expression as contained therein, however,
prompts us to note the same
in extenso as below :- ”15. It is
thus seen that for exercising powers
enumerated under sub-section (1)
of Section 42 at any time whether
by day or by night a warrant of arrest
or search issued by a Metropoli-

460 Union of India v. L.D. Balam Singh 2002
tan Magistrate or a Magistrate of the
First Class or any Magistrate of the
Second Class who has been specifically
empowered by the State Government
in that behalf or an authorisation
under sub-section (2) of Section
41 by an empowered officer is
necessary. Without such a warrant
or an authorisation, an empowered
officer can exercise those powers only
between sunrise and sunset. However,
the proviso permits such an empowered
or authorised officer to exercise
the said powers at any time
between sunset and sunrise if he has
reason to believe that such a search
warrant or authorisation cannot be
obtained without affording opportunity
for the concealment of evidence
of facility for the escape of an offender
and he records the grounds of
his belief.
16. Now, it is plain that no officer
other than an empowered officer
can resort to Section 41(2) or exercise
powers under Section 42(1) of
the NDPS Act or make a complaint
under clause (d) of sub-section (1) of
Section 36-A of the NDPS Act. It
follows that any collection of materials,
detention or arrest of a person
or search of a building or conveyance
or seizure effected by an officer not
being an empowered officer or an authorised
officer under Section 41(2)
of the NDPS Act, lacks sanction of
law and is inherently illegal and as
such the same cannot form the basis
of a proceeding in respect of offences
under Chapter IV of the NDPS Act
and use of such a material by the
prosecution vitiates the trial.
17. To the same effect is the view
expressed by this Court in State of
Punjab v. Balbir Singh (1994 (3)
SCC 299 : 1994 SCC (Cri) 634).
In para 13 Jayachandra Reddy, J.
speaking for the Court observed thus
:
(SCC p. 313) ”13. Therefore, if
an arrest or search contemplated under
Sections 41 and 42 is made under
a warrant issued by any other
Magistrate or is made by any officer
not empowered or authorised, it
would per se be illegal and would affect
the prosecution case and consequently
vitiate the trial.” ....
19. The learned Additional Solicitor
General, however, relying upon
conclusion No.(3) in para 57 of State
of Punjab v. Baldev Singh (1999 6
SCC 172 : 1999 SCC (Cri) 1080)
contends that a search and seizure
in violation of Sections 41 and 42 of
the NDPS Act does not vitiate the
trial but would render the recovery
of illicit article suspect and would
only vitiate the conviction and sentence
of the accused if the conviction
has been recorded solely on the basis
of such an illicit article, so the
High Court was right in not quashing
the proceedings. We are afraid,
we cannot accede to the contention of
the learned Additional Solicitor General.
.” The appellant herein, however,
rather emphatically voiced two
specific counts in support of the appeal.
On the first, it has been contended
that by reason of the fact of
the petitioner being a ’person’ belonging
to the Armed Forces, question
of usual formalities as regards
the procedural aspect under NDPS
Act would not arise, as such infrac-

tion of Section 42 of the NDPS Act
cannot be said to be of any consequence
: On the second count it
has been the definite contention that
since Section 50 specifically records
”about to search any person” and
since the contraband item has been
in fact recovered from the private residence
of the respondent herein, Section
50 cannot be said to be of any
application. It is on this score the
charge-sheet, though not included in
the paper book, but upon leave of the
Court, was produced and placed reliance
upon in support of the appeal.
We also deem it fit and convenient to
note the charge-sheet hereinbelow :-
”CHARGE SHEET The accused No
1059403N LD (Subs) Balam Singh of
18 Cavalry, attached to 64 Cavalry is
charged with :- Army Act COMMIT-
TING A CIVIL OFFENCE, THAT
IS TO Section 69 SAY, POSSESS-
ING OPIUM IN CONTRAVEN-
TION OF SECTION 18 OF THE
NARCOTIC DRUGS AND PSY-
CHOTROPIC SUBSTANCES ACT,
1985
in that he, at Patiala on 28 Dec
91 was found in illegal possession of
4 kgs and 900 grams of opium.
Place : Patiala Sd/ x x x x Date :
12 Mar 92 (SD Singh) Colonel Commanding
Officer The 64 Cavalry To
be tried by General Court Martial.
Station : Patiala Sd/ x x x x
C/o 56 APO (Kamaljit Singh) Major
General Dated : 14 Mar 92 General
Officer Commanding 1 Armoured Division”
We shall have the occasion
to deal with the specific grievance
as submitted in support of the respondent’s
contention later on in this
461
judgment, but for the present suffice
it to record that the same stated to
be relating to possession of opium
in contravention of Section 18 of
the NDPS Act since he was found
in illegal possession of 4 Kgs and
900 grams of opium at Patiala on
28th December, 1991. The chargesheet,
however, is stated to be, as
noticed above, issued under Section
69 of the Army Act by one Shri S.D.
Singh, Colonel/Commanding Officer
64th Cavalry and it is this chargesheet
which has been directed by the
General Officer Commanding, Major
General Kamaljit Singh to be tried
by the General Court Martial.
In the writ petition filed before
the High Court after the conclusion
of the Court Martial proceedings and
recording of the finding of guilt of
the charge the petitioner/respondent
herein specifically raised a plea of the
charge being vague. Before, however,
we deal with the same let us get back
to the two specific counts noticed
hereinbefore, namely, procedural aspect
and non-applicability of Section
50. Dealing with the second count
first, as regards non-applicability of
Section 50 by reason of the factum
of the same being made applicable
to the person and not the place, we
cannot but record our concurrence
therewith. Section 50 sub-section
(1) by reason of the language used
therein, does not and cannot have
any manner of application in the
facts presently under consideration.
Turning attention on to the procedural
aspect, be it noticed that
Section 18 is an offence which cannot
but be ascribed to be civil in nature

462 Union of India v. L.D. Balam Singh 2002
in terms of the provisions of Army
Act if Section 18 is to be taken recourse
to then and in that event the
provisions of the statute come into
play in its entirety rather than piecemeal.
The charge leveled against the respondent
is not one of misdeeds or
wrongful conduct in terms of the provisions
of the Army Act but under
the NDPS Act In the event, we clarify,
a particular statute is taken recourse
to, question of trial under another
statute without taking recourse
to the statutory safeguards would be
void and the entire trial would stand
vitiated unless, of course, there are
existing specific provisions therefor
in the particular statute. Needless
to record that there were two other
civilian accused who were tried by
the Court at Patiala but were acquitted
of the offence for non-compliance
of the mandatory requirements of the
NDPS Act.
Once the petitioner was put on
trial for an offence under the NDPS
Act, the General Court Martial and
the Army authorities cannot reasonably
be heard to state that though
the petitioner would be tried for an
offence under Section 18 of the NDPS
Act, yet the procedural safeguards as
contained in the statutory provision
would not be applicable to him being
a member of the Armed Forces. The
Act applies in its entirety irrespective
of the jurisdiction of the General
Court Martial or other Courts
and since the Army authorities did
not take into consideration the procedural
safeguards as is embodied under
the Statute, the question of offering
any credence to the submissions
of Union of India in support
of the appeal does not and cannot
arise. There is no material on record
to show that the authorities who conducted
the search and seizure at the
house of the respondent herein has in
fact done so in due compliance with
Section 42 of the statute which admittedly
stand fatal for the prosecution
as noticed above as a matter of
fact, two of the civilians stand acquitted
therefor.
Lastly, it has been contended
by the respondent that the chargesheet
is not only vague, but devoid
of all material particulars and does
not even fulfil the requirements of
the Army Rules and the entire proceedings
in any event stand vitiated.
We are, however, not expressing any
opinion thereon, neither the same is
required for the purposes of disposal
of this matter. Suffice it to record,
however, that the same has some
substance.
Having considered the matter in
the perspective as above, we do not
find any infraction of any law in the
judgment of the High Court, neither
the judgment can be faulted in any
other way. This appeal, therefore,
fails and is thus dismissed.
J.
(Umesh C. Banerjee) J.
(Y.K. Sabharwal) April 24,
2002.

Chapter 39
Union Of India v. Shivendra
Bikaram Singh 2003
Union Of India (Uoi) And Ors.
v. Shivendra Bikaram Singh on
24 April, 2003 Equivalent citations:
AIR 2003 SC 2481, 2003 (2) ALD
Cri 147, 2003 CriLJ 3028 Author: B
Singh Bench: N S Hegde, B Singh
JUDGMENT
B.P. Singh, J.
1. In this appeal by special leave
the Union of India has impugned
the judgment and order of the High
Court of Bombay at Goa dated May
2, 2001 in criminal writ petition no. 3
of 2001 whereby the High Court allowing
the writ petition filed under
Article 226 of the Constitution of India
quashed the order of the Court
Martial dated 4th September, 2000
which found the respondent guilty of
the offences under sections 497, 452
and 325 of the Indian Penal Code
read with Section 77(2) of the Navy
Act, 1957 (hereinafter referred to as
’the Act’) and the order of the Chief
of the Naval Staff dated 8th January,
2001 passed under Section 162 of the
Act as also the order of the Chief
of the Naval Staff dated January 31,
2001 passed under Section 163 of the
Act. After going through the evidence
on record it also recorded a
finding that there was no legal evidence
to support the order of conviction
and, there fore, gave to the
respondent the benefit of doubt.
2. The facts of the case so far as
they are relevant for the disposal of
this appeal are :-
The respondent was an officer of
the Indian Navy and at the relevant
time was serving as a Lieutenant
posted in Goa. He was tried by a
Court Martial for offences under sections
497, 506, 452 and 325 of the
Indian Penal Code read with Section
77(2) of the Act. The Court Marital
found the respondent guilty of the
offences under sections 497, 452 and
325 of the Indian Penal Code read
with Section 77(2) of the Act and ordered
the respondent to be kept in
rigorous imprisonment for a term of
24 calendar months as a class-I prisoner;
to be dismissed with disgrace

464 Union Of India v. Shivendra Bikaram Singh 2003
from the Naval service and to suffer
consequential penalties involved.
The Chief of the Naval Staff in exercise
of his power under Section
163 of the Act modified the sentence
awarded to the respondent and ordered
that the respondent be kept
in rigorous imprisonment as a classl
prisoner for a period of 12 calendar
months and that he be dismissed
from Naval service and shall suffer
the consequential penalties involved.
The respondent submitted a petition
on December 4, 2000 under Section
162 of the Act with a request to
set aside the findings and sentence
awarded to him by the Court Martial,
but the same was rejected by the
Chief of the Naval Staff by his order
dated January 31, 2001.
3. The order of conviction and
sentence passed by the Court Martial
as well as the orders of the Chief
of the Naval Staff in exercise of powers
under sections 162 and 163 of the
Act were challenged before the High
Court by the respondent by filing a
writ petition under Article 226 of the
Constitution of India. The challenge
to the aforesaid orders was on several
grounds. It was submitted before
the High Court that the members of
the Court Martial had not been appointed
in conformity with Section
97 of the Act. Three of the members
of the Court Martial were incompetent
to act as impartial judges
and the objection raised by the respondent
in this regard was disposed
of by the trial judge advocate, without
reference to the members of the
Court Martial, in gross violation of
the mandatory provisions contained
in Section 102 of the Act. As a result
grave prejudice was caused to
the respondent and there was serious
miscarriage of justice by such officers
continuing as members of the
Court Martial to try him. The order
of Court Martial was also challenged
on the ground of its failure to record
reasons for the conclusions reached
by it. It was also submitted that the
offences for which the respondent was
tried were ordinarily offences which
could have been tried by an ordinary
criminal court and, therefore, trial by
Court Martial was not justified.
4. On the other hand the Union
of India contended that the Court
Martial had been properly constituted
and it had scrupulously observed
provisions of the Act and
recorded a finding of guilt against the
respondent. It was not required to
record reasons for its conclusions and
its findings were, therefore, not vitiated
for this reason. The objection
raised by the respondent against the
inclusion of three officers as members
of the Court Martial was duly considered
by the trial judge advocate
who rejected the objection as regards
two of the officers, while the objection
against the third officer was considered
by the members of the Court
Martial and was ultimately rejected.
The Trial Judge advocate exercised
his power to reject such an objection
in accordance with the provisions of
Section 102 of the Act. No irregularity
was committed by him. The
proceedings before the Court Martial
were conducted scrupulously in
accordance with law and no illegality
had been committed which either re-

sulted in serious prejudice to the respondent
or in miscarriage of justice.
The writ court, therefore, had no jurisdiction
to interfere with the impugned
orders. It was also the case of
the Union of India that the offences
for which the respondent was tried
while serving as a naval officer were
triable by the Court Martial. The
respondent had, therefore, not made
out a case for interference with the
order of the Court Martial as well
as the orders passed under Sections
162 and 163 of the Act having regard
to the parameters of judicial interference
in matters of this nature.
5. The High Court first considered
the scope of its writ jurisdiction
in such matters and the parameters
of judicial interference. It considered
the judgments of this Court
in Union of India and Ors. v. Himmat
Singh Chahar, ; Lt. Col. Prithi
Pal Singh Bedi v. Union of India
and Ors., and Union of India and
Ors. v. Major A. Hussain, and held
that though the Court Martial proceedings
are subject to judicial review
by the High Court in exercise of
its writ jurisdiction, the Court Martial
is not subject to the superintendence
of the High Court under
Article 227 of the Constitution. In
exercise of its jurisdiction the High
Court will not minutely examine the
record of the Court Martial as if it
was sitting in appeal. If the Court
Martial has been properly convened,
and there is no challenge to its composition,
and the proceedings are in
accordance with the procedure prescribed,
the High Court, or for that
matter any court, must stay its hand.
465
Proceedings of a Court Martial are
not to be compared with the proceedings
in a criminal court under
the Code of Criminal Procedure since
these proceedings remain to a significant
degree, a specialized part of
overall mechanism by which military
discipline is preserved. The Court
Martial discharges judicial function
and the procedure prescribed provide
for a fair trial to the accused. Therefore,
unless it is shown that prejudice
has been caused or mandatory provisions
have been violated, the High
Court should not allow the challenge
to validity of the conviction and sentence
of the accused when evidence
is sufficient.
6. Bearing the above principles
in mind the High Court proceeded
to consider the other submissions
advanced before it. It rejected
the submission that non-recording of
reasons in support of the conclusion
reached by the Court Martial
vitiated the order. Relying upon
the judgment of this Court in S.N.
Mukherjee v. Union of India, it was
held that the Court Martial is not required
to record reasons for the conclusion
reached by it while recording
a conviction. It also rejected
the contention urged on behalf of the
respondent that the Court Martial
was not duly constituted inasmuch
as the majority of members of the
Court Martial did not belong to the
executive branch of the Naval service
as required by Section 97(10) of
the Act. It accepted the submission
urged on behalf of the Union that all
the officers who were members of the
Court Martial were Executive Offi-

466 Union Of India v. Shivendra Bikaram Singh 2003
cers which was supported by a Notification
issued in this regard. The submission,
that the constitution of the
Court Martial was not constituted in
conformity with the mandate of Subsection
(16) of Section 97 of the Act
since it had to be constituted by the
peers of the respondent, namely the
Lieutenants, and not by the Commanders,
especially when the President
was Acting Captain, was also
rejected. It was held that on a plain
reading of Sub-sections (17) of Section
97, the mere fact that the members
of the Court Martial were higher
in rank to the petitioner, did not
render the constitution of the Court
Martial infirm.
7. The crucial question raised before
the High Court was with regard
to the manner in which, and the person
by whom, objec tion raised by
the respondent with regard to the
competency of two members of the
Court Martial to act as impartial
judges was rejected. It is not in dispute
that the respondent objected to
three members of the Court Martial
on the ground of their competency to
act as impartial judges. The members
objected to were Captain Rajiv
Girotra, President, and a Member
Cdr. Suresh Mehta. The objection
of the respondent was rejected
by the trial judge advocate without
referring the objection to the members
of the Court Martial for decision.
The objection as against, the
third member, namely Cdr. Narayan
was referred to all the members of
the Court Martial excluding Cdr.
Narayan, but the objection was ultimately
rejected. The High Court
held that on a plain reading of Section
102 of the Act the trial judge advocate
had no jurisdiction to dispose
of an objection summarily which related
to the competency of a member
of the Court Martial to act as
an impartial member. In the interest
of fairness the Act envisages that the
objection with regard to any member
of the Court Martial must be dealt
with at the threshold. The objection
to any member of the Court regarding
his competency to act as an impartial
judge, must be referred to the
members of the court and disposed of
in accordance with the procedure laid
down in that section. At that stage
any other objection, which did not
relate to the capacity of the member
to act as an impartial Judge had to
be rejected by the trial judge advocate,
Other objections, if any, were
to be dealt with under Section 103
of the Act. The language of Section
102 of the Act clearly postulates that
when an objection is taken against
any member on the ground of his incompetency
to act as an impartial
judge, the trial judge advocate must
stay his hand and is obliged to refer
the same to the members of the
Court Martial for deciding the same
in the manner provided for by Section
102 of the Act. This provision is
in the nature of an opportunity being
offered to the concerned member
against whom such a ground is urged
to recluse himself in view of the allegations
made. The trial judge advocate
had no jurisdiction to summarily
reject such an objection without referring
the same to the members. It
would amount to rewriting the said
provision if it was to be held that

the trial judge advocate must in the
first instance examine the objection
himself, as to whether the ground
about the competency to act as impartial
judge is made out or not. The
summary rejection of the objection
with regard to Captain Rajiv Girotra
and Cdr. Suresh Mehta was, therefore,
not in accordance with the procedure
prescribed by law, and there
was a clear breach of the mandatory
provision relating to procedure
of Court Martial, which undoubtedly
caused gross miscarriage of justice to
the respondent. Accordingly it held
that the constitution of the Court
Martial itself become susceptible to
serious challenge on account of incompetency
of Captain Rajiv Girotra
(President) and Cdr. Suresh,
Member to act as impartial judges.
Since the Court Martial was not duly
constituted in accordance with law,
all subsequent steps taken by such a
Court Martial were nullity and nonest
in the eye of law. It further held
that even the objection with regard
to Cdr. Narayan, which was referred
to the members of the Court Martial
and was rejected, was not disposed
of in accordance with law. The reason
was that Captain Rajiv Girotra
and Cdr. Suresh Mehta continued to
participate as members of the Court
Martial and participated in the proceeding
when the objection against
Cdr. Narayan was referred to the
Court Martial. Having regard to the
procedure prescribed by Section 102
of the Act, the continued participation
of Captain Rajiv Girotra and
Cdr. Suresh Mehta, without consideration
of objection against them
in accordance with law, vitiated the
467
proceeding of the Court Marital even
in regard to the consideration of the
objection against Cdr. Narayan.
8. The High Court, therefore,
held that the writ petition must succeed
on the sole ground of noncompliance
of mandatory provisions
of law while considering the objection
regarding incompetency of Captain
Rajiv Girotra and Cdr. Suresh
Mehta to act as impartial judges,
relying on the observations of this
Court in Ranjit Thakur v. Union
of India and Ors., wherein it was
held that participation of the objected
members in the Court Martial
rendered the proceedings coram non
judice.
9. The High Court observed that
in view of its above finding it was unnecessary
to examine the other contentions
but since the parties had addressed
the court at length on all
points, it proceeded to deal with
other submissions as well.
10. It rejected the submission
urged on behalf of the respondent
that the Court Martial had no jurisdiction
to try the respondent for the
offences with which he was charged.
It held that the respondent being a
person subject to Naval Law, even
though the offences of which he was
charged were civil offences, he could
be tried and punished under the provisions
of the Navy Act regardless of
where the offences were committed.
Reference to Section 78(2) of the Act
was also of no assistance to the respondent
because the offence under
Section 497 of the Indian Penal Code
was quite distinct from an offence of
rape under Section 376 of the Indian

468 Union Of India v. Shivendra Bikaram Singh 2003
Penal Code, and Section 78(2) of the
Act was confined in its application
to the offences of murder, culpable
homicide not amounting to murder
and rape.
11. The High Court was then
persuaded to consider the evidence
on record for finding out whether
there was any legal evidence to convict
the respondent of the offences
with which he was charged. Considering
the offence under Section
497 of the Indian Penal Code the
High Court found that the prosecution
had miserably failed to establish
the factum of marriage and its
legality and, therefore, the first ingredient
of the offence was not established.
Similarly having scrutinized
the evidence on record for the limited
purpose whether there was any
legal evidence to sustain the conviction,
the High Court held that having
regard to the totality of circumstances
it would be wholly unsafe to
record the finding of guilt against the
respondent for the offences under sections
452 and 355 of the Indian Penal
Code. The High Court observed
that it had not re-appreciated the evidence
as such, or made any attempt
to find out sufficiency or adequacy of
evidence, but on wading through the
evidence it found that there was no
legal evidence to support the charges
and, therefore, the respondent should
be given the benefit of doubt. With
these findings, the High Court allowed
the writ petition and quashed
the impugned orders.
12. Shri Anup G. Chaudhary, senior
counsel appearing on behalf of
the Union of India submitted that
on a fair reading of Section 102 of
the Act it must be held that the trial
judge advocate has power to reject
summarily an objection raised by
the accused against inclusion of any
member in the Court Martial even if
it was related to his competency to
act as an impartial judge. He emphasized
the fact that under Section
114 of the Act the trial judge advocate
exercises powers which are judicial
in nature and, therefore, Section
102 must be understood in the background
of the nature of judicial functions
performed by the trial judge advocate.
It was, therefore, open to the
trial judge advocate to consider the
objection and if he was of the opinion
that the ground challenging the
competency of the concerned officer
to act as an impartial judge did not
have merit, he could reject the same
summarily. Only those objections,
which raised grounds worth considering
had to be referred to the Court
Martial for its decision. He, therefore,
submitted that the High Court
had wrongly relied on the observations
made by this Court in Ranjit
Thakur’s case (supra). According to
him the principles laid down therein
were wholly inapplicable to the case
in hand, because in that case this
Court had considered the provisions
of the Army Act, particularly Section
130 thereof which is quite different
from Section 102 of the Act.
He, therefore, supported the ruling of
the trial judge advocate rejecting the
objection of the respondent to two
members of the Court Martial on the
ground of their not being competent
to act as impartial judges. In the alternative
it is submitted that in any

case there was sufficient evidence on
record to support the conviction, and
the High Court was, therefore, not
justified in law in appreciating the
evidence on record and reaching the
conclusion that the respondent was
entitled to benefit of doubt. It is further
contended that the respondent
having submitted himself to trial and
the defect if any, not being of such
a nature as to vitiate the trial, it
must be held that the respondent had
waived his objection against membership
of two of the officers in the
Court Martial. According to him. if
the respondent was aggrieved by the
ruling of the trial judge advocate, he
could have challenged his ruling by
filing a writ petition. He having not
done so, it amount to a waiver and,
therefore, he could not be permitted
to urge that ground in support of the
writ petition.
13. Shri Arun B. Saharya, senior
advocate appearing on behalf of the
respondent submitted that the trial
judge advocate was clearly in error in
rejecting the objection raised by the
respondent under Section 102 of the
Act having regard to the clear language
of the section. Any objection
relating to a member of the Court
Martial on a ground which affected
his competency to act as an impartial
judge had to be decided by the members
of the Court Martial and not by
the trial judge advocate. He took us
to the scheme of the Act in support of
his submission. He further submitted
that though the trial judge advocate
performs functions which are judicial
in nature, his role becomes relevant
only after the trial commences, as is
469
evident from Section 114 of the Act,
and the trial does not commence till
such time as the objection under Section
102 are disposed of and the President
and every Member of the Court
Martial is administered the oath or
affirmation as mandated by Section
104 of the Act and the plea of the
accused on the charges is recorded
under Section 105. That stage was
never reached in this case because
the objections were not disposed of
in accordance with the procedure laid
down under Section 102 of the Act.
Moreover the provisions of the Act
further clarify that the function of
the trial judge advocate is only to
advice the Court Martial and not to
decide such issues.
14. On the question of waiver he
submitted that it implies a conscious
giving up of a right. In the facts of
this case it is apparent that the respondent
never waived his right to
object to the membership of three of
the officers in the Court Martial. He
initially urged this submission before
the High Court when he first filed the
writ petition, which was dismissed as
premature since he had not availed
of the remedies under Sections 162
and 163 of the Act. Thereafter, he
also urged this objection in his petition
filed under Section 162 of the
Act and finally the point was specifically
urged before the High Court
in the instant writ petition out of
which the present appeal arises. He
submitted that the respondent was
not expected to challenge every ruling
given by the trial judge advocate,
and it was only appropriate that he
permitted the trial to continue and

470 Union Of India v. Shivendra Bikaram Singh 2003
then challenged the verdict of the
Court Martial on the ground of glaring
illegalities and breach of mandatory
provisions of law which not only
caused prejudice to the respondent,
but also resulted in serious miscarriage
of justice. He further urged before
us that even though it is not permissible
to the High Court to exercise
its writ jurisdiction to appreciate
the evidence on record in the same
manner as the High Court may do
in a criminal appeal before it exercising
appellate jurisdiction, the verdict
of the Court Martial can certainly
be challenged in writ jurisdiction
if the High Court is satisfied
that there is no legal evidence whatsoever
to support the charges leveled
against the accused. He emphasized
that in doing so the High Court
was not expected to scrutinize the
evidence with a view to finding out
whether there was sufficient evidence
to record the conviction, but only to
find out if there was any legally admissible
evidence at all, which could
support the finding recorded by the
Court Martial. Therefore, not the
sufficiency, but the existence of relevant
material, was what the High
Court was entitled to look for in
a case of this nature, and that is
precisely what the High Court has
done in this case. He, therefore,
supported the finding recorded by
the High Court that there was no
evidence whatsoever to support the
charges leveled against the respondent
and, therefore, he was entitled
to the benefit of doubt.
15. In reply Shri Anup G. Chaudhary
submitted that even if this
Court comes to the conclusion that
there had been violation of mandatory
provisions of Section 102 of the
Act and that the violation resulted in
prejudice to the respondent and serious
miscarriage of justice, this Court
should direct the trial to commence
from the stage of Section 101 of the
Act. This was, of course, subject to
his contention that, in the facts’ and
circumstances of this case, the finding
recorded by the Court Martial
should be affirmed.
16. It would be beneficial to notice
a few provisions of the Navy
Act, 1957, which would disclose the
scheme of the Act and the procedure
to be followed in a Court Martial proceedings.
17. Section 93 provides that an
offence triable under the Act may
be tried and punished by court martial.
Section 97 provides that court
marital shall be constituted and convened,
subject to the provisions of
the sub-sections to Section 97, by
the President, the Chief of the Naval
Staff, or any officer empowered in
this behalf by commission from the
Chief of the Naval Staff. Sub-section
(6) thereof provides that a court martial
shall consist of not less than five
and not more than nine officers. Subsections
(7) to (22) lay down the
qualifications of the officers entitled
to sit as a member of the court martial
and other details relating to the
constitution of a court martial. Section
99 lays down that every court
martial shall be attended by a person
referred to as the trial judge advocate
who shall be either a judge advocate
in the department of the judge advo-

cate general of the Navy or any fit
person appointed by the convening
officer. Sub-section (2) provides that
the trial judge advocate shall administer
oath to every witness at the trial
and shall perform such other duties
as are provided in the Act and as
may be prescribed. Sections 101 to
103 are of considerable significance in
this case and they are, therefore, reproduced
for sake of convenience :-
”101. Commencement of proceedings.
(1) As soon as the Court
has been assembled the accused shall
be brought before it and the prosecutor,
the person or persons, if any
defending the accused and the audience
admitted.
(2) Except where the accused defends
himself, he may be defended
by such person or persons as may be
prescribed.
(3) The trial judge advocate shall
read out the warrant for assembling
the court and the names of officers
who are exempted from attending
under Sub-section (20) of Section 97
together with the reasons for such exemption.
(4) The trial judge advocate shall
read out the names of the officers
composing the court and shall ask
the prosecutor whether he objects to
any of them.
(5) If the prosecutor shall have
made no objection or after any objection
made by the prosecutor has been
disposed of, the trial judge advocate
shall ask the accused if he objects to
any member of the court.
102. Objections to members. -
The following provisions shall apply
471
to the disposal of objections raised by
the prosecutor as well as the accused
:-
(a) any member may be objected
to on a ground which affects his competency
to act as an impartial judge;
and the trial judge advocate may reject
summarily without reference to
the members of the court any objection
not made on such grounds;
(b) objections to members shall
be decided separately, those to the officer
lowest in rank being taken first:
provided that if the objection is to
the president, such objection shall be
decided first and all the other members
whether objected to or not shall
vote as to the disposal of the objection;
(c) on an objection being allowed
by one-half or more of the officers
entitled to decide the objection, the
member objected to shall at once retire
and his place shall be filled up
before an objection against another
member is taken up;
(d) should the president be objected
to and the objection be allowed,
the court shall adjourn until
a new president has been appointed
by the convening authority or by the
officer empowered in this behalf by
the convening authority; and
(e) should a member be objected
to on the ground of being summoned
as a witness, and should it be found
that the objection has been made
in good faith and that the officer is
to give evidence as to facts and not
merely as to character, the objection
shall-be allowed.
103. Further objections. -(1)

472 Union Of India v. Shivendra Bikaram Singh 2003
The trial judge advocate shall then
ask the accused whether he has any
further objection to make respecting
the constitution of the court; and
should the accused raise any such objection,
it shall then be decided by
the court, which decision shall be final
and the constitution of the court
martial shall not be afterwards impeached
and it shall be deemed in
all respects to have been duly constituted.
(2) If the accused should have no
further objection to make to the constitution
of the court or if any objection
is disallowed, the members and
the trial judge advocate shall then
make an oath or affirmation in the
form set out in Section 104.
18. These provisions lay down
the manner in which the proceedings
commence before the Court Martial
and the objections, which are to be
considered even before the trial begins.
These provisions, therefore, apply
at the pre-trial stage. After the
provisions of Sections 101 to 103 are
complied with, the President and every
member of the Court Martial is
required to be administered an oath
or affirmation in the form and manner
prescribed by Section 104 of the
Act. Thereafter under Section 105
when the court is ready to commence
the trial, the trial judge advocate is
required to read out the charges and
ask the accused whether he pleads
guilty or not guilty. If he pleads
guilty and the court accepts the plea,
it shall be recorded as a finding of
the court and the court shall proceed
to take steps to pass sentence unless
there are other charges to be tried
in which event the sentence shall be
deferred until after the findings on
such charges are given. If the accused
pleads not guilty or refuses to,
or does not, plead or if he claims to
be tried, the court shall proceed to
try the accused. Section 113 provides
that when the case for the defence
and the prosecutor’s reply, if any, are
concluded, the trial judge advocate
shall proceed to sum up in open court
the evidence for the prosecution and
the defence and lay down the law by
which the court is to be guided. Section
114 lays down the duties of the
trial judge advocate at such trial. It
is the duty of a trial judge advocate
to decide at the trial ail questions
of law arising in the course of the
trial, and specially all questions as
to the relevancy of facts which it is
proposed to prove and the admissibility
of evidence or the propriety of
the questions asked by or on behalf
of the parties; and in his discretion to
prevent the production of inadmissible
evidence whether it is or is not
objected to by the parties. Under
Section 115 it is the duty of the court
to decide which view of the facts is
true and then arrive at the finding,
which under such view ought to be
arrived at. Under Section 116 after
the trial judge advocate has finished
his summing up, the court is to be
cleared to consider the finding. The
trial judge advocate shall not sit with
the court when the court is considering
the finding and no person shall
speak to or hold any communication
with the court while the court is considering
the finding. Thereafter under
Section 117 the court is required
to reassemble and the President shall

inform the trial judge advocate in
open court what is the finding of the
court as ascertained in accordance
with Section 124.
19. It will thus appear that
the steps taken before the stage is
reached under Section 104 of the Act
for administering oath or affirmation
to the President and the members
of the Court Martial, are taken at
the pre-trial stage. Though the proceedings
commence before the Court
Martial for compliance of the requirements
of Sections 101, 102 and 103 of
the Act, the trial commences only after
the President and the members of
the Court Martial are administered
oath as required by Section 104 of the
Act and the accused is produced before
the Court Martial. Sub-section
(3) of Section 101 directs the trial
judge advocate to read out the warrant
for assembling the court and the
names of officers who are exempted
from attending together with the reasons
for such exemption. After the
warrant is read out, the trial judge is
required to read out the names of the
officers composing the court. It shall
then ask the prosecutor whether he
objects to any of them. If any objection
is made by the prosecutor the
same has to be disposed of. However,
if the prosecutor has no objection,
the trial judge advocate shall
ask the accused if he objects to any
member of the court.
20. It would thus appear that before
the trial commences, objections
to membership of the court have to
be considered with a view to ensure
fairness of trial and to avoid charge
of bias against any of the members
473
of the Court Martial. Section 102
lays down the provisions, which shall
apply to the disposal of objections
raised by the prosecutor as well as
the accused. Clause (a) provides that
any member may be objected on a
ground, which affects his competency
to act as an impartial judge, and the
trial judge advocate may reject summarily
without reference to the members
of the court any objection not
made on such ground. Clauses (b) to
(e) lay down the procedure to be followed
by the members of the Court
Martial while considering such objections.
21. Section 103 refers to further
objections. Clause (a) of Section
103 begins with the words ”the
trial judge advocate shall then ask
the accused whether he has any further
objections to make respecting
the constitution of the court”. If
the accused raises any such objection,
that is required to be decided
by the court, which decision shall be
final and the constitution of the court
martial shall not be afterwards impeached,
and it shall be deemed in
all respects to have been duly constituted.
In case the accused has no
further objection to make or the objection
made is disallowed, the members
and the trial judge advocate
shall then make an oath or affirmation
in the form set out in Section
104. From the scheme of these sections
it is quite apparent that before
the trial commences, all objections
to the constitution of the Court
Martial must be considered and decided.
Section 102 is confined to an
objection on the ground, which af-

474 Union Of India v. Shivendra Bikaram Singh 2003
fects the competency of the President
or a member of the Court Martial to
act as an impartial judge. As would
be clear from a reading of this section
as a whole it does not provide
for the consideration of any other objection
at that stage. The section
that follows i.e. Section 103 refers
to any further objection respecting
the constitution of the Court Martial.
It is, therefore, open to the accused
to raise further objections on
other grounds respecting the constitution
of the Court Martial, and for
this purpose he may urge the ground
of breach of any or the provisions of
the subsections of Section 97 of the
Act, or any other objection which
he has respecting the constitution of
the Court Martial. These objections
have to be decided under Section 103
by the Court Martial, which must
mean all the members of the Court
Martial, who are entitled to sit as
a Court after the disposal of objections,
if any, under Section 102 of the
Act.
22. We then come back to Section
102 of the Act, particularly Clause
(a) thereof. The real controversy
in the instant case is the nature
of authority exercised by the trial
judge advocate to reject summarily,
without reference to the members of
the Court Martial any objection not
made on a ground, which affects the
competency of a member to act as
an impartial judge. While the respondent
contends that all objections
made on a ground which affects the
competency of a member to act as an
impartial judge have to be decided in
accordance with the procedure laid
down in Clauses (b) to (e) of Section
102, according to the appellant it is
open to the trial judge advocate to
reject summarily even an objection
to a member on the ground which
affects his competency to act as an
impartial judge. It is contended that
even if the ground urged, though it
affects the competency of a member
to act as an impartial judge, the trial
judge advocate may reject the same
if he finds no merit in it.
23. We are inclined to accept the
contention put forth by the respondent.
Clause (a) of Section 102 is in
two parts. The first part refers to any
objection against a member on the
ground, which affects his competency
to act as an impartial judge. The
second part deals with the authority
of the trial judge advocate to reject
summarily without reference to the
members of the court ”any objection
not made on such grounds”. It was
not disputed before us that if there
was a valid ground urged affecting
the competency of a member to act
as an impartial judge, the same has
to be decided in accordance with the
procedure laid down under Clauses
(b), (c), (d) and (e) of sec tion
102. The first part of Clause (a)
enables the prosecutor and the accused
to raise an objection of the
nature specified. The second part
of Clause (a) only empowers the
trial judge advocate to reject summarily
any objection not made on
such grounds. To us it appears that
the clear intention of the legislature
was that at the stage of Section 102
only the objections relating to membership
of the court martial on a

ground affecting the competency of
any member to act as a court martial
are required to be considered. Every
other objection regarding constitution
of the court martial on other
grounds has to be considered later,
and that is what is provided by Section
103 of the Act. All grounds
other than the ground which affects
the competency of a member to act
as an impartial judge, is required to
be decided by the court, and no discretion
is left with the trial judge advocate.
Reading the two provisions
together the scheme of the Act appears
to be that in the first instance
the court has to consider whether
any of its member is disentitled to
sit as a member of the court martial
on the ground that he is not competent
to act as an impartial judge.
No other objection is to be entertained
at this stage. Therefore, when
an objection to any member is raised
on a ground other than the ground,
which affects his competency to act
as an impartial judge, the trial judge
advocate is authorized to reject the
same summarily without reference to
the members of the court martial.
But if any member is objected to on
the ground, which affects his competency
to act as an impartial judge,
the trial judge advocate has no discretion
in the matter and he must
place the matter before the court,
which must consider the objection in
accordance with the procedure laid
down in Clauses (b) to (e) of Section
102. Whether there is any merit
in the objection, is not a matter to
be considered by the trial judge advocate,
since he is not vested with
the jurisdiction to decide such objec-
475
tions. That power has to be exercised
by the court itself. The only
authority that is given to the trial
judge advocate under Clause (a) of
Section 102 is to reject at that stage
all other objections without reference
to the members of the court martial
which are not on a ground which affects
the competency of a member
to act as an impartial judge. This
is because such other objections may
be considered later after the constitution
of the court is first finalized after
disposal of objections to membership
of the court martial on the ground,
which affects the competency of any
member to act as an impartial judge.
The scheme of the Act, therefore, is
to provide for two stages at which
the objections to the constitution of
the court martial have to be considered.
Section 102 clarifies that at
that stage only those objections have
to be considered which proceed on
a ground, which affects the competency
of any member to act as an impartial
judge. All other objections to
the constitution of the court have to
be considered after the objections on
the grounds specified in Clause (a) of
Section 102 of the Act are disposed
of. Those other objections have to be
disposed of in the manner laid down
under Section 103 of the Act.
24. The High Court has taken
the same view as we have taken of
the provisions of Sections 102 and
103 of the Act. The trial judge advocate,
in the instant case, rejected
summarily the objection taken by the
respondent to the membership of two
of the officers, while the objection
against the third officer was rejected

476 Union Of India v. Shivendra Bikaram Singh 2003
by the court itself. Having perused
the minutes of the trial judge advocate
it cannot be said that the ground
on which the objection was taken
was not one, which affected the concerned
member to act as an impartial
judge. The objection as against the
president of the court, namely Captain
Rajiv Girotra was that he was
a course-mate of Cdr. Baijal, with
whose wife the respondent was alleged
to have had adulterous connections.
Similar objection was taken
to the membership of Cdr. Suresh
Mehta that he was the course-mate
of the complainant. It would thus
appear that the respondent objected
to their membership on a ground,
which affected their competency to
act as an impartial judge. The question
whether the objection was sustainable
or not, was a question which
had to be decided by the members
of the Court Martial in accordance
with the provisions of Clauses (b) to
(e) of Section 102. Instead of following
the procedure laid down by
the aforesaid subsections, the trial
judge advocate usurped the jurisdiction
of the court and rejected summarily
the objection of the respondent
after going through the material
on record, holding that the objections
were not sustainable. In doing
so he clearly over stepped the limitations
of his jurisdiction and decided
a matter which the court alone, and
not he, was empowered to decide.
The question whether the ground is
substantiated by material brought on
record is a question, which relates to
the merit of the objection. The respondent
may be able to substantiate
the ground urged by him or he may
fail to do so, In that event his objection
may be rejected by the members
of the court martial but that is not
to say that the ground on which objection
was taken did not affect the
competency of a member to act as an
impartial judge. The jurisdiction of
the trial judge advocate under Clause
(a) of Section 102 is limited to the
extent of finding out whether the objection
is on the ground specified in
the first part of Clause (a). If it was
such a ground, then regardless of its
merit, the objection had to be decided
by the court martial in accordance
with the procedure laid down
in that section. If it was not such a
ground as specified in the first part
of Section 102, it was then his discretion
to summarily reject the same.
The words of the section are ”may reject
summarily” which is indicative
of a discretion vested in him. That
is because if the objection is an objection
respecting the constitution of
the court, but not on the ground
specified in Clause (a) of Section 102,
then he may rather than dismissing
the objection reserve it for consideration
after the objections under Sections
102 are disposed of and the objections
under Sections 103 are taken
up for consideration.
25. We are, therefore, in agreement
with the High Court that the
trial judge advocate exceeded his jurisdiction
under Clause (a) of Section
102 of the Act and because of
his erroneous exercise of jurisdiction
the objections relating to the constitution
of the Court Martial remained
undecided by the competent
authority, and yet the members of

the Court Martial proceeded with
the trial and found the respondent
guilty. This was done in breach of a
mandatory provision of Section 102
of the Act. Noncompliance of the
mandatory provision of Section 102
is an infirmity which goes to the root
of the jurisdiction and without more,
vitiates the proceedings. It was so
held by the Court in Ranjit Thakur’s
case (supra) where the Court considering
a similar provision, though under
the Army Act, observed :-
”The procedural safeguards contemplated
in the Act must be considered
in the context of and corresponding
to the plenitude of the summary
jurisdiction of the Court Martial
and the severity of the consequences
that visit the person subject
to that jurisdiction. The procedural
safeguards should commensurate
with the sweep of the powers.
The wider the power, the greater the
need for the restraint in its exercise
and correspondingly, more liberal the
construction of the procedural safeguards
envisaged by the statute. The
oft quoted words of Frankfurter, J. in
Vitarelli v. Seaton, 359 US 535 are
again worth recalling :
”.....If dismissal from employment
is based on a defined procedure,
even though generous beyond the requirements
that bind such agency,
that procedure must be scrupulously
observed....... This judicially evolved
rule of administrative law is now
firmly established and, if I may add,
rightly so. He that takes the procedural
sword shall perish with that
sword.”
What emerges, therefore, is that
477
in the present case there is a noncompliance
with the mandate of Section
130 with the attention consequence
that the proceedings of the Summary
Court Martial are rendered infirm in
law.”
26. This Court referred to similar
observations made in Lt. Col.
Prithi Pal Singh Bedi v. Union of
India (supra) where this Court observed
:-
”.....Whenever an objection is
taken it has to be recorded. I n order
to ensure that anyone objected
to does not participate in disposing
of the objection.....
......This is a mandatory requirement
because the officer objected to
cannot participate in the decision
disposing of the objection.
.....The provision conferring a
right on the accused to object to
a member of the Court Martial sitting
as a member and participating
in the trial ensures that a charge of
bias can be made and investigated
against individual members composing
the Court - Martial. This is preeminently
a rational provision which
goes a long way to ensure a fair trial.”
27. On the question of bias,
the Court in Ranjit Thakur’s case
(supra) observed thus :-
”The second limb of the contention
is as to the effect of the alleged
bias on the part of respondent
4. The test of real likelihood of
bias is whether a reasonable person,
in possession of relevant information,
would have thought that bias was
likely and whether respondent 4 was
likely to be disposed to decide the

478 Union Of India v. Shivendra Bikaram Singh 2003
matter only in a particular way.
It is the essence of a judgment
that it is made after due observance
of the judicial process; that the court
or Tribunal passing it observes, at
least the minimal requirements of
natural justice is composed of impartial
persons acting fairly and without
bias and in good faith. A judgment
which is the result of bias or want of
impartiality is a nullity and the trial
coram non judice.’. (See Vassiliades
v. Vassiliades, AIR 1945 PC 38).”
28. In Union of India and Ors.
v. Major A. Hussain (supra), while
dealing with the parameters of judicial
review and interference with
Court Martial proceedings this Court
observed :-
”23. Though court martial proceedings
are subject to judicial review
by the High Court under Article
226 of the Constitution, the Court
Martial is not subject to the superintendence
of the High Court under
Article 227 of the Constitution. If
a Court Martial has been properly
convened and there is no challenge
to its composition and the proceedings
are in accordance with the procedure
prescribed, the High Court or
for that matter any court must stay
its hands.”
(emphasis supplied)
29. To the same effect are the observations
in Union of India v. Himmat
Singh Chahar (supra). It was
said, while considering provisions of
the Navy Act, 1957 :-
”4. Since the entire procedure is
provided in the Act itself and the Act
also provides for a further considera-
tion by the Chief of the Naval Staff
and then by the Union government
then ordinarily there should be a finality
to the findings arrived at by
the competent authority in the Court
Martial proceedings. It is of course
true and notwithstanding the finality
attached to the orders of the competent
authority in the court martial
proceedings the High Court is entitled
to exercise its power of judicial
review by invoking jurisdiction under
Article 226 but that would be
for a limited purpose of finding out
whether there has been infraction of
any mandatory provisions of the Act
prescribing the procedure which has
caused gross miscarriage of justice or
for finding out that whether there
has been violation of the principles of
natural justice which vitiates the entire
proceedings or that the authority
exercising the jurisdiction had not
been vested with jurisdiction under
the Act.”
30. Learned counsel for the appellant
submitted that except one,
the aforesaid decisions were rendered
while considering the provisions of
Section 130 of the Army Act, which
is differently worded, it may be that
Section 130 of the Army Act is differently
worded, but that will not
make any difference to the application
of the principles laid down by
this Court in the aforesaid decisions
Section 130 of the Army Act as well
as Section 102 of the Navy Act relate
to the objection to the inclusion
of any officer as member of the
Court Martial. It may be that the
procedure prescribed is not identical,
though similar, but if the provision

is mandatory in nature and there is
non compliance with that provision,
the consequences will be the same.
We, therefore, hold that noncompliance
with Section 102 of the Navy
Act has vitiated the proceedings before
the Court Martial.
31. This takes us to the second
submission urged on behalf of
the appellant that the respondent
has waived his right to raise such
objection since he did not challenge
the ruling of the trial judge advocate
by filing a writ petition before
the High Court. We find no merit
in this submission because it is not
expected of an accused to challenge
every ruling in the course of a trial
as that would unnecessarily protract
the trial, something, which is not encouraged
by the courts. He raised
that objection in his petition under
Section 162 of the Act and thereafter
raised the same objection in the instant
writ petition from which this
appeal arises. It cannot, therefore,
be said that he waived his right to
raise this objection merely because
he did not challenge the ruling of the
trial judge advocate immediately after
it was given at an intermediate
stage of the proceedings.
32. We, however, find considerable
force in the submission urged
on behalf of the appellant that having
found that there was a breach
of mandatory provision of the Act
which vitiated the proceedings before
the Court Martial, the High Court
was not justified in considering the
evidence on record even for the limited
purpose of discovering whether
there was any legal evidence to sus-
479
tain the charges. Counsel for the respondent
on the other hand submitted
that it was within the power of
judicial review of the High Court to
quash an order of conviction recorded
by the Court Martial if it came to
the conclusion that the finding of the
Court Martial was perverse as there
was no legal evidence whatsoever to
support the conviction. In our view,
in the facts and circumstances of this
case this question had become academic
once it was found that the
proceedings before the Court Martial
were vitiated on account of noncompliance
with the provisions of Section
102 of the Act. If the very constitution
of the Court Martial was not in
accordance with law, then any proceedings
taken before such an improper
Court Martial was a nullity
as far as the trial is concerned. As
a consequence, the evidence recorded
before such a Court Martial had no
sanctity in law and, therefore, did
not deserve any further consideration.
33. We, therefore, set aside
the finding recorded by the High
Court that there was no legal evidence
whatsoever to support the
charges leveled against the respondent
and that he was entitled to benefit
of doubt. The findings of the
High Court on other questions are
affirmed. The order of conviction
passed by the Court Martial as well
as the orders made under Sections
162 and 163 of the Navy Act have
been rightly quashed by the High
Court.
34. In the facts and circumstances
of the case we leave it to

480 Union Of India v. Shivendra Bikaram Singh 2003
the authorities concerned to consider
whether or not to continue the Court
Martial proceedings from the stage of
Section 102 of the Act. We make no
direction in that regard. In case it is
decided to continue the proceeding,
the objections raised by the respondents
shall be placed for consideration
and decision by the members of
the Court Martial in accordance with
the procedure laid down in Clauses
(b) to (e) of Section 102 of the Act.
This is on the assumption that all
the members of the Court Martial
are available to act as such. In the
event of non-availability of any or all
the members of Court Martial earlier
constituted, it will be open to
the competent authority to constitute
a fresh Court Martial. In that
event the question whether the objections
survive or not may have to be
reconsidered depending on whether
the president or the members objected
to continue to serve on the
Court Martial. Thereafter further
proceedings shall be taken in accordance
with law. The Court Martial
shall not be influenced by any observation
made by the High Court
in its impugned judgment. We have
scrupulously avoided reference to the
facts of the case and the merit of
the charges against the respondent.
However, nothing said in this judgment
shall be construed as expression
of opinion on the merit of the
charges, which shall be considered in
the light of the evidence, which may
be produced by the prosecution before
the Court Martial or the reconstituted
Court Martial, as the case
may be, if the competent authority
so decides.
35. Before parting with this judgment
we may notice the submission
urged on behalf of the respondent
that the retrial of the respondent,
even if ordered, will be barred by
limitation in view of the provision
of Section 79 of the Act. According
to learned counsel for the respondent
the trial commences when the
charges are read out to the accused
and his plea is recorded in accordance
with Section 105 of the Act. We do
not wish to express any opinion on
this question. However, the respondent
will be at liberty to raise this
question in appropriate proceedings
before the appropriate forum, if occasion
arises.
36. This appeal is accordingly
dismissed but subject to the direction
aforesaid.

