Union of India & Ors. v. Dinesh Prasad
R.M. LODHA, J. 1. This appeal raises the question of the
competence of the commanding officer of the accused, who
signed and issued the charge sheet, to convene and conduct
the summary court-martial against that very accused.
UNION OF INDIA & ORS. v. DINESH PRASAD 447
[R.M. LODHA, J.]
2. The above question arises in this way. The respondent, A
Dinesh Prasad, joined the 11th Assam Rifles as washerman/
rifleman in 1995. For the period between 26.07.1998 and
11.10.2000 (FN), he absented himself from unit unauthorisedly
while in active service. On 03.08.2001, Col. A.S. Sehrawat,
Commandant, under his signature served a charge sheet under B
Section 39(a) of the Army Act, 1950 (for short, 'Army Act') on
the respondent for the absence without leave for 808 days. The
Commandant constituted summary court-martial to try the
respondent for the above charge. The respondent pleaded
guilty to the charge before the summary court-martial. The C
summary court-martial, after taking into consideration the facts
and circumstances of the case, passed an order on 04.08.2001
dismissing the respondent from service. The Reviewing Officer
has confirmed the punishment of dismissal from the service
awarded to the respondent. D
3. The respondent challenged the punishment awarded to
him by the summary court-martial in a writ petition before the
Gauhati High Court. The respondent (petitioner therein)
explained in the writ petition the reason for his absence.
According to him, he lost his mental balance while in service E
and was suffering from mental depression. At the time of
arguments before the Single Judge, it was submitted on his
behalf that the very Commandant of the Battalion, who signed
and issued the charge sheet to him, convened and presided
over the summary court-martial and on conclusion of which the F
punishment of dismissal from service was imposed which
vitiated the court-martial proceedings as he was denied a fair
trial.
4. The learned Single Judge held that while issuing a
charge sheet the Commandant tentatively made up his mind G
that there was some material against the delinquent and
accordingly, after having issued charge sheet, Col. A.S.
Sehrawat, who was Commandant of the Battalion, ought not to
have convened the court-martial and in any event ought not to
A have conducted the proceedings of the court-martial leading to
the punishment of dismissal from the service. The Single Judge
held that in the facts of the case, the proceedings of the
summary court-martial held against the delinquent were vitiated
on account of likelihood of bias. By the judgment and order
B dated 07.09.2006, the Single Judge allowed the writ petition
and set aside the respondent's dismissal from service. It was
observed, however, that it would be open for the concerned
authority to proceed in the matter afresh in accordance with law,
if it so desired.
C 5. Being not satisfied with the judgment and order dated
07.09.2006, the present appellants preferred writ appeal. The
Division Bench of the Gauhati High Court found that under
Section 116 of the Army Act, the summary court-martial
proceedings could be held by the commanding officer of any
D corps, department or detachment of the regular Army and it
need no( necessarily be the commanding officer of the Battalion
in which the accused was serving. The Division Bench thus in
its order of 28.08.2008 was of the view that there was no
justification to interfere with the view taken and the conclusion
E reached by the Single Judge in the impugned judgment. It is
from this order that the present appeal by special leave has
arisen.
6. It is necessary to refer to the relevant statutory provisions
in the Army Act and the Army Rules, 1954 (for short, 'Army
F Rules') for consideration of the question raised before us.
Section 3(v) defines 'commanding officer' as under:
"S.3(v}-"commanding officer'', when used in any provision
of this Act, with reference to any separate portion of the
G regular army or to any department thereof, means the
officer whose duty it is under the regulations of the regular
Army, or in the absence of any such regulations, by the
custom of the service, to discharge with respect to that
portion of the regular Army or that department, as the case
UNION OF INDIA & ORS. v. DINESH PRASAD 449
[R.M. LODHA, J.]
may be, the functions of a commanding officer in regard A
to matters of the description referred to in that provision'.'.
7. Section 4 of the Army Act makes applicable its
provisions to certain forces under the Central Government. In
exercise of the powers conferred by sub-section (1) of Section B
4 of the Army Act, the Central Government has issued SRO 117
dated 28.03.1960 and SRO 318 dated 6.12.1962. SRO 318
has been subsequently amended by SRO 325 dated
31.8.1977. SRO 318 dated 6.12.1962 (as amended by SRO
325 dated 31.8.1977) reads as follows:
