PETITIONER: UNION OF INDIA & ORS. Vs. RESPONDENT: MAJOR GENERAL MADAN LAL YADAV [RETD.] DATE OF JUDGMENT: 22/03/1996 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. AHMAD SAGHIR S. (J) G.B. PATTANAIK (J) CITATION: 1996 AIR 1340 1996 SCC (4) 127 JT 1996 (3) 465 1996 SCALE (3)72 ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
K. Ramaswamy, J.
This appeal on reference to this Bench raises an
interesting question of law. The respondent while working as
Major General, Army Ordnance Corps., Southern Command, Pune
between December 1, 1982 and July 7, 1985 was in-charge of
purchase. The Controller General of Defence Accounts in
special audit on the local purchases sanctioned by the
respondent prima facie found that respondent had derelicted
his duty and action under the Act was initiated against him.
At that time, the respondent was attached to College of
Military Engineering, Pune and was promoted as Major
General. After initiation of the proceedings he was ordered
to retire which he had challenged by filing Writ Petition
No.3189 of 1986 in the Bombay High Court which stood
dismissed on August 29, 1986.
On August 30, 1986, action was initiated against the
respondent under Section 123 of the Army Act, 1950 [for
short, the ‘Act’]. He was kept under open arrest from that
date onwards and retired from service on August 31, 1986 as
Major General. On September 22, 1986, the respondent was
issued a chargesheet and recording of the summary evidence
commenced on September 25, 1986. The respondent filed habeas
corpus petition in this Court under Article 32 of the
Constitution on September 26, 1986 and refused to cross-
examine witnesses examined at preliminary enquiry between
October 20 and 25, 1986. He sought for, and the proceedings
were adjourned to November 3, 1986, on the ground that his
lawyer from Delhi was to come to Pune for cross-examination
of the witnesses. Due to non-availment of the opportunity
given to the respondent to cross-examine the witnesses
between November 20, 1986 and December 8, 1986, the case was
closed for prosecution on November 20, 1986. The respondent
sought 14 days’ time to prepare his case which was duly
allowed. However, the respondent did not give list of his
defence witnesses till November 30, 1986. Consequent upon
it, on December 26, 1986, the Controller General of Defence
Accounts directed the Controller, Defence Accounts, Southern
Command to carry out special audit for the period in
question. The respondent had sought permission to go to
Delhi in connection with his writ petition which was granted
between December 16 and 18, 1986. The writ petition was
dismissed by this Court on December 18, 1986 against which
he filed special leave petition. On January 3, 1987, the
recording of summary evidence against the respondent was
concluded. He sought permission to go to Delhi in connection
with his special leave petition which was granted between
January 12 and February 5, 1987. The summary evidence was
considered and GOC in Command, Southern Command submitted
his report on February 2, 1987. The special leave petition
came to be dismissed by this Court on February 5, 1987.
Pursuant thereto, general Court martial [for short, ‘GCM’]
was ordered on February 24, 1987; the GCM assembled to try
the respondent on February 25, 1987. On perusal of the
report, it was found that the respondent should be tried for
the offence. He was directed to be produced on February 26,
1987 but it transpired that the respondent had escaped
lawful military custody on the intervening night of February
15 and 16, 1987. Warrant was issued for his arrest. The
respondent voluntarily surrendered on March 1, 1987 and was
placed under closed arrest w.e.f. 2130 hours on the said
day. The Court-martial assembled on March 2, 1987 but it
appears that the respondent had, in the meanwhile, filed
writ petition in the Bombay High Court challenging the
jurisdiction of the Court-martial to try him. In W.P. No.301
or 1987, invoking the provisions of Section 123 [2] of the
Acts the Division Bench had held that the trial of the
accused had not commenced within six months of his ceasing
to be subject to the Act. The trial by the Court-martial
was, therefore, held to be illegal and accordingly writ was
issued. Calling in question this order, this appeal has been
filed.
It is undisputably clear that the respondent had
retired from service on August 31, 1986. He was kept under
open arrest from August 26, 1986 and had escaped from lawful
military custody on the intervening night of February 15 and
16, 1987 and voluntarily surrendered on March 1, 1987.