Chapter 40
Jasbir Kaur v. Union Of
India 2003
Jasbir Kaur & Ors v. Union
Of India & Ors on 13 November,
2003 Author: Srikrishna Bench:
K.G.Balakrishnan, B.N.Srikrishna
CASE NO.:
Special Leave Petition (Civil)
Nos.12904-12909 of 2002, Special
Leave Petition (Civil) No.14275 of
2002 and Special Leave Petition
(Civil) Nos.14487 of 2002,
Transfer Case (civil) 38 of 2002 SRIKRISHNA, J.
PETITIONER:
The only issue thrown up by this
Jasbir Kaur & Ors.
RESPONDENT:
group of ca ses is : ’What should be
the uniform to be worn by members
of the Military Nursing Services?’
Union of India & Ors.
Persistence of parties and ingenuity
DATE
13/11/2003
BENCH:
OF JUDGMENT:
of counsel have succeeded in giving
a constitutional moment to an issue
which is but an one of administration
of an auxiliary branch of the Armed
K.G.Balakrishnan & B.N.SrikrishnaServices.
JUDGMENT:
A force called Indian Military
J U D G M E N T
Nursing Service was constituted as
With
Transfer Case (C) Nos.39-42 of
2002
part of the armed forces of the Union
of India by Ordinance No.XXX of
1943 titled The Indian Military Nursing
Service Ordinance, 1943, which
Transfer Case (C) No.46 of 2002, was brought into force on 15th
Transfer Case(C) Nos.54-56 of September, 1943. Section 3 of the
2002,
said Ordinance declares that there
Transfer Case(C) No.70 of 2002,
shall be raised and maintained in the
manner provided in the Ordinance

482 Jasbir Kaur v. Union Of India 2003
”as part of the armed forces of the
Union and for service with the Indian
Military forces” an auxiliary force
which shall be designated as Indian
Military Nursing Service. The Ordinance
prescribes the conditions of
eligibility for appointment in section
6. Section 9 of the Ordinance provides
that the provisions of the Indian
Army Act, 1911 shall, to such
extent and subject to such adaptations
and modifications as may be
prescribed, apply to members of the
Indian Military Nursing Service as
they apply to Indian commissioned
officers, unless they are clearly inapplicable
to women.
Section 10 of the said Ordinance
empowers the Central Government
to make Rules to carry out the purposes
of the ordinance and section
11 vests in The Chief of the Army
Staff the power to make regulations
providing for all matters to be laid
down and generally for all detail connected
with the organisation, pay
allowances, duties, discipline, training,
clothing, equipment and leave
of members of the Indian Military
Nursing Service.
In exercise of the powers vested
in him The Chief of Army Staff prescribed
the appropriate uniform to
be worn by the members of the Indian
Military Nursing Service. The
prescribed uniforms were changed
from time to time taking into account
the advice of special committees appointed
by The Chief of the Army
Staff to periodically review the issue.
Despite the fact that the Indian
Military Nursing Service (hereinafter
called as ’IMNS’) has been made an
auxiliary force, the members of this
service are not subject to all the provisions
of the Army Act and have
been treated separately while being
part of the Indian Army.
By an order dated 25.1.2000 the
Additional Director General of Military
Nursing Service issued a Dress
Code for members of IMNS prescribing
the Dress Code for different purposes.
We are not concerned with
the details of the prescribed uniforms
for that in no way affects the legal
issue sought to be canvassed before
the Court. Nor are we really concerned
with the reasons which impelled
the appropriate authority to
prescribe any particular dress as the
uniform to be worn by the members
of the IMNS. However, it appears
that a number of problems were faced
in the hospital environment in the
wake of the dress code issued by the
letter dated 25.1.2000. These problems
were brought to the notice of
Medical Services Advisory Committee.
With an intent to solve these
problems, which pertained to patient
care related issues, a decision was
taken to modify the dress code by an
order issued on 11.9.2001. The said
order was challenged by members of
IMNS by different writ petitions before
several High Courts, inter alia,
on grounds of violation of the Fundamental
Rights under Articles 14 and
21 of the Constitution. The Bombay,
Allahabad and Karnataka High
Courts dismissed such writ petitions
on the ground that no issue pertaining
to Fundamental Rights arose and
observing that the issue of prescribing
uniform for the IMNS was a mat-

ter well within the competence of
the military authorities. Some other
High Courts in the meanwhile admitted
similar writ petitions and issued
interim orders. Special leave petitions
were moved against the decisions
of the Allahabad, Bombay
and Karnataka High Courts in this
Court. To avoid inconsistency in judicial
decisions, this Court admitted
the special leave petitions and also
transferred all the pending writ petitions
to itself by an order made
on 28.1.2002 in Transfer Petition (C)
Nos.851-857 of 2001, which reads as
follows:
”We have heard learned counsel
for the parties. The writ petitions
mentioned in prayer
column of these petitions, in our
opinion, involves substantial question
of law. Therefore, it is just necessary
this issue should be decided by
a single court. Taking into consideration
the importance of the issue, we
think it appropriate that these petitions
should stand transferred to this
court for disposal in accordance with
law. It is so transferred.
It is pointed out that some of the
High
Courts have issued interim orders
in favour of the petitioners. If it is
so, those interim orders will continue
until further orders of this Court.
Accordingly, these petitions are
allowed. The writ petitions stand
transferred to this Court.
Liberty to file additional documents.”
When these petitions came up for
hearing on 6th May, 2002 it was rep-
483
resented to this Court that the Union
of India wanted to appoint a Review
Committee to consider the question
of uniform to be worn by the nurses
in the Army. This Court made the
following order:
”Upon hearing counsels the
Court
made the following order:
There shall be an interim order
maintaining status quo in regard
to the
uniform of Nurses concerned in
these
petitions. Uniform they are wearing
as on today shall be continued to
be worn. If by virtue of interim orders
of the High Court or otherwise
at different places different
uniforms are being worn, same
shall
continue till the disposal of these
petitions.
List these matters for final disposal
in the month of September
2002. In the mean time if the Union
of India wants to appoint a review
committee to consider the question
of uniform to be worn by the Nurses
in the Army, they are free to do so
and report to this Court.”
The Union of India thereafter
constituted a Committee known as
’Military Nursing Service Dress Review
Committee’ which was composed
of the Director General of
Medical Services (Army), as the
Chairman, and representatives from
the Director General of Armed
Forces Medical Service, representative
from DGMS (Army), represen-

484 Jasbir Kaur v. Union Of India 2003
tative from DGMS (Navy), representative
from DGMS (Air Force), Dy.
Judge Advocate General and ADG
Military Nursing service as members.
The terms of reference of this Committee
were the following:
”Terms of Reference
1. To carry out a comprehensive
review of the MNS Dress Code from
its inception to the present dress code
as promulgated vide army HQ letter
Nos:
(a) B/70001/DGMS-4A dt. 25
Jan 2000
2. To Ascertain and deliberate
upon various issues raised by MNS
against the existing dress code so
promulgated and analyse the cause of
objection to the same including the
issue of dress violations.
3. To go into all the issues
involved and suggest a dress code,
whether it be the existing dress duly
modified, or a new dress code. The
dress code so recommended should
be befitting, serve functional requirement
and be in keeping with the
ethos and requirement of the Medical
Services.
so
4. To ensure that the dress code
recommended facilitates the efficient
discharge of the primary duty
of the MNS staff which is of patient
care and efficient management of pa-
tient wards.
5. In consonance with the directions
of the Court it is to be ensured
that there is a clear difference and
distinction in terms of dress between
the doctors and the nurses.
6. To go into the universality
of dresses as worn by nursing staff
in other major civil hospitals, para
military hospitals and where possible
nursing staff of foreign armies to
draw suitable parallels to help evolve
a befitting dress code.
7. While making its recommen-
(b) B/42706/AGREEMENT/CW- dations on the dress code the issue
1 dated 11
of any expenditure and its financial
implications thereto should be borne
September 2001 as amended vide
in mind and recommendations made
our letter No. B/42706/AGREEMENT/CWthereto.
1 dated 25 October
8. The Committee will also lay
2001
down the
channel of promulgation of the
new dress code including the recommended
time frame for its implementation.”
The Dress Review Committee
held its deliberations on 8th and
9th July 2002 and made a report.
Though Major General P.K.
Sethi, Addl DGMNS and Brig.(Mrs.)
Usha Sikdar, DDMNS Central Command,
were members of the Committee,
they expressed their reservations
with regard to the report and gave
dissenting notes.
The Dress Review Committee
went into the historical background
of the constitution of the Military
Nursing Service as a separate cadre,
the applicable dress regulations for
the different services and the problems
faced in the hospital environ-

ment, which were brought to its notice.
It also took into account a number
of objections made by the IMNS
questioning the rationality and validity
of the 11th September 2000
order. The Dress Review Committee
meticulously considered the objections
and having considered various
options found in favour of the
Safari Suit of soothing colour (Beige
colour) in suitable fabric with badges
of rank on shoulders to meet the
seasonable requirements of summer
and winter, as the best available option.
It also recommended that the
change over should be effected within
a time frame of three months and
that the cost of the recommended
dress should be borne by the Government
as one time measure in the
form of an ’outfit allowance’ by obtaining
necessary sanction from the
competent authority.
A copy of the Dress Review Committee
report has been placed on the
record before us and learned counsel
have taken us through it.
Learned counsels, Mr. R.
Venkataramani and Mr. M. N. Krishnamani,
appearing for petitioners
in different cases, basically urge two
contentions. They contend that the
prescribed uniform violates Articles
14 and 21 of the Constitution. When
it was pointed out to the learned
counsel that there was no question
of Article 21 being considered unless
they were able to demonstrate
that the prescribed uniform was outrageous
of modesty and dignity of
womanhood or that it was so inconvenient
as not to bear the onslaughts
of nature, both learned counsel did
485
not press the contentions based on
Article 21. They however, contended
that Article 14 was violated as the
uniform was intended to discriminate
against the members of the IMNS by
making them out to be a separate
class.
In our view, the contention is entirely
misconceived and unfounded.
That the Indian Military Nursing
Service is a separate class, sui
generis, even though an auxiliary
force of the Indian Military, is an undeniable
fact. The historical background
in which this force was established
and the legal provisions applicable
to it leave no manner of
doubt that notwithstanding that it
is a part of the Indian Army, IMNS
is a distinct but separate class by itself.
In any event, whether any part
of the military services should have
any uniform, and, if so, what should
be the uniform, is an issue entirely
within the province of The Chief of
Army Staff by reason of Army Act,
the Indian Military Nursing Act and
the Regulations made by the Chief of
Army Staff by the powers derivable
therefrom. We see no scope for application
of Article 14 in such matters,
nor is any case made out therefor.
A major grievance made on behalf
of the petitioners was that no
heed was paid to their objections
before the Dress Code was finally
decided. Even if true, the contention
has lost its force presently.
When taken through the Dress Review
Committee’s Report by the
learned Additional Solicitor General,
we noticed that the said Committee
has meticulously applied its mind

486 Jasbir Kaur v. Union Of India 2003
to several objections raised by the
representatives of the IMNS. Each
objection has been carefully examined
and appropriate recommendation
has been made by the review
committee.
Apart from affording an opportunity
of putting forth their views in
the matter, the members of IMNS
could not have asked for anything
higher. Each grievance has been
carefully considered and addressed
by the Dress Review Committee, and
it is for the army authorities to take
appropriate decision. A decision
such as the one challenged before us
can hardly be faulted unless on the
ground of Wednesbury principle of
rationality. In our view there is no
such irrationality in the decision of
the Army Act which requires us to
interfere in exercise of our constitutional
powers. The petitions have no
merit and are liable to fail.
The members of the IMNS have
the glorious role model of the ’Lady
with the Lamp’, Florence Nightingale,
who went around on the battle
field, caring more for the patients
than for her own life. We hope that
the shining example of the Lady with
the Lamp shall continue to be emulated
by the members of the Indian
Military Nursing Service.
All the petitions dismissed. Interim
orders vacated. The respondents
are at liberty to take any appropriate
decision. There shall be no
order as to costs.

Chapter 41
Union Of India v. Ashok
Kumar 2005
Union Of India (Uoi) And Ors.
v. Ashok Kumar And Ors. on 18
October, 2005 Equivalent citations:
AIR 2006 SC 124, JT 2005 (12) SC
515, 2005 (8) SCALE 397 Author:
A Pasayat Bench: A Pasayat, C
Thakker
JUDGMENT
Arijit Pasayat, J.
Page 1138
1. Leave granted in S.L.P.(C)
21363 of 2005/CC No. 6855 of 1999.
2. Both these appeals have matrix
in a judgment rendered by a Division
Bench of the Jammu Kashmir
High Court in a Letters Patent Appeal
filed by Ashok Kumar, the respondent
in Civil Appeal No. 4792
of 1999 and the appellant in the connected
appeal. For the sake of convenience
said Ashok Kumar is described
hereinafter as the ’delinquent
officer’. By the impugned judgment
the High Court held that the removal
of the delinquent officer from service
was in violation of the provisions con-
tained in Section 10 of the Border Security
Force Act, 1968 (in short ’the
Act’) read with Rule 20 of the Border
Security Force Rules, 1969 (in short
’the Rules). The appeal filed by the
delinquent officer was allowed upsetting
the judgment of the learned Single
Judge who had dismissed the writ
petition filed by the delinquent officer.
3. Factual position, filtering out
unnecessary details, is as follows:
There was a raid in the house of
militants on 23rd and 24th March,
1992. The delinquent officer being
Deputy Inspector General in
Command was having Supervisory
power over the Commandant who
raided the hideout of militants. On
the night intervening 23rd and 24th
March 1992 house of one Mohd.
Maqbool Dhar in Bemina Colony
of Srinagar was raided by 23 men
of the force. During the raid two
militants described as ’dreaded militants’
namely Javed Ahmed Shalla
and Mohd. Siddiqui Soffi were appre-

488 Union Of India v. Ashok Kumar 2005
hended. According to the authorities
huge quantity of arms, ammunitions
and explosives and household articles
including gold ornaments were
recovered. The recovery of arms,
ammunition and explosives and gold
ornaments were not reflected in the
seizure report sent to higher authorities.
Respondent was not present at
the spot and he indicated his presence
at the scene of operation with
a view to claim undue Page 1139
credit of achievements of the operation.
Full quantity of seized articles
was not reflected in the report. 31
major weapons were recovered but
only 22 were shown. Two pistols,
five AK-56 rifles, one rocket launcher
and one Telescopic Rifle were not
shown in the list of ammunition. Out
of 31 gold ornaments 25 pieces were
not shown in the list of seized articles.
Second situation Report was
also sent, but the same also did not
reflect recovery of complete articles.
To cover up these lapses another encounter
was shown to have taken
place and a report regarding fake
encounter was sent vide No.0-7209
which indicated the recovery of some
gold ornaments. Another report was
also sent from office of delinquent officer
declaring goods which were not
declared earlier. It was admitted
that recovery of some weapons was
not reflected in earlier report.
4. Therefore, a Staff Court of Inquiry
was ordered to be held on 16th
May, 1992 and the delinquent officer
was found responsible for following
act of omission and commission:
(a) Falsely showing his presence
at the scene of operation and search.
(b) Failure to make any observations
regarding serious omissions and
discrepancies in the unit site report
and detailed report.
(c) Suppression of information regarding
seizure of six weapons out of
nine which were not declared by the
Commandant.
(d) Suppression of information
regarding seizure of household items.
(e) Suppression of information regarding
seizure of a substantial quantity
of gold ornaments.
(f) Failure in supervisory duties
by not giving expected directions to
the Commandant in regard to accounting
and disposal of seized items.
On 18.9.1992 Director General
recorded his satisfaction that the material
witnesses connected with case
will not be available and as such the
trial of the delinquent officer before
Security Force Court was inexpedient
and impracticable and opined that
further retention of the delinquent officer
in service was undesirable.
On 23/25.9.1992 show-cause notice
was served upon the delinquent
officer as to why his services be not
terminated in accordance with Rule
20 of the Rules. On 31.10.1992 he
sent reply to the show cause notice.
On 13.1.1993 Inspector General
found that there was adequate evidence
both oral and documentary to
prove the various charges against the
delinquent officer and he had no satisfactory
explanation to the various
charges and recommended that the
competent authority may call upon
the delinquent officer to resign under
Rule 20(4) or on his refusal to

do so, compulsorily retire or remove
him from service with pension and
gratuity. On 6.2.1993 Director General
after considering the show cause
notice, reply to the show cause notice,
report of the Enquiry Officer
and view of Inspector General, BSF
recorded his satisfaction that it was
neither expedient nor practicable to
conduct the trial and in exercise of
his powers under Rule 20(4) of the
Rules recommended to Central Government
that delinquent officer be
called upon to resign from service.
The recommendation of the Director
General, BSF that it was inexpedient
or impracticable to hold Page
1140 inquiry and calling upon delinquent
officer to resign was considered
by the State Minister who expressed
his view as under:-
”It is a very serious case which
has brought bad name to the BSF
in the State. I agree that the
penalty of removal from service without
pensionary benefits should be imposed
on Shri Ashok Kumar DIG,
BSF as proposed above. DG, BSF
should also expedite imposition of
penalty against the other delinquent
officers”.
The Home Minister considered
the entire record of the case including
the recommendations of the
desk officer, Director General, Minister
of State’s opinion and thereafter,
recorded his own opinion. Home
Minister accorded his approval as
under:-
”We may first remove him from
service and also not being eligible
for pension looking to the nature of
the offence, I don’t think this will be
489
sufficient punishment. We may also
prosecute him so that it may have
deterrent effect.”
By order dated 1.6.1993 Government
of India in exercise of power
conferred under Section 10 of the Act
read with Rule 20(5) of Rules removed
the delinquent officer from the
services without pensionary benefits
with immediate effect.
5. The delinquent officer filed
a Writ Petition no.663 of 1993 in
the High Court of Himachal Pradesh
challenging the order dated 1.6.1993
whereby he was removed from service
without pensionary benefits. The
writ petition was dismissed by the
Himachal Pradesh High Court by order
dated 3.9.1997 on the ground
that it had no jurisdiction to deal
with the writ petition. Thereafter,
the delinquent officer filed a Writ Petition
no.1277/1997 in the Jammu
and Kashmir High Court. An interim
order was passed on 3.9.1997
directing the respondents in the writ
petition to treat the writ petitioner
to be in service with all service benefits
as he was enjoying till 2.9.1997.
By order dated 5.2.1999 the learned
Single Judge dismissed the writ petition.
The learned Single Judge’s conclusions
are essentially as follows:-
(i) Plea of res-judicata cannot be
accepted.
(ii) Delinquent officer was given
full and reasonable opportunity in
the Court of Inquiry which was conducted
in terms of Chapter XIV of
the Rules, and he was found guilty
of six lapses.
(iii) The view formed by Com-

490 Union Of India v. Ashok Kumar 2005
petent Authority to dispense with
holding of General Security Force
Court was on the basis of material
on record.
(iv) The decision to remove delinquent
officer from service was not actuated
by malafide consideration.
(v) Decision taken by Home Minister
suffered from no infirmity, and
against him no malice has been
shown.
(vi) Rules of business which required
matter to be placed before
President of India are not applicable
to the delinquent officer.”
Letters Patent Appeal was filed
by delinquent officer against the order
of learned Single Judge.
Page 1141
6. In support of the appeal, following
points were urged:
(i) There is no independent or
sufficient material for taking action
under Rule 20 and the material relied
upon is only that which has been
collected by the Court of Inquiry, the
use of which is not permissible.
The respondent can be tried before
the Security Force Court as the
show cause notice has been served
and the witnesses are also available.
(ii) Learned Single Judge has
misdirected himself in recording the
finding and maintaining that it was
not expedient and practicable to hold
inquiry.
(iii) He is a Class-1 Officer of the
BSF under Ministry of Home Affairs
and, therefore, as per Item No.13 of
the First Schedule read with Rule 2
of the Govt. of India (Allocation of
Business) Rules, 1961 he could only
be removed by the Prime Minister
and the President in terms of Serial
No.39 of the Third Schedule read
with Rule 8 of the Transaction of
Business Rules, 1961.
(iv) The authorities have removed
him from service without following
the provisions of law contained
in Section 10 of the Act read
with Rule 20 of Rules, as the Central
Government has neither recorded the
satisfaction to the effect that it is inexpedient
and impracticable to hold
inquiry nor formed any opinion that
his further retention in service is undesirable,
for terminating the services
under Rule 20 of Rules.
7. The Division Bench by the
impugned judgment concurred with
the findings expressed by the learned
Single Judge so far as first three
points are concerned. So far as the
fourth point is concerned it was held
that the Central Government was required
to record satisfaction that it
was inexpedient and impracticable to
hold inquiry, and to form opinion relating
to delinquent officer for retention
in service. According to the
High Court the delinquent officer had
been removed from the service without
following the provisions of Section
10 of the Act and Rule 20 of
the Rules. The High Court noticed
that two authorities are authorized
to act under Rule 20 of the Rules.
The procedure to be followed to terminate
the services of an officer is
available under Section 10 of the Act
by the Central Government on account
of misconduct. The expression
”as the case may be” relates to

the action to be taken by the Central
Government and the action to
be taken by the Director General.
It was held that both the authorities
did not have concurrent jurisdiction;
otherwise the expression ”as the
case may be” would be rendered surplus
and meaningless. Reference was
made to Section 19 of the Army Act,
1959 (in short ’Army Act’) and Rule
14 of the Army Rules 1954 (in short
’Army Rules’). It was noted that
the language was in pari materia, except
the words ”as the case may be”
with corresponding Section and Rule
of the Act and the Rules respectively.
Therefore, it was held that use of expression
”as the case may be” is significant
and indicative of two different
spheres of activity for two different
authorities. The Director General
was not the appointing authority
of the delinquent officer and, therefore,
it was held that only the Central
Government could have taken action
and not the Director General. It was
incumbent upon the Central Government
to record satisfaction that it
was inexpedient and impracticable to
hold trial, before the jurisdiction to
take further action could be assumed.
Page 1142
8. In support of the appeal filed
by the Union of India learned Additional
Solicitor General submitted
that the Division Bench of the High
Court has failed to take into account
the true scope and ambit of Rule 20.
It was pointed out that Rule 14 of
the Army Rules dealt with any category
of employees, while Rule 20 of
the Rules dealt with officers. It was
pointed out that the Director Gen-
491
eral is given power to conduct inquiry
and is also the appointing authority.
9. In support of the other appeal
filed by the delinquent officer, apart
from the supporting judgment of the
Division Bench it was submitted that
the Division Bench of the High Court
was not justified in its conclusions so
far as the other three points are concerned.
Specific allegations of malafides
were not dealt with by the High
Court. It was also submitted that
in any event there was no application
of mind by the concerned Minister,
and merely on the opinion of the
Desk Officer the order was passed.
Considering the limited scope for judicial
review it was submitted that
the view of the Division Bench is irreversible.
As the basic controversy
revolves round the scope and ambit
of Rule 20, it is necessary to quote
the same. The said Rule reads as follows:
”20. Termination of service of
officers by the Central Government
on account of misconduct: (1) When
it is proposed to terminate the service
of an officer under Section 10 on
account of mis-conduct, he shall be
given an opportunity to show cause
in the manner specified in Sub-rule
(2) against such action:-
Provided that this sub-rule shall
not apply:-
(a) where the service is terminated
on the ground of conduct
which has led to his conviction by
a criminal court or a Security Force
Court; or
(b) where the Central Government
is satisfied that for reasons, to

492 Union Of India v. Ashok Kumar 2005
be recorded in writing, it is not expedient
or reasonably practicable to
give to the officer an opportunity of
showing cause.
(2) When after considering the
reports of an Officer’s misconduct,
the Central Government or the
Director-General, as the case may be,
is satisfied that the trial of the Officer
by a Security Force Court is inexpedient
or impracticable, but is of
the opinion, that the further retention
of the said officer in the service
is undesirable, the Director General
shall so inform the officer together
with particulars of allegation
and report of investigation (including
the statements of witnesses, if any,
recorded and copies of documents if
any, intended to be used against him)
in cases where allegations have been
investigated and he shall be called
upon to submit, in writing, his explanation
and defence;
Provided that the Director-
General may withhold disclosure of
such report or portion thereof if, in
his opinion, its disclosure is not in
the interest of the security of the
State.
(3) In the event of explanation of
the Officer being considered unsatisfactory
by the Director-General, or
when so directed by the Central Government,
the case shall be submitted
to the Central Government with the
Officer’s defence and the recommendations
of the Director-General as to
the termination of the Officer’s service
in the manner specified in Subrule
(4).
Page 1143
(4) When submitting a case to
the Central Government under the
provision of Sub-rule (2) or Subrule
(3), the Director- General shall
make his recommendations whether
the Officer’s service should be terminated,
and if so, whether the officer
should be, -
(a) dismissed from the service; or
(b) removed from the service; or
(c) retired from the service; or
(d) called upon to resign.
(5) The Central Government, after
considering the reports and the
officer’s defence, if any, or the judgment
of the Criminal Court, as the
case may be, and the recommendation
of the Director-General, may remove
or dismiss the officer with or
without pension, or retire or get his
resignation from service, and on his
refusing to do so, the officer may be
compulsorily retired or removed from
the service with pension or gratuity,
if any, admissible to him.”
Sub-rule (1) deals with the proposal
to terminate the service under
Section 10 on account of mis-conduct
and requires an opportunity to be
given to show cause in the manner
stated. Operation of Sub-rule (1) is
ruled out in the category of cases
covered by the proviso to Sub-rule
(1). Sub-rule (2) deals with modalities
to be followed when either the
Central Government or the Director-
General, as the case may be, is satisfied
that the trial of the Officer by a
Security Force Court is inexpedient
or impracticable and yet either the
Central Government or the Director-
General, as the case may be, is of

the opinion that further retention of
the concerned officer in the service
is undesirable. Thereafter, comes to
the role of the Director- General. He
is required to inform the officer together
with particulars of allegation
and report of the investigation, (including
the statement of witnesses)
if any, which is intended to be used
against the delinquent officer in cases
where allegations have been investigated.
The concerned officer is given
opportunity to submit his explanation
and defence. Proviso to Subrule
(2) makes it clear that Director-
General may withhold disclosure of
such report or portion thereof if he
is of the opinion that the disclosure
is not in the interest of the security
of the State. Sub-rule (3) relates
to consideration of the explanation
furnished by the concerned officer
and the conclusions of the Director-
General on consideration of the explanation.
Either when the explanation
is considered unsatisfactory by
the Director-General or where it so
directed by the Central Government,
the case shall be submitted to the
Central Government with the Officer’s
defence and the recommendation
of the Director-General as to the
termination of the officer’s service
in the manner provided in Sub-rule
(4). When a case is submitted to the
Central Government under the proviso
to Sub-rule (2) or Sub-rule (3),
the Director- General is required to
make recommendation whether the
officer’s service should be terminated
and, if so, which of the four alternatives
provided should be adopted.
Sub-rule (5) deals with consideration
of the reports and defence of the of-
493
ficer by the Central Government or
judgment of the Criminal Court, as
the case may be, and the recommendation
of the Director-General. The
Central Government may pass the
order in terms of any of the alternatives
indicated in the Sub-rule (5).
Page 1144
10. The High Court is plainly in
error in holding that it is only the
Central Government which is competent
to act in terms of Sub-rule
(2). Expression ”as the case may
be” is otherwise rendered superfluous.
Both the authorities can act in
terms of Sub-rule (2). High Court
overlooked the salient factor that
any other interpretation would render
reference to the Director-General
meaningless.
A bare reading of Rule 20 makes
the position clear that both the
Director-General and the Central
Government can act in different situations
and consideration by the
Director- General is not ruled out.
Sub-rule (3) makes the position clear
that the explanation is to be considered
by the Director-General and
only when it is directed by the Central
Government, the matter shall
be submitted to the Central Government
with the officer’s defence
and the recommendations of the
Director-General. When Director-
General finds the explanation unsatisfactory
he recommends for action.
There may be cases where
the Central Government directs the
Director-General to submit the case.
There can be a case where the Central
Government finds that the explanation
is unsatisfactory. In that

494 Union Of India v. Ashok Kumar 2005
case the Central Government may direct
the case to be submitted to it.
At the first stage the consideration is
by the Director- General. When he
finds the explanation unsatisfactory,
he recommends action by the Central
Government. But even if he finds explanation
to be satisfactory, yet the
Central Government can direct the
case to be submitted to it. Recommendations
in terms of Sub-rule
(4) are made by the Director-General
and the final order under Rule 20(5)
is passed by the Central Government.
The expression ”as the case may be”
is used in Sub-rule (2) and Sub-rule
(5). It obviously means either of the
two. It is to be further noted that
the order in terms of Sub-rule (5) is
passed by the Central Government.
But the enquiry can be either by the
Central Government or the Director-
General, as the case may be. There
is another way of looking at Sub-rule
(2). Where report of the officer’s
misconduct is made by the Director-
General, the matter is to be placed
before the Central Government and
in all other cases the consideration is
by the Director-General.
The words ”as the case may be”
means ”whichever the case may be”
or ”as the situation may be”. (See
Shri Balaganesan Metals v. M.N.
Shanmugham Chetty and Ors. ).
The expression means that one out of
the various alternatives would apply
to one out of the various situations
and not otherwise.
11. Therefore, the High Court’s
conclusions that Central Government
is the only authority to consider
the matter whether holding of
trial is inexpedient or impracticable
is clearly indefensible.
12. Coming to the conclusion
whether there was application of
mind, the High Court had perused
the concerned file and come to the
conclusion that there was independent
application of mind in passing
the order of removal. Though in the
appeal filed by the delinquent officer
the order of removal is assailed
on the ground that only the Desk
Officer’s opinion was endorsed without
application of mind, we do not
find the situation to be so. Copies
of the entire file were produced before
us. It is clearly indicative of
the fact that though the Desk Officer’s
opinion was noted, there was independent
Page 1145 application of
mind and, therefore, the plea of the
delinquent officer that the order suffers
from the vice of non-application
of mind is clearly untenable. Similarly,
we find the plea of mala- fides
does not appear to have been pressed
before the High Court, and grievance
related to other respondents and the
personal allegations of mala-fides do
not appear to have been urged.
13. Doubtless, he who seeks to
invalidate or nullify any act or order
must establish the charge of bad
faith, an abuse or a misuse by the
authority of its powers. While the
indirect motive or purpose, or bad
faith or personal ill-will is not to be
held established except on clear proof
thereof, it is obviously difficult to establish
the state of a man’s mind, for
that is what the employee has to establish
in this case, though this may
sometimes be done. The difficulty is

not lessened when one has to establish
that a person apparently acting
on the legitimate exercise of power
has, in fact, been acting mala fide
in the sense of pursuing an illegitimate
aim. It is not the law that
mala fide in the sense of improper
motive should be established only by
direct evidence. But it must be discernible
from the order impugned or
must be shown from the established
surrounding factors which preceded
the order. If bad faith would vitiate
the order, the same can, in
our opinion, be deduced as a reasonable
and inescapable inference from
proved facts. (S. Pratap Singh v.
State of Punjab ). It cannot be overlooked
that burden of establishing
mala fides is very heavy on the person
who alleges it. The allegations of
mala fides are often more easily made
than proved, and the very seriousness
of such allegations demand proof
of a high order of credibility. As
noted by this Court in E. P. Royappa
v. State of Tamil Nadu and Anr. ,
Courts would be slow to draw dubi-
495
ous inferences from incomplete facts
placed before it by a party, particularly
when the imputations are grave
and they are made against the holder
of an office which has a high responsibility
in the administration. (See Indian
Railway Construction Co. Ltd.
v. Ajay Kumar ).
As observed by this Court in Gulam
Mustafa and Ors. v. The State
of Maharashtra and Ors. mala fide is
the last refuge of a losing litigant.
14. That being so, the delinquent
officer’s appeal is sans merit.
15. The inevitable conclusion is
that the appeal filed by the Union
of India deserves to be allowed. The
judgment of the Division Bench taking
the view contrary to that of
learned Single Judge in its analysis
of Rule 20 deserves to be set aside,
which we direct. Similarly, the other
appeal filed by the delinquent officer
lacks merit and is dismissed. In the
peculiar circumstances of the case,
parties are directed to bear their respective
costs.

496 Union Of India v. Ashok Kumar 2005

Chapter 42
Union Of India v. Ranbir
Singh Rathaur 2006
Union Of India & Ors v. Ranbir
Singh Rathaur & Ors. ... on
22 March, 2006 Author: A Pasayat
Bench: A Pasayat, T Chatterjee
CASE NO.:
Appeal (civil) 2949-2950 of 2001
PETITIONER:
Union of India & Ors.
RESPONDENT:
Ranbir Singh Rathaur & Ors.
etc.etc.
DATE OF JUDGMENT:
22/03/2006
BENCH:
ARIJIT PASAYAT & TARUN
CHATTERJEE
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
These two appeals are directed
against the common judgment of a
Division Bench of the Delhi High
Court. By the impugned judgment
the High Court disposed of two writ
petitions CW No. 3063 of 1995 filed
by respondentRanbir Singh Rathaur
and CW No. 4082 of 1995 filed
by Ashok Kumar Rana. Alongwith
these two writ petitions seven Letter
Patent Appeals were also disposed
of. These LPAs. are the subject
matter of challenge in Civil Appeal
Nos.2951-57 of 2001 which were
de-linked from the present two appeals
by order dated 14.2.2006. The
LPAs. and these writ petitions filed
before the High Court were linked
in the sense that in all these cases
concerned writ petitioners were dismissed
from service by the present
appellants. They were all working at
the relevant point of time in 168 Infantry
Brigade, deployed in a place
called Samba in the border areas.
By the impugned judgment the High
Court held that the proceedings initiated
against the writ petitioners
forming subject matter of the present
appeals were void in law and the
orders passed against these and the
other officers who were appellants in
the LPAs were vitiated being with-

498 Union Of India v. Ranbir Singh Rathaur 2006
out any material and being a camouflage.
The relevant portion of the
High Court’s order reads as follows :
”Accordingly we declare that the
proceedings initiated against the petitioners
in the two writ petitions are
void in law and the orders passed
against the other officers, the appellants
in L.P.As are vitiated being
without any material and being camouflage.
Having dropped the idea not
to conclude Court Martial proceedings
knowing fully well that the officers
were likely to be acquitted, without
producing relevant record before
the concerned authority orders of
termination were passed flouting all
norms. The appellants in the LPAs
and the petitioners in the two writ
petitions are entitled to all the consequential
benefits. We also hereby declare
that the orders passed against
the appellants in the LPAs are void
in law and the conviction and sentence
by the GOMs against the writ
petitioners are void in law. Consequently,
the judgment of the
learned Single Judge which are set
aside and the writ petitions in those
are allowed and the Latent Patent
Appeals stand allowed and the two
writ petitions also stand allowed. All
the writ petitions stand allowed to
the above extent indicated and other
reliefs prayed for cannot be considered
by this Court and it is for the
law makers to attend to the same.
There shall be no order as to costs.
The respondents shall grant consequential
reliefs to all the officers including
all monetary benefits within
a period of four months from today.”
Factual background as highlighted
by the appellants is essentially
as follows:
In February 1971 Gunner Sarwan
Dass was cultivated by Pakistan Intelligence.
In 1972 Capt. Ghalwat
& Gnr. Sarwan Dass crossed
the international border. In 1973
Cap. Ghalwat & Gnr. Sarwan Dass
were posted in Babina (MP). In 1974
Gnr. Aya Singh was cultivated by
Gnr. Sarwan Dass for Pak intelligence.
Capt. Nagial was then cultivated
by Aya Singh for Pak intelligence.
In 1975 for the first time the
espionage racket came to be noticed.
Aya Singh and Sarwan Dass were arrested.
In 1976-1977 pursuant to the
investigation 3 more Jawans were arrested.
They corroborated the involvement
of Sarwan Dass. Sarwan
Dass and Aya Singh on further interrogation
disclosed the names of Capt.
Ghalwat & Capt. Nagial. In 1976-
77 Capt. Ghalwat & Capt. Nagial
were tried by General Court Martial
and were convicted. Ghalwat was
cashiered and given 14 years RI. Nagial
was given 7 years RI and was also
cashiered. In addition, 12 jawans
were tried and they were given RI
of various descriptions and were dismissed
from services. Aya Singh and
Sarwan Dass were also among the 12
jawans tried and held guilty. Later
in 1978 it was discovered that Aya
Singh was holding back certain relevant
information relating to espionage
activities under certain alleged
threat and pressure. Wife of Aya
Singh came to be killed. Reeling under
the shock of the circumstances,
he made further disclosures wherein

he named Capt. Rathaur and Capt.
A.K. Rana, the respondents in these
appeals and he disclosed that he was
receiving threats that if he disclosed
anything his wife would be killed.
Accordingly, in 1978 Capt. Rathaur
and Capt. A.K. Rana were interrogated.
As a result, 42 Army personnel
were arrested. The 42 Army personnel
included 19 officers, 4 junior
commissioned officers (JCOs) and 19
Other Ranks (ORs.)
Out of the 19 officers, 3 officers
were tried by General Court Martial,
two were convicted, namely, Capt.
Ranbir Singh Rathaur and Capt.
A.K. Rana and one was acquitted.
Capt. Ranbir Singh Rathaur and
Capt. A.K. Rana were sentenced
to RI for 14 years each and were
cashiered. Against 13 officers, disciplinary
actions were initiated. However,
a decision was taken not to try
them and administrative order under
Section 18 of Army Act, 1950 (in
short the ’Act’) was passed terminating
their services.
Present appeals relate to the 2
officers punished by General Court
Martial and the de-linked appeals relate
to 7 officers out of 13 officers
whose services were terminated under
Section 18 of the Act. The remaining
3 officers were not found
blameworthy and no action was
taken against them and they continued
in the Army. Out of 4 JCOs
services of (3 JCOs) were terminated
administratively and against 1 officer
no action was taken. Out of 19 others,
6 were tried by General Court
Martial and were convicted and sentenced
for various descriptions of im-
499
prisonment. Services of 9 others were
terminated by administrative order
and the rest 4 were let off and no action
was taken against them.
At this juncture it would be appropriate
to take note of previous litigations.
On 22.10.1980 Criminal Writ Petition
No. 90 of 1980 was filed by Ex
Captain Rana. On 4.6.1981 Criminal
Writ Petition No. 90 of 1981 came to
be dismissed by the Division Bench
of Delhi High Court. It was observed
that a number of points were raised
on points of law and jurisdiction. It
did not want these matters to be
left undecided, therefore, arguments
were heard on these points and were
dealt with.
On 19.2.1982, SLP (Crl.)
No.2320 of 1981 filed by Capt.
A.K. Rana against the order dated
4.6.1981 came to be dismissed.
On 17.10.1995 CWP No. 4082 of
1995 was filed by Capt. AK Rana
before the Delhi High Court. On
21.12.2000 the impugned judgment
was passed.
On 24.8.1978 Capt. Ranbir Singh
Rathaur was arrested and taken into
custody on the basis of information
collected by the Military Intelligence
that Ranbir Singh Rathaur had been
indulging in acts of espionage by
passing secret and classified military
information to agents of a foreign
country. On 28.3.1979 Smt. Swaran
Rathaur, wife of Capt. Ranbir Singh
Rathaur filed a Habeas Corpus Petition
under Article 32 of the Constitution
of India, 1950 (in short the ’Constitution’)
in this Court being Crim-

500 Union Of India v. Ranbir Singh Rathaur 2006
inal Writ Petition No. 294/79, inter
alia, seeking the following reliefs:
(a) That Ranbir Singh Rathaur
be forthwith produced before this
Hon’ble Court.
(b) That the Petitioner in the
said writ petition, her lawyers and
medical advisors be permitted to interview
the said Capt. Rathaur in
conditions controlled by this Hon’ble
Court and proper medical care and
facilities may be furnished to him.
On 12.4.1979 General Court Martial
was convened against Capt.
Rathaur. On 17.4.1979 two charges
were framed against Capt. R.S.
Rathaur for offences under Section 69
of the Act, read with Section 3(1)(c)
of the Official Secrets Act, 1923 (in
short ’Secrets Act’).
The Union of India filed a
Counter Affidavit in Crl. WP No.
294 of 1979, inter alia, pointing
out that detenu was being tried by
a General Court Martial and that
sanction to the detention was given
by the Chief of Army Staff and
the Government. On 27.4.1979 this
Court vide Order dated 27.4.1979
dismissed the Writ Petition No.
294/1979 as infructuous. This Court
observed that:
”It has also not been disputed
that the
proceedings of the Court Martial
have started and the detenu has been
allowed to appoint a counsel of his
own choice who is at the
moment representing the detenu.
In these circumstances, therefore, the
Habeas Corpus Petition had become
infructuous and does not merit any
interference by this Court.”
As regards the allegations of torture
it was recorded that the Additional
Solicitor General produced before
the Court a record of the doctor
who had examined the detenu
thoroughly and found that the complaints
made by him were without
substance.
However, the petitioner was given
liberty to make an application before
the Military authorities for examination
by the Principal of the Medical
College, Jammu. Such examination
by a civil doctor was not to be taken
as casting any reflection or aspersion
on the impartiality or incompetence
of the doctor of the Military Department.
With these observations the
petition was dismissed.
On 2.8.1979 Rathaur was convicted
and sentenced to 14 years
rigorous imprisonment. In 1981
Rathaur filed a Criminal Writ Petition
being Crl.W.P. No. 9 of 1981
in the Delhi High Court challenging
the Court Martial proceedings.
On 23.3.1982 the High Court vide
its order dated 23.3.1982 dismissed
the petition of Rathaur relying upon
its earlier decision in Criminal Writ
No. 90 of 1980 dated 4.6.1981. In
1985 SLP (Crl.) 3573/85 against the
Order dated 23.3.1982 of the High
Court in Crl.W.P. No. 9 of 1981
was filed by RS Rathaur. In 1985
Rathaur filed a Writ Petition in this
Court being Criminal Writ Petition
No.1577 of 1985 again challenging
the legality of the court martial proceedings,
the sentence passed and the
confirmation thereof. It was alleged
that the court martial proceedings

and sentence passed were arbitrary,
illegal and that the procedure followed
was in violation of the Act and
the rules made thereunder.
Prayer (B) of the Writ Petition
reads as under :
”Issue a writ order or directions
in the nature of certiorari calling for
the entire proceedings of the General
Court Martial and quash the conviction
and sentence of the Petitioner
and the order of COAS confirming
the said conviction and sentence.”
On 10.2.1986 the Special leave
Petition preferred by Capt. Rathaur
to this Court being SLP (Crl.)
No.3573 of 1985 against the Order
dated 23.3.1982 of the High Court in
Crl.W.P.No. 9 of 1981 was dismissed.
On 28.4.1986 this Court dismissed
the Criminal Writ Petition No. 1577
of 1985. This Court observed that
the case was not a fit case for calling
for the records or for re-opening
the matter and hearing it. On the
prayer of the Counsel for Rathaur,
this Court directed that the records
be preserved for one more year.
On 23.1.1987 the Review Petition
filed by Rathaur in respect of the
order of this Court dated 10.2.1986
in SLP (Crl.) No.3573 of 1986 and
the order dated 28.4.1986 in Criminal
Writ Petition No.1577 of 1985
(Review Petition Nos. 493 of 1986
and 463 of 1986 respectively) were
dismissed.
The order reads as under :
”We have gone through the Review
Petitions and connected papers.
We find no merit in the Review Peti-
tions which are
accordingly dismissed.”
501
In May 1989 Rathaur was released
from custody. In 1995
Rathaur again challenged the validity
of the Court Martial proceedings
which had been conclusively decided
by this Court, by filing a fresh Writ
Petition being CWP No. 3063 of
1995. Rathaur, inter alia, prayed for
quashing of the same General Court
Martial proceedings. Prayer (1) of
Writ Petition is extracted below:
”(1) To issue a Writ of Mandamus
and
any other appropriate Writ, Order
or direction, inter alia commanding
the Respondent Nos. 1 and 2 in
accordance with Section 165 of the
Army Act, 1950 to annul the proceedings
of the General Court Martial
affecting the petitioner as they
are malafide, irrational, unjust and
illegal and there has been a failure of
justice.”
On 17.10.1996 the present appellants
filed an affidavit taking the
preliminary objection relating to the
maintainability of the Writ Petition
in view of the fact that the earlier
Writ Petition of Rathaur had already
been dismissed by the High Court on
23.3.1982 and the Special Leave Petition
as well as Review Petitions preferred
against the same were also dismissed
by this Court.
It is also pertinent to note that
this Court vide order dated 28.4.1986
had dismissed Criminal Writ petition
No.1577 of 1985 challenging the very
same General Court Martial Proceedings.

502 Union Of India v. Ranbir Singh Rathaur 2006
The appellant also submitted
that they would file a detailed
counter affidavit on merits after the
issue of maintainability is decided.
On 14.8.1998 the Hon’ble High
Court after hearing the matter at
length was pleased to reserve the
judgment.
On 22.3.1985 all the writ petitions
challenging orders under Section
18 of the Act were dismissed.
In 1985, one of the writ petitioners
Sri N.D. Sharma filed LPA being
LPA No. 116 of 1985 against the order
of dismissal. On 19.8.1986 the
said LPA came to be disposed of by
quashing the 5% cut, however, orders
of termination of services were maintained.
In 1986 Sri N.D. Sharma preferred
SLP(C) No. 13195 of 1986
against the order dated 19.8.1986.
On 27.2.1987 SLP(C) No. 13195 of
1986 was dismissed. In 1992 Sri N.D.
Sharma filed a fresh Writ Petition being
Civil Writ Petition No. 3107 of
1992 before Delhi High Court. On
7.9.1992 Writ Petition No. 3107 of
1992 was dismissed on the ground of
delay. In 1995 writ petition No. 4585
of 1995 was dismissed.
Similar petition has been dismissed
by the Division Bench in the
case of Subhash Juneja v. Union of
India (CW 271/95) as the said petitioner
tried to re-open the decision
which had attained finality. In 1997,
Review Petition was filed against the
order of dismissal being RP No. 5897
of 1997. On 7.11.1997 RP No. 5897
was dismissed.
In 1987-1994 the balance 7 offi-
cers filed LPAs.
It was contended by the present
appellants that these LPAs were covered
by the order in the case of Sri
N.D. Sharma. The matter came to
be referred to a Full Bench of the
High Court to ascertain:
”Whether the order of termination
passed by and in the name of
the President u/s 18 r/w Art. 310
invoking the doctrine of pleasure of
the President can be challenged on
the ground that it is camouflage and
as such violative of principles of natural
justice and the
fundamental right guaranteed
under Article 14?”
On 8.7.1994 the Full Court rendered
its judgment in Ex. Maj.N.R.
Ajwani & Ors. v. Union of India 55
(1994) SLT 217. It was held that:
(a) The concept of camouflage is
a facet of judicial review and the
Court would lift the veil in all cases
where it appears that the power is
used for collateral purposes under the
cloak or garb of innocuous form of an
order and determine the true character
of the order under
challenge.
(b) Therefore, an order under
Section 18 of the Army Act read with
Article 310 of the
Constitution invoking the doctrine
of pleasure of President is subject
to judicial reivew to ascertain
whether the same is exercised
lawfully and not vitiated for mala
fide or based on extraneous grounds
and that order can be challenged on
the ground that it is a

camouflage.”
In 1994 the Union of India preferred
Special Leave Petition (Civil)
Nos.18732-36 against the order of
the Full Bench of the High Court.
On 17.11.1994 Special Leave Petition
(Civil) Nos.18732-36 was granted.
Although the judgment of the Full
Bench was not disturbed it was held
that it is for the person who challenges
the order passed u/s 18 on
the ground of malafide to make out
a prima facie case. It is only if he
discharges the said burden, that the
Government is called upon to show
that the said order is not passed in
its malafide exercise of powers.
On 2.5.1995 the High Court vide
its order dated 2.5.1995 held that the
issue of maintainability would be decided
in the first instance. The High
Court in this regard observed:
”We are of the view that first
we should decide the batch whether
fresh writ petitions are maintainable,
then the question of going into the
privilege claimed by the respondents
will have to be decided.”
On 8.3.1996 Division Bench of
Delhi High Court dismissed similar
petition. It was contended by the
writ petitioner that the judgment
of the Full Bench has given fresh
cause of action to them to challenge
the order of termination of service
dated 3.3.1980 even if their challenge
has been adjudicated upon till the
Supreme Court. Earlier decisions
were not based on lack of jurisdiction
but it was not found to be a fit case of
interference. It was held that the petitions
are barred by the principles of
503
res judicata and are accordingly dismissed.
This order has been affirmed
by this Court.
On 6.1.1997 the present appellants
filed the affidavit bringing on
record this order’s dated 17.11.1994.
It was submitted that it would be
just and proper to decide the prima
facie case, if any, in favour of the appellant/petitioners.
It is only then
the burden would shift to the respondent
to show that the order had not
been passed in malafide exercise of
power.
On 14.8.1998 the relevant Original
records pertaining to the case
were shown to the Court. The order
does not indicate that the records
were insufficient or more papers were
required to be produced. It is pertinent
to note that all the LPAs and
two above said writ petitions were
being taken up together for hearing
by the High Court.
On 21.12.2000 the LPAs
Nos.4/87, 43/87, 139/87, 148/87,
21/88, 77/93 and 86/1994 were allowed.
It was, inter alia, observed by
the High Court as follows:
(1) The case of the appellants and
the case of the writ petitioners are interconnected
and
intertwined and they can be
looked as a whole. (2) Instead of producing
all the relevant records, the
respondent had produced only three
flaps. (3) Perusal of the Counter Affidavit
in all cases gives the impression
that the respondent had withheld
material facts.
(4) Respondents have not placed
any material justifying the action.

504 Union Of India v. Ranbir Singh Rathaur 2006
(5) Respondent think they are
law unot themselves.
(6) Respondents have chosen not
to produce the entire record.
(7) We may not have interfered
in view of finality reached on an adjudication
by this court provided the
records were produced.
(8) On the consideration of all the
facts and circumstances we are of the
view that there is no other conclusion
possible except to say that the orders
are merely camouflage and have been
passed for extraneous reasons under
the innocuous form of orders of termination.
(9) The appellants in the
LPA are entitled to all consequential
benefits. Orders passed against the
appellants in LPA are void.
On 3.1.2001 the counsel for the
present appellant received back the
files submitted to the High Court.
In these appeals, it has been
urged as follows:-
(1) By application of the principles
of res judicata, the writ petitions
were not maintainable. (2) The order
dated 17.11.1994 of this Court has
been overlooked.
(3) Onus of proof wrongly shifted
to the present appellant.
(4) The earlier adjudications have
not been taken into account.
(5) Delay in filing the writ petitions
has not been considered.
(6) Records were produced before
the High Court; contrary to what has
been recorded.
It was pointed out that the High
Court lost sight of the factual background
and on mere surmises and
conjectures allowed the writ petitions;
overlooking the fact that on
same grounds the writ petitions had
been earlier filed, were dismissed and
even the writ petitions and the SLPs.
filed in this Court were dismissed.
On clearly erroneous premises that
there was no material to justify the
action, the High Court came to the
conclusion as noted above. It is
submitted that the High Court proceeded
on the basis as if no material
were produced before it and this
is contrary to the actual position.
In fact volumes of documents were
filed which the High Court unfortunately
did not take note of. This
presumably happened because the
judgment was reserved in 1998 and
the impugned judgment was delivered
in December, 2000. The judgment
is full of erroneous conclusions
factually, which shows complete nonapplication
of mind. An observation
has been made by the High Court
that though finality in law is desirable
justice is of foremost importance.
It has not been even indicated
as to in what manner the earlier
proceeding suffered from legality.
The legality of the Court Marshal
proceedings which was assailed
were challenged earlier and were rejected
right up to this Court. To substantiate
the plea that original documents
were shown and the original
files were filed reference has been
made to the receipt. Reference has
also been made to the order dated
14th August, 1998, which reads as
follows:
”Synopsis have been placed on
record.

