PETITIONER:
SOM DATT DATTA
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT:
20/09/1968
BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
HIDAYATULLAH, M. (CJ)
SHAH, J.C.
MITTER, G.K.
GROVER, A.N.
CITATION:
1969 AIR 414 1969 SCR (2) 177
CITATOR INFO :
R 1971 SC 500 (14,20)
R 1971 SC1120 (18)
R 1977 SC 567 (20)
RF 1986 SC1040 (6)
R 1986 SC1173 (7)
R 1990 SC1426 (24)
F 1990 SC1924 (6,7,8,27,33,44)
RF 1991 SC 564 (5,6)
ACT:
Army Act, 46 of 1950, ss. 125, 126, 164 and 165-First
Information Report of offences by Army Officer and others
made to civil police-Police inspector taking some
preliminary steps then stopping investigation at the request
of Army authorities-Area Commander immediately appointing
Court of Inquiry to investigate-After trial by Court Martial
accused convicted of offences under ss. 304 and 149 I.P.C.-
Whether Court Martial or ordinary criminal court had
jurisdiction to try the case.-When Rules 3 and 5 of Rules
framed under s. 549 Cr. P.C. applicable.-If reasons required
to be given by G.O.C. while deciding petition under s. 164
and by the Central Government while deciding appeal
under s. 165-Army Rules, 1954, ss. 50(2) and 121(4)-When
attracted.
HEADNOTE:
The petitioner, a Second Lieutenant in the army, was
involved in a quarrel between two groups of soldiers on
September 1, 1965 which led to an altercation and the
stabbing and death of a soldier. On September 2, 1965, the
matter was reported to the Civil Police at the local police
station. The Inspector o.f Police inspected the place: of
occurrence on the same day, seized certain exhibits produced
by an Army Officer, held an inquest on the dead body of the
deceased soldier and sent it for postmortem examination
through a police constable. Later on the same day, he
stopped further investigation as the Army Officer incharge
wanted the case to be handled by the Military authorities.
On September 2, 1965, a Court of Inquiry under the
provisions of Ch. VI of the Army Rules was ordered by the
Commander for the area. After the Court of Inquiry had
concluded its proceedings, a Court Martial was constituted
by an order dated August 11. 1966, by the General Officer
Commanding for the area to try the petitioner and other
accused persons. 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;
it sentenced him to cashiering and six years rigorous
imprisonment. The petitioner filed a petition under section
164 of the Army Act, but this was dismissed by the
confirming authority and the finding and sentence of the
Court Material was confirmed. The petitioner's appeal under
section 165 of the Army Act to the Central Government was
also dismissed.
In the present petition under Article 32 of the
Constitution, the petitioner sought a writ of certiorari to
quash the proceedings of the Court-MartiaL It was
contended on his behalf (i) that the Court Martial had no
jurisdiction to try and convict him of offences under ss.
304 'and 149 I.P.C. having regard to the mandatory
provisions of s. 125 of the Army Act and having also regard
to the fact that the Army Officer incharge had in the first
instance decided to hand over the. matter for investigation
to the Civil Police; (ii) that no notice was given by the
Commanding Officer to the Magistrate under Rule 5 of the
Rules framed by the Central Government under s. 549 of the
Criminal Procedure Code, that the petitioner should be tried
by a Court-Martial; the Criminal Court alone
178
therefore had jurisdiction under Rule 3 to try the
petitioner for the offence charged; (iii) that even if the
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; the procedure contemplated by Rule
121(4) 'of the Army Rules was not followed by the Court-
Martial and its finding must therefore be held to be
defective; and (iv) that the orders of the Chief of the Army
Staff confirming the proceedings of the Court-Martial under
s. 164 of the Army Act and of the Central Government
dismissing the petitioners appeal under s. 165 were illegal
since no reasons had been given in support of the decisions
contained in them.
