PETITIONER: RAM SARUP Vs. 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 932 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 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 non-compliances 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 Constitution, 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 933 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 between 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 setting 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
934
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 dis criminatory 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
officer 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.
935
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 petition 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
936
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 particular member of the Court Martial
unless required to give evidence thereof by a Court of
Justice
937
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 counter-affidavit, 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 confirming 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
938
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 sub-s. (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 authority 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
939
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 Parliament 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
940
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.
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 dis-
cretion, 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
942
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 provides 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
943
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 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.
944
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
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 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
945
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 authorities. 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 authorities 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
committee by him. His position under ss. 125 and 126 of the
Act is also the same
1/SCI/64-60
946
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.