Mr. Tikky states that by
17.8.1998, photocopy of the relevant
record will be made available to
Court. Originals have been shown to
us.
Judgment reserved.”
It was pointed out that the only
basis for filing the fresh writ applications
as is evident from the averments
made in the writ petitions is
that some press reports had stated
about irregularities in holding people
guilty of espionage and the orders
passed in the cases which formed
the subject matter of challenge in the
LPAs. The subject matter of the writ
petitions which were under consideration
in the LPAs were entirely different
and had no connection with
the legality of the Court Marshal proceedings.
In response, learned counsel for
the respondent submitted that there
was a great amount of manipulation
and objectionable activities which
subsequently came to light and on
that basis the writ petitions were
filed before the High Court and have
been rightly allowed. In spite of
opportunity as noted by the High
Court, relevant documents were not
produced. The stand that documents
were filed before the High
Court is refuted.
On a bare reading of the High
Court’s order and the averments in
the writ petitions, one thing is crystal
clear that there was no definite allegation
against any person who was
responsible for the so called manipulation.
It is also not clear as to who
were the parties in the writ petitions
505
filed. In the grounds indicated in the
writ petitions it was stated that there
is no bar or impediment on the High
Court reviewing the petitioner’s case
as also connected cases to enquire
into the validity of the acts done
against the writ petitioner. Therefore,
it was an accepted position that
the writ petitioners wanted review
of the High Court’s order, which is
clearly impermissible. No ground
for seeking such review apparently
was made out. In any event we feel
that the High Court’s approach is
clearly erroneous. The present appellants
in the counter affidavit filed
had raised a preliminary objection
as regards the maintainability of the
writ petitions and had requested the
High Court to grant further opportunity
if the necessity so arises to
file a detailed counter affidavit after
the preliminary objections were decided.
The High Court in fact in one
of the orders clearly indicated that
the preliminary objections were to be
decided first. But strangely it did
not do so. It reserved the judgment
and delivered the final judgment after
about three years. There is also
dispute as to whether the relevant
documents were produced. What
baffles us is that the High Court
records with original documents were
shown to it and the Bench wanted
the copies to be filed. In the impugned
judgment the High Court
proceeded on the basis as if only a
few pages of the files were shown. If
that was really the case, there was
no necessity for the High Court to
direct the present appellants to file
copies. If after perusal of the documents
the High Court felt that these

506 Union Of India v. Ranbir Singh Rathaur 2006
were not sufficient the same would
have been stated. But that does
not appear to have been done. The
High Court also had not discussed
as to how the matters which stood
concluded could be reopened in the
manner done. No sufficient grounds
have been even indicated as to why
the High Court felt it necessary to
do so. To say that though finality
had been achieved justice stood at
a higher pedestal is not an answer
to the basic question as to whether
the High Court was competent to reopen
the whole issue which had become
concluded. The persons whom
the High Court felt were responsible
for alleged manipulation or persons
behind false implication were not impleaded
as parties. Newspaper reports
are not to be considered as evidence.
The authenticity of the newspaper
reports was not established by
the writ-petitioners. Even otherwise,
this could not have been done in a
writ petition, as disputed questions
of fact were apparently involved. The
matters which the High Court found
to have been established were really
not so. The conclusions were based
on untested materials, and the writpetitioners
had not established them
by evidence. Since the High Court
has not dealt with the matter in the
proper perspective we feel it would
be proper for the High Court to rehear
the matter. The High Court
shall first decide the preliminary objections
raised by the present appellants
about the non-maintainability
of the writ petitions. Normally such
a course is not to be adopted. But in
view of the peculiar facts involved,
it would be the appropriate course
to be adopted in the present case.
Therefore, we remit the matter to
the High Court for fresh hearing. We
make it clear that whatever we have
observed should not be treated to be
the conclusive findings on the subject
matter of controversy. The appeals
are allowed without any order
as to costs. Since the matter is
pending since long, we request the
High Court to dispose of the matter
as early as practicable, preferably
within four months from the date of
receipt of the judgment. No costs.

Chapter 43
Union of India v. Capt.
Satendra Kumar 2006
Union of India v. Capt. Satendra
Kumar (Arijit Pasayat and Lokeshwar
Singh Panta, JJ.) Union of India
and Ors. : Petitioner(s) v. Capt.
Satendra Kumar : Respondent(s)
Civil Appeal No. 2084 of 2003,
decided on July 18, 2006
The Judgment of the Court was
delivered by
Arijit Pasayat, J.
Challenge in this appeal is to the
legality of the judgment rendered by
a Division Bench of the Allahabad
High Court holding that the respondent
is entitled to be re-instated and
is to be given time up to 9.6.2004 to
pass the Part B examination. The
background facts in a nutshell are
as under: Respondent was commissioned
on 9.6.1984 as an Officer in
the Indian Army. In terms of Rule
13-A of the Army Rules, 1954 (in
short the ’Rules’) read with para 79
of the Defence Service Regulations
(in short the ’Regulations’) all commissioned
officers were required to
pass, in terms of the existing rules,
the promotional examination (Part
B) within 13 years of reckonable service.
Thereafter, they were required
to pass Part D examination for promotion
within 20 years. The respondent
making apparently wrong
and erroneous representation that he
had completed Part B course and
had passed, applied for next promotional
Part D examination without
indicating correct particulars regarding
the results of Part B examination
in the application form.
When the authorities found that he
was not eligible, his result in Part
D examination was declared to be
void. Since the respondent had not
completed Part B examination as
per the existing rules and Special
Army Instructions a show cause notice
was issued in terms of Rule 13-
A of the Rules. Respondent replied
to the show cause notice and made
a statutory complaint. While the
matter was pending, on 8.1.1998 the
respondent was awarded severe displeasure
(non-recordable) for filing
false application form for Part D ex-

508 Union of India v. Capt. Satendra Kumar 2006
amination. This was, however, unconnected
with the show cause notice
issued earlier under Rule 13-A. On
20.8.1999 the Government of India
amended Army Instructions whereby
the time limit for completing the
examination was extended from 13
years to 20 years. It was however
made applicable with effect from
24.4.1998. On 5.7.2000 the appellant
communicated its decision not
to retain the respondent in service
as he had failed to qualify in Part
B examination within the prescribed
time limit. On receipt of the order
in question which permitted the respondent
to make a representation, if
any, within 15 days, the respondent
made a representation on 2.8.2000.
On 21.9.2001 order was passed retiring
the respondent from service
in terms of Section 19 of the Army
Act, 1950 (in short the ’Act’) read
with Rule 13-A of the Rules. Respondent
filed a Writ Petition before
the Allahabad High Court challenging
the order dated 5.7.2000. The
primary stand was that by the time
the order was passed, period for passing
the examination was extended up
to 20 years and, therefore, he had
time till 9.6.2004 to pass the examination
in question. The present appellants
pointed out that by the time
the amendment was made the period
of 13 years prescribed under the
Army Instructions was already over
and in any event the amendment was
operative with effect from 24.4.1998
and was not applicable to the respondent.
The High Court, however,
was of the view that when the
impugned order of voluntary retirement
was passed in September, 2001
the period had been amended from
13 years to 20 years and, therefore,
the respondent was entitled to reinstatement.
Learned counsel for the
appellants submitted that the High
Court clearly erred in holding that
the amendment was applicable to the
respondent. By the time the amendment
was introduced the period of 13
years originally stipulated was over
so far as the respondent is concerned
and in any event the amendment was
made specifically operative with effect
from 24.4.1998 and was clearly
inapplicable to the respondent. No
one appears for the respondent. We
find that the High Court’s approach
is clearly untenable. The relevant
Rule and the instructions read as follows:
”Promotion Examination Part
B(Lt. to Captain) As per SAI 1/S/85
amended vide SAI/26/S/89: 15(a)
Promotion Examination Part B. Officers
who fail to qualify in Promotion
Examination Part B till completion
of 13 years reckonable service for
officers commissioned before 31 July
1984 and 11 years reckonable service
in the case of officers commissioned
on or after 31st July, 1984 will be issued
a show cause notice under AR
13-A for termination of service. The
services of these officers will be terminated
as per the provisions contained
in Army Rule 13-A.” Rule 13-
A. Termination of Service of an officer
by the Central Government on his
failure to qualify at an examination
or course (1) when an officer does
not appear at or, having appeared
fails to qualify at the retention examination
or promotion examination
or any other basic course or examination
within the time or extended time

specified in respect of that examination
or course, the Chief of the Army
Staff (or the Military Secretary) shall
call upon the officer to show cause
why he should not be compulsorily
retired or removed from the service.
(2) In the event of the explanation
being considered by the Chief of the
Army Staff (or the Military Secretary)
to be unsatisfactory, the matter
shall be submitted to the Central
Government for orders, together
with the officer’s explanation and the
recommendations of the Chief of the
Army Staff (or the Military Secretary)
as to whether the officer should
be- (a) called upon to retire; or (b)
called upon to resign. (3) The Central
Government, after considering
the explanation if any, of the officer
and the recommendation of the
Chief of the Army Staff (or the Military
Secretary), may call upon the
officer to retire or resign, and on his
refusing to do so, the officer may be
compulsorily retired or removed from
the service on pension or gratuity, if
any, admissible to him.” So far as the
509
amendment to the Army Instructions
and Regulations are concerned, the
amended Army Instructions issued
on 20th August, 1999 were applicable
with effect from 24.4.1998. That
is clearly indicated in the amended
instructions issued on 20th August,
1999. The President had sanctioned
the amendment to be operative from
24.4.1998. By the time the amendment
came into effect, the 13 years
period which was available to the
respondent to pass Part B examination
was over. The notice regarding
non success in the examination
within the stipulated time had
also been given to the respondent on
11.9.1997. Merely because the final
order was passed on 21.9.2001 that
did not change the position so far
as the respondent is concerned. The
High Court is, therefore, clearly in error
in holding that the extended period
of 20 years was applicable to the
respondent. The High Court’s order
is indefensible and is set aside. The
appeal is allowed. No costs.

510 Union of India v. Capt. Satendra Kumar 2006

Chapter 44
Romesh Kumar Sharma v.
Union of India 2006
Romesh Kumar Sharma v. Union
of India & Ors [2006] Insc 462 (1 August
2006)
Arijit Pasayat & S.H. Kapadia
With CIVIL APPEAL NO. 3222
OF 2006 (Arising out of SLP (C) No.
5832 of 2006) ARIJIT PASAYAT, J.
Delay condoned.
Leave granted in SLP (C)
No.5832 of 2006.
Appellants in both the appeals
call in question legality of the judgment
rendered by a Division Bench of
the Jammu and Kashmir High Court
dismissing the Letters Patent Appeal
filed by the appellants questioning
correctness of the order passed by
a learned Single Judge whereby the
writ petition filed by him was dismissed.
The review petition filed was
also dismissed which is the subject
matter of challenge in Civil Appeal
No. 7308 of 2003. The other appeal
relates to the order passed in the Letters
Patent Appeal.
Background facts in a nutshell
are as follows :
The appellant while working
as Havildar/Clerk (GD) in Ladakh
Scouts, having 17 years service in
the Army, was found involved, along
with a few other persons, in espionage
activities during the period
1984-85. The appellant along
with others was interrogated and a
Court of Inquiry under Rule 177
of the Army Rules, 1954 (in short
the ’Rules’) was constituted to collect
evidence and to report. Said
Court of Inquiry confirmed the involvement
of the appellant. Keeping
in view the paramount consideration
of Army discipline and the security
of the State, it was considered
expedient by the authorities to proceed
against the appellant under Section
20(1) of the Army Act, 1950 (in
short the ’Act’) read with Rule 17 of
the Rules. Accordingly, the appellant
was dismissed from service dispensing
with enquiry.
Appellant challenged the order
of dismissal on the ground that the

512 Romesh Kumar Sharma v. Union of India 2006
same was illegal, unconstitutional,
improper, malafide and violative of
Rule 17 of the Rules and Articles 14
and 21 of the Constitution of India,
1950 (in short ’the Constitution’)
and that no opportunity of being
heard had been afforded to him to explain
his conduct. In the counter affidavit
filed by the respondent-Union
of India and its functionaries, it was
pointed out that the approval of the
Chief of Army Staff had been obtained
and the procedures required
have been duly complied with.
The basic stand of appellant before
the High Court was that an enquiry
had been conducted to find
out whether the appellant and others
were involved in the alleged espionage,
the same was given up midway
and ultimately the order of termination
was passed. It was submitted
that the procedure required was
not followed and in any event action
was taken without following the principles
of natural justice. The High
Court rejected the stand holding that
the enquiry which was originally conducted
was not qua the appellant but
it related to the incident. Further
neither any notice was issued nor any
charge sheet was submitted. In any
event it was held that the authorities
were empowered to take action
in terms of Section 20 of the Act read
with Rule 17 of the Rules in appropriate
cases. The Letters Patent Appeal
as noted supra did not bring any
relief to the appellant.
A review application was filed
against the order of learned Single
Judge as affirmed by the Division
Bench, which as noted above, was
also dismissed.
In support of the appeal, Mr.
Bhim Singh, learned counsel submitted
that the true scope and ambit of
Rule 17 of the Rules has not been
kept in view. Power of dismissal or
removal from service is conferred on
the Chief of the Army Staff. An enquiry
was conducted by a Court of
Inquiry and the role attributed to the
appellant is very minor and does not
warrant an order of dismissal. Parameters
of the power of dismissal or
the removal are contained in Rule 17
of the Rules.
The proviso is of exceptional nature.
No reason was recorded as to
why, it was thought to be not expedient
or reasonably practicable to comply
with the provisions of the main
part of Rule 17 of the Rules. That
being so the order of dismissal cannot
be maintained.
Per contra learned counsel for the
respondent-Union of India and its
functionaries submitted that modalities
to be followed when Chief of
the Army Staff thinks it inexpedient
to follow procedure as laid down
in the main part of Rule 17 of the
Rules have been followed. He gave
a certificate to the effect that it is
not expedient or reasonably practicable
to comply with the provisions of
the Rules and certificate as required
has been given. It is submitted that
on consideration of the materials on
record done in an objective manner,
the Chief of the Army Staff passed
the order. It has not been even alleged
or shown that there was any
mala fide exercise of powers. That
being so the High Court was justified

in its conclusion that the grievances
are without substance.
In order to appreciate rival submissions,
it is necessary to take note
of Section 20 of the Act and Rule 17
of the Rules.
The applicability of the proviso to
Rule 17 is the core issue to be considered.
20.
Dismissal, removal or reduction
by the Chief of the Army Staff and
by other officers.
1.
The Chief of the Army Staff] may
dismiss or remove from the service
any person subject to this Act other
than an officer. 2.
The Chief of the Army Staffs may
reduce to a lower grade or rank or
the ranks, any warrant officer or any
non-commissioned officer. 3.
An officer having power not less
than a brigade or equivalent commander
or any prescribed officer may
dismiss or remove from the service
any person serving under his command
other than an officer or a junior
commissioned officer. 4.
Any such officer as is mentioned
in sub-section (3) may reduce to a
lower grade or rank or the ranks, any
warrant officer or any non- commissioned
officer under his command. 5.
A warrant officer reduced to the
ranks under this section shall not,
however, be required to serve in the
ranks as a sepoy. 6.
The commanding officer of an
acting non-commissioned officer may
order him to revert to his perma-
513
nent grade as a non-commissioned officer,
or if he has no permanent grade
above the ranks, to the ranks. 7.
The exercise of any power under
this section shall be subject to the
said provisions contained in this Act
and the rules and regulations made
thereunder.
17.
Dismissal or removal by Chief of
the Army Staff and by other officers.
Save in the case where a person is
dismissed or removed from service on
the ground of conduct which has led
to his conviction by a criminal court
or a court martial, no person shall
be dismissed or removed under subsection
(1) or sub-section (3) of section
20; unless he has been informed
of the particulars of the cause of action
against him and allowed reasonable
time to state in writing any reasons
he may have to urge against his
dismissal or removal from the service:
Provided that if in the opinion
of the officer competent to order the
dismissal or removal, it is not expedient
or reasonably practicable to comply
with the provisions of this rule,
he may after certifying to that effect,
order the dismissal or removal
without complying with the procedure
set out in this rule. All cases of
dismissal or removal under this rule
where the prescribed procedure has
not been complied with shall be reported
to the Central Government.
The normal function of a proviso
is to except something out of the enactment
or to qualify something enacted
therein which but for the proviso
would be within the purview of

514 Romesh Kumar Sharma v. Union of India 2006
the enactment. As was stated in
Mullins v. Treasurer of Survey [1880
(5) QBD 170, (referred to in Shah
Bhojraj Kuverji Oil Mills and Ginning
Factory v. Subhash Chandra
Yograj Sinha (AIR 1961 SC 1596)
and Calcutta Tramways Co. Ltd. v.
Corporation of Calcutta (AIR 1965
SC 1728); when one finds a proviso
to a section the natural presumption
is that, but for the proviso, the
enacting part of the section would
have included the subject matter of
the proviso. The proper function of
a proviso is to except and to deal
with a case which would otherwise
fall within the general language of
the main enactment and its effect is
confined to that case. It is a qualification
of the preceding enactment
which is expressed in terms too general
to be quite accurate. As a general
rule, a proviso is added to an enactment
to qualify or create an exception
to what is in the enactment
and ordinarily, a proviso is not interpreted
as stating a general rule.
”If the language of the enacting part
of the statute does not contain the
provisions which are said to occur in
it you cannot derive these provisions
by implication from a proviso.” Said
Lord Watson in West Derby Union
v. Metropolitan Life Assurance Co.
(1897 AC 647)(HL). Normally, a proviso
does not travel beyond the provision
to which it is a proviso. It carves
out an exception to the main provision
to which it has been enacted
as a proviso and to no other. (See
A.N. Sehgal and Ors. v. Raje Ram
Sheoram and Ors. (AIR 1991 SC
1406), Tribhovandas Haribhai Tamboli
v. Gujarat Revenue Tribunal
and Ors. (AIR 1991 SC 1538) and
Kerala State Housing Board and Ors.
v. Ramapriya Hotels (P)Ltd. and
Ors. (1994 (5) SCC 672).
”This word (proviso) hath divers
operations.
Sometime it worketh a qualification
or limitation; sometime a condition;
and sometime a covenant”
(Coke upon Littleton 18th Edition,
146) ”If in a deed an earlier clause is
followed by a later clause which destroys
altogether the obligation created
by the earlier clause, the later
clause is to be rejected as repugnant,
and the earlier clause prevails....But
if the later clause does not destroy
but only qualifies the earlier, then the
two are to be read together and effect
is to be given to the intention of
the parties as disclosed by the deed
as a whole” (per Lord Wrenbury in
Forbes v. Git [1922] 1 A.C. 256).
A statutory proviso ”is something
engrafted on a preceding enactment”
(R. v. Taunotn, St James, 9 B. & C.
836).
”The ordinary and proper function
of a proviso coming after a general
enactment is to limit that general
enactment in certain instances”
(per Lord Esher in Re Barker, 25
Q.B.D. 285).
A proviso to a section cannot be
used to import into the enacting part
something which is not there, but
where the enacting part is susceptible
to several possible meanings it may
be controlled by the proviso (See Jennings
v. Kelly [1940] A.C. 206).” Under
the proviso to Rule 17 the Chief
of the Army Staff and other officers

are competent to order dismissal or
removal without complying with the
procedure set out in the main part
of the Rule after certifying that it is
not expedient or reasonably practicable
to comply with the provisions so
set out. There is a further requirement
that such cases of dismissal or
removal shall be reported to the Central
Government.
Original records were produced
before us. A perusal thereof shows
that the Chief of the Army Staff had
followed the requisite procedure and
the certificate as contemplated in the
proviso to Rule 17 of the Rules has
been given. The note sheets, the
records which were also perused by
the High Court clearly show that various
aspects were taken note of and it
was specifically recorded that it will
be inexpedient to follow the procedure
provided in the main part of
Rule 17 of the Rules. There is, therefore,
no substance in the plea taken
by learned counsel for the appellant.
Additionally, it is alleged that
the main plank of the argument of
the appellant before the High Court
was that the enquiry which was initiated
should not have been abandoned
midway and should have been
continued. As rightly noted by the
High Court, the enquiry was not qua
the appellant but it related to the
incident. That being so there was
nothing wrong in the order of dismissal.
It cannot be faulted. In any
event enquiry was not abandoned
midway as claimed. The basic facts
were revealed during enquiry. In any
event, as has been held by this Court
in Union of India and Others v. Har-
515
jeet Singh Sandhu [2001(5) SCC 593]
even after a Court Martial is held departmental
action is not prohibited.
In para 41 it was noted as follows:
”Having thus explained the law
and clarified the same by providing
resolutions to the several illustrative
problems posed by the learned ASG
for the consideration of this Court
(which are illustrative and not exhaustive),
we are of the opinion that
the expiry of period of limitation
under Section 122 of the Act does
not ipso facto take away the exercise
of power under Section 19 read
with Rule 14. The power is available
to be exercised though in the
facts and circumstances of an individual
case, it may be inexpedient to
exercise such power or the exercise
of such power may stand vitiated if
it is shown to have been exercised
in a manner which may be called
colourable exercise of power or an
abuse of power, what at times is also
termed in administrative law as fraud
on power. A misconduct committed
a number of years before, which
was not promptly and within the
prescribed period of limitation subjected
to trial by court martial, and
also by reference to which the power
under Section 19 was not promptly
exercised may cease to be relevant by
long lapse of time.
A subsequent misconduct though
less serious may aggravate the gravity
of an earlier misconduct and provide
need for exercise of power under
Section 19. That would all depend
on the facts and circumstances
of an individual case. No hard and
fast rule can be laid down in that

516 Romesh Kumar Sharma v. Union of India 2006
behalf. A broad proposition that
power under Section 19 read with
Rule 14 cannot be exercised solely on
the ground of court martial proceedings
having not commenced within
the period of limitation prescribed
by Section 122 of the Act, cannot
be accepted. In the scheme of the
Act and the purpose sought to be
achieved by Section 19 read Rule 14,
there is no reason to place a narrow
construction on the term ‘impracticable’
and therefore on availability or
happening of such events as render
trial by court martial impermissible
or legally impossible or not practica-
ble, the situation would be covered
by the expression-the trial by court
martial having become ‘impracticable’.”
It was also pleaded that approval
of Central Government was
necessary in case action was taken
under the proviso to Rule17. We
find no such necessity prescribed. All
that is required that where proviso
to rule 17 is resorted to report has
to be made to the Central Government.
Record reveals that same has
been done.
Above being the position we find
no merits in these appeals, which are
accordingly dismissed. No cost.

Chapter 45
Pradeep Singh v. Union Of
India 2007
Pradeep Singh v. Union Of India
& Ors on 19 April, 2007 Author: .
A Pasayat Bench: . A Pasayat, L S
Panta
CASE NO.:
Appeal (civil) 5799 of 2000
PETITIONER:
Pradeep Singh
RESPONDENT:
Union of India & Ors
DATE OF JUDGMENT:
19/04/2007
BENCH:
Dr. ARIJIT PASAYAT &
LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
Challenge in this appeal is to
the judgment rendered by a Division
Bench of the Jammu and Kashmir
High Court dismissing the Letters
Patent Appeal filed by the appellant.
Background facts in a nutshell
are as follows:
Absence for a period of 2=
months was treated as misconduct
and Summary Court Martial was
convened in terms of Section 116
of the Army Act, 1950 (hereinafter
referred to as the ’Act’). He was
charged under Section 39A of the Act
by order dated 7.8.1989 for having
remained absent from duty without
leave. He was tried and punished by
a Summary Court Martial vide order
dated 16.8.1989. The order of dismissal
passed by the Court Martial
was challenged in the writ petition
primarily on the following grounds:
(i) that officiating Commanding
Officer was not competent to convene
the Summary Court Martial
and therefore, the proceedings and
the sentence awarded by the Summary
Court Martial is illegal being
without jurisdiction; (ii) that the petitioner
was neither provided any legal
assistance nor allowed to crossexamine
the witnesses, and therefore,

518 Pradeep Singh v. Union Of India 2007
the right of hearing has been denied
to him;
(iii) that the petitioner having
been punished by removal of the rank
could not be tried and punished on
the same ground.
The respondents took the stand
that all the submissions are without
foundation. The High Court noticed
that the appellant was posted
somewhere in Leh and was deputed
for Commando course in December,
1988 which he joined in January,
1989. He completed the course on
7.2.1989, but instead of reporting at
the Transit Camp after completion of
the course, he went home on the assumption
that he had already applied
for annual leave which must have
been sanctioned by his Commanding
Officer. He finally reported at
259-Transit Camp on 21.4.1989 and
reached his unit on 19.5.1989. His
grievance was that immediately after
he reached the unit, his rank of Naik
was withdrawn. Later he was directed
to appear before the Summary
Court Martial on 11.8.1989, which
concluded the hearing and awarded
the punishment of dismissal. The
High Court found that the stand that
Officiating Commanding Officer was
not competent to convene Summary
Court Martial was without substance
in view of the definition of ”Commandant
Officer” as given in Section
3(v) of the Act. So far as the denial
of legal assistance is concerned, it
was noted that the appellant admitted
that Major D.P. Naikavde was
named as his friend to advise him
during the course of trial. His plea
that he did not see the said officer
during the court martial was found to
be without substance. It was noted
that in case he was not assisting
him, he could have made a grievance
before the Summary Court Martial.
That has not been done. There was
no substance in the plea. The appellant
was informed that on completion
of the commandant course he did
not immediately join the unit and instead
joined after 2= months. He assumed
leave may have been granted
without any foundation. As he was
holding acting rank of Naik, he forfeited
the right to hold the same because
of his absence from duty without
leave as per army Headquarter
letter No.94930/AG/PSC (C) dated
21.11.1988. Appellant was not holding
the substantive rank of Naik,
the same was withdrawn, because
of absence without leave. It was
in essence withdrawal of a concession
given. The plea relating to dual
jeopardy was, therefore, without any
substance. Accordingly, writ petition
was dismissed. Before the Division
Bench the stand taken before the
learned Single Judge was reiterated.
The Division Bench found that in
view of the factual scenario as noted
by the learned Single Judge, the writ
petition had been rightly dismissed.
It, however, observed that in case
some persons similarly situated were
treated with leniency, it was open to
the appellant to make a representation
which shall be duly considered
by the respondents. With the aforesaid
observation the Letters Patent
Appeal was dismissed.
The learned counsel for the appellant
highlighted the same aspects

which were urged before the learned
Single Judge and the Division Bench.
According to him, the withdrawal of
the rank was a punishment and the
High Court was, therefore, not justified
in its view. Learned counsel
for the respondent on the other hand
supported the orders. With reference
to Section 80 of the Act, learned
counsel for the appellant submitted
that removal of stripes amounted to
punishment and, therefore, further
action was not permissible. In this
context, the rules relating to acting
ranks need to be noted. The same is
contained in Army Instructions Nos.
84 and 88. Rule 84 relates to promotion
for Junior Commissioned Officers
and other Ranks. According to
the instructions, there are two kinds
of promotion, i.e. one acting and
other substantive. So far as the acting
rank is concerned, they are dealt
with in Part I. The same so far relevant
reads as under:
”PART I .- ACTING RANKS
2. The following are the general
provisions governing the above
promotions:-
(a) Acting promotion will be
made to fill vacancies in authorized
establishment, whether temporary or
permanent. Acting rank will remain
unpaid until an unbroken period of
28 days has been served in that rank
when acting rank will be converted
into paid acting rank; pay will be
admissible with retrospective effect
from the date of the grant of such
acting rank.
(b) The rank of Nb Ris/Nb Sub
is a substantive rank. No acting pro-
519
motion to that rank will, therefore,
be made. A senior NCO may, however,
be authorized to perform the
duties of a Nb Ris/Nb Sub where
necessary.
(c) Every Commanding Officer of
a Unit or Officer-in-charge Records,
where acting promotions are centrally
controlled on Corps roster basis,
is empowered to make acting promotions,
provided that the individuals
concerned are in possession of
all the qualifications prescribed for
the higher rank. The authority competent
to sanction acting promotion
is also empowered to order reversion
from such acting rank. Acting and
paid acting promotions or reversions
will be published in Part II orders
which will be the authority for issue
of pay and allowances of the appropriate
rank.
(d) Acting rank will be granted
from the day the vacancy occurs provided
that the individual has assumed
the duties of the higher rank
from that day and reversion will take
place with effect from the day the individual
ceases to perform the duties
of the appointment for which acting
rank is granted or the vacancy ceases
to exist except as provided otherwise.
(e) On casual, annual or accumulated
annual leave (i) On casual leave
An individual will retain paid acting
rank or paid lance appointment during
the period of casual leave and no
acting promotion will be permissible
in his place. Acting rank will, however,
be relinquished from the date
of overstayal of casual leave except
when the period of casual leave and
its overstayal is regularized against

520 Pradeep Singh v. Union Of India 2007
annual leave entitlement for the year
in which casual leave is taken and as
Special Leave vide Rule 6 (d) (ii) of
Leave Rules for the Service, Vol. I-
Army Cases of overstayal of casual
leave owing to sickness will be dealt
with as in clause g (ii) below.
(ii) On annual or accumulated
annual leave An individual will retain
paid acting rank or paid lance
appointment during the period of
annual or accumulated annual leave
and no acting promotion will be permissible
in his place. Acting rank
will, however, be relinquished from
the date of expiry of such leave unless
the overstayal is due to natural
calamities and the period of overstayal
is regularized as Special Leave
vide Rule 6(d) (ii) of Leave Rules for
the Services, Vol. I.- Army.
xxx xxx xx
Part II deals with Substantive
Ranks. The withdrawal of ranks of
Naik was on account of his unauthorized
absence and was not, therefore,
punishment in that sense. Section
80 on which strong reliance has been
placed reads as under:
”80. Sitting in closed court (1)
A court martial shall, where it is so
directed by these rules, and may in
any other case on any deliberation
amongst the members, sit in closed
court.
(2) No person shall be present in
closed court except the members of
the court, the judge advocate (if any)
and any officers under instruction.
(3) For the purpose of giving effect
to the foregoing provisions of the
rule, the court martial may either re-
tire or cause the place where they
place where they sit to be cleared of
all other persons not entitled to be
present. (4) Except as hereinbefore
mentioned all proceedings, including
the view of any place, shall be in
open court and in the presence of the
accused subject to sub-rule (5). (5)
The court shall have the power to exclude
from the court any witness who
has yet to give evidence or any other
person, other than the accused, who
interferes with its proceedings.”
A bare reading of the provisions
along with the Army Instructions
make it clear that Section 80 has no
application to the facts of the present
case.
So far as legality of the Court
Martial is concerned, the learned Single
Judge has found that the appellant
was not holding substantive rank
of Naik. The rank which was temporarily
given was liable to be withdrawn
in case of absence from duty
and somebody else had to hold that
post. This situation arises when a
person who was acting as Naik is not
available.
The next ground of challenge relates
to legality of proceedings before
the Court Martial.
Though Court Martial proceedings
are subject to judicial review
by the High Court under Article 226
of the Constitution, the court martial
is not subject to the superintendence
of the High Court under Article
227 of the Constitution. If a
court martial has been properly convened
and there is no challenge to
its composition and the proceedings

are in accordance with the procedure
prescribed the High Court or
for that matter any court must stay
its hands. Proceedings of a court
martial are not to be compared with
the proceedings in a criminal court
under the Code of Criminal Procedure,
1973 where adjournments have
become a matter of routine though
that is also against the provisions of
law. It has been rightly said that
court martial remains to be significant
degree, a specialized part of
overall mechanism by which the military
discipline is preserved. It is
for the special need for the armed
forces that a person subject to Army
Act is tried by court martial for an
act which is an offence under the
Act. Court Martial discharges judicial
function, and to a great extent,
is a court where provisions of
the Evidence Act are applicable. A
court martial has also the same responsibility
as any court to protect
the rights of the accused charged before
it and to follow the procedural
safeguards. If one looks at the
provisions of law relating to court
martial in the Army Act, the Army
Rules, Defence Service Regulations
and other Administrative Instructions
of the Army, it is manifestly
clear that the procedure prescribed is
521
perhaps equally fair if not more than
a criminal trial provides to the accused.
When there is sufficient evidence
to sustain conviction, it is unnecessary
to examine if pre-trial investigation
was adequate or not. Requirement
of proper and adequate investigation
is non-jurisdictional and
any violation thereof does not invalidate
the court martial unless it is
shown that accused has been prejudiced
or a mandatory provision has
been violated. One may usefully refer
to Rule 149 quoted above. The
High Court should not allow the challenge
to the validity of conviction and
sentence of the accused when evidence
is sufficient, court martial has
jurisdiction over the subject matter
and has followed the prescribed procedure
and it is within its powers to
award punishment.
Above position was highlighted
in Union of India and Ors. v. IC
14827, Major A. Hussain (AIR 1998
SC 577).
The inevitable result is that the
appeal is without merit, deserves dismissal
which we direct. However, liberty
as given to the appellant by the
Division Bench, having not been assailed
by the respondents, remains
unaltered.

522 Pradeep Singh v. Union Of India 2007

Chapter 46
Union Of India v. S.P.S.
Rajkumar 2007
Union Of India v. S.P.S. Rajkumar
And Ors on 24 April, 2007
Author: . A Pasayat Bench: . A
Pasayat, L S Panta
CASE NO.:
Appeal (civil) 127 of 2003
PETITIONER:
Union of India
RESPONDENT:
S.P.S. Rajkumar and Ors
DATE OF JUDGMENT:
24/04/2007
BENCH:
Dr. ARIJIT PASAYAT &
LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
(With Civil Appeal Nos.
128/2003 and 606/2003)
Dr. ARIJIT PASAYAT, J.
These three appeals relate to the
order passed by a Division Bench of
the Delhi High Court allowing the
writ petition filed by S.P.S. Rajku-
mar, the appellant in C.A.No.128 of
2003. The other two appeals have
been filed by the Union of India, i.e.
Civil Appeal No.127 of 2003 against
the main judgment and Civil Appeal
No. 606 of 2003 against the modification
order.
Background facts in a nutshell
are as follows:
Respondent-Rajkumar joined Air
Force as a Commissioned Officer in
the Logistics Branch. He rose to
the rank of Group Captain in 1998.
According to the appellant- Union
of India, respondent-Rajkumar committed
large scale impropriety in the
matter of purchases while he was
functioning in the rank of Group
Captain. On 12.1.2000, the charge
sheet was accordingly issued listing
out 9 charges relating to financial impropriety
committed by him. The
conveying order for the Assembly
of the General Court Martial (in
short the ’GCM’) was issued and
Judge Advocate was appointed. On
24.1.2000, the GCM proceedings as-

524 Union Of India v. S.P.S. Rajkumar 2007
sembled on a charge sheet containing
nine charges, all of which pertained
to improper purchase procedure
and financial impropriety. On
13.3.2000, GCM proceedings concluded
with the finding that the respondent
was guilty of four charges.
Accordingly, it sentenced the respondent
to forfeiture of two years seniority
and severe reprimand. By order
dated 13.4.2000, the Convening Authority
of GCM i.e. AOC-Incharge,
Maintenance Command Head Quarters,
Nagpur, on review, ordered for
re-assembly of the GCM for revision
of the sentence.
On 24.4.2000, this Court in
Union of India and Anr. v. Charanjit
S. Gill and Ors. (JT 2000 (5) SCC
135) interpreted certain provisions of
the Army Act, 1950 (in short the
’Act’) and the Army Rules, 1954 (in
short the ’Army Rules’) holding that
the Judge Advocate should be equal
or superior to the rank of the accused
officer just like the Rules provided
for the members of GCM. However,
this Court gave prospective effect to
the judgment declaring that the same
shall not be applied to proceedings
which have attained finality and also
will not be applied to pending cases
in courts where such a plea has not
been raised. On 13.5.2000, pursuant
to the order of 14.3.2000, the GCM
re-assembled and passed a fresh sentence
of dismissal and revoked the
earlier sentence.
The respondent-Rajkumar submitted
two pre-confirmation petitions
on 25th May, 2000 and 30th
June, 2000.
The Chief of Air Staff on 7.9.2000
confirmed the findings and sentence.
He also dealt with the aspect of the
seniority of the Judge Advocate. The
Chief of Air Staff cited two reasons
on the aspect of Judge Advocate, (a)
question of seniority of Judge Advocate
was not raised before the GCM;
and (b) in fact Judge Advocate of
sufficient seniority was not available
and by doctrine of necessity the concerned
Judge Advocate was the only
available officer.
The respondent-Rajkumar filed
post confirmation petition under Section
161 (2) of the Air Force Act,
1950 (in short the ’Air Force Act’)
on 30.1.2000 and the same was rejected
by the Central Government
on 24.9.2001. By judgment dated
5.8.2002, the Division Bench of the
High Court quashed the decision of
the GCM proceedings of dismissal
of service on the ground that the
Judge Advocate was junior in rank
and, therefore, the GCM proceedings
were vitiated. However, liberty was
granted to proceed afresh with GCM.
The modification application filed by
Union of India was also dismissed by
the High Court.
In support of the appeal, learned
counsel for the Union of India submitted
that the vires of certain provisions
though raised were not pressed
into service before the High Court.
The only ground pressed into service
was that the Judge Advocate was junior
in rank. Therefore, the proceedings
were illegal.
With reference to Rule 40 of the
Air Force Rules, 1969 (in short the
’Air Force Rules’), it is submitted
that member of GCM should not be

junior, but it permits the juniors to
be taken as members in certain circumstances.
The Judge Advocate is
not a member of GCM.
It is not a case where at the
first instance respondent-Rajkumar
had raised any objection about the
alleged lack of seniority of the Judge
Advocate. It is submitted that the
provisions in the Army Act and under
the Army Rules are entirely different
from Air Force Act and Air
Force Rules. It is pointed out that
any Rule similar to Rules 103/104 of
the Army Rules did not exist in the
Air Force Rules.
The GCM proceedings were over.
Only the sentence part remained to
be finalized. There was no objection
raised during the GCM proceedings
and even no amendment was sought
for to pending proceedings. up to
the date of judgment there was no
plea relating to the lack of seniority
of the Judge Advocate. The order of
the GCM clearly indicated that there
was no officer available who was senior.
It is submitted that the High
Court had erred in holding that the
relevant date was the date of filing of
the writ petition. It should be the
date of the judgment of the GCM.
In reply, learned counsel for
the respondent-Rajkumar submitted
that the Gill’s judgment (supra) has
full application under the Air Force
Rules and the Army Rules. Similar
provisions relating to composition
of GCM are the same. The convening
order does not speak of any nonavailability.
525
It is to be noted that there was
no challenge to the finding that there
was no senior army officer available.
Rule 46 which relates to the eligibility
of the member does not speak of
seniority. It speaks of the same rank
or superior rank. There was no objection
at any point of time about the
lack of seniority. In fact the High
Court has fallen into error in holding
that the relevant date is the date
of filing of the writ petition.
There is also no plea raised in
these appeals as regards the finding
that nobody who was senior was
available. Therefore, the High Court
was not justified in interfering with
the conclusions of the GCM holding
the same to be not validly constituted.
The order is set aside. The
appeals of the Union of India stand
allowed to that extent. Raj Kumar’s
appeal is sans merit.
At this juncture, it is to be noted
that the question of appropriateness
of the sentence was raised before the
High Court. The High Court did not
examine that aspect in view of the
conclusions that the composition of
the GCM was not legal. The High
Court shall only consider that aspect.
Though certain pleas of mala fide appear
to have been raised in the writ
petition, the High Court has specifically
noted that, that plea was not
pressed into service. Therefore, the
High Court shall consider the writ
petition only on the question of sentence
and no other issue.
The appeals are accordingly disposed
of. There will be no order as
to costs.

526 Union Of India v. S.P.S. Rajkumar 2007

Chapter 47
Sheel Kr. Roy v. Secretary
M/O Defence 2007
Sheel Kr. Roy v. Secretary M/O
Defence & Ors [2007] Insc 642 (18
May 2007)
S.B. Sinha & Markandey Katju
S.B. Sinha, J :
1. Interpretation and application
of some provisions of the Army
Act 1950 (hereinafter referred to
as ”The Act”) and Army Rules,
1954 (hereinafter referred to as ”The
Rules”) arises for consideration in
this appeal, which arises out of
the judgment and order of a Division
Bench of the Delhi High Court
dated 4.3.2005 passed in Writ Petition
(Civil) No.3442 of 1998, dismissing
the writ petition filed by the appellant
herein.
2. Appellant joined the Army
Service on or about 18.8.1981. He
is a holder of B.Sc. (Biology) degree.
He has received trade training in the
Army as a Technician Electronic System.
He passed the 54th Entrance
Examination from Army Cadets College
from Dehra Doon in the year
1986.
He secured first position in the
South Command and third position
on an all India basis. In ordinary
course, he would have become
a Commisioned Officer upon obtaining
training from Army Cadet College,
Dehra Doon but prior thereto
he was posted to Ladakh. While
posted at Leh, owing to high altitude
of the place, he developed psychiatric
problems. For want of necessary
care, he became a psychiatry
patient. He had to undergo treatments
in the Army Hospitals situated
at Chandigarh, Allahabad, Jabalpur
and Ambala.
3. In the Medical Board proceedings
held on 22.4.1987, the appellant
was put in medical category ’CEE’
wherein it was opined :
”This 27 yrs. Old serving soldier
with more than 5 yrs. of service is
a case of Neurosis-onset of illness in
early Jan. 1987 while serving it high
altitude area.
Illness was characterised with
acute onset of attacks of chest pain,

528 Sheel Kr. Roy v. Secretary M/O Defence 2007
giddiness, vomiting and tingling sensation
all over the body, physical.
Present Condition.
Examination and relevant laboratory
parameters were within normal
limits. He was evaluated psychiatrically
at CH (WC) in Chandigarh in
Feb. 87.
Psychologically he was tense anxious
and worried. He showed preoccupation
on somatic symptoms,
craved for sympathy.
Exaggerated his symptoms and
expressed his inability to withstand
extreme cold climate and other environmental
constraints, of high altitude
area. He had sleep and appetite
disturbances with normal insight and
judgment.
He has been managed with phychotherapy
and anxiolytics for which
response is favourable it present a
symptomatic. He is cheerful and
have no overt signs of anxiety. On
motivation for further service is FM
SF-10 dated 10 Apr. 87 is unsatisfactory.
He needs to be observed in low
medical category.
Recommended to be placed in
medical category CEE temporary
psychological for 6/12 yrs.
To be reviewed thereafter with
fresh AFMSF-10 by his O.C.Unit.”
[Emphasis supplied]
4. The medical re-categorization
which was to take place on or about
21.10.1987 was delayed. He continued
to be on medical leave and was
categorized to be in CEE category for
six months. Thereafter he went on
leave as a part of annual leave, but
he allegedly over stayed for about 96
days. Some punishment was imposed
on him by an order dated 5.12.89.
He prior to joining his present posting,
was posted in another unit on
20.1.1990.
He was allegedly found fit to join
his duties. He was again summarily
tried and awarded three days’ pay
fine despite the fact that his medical
re- categorization had not been done
timely. He was admitted to Medical
Hospital, Ambala from 13.5.1990 to
7.6.1990 for medical recategorisation.
He was granted casual leave for
the period of 7.6.1990 to 18.6.1990
to visit his family, but he allegedly
overstayed his leave again for 20
days, even though there is nothing
to show as to whether he had been
declared fit for joining his duties or
not. There is also nothing on record
to show that any action was taken
against him in respect thereof but admittedly
he was admitted to Medical
Hospital, Ambala for medical recategorization.
He was transferred to
Command Hospital (Western Command)
on 16.7.1990.
5. For his purported absence
for the period from 16.7.1990 to
22.7.1991, a chargesheet was submitted
which reads as under :
”The accused No.14243462A
Sigmn(TES) Sheel Kumar Roy of
2 Corps Air Sp. Sig Unit is charged
with :- Army Act Section 39(a) AB-
SENTING HIMSELF WITHOUT
LEAVE In that he, at Ambala Cantt,
absented himself without leave from
M11, Ambala Cantt. At 1000h.

on 16th July 1990 and remained so
till surrendered voluntarily at Depot
regt. (Corps of Signals) Jabalpur at
0700h on 22 Jul. 91.
Station : Ambala Cantt
Dated : 3 Sep. 91.
Sd/- (Amarjit Singh)
Col.Commanding Officer 2 Corps
Air Sp. Sig Unit”
6. We would deal with this aspect
of the matter a little later,
but we may notice that it is borne
out from the record that he had
again been sent to Command Hospital
(Western Command) for medical
re-categorization.
Having been found fit, he was allegedly
discharged from the Hospital
on 12.8.1991upon upgrading to Medical
Category ’AYE’. He was summarily
tried for another misconduct
and was awarded 7 days Rigorous Imprisonment
and 7 days Pay fine.
7. It is further interesting to note
that a Court of Enquiry was held in
terms of Army Rule 22 of the Rules
on 3.9.1991 in regard to the alleged
overstay from 16.07.1990. In its opinion
the Court of Enquiry observed :
”1. No.14243462 S/Man S.K.
Roy of 2 Corps Air Sup. Signal Unit
had absconded on 16 July 90 at 1000
h from M.H.Ambala Cantt while still
on their strength.
2. No.14243462 S/Man S.K. Roy
has been received by this hospital
on the authority of 2 Corps Air
Sup. Sig. Unit vide their letter
No.213/PC/SKR/03/X of 29 Jul 91
and admitted to this hosp. On 30 Jul
91 (FN).
529
3. Absence period of above patient
to be regularized administratively
as per existing orders by MH
Ambala Cantt/2 Corps Air Sup Sig
Unit.
4. o.13964654 L/NK/NA M.S.
Pillai ex-MH Ambala Cantt now
posted to 151 Base Hosp. Has given
false statement after having duly
cautioned that he had brought 3 patients
where as No.14243462 S/Man
S.K. Roy was absconding from MH
Ambala Cantt. Disciplinary action
against the individual is recommended.”
[Emphasis supplied]
8. We may also put on record
that, as far back as 17.5.1990, his
behaviour having been found unsatisfactory,
an opinion was formed
that ’his mental outlook and personal
habits and his behaviour in the unit
being unsatisfactory’ as it was recommended
not to retain him in service.
9. It is really a matter of
grave concern that, despite the recommendations
of the Court of Enquiry,
he while undergoing punishment
of 7 days’ Rigorous Imprisonment
by the order dated 30.8.1991,
the charge-sheet in question being
dated 3.9.1991 was issued to the appellant
by the Commanding Officer
of his unit. He was tried in a Summary
Court Martial proceeding held
on 7.9.1991 only for an hour i.e.
from 13.45 to 14.45 hrs. It is not
again in dispute that the Commanding
Officer himself was the Prosecutor
and also the Judge. He was
held guilty and sentenced to undergo
six months’ rigorous impris-

530 Sheel Kr. Roy v. Secretary M/O Defence 2007
onment and was also the punishment
of dismissal from service. On
Appeal, the Chief of Staff, however,
by order dated 5.10.1991 remitted
three months’ Rigorous Imprisonment
maintaining the sentence of
dismissal. He made representations
before the higher authorities.
10. The Writ Petition filed by
the appellant, as noticed hereinbefore,
has been dismissed by the High
Court. We may, however, before proceeding
with matter notice that the
records of the Court of Enquiry were
not placed before the High Court.
11. Ms. Lily Thomas, learned
counsel appearing on behalf of the
appellant inter alia would submit :
(i) Appellant having been suffering
from mental illness and having
been undergoing rigorous imprisonment
for seven days on a different
charge, service of the charge on
him during that period as also holding
of a Court Martial wherein the
Commanding Officer played both the
role of a prosecutor as also a Judge
amount to denial of his human right
as also Article 21 of the Constitution
of India. No legal assistance
was also provided to him and furthermore
no time having been granted
for preparation of his case as he was
in custody, the proceeding should be
treated to be an eye-wash.
(ii) Imposition of two punishments,
viz., rigorous imprisonment
as also dismissal from service is violative
of Section 39 read with Section
71 of the Act.
(iii) Appellant having been found
to be not fit for being retained in ser-
vice in a medical proceedings held
on 17.5.1990, quick successive convictions
one for making a complaint
to the Adjutant General directly and
another for violation of Section 39 of
the Act must be held to be wholly
illegal. Charge against the appellant
in regard to his alleged unauthorized
absence was based on incorrect
facts as from the movement order
filed by the respondents themselves,
it would appear that he had
been admitted in Medical Hospital,
Ambala on 11.7.1990.
(iv) Recommendations of the
Court of Enquiry although noticed
by the Commanding Officer himself
in the Summary Court Martial
Proceedings having not been taken
into consideration, the said authority
must be held to have misdirected
itself in law. Had the recommendations
been taken into consideration,
the Commanding Officer would have
regularized his leave and in any event
he having been found to be admitted
in a Medical Hospital or in a Hospital
as a patient, the findings of unauthorized
absence is perverse.
12. Mr. Vikas Singh, learned Additional
Solicitor General, appearing
on behalf of the respondents, on the
other hand, would submit that:
(i) the appellant having been
found fit for joining his services, no
illegality has been committed by the
Commanding Officer in awarding a
punishment of six months’ Rigorous
Imprisonment as also dismissal from
service.
(ii) Although the appellant had
pleaded guilty before the Command-

ing Officer, he had proceeded in
terms of Section 116 of the Act on the
premise as if the delinquent officer
had not pleaded guilty and, thus, the
Summary Court Martial proceedings
must be held to have been conducted
in accordance with law, particularly
when he had again pleaded guilty before
the Commanding Officer in the
said proceedings.
(iii) The contentions raised before
us having not been raised before the
High Court, this Court should not
entertain the same.
13. The fact that the appellant
was suffering from mental illness for a
long time is not in dispute. We have
noticed hereinbefore that he was recommended
to be placed in Medical
Category CEE for six to twelve years.
His medical re-categorization,
however, had not been done periodically.
14. From the records produced
by the respondents, it is evident that
the appellant had remained in one
or the other Army Medical Hospitals
from 8.7.1990.
15. Although he is said to
have absented himself on and from
10.7.1990, it now transpires that he
had been admitted at the Command
Hospital, Ambala Cantt from
11.7.1990. This discrepancy has not
been explained.
The Court of Enquiry in the
aforementioned situation must be
presumed to have made recommendations
for regularization of his leave
upon consideration of the relevant
records and particularly the movement
orders.
531
It is true that the opinion of
the Court of Enquiry is only recommendary
in nature but it is also true
that the Commanding Officer in a
proceeding for Summary Court Martial
was required to take that fact
into consideration. It is one thing to
say that the recommendations of the
Court of Enquiry had not been accepted
but then if such recommendations
had been made having regard
to the materials which were
brought on the records by the respondents
themselves, we are of the
opinion that it was obligatory on his
part to assign some reasons in support
thereof. It is evident that the
premise on which such recommendation
has been made by the Court of
Enquiry was not taken into consideration
in the Summary Court Martial
proceeding.
16. In any event, the respondents
themselves should have explained in
their counter-affidavit as to why the
recommendations of the Court of Enquiry
were not accepted. Once it is
held that for the period of the purported
absence in question or a part
thereof he had not been absconding
but was admitted in Military Hospital,
Ambala Cantt, the matter deserved
a deeper scrutiny at the hands
of the competent authority. The
movement orders in respect of the appellant
who had been described as
a patient clearly shows that he was
admitted in Amabala Cantt Hospital
on 11.7.1990. The movement order
furthermore shows that he was also
transferred to Chandigarh Hospital.
17. Fairness and reasonableness
in the action of the State whether in

532 Sheel Kr. Roy v. Secretary M/O Defence 2007
a criminal proceeding or otherwise is
the hallmark of Article 14 of the Constitution
of India. The doctrine of
proportionality is one of the grounds
on the basis whereof the power of judicial
review could be exercised. It
was so held in Ex.Naik Sardar Singh
v. Union of India and Ors. 1991(3)
SCC 213.
18. We may also notice that in
Ranjit Thakur v. Union of India and
Ors. reported in 1987(4) SCC 611,
this Court held :
”The question of the choice and
quantum of punishment is within
the jurisdiction and discretion of the
Court Martial. But the sentence has
to suit the offence and the offender.
It should not be vindictive or unduly
harsh. It should not be so disproportionate
to the offence as to
shock the conscience and amount in
itself to conclusive evidence of bias.
The doctrine of proportionality, as
part of the concept of judicial review,
would ensure that even on an aspect
which is, otherwise, within the exclusive
province of the Court Martial,
if the decision of the Court even
as to sentence is an outrageous defiance
of logic, then the sentence would
not be immune from correction. Irrationality
and perversity are recognised
grounds of judicial review.”
19. We although agree with the
learned Additional Solicitor General
that it is legally permissible to award
more than one punishment in terms
of Section 71 of the Act but we
may notice that Section 39(a) specifically
deals with the misconduct in
respect of absence without leave. It
is one thing to say that legally it
is permissible to impose more than
one punishments but then also it
is another thing that in exercising
the said power all attending situations
which fell for consideration by
the punishing authority in regard to
the quantum thereof would not be
taken into consideration. It is clear
that the Commanding Officer in the
Summary Court Martial proceedings
failed to take into consideration the
relevant fact and, thus, committed
an error apparent on the face of the
record. We are also of the opinion
that in a case of this nature, imposition
of both punishment of rigorous
imprisonment for six years as also
dismissal from service was wholly arbitrary
in nature. It is also vitiated
in law as all relevant facts were not
taken into consideration.
20. The learned Additional Solicitor
General took pains in explaining
to us that the appellant’s condition
had improved and, in fact the
medical category was upgraded from
CEE to AYE and ultimately he was
found fit for joining his duties only on
12.8.1991. The said submission, however,
in our opinion, does not stand
a moment’s scrutiny. What was required
to be taken into consideration
is the conduct of the appellant for the
period 16.7.1990 to 22.7.1991. It is
not the case of the respondents that
even during the said period, his behaviour
or mental condition was such
which enabled the authorities to put
him on trial or his behaviour even
during the said period deserved a
harsh punishment, assuming he was
guilty of commission of misconduct.
21. On their own showing, the

espondents accepted that during his
entire service career, the appellant
remained a mental patient and had
been undergoing his treatment in
one hospital or the other. It was,
therefore, obligatory on the part of
the Commanding Officer to take into
consideration the said fact for the
purpose of arriving at a finding of
his guilt on the charges of misconduct
as also for fixing the quantum
of punishment. It is in that limited
sense, assignment of some reasons in
a case of this nature must be held to
be necessary. It is now a well settled
legal principle which has firmly been
accepted throughout the world that
a person merely by joining Armed
Forces does not cease to be a citizen
or be deprived of his human or constitutional
right. This aspect of the
matter has been considered by a Division
Bench of the Delhi High Court
in Nirmal Lakra v. Union of India &
Ors. reported in 2003(1) SLJ 151.
22. Once it is held that arbitrariness
of the Commanding Officer in
the matter of holding the appellant
and awarding punishment upon him
is apparent on the face of the record,
the impugned order must be held to
be wholly unsustainable.
23. We regard our inability
to accept the contentions of the
learned Additional Solicitor General
that even in a case of this nature we
533
would shut our eyes to the realities of
case and allow gross injustice meted
to a citizen of India to be perpetuated
on mere technicalities.
24. Moreover, we have noticed
hereinbefore that the learned counsel
for the appellant stated before
us that even the recommendations of
the Court of Enquiry had not been
produced before the High Court. If
that be so, even at that stage, the appellant
did not have the advantage of
a better assistance from his counsel.
25. The question, however, which
arises for consideration is the relief
which can be granted to the appellant.
He has already undergone the
sentence. He has not been working
since 1991. He had also remained in
Hospital for a long time. Although,
thus, it is not possible for us to grant
him all the prayers made in his writ
petition before the High Court, we
are of the opinion that keeping in
view the peculiar facts and circumstances
of this case, interest of justice
would be met if it is directed that
he should be deemed to have been
discharged from 7.9.1991. He would,
thus, be entitled to all benefits arising
therefrom. The appeal is allowed
in part and to the extent mentioned
hereinbefore. However, in the facts
and circumstances of this case, there
shall be no order as to costs.