"S.R.O. 318 dated 6th December, 1962 (as amended by
S.R.O. No. 325 dated 31st August, 1977). - In exercise of
the powers conferred by sub-section (1) of Section 4 of
the Army Act, 1950 and in supersession of the notification
of the Government of India in the late Affair Department D
No. 93-X dated 25th June 1942, as subsequently
amended, the Central Government hereby -
(i) Applies to every unit of the Assam Rifles, (and to recruits
and personnel or the said Assam Rifles when undergoing E
training in any army training establishments) being a force
raised and maintained in India under authority of the
Central Government, all the provisions of the said Act,
except those specified in Part A of the Schedule annexed
hereto, subject to the modifications set forth in Part B of F
the that (sic) Schedule, when attached to or acting with any
body of the regular army; and
(ii) suspends, while this notification remail'ls in force the
operation of sections 6,7,8 and 9 of the Assam Rifles Act,
1941 (5 of 1941)". G
8. Chapter VI of the Army Act deals with the offences.
Sections 34 to 70 fall under Chapter VI. Section 39, to the
extent it is relevant, reads as under:-
450 SUPREME COURT REPORTS [2012) 11 S.C.R.
A "39. Absence without leave.-Any person subject to this Act
who commits any of the following offences, that is to say,
(a) absents himself without leave; or
(b) to (g) .................. .
shall on conviction by court-martial, be liable to suffer
imprisonment for a term which may extend to three years
or such less punishment as is in this Act mentioned".
9. Section 108 describes the kinds of courts-martial. The
said provision reads as under:
"108. Kinds of courts-martial. - For the purposes of this Act
there shall be four kinds of courts-martial, that is to say, -
(a) general courts-martial;
(b) district courts-martial;
(c) summary general courts-martial; and
(d) summary courts-martial".
10. Section 116 provides that the summary court-martial
may be held by the commanding officer of any corps,
department or detachment of the regular Army, and he shall
F alone constitute the court. As per sub-section (2) of Section
116, the proceedings shall be attended throughout by two other
persons who shall be officers or junior commissioned officers
or one of either, and who shall not as such, be sworn or
affirmed.
11. Section 71 provides for punishments awardable by
courts-martial. One of !he punishments that is awardable by the
courts-martial is dismissal of the delinquent from service.
12. The Army Rules have been framed by the Central
UNION OF INDIA & ORS. v. DINESH PRASAD 451
[R.M. LODHA, J.]
Government in exercise of its powers under Section 191 for the A
purposes of carrying into effect the provisions of the Army Act.
The powers of the commanding officers in relation to
investigation of charges and trial by court-martial are provided
in Chapter V of the Army Rules. Rule 31 provides that the
charge sheet shall be signed by the commanding officer of the 8 accused and shall contain the place and date of such signature.
13. Rule 39 deals with ineligibility and disqualification of
officers for court-martial. It reads as under:
"39 Ineligibility and disqualification of officers for court- C
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 D
district court-martial if he--
(a) is an officer who convened the Court; or
(b) is the prosecutor or a witness for the E
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 F
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 G
(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.
A (3) The provost-marshal or assistant provost-marshal is
disqualified from serving on a general court-martial or
district court-martial."
14. -Rules 106 to 133 of the Army Rules provide for the
proceedings for conduct of summary court-martial. The 8 summary court-martial has to follow the procedure provided in
these Rules. Arraignment of the accused is provided in Rule
111. Rule 115 deals with general plea of 'guilty' or 'not guilty'.
Rule 116 deals with the procedure after plea of 'guilty'. Rule 116
provides as follows:
"116 Procedure after plea of "Guilty":-
(1) Upon the record of the plea of "Guilty", if there are other
charges in the same charge-sheet to which the plea is "Not
Guilty", the trial shall first proceed with respect to the latter
charges, and, after the finding of these charges, shall
proceed with the charges on which a plea of "Guilty" has
been entered; but if they are alternative charges, the Court
may either proceed with respect to all the charges as if
the accused had not pleaded "Guilty" to any charge, or
may, instead of trying him, record a finding upon any one
of the alternative charges to which tie has pleaded "Guilty''
and a finding of "Not Guilty" upon all the other alternative
charges.
(2) After the record of the plea of "Guilty" on a charge (if
the trial does not proceed on any other charges), the Court
shall read the summary of evidence, and annex it to the
proceedings or if there is no such summary, shall take and
record sufficient evidence to enable it to determine the
sentence, and the reviewing officer to know all the
circumstances connected with the offence. The evidence
shall be taken in like manner as is directed by these rules
in case of a plea of "Not Guilty".
(3) After such evidence has been taken, or the summary
UNION OF INDIA & ORS. v. DINESH PRASAD 453
[R.M. LODHA, J.]
of evidence has been read, as the case may be, the A
accused may address the Court in reference to the charge
and in mitigation of punishment and may call witnesses as
to his character.
(4) If from the statement of the accused, or from the 8 summary of evidence, or otherwise, it appears to the Court
that the accused did not understand the effect of his plea
of "Guilty", the court shall alter the record and enter a plea
of "Not Guilty", and proceed with the trial accordingly."
