Som Datt Datta v. Union of India, (SC) BS109173
SUPREME COURT OF INDIA

(Larger Bench)

Before:- M. Hidayatullah, C.J.I., J.C. Shah, V. Ramaswami, G.K. Mitter and A.N. Grover, JJ.

Writ Petn. No. 118 of 1968. D/d. 20.9.1968.

Som Datt Datta - Petitioner

Versus

Union of India and others - Respondents

For the Petitioner :- Mr. B. Datta, Advocate (Petitioner was also produced in Court).

For the Respondent (Nos. 1 and 5) :- Mr. C.K. Daphtary, Attorney-General for India with M/s. B.D. Sharma and R.H. Dhebar, Advocates.

A. Army Act, 1950 Sections 125 and 126, Offences committed under Army Act - Jurisdiction for trial of offence - Offence triable by both Court Martial as well as ordinary criminal Courts - Order passed by authority under Section 125 for trial by Court Martial - Order held not become illegal merely because police officer had started investigation - That it cannot be said that there was a decision of the competent military authority under Section 125 of the Army Act for handing over the inquiry to the Criminal Court.

[Paras 4 and 5]

B. Criminal Procedure Code, 1898, Section 549 - Rules under (Section Rule Order 709 dated 17.4.1952), Rules 3 and 5 - Army Act, 1950 Section 125 Applicability of provisions - Rules cannot be invoked merely because police had started investigation in an offence against a person subject to military, naval or air force law.

[Para 7]

C. Army Rules, 1954, Rule 50(2) - Applicability of rules - Rule applies only when charge was altered before examination of witnesses.

[Para 8]

D. Army Act, 1950 Sections 164 and 165 Orders of Central Government confirming proceedings of Court Martial - No express obligation imposed by Law to give reasons - Held, that Order not illegal for not giving any reasons in confirming orders.

[Paras 10 and 11]

Cases Referred :-

Rex v. Northumberland Compensation Appeal Tribunal 1952-1 KB 338.

JUDGMENT

Ramaswami, J. - In this case the petitioner has obtained a rule from this Court asking the respondents to show cause why a writ in the nature of certiorari should not be issued under Article 32 of the Constitution for calling up and quashing the proceedings before the General Court Martial No. JAG 26/66-67/AA of 1965 from the Judge Advocate General (Army branch), Army Headquarters whereby the petitioner was found guilty of charges under Section 304 and Section 149 of the Indian Penal Code and sentenced to a period of 6 years' rigorous imprisonment and cashiering. Cause has been shown by the Attorney-General on behalf of the Union of India and other respondents to whom notice of the rule was ordered to be given.