534 Sheel Kr. Roy v. Secretary M/O Defence 2007

Chapter 48
Ram Sunder Ram v. Union
of India 2007
Ram Sunder Ram v. Union Of
India & Ors on 11 July, 2007
Author: L S Panta
Bench: T Chatterjee, L S Panta
CASE NO.:
Appeal (civil) 2951 of 2007
PETITIONER:
Ram Sunder Ram
RESPONDENT:
Union of India & Ors
DATE OF JUDGMENT:
11/07/2007
BENCH:
Tarun Chatterjee & Lokeshwar
Singh Panta
JUDGMENT:
J U D G M E N T
[Arising out of S. L. P. (C)
No.5536 of 2005]
J.
LOKESHWAR SINGH PANTA,
1. Special leave granted.
2. This appeal, by special leave,
has been preferred by Ram Sunder
Ram (appellant herein) against the
judgment and order dated 10.12.2004
of a Division Bench of the High
Court of Calcutta by which M.A.T.
No.2856 of 1997 filed by the Union
of India and Others (respondents
herein) was allowed and the judgment
and order dated 07.08.1997 of
a learned Single Judge, allowing the
Writ Petition (C.O. No.12843 (W)
No.1991) filed by the appellant, was
set aside.
3. The appellant filed writ petition
in the High Court of Calcutta
for setting aside the order of discharge
from the Army Service passed
by the Commander, 33 Corps Artillery
Brigade (respondent No.5 in
the present appeal) who was competent
authority under Rule 13 of the
Army Rules 1954.
4. The learned Single Judge allowed
the writ petition inter alia on
the ground that the principles of natural
justice have not been followed by
the competent authority while pass-

536 Ram Sunder Ram v. Union of India 2007
ing the order of discharge.
5. The respondents then preferred
writ appeal before the Division
Bench of the High Court, which allowed
the same by the judgment and
order impugned by the appellant in
this appeal before us.
6. On 26.09.1980, the appellant
was appointed as Cleaner in ClassIV
with the Indian Armed Forces.
On 23.09.1983, he became LDC
in the Army establishment. On
03.07.1988, the appellant was deputed
to perform the duties of Petrol,
Oil and Lubricants (POL) Clerk. On
09.08.1988, the competent authority
ordered convening of the court of inquiry
based upon certain anonymous
complaints, on the following issues:
A. Investigating the circumstances,
under which quantity 70 KL of 70
MT Gas issued to 5033 ASC Battalion
against IOC installation, New
Jalpaiguri, has not been received by
the Unit and pinpoints the responsibility
for the loss.
B. To scrutinize the records for
the last two years and also to examine
the procedure
being followed for receipt, demand,
collection and accounting the
issue of POL in the operation of
Kerbside Pump.
C. To indicate loopholes and suggest
remedy and measures.
D. To indicate losses other than
those mentioned in the order.
7. The court of inquiry deliberations
was held by the authority
between the period commencing
from 16.08.1988 and 12.12.1988. On
06.10.1988, the appellant was de-
tained for interrogation under custody.
During interrogation, the
appellant made confessional statement
of receiving illegal money of
Rs. 12,500/- from one Shri Rajendra
Singh, owner of Pansari Shop,
for sale of 87 MT Gas through BPLs
and Kerbside Pump, kept by Dvr.
Gde 11 Ramakant Prasad of A Coy
5033 ASC Bn (MT). The appellant
later on deposited Rs. 5,200/- out of
Rs.12,500/-.
8. The court of inquiry was completed
and on 24.08.1988 the enquiry
report was submitted to the competent
authority.
9. The appellant, having been
found guilty of prejudicial act to
good order and military discipline,
was charged under Section 63 of the
Army Act, 1950 [for short the Army
Act]. On 08.08.1989, Major H. S.
Dhillon, Presiding Officer, Summary
of Evidence, sent a letter to the appellant
and LDC J.P. Singh directing
them to be present on 9th August,
1989 at 1000 Hrs. for recording
summary evidence. The evidence
was collected by the court of inquiry
against the appellant and some
other Army Officials. On 03.07.1991,
the appellant was informed by respondent
No. 5 that while working
with A Coy 5033 ASC Bn (MT),
the appellant received Rs. 12,500/as
illegal money from Shri Rajendra
Singh, owner of Pansari shop
and converted the said amount to
self use, well knowing it to be from
sale of 87 MT Gas through BPLs
and Kerbside Pump, kept by Dvr.
Gde 11 Ramakant Prasad of A Coy
5033 ASC Bn (MT). He was, there-

fore, asked to show cause within
15 days of the receipt of the notice
as to why his services should
not be terminated for the lapse committed
by him. After the appellant
showed cause on 13.08.1991 which
was found unsatisfactory, the respondent
No.5 discharged him from service
on 09.09.1991.
10. The appellant challenged the
order of discharge from service in the
High Court of Calcutta. The learned
Single Judge, as stated above, set
aside the said order of discharge inter
alia on the ground of violation
of the principles of natural justice
and directed the respondents to reinstate
the appellant with 25% of his
arrear salaries as per the last pay
drawn. Further, it was observed that
the Army Authority was not prevented
from taking appropriate steps
against the appellant in accordance
with law, if they so advised and technicalities
alone ought not to stand in
the way in that regard. In writ appeal,
the order of the learned Single
Judge came to be set aside by a Division
Bench of the High Court and
the Writ Petition filed by the appellant
was accordingly dismissed.
11. Hence, this appeal by the appellant.
12. Capt. K. S. Bhati, learned
counsel appearing for the appellant,
argued as a question of law that the
order of removing the appellant from
service was vitiated being contrary to
Section 63 of the Army Act, which
provides for imposing any kind of
punishment only after conviction by
court martial. He contended that the
proceedings of the court of inquiry
537
have been used as evidence against
the appellant contrary to Rule 12 of
the Army Rules, 1954 [hereinafter referred
to as the Army Rules] as no
discharge certificate required to be
furnished under the provisions of Section
23 of the Army Act was prepared
and sent to the appellant.
13. It was argued for the appellant
that the court of inquiry,
acting under the Army Rules, collects
evidence during fact finding
proceedings and no one is accused or
charged of any offence in that proceedings.
It was argued that the evidence
collected during court of inquiry
is not admissible against the
appellant in view of Section 63 of
the Army Act under which the case
should have been remanded for trial
by court martial as was done in the
case of other army personnel, who
were dealt with by court martial and
they were retained in service by imposing
minor punishment upon them
whereas the appellant was discharged
from service, as a result thereof his
entire past service has been forfeited
and he has been deprived of the benefit
of pension as also future employment
in any other civil service. The
learned counsel contended that the
appellant was administratively discharged
from service contrary to the
provisions of Section 63 and there is
no provision to impose major penalty
in the form of termination of service
of the appellant by the respondent
No.5 under the guise of discharge
from service in exercise of power under
Section 20 of the Army Act.
14. Mr. Vikas Singh, learned
ASG appearing for the respondents,

538 Ram Sunder Ram v. Union of India 2007
on the other hand, made submissions
to support the judgment of the
Division Bench of the High Court.
He contended that the well reasoned
judgment of the Division Bench does
not suffer from any infirmity or perversity,
warranting interference by
this Court. He contended that the
authority empowered under Rule 13
of the Army Rules has passed the
order of discharge simpliciter under
Section 22 of the Army Act and Section
20 appears to have been wrongly
mentioned by the authority in the order
of discharge.
15. We have given our thoughtful
and anxious consideration to the
respective contentions of the parties
and have perused the entire material
on record.
16. It is an admitted case of the
parties that the appellant is governed
by the provisions of the Army Act
and the Army Rules framed thereunder.
The scheme of the Army Act is
fairly clear. Chapter IV of the Act
deals with Conditions of Service of
persons subject to the Army Act.
17. Section 20 of the Act deals
with dismissal, removal or reduction
by the Chief of the Army Staff and
by other officers. Section 191 of the
Act empowers the Central Government
to make rules for the purpose
of carrying into effect the provisions
of the Army Act. In exercise of the
said power, the Central Government
has framed the rules called The Army
Rules, 1954. Chapter III of the Army
Rules deals with dismissal, discharge,
etc. Chapter V of the Army Rules
deals with investigation of charges
and trial by court martial. Rule 13
tabulates the category of the Army
official, causes/grounds of discharge,
the authorities competent to pass the
order of discharge and the manner of
discharge.
18. It is not in dispute that the
appellant has been discharged under
Rule 13 column 2 (v) of the Table
below sub-rule (3) on the grounds
of all other classes of discharge by
Brigade/Sub-Area Commander who,
admittedly, was competent authority
to authorize discharge of the appellant.
Column 4 of the Table provides
manner of discharge, which reads as
under:
The Brigade or Sub-Area Commander
before ordering the discharge
shall, if the circumstances of the case
permit give to the person whose discharge
is contemplated an opportunity
to show cause against the contemplated
discharge.
19. The order of discharge of
the appellant from the Army service
has been passed by the competent
authority under Section 22 of
the Army Act read with Rule 13
on the grounds covered under column
(2)(v) of the Table, after affording
adequate opportunity to him of
showing cause before the said order
of discharge came to be passed. We
are, however, satisfied on the material
placed before us that the court
of inquiry was formed under Rule
177 of the Army Rules and the purpose
of court of inquiry was to collect
the evidence for the information
of superior officers to make up
their mind about the involvement of
the appellant and the other army officials
in the racket of clandestine

sale of petrol. In the court of inquiry,
the appellant was heard and
was given proper and adequate opportunity
to cross-examine the witnesses,
which he did not choose to
avail. The respondents, in Para 20 of
the counter affidavit filed in opposition
to the writ petition before the
High Court, have made categorical
statement that in the court of inquiry
the appellant was given full opportunity
to defend his case and to crossexamine
the witnesses who appeared
and deposed before the Recording
Officer, but the appellant was just
sitting throughout the proceedings
and did not avail the opportunity of
cross-examining the witnesses. The
appellant has not denied this assertion
of the respondents in the rejoinder
affidavit.
20. As noticed above, the appellant
had shown cause vide reply
dated 13.08.1991 (Annexure P6)
to the show cause notice dated
03.07.1991 (Annexure P5) issued to
him by respondent No.5. The competent
authority considered the reply
of the appellant in right perspective
and found the same not satisfactory.
Therefore, on 09.09.1991, the
competent authority passed the order
of discharge (Annexure P7) of
the appellant from the army service
with immediate effect in exercise
of the power under Section 20
of the Army Act. It appears that
the competent authority has wrongly
quoted Section 20 in the order of discharge
whereas, in fact, the order
of discharge has to be read having
been passed under Section 22 of the
Army Act. It is well settled that if
539
an authority has a power under the
law merely because while exercising
that power the source of power is
not specifically referred to or a reference
is made to a wrong provision
of law, that by itself does not vitiate
the exercise of power so long
as the power does exist and can be
traced to a source available in law
[see N. Mani v. Sangeetha Theatre
& Ors. (2004) 12 SCC 278]. Thus,
quoting of wrong provision of Section
20 in the order of discharge of
the appellant by the competent authority
does not take away the jurisdiction
of the authority under Section
22 of the Army Act. Therefore,
the order of discharge of the appellant
from the army service cannot be
vitiated on this sole ground as contended
by the learned counsel for the
appellant. A plain reading of the order
of discharge shows that it is an
order of termination of service simpliciter
without casting or attaching
any stigma to the conduct of the appellant,
therefore the said order cannot
be termed to be punitive in nature
or prejudicial to the future employment
of the appellant in getting
employment in civil service. Thus,
the contention of the learned counsel
for the appellant that the order of
discharge is punitive in nature does
not merit acceptance.
21. The Division Bench of the
High Court has noticed the decisions
of this Court relied upon by the appellant
in the cases of Ex. Naik Sardar
Singh v. Union of India & Ors.
[AIR 1992 SC 417], Major Suresh
Chand Mehta v. The Defence Secretary
(U.O.I.) & Ors. [AIR 1991

540 Ram Sunder Ram v. Union of India 2007
SC 483], Lt. Col. Prithi Pal Singh
Bedi v. Union of India & Ors. [AIR
1982 SC 1413] and S. N. Mukherjee
v. Union of India [(1990) 4 SCC 594].
In the said decisions, this Court has
dealt with the matter of imposition
of punishment on Army officials who
were subjected to court martial proceedings.
In S. N. Mukherjees case
(supra), this Court was dealing with
the requirement of recording of reasons
by an authority exercising quasijudicial
function, besides challenge to
the court martial proceedings. Reliance
was placed on Paragraph 13
of the judgment of this Court in the
case of Major Suresh Chand Mehta
(supra). In that case, this Court held
that the court of inquiry, as provided
under Rule 177 of the Army Rules,
is merely held for the purpose of collecting
evidence and if so required, to
report in regard to any matter which
may be referred to the officers and
such an inquiry is for the purpose of
a preliminary investigation and cannot
be equated with a trial or court
martial. All the above cited decisions
are of no assistance to the appellant
in the peculiar facts of the case on
hand. We are satisfied that there is
ample evidence on record in support
of the judgment and order of the Division
Bench of the High Court and
there is nothing that would justify
this Court interfering with it. Therefore,
the above arguments of the appellant
are unacceptable to us.
22. For the reasons discussed
above, the appeal is devoid of merit
and it is, accordingly, dismissed. The
judgment and order of the Division
Bench is affirmed. The parties, however,
are left to bear their own costs.

Chapter 49
Union of India and another
v. SPS Vains 2008
Union of India and another v.
SPS Vains (Retd.) (Altamas Kabir
and Markandey Katju, JJ.)
Union of India and another -
Appellant(s) v. SPS Vains (Retd.)
and others - Respondent(s)
Civil Appeal No. 5566 of 2008,
decided on September 9, 2008 [@
Special Leave Petition (Civil) No.
12357 of 2006]
The judgment of the Court was
delivered by Altamas Kabir, J.
1. Leave granted.
2. Interlocutory Application
No.2 of 2006 filed by Major General
S.C. Suri (Retd.) and 67 others similarly
placed as the respondents is allowed.
3. Only a very limited issue falls
for our consideration in this appeal
which has been filed by the Union
of India through the Secretary, Ministry
of Defence and the Chief of
Army Staff through the Adjudant
General Army Headquarters, New
Delhi, against the judgment and or-
der of the Punjab and Haryana High
Court allowing the writ petition filed
by the respondents herein with the
following directions : ”For the foregoing
reasons, the writ petition is
allowed and the respondents are directed
to fix minimum pay scale of
the Major General above that of the
Brigadier and grant pay above that
of a Brigadier as has been done in the
case of post 1.1.1996 retirees and consequently
fix the pension and family
pension accordingly. There shall be
no order as to costs.”
4. As would be evident from the
above, the primary question which
falls for decision in this appeal is
whether the High Court had in the
exercise of its jurisdiction correctly
directed that officers of the rank of
Major General, who had retired prior
to 1st January, 1996, when revision
of pay scales took effect, be given the
benefit of the provisions of the revised
pay scale, notwithstanding the
fact that in terms of the policy only
those who retired after the said cut-

542 Union of India and another v. SPS Vains 2008
off date would be entitled to such
benefit. The larger issue involved is
whether there could be a disparity in
payment of pension to officers of the
same rank, who had retired prior to
the introduction of the revised pay
scales, with those who retired thereafter.
5. The case which has been made
out in the High Court in the writ petition
filed by the respondent herein
is that prior to revision of the pay
scales from 1.1.1996 the running pay
band from Lieutenant to Brigadier,
irrespective of promotion, introduced
on the basis of the Fourth Pay
Commission’s recommendations, was
Rs.2300-100-3900-EB- 150-4500-EB-
5100. The rank pay that was fixed
was Rs.200/-, 600/-, 800/-, 1000/and
1200/- for the ranks of Captain,
Major General, Lieutenant Colonel,
Colonel and Brigadier, respectively.
While a Major General was given a
starting salary of Rs.6700/- on the
basis of the recommendations of the
Fourth Pay Commission, a Brigadier
could draw Rs.5,100/- and additional
rank pay of Rs.1200/- making a total
of Rs.6300/-. Consequently, a Major
General always drew higher pay than
a Brigadier and the pension payable
to officers on the basis of the recommendations
of the Fourth Pay Commission
was calculated on the basis
of salary drawn during the last 10
months prior to retirement. Even
on such basis, a Major General always
drew more pension and family
pension than a Brigadier. It has
to be kept in mind that the rank of
Brigadier is a feeder post for the promotional
rank of Major General.
6. The anomaly arose with the
acceptance by the Government of
the recommendations of the Fifth
Pay Commission which has created
a situation whereby Brigadiers began
drawing more pay than Major Generals
and were, therefore, receiving
higher pension and family pension
than Major Generals. In view of the
recommendations of the Fifth Pay
Commission, a Brigadier was given a
pay scale of Rs.15350-450-17600 together
with rank pay of Rs.2,400/whereas
a Major General was given a
pay scale of Rs.18400- 500-22400. In
other words, the maximum pay in the
pay scale of Brigadier is 17,600/- and
the minimum pay in the pay scale of
Major General is Rs.18,400/-. Inasmuch
as, no rank pay was provided
for beyond the rank of Brigadier, the
minimum pay provided for a Major
General became less than that of a
Brigadier who may had reached the
maximum point in his scale. Consequently,
on retirement, the pension
of a Brigadier became more than
that of a Major General, since rank
pay is also taken into consideration
for the purpose of calculating pension
and family pension. The pension
of a Major General thus became
Rs.9,200/-, while that of a Brigadier
was Rs.9,550/-.
7. It is this anomaly, when
pointed out, which prompted the
Government to step up the pension
of Major Generals who had retired
prior to 1.1.1996, from Rs.9,200/- to
Rs.9,550/- giving them the same pension
as was given to Brigadiers. Before
the High Court it was urged on
behalf of the writ petitioners, who

at the time of their retirement had
held the rank of Major General or
Air Vice Marshal, that while the
writ petitioners and others similarly
placed officers who had retired prior
to 1.1.1996 were given the same pension
as that of a Brigadier, those officers
of similar rank who had retired
after 1.1.1996 were given pension according
to clause 12(c) of Special
Army Instructions 2/S/1998, as a result
whereof they were getting much
higher pension and family pension
than the writ petitioners, despite being
of the same rank. It was pointed
out that by virtue of the aforesaid
Special Instruction the initial pay of
an officer promoted to the rank of
Major General would be fixed at the
stage next above the pay notionally
arrived at by increasing his pay, including
rank pay of Brigadier, by one
increment in the revised scale at the
relevant stage. It is this classification
within a class which led to the
filing of the writ petition before the
High Court. Before the High Court
it was urged further that such differentiation
between officers holding the
same rank on the date of retirement
was wholly erroneous and violative
of the provisions of Article 14 of the
Constitution.
8. Rejecting the submissions
made on behalf of Government that
there could be no fresh fixation of
pay once an officer had retired and
the only refixation possible would be
that of pension, the High Court allowed
the writ petition and disposed
of the same with the directions indicated
hereinabove.
9. The said decision of the High
543
Court has been questioned in this appeal
by the Union of India and the
Chief of Army Staff.
10. Before us, the Union of India
has taken a stand that the High
Court misinterpreted the policy relating
to fixation of pay of officers
of the Defence Services and had also
misunderstood the scope of the policy
with regard to those officers who
had retired prior to the revision of
the pay scales and that their pay
scales had already been revised at the
time of their superannuation from
service. In their case, therefore, the
question of revision of pay scale could
not arise and they could only claim
that their pension, including family
pension, should not be lower than
that of a Brigadier which is a feeder
post for the post of Major General
having higher and more onerous responsibilities.
11. In this regard reference
was made to a communication dated
7.6.1999 addressed to the Chiefs of
the three wings of the Defence Services
on behalf of the Ministry of
Defence, Government of India, in
which a differentiation appears to
have been made between officers who
had retired prior to 1.1.1996 and
those who retired thereafter since
a reference was made to two of
the Ministry’s letters dated 3.2.1998
dealing with post 1.1.1996 and the
other dated 24.11.1997 dealing with
pre 1.1.1996 cases.
12. Reference was also made
to Special Army Instruction dated
19.12.1997 indicating that in pursuance
of the recommendations of
the Fifth Central Pay Commission

544 Union of India and another v. SPS Vains 2008
and the Government decision thereupon,
the existing pay scales admissible
to Army Officers would be revised
with effect from January, 1996. The
said Instruction also indicated that
the said provisions would apply to
all officers who were on the effective
strength of the Army as on 1.1.1996
and those who joined thereafter, and
also to trainee officers who were undergoing
Pay Commission training
on 1.1.1996 and trainee officers who
joined after the said date. Reference
was also made from the said Instruction
to paragraph 9 thereof dealing
with the stepping up of pay of Major
Generals on promotion from the rank
of Brigadier prior to 1.1.1996. In the
said paragraph it has been specifically
indicated that pay of all officers
promoted to the rank of Major
General prior to 1.1.1996 would be
stepped up to become equal to the
pay fixed for Brigadiers in the revised
pay scale as on 1.1.1996, subject to
certain conditions.
13. Yet another communication
to the three Chiefs of the Defence
Services dated 3.2.1998 issued by the
Ministry of Defence, Government of
India relating to the implementation
of the Government’s decision on the
recommendations of the Fifth Central
Pay Commission regarding pensionary
benefits for officers and personnel
below officers rank belonging
to the armed forces, retiring on or after
1.1.1996, which would, however,
have no application to those who had
superannuated prior to 1.1.1996.
14. Learned Additional Solicitor
General submitted that the Ministry
of Defence, Government of In-
dia, had taken a considered decision
in fixing 1.1.1996 as a cut-off date
since the pay scales were revised with
effect from the said date, and the
pay scales of officers who had retired
prior to the said date had already
been fixed and there was no question
of refixation of their pay scales
and all they were entitled to was pension
which was not less than that received
by Brigadiers who had been
given the benefit of the revision of
pay scales and, were, therefore, drawing
a higher salary resulting in higher
pension.
15. The learned Additional Solicitor
General urged that the High
Court had erred in directing that the
pay of Major Generals who had retired
prior to 1.1.1996 be refixed according
to the revised pay scales so
as to give them the benefit of higher
pension than officers of the rank of
Brigadier.
16. The case of the respondents
however, was that in view of the
Constitution Bench decision of this
Court in D.S. Nakara and others v.
Union of India (1983) 1 SCC 305,
the fixation of a cut-off date as a result
of which equals were treated as
unequals, was wholly arbitrary and
had been rightly interfered with by
the High Court. One of the questions
posed in the aforesaid decision
was whether a class of pensioners
could be divided for the purpose of
entitlement and payment of pension
into those who retired by a certain
date and those who retired thereafter.
The question was answered
by the Constitution Bench holding
that such division being both arbi-

trary and unprincipled the classification
did not stand the test of Article
14.
17. Several other decisions were
also relied upon by the respondents,
which, in fact, followed D.S. Nakara’s
case (supra) and there is, therefore,
no need to deal with them separately.
18. It was also the respondents’
case that though there was no dispute
that Major Generals were entitled
to higher pensionary benefits
than that enjoyed by Brigadiers, the
appellant erroneously insisted that
the cut-off date had to be fixed in
view of the limited financial resources
available to cover the additional expenses
to be incurred on account of
revision of pay scales.
19. On behalf of the respondents
reliance was also placed on two
letters addressed by the Chairman,
Chief of Staff Committee, dated
8.2.2006 and 21.2.2006, along with
the recommendation made by the
Air Chief Marshal on 17.2.2006, stating
that it was necessary to correct
the injustice and discrimination
which had been aimed at denying
those officers who had retired prior
to 1.1.1996, the benefits of the pension
enjoyed by officers who retired
after the said date.
20. Mr. Nidhesh Gupta, learned
Senior Counsel who appeared for
the respondents, submitted that the
judgment of the High Court did not
call for any interference as the same
had been rendered on the touchstone
of Article 14 of the Constitution and
in consonance with the principle of
administrative fair play. He submit-
545
ted that officers of the rank of Major
General, who had retired prior
to 1.1.1996 should not be made the
target of the bureaucratic error committed
by the Government in refixing
the scale of pay of Brigadiers after
1.1.1996 in such a manner so that
by adding the rank pay to their basic
pay, their pay at the time of retirement
was higher than that of a
Major General which was a superior
rank, thereby creating an anomaly in
the pension entitlement of officers of
the two aforesaid ranks.
21. Mr. P.N. Lekhi, learned senior
counsel who appeared for the
added respondents, while adopting
Mr. Gupta’s submissions referred
to the decision of this Court in
R.Viswan and others v.. Union of
India and others, (1983) 3 SCC 401,
on the question of morale and submitted
that the arbitrary decision to
discriminate between the two sets of
officers belonging to the same rank in
the matter of payment of pension was
bound to adversely effect the morale
of senior officers of the rank of Major
General which was in fact the feeder
post to the rank of Lieutenant General
from amongst whom the Chief of
Army Staff is ultimately chosen.
22. From the submissions made
the dispute appears to be confined
only to the question whether officers
of the rank of Major General in the
army and of equivalent rank in the
two other wings of the Defence forces,
who had retired prior to 1.1.1996,
have been validly excluded from the
benefit of the revision of pay scales
in keeping with the recommendations
of the Fifth Central Pay Commission

546 Union of India and another v. SPS Vains 2008
by virtue of Special Army Instruction
2(S)98.
23. On behalf of the appellant,
Union of India, it has been sought
to be contended that since the pay
scale of those officers who had retired
prior to 1.1.96 had already been
fixed at the time of their retirement,
the question of refixation of their
pay scales on account of the revision
could not be accepted as they
would only be entitled to the benefits
of higher pension on account of such
revision. The learned Additional Solicitor
General, Mr. Vikas Singh, had
contended that since an anomaly had
been created in the pension payable
to officers of the rank of Major Generals,
who on account of the revision
of pay scales were receiving less pension
than Brigadiers who were lower
in rank, the Government had stepped
up the pension of Major Generals
who had retired prior to 1.1.1996, so
that they did not receive pension less
than what was given to officers of the
rank of Brigadier.
24. The said decision of the Central
Government does not address
the problem of a disparity having created
within the same class so that
two officers both retiring as Major
Generals, one prior to 1.1.1996 and
the other after 1.1.1996, would get
two different amounts of pension.
While the officers who retired prior
to 1.1.1996 would now get the same
pension as payable to a Brigadier on
account of the stepping up of pension
in keeping with the Fundamental
Rules, the other set of Major Generals
who retired after 1.1.1996 will
get a higher amount of pension since
they would be entitled to the benefit
of the revision of pay scales after
1.1.1996.
25. In our view, it would be arbitrary
to allow such a situation to continue
since the same also offends the
provisions of Article 14 of the Constitution.
26. The question regarding creation
of different classes within the
same cadre on the basis of the doctrine
of intelligible differentia having
nexus with the object to be achieved,
has fallen for consideration at various
intervals for the High Courts as
well as this Court, over the years.
The said question was taken up by
a Constitution Bench in the case of
D.S. Nakara (supra) where in no uncertain
terms throughout the judgment
it has been repeatedly observed
that the date of retirement of an employee
cannot form a valid criterion
for classification, for if that is the criterion
those who retired by the end of
the month will form a class by themselves.
In the context of that case,
which is similar to that of the instant
case, it was held that Article 14
of the Constitution had been wholly
violated, inasmuch as, the Pension
Rules being statutory in character,
the amended Rules, specifying a cutoff
date resulted in differential and
discriminatory treatment of equals in
the matter of commutation of pension.
It was further observed that
it would have a traumatic effect on
those who retired just before that
date. The division which classified
pensioners into two classes was held
to be artificial and arbitrary and not
based on any rational principle and

whatever principle, if there was any,
had not only no nexus to the objects
sought to be achieved by amending
the Pension Rules, but was counter
productive and ran counter to the
very object of the pension scheme.
It was ultimately held that the classification
did not satisfy the test of
Article 14 of the Constitution.
27. The Constitution Bench has
discussed in detail the objects of
granting pension and we need not,
therefore, dilate any further on the
said subject, but the decision in
the aforesaid case has been consistently
referred to in various subsequent
judgments of this Court, to
which we need not refer.
28. In fact, all the relevant
judgments delivered on the subject
prior to the decision of the Constitution
Bench have been considered and
dealt with in detail in the aforesaid
case.
29. The directions ultimately
given by the Constitution Bench in
the said case in order to resolve the
dispute which had arisen, is of relevance
to resolve the dispute in this
case also.
30. However, before we give such
directions we must also observe that
the submissions advanced on behalf
of the Union of India cannot be accepted
in view of the decision in D.S.
Nakara’s case (supra). The object
sought to be achieved was not to cre-
547
ate a class within a class, but to ensure
that the benefits of pension were
made available to all persons of the
same class equally. To hold otherwise
would cause violence to the provisions
of Article 14 of the Constitution.
It could not also have been
the intention of the authorities to
equate the pension payable to officers
of two different ranks by resorting
to the step up principle envisaged
in the Fundamental Rules in a manner
where the other officers belonging
to the same cadre would be receiving
a higher pension.
31. We, accordingly, dismiss the
appeal and modify the order of the
High Court by directing that the pay
of all pensioners in the rank of Major
General and its equivalent rank in
the two other Wings of the Defence
Services be notionally fixed at the
rate given to similar officers of the
same rank after the revision of pay
scales with effect from 1.1.1996, and,
thereafter, to compute their pensionary
benefits on such basis with
prospective effect from the date of
filing of the writ petition and to
pay them the difference within three
months from date with interest at
10% per annum. The respondents
will not be entitled to payment on account
of increased pension from prior
to the date of filing of the writ petition.
32. The appeal is accordingly
dismissed. 33. There will be no order
as to costs.

548 Union of India and another v. SPS Vains 2008

Chapter 50
P.K. Choudhury v.
Commander, 48
BRTF(GREF) 2008
P.K. Choudhury v. Commander,
48 BRTF(GREF) on 13 March, 2008
Author: S Sinha Bench: S Sinha, V
Sirpurkar
CASE NO.:
Appeal (crl.) 480 of 2008
PETITIONER:
P.K. Choudhury
RESPONDENT:
Commander, 48 BRTF (GREF)
DATE OF JUDGMENT:
13/03/2008
BENCH:
S.B. Sinha V.S. Sirpurkar
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 480
OF 2008
(Arising out of SLP (Crl.) No.
5911 of 2006)
S.B. Sinha, J.
Leave granted.
1. Appellant herein is aggrieved
by and dissatisfied with a judgment
and order dated 21st March, 2006
passed by a learned Single Judge of
the Gauhati High Court.
2. Indisputably, Appellant at all
material times was a Commandant
of 48 BRTF (GREF) as a member
of the Armed Forces. While he was
acting in the said capacity, allegations
were made against him for commission
of offences under Section 166
and 167 of the Indian Penal Code,
1860.
3. The period during which the
said offences are said to have been
committed is 5.1.1989 to 11.2.1992.
A complaint petition was filed in
November, 2000 purported to be on
the basis of a report dated 20.12.1996
of the then Commander, 48 BRTF at
Tezu on 20.12.1996.
The Judicial Magistrate, First

550 P.K. Choudhury v. Commander, 48 BRTF(GREF) 2008
Class, Tezu took cognizance of the
said offences against the appellant by
an Order dated 7.11.2000.
4. The application filed by the
appellant under Section 482 of the
Code of Criminal Procedure, 1973
for quashing the said proceedings has
been dismissed by the Gauhati High
Court by reason of the impugned
judgment.
5. Mr. Nagendra Rai, the learned
senior counsel appearing on behalf of
the appellant would submit that the
order taking cognizance is bad in law
as the same was filed beyond the prescribed
period of limitation and in
any event was not preceded by a valid
order of sanction of the competent
authority as envisaged under Section
197 of the Code of Criminal Procedure.
6. Section 166 and 167 of the Indian
Penal Code provides for an offence
by a public servant.
Whereas Section 166 prescribes a
sentence of simple imprisonment for
a term which may extend to one year;
the sentence which can be imposed
under Section 167 is one of either description
for a term which may extend
to three years or with fine or
with both.
7. Section 468 of the Code of
Criminal Procedure, 1973 specifies
the period of limitation within which
the cognizance of an offence can be
taken. Clause (c) of Sub-section (2)
of Section 468 specifies the period of
limitation to be three years if the
offence is punishable with imprisonment
for a term exceeding one year
but not exceeding three years.
8. There is no doubt or dispute
that the Court has the power to condone
the delay. No order condoning
the delay has however, been passed
by the learned Judicial Magistrate in
this case.
The ground taken for condonation
of delay in the said complaint petition
of the complainant is as under:-
”8. That a Court of Inquiry was
held by the Department against the
irregularities in Supply Orders and
thereafter the case was under consideration
by Army HQ. The Central
Vigilance Commission alsoinves
tigated the matter since 20 Dec. 1996
and on the completion of investigation
by CVC, the matter was barred
by limitation for taking action under
the Army Act against the accused.
Hence the delay in filing this complaint
in the Court and the delay
may be condoned under Section 473
Cr.P.C. as the delay was not intentional
but inevitable in holding Court
of Inquiry.”
9. The learned Judicial Magistrate
did not apply his mind on
the said averments. It did not issue
any notice upon the appellant
to show cause as to why the delay
shall not be condoned. Before condoning
the delay the appellant was
not heard. In State of Maharashtra
v. Sharadchandra Vinayak Dongre
and Others [(1995) 1 SCC 42]
this Court held; ”5. In our view,
the High Court was perfectly justified
in holding that the delay, if any,
for launching the prosecution, could
not have been condoned without notice
to the respondents and behind
their back and without recording any

easons for condonation of the delay.
However, having come to that conclusion,
it would have been appropriate
for the High Court, without
going into the merits of the case to
have remitted the case to the trial
court, with a direction to decide the
application for condonation of delay
afresh after hearing both sides. The
High Court however, did not adopt
that course and proceeded further to
hold that the trial court could not
have taken cognizance of the offence
in view of the application filed by
the prosecution seeking permission of
the Court to file a ”supplementary
charge-sheet” on the basis of an ”incomplete
charge-sheet” and quashed
the order of the CJM dated 21-11-
1986 on this ground also. This view
of the High Court, in the facts and
circumstances of the case is patently
erroneous.”
10. In view of the aforesaid decision,
there cannot be any doubt
whatsoever that appellant was entitled
to get an opportunity of being
heard before the delay could be condoned.
11. Far more important however,
is the question of non-grant of sanction.
Appellant admittedly is a public
servant. He is said to have misused
his position as a public servant.
Section 197 of the Code of Criminal
Procedure lays down requirements
for obtaining an order of sanction
from the competent authority,
if in committing the offence, a public
servant acted or purported to act
in discharge of his official duty. As
the offences under Section 166 and
167 of the Indian Penal Code have
551
a direct nexus with commission of a
criminal misconduct on the part of a
public servant, indisputably an order
of sanction was pre-requisite before
the learned Judicial Magistrate could
issue summons upon the appellant.
12. Respondents in their counter
affidavit, however, would contend
that no such sanction was required
to be taken as the appellant would be
governed by the provisions of Section
125 and 126 of the Army Act, 1950.
The said provisions in our considered
opinion have no application whatsoever.
13. Section 125 of the Act postulates
a choice of the competent authority
to try an accused either by a
criminal court or any court or proceedings
for court martial. Section
126 provides for the power of the
Criminal Court to require delivery of
offender.
14. As an option to get the appellant
tried in a ordinary criminal
court had been exercised by the respondent,
there cannot be any doubt
whatsoever that all the pre-requisites
therefor in regard to the period of
limitation as also the necessity to obtain
the order of sanction were required
to be complied with.
A Court of law cannot take cognizance
of an offence, if it is barred
by limitation. Delay in filing a complaint
petition therefore has to be
condoned. If the delay is not condoned,
the court will have no jurisdiction
to take cognizance. Similarly
unless it is held that a sanction
was not required to be obtained, the
court’s jurisdiction will be barred.

552 P.K. Choudhury v. Commander, 48 BRTF(GREF) 2008
15. Section 197 of the Code unlike
the provisions of the Prevention
of Corruption Act postulates obtaining
of an order of sanction even in a
case where public servant has ceased
to hold office. The requirements to
obtain a valid order of sanction have
been highlighted by this Court in a
large number of cases. In S.K. Zutshi
and Another v. Bimal Debnath
and Another [(2004) 8 SCC 31], this
Court held;
”11. The correct legal position,
therefore, is that an accused facing
prosecution for offences under the old
Act or the new Act cannot claim any
immunity on the ground of want of
sanction, if he ceased to be a public
servant on the date when the court
took cognizance of the said offences.
But the position is different in cases
where Section 197 of the Code has
application.”
See also State of Orissa through
Kumar Raghvendra Singh and Others
v. Ganesh Chandra Jew [(2004)
8 SCC 40].
Recently in Raghunath Anant
Govilkar v. State of Maharashtra
and Ors. [2008 (2) SCALE 303],
having regard to the 41st Report of
the Law Commission, this Court observed;
”24. It was in pursuance of
this observation that the expression
”was” came to be employed after
the expression ”is” to make the need
for sanction applicable even in cases
where a retired public servant is
sought to be prosecuted.”
It was furthermore held;
”26. The High Court, therefore,
was in error in observing that sanction
was not necessary because the
expression used is ”was”.
16. The High Court, therefore,
in our opinion committed a manifest
error in passing the impugned judgment.
17. The issues raised by the appellant
were jurisdictional ones. The
same should have been adverted to
by the High Court.
For the reasons aforementioned,
the impugned judgment cannot be
sustained. It is set aside accordingly.
Appeal is allowed. No costs.
Union Of India Anr v. V.N. Saxena on 1 April, 2008 Author: . A
Pasayat Bench: D A Pasayat, P Sathasivam
CASE NO.:
Appeal (civil) 2764 of 2007
PETITIONER:
Union of India Anr
RESPONDENT:
V.N. Saxena
DATE OF JUDGMENT: 01/04/2008
BENCH:

DR. ARIJIT PASAYAT P. SATHASIVAM
JUDGMENT:
JUDGMENT
CIVIL APPEAL NO. 2764 OF 2007
Dr. ARIJIT PASAYAT, J.
553
1. Challenge in this appeal is to the judgment of a Division Bench of the
Uttranchal High Court allowing the writ petition filed by the respondent.
The respondent had filed the writ petition under Article 226 of the Constitution
of India, 1950 (in short the ’Constitution’) questioning the order dated
13.11.1990 whereby his services were terminated by orders of the Chief of
Army Staff.
2. The High Court primarily relied on a decision of this Court in Major
Radha Krishan v. Union of India Ors. (AIR 1996 SC 3091) and allowed
the writ petition.
3. The stand of the appellants is that the High Court failed to notice
that the relied-upon decision was held to be not correctly decided by a three
judge Bench in Union of India Ors. v. Harjeet Singh Sandhu [2001(5) SCC
593].
4. Learned counsel for the respondent submitted that the decision of the
High Court was not based only on Major Radha Krishan’s case (supra) but
on other grounds.
5. The High Court allowed the writ petition with the following conclusions:
”In Major Radha Krishan v. Union of India Ors. (AIR 1996 SC 3091,
the Hon’ble Apex Court has held that where the trial by Court Martial
against the offences committed by an army personnel was barred by limitation
under Section 122 of the Act, the summary procedure for termination
under R.14(2) of the Rules, cannot be followed on the ground that the trial
by Court Martial was inexpedient or impracticable. Such a satisfaction that
the trial was inexpedient or impracticable can be arrived only at a time
when trial by a Court Martial is permissive or possible. In view of the said
principle of law and for the reasons as discussed above by us, the impugned
order by which the services of the petitioner were dismissed is liable to be
quashed.
Accordingly the writ petition is allowed. The impugned order is quashed.
The petitioner shall be entitled to the consequential benefits, admissible (as
of right) to him under the rules treating him Captain, the post he held on
the date when the impugned order was passed. No order as to costs.”
6. In Harjeet Singh Sandhu’s case (supra) the scope and ambit of the
Army Act, 1950 (in short the ’Act’) and Rule 40 of the Army Rules, 1954 (in

554 P.K. Choudhury v. Commander, 48 BRTF(GREF) 2008
short the ’Rules’) inter alia fell per consideration. This court also referred
to earlier decision in Chief of Army Staff v. Major Dharam Pal Kukrety
[1985(2) SCC 412].
7. In Harjeet Singh Sandhu’s case (supra) it was inter alia observed as
follows:
37. On the meaning which we are placing on the term ”impracticable”
as occurring in Rule 14(2) we proceed to provide resolutions to the several
problems posed by the illustrations given by the learned Additional Solicitor-
General. According to us:
In Illustration (i) the expiry of the period of limitation prescribed by
Section 122 renders the trial by Court Martial ”impracticable” on the wider
meaning of the term. There is yet another reason to take this view. Section
122 prescribes a period of limitation for the commencement of court martial
proceedings but Parliament has chosen not to provide any bar of limitation
on exercise of power conferred by Section 19. We cannot, by an interpretative
process, read the bar of limitation provided by Section 122 into Section 19
of the Act in spite of a clear and deliberate legislative abstention. However,
we have to caution that in such a case, though power under Section 19
read with Rule 14 may be exercised but the question may still be who has
been responsible for the delay? The period prescribed by Section 122 may
itself be taken laying down a guideline for determining the culpability of
delay. In spite of power under Section 19 read with Rule 14 having become
available to be exercised on account of a trial by a Court Martial having been
rendered impracticable on account of bar of limitation created by Section
122, other considerations would assume relevance, such as whether the facts
or set of facts constituting misconduct being three years old or more have
ceased to be relevant for exercising the power under Section 19 read with
Rule 14. If there was inaction on the part of the authorities resulting in
delay and attracting bar of limitation under Section 122 can it be said that
the authorities are taking advantage of their own inaction or default? If the
answer be yes, such belated decision to invoke Section 19 may stand vitiated,
not for any lack of jurisdiction but for colourable or mala fide exercise of
power.
38. In Illustration (ii), the Court Martial has stood dissolved for fortuitous
circumstance for which no one is to be blamed neither the Chief of
the Army Staff nor the delinquent officer. The delinquent officer, howsoever
grave his misconduct amounting to offence may have been, would go scotfree.
It would be fastidious to hold that bar of limitation under Section 122
would also exclude the exercise of power under Section 19 read with Rule
14.
41. Having thus explained the law and clarified the same by providing
resolutions to the several illustrative problems posed by the learned

555
Additional Solicitor-General for the consideration of this Court (which are
illustrative and not exhaustive), we are of the opinion that the expiry of
period of limitation under Section 122 of the Act does not ipso facto take
away the exercise of power under Section 19 read with Rule 14. The power
is available to be exercised though in the facts and circumstances of an individual
case, it may be inexpedient to exercise such power or the exercise
of such power may stand vitiated if it is shown to have been exercised in
a manner which may be called colourable exercise of power or an abuse of
power, what at times is also termed in administrative law as fraud on power.
A misconduct committed a number of years before, which was not promptly
and within the prescribed period of limitation subjected to trial by a Court
Martial, and also by reference to which the power under Section 19 was not
promptly exercised may cease to be relevant by long lapse of time. A subsequent
misconduct though less serious may aggravate the gravity of an earlier
misconduct and provide need for exercise of power under Section 19. That
would all depend on the facts and circumstances of an individual case. No
hard-and-fast rule can be laid down in that behalf. A broad proposition that
power under Section 19 read with Rule 14 cannot be exercised solely on the
ground of court martial proceedings having not commenced within the period
of limitation prescribed by Section 122 of the Act, cannot be accepted.
In the scheme of the Act and the purpose sought to be achieved by Section
19 read with Rule 14, there is no reason to place a narrow construction on
the term
”impracticable” and therefore on availability or happening of such events
as render trial by Court Martial impermissible or legally impossible or not
practicable, the situation would be covered by the expression the trial by
Court Martial having become ”impracticable”.
43. We are also of the opinion that Major Radha Krishan case (supra)
lays down propositions too broad to be acceptable to the extent it holds
that once the period of limitation for trial by Court Martial is over, the
authorities cannot take action under Rule 14(2). We also do not agree with
the proposition that for the purpose of Rule 14(2), impracticability is a
concept different from impossibility (or impermissibility, for that matter).
The view of the Court in that case should be treated as confined to the facts
and circumstances of that case alone. We agree with the submission of the
learned Additional Solicitor-General that the case of Dharam Pal Kukrety’s
case (supra) being a three-Judge Bench decision of this Court, should have
been placed before the two-Judge Bench which heard and decided Major
Radha Krishan case (supra).
8. Since the foundation of the impugned judgment of the High Court is
Major Radha Krishnan’s case (supra), we therefore, set aside the impugned
order of the High Court and remit the matter to it for a fresh consideration
keeping in view the position in law as delineated in Harjeet Singh Sandhu’s

556 P.K. Choudhury v. Commander, 48 BRTF(GREF) 2008
case (supra). Since the matter is pending long we request the High Court
to dispose of the Writ Petition as early as practicable preferably by the end
of September, 2008.
9. The appeal is allowed to the aforesaid extent. No costs.