Though the respondent has pleaded in the High Court that he
had gone with prior permission of the authorities, the same
has been denied by the officer concerned. The High Court has
recorded, as a fact, that the respondent had absconded
himself. Section 123 of the Act fastens culpability of the
offender who ceased to be subject to the provisions of the
Act. Sub-section [1] postulates that where an offence under
the Act had been committed by any person while subject to
the Act, and he has ceased to be so subject, he may be taken
into and kept in military custody, and tried and punished
for such offence as if he continued to be so subject. Sub
section [2] which stands amended by Army Act [Amendment]
Act, 37 of 1992, prescribed limitation on such action, at
the relevant time, that no such person shall be tried for an
offence, unless his trial commences within six months after
he had ceased to be subject to the Act. The amended sub-
section [2] is not relevant for our purpose since the
offence in question was indisputably committed prior to the
Amendment came into existence. The proviso and other sub-
sections are also not relevant for our purpose.
The question, therefore, is: on which date did the
trial of the respondent commence? In other words, whether
the trial of the respondent commenced within six months from
the date of his retirement, viz., August 31, 1986? By
prescription of six months’ limitation under sub-section
[2], the trial of the respondent was to commence before
February 28, 1987. Consequently, the question, therefore,
is: what is the meaning of the words “trial commenced” as
used in sub-section [2] of Section 123 and as to when it
commences?
It is contended by Shri Malhotra, learned counsel for
the appellants, that the word ‘commenced’ must be understood
and considered in the setting and scenario of the operation
of relevant provisions of the Act and the rules framed
thereunder, viz., the Army Rules, 1954 [for short, the
‘Rules’]. Their conjoint reading would indicate that the
moment the Court martial assembles, takes cognisance of the
offence and direct to proceed further, the trial must be
deemed to have been commenced, as all the steps from the
stage are integrally connected with the trial. When Court
martial assembled on February 25, 1987 and found prima facie
case against the respondent to proceed with the trial and
directed to secure his presence, it was discovered that the
respondent had escaped the lawful open military custody and
made himself unavailable. Consequently, Court-martial could
not proceed with the trial of the respondent until he was
arrested and brought before the Court martial or he himself
surrendered. Since presence and participation by the
respondent in the trial was a condition precedent, due to
non-availability of the respondent, the Court martial could
not be proceeded with. After re-appearance of the respondent
or, March 1, 1987, further steps were taken to conduct the
trial by the Court martial. The trial, therefore, was not
barred by operation of sub-section [2] of Section 123. Shri
Bobde, appearing for the respondent, on the other hand,
contended that Section 122 [3] provides for exclusion of
time during which the accused avoided arrest after the
commission of the offence. Similar provision, preceding
amendment to sub-section [2] of Section 123 is not expressly
made available on statute. The offence being of criminal
nature, having regard to the provisions of Section 123
limitation should strictly be construed, particularly when
it involves liberty of the citizen. He argues that the
legislature had made a dichotomy of Sections 122 and 123 of
the Act. The time during which the accused was not available
cannot, therefore, be excluded in computation of six months’
period prescribed in sub-section [2] of Section 123.
It is further contended that the trial commenced only
when the Court martial assembled, took oath in terms of Rule
45; applied their mind under Rule 41 to proceed further
under Rule 43. The oath envisages thus: “…..I will well
and truly try the accused before the Court according to the
evidence and that I will duly administer justice according
to the Army Act without partiality, favour or affection and
if any doubt shall arise, then, according to my conscience,
the best of my understanding and the customs of war
and….”. The scheme would indicate that there is a
distinction between inquiry and trial and the trial
commences only when the Court-martial arraigns the accused
on the charge against him under Rule 48 whereby the accused
shall be required to plead separately to each charge. Since
the above Procedure had not been followed, the trial did not
commence. It is further argued that the accused has a
valuable right under Rule 48 to object to the charge. If
the objection is sustained, the charge is required to be
amended under Rule 50. He has also right to object to the
members of the Court-martial empanelled. He is also entitled
under Rule 51 to object to the jurisdiction of the Court-
martial. Until the Court martial assembles to proceed
further, the trial cannot be said to have commenced. The
question, therefore, is: as to when the trial commences
within the meaning of Section 123 [2]? With a view to
appreciate the rival contentions it is necessary to grasp
the relevant provision of the Act and the Rules.