2. The petitioner was commissioned in the Indian Army in February, 1964 and was posted as Second Lt. (E.C. 55461) and was attached to 397 Engineering Construction Equipment Company in December, 1964. In August, 1965 the petitioner was posted as a Quarter Master and was transferred to Madras along with the Company. It appears that Wednesday. September 1, 1965 was to be celebrated as the Raising Day of the Unit when Games and Sports entertainment and Bara Khana (evening dinner) were to be arranged. In this celebration, all officers an other ranks of the Unit had to take some part and a number of other Army officers were to be received and entertained on behalf of the Unit. At the variety entertainment Punjabis and Garhwalis took part and each party was given free one bottle of rum. But it is alleged that the Public were not given an opportunity to put up their show and were not given free a bottle of rum. They were consequently aggrieved for this reason. The variety entertainment concluded at about 1900 hours at the end of which rum was issued to the jawans. The bara khana was to commence at 2000 hours. As there was a delay in the assembly of the men at the dining hall, Maj. Agarwal sent the petitioner to the lines to find out the cause for the delay and to get the men quickly. The petitioner went to the lines and it is alleged that the accused used filthy language while addressing the men. Some of the Purbias including the deceased Spr. Bishwanath Singh protested against the use of such language. Though the petitioner expressed regret, the men were not satisfied. A few of the Sikh jawans, including some of the accused sided with the petitioner and there was a heated argument between the two groups on their way to the dining hall. The bara khana was served in two sittings. The petitioner did not join the first sitting but joined the second sitting which consisted of about 30 to 40 men. The quarrel which started between the two groups earlier was continued in the dining hall. The lights went off for a few minutes and when the lights came on, it was observed that a scuffle was going on in the middle of the ball between the petitioner and other Sikh jawans and the deceased. As the scuffle progressed, the deceased was surrounded by petitioner No. 1 and the other accused persons and the group moved towards the service counter. The lights went off for a second time. In the darkness tables, benches and plates were hurled about. Most of the men ran out of the dining hall. It is alleged that accused No. 6 was seen stabbing with a knife Spr. Bishwanath Singh and the latter slumped to the ground. Accused No. 3 hit him with a soot rake. When the lights came on after a few minutes, the petitioner and the other accused were found standing near the place where Spr. Bishwanath Singh had fallen. Consequently, Maj. Agarwal arrived at the scene and took Spr. Bishwanath Singh to the MI room where he was found dead by Maj. Koley, the Medical Officer. It appears at on September 2, 1965 at about 0400 hours the matter was reported to the Civil Police by Second Lt. F.D.A. Jesudian. A case under Section 302 Indian Penal Code was registered as crime No. 726/1965 at Pallavaran Police Station, Madras. Shri Bashyam, Inspector of Police reached the place of occurrence at 0430 hours on the same date. He inspected the dining hall and seized certain exhibits produced by Maj. Agarwal. He also held inquest on the dead body of Spr. Bishwanath Singh and sent the dead body for post-mortem examination to the mortuary, Madras General Hospital through Police Constable No. 1407, Ratnam. He sent the exhibits seized to the State Forenisc Science Laboratory, Madras for chemical examination. At 13-30 hours on the same date Sri Bishyam stopped further investigations as Lt. Col. Bajpai wanted the case to be handled by the Military authorities.

3. On September 3, 1965, a Court of Enquiry under the provisions of Ch. VI of the Army Rules was ordered by the Commander, Mysore and Kerala Sub-Area. After the Court of Inquiry had concluded the proceedings, a Court Martial was constituted by an order dated August 11, 1966 by Major-General S.J. Sathe, General Officer Commanding, Madras, Mysore and Kerala area to try the petitioner and other accused persons. The Court Martial assembled on August 18,1966 and conducted its proceedings on several subsequent dates. In support of the case of the prosecution 30 witnesses were examined. At the Court Martial, the petitioner was defended by an Advocate of the Madras High Court Sri Natarajan and he was also assisted by a friend of the accused Major T. B. Narayanan. At the trial the Counsel for the petitioner cross-examined the witnesses for the prosecution and after the prosecution evidence was concluded, the petitioner said that he did not intend to call any defence witnesses. The petitioner, however, submitted a written statement. He was also put various questions by the Court Martial to which be replied. After the Counsel for the defence was heard and after the Judge Advocate summed up the case, the Court Martial came to the finding that the petitioner was guilty of culpable homicide not amounting to murder and that he was a member of an unlawful assembly and the petitioner was sentenced to cashiering and 6 years' rigorous imprisonment. Against the decision of the Court Martial the petitioner filed a petition under Section 164 of the Army Act but the petition was dismissed by the confirming authority and the finding and sentence by the Court Martial was confirmed so far as the petitioner was concerned. The petitioner thereafter filed an appeal under Section 165 of the Army Act to the Central Government but the appeal was dismissed.

4. The first question to be considered in this case is whether the Court Martial had jurisdiction to try and convict the petitioner of the offences under Sections 304 and 149, Indian Penal Code. It was contended by Mr. Dutta on behalf of the petitioner that the Court Martial had no jurisdiction having regard to the mandatory provisions contained in Section 125 of the Army Act and having also regard to the fact that Maj. Agarwal had, in the first instance, decided to hand over the matter for investigation to the Civil Police. In order to test whether this argument is valid it is necessary to scrutinise the provisions of the Army Act in some detail. Section 2 of the Army Act, 1950 (Act 46 of 1950), hereinafter called the 'Army Act', describes the different categories of army personnel who are subject to the Army Act. Section 3(ii) defines a "civil offence" to mean "an offence which is triable by a criminal court"; Section 3(vii) defines a "court-martial" to mean "a court-martial held under this Act"; Section 3(viii) defines "criminal court" to meant "a court of ordinary criminal justice in any part of India, other than the State of Jammu and Kashmir"; Section 3(xvii) defines "offence" to mean "any act or omission punishable under this Act and includes a civil offence"; and Section 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 Sections 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 indicate the punishments for the said offences. Section 69 states as follows :-