Chapter 51
Bachan Singh v. Union of
India 2008
Bachan Singh v. Union of India
(C.K. Thakker and Lokeshwar
Singh Panta, JJ.) Bachan Singh -
Appellant v. Union of India &
Ors. - Respondent(s) Civil Appeal
No. 3110 of 2004, decided on July
10, 2008 The judgment of the Court
was delivered by Lokeshwar Singh
Panta, J. Bachan Singh - appellant
is aggrieved by the judgment
and order dated February 5, 2002
passed by the Division Bench of the
High Court of Jammu and Kashmir
at Jammu allowing the LPA (SW)
No. 284/97 filed by the respondents
herein against the judgment dated
November 20, 1996 of the learned
Single Judge of the High Court
whereby the learned Single Judge allowed
SWP No. 14-A/1984 filed
by the appellant and quashed the
General Court Martial held against
him including confirmation of sentence
passed upon him by the General
Court Martial and the appellant
is relegated back to the position
he had on the date of passing of
the order with all the benefits under
the Rules. A General Court Martial
(GCM) under the Army Act, 1950
(for short ‘the Act ´ ) was convened
by the competent authority on January
4, 1982 under Section 109 of the
Act to try the appellant holding the
rank of Sepoy in Second Batallion,
the Dogra Regiment in the Army.
The allegations against the appellant
for which he was suspected to be
tried by GCM were:- ¨ No.3973649A
Sep Bachan Singh of 2DOGRA is
resident of village Paragwal, Tehsil
Akhnoor, District Jammu (JK) S/o
Shri Dharam Singh and step son of
Smt. Gyano Devi, second wife of
Shri Dharam Singh. Sep. Bachan
Singh studied in Govt. Lower High
School, Paragwal up to the 9th. He
was enrolled in the Army on 11 Oct.
75 to Meerut in the Dogra Regt.
He is married to Smt. Veena Kumari
D/o Shri Durga Singh resident
of Village Chargarwar, Tehsil
Jammu, District Jammu (JK). Sep
Bachan Singh proceeded on annual
leave w.e.f. 16 Jan 80 to 15 Mar 80
to his home station village Paragwal,

558 Bachan Singh v. Union of India 2008
Tehsil Akhnoor. Shri Bachan Singh
S/o Shri Waryam Singh resident of
Village Najwal, Tehsil Akhnoor, District
Jammu (JK) which is about 3
kms. from village Paragwal is related
to Sep Bachan Singh. Sep Bachan
Singh´s step mother Smt. Gyano
Devi is the younger sister of Shri
Rattan Singh´s mother Smt. Vidya
Devi. During the month of Feb 80
Smt. Vidya Devi had gone over to
Sep Bachan Singh´s house and invited
him and his wife over to her
place. On 12 Mar 80 Sep Bachan
Singh along with his wife Smt. Veena
Devi and his three months old son
went to Smt. Vidya Devi´s house.
Shri Rattan Singh and Sep Bachan
Singh consumed country liquor that
night. At about 2130 hours Shri
Rattan Singh and Sep Bachan Singh
went out for a walk and while waling
crossed the border into PAK territory
where they were met by two
PAK FIU staff at Post DERA. PAK
if he was in possession of his identity
card. Sep Bachan Singh gave his
name as Narinder Singh son of Shri
Surjeet Singh, his unit as 16 JK LI located
at MIZORAM. PAK FIU staff
gave Rs. 200/- Sep Bachan Singh
when he reached his home. The next
day, 13 Mar 80, Sep Bachan Singh
with his family left for his home.
On 15 Mar 80 Sep Bachan Singh
left his village Paragwal to rejoin his
unit. At 1830 hours 15 Mar 80, Sep
Bachan Singh rejoined his unit, 2
DOGRA. On 04 Jul 80 Sep Bachan
Singh under an escort proceeded to
168 ASC Bn on temp duty for interrogation
at the Joint Interrogation
Centre South C/o Det 4/290 Liaison
Unit C/o 56 APO and returned
back to the unit on 10 Aug 80. ¨ The
order convening the Court Martial
reads as under:- ¨ FORM OF ORDER
FOR THE ASSEMBLY OF A GEN-
ERAL COURT MARTIAL UNDER
ARMY ACT Orders by IC-5095P
Major General K. Mahipat Sinhji Officiating
General Officer Commanding
16 Corps. Place: Field Date:15
December, 1981. No.3973649A Sepoy
The details of officers mentioned
Bachan Singh 2nd below will assemble
at Field on Batallion The Dogra
the Sixteenth day of December Regiment
1981 for the purpose of trying
by a General Court Martial the accused
person named in the margin
(and such other person or persons as
may be brought before them.) The
Senior Officer to sit as Presiding Officer.
MEMBERS IC-7757L Brig. Talwar
Harjeet - Cdr 191 Inf Bde IC-
12716L Lt. Col. Borkar, Mukand
Narasinha - OC 1890 Indep Lt Bty.
IC-28737L Maj Vohra, Satyendra
Mohan - 2 SIKH IC-25247M Capt
Jagmal Singh - 37 Med Regt IC-
34139K Capt Ranjit Barkakoty - 81
Armd Regt. WAITING MEMBERS
IC-13474A Lt Col. Brar, Surjit
Singh - OC 28 EME Bn IC-24826M
Gill Mohanjit Singh - 8 CAV IC-
35033K Capt Hari Mohan Joshi -
374 Sig Regt JUDGE ADVOCATE
IC-36504Y Maj Deosthale Jayant
Kumar - DAJAG HQ Northern
Command is appointed Judge Advocate
PROSECUTOR IC-29015L
Maj Valentine, Joseph Melvin - 9
MADRAS appointed prosecutor The
accused will be warned, and all witnesses
duly required to attend. The
proceedings (of which only three
copies are required) will be forwarded

to Headquarters, 16 Corps, through
DJAG Headquarters Northern Command.
Signed this fifteenth day
of December, 1981. Sd/- (R.K.
Kashyap) Lieutnant Colonel Assistant
Adjutant General for Officiating
General Officer Commanding
16 Corps¨ The charge sheet reads as
under:- ¨ CHARGE SHEET The accused
No. 3973649A Sep Bachan
Singh, 2nd Batallion The Dogra
Regiment is charged with:- Army
Act AN ACT PREJUDICIAL TO
GOOD ORDER AND Section 63
MILITARY DISCIPLINE in that he,
at Village Najwal (JK) on 12 Mar 80,
went across the International Border
to Post ‘DERAín Pakistan, alongwith
Shri Rattan Singh S/o Shri
Waryam Singh of the said village.
Sd/- Station: Field (Balwant Singh)
Date: 12 Dec 81 Major Officiating
Commanding Officer nd 2 Batallion
The Dogra Regiment To be tried
by a General Court Martial Place :
Field Sd/- Date: 12 Dec 81 (R.K.
Kashyap) Lieutnant Colonel Assistant
Ad-jutant General for Officiating
General Officer Commanding 16
Corps¨ Section 63 of the Act reads
as under:- ”Violation of good order
and discipline:- Any person subject
to this Act who is guilty of any act
or omission which, though not specified
in this Act, is prejudicial to
good order and military discipline
shall, on conviction by court martial,
be liable to suffer imprisonment for
a term which may extend to seven
years or such less punishment as is
in this Act mentioned. Äfter conclusion
of the proceedings, the appellant
was held guilty of the charge and was
sentenced to suffer two years impris-
559
onment and also dismissed from service
by order dated January 22, 1982
of the GCM. The sentence passed
against the appellant was confirmed
by the confirming authority as required
under the Act. The appellant
challenged his conviction and sentence
in SWP No. 14-A/1984 filed by
him in the High Court of Jammu and
Kashmir at Jammu which as noted
above, was allowed by the learned
Single Judge by order dated November
20, 1996. The ground which appealed
to the learned Single Judge
in setting aside the Court Martial
and subsequent confirmation of sentence
may be stated from the relevant
paragraphs of the judgment of
the learned Single Judge which are
as under:- Ï have gone through the
record that was produced before me
today and also leafed through the
statements made by the witnesses
before the General Court Martial.
Not even a single witness has deposed
that he had seen or had any
knowledge of the petitioner having
crossed ever the International Border.
There is absolutely no evidence.
Learned counsel appearing for the
respondents has vehemently relied
upon the statement made by the accused/petitioner
before the summary
of evidence. According to him this
statement was made voluntarily and
can be safely acted upon. I decline
to agree with the learned counsel
for the reason, because, statements
made before summary of evidence
cannot be relied upon in the
first instance. Even then I have
gone through the statement of the
petitioner/accused before the general
court martial. In that statement,

560 Bachan Singh v. Union of India 2008
the petitioner has vehemently stated
that the earlier statement made by
him during the summary of evidence
was as a result of force exercised
upon him during interrogation. He
has totally resiled from this statement,
did not own the same. I am
tempted to refer to Article 20 of the
Constitution read with Section 27 of
the Evidence Act. The statement
tendered by the accused/petitioner
before the summary of evidence has
been destroyed and another statement
was later recorded. The general
court martial has taken note
of this statement and itself returned
a finding in the following manner:-
¨The court decided to uphold the
contention of defence and not to
admit the above document in evidence.
¨ General Court Martial seems
to have sufficiently been conscious of
the loop-holes which the statement
had and it was because of these loopholes
that this confessional statement
was not acted upon. Suffice to say
that there is no evidence linking the
petitioner/accused with the allegation
under which he stands charged.
On the strength of the foregoing reasoning,
I find the proceedings to be
inconsistent with the provision of the
Army Act and the finding of the
court martial was not in accordance
with the law. Therefore, the same
is quashed and the petitioner is relegated
back to the position he had
on the date of passing of the order.
He will be entitled to all the benefits
under rules. Äggrieved by the said
order of the learned Single Judge of
the High Court, the Union of India
and the officials concerned of the
Army have preferred Letters Patent
Appeal (SW) No. 284/94. By order
dated February 5, 2002, the Division
Bench of the High Court allowed
the appeal and set aside the order
passed by the learned Single Judge
in SWP No. 14-A/1994. Hence,
the appellant has preferred this appeal.
Mr. D.K. Garg, learned counsel
appearing on behalf of the appellant
in support of the judgment of
the learned Single Judge, contended
that the learned Single Judge has
rightly quashed the GCM primarily
on a ground that the GCM had been
convened in violation of the mandate
of Section 109 of the Act. According
to the learned counsel, the GCM was
not convened by the authority competent
to do so in terms of Section
109. It was urged that there was no
direct evidence produced on record
of the GCM by the respondents to
prove the guilt of the appellant for
offence under Section 63 of the Act
and in the absence of any evidence,
the order of conviction and sentence
imposed upon the appellant by the
GCM was invalid, unsustainable and
in violation of natural justice and
in such circumstances the judgment
of the learned Single Judge setting
aside the order of the GCM could not
have been interfered with by the Division
Bench in Letters Patent Appeal.
It was, therefore, submitted
that the impugned order of the Division
Bench of the High Court deserves
to be set aside by restoring
the order of the learned Single Judge.
Mr. Parag P. Tripathi, learned Additional
Solicitor General for the respondents
on the other hand, supported
the order passed by the Division
Bench of the High Court and

submitted that the High Court was
right in allowing the Letters Patent
Appeal and in making the order. He
submitted that the learned Single
Judge has exceeded his jurisdiction
under Article 226 of the Constitution
of India by setting aside the Court
Martial and subsequent order of conviction
and sentence recorded against
the appellant which was later on confirmed
by the competent authority
as envisaged under the Act and the
Rules for violation of good order and
discipline in terms of Section 63 of
the Act. According to the learned
counsel, this Court in exercise of its
power under Article 136 of the Constitution
may ordinarily not interfere
with the order of the Division
Bench. Having heard the learned
counsel and having gone through the
material on record and also the relevant
provisions of the Army Act and
Rules, in our opinion, the Division
Bench of the High Court was justified
in setting aside the order of
the learned Single Judge who was
not justified in setting aside the wellreasoned
order of the GCM which
was based upon proper and fair appreciation
of the evidence of the material
witnesses, statement made voluntarily
by the appellant before it,
other material and subsequent order
of the confirming authority. The appellant´s
contention that the convening
of the GCM in this case is not
valid because under Section 109 of
the Act, the GCM can be convened
only by any officer who has been
appointed by a specific warrant in
that connection by the Chief of the
Army Staff must be rejected. Under
Section 109 of the Army Act, a
561
GCM may be convened by the Central
Government or the Chief of the
Army Staff or by any officer empowered
in this behalf by warrant of the
Chief of the Army Staff. There is
nothing in Section 109 which requires
the Chief of the Army Staff to issue
a warrant for each specific case. A
general warrant for convening GCM
under the Act has been issued by
the Chief of the Army Staff under
Section 109 whereby all the officers
not being under the rank of a Field
Officer, commanding the 16 Corps
are empowered to convene GCM for
the trial of any person under his
command who is subject to Military
Law authorized by A-1 warrant
duly signed by the Chief of the Army
Staff was produced before the High
Court which has been noticed and extracted
in the judgment by the Division
Bench. The warrant of authorization
reads as under:- ¨ Warrant of
convening of General Court Martial
under the Army Act. To, The OFI-
CER NOT BEING UNDER THE
RANK OF A FIELD OFFICER,
COMMANDING THE XVI CORPS
In pursuance of the provisions of the
Army Act, 1950 (XLVI of 1950). I
do hereby empower you, or the officer
on whom your command may
devolve during your absence, not under
the rank of Field Officer, from
time to time as occasion may require,
to convene General Courts Martial
for the trial, in accordance with the
said Act and the Rules made thereunder,
of any person under your command
who is subject to military law
and is charged with any offence mentioned
in the said Act, and is liable
to be tried by a General Court Mar-

562 Bachan Singh v. Union of India 2008
tial. And for doing so, this shall
be, as well to you as to all others
whom it may concern, a sufficient
warrant. Given under my hand at
NEW DELHI this twenty fourth day
of JUNE 1972. Sd/- General CHIEF
OF THE ARMY STAFF.
In the present case, the above
said order dated 15th December,
1981 convening the assembly of GCM
under the Act passed by IC-5095P
Major General K. Mahipat Sinhji,
Officiating General Officer Commanding
16 Corps clearly proves that
the GCM has been convened by a
competent authority in accordance
with the provisions of Section 109
of the Army Act. The members
of the GCM were selected and appointed
in compliance to Section 113
of the Act. Thus, the respondents
have fully complied with the requirement
of law. The record of
the Court Martial produced before
us by the learned Additional Solicitor
General would reveal that the
GCM was held against the appellant
on different dates at Udhampur.
The record would disclose that
the appellant had made voluntarily
written confessional statement before
the GCM admitting the allegations
levelled against him in the
charge sheet. On bare perusal of
the GCM, it becomes quite clear
that the proceedings were recorded
by the GCM in the presence of the
appellant, his defending officer and
other witnesses. The statements of
Major S.K. Sareen, Smt. Vidya
Devi, Veena Kumari, Tara Chand,
Rattan Singh, Prabhu Ram, Major
S.B. Ambel, Pritam Singh, Capt.
A.K. Chowdary, Major Amin Chand
Bhattee were recorded by the GCM
on behalf of the prosecution in support
of the charge in the presence of
the appellant. The appellant was afforded
full opportunity of cross examining
the witnesses but he did not
avail of the said opportunity. It appears
from the record that despite
giving warning to the appellant to
the effect that he was not obliged
to make any confessional statement,
the appellant made written confessional
statement on October, 22,
1980. The appellant made additional
statement in addition to first summary
of evidence on 10th September,
1981 in the presence of witnesses
namely IC-25616Y Major S.L.
Gautam independent witness, Major
Amin Chand Officer recording Summary
of Evidence. It appears from
the record that second additional
summary of evidence recorded on
10th September, 1981 was in compliance
with Army Rules 23(1), 23(2),
23(3), 23(4) and 23(6) in which the
appellant did confess his guilt. Chapter
XII of the Act deals with Confirmation
and Revision. Section 153
provides 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
as provided by this Act. Section 154
prescribes that the findings and sentences
of general courts martial may
be confirmed by the Central Government,
or by any officer empowered
in this behalf by warrant of the Central
Government. The record of the
respondents shown to us would establish
that the findings of conviction
and sentences imposed upon the ap-

pellant by the GCM were confirmed
by the competent authority in terms
of Section 154 of the Act. We find
the proceedings of the GCM to be
quite immaculate where trial was fair
and every possible opportunity was
afforded to the appellant to defend
his case. After ourselves examining
the record of the court martial, we
find that the learned Single Judge,
with respect to him, completely misdirected
himself in coming to the conclusion
that the proceedings held by
GCM were inconsistent with the provisions
of the Army Act and the finding
of the Court Martial was not in
accordance with the law. The appellant
was given opportunity to inspect
whatever record he wanted, his
wife and other witnesses were examined
in his presence and he had participated
in the court martial proceedings
without raising any objection.
The GCM took into consideration
the relevant oral evidence of
the material witnesses and statement
voluntarily made by the appellant
and additional summary confessional
statement duly signed by him in the
presence of Major S.L. Gautam and
Major Amin Chand who have also
appended their signatures thereon
and other materials produced before
it, found the appellant guilty of
the charge and convicted and sentenced
him accordingly. The appellant
filed post confirmation petition
against the order of the GCM under
Section 164 of the Act, a copy
whereof has been shown to us by
the learned counsel for the appellant.
We are informed by the learned
Additional Solicitor General that the
said petition has been rejected by
563
the competent authority and findings
and sentences of the GCM recorded
against the appellant were confirmed
and the appellant was, accordingly,
informed about the decision so taken
by the authority. Indisputably, the
appellant has neither challenged the
said order of the competent authority
passed under the Statute before
the High Court in the writ petition
nor was the order was brought to the
notice of the Division Bench by the
appellant at the time of hearing and
deciding the Letters Patent Appeal.
Having examined the above said order
of the learned Single Judge, we
find that the findings and reasonings
recorded therein are not based
upon proper assessment of the facts
of the case and it was not necessary
for the learned Single Judge to
have minutely examined the record
of the GCM as if he was sitting in
appeal. We find that on merits, the
learned Single Judge has not clearly
and plainly said that there was no
case against the appellant to hold
him guilty of the offence charged. It
is well-known and well-settled proposition
of law that in proceedings under
Article 226 of the Constitution
the High Court cannot sit as a Court
of Appeal over the findings recorded
by the GCM. Judicial Review under
Article 226 of the Constitution is not
directed against the decision but is
confined to the decision-making process.
Judicial review is not an appeal
but a review of the manner in which
the decision is made. The court sits
in judgment only on the correctness
of the decision making process and
not on the correctness of the decision
itself. Thus, examining the case

564 Bachan Singh v. Union of India 2008
of the appellant from all angles we
are satisfied that there was no irregularity
or illegality in the GCM which
was fairly and properly conducted by
most qualified members holding very
high ranks in Army hierarchy. The
Division Bench of the High Court in
the impugned judgment while setting
aside the judgment of the learned
Single Judge has relied upon the decision
of this Court in Union of India
Ors. v. IC 14827 Major A. Hussain
[AIR 1998 SC 577] and observed that
the High Court cannot re-appreciate
the evidence recorded by the authorities
and substitute by its own finding
replacing the conclusion reached
by the competent authority. Though
the Division Bench of the High Court
has not given detailed reason in its
judgment for setting aside the judgment
of the learned Single Judge, yet
in substance we are of the opinion
that the said judgment on merit warrants
no interference inasmuch as no
illegality, infirmity or error of jurisdiction
could be shown before us by
the appellant. In our view, there is
no merit in the contentions taken by
the appellant. For the reasons above
stated, there is no merit in this appeal
and it is, therefore, dismissed.
There will be no order as to costs
Union Of India Ors. v. Rajpal Singh
on 7 November, 2008 Author: D Jain
Bench: C.K. Thakker, D.K. Jain
IN THE SUPREME COURT OF
INDIA
CIVIL APPELLATE JURIS-
DICTION
CIVIL APPEAL NO. 6587 OF
2008 (Arising out of S.L.P. (C) No.
6037 of 2007) UNION OF INDIA
amp; ORS. – APPELLANT (S)
VERSUS
RAJPAL SINGH – RESPON-
DENT (S) WITH
[SLP (C) NOS. 14338-14339 OF
2008 AND
SLP (C) NO.15430 OF 2008]
JUDGMENT
D.K. JAIN, J.:
Leave granted in SLP (C) No.
6037 of 2007. 1
2. This appeal raises a short
question whether the holding of an
Invalidating Board is a condition
precedent for discharge of a Junior
Commissioned Officer (JCO) on account
of low medical category?
3. For the determination of the
issue aforesaid, it is unnecessary to
delve deeply into the facts of the case
and only a few material facts would
suffice. These are: The respondent, a
Junior Commissioned Officer (JCO)
was enrolled in the Army on 9th
March, 1980. While serving 20 JAT
Regiment, on 31st July, 2000, he
fell ill; was admitted to the military
hospital and was discharged after
treatment on 7th November, 2000,
but was placed in low medical category
S1H1A1P2E1 with effect from
6th November, 2000 for six months.
On account of disability, namely, Ischaemic
heart disease, again in May,
2001, he was continued in low medical
category for another six months.
Later, he was brought for review and
was then placed in low medical category
(permanent) for a period of two
years from October, 2001.
4. However, before the expiry

of the said period of two years, a
show cause notice was served on the
respondent on 27th February, 2002,
stating that since he was placed
in permanent low medical category,
why he should not be discharged
from service as no sheltered appointment
was available and his unit was
deployed in a field area. It was also
stated that his retention in service
was not in public interest. For the
sake of ready reference, the notice is
extracted below:
20 JAT C/O
99 APO
2062/A/
February, 2002
JC 48893 IX
Mb Sub Rajpal Singh
20 JAT
C/o 99 APO
SHOW CAUSE NOTICE
1. During re-categorization
board held at 178 Army Hospital on
24.10.2001, as per AF MSF-15A you
have been declared in permanent low
medical category.
2. Because the unit is deployed
in field area, there is no sheltered appointment.
As a result of the above,
show cause as to why you should not
be discharged from service because
your retention in service is not in
public interest.
3. Please send reply of the show
cause notice by 10.3.2002. Sd/- xxxx
(Rajesh Ahuja)
Colonel Commanding Officer
5. In his reply to the said notice,
the respondent pleaded that
565
on doctor’s advice he could perform
light duties and expressed his willingness
to continue in service. A
‘Release Medical Board’ was constituted,
which recommended his discharge.
Accordingly, by an order
passed by the Officer In-charge
(OIC) of 20 JAT Regiment, the respondent
was discharged from service
with effect from 31st August, 2002.
6. Being aggrieved, the respondent
challenged his discharge by preferring
a writ petition under Article
226 of the Constitution in the High
Court of Delhi at New Delhi. Before
the High Court the plea of the
respondent was that:- (i) as a JCO
he could be discharged for low medical
category under Army Rule 13 (3)
(I) (ii) by the Commanding Officer
after obtaining the opinion of an Invalidating
Board and not under Rule
13 (3) (I) (iii) (c) read with Rule 13
(2A) which had been applied in his
case and since the opinion of the Invalidating
Board had not been obtained,
his discharge was contrary to
the rules; (ii) as per the mandate
of the afore-noted Army Rule, the
recommendation of the Invalidating
Board is to precede the decision for
discharge 4
and a Release Medical Board cannot
replace the requirement of Invalidating
Board; (iii) as per the policy
directive issued by the Government
on 15th March, 2000, Army
Rule 13 (3) (I) (iii) (c), he could
be discharged only by the Chief of
Army Staff and not by OIC, 20 JAT
Regiment even though under Rule
13 (2A), such power could be delegated
to the commanding officer but

566 Bachan Singh v. Union of India 2008
in the present case no such decision
had been taken; (iv) there was no adverse
report against him either from
his CO or any of the superior officers’
regarding performance of his duties
and general behaviour and, therefore,
his continuation in service could not
be said to be against public interest;
(v) the OIC (Records) order of his
discharge without providing an opportunity
of hearing is violative of
the principles of natural justice and
(vi) a number of similarly situated
JCOs had been retained in service
and, therefore, he had been discriminated
against.
7. The stand of the Government
before the High Court was that retention
of low medical category personnel
is always subject to the availability
of suitable sheltered appointment,
commensurate with their medical
category and since no suitable
sheltered appointment was available
with the unit due to deployment in
field area, the respondent had to be
discharged from service. It was also
urged that since the respondent’s disability
had already been assessed by
the Release Medical Board, he was
discharged under Army Rule 13 (3)
(I) (iii) (c) read with Rule 13 (2A)
and Army Order 46/80 in public interest.
8. The High Court, by a well
reasoned order, concluded that the
discharge of the respondent without
holding an Invalidating Board in
terms of Rule 13 (3) (I) (ii) was illegal.
As regards the applicability
of Army Order 46 of 1980, which
contemplates that the employment of
permanent low medical category per-
sonnel at all times is subject to availability
of suitable sheltered appointment,
commensurate to their medical
category, the High Court held that
before the opinion is formed as to
whether a person is to be retained
or not on medical grounds, there has
to be an opinion of the Invalidating
Board to the effect that further retention
in service on medical ground
is not possible. The question of suitable
sheltered appointment commensurating
the medical category will be
relevant only thereafter. According
to the High Court, there is no rule
stipulating that as soon as a person
is placed in permanent low medical
category, it will be presumed that he
is unfit for further service. Consequently,
the High Court allowed the
writ petition; quashed the order of
discharge and directed the appellants
herein to reinstate the respondent in
service.
9. Aggrieved by the said order,
the appellants filed a Review Petition
along with a number of other miscellaneous
applications for interim relief.
The Review Petition as well as
the applications were dismissed on
merits as well as on the ground of
limitation. The main order dated 7th
October, 2005 as well as the order in
Review Petition dated 25th January,
2007 are under challenge in this appeal.
10. It was strenuously urged by
Mr. Vikas Singh, learned Additional
Solicitor General, that since the respondent
was in low medical category,
he was discharged under Army
Order 46 of 1980 read with Rule 13
(3) (I) (ii) (c) of the Army Rules,

1954 (for short ‘the Rules’) whereunder
there is no requirement for convening
an Invalidating Board. It was
submitted that the source of power
of discharge of the respondent was
Sub-rule (2A) of Rule 13, which creates
a special provision for discharge,
notwithstanding anything to the contrary
contained in Rule 13. It was
contended that the meaning of the
expression ‘unfit for further service’
as used in clause (ii) of Rule 13 (3)
(I) is very clear and unambiguous
and, therefore, Invalidating Board as
contemplated under the said Rule is
meant only for those army personnel
who are found medically ‘unfit
for further service’ by the Review
Medical Board not for those who are
placed in ‘low medical category (permanent)’,
as is the case here. In support
of the proposition that when the
words of the statute are clear, plain
and unambiguous then the courts are
bound to give effect to that meaning,
irrespective of the consequences, reliance
is placed on the decisions of
this Court in Gurudevdatta Vksss
Maryadit amp; Ors. v. State of
Maharashtra amp; Ors.1 and Jitender
Tyagi v. Delhi Administration
amp; Anr.2. Reference is also made
to Shailendra Dania amp; Ors. v.
S.P. Dubey amp; Ors.3 to contend
that a long past practice followed by
the department is also a valid factor
in seeking a particular interpretation.
11. Per contra, Mr.P.P. Rao,
learned senior counsel appearing for
the respondent, vehemently contended
that in terms of Sub-rule (3)
of Rule 13 which specifies the category
of officers, competent to dis-
567
charge; the grounds of discharge, and
the manner of discharge, a JCO like
the respondent, who had been placed
in low medical category (permanent)
for a period of two years, could be
discharged from service only if he had
been found medically unfit for further
service on the recommendation
of the Invalidating Board. According
to the learned counsel, though
in the order of discharge the respondent
has been found to be in low
medical category (permanent) but in
effect, for the purpose of discharge,
he has been found medically unfit
for further service, and, therefore,
his case would clearly fall within the
ambit of clause (ii) of Rule 13 (3)
(I). In support of the proposition
that where power is given to do a
certain thing in a certain way, the
thing must be done in that way or
not at all and that other methods
of performance are necessarily forbidden,
reliance was placed on the
decision in Nazir Ahmad v. The
King Emperor4, followed in State of
Uttar Pradesh v. Singhara Singh
amp; Ors.5. Learned counsel argued
that the requirement of recommendation
of Invalidating Board is
a safeguard against arbitrary curtailment
of statutory tenure and being a
benevolent provision, requires to be
liberally construed. The stand of the
respondent is that the Rules relating
to discharge do not make any differentiation
between categorisation of
the personnel on the basis of their
health status and as long as a person
is discharged on medical grounds as
being unfit for further service, provision
of Rule 13 (3) (I) (ii) would
apply, irrespective of categorisation.

568 Bachan Singh v. Union of India 2008
In so far as Army Order 46 of 1980 is
concerned, the learned counsel submitted
that it cannot override the
statutory rule. Placing reliance on
the decision of this Court in Capt.
Virendra Kumar v. Union of India6,
learned counsel urged that the appellants
having failed to follow the
prescribed statutory procedure, the
termination of service of the respondent
was illegal and, therefore, the
High Court was fully justified in setting
aside the same.
12.Having examined the issue in
the light of the statutory provisions,
we are of the opinion that answer to
the question posed has to be in the
affirmative.
13.It needs little emphasis that
fitness of the personnel of Armed
Forces at all levels is of paramount
consideration and there cannot be
any compromise on that score. It is
with this object in view, the Legislature
has enacted the Army Act, 1950;
the Armed Forces Medical Services
Act, 1983 and framed the Rules.
Army Orders are also issued from
time to time in order to give effect
to these statutory provisions in letter
and spirit. As per the procedure
detailed in the written submissions,
filed on behalf of the appellants, annual
or periodic medical examination
of the army personnel is done on certain
specific norms. The medical status
of an army personnel is fixed on
the basis of these norms, containing
five components viz. (a) psychology
(b) hearing (c) appendarist
(d) physical and (e) eye – which is
collectively known as SHAPE. The
medical status SHAPE is again char-
acterised in five components known
as:– SHAPE I–physically fit for all
purposes. SHAPE II amp; SHAPE
III–not fit for certain duties and are
required not to undertake strain.
SHAPE IV–those who are in hospital
for certain ailments and
SHAPE V–unfit for further service
of the Army.
14.It is pointed out that army
personnel are put in the aforementioned
medical categories i.e.
SHAPE on the basis of a periodical
Medical Board which is held for an
individual after the age of 35 years
and thereafter at an interval of every
5 years. If the army personnel
is in SHAPE I, he is not required
to undergo further Medical
Board except annual medical examination.
However, the army personnel
who is placed in SHAPE II and
SHAPE III on the annual medical examination,
he is placed in low medical
category (temporary) for a period
of six months. After six months,
he is placed before the Review Medical
Board and if at the end of six
months, his category remains unchanged,
that category is awarded to
him on permanent basis and he is
placed in low medical category (permanent).
After award of low medical
category (permanent), the army
personnel is placed before the Review
Medical Board after every two
years. In Review Medical Board,
the medical category of the personnel
may be changed keeping in view the
change in any component of SHAPE.
Thus, SHAPE II or SHAPE III may
be placed in SHAPE I also and vice
versa. It is the say of the appel-

lants that the release of certain medical
category (permanent) personnel
is regulated by Army Order No.46
of 1980, which contemplates that the
army personnel, who is placed in low
medical category (permanent), is to
be retained in service for a minimum
13
period of 15 years (for Sepoy) and
20 years (for JCO) and during this
period he is entitled to all promotions
as per the rules; the discharge of
low medical category is regulated as
per the above-mentioned Army Order
and before the discharge, the personnel
is placed before the Release
Medical Board for a mandatory examination
before the order of discharge
is passed. An army personnel
who is categorised as SHAPE V
is considered to be not fit for further
service of the Army and on placing
such a personnel in SHAPE V
he is mandatorily brought before Invalidating
Board in terms of Rule 13
(3), whereas an army personnel who
is in SHAPE II or in SHAPE III, is
to undergo different Medical Boards
apart from annual medical examination.
The said personnel are not totally
unfit but at the same time they
are not fit for all the army duties
and, therefore, they are retained for
15 years or 20 years, as the case may
be, on the sheltered post mandatorily.
15.Having noticed the basic parameters
which are applied for categorisation
of the physical status of
the army personnel, it will be useful
to briefly refer to relevant statutory
provisions.
16.Chapter IV of the Army Act,
569
1950 (for short ‘the Act’) deals with
the conditions of service of the army
personnel. Section 18 of the Act provides
that every person subject to
the Act shall hold office during the
pleasure of the President. Section
19 clothes the Central Government
with the power of dismissal or removal
from service any person covered
under the Act subject to the
provisions of the Act and the Rules
and Regulations made thereunder.
Section 20 provides for dismissal, removal
or reduction by the Chief of
the Army Staff and by other officers.
Section 22 of the Act provides for retirement,
release or discharge from
the service by such authority and in
such manner as may be prescribed.
Sub-Section (xix) of Section 3 of the
Act states that ‘prescribed’ means
prescribed by rules made under the
Act. Section 191 empowers the Central
Government to make rules as regards
removal, retirement, release or
discharge from the service of persons
subject to the Act. 15
Pursuant to and in furtherance of
the power conferred on the Central
Government under Section 191 of the
Act, the Central Government framed
the Rules.
17.Rule 13 which is the pivotal
provision reads thus: 13. Authorities
empowered to authorise discharge.–
(1) Each of the authorities specified
in column 3 of the Table below,
shall be the competent authority
to discharge from service person
subject to the Act specified in column
1 thereof on the grounds specified
in column 2. (2) Any power
conferred by this rule on any of the

570 Bachan Singh v. Union of India 2008
aforesaid authorities shall also be exercisable
by any other authority superior
to it. [(2A) Where the Central
Government or the Chief of the
Army Staff decides that any person
or class or persons subject to the Act
should be discharged from service, either
unconditionally or on the fulfillment
of certain specified conditions,
then, notwithstanding anything contained
in this rule, the Commanding
Officer shall also be the competent
authority to discharge from service
such person or any person belonging
to such class in accordance
with the said decision.] (3) In this
table commanding officer means the
officer commanding the corps or department
to which the person to be
discharged belongs except that in the
case of junior commissioned officers
and warrant officers of the Special
Medical Section of the Army Medical
Corps, the commanding officer
means the Director of the Medical
Services, Army, and in the case of
junior commissioned officer and warrant
officers of Remounts, Veterinary
and Farms, Corps, the Commanding
Officer means the Director Remounts,
Veterinary and Farms.
Category Grounds of Competent
Manner of discharge authority to discharge
authorise discharge
Junior I.(i)(a) On completion
Commanding Commissioned of the
period of Officer Officers service or
tenure specified in the Regulations
for his rank or appointment, are on
reaching the age limit whichever is
earlier, unless trainee on the active
list for further specified period with
the sanction of the Chief of the Army
Staff or on becoming eligible for release
under the Regulations.
(b) At his own Commanding request
on transfer Officer to the pension
establishment
(ii) Having been Commanding To
be carried out found medically Officer
only on the unfit for further recommendation
service. of an Invalidating
Board.
(iii) All other classes (a) In the
case If the discharge of discharge.
of Junior is not at the Commissioned
request of the Officers Junior
granted direct Commissioned commissions
Officer the during the first
competent 12 months authority before
service Area/ sanctioning the Divisional
discharge shall if Commander
the circumstances of the case permit
give the Junior Commissioned
Officer concerned an opportunity to
show cause against the order of discharge.
(b) In the case of JCOs,
not covered by (a), serving in any
Army or Command the General Officer
Commanding-in-Chief of that
Army or command if not below the
rank of Lieutenant General.(c) In any
other case the Chief of the Army
Staff;
18.The afore-extracted Rule 13
(1) clearly enumerates the authorities
competent to discharge from
service, the specified person; the
grounds of discharge and the manner
of discharge. It is manifest that
when in terms of this Rule an army
personnel is discharged on completion
of service or tenure or at the
request of the person concerned, no
specific manner of discharge is pre-

scribed. Naturally, the Regulations
or Army Orders will take care of the
field not covered by the Rules. However,
for discharge on other grounds,
specified in Column (2) of the Table,
appended to the Rule, the manner
of discharge is clearly laid out. It is
plain that a discharge on the ground
of having been found medically unfit
for further service is specifically dealt
with in Column (I) (ii) of the Table,
which stipulates that discharge
in such a case is to be carried out only
on the recommendation of the Invalidating
Board. It is a cardinal principle
of interpretation of a Statute that
only those cases or situations can be
covered under a residual head, which
are not covered under a specific head.
It is, therefore, clear that only those
cases of discharge would fall within
the ambit of the residual head, viz.
I (iii) which are not covered under
the preceding specific heads. In other
words, if a JCO is to be discharged
from the service on the ground of
medically unfit for further service;,
irrespective of the fact whether he is
or was in a low medical category, his
order of discharge can be made only
on the recommendation of an Invalidating
Board. The said rule being
clear and unambiguous is capable of
only this interpretation and no other.
19. Having reached the said
conclusion, we feel that the appellants
were bound to follow Rule 13
(3) (I) (ii), more so having placed
the respondent in low medical category
(permanent) for a period of two
years from October, 2001 he was discharged
from service on 31st August,
2002, relying on the recommendation
571
of the Re-categorisation Board held
on 24th October, 2001. As noted
in the show cause notice, extracted
above, the said Board had placed the
respondent in permanent low medical
category. Be that as it may, the
main ground of discharge being medical
unfitness for further service, the
appellants were bound to follow the
prescribed rule.
20. It is well settled rule of administrative
law that an executive
authority must be rigorously held to
the standards by which it professes
its actions to be judged and it must
scrupulously observe those standards
on pain of invalidation of an act in violation
of them. This rule was enunciated
by Justice Frankfurter in Viteralli
v. Saton7, where the learned
Judge said:
An executive agency must be rigorously
held to the standards by
which it professes its action to be
judged... Accordingly, if dismissal
from employment is based on a defined
procedure, even though generous
beyond the requirements that
bind such agency, that procedure
must be scrupulously observed...This
judicially evolved rule of administrative
law is now firmly established
and, if I may add, rightly so. He that
takes the procedural sword shall perish
with that sword.
21. The afore-extracted observations
were approved and followed
in Sukhdev Singh amp; Ors. v.
Bhagatram Sardar Singh Raghuvanshi
amp; Anr.8 and then again in
Dr. Amarjit Singh Ahluwalia v.
The State of Punjab amp; Ors.9
wherein, speaking for a three-Judge

572 Bachan Singh v. Union of India 2008
Bench, P.N. Bhagwati, J. had observed
that though the above view
was not based on the equality clause
of the United States Constitution
and it was evolved as a rule of administrative
law but the principle remains
the same, namely, that arbitrariness
should be eliminated in
a State action. (Also see: Ramana
Dayaram Shetty v. International
Airport Authority of India
amp; Ors.10).
22.In view of the foregoing interpretation
of the relevant rule, we are
in complete agreement with the High
Court that where a JCO is sought to
be discharged on the ground of medical
unfitness for further service, his
case has to be dealt with strictly in
accordance with the procedure contemplated
in Clause I (ii) in Column
2 of the Table appended to
Rule 13. The Rule prescribes a particular
procedure for discharge of a
JCO on account of medical unfitness,
which must be followed and, therefore,
any order of discharge passed
without subjecting him to Invalidating
Board would fall foul of the said
statutory rule.
23.In the present case, it is evident
from Column 9 of the order
of discharge that respondent has
been discharged on account of his
having been placed in a low medical
category (permanent) by the
Re-categorisation Board. As noted
above, he was not discharged immediately
and was apparently detailed
for sheltered appointment. However,
suddenly within a few months of his
evaluation by the Re-categorisation
Board, he was served with a show
cause 22
notice, seeking to discharge him
on the aforementioned grounds. We
are convinced that although the discharge
is purportedly shown to be
also on account of non-availability of
a sheltered appointment, the main
ground for discharge was undoubtedly
on account of permanent low
medical category i.e. medical unfitness.
In that view of the matter,
the order of discharge of the respondent
would not fall under the residual
ground, namely, I (iii) in Column 2 of
the Table.
24. That takes us to the next
question whether the case of the respondent
for discharge could be dealt
with in accordance with Army Order
46 of 1980, de hors Rule 13, as contended
by the appellants.
25.Relevant portion of the said
order reads as follows: AO 46/80
Disposal of Permanent Low Medical
Category Personnel other than Officers
Aim
1. The aim of this Army Order
is to lay down implementation
instructions for the disposal
of permanent low medical category
JCOs/OR in terms of Min of Def
Letter No. A/32395/VIII/Org 2
(MP) (c)/713-S/A/D (AG) dated 10
May, 77 as amended vide Corrigendum
No. A/32395/X/Org 2 (MP)
(c)/7167/A/D (AG) dated 26 Nov
79, reproduced as Appendice ‘A’ and
‘B’ respectively to this order.
Retention
2. General Principles

(a) The employment of permanent
low medical category personnel,
at all times, is subject to
the availability of suitable alternative
appointments commensurate
with their medical category and also
to the proviso that this can be justified
in the public interest, and
that their retention will not exceed
the sanctioned strength of the regiment/corps.
When such an appointment
is not available or when
their retention is either not considered
necessary in the interest of the
service or it exceeds the sanctioned
strength of the regiment/corps, they
will be discharged irrespective of the
service put in by them.
(b) Ordinarily, permanent low
medical category personnel will be
retained in service till completion of
15 years service in the case of JCOs
and 10 years in the case of OR (including
NCOs). However, such personnel
may continue to be retained in
service beyond the above period until
they become due for discharge in the
normal manner subject to their willingness
and the fulfilment of the stipulation
laid in Sub Para (a) above.
3. All personnel retained in service
in terms of Para 2 above will, under
all circumstances, be discharged
on completion of their engagement
periods/retiring service limits. For
this purpose, NCOs and JCOs will
be treated as under:- (a) NCOs will
be discharged on completion of the
retiring service limits appropriate to
ranks as opposed to the extended
limits laid down in AO 13/77. However,
their retention beyond the contractual
period of engagement will
573
be regulated under the provisions of
Paras 144 to 147 of Regulations for
the Army 1962.
(b) JCOs will be discharged on
completion of the normal retiring service
limits as opposed to the extended
limits laid down in AO 13/77.
4. Personnel suffering from pulmonary
tuberculosis, including those
who may be cured of the disease,
will be disposed of in accordance
with the provisions of Min of Def
letter No. 22679/DGAFMS/DG-
3A/2721/D(ME:- dated 18 Jul 74
(reproduced in AO 150/75), as
amended/amplified from time to
time.
5. Cases of all permanent low
medical category personnel will be
reviewed by all concerned accordingly.
In the case of those personnel
who become due for discharge as per
the instructions contained in the preceding
paragraphs, immediate action
will be taken in the normal manner
to carry of their discharge, as expeditiously
as possible.
6. This order only lays down
the general policy and procedure
with regard to the disposal of permanent
low medical category personnel.
The actual discharge will,
however, be carried out in accordance
with the provisions of Min of
Def letter No. A/32395/VIII/Org 2
(MP) (c)/713-S/a/D (AG) dated 10
May 77, as amended vide Corrigendum
No. A/32395/X/Org (MP) (c)/
7167/A/D (AG) dated 26 Nov 79
(reproduced as Appendices ‘A’ and
‘B’ respectively) and this HQ letter
No. 8861/AG/PS 2 (c) dated 18 Aug

574 Bachan Singh v. Union of India 2008
64, read with letter No 8861/AG/PS
2(c) dated 26 Mar/1 Apr 70.
7. Cases of permanent low medical
category personnel already decided
under the existing provisions,
will not be re-opened.
8. This supersedes all previous
instructions on the subject.
A/32395/X/Org 2(MP)
26. It is manifest that the said
Army Order has been issued for disposal
of permanent low medical category
personnel and merely contemplates
that the employment of permanent
low medical category personnel
at all times, is subject to the
availability of suitable alternative appointments
commensurate with their
medical categories and also subject
to the conditions that such a sheltered
appointment can be justified in
the public interest. A plain reading
of the Army Order shows that it
comes into operation after an opinion
has been formed as to whether a particular
personnel is to be retained in
service or not, if so for what period.
If a person is to be retained in service
despite his low medical category
for a particular period as stipulated
in the Army Order 46 of 1980, the
question of subjecting him to Invalidating
Board may not arise. However,
if a person is to be discharged
on the ground of medical unfitness,
at that stage of his tenure of service
or extended service within the
meaning of the Army Order, he has
to be discharged as per the procedure
laid down in Clause I (ii) in
Column 2 of the said Table. Similarly,
Sub-rule (2A) of Rule 13, heavily
relied upon by the appellants does
not carry the case of the appellants
any further. It is only an enabling
provision to authorise the commanding
officer to discharge from service
a person or a class of persons in respect
whereof a decision has been
taken by the Central Government or
the Chief of Army Staff to discharge
him from service either unconditionally
or on the fulfilment of certain
specified conditions. The said provision
is not in any way in conflict
with the scope of the remaining part
of Rule 13, so as to give it an overriding
effect, being a non obstante provision.
26
27. For the foregoing reasons,
we wholly agree with the reasoning
and the conclusion of the High Court
that the discharge of the respondent
was not in accordance with the prescribed
procedure and was, therefore,
illegal. We do not find any illegality
or infirmity in the impugned judgment/order,
warranting our interference.
The appeal, being devoid of
any merit, is dismissed accordingly
with costs.
SLP (C) NOS. 14338-14339 OF
2008 amp; SLP (C) NO.15430 OF
2008
28.These tagged special leave petitions
have been preferred against
the orders passed by the High Court,
declining to grant interim relief to the
writ petitioners. Since the main issue
now stands decided, there is no point
in entertaining these petitions. All
the petitions are dismissed accordingly
without observing anything on
merits. It will be open to the High
Court to now take up the main writ
petitions for disposal in accordance

with law.
J. (C. K. THAKKER)
J. (D.K. JAIN)
NEW DELHI;
NOVEMBER 7, 2008.Union Of
India Ors. v. Rajpal Singh on
7 November, 2008 Author: D Jain
Bench: C.K. Thakker, D.K. Jain
IN THE SUPREME COURT OF
INDIA
CIVIL APPELLATE JURIS-
DICTION
CIVIL APPEAL NO. 6587 OF
2008 (Arising out of S.L.P. (C) No.
6037 of 2007) UNION OF INDIA
amp; ORS. – APPELLANT (S)
VERSUS
RAJPAL SINGH – RESPON-
DENT (S) WITH
[SLP (C) NOS. 14338-14339 OF
2008 AND
SLP (C) NO.15430 OF 2008]
JUDGMENT
D.K. JAIN, J.:
Leave granted in SLP (C) No.
6037 of 2007. 1
2. This appeal raises a short
question whether the holding of an
Invalidating Board is a condition
precedent for discharge of a Junior
Commissioned Officer (JCO) on account
of low medical category?
3. For the determination of the
issue aforesaid, it is unnecessary to
delve deeply into the facts of the case
and only a few material facts would
suffice. These are: The respondent, a
Junior Commissioned Officer (JCO)
was enrolled in the Army on 9th
March, 1980. While serving 20 JAT
575
Regiment, on 31st July, 2000, he
fell ill; was admitted to the military
hospital and was discharged after
treatment on 7th November, 2000,
but was placed in low medical category
S1H1A1P2E1 with effect from
6th November, 2000 for six months.
On account of disability, namely, Ischaemic
heart disease, again in May,
2001, he was continued in low medical
category for another six months.
Later, he was brought for review and
was then placed in low medical category
(permanent) for a period of two
years from October, 2001. 2
4. However, before the expiry
of the said period of two years, a
show cause notice was served on the
respondent on 27th February, 2002,
stating that since he was placed
in permanent low medical category,
why he should not be discharged
from service as no sheltered appointment
was available and his unit was
deployed in a field area. It was also
stated that his retention in service
was not in public interest. For the
sake of ready reference, the notice is
extracted below:
20 JAT C/O
99 APO
2062/A/
February, 2002
JC 48893 IX
Mb Sub Rajpal Singh
20 JAT
C/o 99 APO
SHOW CAUSE NOTICE
1. During re-categorization
board held at 178 Army Hospital on
24.10.2001, as per AF MSF-15A you