HELD: Dismissing the petition:
(i) Merely because the First Information Report was
lodged with the civil police on September 2 and the
Inspector of Police inspected the place of occurrence,
seized certain exhibits and held an inquest on the body of
the deceased, it could not reasonably be said that there was
a decision of the competent military authority under s. 125
of the Army Act to hand over the inquiry to the criminal
court. On the other hand the action of the General Officer
Commanding the area, who was the competent authority under
s. 125 constituting the Court of Inquiry on September 2,
1965 indicates that there was a decision taken under s. 125
that the proceedings should be instituted before the Court-
Martial. [184 H]
(ii) Rule 3 of the Rules framed by the Central
Government under s. 549 Criminal P.C. only applies to a case
where the police has completed the investigation and the
accused is brought before the Magistrate after submission of
a charage-sheet. The provisions of Rule 3 cannot be invoked
in the present case where the police had merely started
investigation against a person subject to military law. The
situation contemplated by Rule 5 had not arisen and the
requirements of that rule were not attracted. Furthermore,
Regulation 527 of the Defence Services Regulations itself
provides that in cases of unnatural death, information
should be given under s. 174 Criminal Procedure Code to the
civil authorities. The action of the Army Officer in
sending information to the civil police was merely in
accordance with the provisions of this particular
Regulation. [187 D]
(iii) 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 had also not
contravened the provisions of Rule 121(4) because that sub-
rule was not attracted in the present case. On the
contrary, the finding of the Court-Martial was justified in
view of the language of s. 139(6) of the Army Act. [188 H]
(iv) There is no express obligation imposed by s. 164 or
by s. 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. No other Section of the Act or any Rule had been
shown from which a necessary implication could be drawn that
such a duty is cast upon the Central Government or upon the
confirming authority. Furthermore, there was no force in
the contention 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. [190 H; 192 A-B]
179
Rex. v. Northumberland Compensation Appeal Tribunal,
[1952] 1 K.B. 338, considered.
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 118 of 1968.
Petition under Art. 32 of the Constitution of India
for enforcement of the fundamental rights.
B. Datta, for the petitioner.
C.K. Daphtary, Attorney-General, B.D. Sharma and R.H.
Dhebar, for respondents Nos. 1 to 5.
The Judgment of the Court was delivered by
Ramaswami, J. In this case the petitioner has obtained
a rule from tiffs Court asking the respondents to show cause
why a writ in the nature of certiorari should not be issued
under Art 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 s. 304 and s. 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.
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 and 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 Purbias 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
180
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 hall 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
that 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 s. 302, Indian Penal Code was registered as
crime No. 726/1965 at Pallavaran Police Station, Madras.
Sri 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 deadbody of Spr.
Bishwanath Singh and sent the dead-body for postmortem
examination to. the mortuary, Madras General Hospital
through Police Constable No. 1407, Ratnam. He sent the
exhibits seized to the State Forensic Science Laboratory,
Madras for chemical examination. At 1330 hours on the same
date Sri Bashyam stopped further investigations as Lt. Col.
Bajpai wanted the case to be handled by the Military
authorities.
On September 2, 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 prosecu-
181
tion 30 witnesses were examined. At the Court Martial, the
defended by an Advocate of the Madras High Court,
petitioner was Sri Natarajan and he was also as by
assisted 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, how-
ever, submitted a written statement. He was also put
various questions by the Court Martial to which he 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 field a
petition under s. 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 s. 165 of the Army Act to the Central
Government but the appeal was dismissed.
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 ss. 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 s. 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 investigations to the Civil Police. In order to
test whether this argument is valid it is necessary to
scrutinize 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”; s. 3(vii)
defines a “court-martial” to mean “a court” to mean “a court
of ordinary criminal justice in any part of India other that
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 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
182
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:
“69. Subject to the provisions of
sect.ion 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 extend to seven years, or such less
punishment as is in this Act mentioned.”
Section 70 provides:
“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,
unless he commits any of the said offences–
(a) while on active service, or
(b) at any place outside India, or
(c) at a frontier post specified by the
Central Government by notification in this
behalf.
Explanation.–In this section and in
section 69, “India” does not include the
State of Jammu and Kashmir.”
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
183
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 legal
position therefore is that when an offence is for 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 provision is made for
resolving the conflict under ss. 125 and 126 of the Army Act
which state:
“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.
126. (1 ) 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.
(2) In every such case the said officer
shall either deliver over the offender 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 Army Act. Under the -scheme of the two sections,
in the first instance, it is left to the
184
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, it 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 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.