Article 33 of the Constitution empowers the Parliament
to modify the fundamental rights enshrined in Part III in
their application to the members of the Armed Forces or
members of the Forces charged with the maintenance of the
public order etc. The Act was made to regulate the
governance of the regular Army. Under Section 2 [1] (a),
officers shall be subject to the Act wherever they may be.
Under Section 3, unless the context otherwise requires
“active service” as applied to a person subject to this Act,
means the time during which such person is attached to, or
forms part of, a force which is engaged in operations
against any enemy, or…”. “Court-martial” under sub-section
[vii] means a court-martial held under the Act. “Military
custody” under sub-section [xiii] means the arrest or
confinement of a person according to the usages of the
service and includes naval or air force custody.
“Offence” has been defined under sub-section [xvii] to
mean “any act or omission punishable” under the Act and
“includes a civil offence as hereinbefore defined”. Chapter
IX deals with “arrest and proceedings before trial”. Section
101 enables custody of offenders. Under sub-section [1]
thereof, any person subject to the Act who is charged with
an offence may be taken into military custody. Under
subsection [3] thereof, an officer may order into military
custody of any “officer”, though he may be of a higher rank,
engaged in a quarrel, affray or disorder. Chapter X deals
with “Court-martial” The details thereof are not material
for the purpose of this case since the admitted position is
that G.C.M. was ordered against the respondent which is not
under challenge. Section 122 deals with “period of
limitation for trial” of “any person” subject to the Act. As
stated earlier, sub-section [3] thereof make provision for
exclusion of time, in computation of the prescribed periods
i.e., of any time spent by such person as a prisoner of war,
or in enemy territory, or in evading arrest after the
commission of the offence. Section 123 deals with liability
of offenders who cease to be subject to the provisions of
the Act. Sub-section [1] thereof envisages that where an
offence under the Act had been committed by any person while
subject to the Act, and he has ceased to be so subjects he
may be taken into and kept in military custody, and tried
and punished for such offence as if he continued to be so
subject In other words, though the officer governed by the
provisions of Act ceases to be the person governed by the
provisions of the Act, no trial for an offence under the Act
shall be proceeded with and no such person shall be tried
for an offence unless the trial commences within six months
of his ceasing to be subject to the Act.
Chapter V of the Rules relates to investigation of the
charge and trial by court martial. Rule 22 deals with
hearing of charge. Sub-rule [1] provides the procedure to
deal with the charge in the presence of the accused who
shall have full liberty to cross-examine any witness
examined against him and he may call any witness and make
any statement in his defence. Rule 23 provides procedure for
taking down the summery of evidence. Rule 24 empowers remand
of the accused. Rule 25 prescribes procedure on charge
against officer. Rule 26 provides procedure for summary
disposal of the charge against the officers. If delay
occasions in postal, under Rule 27, it is required to be
reported. Rule 28 deals with framing of charge-sheet
containing the details and issue or issues to be tried by a
Court-martial. The charge-sheet may contain one charge or
several charges. Rule 29 deals with commencement of the
charge-sheet. Rule 30 contains contents of the charge. Rule
33 provides procedure for preparation or defence by the
accused. Rule 34 enjoins that before the accused is
arraigned for an offence, he shall be informed by an officer
of every charge for which he is to be tried and also that on
his giving the names of the witnesses whom he desire to call
in his defence, reasonable steps will be taken for procuring
their attendance etc. Rule 35 deals with Joint-trial of
several accused persons. Due to military exigencies or on
grounds of necessity of discipline Rule 36 empowers the
suspension of rules.
In Section 2 of the Rules dealing with General and
District Courts-martial, convening the Court martial has
been envisaged. Under Rule 38, Court-martial may be
adjourned if before arraigning the accused insufficient
number of officers of the Court martial are noticed. Rule 39
speaks of disqualification and ineligibility of officers for
Court-martial. Rule 40 envisages composition of the GCM Rule
41 prescribes procedure to be followed at trial and
constitution of Court-martial which is relevant for the
purposes of this Court. The rule reads as under:
“41. Inquiry be court as to legal
constitution. [1] On the court
assembling, the order convening the
court shall be laid before it
together with the charge sheet and
the summary of evidence or a true
copy thereof, and also the ranks,
names, and corps of the officers
appointed to serve on the court;
and the court shall satisfy itself
that it is legally constituted;
that is to say-
(a) that, so far as the court can
ascertain, the court has been
convened in accordance with the
provisions of the Act and these
rules;
(b) that the court consists of a
number of officers, not less than
the minimum required by law and,
save as mentioned in rule 38, not
less than the number detailed;
(c) that each of the officers so
assembled is eligible and not
disqualified for serving on that
court-martial; and
(d) that in the case of general
court-martial, the offices are of
the required rank.