576 Bachan Singh v. Union of India 2008
have been declared in permanent low
medical category.
2. Because the unit is deployed
in field area, there is no sheltered appointment.
As a result of the above,
show cause as to why you should not
be discharged from service because
your retention in service is not in
public interest.
3. Please send reply of the show
cause notice by 10.3.2002. Sd/- xxxx
(Rajesh Ahuja)
Colonel Commanding Officer
3
5. In his reply to the said notice,
the respondent pleaded that
on doctor’s advice he could perform
light duties and expressed his willingness
to continue in service. A
‘Release Medical Board’ was constituted,
which recommended his discharge.
Accordingly, by an order
passed by the Officer In-charge
(OIC) of 20 JAT Regiment, the respondent
was discharged from service
with effect from 31st August, 2002.
6. Being aggrieved, the respondent
challenged his discharge by preferring
a writ petition under Article
226 of the Constitution in the High
Court of Delhi at New Delhi. Before
the High Court the plea of the
respondent was that:- (i) as a JCO
he could be discharged for low medical
category under Army Rule 13 (3)
(I) (ii) by the Commanding Officer
after obtaining the opinion of an Invalidating
Board and not under Rule
13 (3) (I) (iii) (c) read with Rule 13
(2A) which had been applied in his
case and since the opinion of the Invalidating
Board had not been ob-
tained, his discharge was contrary to
the rules; (ii) as per the mandate
of the afore-noted Army Rule, the
recommendation of the Invalidating
Board is to precede the decision for
discharge 4
and a Release Medical Board cannot
replace the requirement of Invalidating
Board; (iii) as per the policy
directive issued by the Government
on 15th March, 2000, Army
Rule 13 (3) (I) (iii) (c), he could
be discharged only by the Chief of
Army Staff and not by OIC, 20 JAT
Regiment even though under Rule
13 (2A), such power could be delegated
to the commanding officer but
in the present case no such decision
had been taken; (iv) there was no adverse
report against him either from
his CO or any of the superior officers’
regarding performance of his duties
and general behaviour and, therefore,
his continuation in service could not
be said to be against public interest;
(v) the OIC (Records) order of his
discharge without providing an opportunity
of hearing is violative of
the principles of natural justice and
(vi) a number of similarly situated
JCOs had been retained in service
and, therefore, he had been discriminated
against.
7. The stand of the Government
before the High Court was that retention
of low medical category personnel
is always 5
subject to the availability of suitable
sheltered appointment, commensurate
with their medical category
and since no suitable sheltered
appointment was available with the
unit due to deployment in field area,

the respondent had to be discharged
from service. It was also urged that
since the respondent’s disability had
already been assessed by the Release
Medical Board, he was discharged
under Army Rule 13 (3) (I) (iii) (c)
read with Rule 13 (2A) and Army
Order 46/80 in public interest.
8. The High Court, by a well
reasoned order, concluded that the
discharge of the respondent without
holding an Invalidating Board in
terms of Rule 13 (3) (I) (ii) was illegal.
As regards the applicability
of Army Order 46 of 1980, which
contemplates that the employment of
permanent low medical category personnel
at all times is subject to availability
of suitable sheltered appointment,
commensurate to their medical
category, the High Court held that
before the opinion is formed as to
whether a person is to be retained
or not on medical grounds, there 6
has to be an opinion of the Invalidating
Board to the effect that further
retention in service on medical
ground is not possible. The question
of suitable sheltered appointment
commensurating the medical
category will be relevant only thereafter.
According to the High Court,
there is no rule stipulating that as
soon as a person is placed in permanent
low medical category, it will
be presumed that he is unfit for
further service. Consequently, the
High Court allowed the writ petition;
quashed the order of discharge and
directed the appellants herein to reinstate
the respondent in service.
9. Aggrieved by the said order,
the appellants filed a Review Petition
577
along with a number of other miscellaneous
applications for interim relief.
The Review Petition as well as
the applications were dismissed on
merits as well as on the ground of
limitation. The main order dated 7th
October, 2005 as well as the order in
Review Petition dated 25th January,
2007 are under challenge in this appeal.
10. It was strenuously urged by
Mr. Vikas Singh, learned Additional
Solicitor General, that since the respondent
was 7
in low medical category, he was
discharged under Army Order 46 of
1980 read with Rule 13 (3) (I) (ii) (c)
of the Army Rules, 1954 (for short
‘the Rules’) whereunder there is no
requirement for convening an Invalidating
Board. It was submitted that
the source of power of discharge of
the respondent was Sub-rule (2A) of
Rule 13, which creates a special provision
for discharge, notwithstanding
anything to the contrary contained in
Rule 13. It was contended that the
meaning of the expression ‘unfit for
further service’ as used in clause (ii)
of Rule 13 (3) (I) is very clear and
unambiguous and, therefore, Invalidating
Board as contemplated under
the said Rule is meant only for
those army personnel who are found
medically ‘unfit for further service’
by the Review Medical Board not for
those who are placed in ‘low medical
category (permanent)’, as is the
case here. In support of the proposition
that when the words of the
statute are clear, plain and unambiguous
then the courts are bound
to give effect to that meaning, ir-

578 Bachan Singh v. Union of India 2008
respective of the consequences, reliance
is placed on the decisions of
this Court in Gurudevdatta Vksss
Maryadit amp; Ors. v. 8
State of Maharashtra amp; Ors.1
and Jitender Tyagi v. Delhi Administration
amp; Anr.2. Reference is
also made to Shailendra Dania amp;
Ors. v. S.P. Dubey amp; Ors.3 to
contend that a long past practice followed
by the department is also a
valid factor in seeking a particular interpretation.
11. Per contra, Mr.P.P. Rao,
learned senior counsel appearing for
the respondent, vehemently contended
that in terms of Sub-rule (3)
of Rule 13 which specifies the category
of officers, competent to discharge;
the grounds of discharge, and
the manner of discharge, a JCO like
the respondent, who had been placed
in low medical category (permanent)
for a period of two years, could be
discharged from service only if he had
been found medically unfit for further
service on the recommendation
of the Invalidating Board. According
to the learned counsel, though in the
order of discharge the respondent has
been found to be in low medical category
(permanent) but in effect, for
the purpose 1
(2001) 4 SCC 534
2
(1989) 4 SCC 653
3
(2007) 5 SCC 535
9
of discharge, he has been found
medically unfit for further service,
and, therefore, his case would clearly
fall within the ambit of clause (ii)
of Rule 13 (3) (I). In support of the
proposition that where power is given
to do a certain thing in a certain way,
the thing must be done in that way
or not at all and that other methods
of performance are necessarily forbidden,
reliance was placed on the
decision in Nazir Ahmad v. The
King Emperor4, followed in State of
Uttar Pradesh v. Singhara Singh
amp; Ors.5. Learned counsel argued
that the requirement of recommendation
of Invalidating Board is
a safeguard against arbitrary curtailment
of statutory tenure and being a
benevolent provision, requires to be
liberally construed. The stand of the
respondent is that the Rules relating
to discharge do not make any differentiation
between categorisation of
the personnel on the basis of their
health status and as long as a person
is discharged on medical grounds as
being unfit for further service, provision
of Rule 13 (3) (I) (ii) would
apply, irrespective of categorisation.
In 4
L.R. 63 I.A. 372
5
[1964] 4 SCR 485
10
so far as Army Order 46 of 1980 is
concerned, the learned counsel submitted
that it cannot override the
statutory rule. Placing reliance on
the decision of this Court in Capt.
Virendra Kumar v. Union of India6,
learned counsel urged that the appellants
having failed to follow the
prescribed statutory procedure, the

termination of service of the respondent
was illegal and, therefore, the
High Court was fully justified in setting
aside the same.
12.Having examined the issue in
the light of the statutory provisions,
we are of the opinion that answer to
the question posed has to be in the
affirmative.
13.It needs little emphasis that
fitness of the personnel of Armed
Forces at all levels is of paramount
consideration and there cannot be
any compromise on that score. It is
with this object in view, the Legislature
has enacted the Army Act, 1950;
the Armed Forces Medical Services
Act, 1983 and framed the Rules.
Army Orders are also issued from
time to time in order to give effect
to these statutory provisions in letter
and spirit. As per the procedure
6
(1981) 1 SCC 485
11
detailed in the written submissions,
filed on behalf of the appellants,
annual or periodic medical
examination of the army personnel
is done on certain specific
norms. The medical status of an
army personnel is fixed on the basis
of these norms, containing five
components viz. (a) psychology (b)
hearing (c) appendarist (d) physical
and (e) eye – which is collectively
known as SHAPE. The medical
status SHAPE is again characterised
in five components known
as:– SHAPE I–physically fit for all
purposes. SHAPE II amp; SHAPE
III–not fit for certain duties and are
required not to undertake strain.
579
SHAPE IV–those who are in hospital
for certain ailments and
SHAPE V–unfit for further service
of the Army.
14.It is pointed out that army
personnel are put in the aforementioned
medical categories i.e.
SHAPE on the basis of a periodical
Medical Board which is held for an
individual after the age of 35 years
and thereafter at an interval of every
5 years. If the army personnel is in
SHAPE I, he is 12
not required to undergo further
Medical Board except annual medical
examination. However, the army
personnel who is placed in SHAPE
II and SHAPE III on the annual
medical examination, he is placed in
low medical category (temporary) for
a period of six months. After six
months, he is placed before the Review
Medical Board and if at the end
of six months, his category remains
unchanged, that category is awarded
to him on permanent basis and he is
placed in low medical category (permanent).
After award of low medical
category (permanent), the army
personnel is placed before the Review
Medical Board after every two
years. In Review Medical Board,
the medical category of the personnel
may be changed keeping in view the
change in any component of SHAPE.
Thus, SHAPE II or SHAPE III may
be placed in SHAPE I also and vice
versa. It is the say of the appellants
that the release of certain medical
category (permanent) personnel
is regulated by Army Order No.46

580 Bachan Singh v. Union of India 2008
of 1980, which contemplates that the
army personnel, who is placed in low
medical category (permanent), is to
be retained in service for a minimum
13
period of 15 years (for Sepoy) and
20 years (for JCO) and during this
period he is entitled to all promotions
as per the rules; the discharge of
low medical category is regulated as
per the above-mentioned Army Order
and before the discharge, the personnel
is placed before the Release
Medical Board for a mandatory examination
before the order of discharge
is passed. An army personnel
who is categorised as SHAPE V
is considered to be not fit for further
service of the Army and on placing
such a personnel in SHAPE V
he is mandatorily brought before Invalidating
Board in terms of Rule 13
(3), whereas an army personnel who
is in SHAPE II or in SHAPE III, is
to undergo different Medical Boards
apart from annual medical examination.
The said personnel are not totally
unfit but at the same time they
are not fit for all the army duties
and, therefore, they are retained for
15 years or 20 years, as the case may
be, on the sheltered post mandatorily.
15.Having noticed the basic parameters
which are applied for categorisation
of the physical status of
the army personnel, 14
it will be useful to briefly refer to
relevant statutory provisions.
16.Chapter IV of the Army Act,
1950 (for short ‘the Act’) deals with
the conditions of service of the army
personnel. Section 18 of the Act provides
that every person subject to
the Act shall hold office during the
pleasure of the President. Section
19 clothes the Central Government
with the power of dismissal or removal
from service any person covered
under the Act subject to the
provisions of the Act and the Rules
and Regulations made thereunder.
Section 20 provides for dismissal, removal
or reduction by the Chief of
the Army Staff and by other officers.
Section 22 of the Act provides for retirement,
release or discharge from
the service by such authority and in
such manner as may be prescribed.
Sub-Section (xix) of Section 3 of the
Act states that ‘prescribed’ means
prescribed by rules made under the
Act. Section 191 empowers the Central
Government to make rules as regards
removal, retirement, release or
discharge from the service of persons
subject to the Act. 15
Pursuant to and in furtherance of
the power conferred on the Central
Government under Section 191 of the
Act, the Central Government framed
the Rules.
17.Rule 13 which is the pivotal
provision reads thus: 13. Authorities
empowered to authorise discharge.–
(1) Each of the authorities specified
in column 3 of the Table below,
shall be the competent authority
to discharge from service person
subject to the Act specified in column
1 thereof on the grounds specified
in column 2. (2) Any power
conferred by this rule on any of the
aforesaid authorities shall also be exercisable
by any other authority su-

perior to it. [(2A) Where the Central
Government or the Chief of the
Army Staff decides that any person
or class or persons subject to the Act
should be discharged from service, either
unconditionally or on the fulfillment
of certain specified conditions,
then, notwithstanding anything contained
in this rule, the Commanding
Officer shall also be the competent
authority to discharge from service
such person or any person belonging
to such class in accordance
with the said decision.] (3) In this
table commanding officer means the
officer commanding the corps or department
to which the person to be
discharged belongs except that in the
case of junior commissioned officers
and warrant officers of the Special
Medical Section of the Army Medical
Corps, the commanding officer
means the Director of the Medical
Services, Army, and in the case of
junior commissioned officer and warrant
officers of Remounts, Veterinary
and Farms, Corps, the Commanding
Officer means the Director Remounts,
Veterinary and Farms. TA-
BLE
Category Grounds of Competent
Manner of discharge authority to discharge
authorise discharge
1 2 3 4
Junior I.(i)(a) On completion
Commanding Commissioned of the
period of Officer Officers service or
tenures pecified in the Regulations
for his rank or appointment, are on
reaching the age limit whichever is
earlier, unless trainee on the active
list for further specified period with
the sanction of the Chief of the Army
581
Staff or on becoming eligible for release
under the Regulations.
(b) At his own Commanding request
on transfer Officer to the pension
establishment
(ii) Having been Commanding To
be carried out found medically Officer
only on the unfit for further recommendation
service. of an Invalidating
Board.
(iii) All other classes (a) In the
case If the discharge of discharge.
of Junior is not at the Commissioned
request of the Officers Junior
granted direct Commissioned commissions
Officer the during the first
competent 12 months authority before
service Area/ sanctioning the Divisional
discharge shall if Commander
the circumstances of the case permit
give the Junior Commissioned
Officer concerned an opportunity to
show cause against the order of discharge.
(b) In the case of JCOs, not covered
by (a), serving in any Army
or Command the General Officer
Commanding-in-Chief of that Army
or command if not below the rank of
Lieutenant General.
(c) In any other case the Chief of
the Army Staff.
18.The afore-extracted Rule 13
(1) clearly enumerates the authorities
competent to discharge from
service, the specified person; the
grounds of discharge and the manner
of discharge. It is manifest that
when in terms of this Rule an army
personnel is discharged on completion
of service or tenure or at the
request of the person concerned, no

582 Bachan Singh v. Union of India 2008
specific manner of discharge is prescribed.
Naturally, the Regulations
or Army Orders will take care of the
field not covered by the Rules. However,
for discharge on other grounds,
specified in Column (2) of the Table,
appended to the Rule, the manner
of discharge is clearly laid out. It is
plain that a discharge on the ground
of having been found medically unfit
for further service is specifically dealt
with in Column (I) (ii) of the Table,
which stipulates that discharge
in such a case is to be carried out only
on the recommendation of the Invalidating
Board. It is a cardinal principle
of interpretation of a Statute that
only those cases or situations can be
covered under a residual head, which
are not covered under a specific head.
It is, therefore, clear that only those
cases of discharge would fall within
the ambit of the residual head, viz.
I (iii) which are not covered under
the preceding specific heads. In other
words, if a JCO is to be discharged
from the service on the ground of
medically unfit for further service, irrespective
of the fact whether he is or
was in a low medical category, his order
of discharge can be made only on
the recommendation of an Invalidating
Board. The said rule being clear
and unambiguous is capable of only
this interpretation and no other.
19. Having reached the said
conclusion, we feel that the appellants
were bound to follow Rule 13
(3) (I) (ii), more so having placed
the respondent in low medical category
(permanent) for a period of two
years from October, 2001 he was discharged
from service on 31st August,
2002, relying on the recommendation
of the Re-categorisation Board held
on 24th October, 2001. As noted
in the show cause notice, extracted
above, the said Board had placed the
respondent in permanent low medical
category. Be that as it may, the
main ground of discharge being medical
unfitness for further service, the
appellants were bound to follow the
prescribed rule.
20. It is well settled rule of administrative
law that an executive
authority must be rigorously held to
the standards by which it professes
its actions to be judged and it must
scrupulously observe those standards
on pain of invalidation of an act in violation
of them. This rule was enunciated
by Justice Frankfurter in Viteralli
v. Saton7, where the learned
Judge said:
An executive agency must be rigorously
held to the standards by
which it professes its action to be
judged... Accordingly, if dismissal
from employment is based on a defined
procedure, even though generous
beyond the requirements that
bind such agency, that procedure
must be scrupulously observed...This
judicially evolved rule of administrative
law is now firmly established
and, if I may add, rightly so. He that
takes the procedural sword shall perish
with that sword.
21. The afore-extracted observations
were approved and followed
in Sukhdev Singh amp; Ors. v.
Bhagatram Sardar Singh Raghuvanshi
amp; Anr.8 and then again in
Dr. Amarjit Singh Ahluwalia v.
The State of Punjab amp; Ors.9

wherein, speaking for a three-Judge
Bench, P.N. Bhagwati, J. had observed
that though the above view
was not based on the equality clause
of the United States Constitution
and it was evolved as a rule of administrative
law but the principle remains
the same, namely, that arbitrariness
should be eliminated in a
State action. (Also see: Ramana Dayaram
Shetty v. International Airport
Authority of India Ors.10).
22.In view of the foregoing interpretation
of the relevant rule, we are
in complete agreement with the High
Court that where a JCO is sought to
be discharged on the ground of medical
unfitness for further service, his
case has to be dealt with strictly in
accordance with the procedure contemplated
in Clause I (ii) in Column
2 of the Table appended to
Rule 13. The Rule prescribes a particular
procedure for discharge of a
JCO on account of medical unfitness,
which must be followed and, therefore,
any order of discharge passed
without subjecting him to Invalidating
Board would fall foul of the said
statutory rule.
23.In the present case, it is evident
from Column 9 of the order
of discharge that respondent has
been discharged on account of his
having been placed in a low medical
category (permanent) by the
Re-categorisation Board. As noted
above, he was not discharged immediately
and was apparently detailed
for sheltered appointment. However,
suddenly within a few months of his
evaluation by the Re-categorisation
Board, he was served with a show
583
cause notice, seeking to discharge
him on the aforementioned grounds.
We are convinced that although the
discharge is purportedly shown to be
also on account of non-availability of
a sheltered appointment, the main
ground for discharge was undoubtedly
on account of permanent low
medical category i.e. medical unfitness.
In that view of the matter,
the order of discharge of the respondent
would not fall under the residual
ground, namely, I (iii) in Column 2 of
the Table.
24. That takes us to the next
question whether the case of the respondent
for discharge could be dealt
with in accordance with Army Order
46 of 1980, de hors Rule 13, as contended
by the appellants.
25.Relevant portion of the said
order reads as follows: AO 46/80
Disposal of Permanent Low Medical
Category Personnel other than Officers
Aim
1. The aim of this Army Order
is to lay down implementation
instructions for the disposal
of permanent low medical category
JCOs/OR in terms of Min of Def
Letter No. A/32395/VIII/Org 2
(MP) (c)/713-S/A/D (AG) dated 10
May, 77 as amended vide Corrigendum
No. A/32395/X/Org 2 (MP)
(c)/7167/A/D (AG) dated 26 Nov
79, reproduced as Appendice ‘A’ and
‘B’ respectively to this order.
Retention
2. General Principles
(a) The employment of permanent
low medical category person-

584 Bachan Singh v. Union of India 2008
nel, at all times, is subject to
the availability of suitable alternative
appointments commensurate
with their medical category and also
to the proviso that this can be justified
in the public interest, and
that their retention will not exceed
the sanctioned strength of the regiment/corps.
When such an appointment
is not available or when
their retention is either not considered
necessary in the interest of the
service or it exceeds the sanctioned
strength of the regiment/corps, they
will be discharged irrespective of the
service put in by them.
(b) Ordinarily, permanent low
medical category personnel will be
retained in service till completion of
15 years service in the case of JCOs
and 10 years in the case of OR (including
NCOs). However, such personnel
may continue to be retained in
service beyond the above period until
they become due for discharge in the
normal manner subject to their willingness
and the fulfilment of the stipulation
laid in Sub Para (a) above.
3. All personnel retained in service
in terms of Para 2 above will, under
all circumstances, be discharged
on completion of their engagement
periods/retiring service limits. For
this purpose, NCOs and JCOs will
be treated as under:- (a) NCOs will
be discharged on completion of the
retiring service limits appropriate to
ranks as opposed to the extended
limits laid down in AO 13/77. However,
their retention beyond the contractual
period of engagement will
be regulated under the provisions of
Paras 144 to 147 of Regulations for
the Army 1962.
(b) JCOs will be discharged on
completion of the normal retiring service
limits as opposed to the extended
limits laid down in AO 13/77.
4. Personnel suffering from pulmonary
tuberculosis, including those
who may be cured of the disease,
will be disposed of in accordance
with the provisions of Min of Def
letter No. 22679/DGAFMS/DG-
3A/2721/D(ME:- dated 18 Jul 74
(reproduced in AO 150/75), as
amended/amplified from time to
time.
5. Cases of all permanent low
medical category personnel will be
reviewed by all concerned accordingly.
In the case of those personnel
who become due for discharge as per
the instructions contained in the preceding
paragraphs, immediate action
will be taken in the normal manner
to carry of their discharge, as expeditiously
as possible.
6. This order only lays down
the general policy and procedure
with regard to the disposal of permanent
low medical category personnel.
The actual discharge will,
however, be carried out in accordance
with the provisions of Min of
Def letter No. A/32395/VIII/Org 2
(MP) (c)/713-S/a/D (AG) dated 10
May 77, as amended vide Corrigendum
No. A/32395/X/Org (MP) (c)/
7167/A/D (AG) dated 26 Nov 79
(reproduced as Appendices ‘A’ and
‘B’ respectively) and this HQ letter
No. 8861/AG/PS 2 (c) dated 18 Aug
64, read with letter No 8861/AG/PS
2(c) dated 26 Mar/1 Apr 70.

7. Cases of permanent low medical
category personnel already decided
under the existing provisions,
will not be re-opened.
8. This supersedes all previous
instructions on the subject.
A/32395/X/Org 2(MP)
26. It is manifest that the said
Army Order has been issued for disposal
of permanent low medical category
personnel and merely contemplates
that the employment of permanent
low medical category personnel
at all times, is subject to the
availability of suitable alternative appointments
commensurate with their
medical categories and also subject
to the conditions that such a sheltered
appointment can be justified in
the public interest. A plain reading
of the Army Order shows that it
comes into operation after an opinion
has been formed as to whether a particular
personnel is to be retained in
service or not, if so for what period.
If a person is to be retained in service
despite his low medical category
for a particular period as stipulated
in the Army Order 46 of 1980, the
question of subjecting him to Invalidating
Board may not arise. However,
if a person is to be discharged
on the ground of medical unfitness,
at that stage of his tenure of service
or extended service within the
meaning of the Army Order, he has
to be discharged as per the procedure
laid down in Clause I (ii) in
Column 2 of the said Table. Similarly,
Sub-rule (2A) of Rule 13, heavily
relied upon by the appellants does
not carry the case of the appellants
any further. It is only an enabling
585
provision to authorise the commanding
officer to discharge from service
a person or a class of persons in respect
whereof a decision has been
taken by the Central Government or
the Chief of Army Staff to discharge
him from service either unconditionally
or on the fulfilment of certain
specified conditions. The said provision
is not in any way in conflict
with the scope of the remaining part
of Rule 13, so as to give it an overriding
effect, being a non obstante provision.
27. For the foregoing reasons,
we wholly agree with the reasoning
and the conclusion of the High Court
that the discharge of the respondent
was not in accordance with the prescribed
procedure and was, therefore,
illegal. We do not find any illegality
or infirmity in the impugned judgment/order,
warranting our interference.
The appeal, being devoid of
any merit, is dismissed accordingly
with costs.
SLP (C) NOS. 14338-14339 OF
2008 amp; SLP (C) NO.15430 OF
2008
28.These tagged special leave petitions
have been preferred against
the orders passed by the High Court,
declining to grant interim relief to the
writ petitioners. Since the main issue
now stands decided, there is no point
in entertaining these petitions. All
the petitions are dismissed accordingly
without observing anything on
merits. It will be open to the High
Court to now take up the main writ
petitions for disposal in accordance
with law.

586 Bachan Singh v. Union of India 2008
J. (C. K. THAKKER)
J. (D.K. JAIN)
NEW DELHI;
NOVEMBER 7, 2008.

Chapter 52
Union of India v. V. N.
Singh 2010
Union of India Ors. v. V. N.
Singh [2010] INSC 532 (8 April 2010)
Judgment
UNION OF INDIA ORS v. V.N.
SINGH
(Civil Appeal No (s). 32 of 2003)
APRIL 08, 2010 [Harjit Singh Bedi
and J.M. Panchal, JJ.] 2010 (4) SCR
454 The Judgment of the Court was
delivered by J.M. PANCHAL, J.
1. The instant appeal is directed
against Judgment dated March 15,
2002 rendered by the High Court of
Delhi in C.W.P. No. 5451 of 1998
by which (1) the order dated October
30, 1996 invoking Section 123 of
the Army Act and taking the respondent
in close custody (2) the findings
recorded by General Court Martial
holding the respondent guilty of
some of the charges and imposing
punishment of forfeiture of 8 years
past service of the respondent for the
purposes of the pension vide order
dated April 3, 1997 (3) the order
dated June 14, 1997 passed by Mr.
K.K. Verma, the then Major Gen-
eral, General Officer Commanding,
22 Infantry Division, directing the
General Court Martial to re-assemble
in open Court at Meerut on June 28,
1997 for reconsidering its findings on
the first, second, third, fourth, sixth,
seventh and eighth charges levelled
against the respondent and the adequacy
of the sentence of forfeiture of
8 years of past service for the purpose
of pension awarded to him by
the General Court Martial (4) the revised
order dated July 2, 1997 passed
by General Court Marital adhering
to its earlier findings but revoking its
earlier order of sentence and imposing
sentence of forfeiture of 11 years
past service for the purposes of pension
and severe reprimand subject to
he confirmation by Major General,
General Officer Commanding and (5)
the communication dated April 8,
2000 addressed by Col. Dy. CDR
Mr. P.K.Sharma promulgating the
order of the Confirming Authority
by which sentence of forfeiture of 11
years past service of the respondent
for the purposes of pension, was con-

588 Union of India v. V. N. Singh 2010
firmed and (6) the communication
dated May 15, 2000 by DDA and
QMG Mr. G.Vinod for CDR mentioning
that the promulgation order
carried out on May 15, 2000 was
handed over to the respondent and
order dated April 17, 2000 promulgating
punishment of forfeiture of 8
years past service of the respondent
for the purposes of pension and severe
reprimand was de-promulgated
and cancelled, are set aside, on the
ground that trial of the respondent
by Court Martial was time barred in
view of the provisions of Section 122
(1)(b) of the Army Act, 1950 .
1. The facts emerging from the
record of the case are as under:-
The respondent i.e. Mr. V.N.Singh
who was Lt. Col. was posted as
Officiating Commandant in 4 Reserved
Petroleum Depot (‘4 RPD’ for
short), Delhi Canotnment. During
the inspection of 4RPD, certain irregularities
were noticed with regard
to local purchase of the Hygiene and
Chemicals in the month of May 1993.
Therefore, by a letter dated May 5,
1993, the then Lt. Col. P.Oomen,
who was Additional Director, Supply
and Transport, Delhi area was
directed by the then Brigadier Mr.
K.S.Bharucha, who was holding the
post of Deputy Director, Supply and
Transport, Headquarters Delhi area
(‘DDST’ for short), to carry out preliminary
investigation of local purchase
of Hygiene and Chemicals as
well as other fuel oils and lubricant
items by 4 RPD, during the
year 1992- 93. Accordingly, preliminary
investigation was carried out
by Lt. Col. P.Oomen. On May
17, 1993 he submitted his report
to Brigadier K.S.Bharucha, DDST,
who in turn forwarded the report
on May 27, 1993 to Major General
of Army Supply Corps (‘ASC’ for
short) Headquarters Western Command,
Chandimandir. In that report,
the DDST recommended closure
of the case.
The Major General, ASC, Headquarters
Western Command, did not
consider the case appropriate for closure.
He therefore, forwarded the
papers to the Headquarters Western
Command. The Headquarters suggested
to the Major General by letter
dated June 12, 1993 to seek explanation
of the respondent. The
Major General ASC therefore issued
a show-cause notice dated June 18,
1993 to the respondent and sought
his explanation on the point of procedural
lapses in local purchase. The
respondent in his reply dated July
6, 1993 admitted certain procedural
lapses on the part of 4 RPD and regretted
the same, since such lapses
were due to practical problems.
Thereafter, the DDST accepted
the explanation given by the respondent
and again recommended
the Headquarters Western Command
(ST) Chandigarh to treat the case as
closed if deemed fit by communication
dated July 9, 1993. On September,
9, 1993, the Major General
ASC, Headquarters Western Command,
endorsed certain remarks in
the pen picture of the respondent
while writing his ACR. On January
8, 1994 a Technical Court of Inquiry
was convened by Brigadier Narsimhan,
who had replaced Brigadier

K.S.Bharucha, as DDST. The Lt.
Col. Ram Darshan of 226 Company
ASC Supplies was asked to act
as the Presiding Officer. The report
along with the proceedings of
Technical Court of Inquiry were forwarded
to the DDST. The DDST
recommended to the Major General
ASC, Headquarters Western Command,
Vide communication dated
March 3, 1994 to go for a thorough
investigation by Staff Court
of Inquiry. Therefore, on May 7,
1994 a Staff Court of Inquiry was
convened pursuant to the orders of
the General Officer Commanding-in-
Chief, (‘GOC-in-C’ for short) Western
Command. Before Staff Court
of Inquiry, (‘S.C.I.’ for short) witnesses
were examined and documents
produced. The Staff Court of Inquiry
concluded its proceedings and
submitted its recommendations on
August 31, 1994 blaming the respondent
specifically along with few
other personnel for irregularities, in
the local purchase of Hygiene and
Chemicals during the period 1992-
93. After examining the recommendations
of SCI, the GOC, Delhi
area, Major General A.R.K. Reddy,
recommended on October 19, 1994,
disciplinary action against the respondent.
Thereafter, the GOCin-
C Western Command, Lt. Gen.
R.K. Gulati, directed to initiate disciplinary
action against the respondent
vide communication dated December
3, 1994. On August 23,
1995 the disciplinary action was commenced
against the respondent by
way of hearing of parties as required
by Rule 22 of the Army Rules and
a direction for recording of summary
589
of evidence was ordered by the Commanding
Officer i.e. Commander 35
Infantry Brigade under whom the respondent
was working at the relevant
time. The Commanding Officer, vide
order dated October 30, 1996 invoked
the provisions of Section 123 of the
Army Act 1950, and took the respondent
into close custody as superannuation
of the respondent was due on
October 31, 1996 and it was apprehended
that the respondent would
flee the course of justice.
The respondent filed Criminal
Writ Petition 726 of 1996 before the
Delhi High Court challenging the
order dated October 30, 1996 on
the ground that Section 123 of the
Army Act was wrongly invoked and
trial if any by GCM was barred by
limitation under Section 122 of the
Army Act. The respondent also
prayed to direct the authority to
pay compensation at the rate of Rs.
50,000/- for each day of illegal detention.
By an order dated December
3, 1996, the High Court stayed
the operation of order dated October
30, 1996 and directed the respondent
to raise the points mentioned
in his Writ Petition, before General
Court Martial. On December 11,
1996, the General Officer Commanding,
22 Infantry Division issued an
order convening General Court Martial
(‘GCM’ for short). Accordingly,
GCM was convened. By order dated
April 3, 1997, the GCM found the respondent
guilty of some charges and
not guilty of some other charges. By
the said order, the GCM imposed the
punishment of forfeiture of 8 year’s
past service for the purpose of pen-

590 Union of India v. V. N. Singh 2010
sion on the respondent subject to the
confirmation of the same by the Major
General, General Officer Commanding.
This report of the GCM
was sent to the Confirming Authority.
The Confirming Authority vide
order dated June14, 1997, sent back
the report to GCM, under the provisions
of Section 160 of the Army
Act to revise/reconsider the exoneration
of the respondent from some
of the charges and decide whether
the punishment imposed on the respondent
was lenient or not. Thereupon,
the respondent filed Writ Petition
No. 5451 of 1997 challenging
aforementioned order dated June 14,
1997 as well as validity of Sections
153, 154 and 160 of the Army Act,
1950. Writ Petition No. 5451 of 1997
was filed by the respondent without
prejudice to the contentions and
averments made in Criminal Writ Petition
No. 726 of 1996.
In view of the directions from
the Confirming Authority, GCM was
convened. The GCM submitted its
report dated July 2, 1997. The report
indicates that the GCM adhered
to its earlier finding but passed a
fresh order of sentence forfeiting 11
years of past service of the respondent
for the purpose of pension as
well as the punishment of severe reprimand.
A copy of the order dated
July 2, 1997 was also forwarded to
the respondent. On receipt of the order
dated July 2, 1997 the respondent
brought to the notice of the
Court hearing Criminal Writ Petition
No. 726 of 1996, the subsequent
developments which had taken place.
The Court noticed that order dated
June 14, 1997 passed by the Competent
Authority, was subject matter of
challenge, in Writ Petition No. 5451
of 1997 which was pending. On subsequent
events being brought to the
notice of the Court, the Court was
of the opinion that keeping Criminal
Writ Petition No. 726 of 1996 pending
was of no use and ends of justice
would be met if liberty is reserved
to amend memorandum of Writ Petition
No. 5451 of 1997 and to raise
all questions in the said pending Writ
Petition. After reserving necessary
liberty to the respondent, the Court
disposed Criminal Writ Petition No.
726 of 1996 by an order dated August
19, 1998. The order dated July
2, 1997 passed by GCM was considered
by the Confirming Authority.
The Confirming Authority approved
the finding of GCM and imposition
of sentence of forfeiture of 11
years past service of the respondent
for the purpose of pension. However,
the Confirming Authority did not approve/confirm
the punishment of severe
reprimand imposed by the GCM
on the respondent. By communication
dated April 8, 2000 the order
of the Confirming Authority was promulgated.
Thereafter, Vide communication
dated May 15, 2000 promulgation of
order was handed over to the respondent.
Thereafter, the respondent
moved an application for amendment
of Writ Petition No.5451 of
1997 which was allowed. By way
of amendment the respondent challenged
validity of orders dated April
3, 1997, July 2, 1997, October 30,
1996, April 8, 2000 and May 15, 2000

over and above claiming compensation.
The High Court by Judgment
dated March 15, 2002 has allowed
the Writ Petition and quashed GCM
proceedings as well as the sentence
imposed upon the respondent after
holding that GCM proceedings were
initiated after expiry of the period
of limitation prescribed by Section
122(1) (b) of the Army Act, 1950,
which has given rise to the instant
appeal.
3. This Court has heard Ms.
Indira Jaisingh, the Learned Additional
Solicitor General for the appellants
and Mr. Yatish Mohan, the
learned advocate for the respondent
at great length and in detail. This
Court has also considered the documents
forming part of the instant
appeal.
4. Ms. Indira Jaisingh, Learned
ASG argued that in terms of Section
122(1)(b) of the Army Act,
the then Brigadier K.S.Bharucha was
not the person aggrieved by the offence
and neither the then Brigadier
K.S.Bharucha nor Major General BS
Suhag were competent to initiate
action against the respondent but
G.O.C. Delhi area was Disciplinary
Authority of the respondent who
learnt about the offence having been
committed by the respondent for the
first time on receipt of the report of
Staff Court of Inquiry submitted on
December 3, 1994 and as the G.C.M.
commenced the trial on December
17, 1996 the same could not have
been treated as time barred under
Section 122 (1)(b) of the Army Act.
It was asserted that the Technical
Court of Inquiry could not come to
591
a definite conclusion about the correct
details of purchase of Hygiene
and Chemicals nor any definite conclusion
could be reached about the
persons responsible for the irregularities
but the involvement of the respondent
came to the light only in
August 1994 when the Staff Court
of Inquiry submitted its report and
therefore the High Court was not justified
in quashing the proceedings of
G.C.M. on the ground that they were
time barred. What was highlighted
by the Learned A.S.G. was that in
the letter dated May 27, 1993 addressed
by Brigadier K.S.Bharucha
to MG ASC Headquarter Western
Command, there was no mention
whatsoever about the respondent being
the person who had committed
the irregularities except a reference
to the fact that certain procedural
lapses had taken place on the part
of 4RPD and as the said letter was
apparently addressed with a view to
closing the case in total disregard of
the facts and circumstances of the
case, the said letter could not have
been taken into consideration for the
purpose of coming to the conclusion
that the proceedings of G.C.M.
were time barred. After referring to
the A.C.R. of the respondent written
by Major General BS Suhag it
was argued that what becomes apparent
there from is that the respondent
had failed to monitor the local
purchase of Hygiene and Chemicals
but there was no mention that the
respondent was himself involved in
it and therefore the date on which
the A.C.R. was written also could
not have been taken into consideration
for the purpose of determining

592 Union of India v. V. N. Singh 2010
whether the proceedings of G.C.M.
were time barred. The Learned ASG
stressed that the period of limitation
for the purpose of trial of the
respondent commenced on December
3, 1994, when the then GOC-in-Chief
Western Command who is competent
authority came to know about
the commission of offence by the respondent
and directed to take disciplinary
action against the respondent
and as period of limitation of three
years in terms of Section 122(1)(b)
expired on December 2, 1997 the
same could not have been treated as
time barred. The Learned Counsel
asserted that the Judgment of the
High Court questioned in the appeal
is not only erroneous on the facts
brought on the record of the case but
also misinterprets the provisions of
the Army Act and therefore the same
should be set aside.
5. The Learned Counsel for the
respondent argued that after scrutinising
the entire documentary evidence
the High Court has rightly
reached to the conclusion that the
trial of the respondent by GCM was
time barred and rightly allowed the
Writ Petition filed by him. It was
maintained that during the inspection
of 4RPD, certain irregularities
were noticed with regard to the local
purchase of Hygiene and Chemicals
by 4RPD Delhi in the month
of May 1993 and the respondent
who was Officiating Commandant of
said 4 RPD was immediately removed
from the said post and was
placed as Officiating Commandant
of 5033 Army Service Corps battalion
functioning directly under Head-
quarters 33 Corps, which indicates
that in May 1993 the so-called involvement
of the respondent in the
irregularities noticed with regard to
the local purchase of the Hygiene
and Chemicals, had become evident
and therefore the proceedings initiated
against him should be treated
as time barred. The Learned Counsel
for the respondent drew the attention
of the Court to the communication
dated May 5, 1993 addressed
by DDST Brigadier K.S.Bharucha on
behalf of the Headquarter Delhi Area
to Lt. Col. P. Oomen, ADST asking
him to conduct the inquiry into
the lapses found in local purchase
by 4 RPD, pursuant to which report
was submitted to Headquarter
Delhi Area, wherein it was concluded
that irregularities were committed in
purchase of Hygiene and Chemicals
and therefore the period of limitation
would start running from May
27, 1993 when the said report was
submitted by Mr. K.S.Bharucha,
DDST to Major General, Army Service
Corps at Headquarter Western
Command. According to the
Learned Counsel for the respondent,
the DDST issued a notice dated June
18, 1993 calling upon the respondent
to explain procedural lapses in local
purchase of Hygiene and Chemicals
by 4RPD wherein there is reference
to instructions of Headquarter
Western Command dated June
12, 1993 and therefore the relevant
period for the purpose of deciding
the question whether the proceedings
were time barred or not should be
taken to be June 12, 1993. What was
asserted was that while writing the
ACR of the respondent on Septem-

er 6, 1993 the Headquarter Western
Command, Chandigarh in the
column of brief comments had mentioned
that the respondent needed to
exercise more discretion and caution
while dealing with funds and therefore
the said date would also be relevant
for the purpose of determining
the question whether the proceedings
were time barred. It was argued
that the order dated October
30, 1996, taking the respondent into
close custody under Section 123 of
the Army Act, 1950, was passed because
the respondent was charged for
the offence of procedural lapses in local
purchase of Hygiene and Chemicals
during his tenure as Officiating
Commandant of 4RPD Delhi Area
Canotnment and therefore the date
on which the respondent was taken
into close custody would also be relevant
for the purpose of determining
the question whether the proceedings
initiated against the respondent
were time barred. What was asserted
was that the respondent was identified
as the offender firstly in May
1993 after the report of Lt. Col.
P. Oomen and secondly on May 27,
1993 when DDST Headquarter Delhi
Area on behalf of GOC had submitted
the report of inquiry to Headquarters
ASC Western Command at
Chandigarh concluding that, there
was certainly procedural lapses in local
purchase of Hygiene and Chemicals
on the part of 4RPD which was
under the control of the respondent
and therefore the proceedings have
been rightly treated as time barred
by the High Court. According to the
Learned Counsel for the respondent
the competent authority of the re-
593
spondent was his Commanding Officer
i.e. Brigadier K.S.Bharucha,
DDST and as the competent authority
had initiated action on October
30, 1996 by detaining the respondent,
the proceedings in question should be
treated as time barred.
The Learned Counsel argued that
the person aggrieved within the
meaning of Section 122 of the Act,
means the person should be answerable
to the superiors in chain of command
for the act, commission or
omission done by his subordinate and
as DDST was aggrieved person under
whom the respondent was discharging
duties, the period of limitation
would start running from the
date of report of the Court of Inquiry,
when identity of the offence and offender
was ascertained and therefore
the well reasoned judgment of the
High Court should be upheld by this
Court.
6. Section 122 of the Army Act,
1950 prescribes period of limitation
for trial by Court Martial of any
person subject to the provisions of
the Act for any offence committed
by him. The said Section reads as
under:- ”Section 122. Period of limitation
for trial (1) Except as provided
by sub- section (2), no trial
by court-marital of any person subject
to this Act for any offence shall
be commenced after the expiration
of a period of three years and such
period shall commence- (a) on the
date of the offence; or (b) where the
commission of the offence was not
known to the person aggrieved by the
offence or to the authority competent
to initiate action, the first day

594 Union of India v. V. N. Singh 2010
on which such offence comes to the
knowledge of such person or authority,
whichever is earlier; or (c) where
it is not known by whom the offence
was committed, the first day
on which the identity of the offender
is known to the person aggrieved by
the offence or to the authority competent
to initiate action, whichever is
earlier.
(2) The provisions of sub-section
(1) shall not apply to a trial for an offence
of desertion or fraudulent enrolment
or for any of the offences mentioned
in section 37.
(3) In the computation of the period
of time mentioned in sub-section
(1), any time spent by such person as
a prisoner of war, or in enemy territory;
or in evading arrest after the commission
of the offence, shall be excluded.
(4) No trial for an offence of desertion
other than desertion on active
service or of fraudulent enrolment
shall be commenced if the person
in question, not being an officer,
has subsequently to the commission
of the offence, served continuously
in an exemplary manner for not less
than three years with any portion of
the regular Army.”
A fair reading of the abovementioned
Section makes it clear that after
the expiry of the period of limitation,
the Court Martial will ordinarily
have no jurisdiction to try the
case. The purpose of Section 122 is
that in a civilised society a person
should not live, for the rest of his
natural life, under a Sword of Damo-
cles and the prosecution be allowed
to rake up any skeleton from any cupboard
at any time when the accused
may have no further materials, oral
or documentary, to prove that the
skeleton is not from his cupboard. If
the device is left open to the prosecution
to convene a Court Martial at
its leisure and convenience, Section
122 will lose all significance. Section
122 is a complete Code in itself
so far as the period of limitation
is concerned for not only it provides
in Sub-section (1) the period
of limitation for such trials but specifies
in Sub-section (2) thereof, the
offences in respect of which the limitation
clause would not apply. Since
the Section is in absolute terms and
no provision has been made under
the Act for extension of time, it is
obvious that any trial commenced after
the period of limitation will be
patently illegal.
The question of limitation to be
determined under Section 122 of the
Act is not purely a question of
law. It is a mixed question of fact
and law and therefore in exercise of
Writ Jurisdiction under Article 226
of the Constitution, ordinarily the
High Court will not interfere with the
findings of court Martial on question
of limitation decided under Section
122 of the Army Act.
7. Section 122 of the Army Act
in substance prescribes that no trial
by Court Martial of any person subject
to the provisions of the Act
for any offence shall be commenced
after the expiration of a period of
three years. It further explains as
to when period of three years shall

commence. It provides that the period
of three years shall commence
on the date of the offence or where
the commission of the offence was not
known to the person aggrieved by the
offence or to the authority competent
to initiate action, the first day
on which such offence comes to the
knowledge of such person or authority
whichever is earlier. In view of
the provisions of Section 122(1)(b) a
question arises as to who is the person
aggrieved within the meaning of
the said Section. According to the
respondent Brigadier K.S.Bharucha
was the person aggrieved and the period
of three years shall commence
from the date when commission of
offence by the respondent came to
his knowledge on May 17, 1993 when
Lt. Col. P. Oomen submitted
his report to Mr. Bharucha. The
contention of the Union of India is
that in terms of Army Act, Mr.
K.S.Bharucha was neither the person
aggrieved nor authority competent to
initiate action and therefore the date
on which the Lt. Col. P.Oomen
submitted report would not be relevant
for the purpose of determining
the question whether the trial commenced
against the respondent was
time barred. The term ”the person
aggrieved by the offence” would be
attracted to natural persons i.e. human
beings who are victims of an offence
complained of, such as offences
relating to a person or property and
not to juristic persons like an organisation
as in the present case. The
plain and dictionary meaning of the
term ”aggrieved” means hurt, angry,
upset, wronged, maltreated, persecuted,
victimised etc. It is only the
595
natural persons who can be hurt, angry,
upset or wronged or maltreated
etc. If a Government organisation
is treated to be an aggrieved person
then the second part of Section
122(1)(b) i.e. ”when it comes to the
knowledge of the competent authority
to initiate action” will never come
into play as the commission of offence
will always be in the knowledge of the
authority who is part of the organisation
and who may not be the authority
competent to initiate the action.
A meaningful reading of the provisions
of Section 122(1)(b) makes it
absolutely clear that in the case of
Government organisation, it will be
the date of knowledge of the authority
competent to initiate the action,
which will determine the question of
limitation.
Therefore, the finding of the High
Court that Brigadier K.S.Bharucha
was an aggrieved person is legally
and factually incorrect and unsustainable.
Further, neither Brigadier
Mr. K.S.Bharucha, nor Major General
BS Suhag were competent to initiate
action against the respondent
because the term ”competent to initiate
action” refers to the competency
of the authority to initiate or direct
disciplinary action against any person
subject to the provisions of the
Army Act. When an offence or misconduct
is alleged to have been committed
by a person subject to the
Army Act, then the Officer in chain
of command is required to take action
for investigation of the charges
and trial by court martial as per Section
1 Chapter V of the Army Rules
or order Court of Inquiry and sub-

596 Union of India v. V. N. Singh 2010
sequently finalise the Court of Inquiry
under Section 2 Chapter VI of
the Army Rules. These powers are
vested in the officers in chain of command.
Those powers are not vested
with staff Officers. Since the respondent
was commanding 4 RPD, his
next officer in command was GOC,
Delhi Area and the power to take disciplinary
action was vested with him
in terms of para 16(a)(i) of the Defence
Service Regulations, read with
the Command and Control instructions
dated January 1, 1991 issued by
the Headquarter Western Command.
Therefore, Brigadier K.S.Bharucha
had only technical control of 4RPD
and had therefore recommended to
his higher authority to close down
the case but himself had not taken
a decision to close down the case or
to continue the case against the respondent.
The power to initiate action
in terms of Section 122(1)(b) of
the Army Act was only with GOC
Delhi Area who is next superior authority
in chain of command. The
record shows that even the power to
convene a Court of Inquiry was available
only with GOC Delhi Area and
GOC-in-C Westernc ommand since
they are the authorities in command
of body of troops and the power
to convene a Court of Inquiry in
terms of Army Rule 177 is vested
only with an Officer in command of
body of troops. The facts of the
present case establish that the Technical
Court of Inquiry was convened
by DDST Headquarter Delhi Area on
January 8, 1994 which recommended
examination of certain essential witnesses
for bringing into light the correct
details and the persons respon-
sible for the irregularities by a Staff
Court of Inquiry and accordingly the
Staff Court of Inquiry was ordered
on May 7, 1994 by GOC-in-C Western
Command which concluded in its
report dated August 31, 1994, mentioning
for the first time the involvement
of the respondent in the offence.
The GOC Delhi Area i.e. the
next Authority in chain of command
to the respondent recommended on
October 19, 1994 initiation of disciplinary
action against the respondent
whereas the GOC-in-C Western
Command gave directions on December
3, 1994, to initiate disciplinary
action against the respondent.
Therefore, the date of commencement
of the period of limitation for
the purpose of GCM of the respondent,
commenced on December 3,
1994 when direction was given by
GOCin-C Western Command to initiate
disciplinary action against the
respondent. The plea that the date
of submission of the report by Technical
Court of Inquiry should be
treated as the date from which period
of limitation shall commence has
no substance. It is relevant to notice
that no definite conclusion about the
correct details and the persons responsible
for the irregularities were
mentioned in the report of Technical
Court of Inquiry. On the facts
and in the circumstances of the case,
this Court is of the view that the
High Court wrongly concluded that
the period of limitation expired on
March 4, 1996. It is relevant to notice
that the contents of the letter dated
May 27, 1993 written by Brigadier
K.S.Bharucha to Major General ASC

Headquarter Western Command do
not mention at all, the respondent as
the person who had committed the
irregularities except for a reference
that there had been certain procedural
lapses on the part of 4RPD.
The said letter was addressed
by Brigadier K.S.Bharucha apparently
with a view to closing the case
in total disregard to the facts and
the circumstances emerging from the
case. This fact has been observed
by the GOC-in-C Western Command
who while giving direction to initiate
administrative action against Major
General K.S.Bharucha ordered initiation
of departmental inquiry against
the respondent. Even the reference
to ACR of the respondent written
by Major General Suhag only mentions
that the respondent had failed
to monitor the local purchase of Hygiene
and Chemicals but there is no
mention therein that the respondent
was himself responsible for the irregularities
found to have been committed
in the purchase of Hygiene and
Chemicals. It was only after the detailed
investigation by Staff Court of
Inquiry that the irregularities com-
597
mitted by the respondent and his
role in the purchase of Hygiene and
Chemicals came to light. On the
facts and in the circumstances of the
case this Court finds that the period
of limitation for the purpose of
trial of the respondent commenced
on December 3, 1994 when the GOCin-C
Western Command being the
competent authority directed disciplinary
action against the respondent
in terms of Section 122(1)(b) of the
Army Act. The period of three years
from the direction dated December
3, 1994 would expire on December
2, 1997, whereas the GCM commenced
the trial against the respondent
on December 17, 1996 which
was well within the period of limitation
of three years. Therefore the
impugned Judgment is legally unsustainable
and will have to be set aside.
8. For the foregoing reasons it is
held that the GCM commenced trial,
against the respondent within the period
of limitation as prescribed by
Section 122(1)(b) of the Army Act.
The impugned Judgment is set aside.
Appeal accordingly stands allowed.
There shall be no orders as to cost.