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 s. 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 s. 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 & 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 deadbody of Spr. Bishwanath Singh. Sri
Bashyam has admitted that he stopped investigations 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 s. 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
185
Inquiry on September 2, 1965 indicates that there was a
decision taken under s. 125 of the Army Act that the
proceedings should be instituted before the Court-Martial.
The second branch of the argument of the petitioner is
based upon s. 549 of the Criminal Procedure Code which
states:
“(1) The Central Government may make
rules consistent 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
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
Court-martial.
The Central Government has made rules in exercise of powers
conferred on it under this section. The Rules were
published at p. 690 in s. 3 of Part H of the Gazette of
India, dated April 26, 1962, under Ministry of Home Affairs,
S.R.O. 709, dated April 17, 1962. Rules 3, 4, 5 and 8 are to
the following effect:
“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 friable 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.”
“4. Before proceeding under clause (a)
of rule 3 the Magistrate shall give written
notice to the Com-
Sup C1/69–13
186
manding 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.”
“5. Where within the period of seven
days mentioned in rule 4, or at any time
thereafter before the Magistrate has done
any act or issued any order referred to in
that rule, the Commanding Officer of the
accused or competent military, naval or Air
Force authority, as the case may be, gives
notice to the Magistrate that in the opinion
of such authority, the accused should be tried
by a court-martial, the Magistrate shall stay
proceedings and if the accused is in his power
or under his control, shall deliver him, with
the statement prescribed in sub-section (1) of
section 549 of the said Code to the authority
specified in the said sub-section.”
“8. Notwithstanding anything in the
foregoing rules, where it comes to the notice
of a Magistrate that a person subject to
military, naval or Air Force law has committed
an offence, proceedings in respect of which
ought to be instituted before him and that the
presence of such person cannot be procured
unless through military, naval or Air Force
authorities, the Magistrate may by a written
notice require the Commanding Officer of such
person either to deliver such person to a
Magistrate to be named in the said notice 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 proceedings should be
instituted.”
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
187
is mis-conceived. The rules framed by the Central
Government under s. 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
proceedings 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 Mr. 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 Spr. Bishwanath Singh it was pointed out by the
Attorney-General that Regulation 527 of the Defence Services
Regulations has itself provided that in cases of unnatural
death that is death due to suicide, violence or under
suspicious circumstances information should be given under
s. 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.
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:
“50. Amendment of charge.–( 1 ) At any time
during the trial, if it appears to the court that there is
188
any mistake in the name or description of
the accused in the charge-sheet, the court
may amend the chargesheet so as to correct
that mistake. (2) If, on the trial of any
charge, it appears to the court at any time
before it has begun to examine the witnesses,
that in the interests of justice any addition
to, commission from, or alteration in, the
charge is required, it may report its opinion
to the convening authority, and may adjourn,
and the convening authority may either direct
the new trial to be commenced, or amend the
charge, and order the trial to proceed with
such amended charge after due notice to the
accused.”
“121. Form and record of finding.–(1) The
finding on every charge upon which the accused
is arraigned shall be recorded, and except
as mentioned in these rules, such finding
shall be recorded simply as a finding of
“Guilty” or of “Not guilty”.
(2) When the court is of opinion as
regards any charge that the facts proved do
not disclose the offence charged or any
offence of which he might under the Act
legally be found guilty on the charge as laid,
the court shall acquit the accused of that
charge.
(3) When the court is of opinion as
regards any charge that the facts found to be
proved in evidence differ materially from the
facts alleged in the statement of particulars
in the charge, but are nevertheless
sufficient to prove the offence stated in the
charge, and that the difference is not so
material as to have prejudiced the accused in
his defence, it may, instead of a finding of
“Not guilty” record a special finding.
(4) The special finding may find the
accused guilty on a charge subject to the
statement of exceptions or variations
specified therein.
(5) The court shall not find the
accused guilty on more than one of two or
more charges laid down in the alternative,
even if conviction upon one charge necessarily
connotes guilt upon the alternative charge or
charges.”