Section 70 provides :-

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 Section 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 legal position therefore is that, when an offence is for the first time created by the Army Act, such as those created by Sections 34, 35, 36, 37, etc., it would be exclusively triable by a court-material; 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-material would have jurisdiction to try the person committing the offence. Such a situation is visualised and provision is made for resolving the conflict under Sections 125 and 126 of the Army Act, which state :-

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 indict may also arise in the case of an offence deemed to be an offence under the Army Act. Under the scheme of the two sections in the first instance, it is left to the discretion of the officer mentioned in Section 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, it may issue the requisite notice under Section 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 of the Army Act provide a satisfactory machinery to resolve the conflict of jurisdiction, having regard to the exigencies of the situation in any particular case.

5. In the present case, we are unable to accept the contention of the petitioner that merely because Maj. Agarwal had directed that the First Information Report should be lodged with the Civil Police through Second Lt. Jesudian, it means that the competent authority under Section 125 of the Army Act had exercised its discretion and decided that the proceedings should be instituted before the criminal court. The reason is that Maj. Agarwal was not the competent authority under Section 125 of the Army Act to exercise the choice under that section. The competent authority was the General Officer Commanding, Madras, Mysore and Kerala Area and that authority had decided on September 2, 1965 that the matter should be tried by a court-martial and not by the Criminal Court. On the same date, the General Officer Commanding, Madras, Mysore and Kerala Area had ordered the constitution of the Court-Martial under Ch. VI of the Army Rules to investigate into the case of the petitioner and the other accused persons. There was admittedly no direction by the Commander of that area to hand over the proceedings to the Criminal Court. It is true that Maj. Agarwal had directed a report to be lodged with the Civil Police at 4.00 A.M. on September 2, 1965, It is also true that Sri Bashyam, Inspector of Police had inspected the place of occurrence, seized certain exhibits and held inquest of the dead body of Spr. Bishwanath Singh. Sri Bashyam has admitted that he stopped investigation on the same date as directed by the military authorities. Merely because Sri Bashyam conducted the inquest of the dead body of Spr. Bishwanath Singh or because he seized certain exhibits and sent them to the State Forensic Science Laboratory, Madras for chemical examination, it cannot be reasonably argued that there was a decision of the competent military authority under Section 125 of the Army Act for handing over the inquiry to the Criminal Court. On the other hand the action of the General officer Commanding in constituting the Court of Inquiry on September 2, 1965 indicates that there was a decision taken under Section 125 of the Army Act that the proceedings should be instituted before the Court-Martial.

6. The second branch of the argument of the petitioner is hosed upon Section 549 of the Criminal Procedure Code which states :-

The central Government has made rules in exercise of powers conferred on it under this section. The Rules were published at p. 690 in Section 3 of Part II of the Gazette of India dated April 26, 1952, under Ministry of Home Affairs, Section Rule Order 709, dated April 17, 1952, Rules 3, 4, 5 and 8 are to the following effect :-

7. It was argued on behalf of the petitioner that there was no notice given by the Commanding Officer to the Magistrate under Rule 5 that the petitioner should be tried by a Court-martial and hence the criminal court alone had jurisdiction under Rule 3 to conduct proceedings against the petitioner for the offences charged. In our opinion, the argument on behalf of the petitioner is misconceived. The rules framed by the Central Government under Section 549 of the Criminal Procedure Code apply to a case where the proceedings against the petitioner have already been instituted in an ordinary criminal court having jurisdiction to try the matter and not at a stage where such proceeding have not been instituted. It is clear from the affidavits filed in the present case that the petitioner was not brought before the Magistrate and charged with the offences for which he was liable to be tried by the court-martial within the meaning of Rule 3 and so the situation contemplated by Rule 5 has not arisen and the requirements of that rule are therefore, not attracted. It was pointed out by Air. Dutta that after the First Information Report was lodged at Pallavaran police station a copy thereof should have been sent to the Magistrate. But that does not mean that the petitioner "was brought before the Magistrate and charged with the offences" within the meaning of Rule 3. It is manifest that Rule 3 only applies to a case where the police had completed investigation and the accused is brought before the Magistrate after submission of a charge-sheet. The provisions of this rule cannot be invoked in a case where the police had merely started investigation against a person subject to military, naval or air force law. With regard to the holding of the inquest of the dead body of Shri. Bishwanath Singh it was pointed out by the Attorney-General that Regulation 527 of the Defence Service Regulations has itself provided that in cases unnatural death that is death due to suicide, violence or under suspicious circumstances information should be given under Section 174, Criminal Procedure Code to the Civil authorities, and the conduct of Maj. Agarwal in sending information to the Civil Police was merely in accordance with the provisions of this particular regulation. For these reasons we hold that Counsel for the petitioner is unable to make good his argument on this aspect of the case.