(5) If a plea of "Guilty" is recorded and the trial proceeds C
with respect to other charges in the same charge-sheet,
the proceedings under sub-rules (2) and (3) shall take
place when the findings on the other charges in the same
charge-sheet are recorded.
(6) When the accused states anything in mitigation of
punishment which in the opinion of the Court requires to
be proved, and would, if proved, effect the amount of
punishment, the court may permit the accused to call
witnesses to prove the same.
(7) In any case where the Court is empowered by section
139 to find the accused guilty of an offence other than that
charged, or guilty of committing an offence in
circumstances involving a less degree of punishment, or
where it could, after hearing the evidence, have made a F
special finding of guilty subject to exceptions of variations
in accordance with sub-rule (3) of rule 121, it may, if it is
satisfied of the justice of such course accept and record
a plea of guilty of such other offence, or of the offence as
having been committed in circumstances involving such G
less degree of punishment, or of the offence charged
subject to such exceptions or variations".
15. Rule 123 provides for procedure on conviction and Rule
454 SUPREME COURT REPORTS (2012] 11 S.C.R.
A 124 deals with the sentence. Rule 187(3)(a) provides that every
battalion is 'corps' for the purpose of summary court-martial.
16. It may be immediately stated that by virtue of Section
4 of the Army Act read with S.R.0.318 dated 6.12.1962 (as
8 amended by S.R.O. 325 dated 31.08.1977), the Army Act has
been made applicable to the Assam Rifles. The respondent
was thus subject to the provisions of the Army Act.
17. That the Commandant, Col. A.S. Sehrawat, signed and
issued the charge sheet to the respondent and convened and
C presided over the summary court-martial is not in dispute. It is
also not in dispute that the summary court-martial presided over
by Col. A.S. Sehrawat awarded to the respondent the
. punishment of dismissal from service. Whether the above
procedure has vitiated the court-martial proceedings against
D the respondent is the question. The courts-martial are of four
kinds, (a) general courts-martial; (b) district courts-martial; (c)
summary general courts-martial; and (d) summary courts
martial as per Section 108. Rule 39 of the Army Rules deals
with ineligibility and disqualification of officers for court-martial.
E In terms of this Rule, an officer is disqualified for serving on
general court-martial or district court-martial if he is an officer
who convened the court. A commanding officer of the accused
or of the corps to which the accused belongs is also
disqualified for serving on general court-martial or district court-
F martial. However, no disqualification is attached to the officer
who convened the court or the commanding officer of the
accused or of the corps to which the accused belongs for
serving on the other two kinds of courts-martial, namely,
summary general courts-martial or summary courts-martial.
G There is neither any impediment nor embargo in the Army Act
or the Army Rules for an officer who convened the summary
general courts-martial or summary courts- martial or the
commanding officer of the accused or of the corps to which the
accused belongs to serve on such court. Section 116 of the
H Army Act rather provides that a summary court-martial may be
UNION OF INDIA & ORS. v. DINESH PRASAD 455
[R.M. LODHA, J.]
held by the commanding officer of any corps, department or A
detachment of the regular Army and he shall alone constitute
the court (summary court-martial). If the provision contained in
Section 116 of the Army Act is read with Rules 31 and 39 of
the Army Rules, there remains no manner of doubt that Col. A.S.
Sehrawat, who was commanding officer of the respondent, did B
not suffer from any disability, ineligibility or disqualification to
serve on the summary court-martial to try the respondent
despite the fact that he signed and issued the charge sheet
against the respondent.
18. As a matter of fact, the competence or eligibility of Col. C
A.S. Sehrawat to serve on the summary court-martial for trial
of the respondent was not at all put in issue by the respondent
in the entire writ petition. The petitioner therein set up the
following grounds, namely; (1) the charge against the petitioner
for absenting himself without leave being an offence under D
Section 39(a) of the Army Act has to be proved beyond
reasonable doubt; (2) the petitioner's absence from Unit
Headquarters was not willful and intentional; it was for the
reason beyond his control; and (3) the punishment awarded by
the summary court-marti=il was not rational and commensurate E
with the offence proved; it did not ruaintain the proportion; the
punishment was oppressive and out of tune of the occasion. It
was only in the course of arguments before the learned Single
Judge that a submission was made on behalf of the petitioner
that the very Commandant of the Battalion, who signed and F
issued the charge sheet to him, convened and presided over
the summary court-martial and on conclusion of which the
punishment of dismissal from service was imposed which
vitiated the court-martial proceedings as he was denied a fair
trial. In our view, the learned Single Judge was clearly in error G
in allowing such argument. Firstly, the argument was raised
without any foundation in the writ petition. No plea of actual or
likelihood of bias was raised in the writ petition. There was also
no plea taken in the writ petition that he was denied fair trial in
the course of summary court-martial. Secondly, and more H
456 SUPREME COURT REPORTS [2012) 11 S.C.R.
A importantly, the learned Single Judge overlooked and ignored
the statutory provisions referred to hereinabove. The Division
Bench also failed in considering the matter in right perspective
and in light of the provisions in the Army Act and the Army
Rules.