In the present ease there was no necessity for amending the
charge by the Court-Martial under Rule 50(2) because that
subrule 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 ease. On the contrary,
the finding of the Court
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Martial is justified in view of the language of s. 139(6) of
the Army Act which states :–
“139. (6) A person .charged before a
court-martial with an offence punishable under
section 69 may be found guilty of any other
offence of which he might have been found
guilty if the provisions of the Code of
Criminal Procedure., 1898, were applicable.”
We accordingly reject the argument of learned Counsel for
the petitioner on this part of the case.
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 s. 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 s. 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 ss. 164 and 165 of the Army Act which are to the
following effect:
“164. (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 finding 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 order thereon
as it or he thinks fit.”
“165. The Central Government, the Chief
of the Army Staff or any prescribed officer
may annul the proceedings of any court-
martial on the ground that they are illegal or
unjust.”
In contrast to these sections, s. 162 of the Army Act
expressly provides that the Chief of the Army Staff “for
reasons based on
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the merits of the case” set aside the proceedings or reduce
the sentence to any other sentence which the court might
have passed. Section 162 reads as follows:
“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 by the Chief of the
Army Staff, 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.”
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:
61. Consideration of finding.–(1) The
court shall deliberate on its finding in
closed court in the presence of the judge-
advocates.
(2) The opinion of each member of the
court as to the finding shall be given by word
of mouth on each charge separately.
62. Form, record and announcement of
finding.-(1) 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’.
(10) The finding on each charge shall
be announced forthwith in open court as
subject to confirmation.”
In the present case it is manifest that there is no
express obligation imposed by s. 164 or by s. 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 either
expressly or by necessary implication, we are unable to
accept the contention of Mr. Dutta that there is
191
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 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(1) 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, Denning, L.J. pointed out that the
record must at least contain the document which initiates
the proceedings; the pleadings, if any; and the
adjudication, but not the evidence, nor the reasons, unless
the tribunal chooses to incorporate them in its decision. It
was observed that if the tribunal did state its reasons and
those reasons were wrong in law, a writ of certiorari might
be granted by the High Court for quashing the decision. In
that case the statutory tribunal under the National
Health Service Act, 1946 had fortunately given a
reasoned decision; in other words, made a ‘speaking order’
and the High Court could hold that there was an error of law
on the face of the record and a writ of certiorari may be
granted for quashing it. But the decision in this case led
to an anomalous result, for it meant that the opportunity
for certiorari depended on whether or not the statutory
tribunal chose to give reasons for its decision; in other
words, to make a ‘speaking order’. Not all tribunals, by
any means, were prepared to do so, and a superior court had
no power to compel them to give reasons except when the
statute required it. This incongruity was remedied by the
Tribunals and Inquiries Act, 1958 (s. 12), [6 & 7 Elizabeth
2 c. 66], which provides that on request a subordinate
authority must supply to .a party genuinely interested the
reasons for its decision. Section 12 of the Act states that
when a tribunal mentioned in the First Schedule of the Act
gives a decision it must give a written or oral statement of
the reasons for the decision, if requested to do so on or
before the giving or notification of the decision. The
statement may be refused or the specification of reasons
restricted on grounds of national security, and the tribunal
may refuse to give the statement to a person not principally
concerned with the decision if it thinks that to give it
would be against the interests of any person primarily
concerned. Tribunals may also be exempted by the Lord
Chancellor from the duty to give reasons but the Council on
Tribunals must be consulted on any proposal to do so. As
already stated, there is no express obligation imposed in
the present case either by s. 164 or by s. 165 of the Indian
Army Act on the confirming (1) [1952] 1 K.B. 338.
192
authority or on the Central Government to give reasons for
its decision. We have also not been shown any other section
of the Army. Act or any other statutory rule from which the
necessary implication can be drawn that such a duty is cast
upon the Central Government or upon the confirming
authority. We, therefore, reject the argument of the
petitioner that the order of the Chief of the Army Staff,
dated May 26, 1967 confirming the finding of the Court
Martial under s. 164 of the Army Act or the order of the
Central Government dismissing the appeal under s. 165 of the
Army Act are in any way defective in law.
For the reasons expressed we hold that the petitioner
has made out no case for the grant of a writ under Art. 32
of the Constitution. The application accordingly fails and
is dismissed.
R.K.P.S. Petition dismissed.
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