8. We proceed to consider the next argument presented on behalf of the petitioner, namely, that even if the Military court-martial had jurisdiction, it could not give a finding of guilt against, the petitioner with regard to culpable homicide not amounting to murder unless the charge was altered and amended in accordance with sub-rule (2) of Rule 50 of the Army Rules, 1954. It was also contended on behalf of the petitioner that the procedure contemplated by Rule 121(4) of the Army Rules was not followed by the Court-Martial and the finding of the Court-Martial must therefore be held to be defective. In our opinion, there is no warrant or justification for this argument since Rules 50(2) and 121(4) have no application to the present case. Rules 50 and 121 provide as follows :-

In the present case there was no necessity for amending the charge by the Court-Martial under Rule 50(2) because that sub-rule only relates to an alteration of charge before the examination of witnesses. The Court-Martial has also not contravened the provisions of Rule 121(4) because that sub-rule is not attracted to the present case. On the contrary, the finding of the Court-Martial is justified in view of the language of Section 139(6) of the Army Act which states :-

We accordingly reject the argument of learned Counsel for the petitioner on this part of the case.

9. Finally it was contended on behalf of the petitioner that the order of the Chief of the Army Staff confirming the proceedings of the Court-Martial under Section 164 of the Army Act was illegal since no reason has been given in support of the order by the Chief of the Army Staff. It was also pointed out that the Central Government has also not given any reasons while dismissing the appeal of the petitioner under Section 165 of the Army Act and that the order of the Central Government must therefore be held to be illegal and ultra vires and quashed by the grant of a writ in the nature of certiorari. In this context it is necessary to reproduce Sections 164 and 165 of the Army Act which are to the following effect :-

In contrast to these sections, Section 162 of the Army Act expressly provides that the Chief of the Army Staff "for reasons based on the merits of the case" set aside the proceedings or reduce the sentenced to any other sentence which the court might have passed, section 162 reads as follows :-

It is necessary in this context to refer to Rules 61 and 62 of the Army Rules which prescribe the standard form of recording the opinion of the Court-Martial on each charge and of announcement of that finding. These rules omit all mention of the evidence or the reasoning by which the finding is reached by the Court-Martial. Rules 61 and 62 are to the following effect :-

10. In the present case it is manifest that there is no express obligation imposed by Section 164 or by Section 165 of the Army 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. Mr. Dutta has been unable to point out any other section of the Act or any of the rule made therein from which necessary implication can be drawn that such a duty is cast upon the Central Government or upon the confirming authority. Apart from any requirement imposed by the statute or statutory rule expressly or by necessary implication, we are unable to accept the contention of Mr. Dutta that there is any general principle or any rule of natural justice the a statutory tribunal should always and in every case give reasons in support of its decision.

11. In English law there is no general rule apart from the statutory requirement that the statutory tribunal should give reasons for its decision in every case. In Rex v. Northumberland Compensation Appeal Tribunal 1952-1 KB 338 it was decided for the first time by the Court of Appeal that if there was a "speaking order" a writ of certiorari could be granted to quash the decision of an inferior Court or a statutory tribunal on the ground of error on the face of record. In that case, Danning, L.J. pointed out that the record must at least contain the document which initiates the proceedings :-

12. For the reasons expressed we hold that the petitioner has made out no case for the grant of a writ under Article 32 of the Constitution. The application accordingly fails and is dismissed.

Application dismissed.