[2] The court shall, further, if it
is a general or district court-
martial to which a judge-advocate
has been appointed, ascertain that
the judge-advocate is duly
appointed and is not disqualified
for sitting on that court-martial.
[3] The court, if not satisfied
with regard to the compliance with
the aforesaid provisions, shall
report its opinion to the convening
authority, and may adjourn for that
purpose.
Rule 43 prescribes procedure of trial – challenge and
swearing. if the court has satisfied itself that the
provisions of Rule 41 and 42 have been complied with, it
shall cause the accused to be brought before the court and
the prosecutor, who must be a person subject to the Act,
shall take his due place in the court. As seen, under Rule
45, oath is to be administered to the members of the Court-
martial etc. They are required to swear by Almighty God or
affirmation to “well and truly try the accused”. Similar
oath may be administered to Judge-Advocate and other
officers under Rules 46 and 47. Rule 48 speaks of
“arraignment of accused”. It envisages that “after the
members of the Court-martial and other persons are sworn or
affirmed as above mentioned, the accused shall be arraigned
on the charges against him which shall be read out and, if
necessary, translated to him in his mother tongue, and he
shall be required to plead separately to each charge. Rule
49 deals with objection by the accused to the charge and
Rules 50 allows amendment of the charge, if necessary. Rule
51 gives him right to take a special plea on the
jurisdiction of GCM and under Rule 52 he can plead guilty or
not guilty. Rule 53 deals with “plea in bar” and Rule 54
with “procedure after plea of guilty”. Rule 56 deals with
plea of not guilty, application and adduction of evidence by
the prosecution. Rule 57 deals with plea of no case and Rule
58 with “close of case for the prosecution and procedure for
defence where accused does not call witness”. Rule 59 deals
with the “defence where the accused calls witnesses” and
Rule 60 with “summing up of the case by the judge-advocat”.
Rule 61 deals with “consideration of finding” and Rule 62
with “forms record and announcement of finding”. Rule 63
concerns “procedure on acquittal” and Rule 64 “procedure on
conviction”. Rule 65 gives power to the Court-martial to
impose sentence and Rule 66 deals with recommendation to
mercy. Rule 67 deals with “announcement of sentence and
signing and transmission of proceedings”.
It is true, as rightly contended by Shri Bobde that on
administration of oath to the members of the Court-martial,
the members swear to try the accused according to the
provisions of Act and Rules etc. and to administer justice
according to the Act without partiality, favour or
affection. Under Rule 44, names of the members of the Court
and presiding officer will be read over to the accused. He
shall be asked, under Section 130, of his objections, if
any, for trial by any officer sitting on the court. Any such
objection shall be disposed or according to the Rules. The
presence and participation by the accused, therefore, is an
indispensable pre-condition. Rule 42 enjoins the court to be
satisfied that the requirements of Rule 41 have been
complied with. It shall, further, satisfy itself in respect
of the charge brought before it and then proceed further. If
he pleads “guilty”, the procedure contemplated in Rule 54 is
to be followed and if he pleads “not guilty”, the procedure
contemplated in Rule 56 shall be proceeded with and evidence
recorded etc.
The words “trial commences” employed in Section 123 [2]
shall be required to be understood in the light of the
scheme of the Act and the Rules. The question is as to when
the trial is said to commence? The word ‘trial’ according to
Collins English Dictionary means:
“the act or an instance of trying
or proving; test or experiment…
Law. a. the judicial examination of
the issues in a civil or criminal
cause by a competent tribunal and
the determination of these issues
in accordance with the law of the
land. b. the determination of an
accused person’s guilt or innocence
after hearing evidence for the
prosecution and nor the accused and
the judicial examination of the
issues involved”.
According to Ballentine’s Law Dictionary [2nd ed.]
‘trial’ means:
“an examination before a competent
tribunal according to the law of
the land, of the facts or law put
in issue in a cause, for the
purpose of determining such issue.