B 19. Absence without leave is one of the offences under the
Army Act. On conviction by the court-martial of the said offence,
the offender is liable to suffer imprisonment for a term which
may extend to three years. Alternatively, for such offence any
C of the punishments provided in Section 71 may be awarded
by the court-martial. Clause (e) of Section 71 provides
dismissal from the service as one of the punishments
awardable by the court-martial for such an offence. The
respondent was served with the charge sheet which was in
conformity with Rule 31 of the Army Rules and Sections 39 and
D 116 of the Army Act. The respondent admittedly absented
himself from unit line for 808 days. He did not obtain any leave.
He pleaded guilty before the summary court-martial. The
summary court-martial followed the procedure provided under
Rule 116 of the Army Rules and awarded punishment of his
E dismissal from service. Neither constitution of the summary
court-martial nor the procedure followed by that court can be
said to suffer from any illegality. The facts are eloquent
inasmuch as respondent remained absent without leave for
more than two years in the service of about five years. The order
F of dismissal, in the facts and circumstances of the case, by no
stretch of imagination, can be said to be disproportionate or
oppressive or founded on extraneous consideration.
20. The decision of this Court in Vidya Parkash v. Union
G of India and Ors1. squarely applies to the present situation.
Unfortunately, the judgment in Vidya Parkash1 was not brought
to the notice of the Single Judge and the Division Bench. The
facts in Vidya Parkash1 were these: the appellant was posted
as Jawan in Panagarh. He left Panagarh with his wife and
H 1. (1988) 2 sec 459.
UNION OF INDIA & ORS. v. DINESH PRASAD 457
[R.M. LODHA, J.]
children for Kanpur without taking any leave. According to Vidya A
Parkash, he became unwell and he was under treatment of a
doctor. When he reported to Panagarh unit with his fitness
certificate, he was served with a charge sheet wherein it was
ordered by Major P.S. Mahan! that he would be tried by
summary court-martial. The summary court-martial which was B
presided over by Major P.S. Mahan! ordered his dismissal from
service. Vidya Parkash challenged that order in a writ petition
before Delhi High Court. Inter alia, a plea was set up that the
commanding officer Major P .S. Mahan! was not legally
competent to preside over a summary court-martial. The c
Division Bench of the Delhi High Court dismissed the writ
petition. It was held that no objection was taken as to the
competence of Major P.S. Mahan! to act as a Judge in
summary court-martial. It was from the order of the Delhi High
Court that the matter reached this Court. This Court considered D
Sections 108 and 116 of the Army Act, Rule 39(2) of the Army
Rules and held that the summary court martial held by the
commanding officer Major P .S. Mahan! was in accordance with
the provisions of Section 116 of the Army Act. This Court further
observed: E
"13 - The Commanding Officer of the Corps, Department
or Detachment of the Regular Anny 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 F
Commanding Officer of the Corps cannot be questioned
as illegal or incompetent. It is neither a general court
martial nor a district court martial where the appellant's
case was tried and decided. In case of general court
martial or district court martial Rule 39(2) of the Army G
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. Mahan! and there are two
other officers including Capt. K.J. Singh and another officer H
to attend the proceedings. In such circumstances, the
summary court martial having been convened by the
Commanding Officer of the corps according to the
provisions of the Army Act, 1950, the first submission
made on behalf of the appellant fails."
21. The legal position exposited by this Court in Vidya
Parkash1 renders the impugned judgments unsustainable.
22. Learned counsel for the respondent placed heavy
reliance upon the decisions of this Court in Punjab National
C Bank and Ors. v. Kunj Behari Misra2, Maneka Gandhi v. Union
of India & Anr. 3 and Roop Singh Negi v. Punjab National Bank
& Ors. 4, in support of his submission that the order of dismissal
from service by the summary court-martial was in violation of
principles of natural justice. We are afraid none of these
D decisions has any application to the facts of the present case.
There is no violation of principles of natural justice. No illegality
has been committed in convening the summary court-martial
by the commanding officer nor there is any illegality in the
conduct of the summary court-martial. The respondent pleaded
E guilty to the charge before the summary court-martial and the
summary court-martial found him guilty. It was only then that the
order of dismissing the respondent from service was passed.
It is now settled that no reasons are required to be recorded
by the court-martial.
F 23. Civil appeal is allowed. The judgment and order of the
Single Judge dated 7.09.2006 and the order of the Division
Bench dated 28.08.2008 are set aside. No order as to costs.
8.8.B. Appeal Allowed.
2. (1998) 7 sec 84.
3. AIR 1978 SC 597.
4. (2009) 2 sec 570.