598 Union of India v. V. N. Singh 2010

Chapter 53
Arun Raj v. Union Of India
2010
Arun Raj v. Union Of India
Ors. on 13 May, 2010 Author:
H Dattu Bench: V.S. Sirpurkar,
Mukundakam Sharma
IN THE SUPREME COURT OF
INDIA
CRIMINAL APPELLATE JU-
RISDICTION
CRIMINAL APPEAL NO.1123
OF 2008
Arun Raj ..........Appellant Versus
Union of India amp; Ors.
........Respondents JUDGMENT
H.L. Dattu, J.
1) This appeal by special leave is
limited to a particular question only,
namely, correctness of the conviction
of the appellant Arun Raj for an offence
under Section 302 of Indian Penal
Code and the propriety of the
sentence passed thereunder by the
Presiding Officer of General Court
Martial under the Indian Army Act.
The short facts are these - The appellant
joined the Indian Army in the
year 1983 and 1
in the year 1998 he was working
as Ex-Signalman (Lance Nayak)
of 787 (Independent) Air Defence
Brigade Signal Company. On
22.3.1998, one Mr. S.S.B Rao (PW-
4) was the Section In-Charge of Operator
Section. At about 1 PM, Mr.
Rao returned from lunch and the appellant
reported to him that Havildar
R.C Tiwari (deceased) and Havildar
Inderpal (PW-3) abused him
by using the word Gandu. On Mr.
Rao making an inquiry into the same,
they replied in the negative, despite
the appellant making repeated assertion
that they insulted him using
the said word. The appellant also
brought to the information of Mr.
Rao that in the previous night there
was a heated discussion between the
appellant and the deceased and Inderpal,
and the matter was reported
to the superior officer. Paulose (PW-
1), after having his lunch, returned
to the barrack from the rank mess
and he was relaxing in the cot. At

600 Arun Raj v. Union Of India 2010
this point of time, he saw the appellant
coming towards the door. He
was wearing a half T-shirt and lungi.
The cot of the deceased was near
the door and he was sleeping on it.
The appellant took out a knife which
was hidden in the lungi and stabbed
the deceased on the right side of the
chest. On witnessing the incident,
PW-1 was shocked and shouted to
the appellant as to why he did it.
On hearing the shout of PW-1, people
came in and gathered 2
immediately. The appellant was
separated by the crowd and the deceased
was sent to the hospital where
he finally succumbed to the injury.
Major Prabal Datta (PW-9) testified
that there was no external injury on
the body of the deceased except the
stab injury caused by a knife.
2) An FIR was lodged at the
Dehu Road Police Station vide CR-
26 of 1998 under Section 302 of Indian
Penal Code. Thereafter, investigation
commenced, during the
course of which the body of the deceased
was sent for post mortem and
an inquest Panchnama was also prepared.
On completion of the investigation,
the charge- sheet was prepared
against the appellant/accused
and forwarded to the Judicial Magistrate
1st Class, Vadgaon Maval.
In the meantime, since the appellant
belonged to the armed forces,
court martial proceedings were initiated
under the provisions of the
Army Act. Charges were framed
against the appellant under Section
302 read with Section 69 of the Army
Act for committing civil offence, i.e.,
knowingly causing the death of the
deceased on 22.3.1998. On the appellant
pleading not guilty, the General
Court Martial proceeded to record
the evidence of witnesses. The prosecution
examined 18 3
witnesses. The General Court
Martial after appreciating the facts
and the evidence on record, found
the appellant guilty of the offence
for which he was charged and after
hearing his submission with regard
to the quantum of sentence, sentenced
the appellant to undergo 7
years of rigorous imprisonment and
he was also dismissed from service
for committing the offence of murder
punishable under Section 69 of
the Army Act read with Section 302
of IPC. However upon revision, the
Confirming Authority by an order
dated 15.12.1998 held that the sentence
awarded by the General Court
Martial after finding the appellant
guilty of murder under Section 69 of
the Army Act read with Section 302
of IPC, was not justiciable and further
observed that once the appellant
was held guilty under the abovementioned
Sections, he could be either
sentenced to life imprisonment and
fine or sentenced to death. Accordingly,
the General Court Martial by
an order dated 15.1.1999, revised the
sentence and sentenced the appellant
to imprisonment for life and dismissal
from service, which was subsequently
confirmed by the Confirming
Authority. Being aggrieved by this
order, the appellant filed a petition
before the Chief of Army Staff under
Section 164 of the Army Act, which
4
was rejected. The appellant be-

ing aggrieved by the same filed a writ
petition before the Bombay High
Court.
3) The learned Counsel for the
appellant raised two contentions before
the High Court of Judicature
at Bombay in the Writ proceedings.
Firstly, it was submitted that the
charge framed against the appellant
was vague, as a result of which, entire
Court Martial proceedings was
vitiated. The second submission was
that the intervention of High Court
was required as the facts and circumstances
of the case does not justify
the punishment of life imprisonment
as the offence revealed from the material
evidence is only punishable under
Section 304 Part II and not under
Section 302 of Indian Penal Code. As
regards the first contention, the High
Court has observed that as the appellant
was informed of all the allegations
put forth against him at the
time of Court Martial proceedings,
the charge framed against the appellant
cannot be said to be vague. Considering
the second contention, the
High Court found the testimony of
PW-1 Paulose who is the eyewitness
and PW-3 Haveldar Indrpal to whom
the dying declaration was given by
the deceased, is reliable and, hence,
observed that there is no 5
doubt about the fact that appellant
caused the death of the deceased
by stabbing him with a knife. Therefore,
the submission that there was
no intention on the part of the appellant
to kill the deceased as only
one stab injury was found on deceased,
was rejected by the Court.
The High Court while considering
601
the decision on which reliance was
placed by learned counsel for the accused
observed, that there was no
sudden quarrel and the murder was
not caused on spur of moment and
no sufficient provocation is found for
the offence committed by appellant
to fall under section 304 Part II of Indian
Penal Code. As the offence was
found to be committed with enough
time to mediate on the action to
commit the murder of deceased, appellant
was said to have intention
to cause the death of the deceased.
Thus, the High Court found the
charge under Section 302 of Indian
Penal Code proved and the procedure
under Army Act followed without
any infringement of principles
of natural justice and, accordingly,
the Writ Petition was dismissed vide
judgment dated 25.8.2005.
4) We now come to the particular
question to which this appeal is limited,
namely, propriety of the conviction
and sentence passed 6
on the appellant for the offence
under Section 302 IPC read with
Section 69 of the Army Act, 1950.
Mr.K.K.Mani, the learned counsel
for the appellant contends, that, the
death of the deceased was caused
due to grave and sudden provocation
and, therefore, offence would
fall under Exception I of Section 300
I.P.C. Further, it is contended that
the offence committed by the appellant
is liable for punishment under
Section 304 Part II of the I.P.C., as
there is absence of any intention on
part of the appellant to cause death.
Mr.Mani also cited few decisions of
this Court to support his submission

602 Arun Raj v. Union Of India 2010
that the single stab injury caused by
the appellant to the deceased only
amounts to offence punishable under
Section 304 Part II and not under
Section 302 of I.P.C. Per contra, the
learned counsel for the Union of India
submitted that, the findings of
the Court Martial and the punishment
upheld by the High Court need
not be interfered by this Court as
the facts and the evidence on record
are enough to prove that the offence
committed by the appellant falls under
Section 302 of I.P.C. It is also
contended that the scope of judicial
review is for limited purpose and that
cannot be used to re-appreciate the
evidence recorded in Court Martial
proceedings to arrive at a different
conclusion. 7
5) We now consider the first contention
of the learned counsel for the
appellant. It is not in dispute that
the cause of death of deceased is due
to the stabbing by a knife by appellant.
However, it is argued on behalf
of the appellant that the appellant
caused the said injury because
on 23.03.1998 deceased Havildar
R.C.Tiwari and Havildar Inderpal
(PW-3) abused the appellant and
he was provoked to ‘punish’ the deceased.
Thus, the stab injury caused
to the deceased was a result of such
grave and sudden provocation and
thus the incident took place on spur
of moment. Therefore, the case of
the appellant falls under Exception I
of Section 300 of I.P.C.
At this state itself, it is relevant
to notice Section 300 of I.P.C.: Section
300. Murder
Except in the cases hereinafter
excepted, culpable homicide is murder,
if the act by which the death
is caused is done with the intention
of causing death, or- 2ndly If it is
done with the intention of causing
such bodily injury as the offender
knows to be likely to cause the death
of the person to whom the harm is
caused, or- 3rdly If it is done with
the intention of causing bodily injury
to any person and the bodily injury
intended to be inflicted is sufficient
in the ordinary course of nature
to cause death, or- 4thly If the person
committing the act knows that
it is so imminently dangerous that it
must, in all probability, cause death
or such bodily injury as is likely to
cause death, and commits such act
without any excuse for incurring the
risk of causing death or such injury
as aforesaid.
Exception I-When culpable
homicide is not murder- Culpable
homicide is not murder if the offender,
whilst deprived of the power
of self-control by grave and sudden
provocation, causes the death of the
person who gave the provocation or
causes the death of any other person
by mistake or accident.
The above exception is subject to
the following provisos:-
First-That the provocations not
sought or voluntarily provoked by the
offender as an excuse for killing or doing
harm to any person.
Secondly-That the provocation is
not given by anything done in obedience
to the law, or by a public servant
in the lawful exercise of the powers of
such public servant.

Thirdly-That the provocations
not given by anything done in the
lawful exercise of the right of private
defence.
Explanation-Whether the provocation
was grave and sudden enough
to prevent the offence from amounting
to murder is a question of fact.
6) The aforesaid Section provides
five exceptions wherein the culpable
homicide would not amount to murder.
Under Exception I, an injury
resulting into death of the person
would not be considered as murder
when the offender has lost his selfcontrol
due to the grave and sudden
provocation. It is also important to
mention at this stage that the provision
itself makes it clear by the Explanation
provided, that what would
constitute grave and sudden provocation,
which would be enough to prevent
the offence from amounting to
murder, is a question of fact. Provocation
is an external stimulus which
can result into to loss of self-control.
Such provocation and the resulting
reaction need to be measured from
the surrounding circumstances. Here
the provocation must be such as will
upset not merely a hasty, hot tempered
and hypersensitive person but
also a person with clam nature and
ordinary sense. What is sought by
the law by creating the exception is
that to take into consideration situations
wherein a person with normal
behavior reacting to the given incidence
of provocation. Thus, the protection
extended by the exception is
to the normal person acting normally
in the given situation.
7) The scope of the doctrine of
603
provocation was stated by Viscount
Simon in Mancini v. Director of Public
Prosecution, (1942) A.C. 200 at
p.206: it is not all provocation that
will reduce the crime of murder to
manslaughter. Provocation to have
that result, must be such as temporarily
deprive the person provoked
of the power of self-control as result
of which he commits the unlawful
act which caused death. The test to
be applicable is that of the effect of
the provocation on a reasonable man,
as was laid down by the Court of
Criminal Appeal in Rex v. Lesbini,
(1914) 3 K.B.1116 so that an unusually
excitable or pugnacious individual
is not entitled to rely on provocation
which would not have led ordinary
person to act as he did. In
applying the test, it is of particular
importance to (a) consider whether
a sufficient interval has elapsed since
the provocation to allow a reasonable
man time to cool, and (b) to take into
account the instrument with which
the homicide was effected, for to retort,
in the heat of passion induced
by provocation, by a simple blow, is
very different thing from making use
of a deadly instrument like a concealed
dagger. In short, the mode
of resentment must bear a reasonable
relationship to the provocation
if the offence is to be reduced to
manslaughter.
8) It is, therefore, important in
the case at hand to consider the reasonable
relationship of the action of
appellant of stabbing the deceased,
to the provocation by the deceased in
the form of abusing the appellant. At
this stage, it would be useful to recall

604 Arun Raj v. Union Of India 2010
the relevant chain of events in brief
to judge whether there was sufficient
provocation and the criterion under
the provision are satisfied to bring
the offence under the Exception I.
As is already stated, on the previous
night of the incidence, there was altercation
between the appellant and
deceased, as the deceased had abused
the appellant. On 23.3.1998 at about
1.00 PM, the deceased complained
to the Higher Officer-Mr.S.S.B.Rao
about the said incident. Thereafter,
he returned to his barrack and was
present there before the happening
of the incident. In the testimony,
(PW-1) Paulose states that he was
also present in the same barrack after
he came back from Other Rank
Mess at 2.15 PM and was relaxing
on his cot which was in the corner
of the same barrack. At that time
he saw the appellant coming towards
the door on which he thought that
the appellant was coming for either
urinal or to collect his clothes spread
out in sun. The appellant who was
wearing a half T-shirt and lungi came
near the cot of the deceased which
was at the door and took out a knife
from the lungi and stabbed on the
right side of chest of the deceased
when he was asleep. PW-1 agreed
at the time of examination of witness,
that he was shocked to see the
appellant stab the deceased and he
also shouted at the appellant asking
him what was he doing. Thus, PW-
1 was unable to relate the actions of
appellant to the abuses by deceased
or the altercation which happened
the previous night. Further, it is
clear from the testimony of the PW-
1 and the evidence collected (ME-1),
that the knife which was completely
made of iron and had a sharp edge
was hidden at the waistline of the
lungi of the appellant. Major Prabal
Datta, PW-9 was the Regimental
Medical Officer at 19 AD Regt. In
his cross examination, he has stated,
that there was not much time lag
between the occurrence of the incident
and the deceased being rushed
to the hospital. The facts like that
there was time lag of 40- 45 minute
after appellant had come from the office
of Higher Officer after complaining
and was present with the appellant
in the same barrack without any
conversation between them, that he
had got the knife which was sharp
enough to have the knowledge that it
might cause death of a human being
when stabbed, that the knife was hidden
and removed by appellant only
when he was about to stab the deceased,
that the appellant stabbed
the deceased on the chest which is
a fragile portion of the body and can
cause death when stabbed by sharp
weapon and also that the eyewitness
was unable to link the abusing and
the altercation of the deceased and
appellant to the action of stabbing,
rules out the possibility of the offence
being committed due to ‘grave
and sudden’ provocation. The appellant
clearly had time to deliberate
and plan out the death of Havildar
R C Tiwari (the deceased). We,
therefore, conclude that the first contention
of the learned counsel for the
appellant has no merit and the appellant
cannot get benefit of the Exception
I to Section 300 of I.P.C.
9) We now turn to second point

urged on behalf of the appellant. It
is contended by learned counsel that
there was no intention on the part of
the appellant to cause the death of
the deceased and, hence, Section 304
Part II of the IPC which deals with
culpable homicide not amounting to
murder, will be attracted. Alternatively,
it is contended that the appellant
dealt one single blow on the deceased,
and hence, intention to cause
death cannot be attributed to the appellant
and, hence, the act of the appellant
will not fall under Section 302
of IPC but under Section 304 Part
II. In light of these contentions, it is
necessary to look into the wordings of
the relevant provision. Section 304 of
IPC reads:-
Section 304. Punishment for culpable
homicide not amounting to
murder
Whoever commits culpable homicide
not amounting to murder shall
be punished with imprisonment for
life ,or imprisonment of either description
for a term which may extend
to ten years, and shall also be
liable to fine, if the act by which the
death is caused is done with the intention
of causing death, or of causing
such bodily injury as is likely to
cause death,
Or with imprisonment of either
description for a term which may extend
to ten years, or with fine, or
with both, if the act is done with the
knowledge that it is likely to cause
death, but without any intention to
cause death, or to cause such bodily
injury as is likely to cause death.
10) Essentially the ingredients for
605
bringing an act under Part II of the
Section are:-
(i) act is done with the knowledge
that it is likely to cause death,
(ii) there is no intention to cause
death, or to cause such bodily injury
as is likely to cause death.
11) The first ingredient is easily
solved by referring to the weapon
used by the appellant to strike a knife
blow to the appellant. The appellant
in this instance has used a kitchen
knife. A kitchen knife with sharp
edges is a dangerous weapon and it is
very obvious that the appellant was
aware that the use of such a weapon
can cause death or serious bodily injury
that is likely to cause death. As
far as the second ingredient is concerned,
the appellant’s learned counsel
contended that the fact that there
was one single blow struck, proves
that there was no intention to cause
death. In support of the plea, reliance
is placed on the decisions of
this court in the case of Bhera v.
State of Rajasthan, [(2000) 10 SCC
225], Kunhayippu v. State of Kerala,
[(2000) 10 SCC 307], Masumsha
Hasansha Musalman v. State of Maharashtra,
[(2000) 3 SCC 557], Guljar
Hussain v. State of U.P., [1993
Supp (1) SCC 554], K. Ramakrishnan
Unnithan v. State of Kerala,
[(1999) 3 SCC 309], Pappu v. State
of M.P., [(2006) 7 SCC 391], Muthu
v. State by Inspector of Police, Tamil
Nadu, [(2007) 12 Scale 795]. A brief
perusal of all these cases would reveal
that in all these cases there was
a sudden and instantaneous altercation
which led to the accused inflicting
a single blow to the deceased with

606 Arun Raj v. Union Of India 2010
a sharp weapon. Hence, there has
been conviction under Section 304
Part II as delivering a single blow
with a sharp weapon in a sudden
fight would not point towards intention
to cause death. These cases are
clearly distinguishable from the case
at hand, purely on the basis of facts.
In the present case, there has been no
sudden altercation which ensued between
the appellant and the deceased
in the present case. The deceased
called the appellant ‘gandu’ following
which there was a heated exchange
of words between the two, the day
before the murder. The next day,
however, the appellant concealed a
kitchen knife in his lungi and went
towards the cot of the deceased and
struck the deceased a blow on the
right side of the chest, while the deceased
was sleeping. The fact that
the appellant waited till the next day,
went on to procure a deadly weapon
like a kitchen knife and then proceeded
to strike a blow on the chest
of the appellant when he was sleeping,
points unerringly towards due
deliberation on the part of the appellant
to avenge his humiliation at
the hands of the appellant. The nature
of weapon used and the part of
the body where the blow was struck,
which was a vital part of the body
helps in proving beyond reasonable
doubt, the intention of the appellant
to cause the death of the deceased.
Once these ingredients are proved,
it is irrelevant whether there was a
single blow struck or multiple blows.
This court in the case of State of Rajasthan
v. Dhool Singh, [(2004) 12
SCC 546] while dismissing a similar
contention has stated that, It is the
nature of injury, the part of body
where it is caused, the weapon used
in causing such injury which are the
indicators of the fact whether the respondent
caused the death of the deceased
with an intention of causing
death or not. In the instant case,
it is true that the respondent had
dealt one single blow with a sword
which is a sharp-edged weapon measuring
about 3 ft. in length on a vital
part of body, namely, the neck. This
act of the respondent though solitary
in number had severed sternoclinoid
muscle, external jugular vein, internal
jugular vein and common carotid
artery completely leading to almost
instantaneous death. Any reasonable
person with any stretch of imagination
can come to the conclusion that
such injury on such a vital part of
the body with a sharp-edged weapon
would cause death. Such an injury,
in our opinion, not only exhibits
the intention of the attacker in causing
the death of the victim but also
the knowledge of the attacker as to
the likely consequence of such attack
which could be none other than causing
the death of the victim. The reasoning
of the High Court as to the intention
and knowledge of the respondent
in attacking and causing death
of the victim, therefore, is wholly erroneous
and cannot be sustained.
12) In the case of Virsa Singh v.
State of Punjab, [AIR 1958 SC 465],
this court while referring to intention
to cause death laid down:-
27. Once these four elements are
established by the prosecution (and,
of course, the burden is on the prosecution
throughout) the offence is

murder under s. 300, 3rdly. It does
not matter that there was no intention
to cause death. It does not
matter that there was no intention
even to cause an injury of a kind
that is sufficient to cause death in
the ordinary course of nature (not
that there is any real distinction between
the two). It does not even
matter that there is no knowledge
that an act of that kind will be likely
to cause death. Once the intention
to cause the bodily injury actually
found to be proved, the rest of the
enquiry is purely objective and the
only question is whether, as a matter
of purely objective inference, the
injury is sufficient in the ordinary
course of nature to cause death. No
one has a licence to run around inflicting
injuries that are sufficient to
cause death in the ordinary course of
nature and claim that they are not
guilty of murder. If they inflict injuries
of that kind, they must face the
consequences; and they can only escape
if it can be shown, or reasonably
deduced that the injury was accidental
or otherwise unintentional. This
court further observed:-
33. It is true that in a given case
the enquiry may be linked up with
the seriousness of the injury,. For example,
if it can be proved, or if the
totality of the circumstances justify
an inference, that the prisoner only
intended a superficial; scratch and
that by accident this victim stumbled
and fell on the sword or spear that
was used, then of course the offence
is not murder. But that is not because
the prisoner did not intend the
injury that he intended to inflict to
607
be as serious as it turned out to be
19
but because he did not intend to
inflict the injury in question at all.
His intention in such a case would
be to inflict a totally different injury.
The difference is not one of law but
one of fact; and whether the conclusion
should be one way or the other
is a matter of proof, where necessary,
by calling in aid all reasonable inferences
of fact in the absence of direct
testimony. It is not one for guesswork
and fanciful conjecture.
13) In Anil v. State of Haryana,
[(2007) 10 SCC 274], while referring
to Virsa Singh (supra) this court laid
down:- 19. In Thangaiya v. State of
T.N., relying upon a celebrated decision
of this Court in Virsa Singh v.
State of Punjab 1958 CriLJ 818 , the
Division Bench observed:
17. These observations of Vivian
Bose, J. have become locus classicus.
The test laid down by Virsa Singh
case for the applicability of Clause
thirdly is now ingrained in our legal
system and has become part of the
rule of law. Under Clause thirdly of
Section 300 IPC. culpable homicide
is murder, if both the following conditions
are satisfied: i.e. (a) that the
act which causes death is done with
the intention of causing death or is
done with the intention of causing a
bodily injury; and (b) that the injury
intended to be inflicted is sufficient
in the ordinary course of nature
to cause death. It must be proved
that there was an intention to inflict
that particular bodily injury which,
in the ordinary course of nature, was
sufficient to, cause death viz. that

608 Arun Raj v. Union Of India 2010
the injury found to be present was
the injury that was intended to be
inflicted.
18. Thus, according to the rule
laid down in Virsa Singh case even
if the intention of the appellant was
limited to the infliction of a bodily injury
sufficient to cause death in the
ordinary course of nature, and did
not extend to the intention of causing
death, the offence would be murder.
Illustration (c) appended to Section
300 clearly brings out this point.
20
14) In the aforesaid decision, this
Court held that there is no fixed rule
that whenever a single blow is inflicted
Section 302 would not be attracted.
15) It is clear from the above line
of cases, that it is necessary to prove
first that there was an intention of
causing bodily injury; and that the
injury intended to be inflicted is sufficient
in the ordinary course of nature
to cause death. From the evidence on
record, it is very clear that the appellant
intended to cause death. In light
of this finding, the evidence on record
makes it clear that Section 304 Part
II of the IPC will not be attracted.
Further PW-1, in his cross- examination
asserts that the deceased held
his hand out after he was stabbed in
the chest. It is very likely that this
action on the part of the deceased
prevented the appellant from stabbing
him multiple number of times.
The argument might deserve some
merit in case there is a sudden altercation
which ensues in the heat of
the moment and there is no deliberate
planning. In the present case, as
stated above there was due deliberation
on the part of the appellant and
he assaulted the deceased a day after
he misbehaved with him. Hence,
the contention of the learned counsel
that the appellant had no intention
to cause death of the deceased has no
merit and, accordingly, it is rejected.
16) We, accordingly, hold that
the conviction of the appellant for
the offence under Section 302 of Indian
Penal Code, is not bad in law.
In our opinion, the appeal has no
merit and, accordingly, it is dismissed.
J. [Dr. MUKUNDAKAM
SHARMA] J. [H.L. DATTU]
New Delhi,
May 13, 2010.

Chapter 54
Charanjit Lamba v.
Commndng.Officer,Southern
Command 2010
Charanjit Lamba v. Commndng.Officer,Southern
Command
Ors. on 6 July, 2010
Author: T Thakur
Bench: Dalveer Bhandari, T.S.
Thakur
IN THE SUPREME COURT OF
INDIA
CRIMINAL APPELLATE JU-
RISDICITION
CRIMINAL APPEAL NO.1027
OF 2002
Charanjit Lamba ...Appellant
Versus
Commanding Officer, Southern
...Respondents Command amp; Ors.
JUDGMENT
T.S. THAKUR, J.
1. This appeal by special
leave arises out of an order dated
15th September, 1998 passed by the
High Court of judicature at Bombay
whereby Criminal Writ Petition
No.489 of 1997 filed by the appellant
has been dismissed and the order of
dismissal from service on proved misconduct
affirmed. The factual matrix
giving rise to the disciplinary proceedings
against the appellant and
his eventual dismissal from service
has been set out by the High Court
in the order under appeal. We need
not, therefore, re-count the same over
again. Suffice it to say that the
appellant who at the relevant time
was serving as a Major in the Indian
Army was consequent upon a finding
recorded against him in a Court
of Inquiry brought up for trial before
a General Court Martial (GCM for
short) on the following two distinct
charges: FIRST CHARGE ARMY
ACT SECTION 52(f).
SUCH AN OFFENCE AS IS
MENTIONED IN CLAUSE (f) OF
SECTION 52 OF THE ARMY
ACT, WITH INTENT TO CAUSE
WRONGFUL LOSS TO A PERSON

Charanjit 610 Lamba v. Commndng.Officer,Southern Command 2010
In that he, at field on 30th Jul
92, with intent to cause wrongful
gain to himself, improperly claimed
Rs.16,589.30 (Rs. Sixteen thousand
five hundred eighty nine and paise
thirty only) from CDA (Q) Pune on
account of moving his household luggage
and car to Chandigarh, well
knowing that he was legally not entitled
to the same.
SECOND CHARGE, ARMY
ACT SECTION 45
BEING AN OFFICER BEHAV-
ING IN A MANNER
UNBECOMING HIS POSITION
AND THE
CHARACTER EXPECTED OF
HIM
In that he, at Pune, between
03 Sep 92 and Jun 93, improperly
failed to pay the final electricity
bill dated 03 Sep 92 amounting to
Rs.8132.35 (Rs. eight thousand one
hundred thirty two and paise thirty
five only) to Maharashtra State Electricity
Board (MSEB) in respect of H
No.12-B Kohun Road, Pune-1 which
was allotted to him.
2. Evidence adduced before the
GCM eventually led to the appellant
being held guilty for improperly
claiming Rs.16,589.30 on account of
transfer of his household luggage and
car to Chandigarh. The GCM found
that the family of the appellant had
continued to occupy government accommodation
at Pune even after his
posting to the field area and that the
agency who is alleged to have transported
the luggage and the car of
the appellant did not exist at the
given address. The evidence given
by the appellant in his defence was
also found by the GCM to be unreliable
on account of material contradictions
in the deposition of the
defence witnesses. The GCM on
proof of the said charge sentenced
him to forfeiture of ten years past
service for purposes of pension. In
so far as the second charge, viz. nonpayment
of electricity bill was concerned,
the GCM declared the appellant
not guilty. In its opinion the appellant
had never refused to pay the
electricity bill which was at any rate
a matter between him and the Maharashtra
State Electricity Board. The
GCM took the view that the default
of the petitioner could not be termed
as conduct unbecoming of an official
subject to the Army Act to call for
any penal action.
3. Aggrieved by the findings
and the sentence awarded to him by
the GCM the petitioner filed an appeal
before the General Officer Commanding,
Maharashtra and Gujarat
Area (hereinafter referred to as the
‘GOC M amp; G Area’) who happened
to be the confirming authority
also. The GOC M amp; G
Area, however, took the view that
the sentence awarded to the appellant
on the first charge was lenient
inasmuch as the offence committed
by the appellant was serious and involved
moral turpitude. It also noted
that the appellant had past convictions
to his credit which ought to be
kept in view. The finding recorded
by the GCM in regard to the second
charge framed against the appellant
was also found to be untenable
by GOC M amp; G Area as accord-

ing to him the conduct of the appellant
fell within the ambit of Section
4E of the Army Act which made his
behaviour unbecoming of an officer.
The GOC M amp; G Area accordingly
remanded the matter back to
the GCM for re-consideration on the
question of sentence to be awarded to
the appellant on the first charge and
whether the appellant could be held
guilty on the second charge. The order
made it clear that the GOC M
amp; G Area did not intend to interfere
with the discretion vested in the
GCM which was free to decide the
matter in the manner it liked.
4. The GCM accordingly assembled
again to consider the matter
and while sticking to the reasons
given by it in regard to the first
charge found the second charge also
to have been proved. The GCM on
that basis revoked the earlier sentence
and sentenced the appellant to
dismissal from service which order
was after confirmation by the competent
authority assailed by the appellant
before the High Court at Bombay
in Criminal Writ Petition No.489
of 1997 as already noticed earlier.
5. Before the High Court several
contentions appear to have been
urged on behalf of the appellant
which were examined and repelled by
the High Court while dismissing the
writ petition in terms of the order impugned
in this appeal. The correctness
of the view taken by the High
Court on the grounds urged before it
has not been assailed before us except
in so far as the High Court has
held that the punishment of dismissal
imposed upon the appellant was in
611
no way disproportionate to the gravity
of the offence committed by him.
6. Mr. P.S. Patwalia, learned
senior counsel appearing for the appellant
argued that the order of dismissal
of the appellant from service
was in the facts and circumstances
of the case disproportionate to the
gravity of the charges framed against
the appellant. He relied upon the
decisions of this Court to which we
shall presently refer to submit that
judicial review of the order of dismissal
would justify intervention by
a Writ Court in cases where punishment
was disproportionate to the
nature of misconduct proved against
the delinquent. The present was according
to him one such a case that
called for the Court’s intervention to
either reduce the punishment or to
direct the same to be reduced by the
competent authority.
7. In Coimbatore District Central
Coop. Bank v. Employees Assn.
(2007) 4 SCC 669 this Court declared
that the doctrine of proportionality
has not only arrived in our legal system
but has come to stay. With the
rapid growth of the administrative
law and the need to control possible
abuse of discretionary powers by various
administrative authorities, certain
principles have been evolved by
reference to which the action of such
authorities can be judged. If any action
taken by an authority is contrary
to law, improper, irrational or otherwise
unreasonable, a court competent
to do so can interfere with the
same while exercising its power of judicial
review.
8. This Court referred with ap-

Charanjit 612 Lamba v. Commndng.Officer,Southern Command 2010
proval to the decision of the House
of Lords in Council of Civil Service
Union v. Minister for Civil Service
(1985 AC 374) where Lord Diplock
summed up the grounds on which administrative
action was open to judicial
review by a Writ Court. Lord
Diplock’s oft-quoted passage dealing
with the scope of judicial review of an
administrative action may be gainfully
extracted at this stage:
Judicial review has I think developed
to a stage today when, without
reiterating any analysis of the steps
by which the development has come
about, one can conveniently classify
under three heads the ground on
which administrative action is subject
to control by judicial review.
The first ground I would call ‘illegality’,
the second ‘irrationality’ and the
third ‘procedural impropriety’. That
is not to say that further development
on a case-by-case basis may
not in course of time add further
grounds. I have in mind particularly
the possible adoption in the future of
the principle of ‘proportionality’.
9. The doctrine of proportionality
which Lord Diplock saw as a future
possibility is now a well recognized
ground on which a Writ Court
can interfere with the order of punishment
imposed upon an employee
if the same is so outrageously disproportionate
to the nature of misconduct
that it shocks conscience of the
Court. We may at this stage briefly
refer to the decisions of this Court
which have over the years applied the
doctrine of proportionality to specific
fact situations.
10. In Bhagat Ram v. State of
Himachal Pradesh (1983) 2 SCC 442
this Court held that if the penalty
imposed is disproportionate to the
gravity of the misconduct, it would
be violative of Article 14 of the Constitution.
11. In Ranjit Thakur v. Union
of India amp; Ors. (1987) 4 SCC
611, this Court was dealing with a
case where the petitioner had made
a representation about the maltreatment
given to him directly to the
higher officers. He was sentenced to
rigorous imprisonment for one year
for that offence. While serving the
sentence imposed upon him he declined
to eat food. The summary
court martial assembled the next day
sentenced him to undergo imprisonment
for one more year and dismissal
from service. This Court held that
the punishment imposed upon the
delinquent was totally disproportionate
to the gravity of the offence committed
by him. So also in Ex-Naik
Sardar Singh v. Union of India amp;
Ors. (1991) 3 SCC 213 instead of
one bottle of brandy that was authorized
the delinquent was found carrying
four bottles of brandy while going
home on leave. He was sentenced to
three months rigorous imprisonment
and dismissal from service which was
found by this Court to be disproportionate
to the gravity of the offence
proved against him.
12. The decision of this Court in
Hind Construction amp; Engineering
Co. Ltd. v. Workmen (AIR 1965
SC 917) dealt with a situation where
some workers had remained absent
from duty treating a particular day
as a holiday. They were for that mis-

conduct dismissed from service. This
Court held that the absence of the
workmen could have been treated as
‘leave without pay’ and they could
also be warned and not fined. Reversing
the order of punishment this
Court observed:
It is impossible to think that
any other reasonable employer would
have imposed the extreme punishment
of dismissal on its entire permanent
staff in this manner.
13. Reference may also be made
to Management of the Federation of
Indian Chambers of Commerce and
Industry v. Workman, Shri R.K.
Mittal (1972) 1 SC 40) where the employer
had issued a legal notice to the
federation and to the international
chamber of Commerce which brought
discredit to the petitioner-employer.
A domestic inquiry was held in which
he was found guilty and his services
terminated. This Court held that
the punishment was disproportionate
to the misconduct alleged observing:
The Federation had made a mountain
out of a mole hill and made a
trivial matter into one involving loss
of its prestige and reputation.
14. We may refer to the decision
of this Court in M.P. Gangadharan
amp; Anr. v. State of Kerala
amp; Ors. (2006) 6 SCC 162, where
this Court declared that the question
of reasonableness and fairness on the
part of the statutory shall have to
be considered in the context of the
factual matrix obtaining in each case
and that it cannot be put in a straitjacket
formula. The following passage
is in this regard apposite:
613
34. The constitutional requirement
for judging the question of reasonableness
and fairness on the part
of the statutory authority must be
considered having regard to the factual
matrix obtaining in each case.
It cannot be put in a straitjacket formula.
It must be considered keeping
in view the doctrine of flexibility.
Before an action is struck down,
the court must be satisfied that a
case has been made out for exercise
of power of judicial review. We
are not unmindful of the development
of the law that from the doctrine
of Wednesbury unreasonableness,
the court is leaning towards the
doctrine of proportionality........
15. That the punishment imposed
upon a delinquent should commensurate
to the nature and generally
of the misconduct is not only
a requirement of fairness, objectivity,
and non-discriminatory treatment
which even those form quality
of a misdemeanour are entitled
to claim but the same is recognized
as being a part of Article 14 of the
Constitution. It is also evident from
the long time of decisions referred to
above that the courts in India have
recognized the doctrine of proportionality
as one of the ground for judicial
review. Having said that we
need to remember that the quantum
of punishment in disciplinary
matters is something that rests primarily
with the disciplinary authority.
The jurisdiction of a Writ Court
or the Administrative Tribunal for
that matter is limited to finding
out whether the punishment is so
outrageously disproportionate as to

Charanjit 614 Lamba v. Commndng.Officer,Southern Command 2010
be suggestive of lack of good faith.
What is clear is that while judicially
reviewing an order of punishment imposed
upon a delinquent employee
the Writ Court would not assume
the role of an appellate authority.
It would not impose a lesser punishment
merely because it considers
the same to be more reasonable than
what the disciplinary authority has
imposed. It is only in cases where the
punishment is so disproportionate to
the gravity of charge that no reasonable
person placed in the position of
the disciplinary authority could have
imposed such a punishment that a
Writ Court may step in to interfere
with the same.
16. The question then is whether
the present is indeed one such case
where the High Court could and
ought to have interfered with the sentence
imposed upon the appellant on
the doctrine of proportionality. Our
answer is in the negative. The appellant
was holding the rank of a Major
in the Indian Army at the time
he committed the misconduct alleged
and proved against him. As an officer
of disciplined force like the Army he
was expected to maintain the highest
standard of honesty and conduct and
forebear from doing anything that
could be termed as unbecoming of
anyone holding that rank and office.
Making a false claim for payment of
transport charges of household luggage
and car to Chandigarh was a
serious matter bordering on moral
turpitude. Breach of the rule requiring
him to clear his electricity dues
upon his transfer from the place of
his posting was also not credit wor-
thy for an officer. The competent authority
was therefore justified in taking
the view that the nature of the
misconduct proved against the appellant
called for a suitable punishment.
Inasmuch as the punishment
chosen was dismissal from service,
the competent authority, did not in
our opinion, take an outrageously absurd
view of the matter. We need to
remember that the higher the public
office held by a person the greater
is the demand for rectitude on his
part. An officer holding the rank of
Major has to lead by example not
only in the matter of his readiness to
make the supreme sacrifice required
of him in war or internal strife but
even in adherence to the principles
of honesty, loyalty and commitment.
An officer cannot inspire those under
his command to maintain the values
of rectitude and to remain committed
to duty if he himself is found
lacking in that quality. Suffice it to
say that any act on the part of an
officer holding a commission in the
Indian Army which is subversive of
army discipline or high traditions of
the Army renders such person unfit
to stay in the service of the nation’s
Army especially when the misconduct
has compromised the values
of patriotism, honesty and selflessness
which values are too precious
to be scarified on the altar of petty
monetary gains, obtained by dubious
means.
17. In the result this appeal fails
and is hereby dismissed.
J. (DALVEER BHANDARI)
J. (T.S. THAKUR)
New Delhi July 6, 2010

Chapter 55
J.S. Sekhon v. Union Of
India 2010
J.S. Sekhon v. Union Of India
Ors. on 10 August, 2010
Author: . M Sharma
Bench: Mukundakam Sharma,
Anil R. Dave
CIVIL APPELLATE JURIS-
DICTION
CIVIL APPEAL NO. 6274 OF
2003
J.S. SEKHON ...Appellant Versus
UNION OF INDIA ...Respondent
JUDGMENT
Dr. Mukundakam Sharma, J.
1. This Civil Appeal is directed
against the judgment of the
High Court of Jammu amp; Kashmir
dated 2.4.2002. By the aforesaid
order, the Division Bench of
the High Court upheld the order of
the learned Single Judge of the High
Court of Jammu amp; Kashmir, dismissing
the Writ Petition and upholding
the order of conviction of the
appellant by the General Court Martial
(GCM) for defrauding the Army
and sentence of one year of rigorous
imprisonment and also of cashiering
him from service.
2. The appellant was a Commissioned
Officer in the Indian Army
working at the relevant time at Leh.
He was working as a Garrison Engineer,
865 EWS, where he invited
offers from private parties to supply
the garrison with Diesel Generator
(DG) sets and to make other repairs
and replacement.
3. On 29.11.1994 he entered
into an agreement with M/s Surjit
Singh Sokhi to repair two DG Sets
at FRL Powerhouse at Leh for Rs.
2.29 lakh and to repair LT cables
at Nimmuy area Leh for Rs. 2.49
lakhs. On 30.11.1994 he entered into
an agreement with M/s Mohd Sultan
and Bros. to replace LT cables
and providing an ACR conductor
and to replace parts of two DG
Sets for Rs. 2.48 lakhs. Authorities
noticed irregularities in these
purchases and on 6.12.1994 investigated
the contract agreements. A

616 J.S. Sekhon v. Union Of India 2010
vigilance check was performed by
the Commander Works Engineers
(CWE) on 9.12.1994. CWE then
asked the appellant for his comments
on the report which were submitted
on 6.2.1995. Discrepancies detected
in comparing the report and the comments
of the appellant prompted the
Technical Board of Officers to issue
a report on 9.4.1995, which led a
court of enquiry being convened on
20.9.1995 and then to a GCM being
convened on 9.3.1998. The appellant
was then served a charge sheet
on 9.3.1998 that was then withdrawn
due to errors and thereafter he was
re-served with a fresh charge sheet on
11.3.1998.
4. Seven charges were framed
against the appellant two of which
could not be proved. All the charges
revolved around the allegation of his
defrauding the Army for purchasing
services to replace and repair items
at exorbitant rates which are much
higher than what is permissible under
the standard scheduled rates.
5. On 14.3.1998 the GCM commenced
its proceedings and provided
the appellant the right to raise objections
of being tried by any officer sitting
on the court in accordance with
Section 130 of the Army Act, 1950
read with Rule-44 of the Army Rules,
1954. He raised no objection at the
time. However, at a subsequent stage
of the trial he objected to being tried
by the Presiding Officer of the Court.
The objection was then considered
and rejected. The court convicted
the appellant and sentenced him to
one year rigorous imprisonment besides
cashiering.
6. The appellant then challenged
this conviction and sentence based
on several issues. The Single Judge
of the High Court of Jammu amp;
Kashmir at Srinagar dismissed the
Writ Petition holding the same to be
without merit. The Division Bench
of the High Court in the writ appeal
filed before it similarly held that
there was no procedural irregularity
or illegality in the GCM proceedings.
That appeal was also dismissed.
7. Being aggrieved by both the
orders passed by the learned Single
Judge and the Division Bench of the
High Court, a Special Leave Petition
was filed by the appellant. After
leave was granted, the appeal was
placed for final hearing in which we
heard the learned counsel appearing
for the parties.
8. The learned counsel appearing
for the appellant mainly raised
two issues before us during the course
of hearing. The first submission
of the learned counsel appearing for
the appellant was that the convening
of the General Court Martial on
14.3.1998 was barred under the provisions
of Section 122 of the Army
Act. The second submission of the
learned counsel for the appellant was
that the convening Officer of the
General Court Martial in the case of
the appellant being the Commanding
Officer of the appellant, there is violation
of the provision of paragraph
449(b) of the Army Regulation.
9. The learned counsel appearing
for the respondent, however, refuted
the aforesaid submissions while
contending inter alia that neither the
convening of the General Court Mar-

tial was barred by time nor that the
convening officer of the Court Martial
was the commanding officer of
the appellant. According to him
therefore not only there was no violation
of Section 122 of the Army
Act, but there was also no contravention
of paragraph 449(b) of the Army
Regulation.
10. In the light of the aforesaid
submissions of the counsel appearing
for the parties, we have perused
the relevant provisions of the Army
Act, 1950 (for short the Act) and
the Army Regulations as also various
documents and the decisions relied
upon and on being fully acquainted
thereof, we propose to dispose of the
present appeal by giving our reasons
thereof. But before doing that it
would be appropriate to extract the
relevant provisions of Section 122 of
the Army Act, and Paragraph 449(b)
of the Army Regulations.
122. Period of limitation for
trial.-(1) Except as provided by subsection
(2), no trial by court martial
of any person subject to this
Act for any offence shall be commenced
after the expiration of a period
of three years[and such period
shall commence,- (a) on the date of
the offence; or
(b) where the commission of the
offence was not known to the person
aggrieved by the offence or to the authority
competent to initiate action,
the first day on which such offence
comes to the knowledge of such person
or authority, whichever is earlier;
or
(c) where it is not known by
617
whom the offence was committed,
the first day on which the identity of
the offender is known to the person
aggrieved by the offence or to the authority
competent to initiate action,
whichever is earlier.]
449. Action by Superior Officer
....
(b) When the superior office has
been the CO of the accused at any
time between the date on which cognizance
of offence was taken against
the accused and the date on which
the case is taken up for disposal, or
an officer who has investigated the
case, he cannot exercise the powers
detailed in sub-para (a) (ii) to (v) inclusive
11. Section 122 of the Army Act
provides the period of limitation for
trial. In the said section, it is provided
that no trial by court martial
of any person shall be commenced after
the expiration of a period of three
years (a) from the date of the offence
or, (b) where the commission of the
offence was not known to the person
aggrieved by the offence or to the authority
competent to initiate action,
the first day on which such offence
comes to the knowledge of such person
or authority, whichever is earlier
or (c) where it is not known by whom
the offence was committed, the first
day on which the identity of the offender
is known to the person aggrieved
by the offence or by the authority
competent to initiate action,
whichever is earlier.
12. On going through the
records, we find that it is an admitted
position between the parties, that

618 J.S. Sekhon v. Union Of India 2010
what is attracted in the present case
is clause (b) of sub-Section (1) of Section
122. The date of limitation for
holding a trial by court martial is a
period of three years from any of the
three dates as stated above.
13. Clause (b) is attracted and
in that case the limitation of three
years period would commence from
the date of the knowledge of the commission
of such offence by the person
aggrieved by the offence or by the authority
competent to initiate action.
14. Learned Counsel appearing
for the appellant submitted before us
that of the two expressions i.e. person
aggrieved by the offence or the
authority competent to initiate action,
what is attracted in the present
case is not the knowledge of the authority
competent to initiate action
but the other expression appearing in
the section namely the date of knowledge
of the person aggrieved of the
commission of the offence.
15. The facts disclosed before us
reveal that on 6.12.1994, the higher
authority noticed some irregularity
committed by the appellant and accordingly
made some observations on
the contract agreement whereupon
on 9.12.1994, Commander Works Engineer
directed a Vigilance Check in
terms of which a Vigilance Check was
conducted and a report to that effect
was submitted on 19.12.1994.
16. It appears that on receipt
of the aforesaid Vigilance Check Report,
Commanding Works Engineer
forwarded the report to the appellant
and asked for his comments which
were submitted by the appellant on
6.2.1995. As there were some variations
in the vigilance report and
the comments furnished by the appellant,
a Technical Board of Officers
was constituted on 29.3.1995 and the
said technical board of officers submitted
its report on 9.4.1995. Thereafter
on 20.4.1995, on examination of
the report, a letter was written by
the Commanding Works Engineer to
HQ 3 Infantry Division for constituting
a court of enquiry. On 24.4.1995,
a court of enquiry was convened and
thereafter the court of enquiry submitted
its report on 11.10.1996.
17. According to the counsel
appearing for the appellant, when
the vigilance check report was submitted,
Commander Works Engineer
who is the person aggrieved came to
know that there was a commission
of an offence and therefore period
of limitation as envisaged under Section
122 of the Act would commence
from that date and when limitation
is computed from the said date, convening
of the general court martial
on 9.3.1998 was barred by time, as it
was beyond the period of three years
as contemplated under Section 122 of
the Army Act.
18. The aforesaid factual position
as stated above would indicate that
although a vigilance check report was
submitted on 19.12.1994, the Commanding
Works Engineer sought for
comments from the appellant and on
receipt of the comments of the appellant
some variations were found while
comparing the vigilance report and
the comments of the appellant and
therefore, a Technical Board of Officers
was required to be constituted

which was accordingly constituted on
29.3.1995. When the technical board
of officers so constituted submitted
its report on 9.4.1995, it could be
said that the fact of commission of
offence by the appellant came to be
finally recorded, but even thereafter
a Court of Enquiry was convened so
as to make an enquiry with regard to
the allegation against the appellant.
The Report of the court of enquiry
finally proved and established that
the appellant has committed an offence
alleged against him and therefore
the knowledge, if any, regarding
the commission of the offence by the
authority competent to convene the
general court martial could be said
to be on 11.10.1996, when the aforesaid
Court of Enquiry Report was
submitted or at the most it could be
said that such knowledge was derived
by the authority competent to initiate
action of convening the general
court martial on submission of the report
by the technical board of officers
which was dated 9.4.1995. If the period
of limitation is computed either
from 9.4.1995 or 11.10.1996, the convening
of the trial by general court
martial on 9.3.1998 must be held to
be within the period of limitation as
prescribed under Section 122 of the
Act.
19. In our considered opinion, the
expression ‘person aggrieved by the
offence’ is irrelevant in the facts and
circumstances of the present case and
what is relevant is the ‘knowledge of
the authority competent to initiate
action’. The aforesaid acts were committed
against the Government and
not a natural person. In the facts of
619
the present case no single person can
be said to be aggrieved person individually
due to the act of defrauding
the Army. What is applicable to
the facts of the case is the expression
when it comes to the knowledge of
the competent authority to initiate
action. In coming to the aforesaid
conclusion, we are fortified by a recent
decision of this Court in Union
of India and Others v. V.N. Singh reported
in (2010) 5 SCC 579 wherein
it was held thus:-
32....It is only the natural persons
who can be hurt, angry, upset or
wronged or maltreated, etc. If a government
organisation is treated to be
an aggrieved person then the second
part of Section 122(1)(b) i.e.when it
comes to the knowledge of the competent
authority to initiate action
will never come into play as the commission
of offence will always be in
the knowledge of the authority who
is a part of the organisation and who
may not be the authority competent
to initiate the action. A meaningful
reading of the provisions of Section
122(1)(b) makes it absolutely
clear that in the case of a government
organisation, it will be the date
of knowledge of the authority competent
to initiate the action, which
will determine the question of limitation....
20. The action contemplated by
Section 122 must be the action it
seeks to limit - namely a trial. The
power of investigation and trial or
the power to convene a court of inquiry
is vested in officers in the chain
of command and not with staff officers.
It is therefore clear from Sec-

620 J.S. Sekhon v. Union Of India 2010
tion 122(1)(b) that the expression
person aggrieved; necessarily means
a natural person and what would be
relevant is the knowledge of the competent
authority to convene a general
court martial against the appellant
who in the present case is
the general officer commanding. His
date of knowledge of the commission
of offence becomes material as he is
the competent authority to convene
a general court martial against the
appellant.
21. Since, the authority competent
to initiate action has derived
his knowledge about the commission
of the offence on submission of
the report of the Court of Enquiry
11.10.1996 or at the most on submission
of the report by the technical
board of officers on 9.4.1995 and
the date of the convening of the trial
by general court martial is 9.3.1998,
the trial is not barred by limitation
as sought to be submitted by the
counsel appearing for the appellant,
and therefore, the submission of the
counsel appearing for the appellant
fails and is rejected.
22. Having held thus so far as
the first issue is concerned, let us now
turn to the second issue, which was
urged before us. We have very carefully
analysed the scope and applicability
of paragraph 449(b) of the
Army Regulation.
23. On consideration of the
records placed before us, we find
that in the present case, the General
Court Martial, which was held
against the appellant was convened
by the general officer commanding
who was of the rank of a Major General.
The appellant was a lieutenant
Col., whereas the commanding officer
was Col. R.K. Rana. The General officer
commanding in the case of the
appellant was a Major General who
is much higher in rank than the commanding
officer and therefore, there
is no violation of paragraph 449(b) of
the Army Regulation.
24. Learned counsel appearing
for the appellant submitted before us
that here the convening officer of the
General Court Martial was his commanding
officer and therefore there
was violation of regulation 449(b).
The said allegation is found to be
factually incorrect. Even otherwise,
the appellant was attached to 603
ASC Battalion, for the purpose of investigation
and progress of the disciplinary
case, and therefore, commanding
officer on 603 ASC Battalion
became his commanding officer.
It could not be disputed by the counsel
appearing for the appellant that
the said commanding officer is the
one who has filed the charge sheet
against the appellant and the appellant
has not objected that the commanding
officer 603 ASC Battalion
was the commanding officer. That
being the position, there is no violation
at all of Paragraph 449(b) of the
Army Regulation.
25. Therefore, all the issues urged
by the appellant are found to be
without any merit. Consequently,
the appeal has no merit, and is dismissed,
but we leave the parties to
bear their own costs.
J. [Dr. Mukundakam Sharma]
J. [Anil R. Dave]
New Delhi,
August 10, 2010

Chapter 56
Place Holder

622 Place Holder

Chapter 57
Place Holder

624 Place Holder

Chapter 58
Place Holder

626 Place Holder

Chapter 59
Place Holder

628 Place Holder

Chapter 60
Place Holder

630 Place Holder

Chapter 61
O’Callahan v. Parker, 395
U.S. 258, 265 (1969)
O’CALLAHAN V. PARKER,
395 U. S. 258 (1969)
Case Preview
Full Text of Case U.S. Supreme
Court O’Callahan v. Parker, 395
U.S. 258 (1969)
O’Callahan v. Parker
No. 646
Argued January 23, 1969
Decided June 2, 1969
395 U.S. 258
CERTIORARI TO THE
UNITED STATES COURT OF AP-
PEALS
FOR THE THIRD CIRCUIT
Syllabus
Petitioner, a United States Army
sergeant, while on an evening pass
from his army post in Hawaii and
in civilian attire, broke into a hotel
room, assaulted a girl, and attempted
rape. Following his apprehension,
city police, on learning that
petitioner was in the Armed Forces,
delivered him to the military police.
After interrogation, petitioner confessed.
He was charged with attempted
rape, housebreaking, and
assault with attempt to rape, in violation
of Articles 80, 130, and 134
of the Uniform Code of Military Justice,
tried by a court martial, convicted
on all counts, and sentenced.
His conviction was affirmed by the
Army Board of Review, and thereafter
by the United States Court of
Military Appeals. Petitioner later
filed a petition for a writ of habeas
corpus in the District Court claiming
that the court martial was without
jurisdiction to try him for nonmilitary
offenses committed off-post
while on an evening pass. The District
Court denied relief and the
Court of Appeals affirmed.
Held: A crime, to be under military
jurisdiction, must be serviceconnected,
and since petitioner’s
crimes were not, he could not be tried
by court martial, but was entitled to
a civilian trial with the benefits of an
indictment by a grand jury and trial

632 O’Callahan v. Parker, 395 U.S. 258, 265 (1969)
by jury. Pp. 395 U. S. 261-274.
(a) Art. I, 8, cl. 14, of the
Constitution recognizes that military
discipline requires military courts in
which not all the procedural safeguards
of Art. III trials need apply,
and the Fifth Amendment exempts
“cases arising in the land or
naval forces or in the militia, when
in actual service in time of war or
public danger” from the requirement
of prosecution by indictment and the
right to trial by jury. See Ex parte
Quirin, 317 U. S. 1, 317 U. S. 40. Pp.
395 U. S. 261-262.
(b) If the case does not arise “in
the land or naval forces,” the accused
gets (1) the benefit of an indictment
by a grand jury and (2) a trial by
jury before a civilian court as guaranteed
by the Sixth Amendment and
Art. III, 2. P. 395 U. S. 262.
(c) A court martial (which is tried
in accordance with military traditions
and procedures by a panel of officers
empowered to act by two-thirds
vote presided over by a military law
officer) is not
Page 395 U. S. 259
an independent instrument of
justice, but a specialized part of an
overall system by which military discipline
is preserved. Pp. 395 U. S.
263-265.
(d) A civilian trial is conducive
to the protection of individual rights,
while a military trial is marked by retributive
justice. P. 395 U. S. 266.
(e) The fact that petitioner, at
the time of his offense and of his
court martial, was a member of the
Armed Forces does not necessarily
mean that he was triable by court
martial. Pp. 395 U. S. 266-267.
(f) In England before the American
Revolution, and in this country,
military trials of soldiers for civilian
offenses have been viewed with suspicion.
Pp. 395 U. S. 268-271.
(g) To be under military jurisdiction,
a crime must be serviceconnected,
lest all members of the
armed services be deprived of the
benefits of grand jury indictment and
jury trial. Pp. 395 U. S. 272-273.
(h) There was not even a remote
connection between petitioner’s
crimes and his military duties, and
the offenses were peacetime offenses,
committed in American territory
which did not involve military authority,
security, or property. Pp.
395 U. S. 273-274.
390 F.2d 360, reversed.
MR JUSTICE DOUGLAS delivered
the opinion of the Court.
Petitioner, then a sergeant in the
United States Army, was stationed in
July, 1956, at Fort Shafter, Oahu, in
the Territory of Hawaii. On the night
of July 20, while on an evening pass,
petitioner and a friend left the post
dressed in civilian clothes and went
into Honolulu. After a few beers
in the bar of a hotel, petitioner entered
the residential part of the hotel,
where he broke into the room of
a young girl and assaulted and attempted
to rape her. While fleeing
from her room onot Waikiki Beach,
he was apprehended by a hotel security
officer, who delivered him to
the Honolulu city police for questioning.
After determining that he was

a member of the Armed Forces, the
city police delivered petitioner to the
military police. After extensive interrogation,
petitioner confessed, and
was placed in military confinement.
Petitioner was charged with attempted
rape, housebreaking,and assault
with intent to rape, in violation
of Articles 80, 130, and 134 of the
Uniform Code of Military Justice.
[Footnote 1] He was tried by court
martial, convicted on all counts, and
given a sentence of 10 years’ imprisonment
at hard labor, forfeiture
of all pay and allowances, and dishonorable
discharge. His conviction
was affirmed by the Army Board of
Review and, subsequently, by the
United States Court of Military Appeals.
Under confinement at the United
States Penitentiary at Lewisburg,
Pennsylvania, petitioner filed a petition
for writ of habeas corpus in
the United States District Court for
the Middle District of Pennsylvania,
alleging, inter alia, that the court
martial was without jurisdiction to
try him for nonmilitary offenses committed
off-post while on an evening
pass. The District Court denied relief
without considering the issue on
the merits, and the Court of Appeals
for the Third Circuit affirmed. This
Court granted certiorari limited to
the question:
“Does a court martial, held under
the Articles of War, Tit. 10,
U.S.C. 801 et seq., have jurisdiction
to try a member of the Armed Forces
who is charged with commission of a
crime cognizable in a civilian court
and having no military significance,
633
alleged to have been committed offpost
and while on leave, thus depriving
him of his constitutional rights to
indictment by a grand jury and trial
by a petit jury in a civilian court?”
The Constitution gives Congress
power to “make Rules for the Government
and Regulation of the land
and naval Forces,” Art. I, 8, cl. 14,
and it recognizes that the exigencies
of military discipline require the existence
of a special system of military
courts in which not all of the specific
procedural protections deemed
essential in Art. III trials need apply.
The Fifth Amendment specifically
exempts “cases arising in the
land or naval forces, or in the Militia,
when in actual service in time of War
or public danger” from the requirement
of prosecution by indictment
and, inferentially, from the right to
trial by jury. (Emphasis supplied.)
See Ex parte Quirin, 317 U. S. 1, 317
U. S. 40. The result has been the
establishment and development of a
system of military justice with fundamental
differences from the practices
in the civilian courts.
If the case does not arise “in the
land or naval forces,” then the accused
gets first, the benefit of an indictment
by a grand jury, and second,
a trial by jury before a civilian
court, as guaranteed by the Sixth
Amendment and by Art. III, 2, of
the Constitution, which provides in
part:
“The Trial of all Crimes, except
in Cases of Impeachment, shall be
by Jury, and such Trial shall be held
in the State where the said Crimes
shall have been committed; but when

634 O’Callahan v. Parker, 395 U.S. 258, 265 (1969)
not committed within any State, the
Trial shall be at such Place or Places
as the Congress may by Law have directed.”
Those civil rights are the constitutional
stakes in the present litigation.
What we wrote in Toth v.
Quarles, 350 U. S. 11, 350 U. S. 17-
18, is worth emphasis:
“We find nothing in the history
or constitutional treatment of military
tribunals which entitles them
to rank along with Article III courts
as adjudicators of the guilt or innocence
of people charged with offenses
for which they can be deprived of
their life, liberty or property. Unlike
courts, it is the primary business
of armies and navies to fight
or be ready to fight wars should the
occasion arise. But trial of soldiers
to maintain discipline is merely incidental
to an army’s primary fighting
function. To the extent that those responsible
for performance of this primary
function are diverted from it by
the necessity of trying cases, the basic
fighting purpose of armies is not
served. And conceding to military
personnel that high degree of honesty
and sense of justice which nearly
all of them undoubtedly have, it still
remains true that military tribunals
have not been, and probably never
can be, constituted in such way that
they can have the same kind of
Page 395 U. S. 263
qualifications that the Constitution
has deemed essential to fair trials
of civilians in federal courts. For
instance, the Constitution does not
provide life tenure for those perform-
ing judicial functions in military trials.
They are appointed by military
commanders, and may be removed at
will. Nor does the Constitution protect
their salaries, as it does judicial
salaries. Strides have been made toward
making courts martial less subject
to the will of the executive department
which appoints, supervises
and ultimately controls them. But,
from the very nature of things, courts
have more independence in passing
on the life and liberty of people than
do military tribunals.”
“Moreover, there is a great difference
between trial by jury and
trial by selected members of the military
forces. It is true that military
personnel, because of their training
and experience, may be especially
competent to try soldiers for infractions
of military rules. Such training
is no doubt particularly important
where an offense charged against a
soldier is purely military, such as disobedience
of an order, leaving post,
etc. But, whether right or wrong,
the premise underlying the constitutional
method for determining guilt
or innocence in federal courts is that
laymen are better than specialists to
perform this task. This idea is inherent
in the institution of trial by
jury.”
A court martial is tried not by a
jury of the defendant’s peers which
must decide unanimously, but by a
panel of officers [Footnote 2] empowered
to act by a two-thirds vote.
Page 395 U. S. 264
The presiding officer at a court
martial is not a judge whose ob-

jectivity and independence are protected
by tenure and undiminishable
salary and nurtured by the Judicial
tradition, but is a military law officer.
[Footnote 3] Substantially different
rules of evidence and procedure
apply in military trials. [Footnote
4] Apart from those differences,
the suggestion of the possibility of influence
on the actions of the court
martial by the officer who convenes
it, selects its members and the counsel
on both sides, and who usually
has direct command authority over
its members is a pervasive one in military
law, despite strenuous efforts to
eliminate the danger. [Footnote 5]
Page 395 U. S. 265
A court martial is not yet an independent
instrument of justice, but
remains to a significant degree a specialized
part of the overall mechanism
by which military discipline is
preserved. [Footnote 6]
That a system of specialized military
courts, proceeding by practices
different from those obtaining in the
regular courts and in general less favorable
to defendants, is necessary
to an effective national defense establishment
few would deny. But
the justification for such a system
rests on the special needs of the military,
and history teaches that expansion
of military discipline beyond
its proper domain carries with it a
threat to liberty. This Court, mindful
of the genuine need for special
military courts, has recognized their
propriety in their appropriate sphere,
e.g., Burns v. Wilson, 346 U. S. 137,
but, in examining the reach of their
jurisdiction, it has recognized that
635
“There are dangers lurking in
military trials which were sought to
be avoided by the Bill of Rights
and Article III of our Constitution.
Free countries of the world have tried
to restrict military tribunals to the
narrowest jurisdiction deemed absolutely
essential to maintaining discipline
among troops in active service.
. . .”
“Determining the scope of the
constitutional power of Congress
to authorize trial by court martial
presents another instance calling for
limitation to ’the least possible power
adequate to the end proposed.”
Toth v. Quarles, 350 U. S. 11,
350 U. S. 22-23.
While the Court of Military Appeals
takes cognizance of some constitutional
rights of the accused who
are court martialed, courts martial
as an institution are singularly inept
in dealing with the nice subtleties of
constitutional law. Article 134, already
quoted, punishes
Page 395 U. S. 266
as a crime “all disorders and neglects
to the prejudice of good order
and discipline in the armed forces.”
Does this satisfy the standards of
vagueness as developed by the civil
courts? It is not enough to say that
a court martial may be reversed on
appeal. One of the benefits of a civilian
trial is that the trap of Article
134 may be avoided by a declaratory
judgment proceeding or otherwise.
See Dombrowski v. Pfister,
380 U. S. 479. A civilian trial, in
other words, is held in an atmosphere
conducive to the protection of indi-

636 O’Callahan v. Parker, 395 U.S. 258, 265 (1969)
vidual rights, while a military trial is
marked by the age-old manifest destiny
of retributive justice. [Footnote
7]
As recently stated:
“None of the travesties of justice
perpetrated under the UCMJ is really
very surprising, for military law
has always been, and continues to be,
primarily an instrument of discipline,
not justice.”
Glasser, Justice and Captain
Levy, 12 Columbia Forum 46, 49
(1969).
The mere fact that petitioner
was, at the time of his offense and
of his court martial, on active duty
in the Armed Forces does not automatically
dispose of this case under
our prior decisions.
Page 395 U. S. 267
We have held in a series of decisions
that court martial jurisdiction
cannot be extended to reach any
person not a member of the Armed
Forces at the times of both the offense
and the trial. Thus, discharged
soldiers cannot be court martialed for
offenses committed while in service.
Toth v. Quarles, 350 U. S. 11. Similarly,
neither civilian employees of
the Armed Forces overseas, McElroy
v. Guagliardo, 361 U. S. 281; Grisham
v. Hagan, 361 U. S. 278; nor
civilian dependents of military personnel
accompanying them overseas,
Kinsella v. Singleton, 361 U. S. 234;
Reid v. Covert, 354 U. S. 1, may be
tried by court martial.
These cases decide that courts
martial have no jurisdiction to try
those who are not members of the
Armed Forces, no matter how intimate
the connection between their
offense and the concerns of military
discipline. From these cases, the
Government invites us to draw the
conclusion that, once it is established
that the accused is a member of the
Armed Forces, lack of relationship
between the offense and identifiable
military interests is irrelevant to the
jurisdiction of a court martial.
The fact that courts martial
have no jurisdiction over nonsoldiers,
whatever their offense, does not necessarily
imply that they have unlimited
jurisdiction over soldiers, regardless
of the nature of the offenses
charged. Nor do the cases of this
Court suggest any such interpretation.
The Government emphasizes
that these decisions – especially Kinsella
v. Singleton – establish that liability
to trial by court martial is a
question of “status” –
“whether the accused in the court
martial proceeding is a person who
can be regarded as falling within the
term ’land and naval Forces.”’
361 U.S. at 361 U. S. 241. But
that is merely the beginning of the
inquiry, not its end. “Status” is necessary
for jurisdiction; but it does not
follow that ascertainment of “status”
completes the inquiry, regardless of
the nature, time, and place of the offense.
Both in England prior to the
American Revolution and in our own
national history, military trial of soldiers
committing civilian offenses has
been viewed with suspicion. [Footnote
8] Abuses of the court martial

power were an important grievance
of the parliamentary forces in the
English constitutional crises of the
17th century. The resolution of that
conflict came with the acceptance
by William and Mary of the Bill
of Rights in 1689, which established
that, in the future, Parliament, not
the Crown, would have the power to
define the jurisdiction of courts martial.
1 W. & M., Sess. 2, c. 2. The
17th century conflict over the proper
role of courts martial in the enforcement
of the domestic criminal law
was not, however, merely a dispute
over what organ of government had
jurisdiction. It also involved substantive
disapproval of the general use of
military courts for trial of ordinary
crimes. [Footnote 9]
Parliament, possessed at last of
final power in the matter, was quick
to authorize, subject to annual renewal,
maintenance of a standing
army and to give authority for trial
by court martial of certain crimes
closely related to military discipline.
But Parliament’s new power over
courts martial was exercised only
very sparingly to ordain military jurisdiction
over acts which were also
offenses at common law. The first of
the annual mutiny acts, 1 W. & M.,
c. 5, set the tone. It established the
general rule that
“no Man may be forejudged of
Life or Limbe, or subjected to any
kinde of punishment by Martiall Law
or in any other manner than by the
Judgement of his Peeres and according
to the knowne and Established
Laws of this Realme.”
And it proceeded to grant courts
637
martial jurisdiction only over mutiny,
sedition, and desertion. In all other
respects, military personnel were to
be subject to the “Ordinary Processe
of Law.”
The jurisdiction of British courts
martial over military offenses which
were also common law felonies was
from time to time extended, [Footnote
10] but, with the exception
of one year, [Footnote 11] there
was never any general military jurisdiction
to try soldiers for ordinary
crimes committed in the British Isles.
It was, therefore, the rule in Britain
at the time of the American Revolution
that a soldier could not be
tried by court martial for a civilian
offense committed in Britain; instead
military officers were required to use
their energies and office to insure
that the accused soldier would be
tried before a civil court. [Footnote
12] Evasion and erosion of the principle
that crimes committed by soldiers
should be tried according to regular
judicial procedure in civil, not military,
courts, if any were available,
were among the grievances protested
by the American Colonists. [Footnote
13]
Early American practice followed
the British model. [Footnote 14] The
Continental Congress, in enacting articles
of war In 1776, emphasized the
importance of military authority cooperating
to insure that soldiers who
committed crimes were brought to
justice. But it is clear from the context
of the provision it enacted that it
expected the trials would be in civil
courts. [Footnote 15] The “general
article,” which punished

638 O’Callahan v. Parker, 395 U.S. 258, 265 (1969)
“[all] crimes not capital, and all
disorders and neglects, which officers
and soldiers may be guilty of, to the
prejudice of good order and military
discipline, though not mentioned in
the foregoing articles of war,”
was interpreted to embrace only
crimes the commission of which had
some direct impact on military discipline.
Winthrop *1123. While
practice was not altogether consistent,
during the 19th century, court
martial convictions for ordinary civil
crimes were from time to time set
aside by the reviewing authority on
the ground that the charges recited
only a violation of the general criminal
law, and failed to state a military
offense. Id. *1124, nn. 82, 88. [Footnote
16]
During the Civil War, Congress
provided for military trial of certain
civil offenses [Footnote 17] without
regard to their effect on order and
discipline, but the act applied only
“in time of war, insurrection, or rebellion.”
Act of Mar. 3, 1863, c.
75, 30, 12 Stat. 736; Rev.Stat.
1342, Art. 58 (1874). In 1916, on
the eve of World War I, the Articles
of War were revised, 39 Stat. 650,
to provide for military trial, even in
peacetime, of certain specific civilian
crimes committed by persons “subject
to military law” and the general
article, Art. 96, was modified
to provide for military trial of
“all crimes or offenses not capital.”
In 1950, the Uniform Code of Military
Justice extended military jurisdiction
to capital crimes as well. We
have concluded that the crime, to
be under military jurisdiction, must
be service-connected, lest “cases arising
in the land or naval forces, or
in the Militia, when in actual service
in time of War or public danger,”
[Footnote 18] as used in the
Fifth Amendment, be expanded to
deprive every member of the armed
services of the benefits of an indictment
by a grand jury and a trial
by a jury of his peers. The power
of Congress to make “Rules for the
Government and Regulation of the
land and naval Forces,” Art. I, 8,
cl. 14, need not be sparingly read in
order to preserve those two important
constitutional guarantees. For
it is assumed that an express grant
of general power to Congress is to
be exercised in harmony with express
guarantees of the Bill of Rights. We
were advised on oral argument that
Art. 134 is construed by the military
to give it power to try a member
of the armed services for income tax
evasion. This article has been called
“a catch-all” that “incorporates almost
every Federal penal statute into
the Uniform Code.” R. Everett, Military
Justice in the Armed Forces of
the United States 68-69 (1956). The
catalogue of cases put within reach
of the military is indeed long, and
we see no way of saving to servicemen
and servicewomen in any case
the benefits of indictment and of trial
by jury if we conclude that this petitioner
was properly tried by court
martial.
In the present case, petitioner
was properly absent from his military
base when he committed the crimes
with which he is charged. There
was no connection – not even the re-

motest one – between his military duties
and the crimes in question. The
crimes were not committed on a military
post or enclave; nor was the
person whom he attacked performing
any duties relating to the military.
Moreover, Hawaii, the situs of
the crime, is not an armed camp under
military control, as are some of
our far-flung outposts.
Finally, we deal with peacetime
offenses, not with authority stemming
from the war power. Civil
courts were open. The offenses were
committed within our territorial limits,
not in the occupied zone of a foreign
country. The offenses did not
involve any question of the flouting
of military authority, the security of
a military post or the integrity of military
property. [Footnote 19]
We have accordingly decided
that, since petitioner’s crimes were
not service-connected, he could not
be tried by court martial, but rather
was entitled to trial by the civilian
courts.
Reversed.
[Footnote 1]
Article 80 of the Uniform Code
of Military Justice (10 U.S.C. 880)
provides in part:
“(a) An act, done with specific
intent to commit an offense under
this chapter, amounting to more than
mere preparation and tending, even
though failing, to effect its commission,
is an attempt to commit that
offense.”
“(b) Any person subject to this
chapter who attempts to commit any
offense punishable by this chapter
639
shall be punished as a court martial
may direct, unless otherwise specifically
prescribed.”
Article 130 (10 U.S.C. 930) provides:
“Any person subject to this chapter
who unlawfully enters the building
or structure of another with intent
to commit a criminal offense
therein is guilty of housebreaking and
shall be punished as a court martial
may direct.”
Article 134 (10 U.S.C. 934) provides:
“Though not specifically mentioned
in this chapter, all disorders
and neglects to the prejudice
of good order and discipline in the
armed forces, all conduct of a nature
to bring discredit upon the armed
forces, and crimes and offenses not
capital, of which persons subject to
this chapter may be guilty, shall be
taken cognizance of by a general, special,
or summary court martial, according
to the nature and degree of
the offense, and shall be punished at
the discretion of that court.”
[Footnote 2]
Under Art. 25(c) of the Uniform
Code of Military Justice, 10
U.S.C. 825(c), at least. one-third
of the members of the court martial
trying an enlisted man are required
to be enlisted men if the accused
requests that enlisted personnel be
included in the court martial. In
practice, usually only senior enlisted
personnel, i.e., noncommissioned officers,
are selected. See United States
v. Crawford, 15 U.S.C.M.A. 31, 35
C.M.R. 3, motion for leave to file pe-

640 O’Callahan v. Parker, 395 U.S. 258, 265 (1969)
tition for certiorari denied, 380 U.S.
970. See generally Schiesser, Trial by
Peers: Enlisted Members on Courts
Martial, 15 Catholic U.L.Rev. 171
(1966).
[Footnote 3]
At the time petitioner was tried,
a general court martial was presided
over by a “law officer,” who was required
to be a member of the bar
and certified by the Judge Advocate
General for duty as a law officer.
U.C.M.J. Art. 26(a). The “law officer”
could be a direct subordinate of
the convening authority. Manual for
Courts Martial, United States, 1951,
4g(1). The Military Justice Act of
1968, 82 Stat. 1335, establishes a
system of “military judges” intended
to insure that, where possible, the
presiding officer of a court martial
will be a professional military judge,
not directly subordinate to the convening
authority.
[Footnote 4]
For example, in a court martial,
the access of the defense to compulsory
process for obtaining evidence
and witnesses is, to a significant
extent, dependent on the approval
of the prosecution. United
States v. Harvey, 8 U.S.C.M.A. 538,
25 C.M.R. 42, approving Manual for
Courts Martial, United States, 1951,
115a. See Melnick, The Defendant’s
Right to Obtain Evidence: An Examination
of the Military Viewpoint,
29 Mil.L.Rev. 1 (1965).
[Footnote 5]
See, e.g., the cases listed in Hearings
on Constitutional Rights of Military
Personnel before the Subcom-
mittee on Constitutional Rights of
the Senate Committee on the Judiciary
pursuant to S.Res. No. 260,
87th Cong., 2d Sess., 780-781 (1962),
in each of which the Court of Military
Appeals reversed court martial
convictions on the ground of excessive
command influence.
[Footnote 6]
See Reid v. Covert, 354 U. S. 1,
354 U. S. 36.
[Footnote 7]
For sobering accounts of the impact
of so-called military justice on
civil rights of members of the Armed
Services, see Hearings on Constitutional
Rights of Military Personnel
before the Subcommittee on Constitutional
Rights of the Senate Committee
on the Judiciary pursuant to
S.Res. No. 260, 87th Cong., 2d Sess.,
Feb. 20 and 21, March 1, 2, 6, 9,
and 12, 1962; Joint Hearings before
the Subcommittee on Constitutional
Rights of the Senate Committee on
the Judiciary and a Special Subcommittee
of the Senate Armed Services
Committee, 89th Cong., 2d Sess., on
S. 745 et al., Pt. 1, Jan. 18, 19,
25, and 26, March 1, 2, and 3, 1966,
and Pt. 2. For a newly enacted Military
Justice Act, see 82 Stat. 1335.
And see Summary Report of Hearings
on Constitutional Rights of Military
Personnel, by the Subcommittee
on Constitutional Rights of the Senate
Committee on the Judiciary, pursuant
to S.Res. No. 58, 88th Cong.,
1st Sess. (1963) (Comm.Print).
[Footnote 8]
The record of historical concern
over the scope of court martial ju-

isdiction is extensively reviewed in
MR. JUSTICE BLACK’s opinion for
a plurality of the Court in Reid v.
Covert, 354 U. S. 1, 354 U. S. 23-
30. See also Duke & Vogel, The Constitution
and the Standing Army:
Another Problem of Court Martial
Jurisdiction, 13 Vand.L.Rev. 435,
441-449 (1960); F. Wiener, Civilians
Under Military Justice (1967) (hereinafter
cited as Wiener).
[Footnote 9]
See Reid v. Covert, 354 U. S. 1,
354 U. S. 23-26.
[Footnote 10]
See Wiener c. 1.
[Footnote 11]
The Mutiny Act of 1720, 7 Geo.
1, c. 6, provided that a soldier could
be court martialed for
“any Capital Crime, or . . . any
Violence or Offence against the Person,
Estate, or Property of any of the
Subjects of this Kingdom, which is
punishable by the known Laws of the
Land”
unless the civil authorities,
within eight days of the offense, demanded
that the accused soldier be
turned over to them for trial. In
November, 1720, the law officers of
the Army relied on this new provision
of the Mutiny Act to give an opinion
that it was proper to try a soldier
in Scotland – where ordinary civil
courts were functioning – by court
martial for an offense which would
have been murder if prosecuted in
the civil courts. See Wiener 245-
246. The very next year – perhaps in
response to that ruling, Wiener 14 –
641
the provision was eliminated, and did
not reappear. The 1721 Act and its
successors provided for military trial
of common law crimes only where
ordinary civil courts were unavailable.
See Prichard, The Army Act
and Murder Abroad, 1954 Camb.L.J.
232; Wiener 14, 24-2.
[Footnote 12]
Failure to produce a soldier for
civil trial was a military offense by
the officer concerned. E.g., British
Articles of War of 1765, 11, Art. 1,
reprinted in W. Winthrop, Military
Law and Precedents *1448, *1456
(2d ed. 1896, 1920 reprint) (hereinafter
cited as Winthrop).
[Footnote 13]
See Reid v. Covert, 354 U. S. 1,
354 U. S. 27-28 and n. 49.
[Footnote 14]
In its brief, the Government lists
a large number of courts martial in
the very early days of the Nation
which it claims indicate that military
trial for civil offenses was common
in that period. The facts of
the cases, as reflected in the brief
summaries which are available to us,
suggest no such conclusion. In almost
every case summarized, it appears
that some special military interest
existed. Many are peculiarly
military crimes – desertions, assaults
on and thefts from other soldiers, and
stealing government property. While
those acts might also be felonies,
by the time of the Revolutionary
War, offenses such as these long had
been defined as distinctively military
crimes in the Mutiny Acts. Many of
the remainder are identifiably pros-

642 O’Callahan v. Parker, 395 U.S. 258, 265 (1969)
ecutions for abusing military position
by plundering the civil population
or abusing its women while on
duty. Many of the other cases in
which the offense is stealing or assault
on an individual were perhaps
of this sort also, especially where the
victim is referred to as “inhabitant.”
Most of the rest simply recite the offender
and the offense and give no basis
for judging the relationship of the
offense to military discipline. Those
few which do appear to involve civilian
crimes in clearly civilian settings
appear also to have been committed
by officers. In the 18th century,
at least, the “honor” of an officer
was thought to give a specific military
connection to a crime otherwise
without military significance. Moreover,
all those court martial held between
1773 and 1783 were for the
trial of acts committed in wartime
and, given the pattern of fighting in
those days, in the immediate theater
of operations.
[Footnote 15]
1776 Articles of War, 10, Art. 1,
reprinted in Winthrop *1494.
[Footnote 16]
Cf. Ex parte Mason, 105 U. S.
696, 105 U. S. 698, in which the
Court, sustaining a court martial
conviction, under the general article,
of a military guard who killed a prisoner,
said,
“[s]hooting with intent to kill is
a civil crime, but shooting by a soldier
of the army standing guard over
a prison, with intent to kill a prisoner
confined therein, is not only a
crime against society, but an atro-
cious breach of military discipline.”
[Footnote 17]
Larceny, robbery, burglary, arson,
mayhem, manslaughter, murder,
assault and battery with intent to
kill, wounding by shooting or stabbing
with an intent to commit murder,
rape, or assault and battery with
an intent to commit rape. Rev.Stat.
1342, Art. 58 (1874).
[Footnote 18]
It has been suggested, at various
times, that the phrase “when in actual
service in time of War or public
danger” should be read to require
a grand jury indictment in all cases
“arising in the land or naval forces, or
in the Militia,” except when the defendant
is in “service in time of War
or public danger.” It was decided
at a very early date, however, that
the above clause modifies only “Militia.”
Thus, the generally accepted
rule is that indictment by grand jury
is never necessary “in cases arising
in the land or naval forces,” but is
necessary for members of the militia,
except when they have been “called
into the actual Service of the United
States” (Art. II, 2, U.S.Const.) “to
execute the Laws of the Union, suppress
Insurrections and repel Invasions.”
Art. I, 8, U.S.Const.
“The limitation as to actual service
in time of war or public danger’
relates only to the militia.” Ex parte
Mason, 105 U. S. 696, 105 U. S. 701.
See also Smith v. Whitney, 116 U. S.
167, 116 U. S. 186; Kurtz v. Moffitt,
115 U. S. 487, 115 U. S. 500; Dynes
v. Hoover, 20 How. 65.
Johnson. v. Sayre, 158 U. S. 109,

was a case in which a Navy paymaster
sought habeas corpus from his
court martial conviction for embezzlement
in time of peace by arguing
that he was entitled to indictment by
grand jury:
“The decision below is based
upon the construction that the words
’when in actual service in time of war
or public danger’ refer not merely to
the last antecedent, ’or in the militia,’
but also to the previous clause,
’in the land or naval forces.’ That
construction is grammatically possible.
But it is opposed to the evident
meaning of the provision, taken by itself,
and still more so when it is considered
together with the other provisions
of the Constitution.”
Id. at 158 U. S. 114. And
see Thompson v. Willingham, 217
F.Supp. 901 (D.C.M.D.Pa.), aff’d,
318 F.2d 657 (C.A.3d Cir.).
[Footnote 19]
Winthrop, in commenting on the
phrase “to the prejudice of good order
and military discipline” in a predecessor
article to Article 134 said:
“A crime, therefore, to be cognizable
by a court martial under this
Article, must have been committed
under such circumstances as to have
directly offended against the government
and discipline of the military
state. Thus, such crimes as theft
from or robbery of an officer, soldier,
post trader, or camp-follower;
forgery of the name of an officer,
and manslaughter, assault with intent
to kill, mayhem, or battery,
committed upon a military person;
inasmuch as they directly affect mil-
643
itary relations and prejudice military
discipline, may properly be –
as they frequently have been – the
subject of charges under the present
Article. On the other hand, where
such crimes are committed upon or
against civilians, and not at or near
a military camp or post or in breach
or violation of a military duty or order,
they are not in general to be regarded
as within the description of
the Article, but are to be treated as
civil, rather than military, offenses.”
Pp. *1124-*1125.
MR. JUSTICE HARLAN, whom
MR. JUSTICE STEWART and MR.
JUSTICE WHITE join, dissenting.
I consider that the terms of the
Constitution and the precedents in
this Court point clearly to sustaining
court martial jurisdiction in this
instance. The Court’s largely onesided
discussion of the competing individual
and governmental interests
at stake, and its reliance upon what
are, at best, wholly inconclusive historical
data, fall far short of supporting
the contrary conclusion which the
majority has reached. In sum, I think
that the Court has grasped for itself
the making of a determination which
the Constitution has placed in the
hands of the Congress, and that, in
so doing, the Court has thrown the
law in this realm into a demoralizing
state of uncertainty. I must dissent.
My starting point is the language
of Art. I, 8, cl. 14, of the Constitution,
which empowers the Congress
“[t]o make Rules for the Government
and Regulation of the land and naval
Forces,” and the Fifth Amendment’s

644 O’Callahan v. Parker, 395 U.S. 258, 265 (1969)
correlative exception for “cases arising
in the land or naval forces.”
Writing for a plurality of the
Court in Reid v. Covert, 354 U. S.
1 (1957), MR. JUSTICE BLACK explained
that, if the
“language of Clause 14 is given
its natural meaning . . . , [t]he term
’land and naval Forces’ refers to persons
who are members of the armed
services . . . ,”
id. at 354 U. S. 19-20, and that,
accordingly, the Fifth Amendment’s
exception encompasses persons “in’
the armed services.” Id. at 354 U.
S. 22-23. In Kinsella v. Singleton,
361 U. S. 234 (1960), again looking
to the constitutional language, the
Court noted that “military jurisdiction
has always been based on the
‘status’ of the accused, rather than
on the nature of the offense,” id.
at 361 U. S. 243; that is, whether
the accused “is a person who can be
regarded as falling within the term
‘land and naval Forces.”’ Id. at 361
U. S. 241.
In these cases and many others,
Ex parte Milligan, 4 Wall. 2, 71 U.
S. 123 (1866); Coleman v. Tennessee,
97 U. S. 509 (1879); Smith v. Whitney,
116 U. S. 167, 116 U. S. 184-185
(1886); Johnson v. Sayre, 158 U. S.
109, 158 U. S. 114 (1895); Grafton v.
United States, 206 U. S. 333, 206 U.
S. 348 (1907), this Court has consistently
asserted that military “status”
is a necessary and sufficient condition
for the exercise of court martial
jurisdiction. The Court has never
previously questioned what the language
of Clause 14 would seem to
make plain – that, given the requisite
military status, it is for Congress,
and not the Judiciary, to determine
the appropriate subject matter jurisdiction
of courts martial. See Coleman
v. Tennessee, supra, at 97
U. S. 514. English constitutional
history provides scant support for
the Court’s novel interpretation of
Clause 14, and the pertinent American
history proves, if anything, quite
the contrary.
The English history on which the
majority relies reveals a longstanding
and multifaceted struggle for power
between the military and the Crown,
on the one hand, and Parliament, on
the other, which focused, inter alia,
on the King’s asserted independent
prerogative to try soldiers by court
martial in time of peace. See generally
J. Tanner, English Constitutional
Conflicts of the Seventeenth
Century (1961). The martial law of
the time was, moreover, arbitrary,
and alien to established legal principles.
See 1 W. Blackstone’s Commentaries
413; M. Hale, History and
Analysis of the Common Law in England
42 (6th ed. 1820). Thus, when,
with the Glorious Revolution of 1688,
Parliament gained exclusive authority
to create peacetime court martial
jurisdiction, it exercised that authority
sparingly: the early Mutiny Acts
permitted trial by court martial only
for the crimes of mutiny, sedition,
and desertion. E. g., Mutiny Act of
1689, 1 W. & M., Sess. 2, c. 4.
Parliament subsequently expanded
the military’s peacetime jurisdiction
both abroad and at home.
See Mutiny Act of 1712, 12 Anne,

c. 13; Mutiny Act of 1803, 43 Geo.
3, c. 20. And, significantly, 46 of
the Mutiny Act of 1720, 7 Geo. 1, c.
6, authorized trial by court martial
for offenses of a nonmilitary nature if
the injured civilian made no request
that the accused be tried in the civil
courts. See F. Wiener, Civilians Under
Military Justice 13-14, 245-246
(1967). [Footnote 2/1]
The burden of English history
was not lost on the Framers of
our Constitution, who doubtless
feared the Executive’s assertion of
an independent military authority
unchecked by the people acting
through the Legislature. Article 9,
4, of the Articles of Confederation –
from which Art. I, 8, cl. 14, of
the Constitution was taken [Footnote
2/2] – was responsive to this apprehension:
“The United States in Congress
assembled shall . . . have the sole
and exclusive right and power of . .
. making rules for the government
and regulation of the . . . land and
naval forces, and directing their operations.”
(Emphasis added.) But nothing
in the debates over our Constitution
indicates that the Congress was forever
to be limited to the precise scope
of court martial jurisdiction existing
in 17th century England. To the
contrary, Alexander Hamilton stated
that Congress’ power to prescribe
rules for the government of the armed
forces
“ought to exist without limitation,
because it is impossible to foresee
or define the extent and variety
645
of national exigencies, or the corresponding
extent & variety of the
means which may be necessary to
satisfy them.”
The Federalist, No. 23. (Emphasis
omitted.) American exercise
of court martial jurisdiction prior to,
and contemporaneous with, adoption
of the Constitution lends no support
to the Court’s position. Military
records between the end of the
War of Independence and the beginning
of the War of 1812 show frequent
instances of trials by court
martial, east of the frontier, for offenses
against civilians and the civil
laws, such as theft, assault, and
killing livestock. [Footnote 2/3] Military
authority to try soldiers for
such offenses derived initially from
the “general article” of war, first enacted
by the Continental Congress
in 1775, [Footnote 2/4] and incorporated
today in Art. 134, 10 U.S.C.
934. W. Winthrop’s Military Law
and Precedents (2d ed. 1896), the
leading 19th century treatise on military
law, recognized that the general
article encompassed crimes “committed
upon or against civilians . . . at
or near a military camp or post” id.
at 724 (1920 reprint) (second emphasis
added), and noted that even this
limiting principle was not strictly observed.
Id. at 725, 730-732. And in
Grafton v. United States, 206 U. S.
333, 206 U. S. 348 (1907), the Court
held, with respect to the general article,
that:
“The crimes referred to in that
article manifestly embrace those not
capital, committed by officers or soldiers
of the Army in violation of pub-

646 O’Callahan v. Parker, 395 U.S. 258, 265 (1969)
lic law as enforced by the civil power.
No crimes committed by officers or
soldiers of the Army are excepted by
the . . . article from the jurisdiction
thus conferred upon courts martial
except those that are capital in
their nature. . . . [T]he jurisdiction
of general courts martial [is]
. . . concurrent with that of the
civil courts. [Footnote 2/5] ” Even
if the practice of early American
courts martial had been otherwise,
this would hardly lead to the conclusion
that Congress lacked power
to authorize military trials under the
present circumstances. It cannot be
seriously argued as a general matter
that the constitutional limits of
congressional power are coterminous
with the extent of its exercise in the
late 18th and early 19th centuries.
[Footnote 2/6] And however restrictively
the power to define court martial
jurisdiction may be construed,
it would be patently wrong so to
limit that power. The disciplinary
requirements of today’s armed force
of over 3,000,000 men [Footnote 2/7]
are manifestly different from those of
the 718-man army [Footnote 2/8] in
existence in 1789. Cf. The Federalist,
No. 23, quoted, supra, at 395 U.
S. 277. By the same token, given an
otherwise valid exercise of the Article
I power, I can perceive no basis for
judicial curtailment of court martial
jurisdiction as Congress has enacted
it.
In the light of the language and
history of Art. 1; 8, cl. 14, of the
Constitution, and this Court’s hitherto
consistent interpretation of this
provision, I do not believe that the
resolution of the controversy before
us calls for any balancing of interests.
But if one does engage in a balancing
process, one cannot fairly hope
to come up with a meaningful answer
unless the interests on both sides are
fully explored. The Court does not
do this. Rather, it chooses to ignore
strong and legitimate governmental
interests which support the
exercise of court martial jurisdiction
even over “nonmilitary” crimes.
The United States has a vital interest
in creating and maintaining
an armed force of honest, upright,
and well disciplined persons, and in
preserving the reputation, morale,
and integrity of the military services.
Furthermore, because its personnel
must, perforce, live and work in close
proximity to one another, the military
has an obligation to protect each
of its members from the misconduct
of fellow servicemen. [Footnote 2/9]
The commission of offenses against
the civil order manifests qualities of
attitude and character equally destructive
of military order and safety.
The soldier who acts the part of Mr.
Hyde while on leave is, at best, a
precarious Dr. Jekyll when back
on duty. Thus, as General George
Washington recognized:
“All improper treatment of an inhabitant
by an officer or soldier being
destructive of good order and discipline
as well as subversive of the
rights of society is as much a breach
of military as civil law, and as punishable
by the one a the other.”
14 Writings of George Washington
140-141 (Bicent. ed.). A soldier’s
misconduct directed against

civilians, moreover, brings discredit
upon the service of which he is a
member:
“Under every system of military
law for the government of either land
or naval forces, the jurisdiction of
courts martial extends to the trial
and punishment of acts of military or
naval officers which tend to bring disgrace
and reproach upon the service
of which they are members, whether
those acts are done in the performance
of military duties, or in a civil
position. . . .”
Smith v. Whitney, 116 U. S. 167,
116 U. S. 183-184 (1886). The Government,
thus, has a proper concern
in keeping its own house in order
by deterring members of the armed
forces from engaging in criminal misconduct
on or off the base, and by rehabilitating
offenders to return them
to useful military service. [Footnote
2/10]
The exercise of military jurisdiction
is also responsive to other practical
needs of the armed forces. A
soldier detained by the civil authorities
pending trial, or subsequently
imprisoned, is, to that extent, rendered
useless to the service. Even
if he is released on bail or recognizance,
or ultimately placed on probation,
the civil authorities may require
him to remain within the jurisdiction,thus
making him unavailable
for transfer with the rest of his unit
or as the service otherwise requires.
In contrast, a person awaiting
trial by court martial may simply be
restricted to limits, and may “participate
in all military duties and activ-
647
ities of his organization while under
such restriction.” Manual for Courts
Martial, United States (1969), 20b.
The trial need not be held in the jurisdiction
where the offense was committed.
Id., 8. See, e.g., United
States v. Voorhees, 4 U.S.C.M.A.
509, 515, 16 C.M.R. 83, 89 (1954);
cf. United States v. Gravitt, 5
U.S.C.M.A. 249, 256, 17 C.M.R. 249,
256 (1954). And punishments – such
as forfeiture of pay, restriction to limits,
and hard labor without confinement
– may be imposed that do not
keep the convicted serviceman from
performing his military duties. See
Manual for Courts Martial, supra,
126g, h, k.
The Court does not explain
the scope of the “service-connected”
crimes as to which court martial jurisdiction
is appropriate, but it appears
that jurisdiction may extend to
“nonmilitary” offenses in appropriate
circumstances. Thus, the Court intimates
that it is relevant to the jurisdictional
issue in this case that petitioner
was wearing civilian clothes,
rather than a uniform, when he committed
the crimes. Ante at 395 U. S.
259. And it also implies that plundering,
abusing, and stealing from
civilians may sometimes constitute
a punishable abuse of military position,
ante at 395 U. S. 270, n. 14, and
that officers may be court martialed
for purely civilian crimes, because,
“[i]n the 18th century . . . ,
the ’honor’ of an officer was thought
to give a specific military connection
to a crime otherwise without military
significance. [Footnote 2/11]”
Ibid. But if these are illustrative

648 O’Callahan v. Parker, 395 U.S. 258, 265 (1969)
cases, the Court suggests no general
standard for determining when the
exercise of court martial jurisdiction
is permissible.
Whatever role an ad hoc judicial
approach may have in some areas of
the law, the Congress and the military
are at least entitled to know
with some certainty the allowable
scope of court martial jurisdiction.
Otherwise, the infinite permutations
of possibly relevant factors are bound
to create confusion and proliferate
litigation over the jurisdictional issue
in each instance. Absolutely nothing
in the language, history, or logic of
the Constitution justifies this uneasy
state of affairs which the Court has
today created.
I would affirm the judgment of
the Court of Appeals.
[Footnote 2/1]
This proviso was dropped in the
Mutiny Act of 1721, 8 Geo. 1, C.
3, and court martial jurisdiction over
such offenses was thereafter limited
by the articles of war to, inter alia,
“Place[s] beyond the Seas . . . where
there is no form of Our Civil Judicature
in Force.” F. Wiener, Civilians
Under Military Justice 14 (1967).
[Footnote 2/2]
See 2 M. Farrand, The Records
of the Federal Convention of 1787,
p. 330 (1911); 5 J. Elliot, Debates
in the Several State Conventions on
the Adoption of the Federal Constitution
as Recommended by the General
Convention at Philadelphia in
1787, p. 443 (1836).
[Footnote 2/3]
For example: the general orders
of George Washington report the
trial of soldiers for “killing a Cow .
. stealing Fowls . . . . and stealing
eleven Geese. . . .” 26 Writings of
George Washington 73 (Bicent. ed.)
(H.Q., Newburgh, January 28, 1783),
and “for stealing a number of Shirts
and blanketts out of the public store
at Newburgh. . . .” Id. at 322
(H.Q., Newburgh, April 15, 1783).
The Orderly Books of the Corps of
Artillerists and Engineers report the
court martial of Sergeant Harris for
“beating a Mr. Williams, an inhabitant
living near this garrison,” Book
1, pp. 157-158 (West Point, October
5, 1795), and of Private Kelly
for “abusing and using violence on
Mrs. Cronkhyte, a citizen of the
United States.” Book 3, pp. 446
(West Point, July 5, 1796). Numerous
other instances of military punishment
for nonmilitary crimes during
the period 1775-1815 are summarized
in the appendix to the Brief for
the United States 35-52.
[Footnote 2/4]
“All crimes, not capital, and all
disorders and neglects, which officers
and soldiers may be guilty of, to the
prejudice of good order and military
discipline, though not mentioned in
the articles of war, are to be taken
cognizance of by a general or regimental
court martial, according to
the nature and degree of the offence,
and be punished at their discretion.”
W. Winthrop, Military Law and
Precedents 957 (2d ed. 1896, 1920
reprint).
[Footnote 2/5]

In 1916, Congress for the first
time explicitly authorized peacetime
court martial jurisdiction for specific
noncapital offenses. Article 93, Articles
of War, 39 Stat. 664. It also revised
the general article, renumbered
Article 96, to read:
“Though not mentioned in these
articles, all disorders and neglects to
the prejudice of good order and military
discipline, all conduct of a nature
to bring discredit upon the military
service, and all crimes or offenses
not capital, of which persons
subject to military law may be guilty,
shall be taken cognizance of by a
general or special or summary court
martial, according to the nature and
degree of the offense, and punished
at the discretion of such court.”
Testifying before the Senate
Subcommittee on Military Affairs,
Brigadier General Crowder, the
Judge Advocate General of the
Army, explained the revision (cf. n.
4, supra):
“You will notice some transposition
of language. The phrase ’to
the prejudice of good order and military
discipline’ is put in in such a
way that it qualifies only ’all disorders
and neglects.’ As the law stands
today, it was often contended that
this phrase qualified also ’all crimes
not capital.’ There was some argument
about whether it would reach
back through that clause, ’all disorders
and neglects,’ to the clause ’all
crimes not capital’ and qualify the
latter clause. . . . [B]ut Justice
Harlan, in the decision in the Grafton
case, seems to have set the matter at
rest, and I am proposing legislation
649
along the lines of Justice Harlan’s decision.”
Hearings before the Senate Subcommittee
on Military Affairs, an
Appendix to S.Rep. No. 130, 64th
Cong., 1st Sess., 25, 91.
The Act of March 3, 1863, 30, 12
Stat. 736, authorized punishment for
specific nonmilitary crimes, including
capital ones, in time of war, insurrection,
or rebellion. Article 92
of the 1916 Articles of War, 39 Stat.
664, made murder and rape punishable
by death, but provided that
“no person shall be tried by court
martial for murder or rape committed
within the geographical limits of
the States of the Union and the District
of Columbia in time of peace.”
This proviso was deleted in the
Uniform Code of Military Justice,
Articles 118, 120, 10 U.S.C. 918,
920, so that, today, there is no jurisdictional
distinction between capital
and noncapital offenses.
[Footnote 2/6]
On such a theory, for example,
Congress could not have permissibly
waited, as it did, until 1875, see Act
of March 3, 1875, 1, 18 Stat. 470,
to confer general federal question jurisdiction
on the district courts; the
present-day exercise of this jurisdiction,
see 28 U.S.C. 1331, would be
unconstitutional.
[Footnote 2/7]
Statistical Abstract of The
United States 257 (1968).
[Footnote 2/8]
R. Weigley, History of the United
States Army 566 (1967).

650 O’Callahan v. Parker, 395 U.S. 258, 265 (1969)
[Footnote 2/9]
Congress may also assume the
responsibility of protecting civilians
from harms perpetrated by members
of the armed forces. For the military
is often responsible for bringing to a
locality thousands of its personnel –
whose numbers may be as great as,
and sometimes exceed, the neighboring
population – thereby imposing on
the local law enforcement agencies a
burden which they may be unable to
carry.
[Footnote 2/10]
Thus, at petitioner’s presentence
hearing, Captain Powell testified
that, “through proper rehabilitation,
O’Callahan can make a good sol-
dier,” Record Transcript 61, and Major
Turner testified:
“He has given superior performance,
as far as I know. . . . He has
gone through school, and the Army
does have a lot of money wrapped up
in this man. . . . I think at this time,
here, that a rehabilitation program is
in order.”
Id. at 64.
[Footnote 2/11]
It is, to say the least, strange
that, as a constitutional matter, the
military is without authority to discipline
an enlisted man for an offense
that is punishable if committed by an
officer.

Index
Central Civil Services (Pension) Rules,
88
Constitution of India, 88
Criminal Misconduct, 1
grant of pension, 88
Investigation by Inspector of Police,
1
Legality of charge, 1
Liberalisation in computation of pension,
88
Major E. G. Barsay, 1
pension for Armed Forces Personnel,
88
Pension is a right, 88
Public Servants charged with others,
1
Sarwan Singh v. The State of Punjab,
[1957], 3
Special Police Establishment, 1