When a court hears and determines
any issue of fact or law for the
purpose of determining the right of
the parties, it may be considered a
trial”
In Block’s Law Dictionary [Sixth Edition] Centennial
Edition, the word ‘trial’ is defined thus:
“A judicial examination and
determination of issues between
parties to action, whether they be
issues of law or of fact, before a
court that has jurisdiction… A
judicial examination, in accordance
with law of the land, of a cause,
either civil or Criminal, of the
issues between the parties, whether
of law or facts, before a court
that has proper jurisdiction”.
In Webster’s Comprehensive Dictionary International
Edition, at page 1339, the word ‘trial’ is defined thus:
“….The examination, before a
tribunal having assigned
jurisdiction, of the facts or law
involved in ail issue in order to
determine that issue. A former
method of determining guilt or
innocence by subjecting the accused
to physical tests of endurance, as
by ordeal or by combat with his
accuser… In the process of being
tried or tested… Made or
performed in the course of trying
or testing…”.
The word `commence’ is defined in Collins English
Dictionary to mean “to start or begin; come or cause to come
into being, operation etc.” In Black’s Law Dictionary it is
defined to mean :
“to initiate by performing the
first act or step. To begin,
institute or start Civil action in
most jurisdictions is commenced by
filing a complaint with the
court…. Criminal action is
commenced within statute of
limitations at time preliminary
complaint or information is filed
with magistrate in good faith and a
warrant issued thereon… A
criminal prosecution is “commenced”
[1] when information is laid before
magistrate charging commission of
crime, and a warrant of arrest is
issued, or [2] when grand jury has
returned an indictment”.
In the “Words and Phrases” [Permanent Edition] Vol.42A,
at page 171, under the head “Commencement”, it is stated
that “.4 ‘trial’ commences at least from the time when work
of empanelling of a jury begins”.
It would, therefore, be clear that trial means act of
proving or judicial examination or determination of the
issues including its own jurisdiction or authority in
accordance with law or adjudging guilt or innocence of the
accused including all steps necessary thereto. The trial
commences with performance of the first act or steps
necessary or essential to proceed with trial.
It would be seen from the scheme of the Act and the
Rules that constitution of court-martial for trial of an
offence under the Act is a pre-condition for commencement of
trial. Members of the court-martial and the presiding
officer on nomination get jurisdiction to try the person for
offence under the Act. On their assembly, the accused has
the right to object to the nomination of any or some of the
members of the court-martial or even the presiding officer,
On the objection(s) so raised, it is to be dealt with and
thereafter the preliminary report recorded after summary
trial and the charge trammed would be considered. The charge
is required, if need be or asked by the accused to be read
over and could be objected by the accused and found tenable,
to be amended. Thereafter, the accused would be arraigned
and in his presence the trial would begin. The accused may
plead guilty or not guilty. If he pleads guilty, the
procedure prescribed under Rule 54 should be followed and if
he pleads not guilty, procedure prescribed under Rule 56 is
to be followed. Before actual trial begins, oath would be
administered to the members of the court-martial the Judge-
Advocate and the staff. The regular trial begins and ends
with recording the proceedings either convicting and
sentencing or acquitting the accused. Thus two views would
be possible while considering as to when the trial
commences. The broader view is that the trial commences the
moment the GCM assembles for proceeding with the trial,
consideration of the charge and arraignment of the accused
to proceed further with the trial including all
preliminaries like objections to the inclusion of the
members of the Court-martial. reading out the
charge/charges, amendment thereof etc. The narrow view is
that trial commences with the actual administration of oath
to the members etc. and to the prosecution to examine the
witnesses when the accused pleads not guilty. The question
then emerges: which of the two views would be consistent
with and conducive to a fair trial in accordance with the
Act and the Rules?
It is true that the legislature has made a distinction
between Section 122 [3] and Section 123 [2]. While in the
former, power to exclude time taken in specified
contingencies is given, in the little, no such provision is
made for exclusion of the time since the accused will be
kept under detention after he ceased to be governed by the
Act. It is equally settled law that penal provisions would
be construed strictly. As posed earlier, which of the two
views broader or narrow – would subserve the object are
purpose of the Act is the question We are of the considered
view that from a conpectus of the scheme or the Act and
Rules the broader view appears to be more conducive to and
consistent with the scheme of the Act and the Rules. As soon
as GCM assembles the members are charged with the duty to
examine the charge/charges framed in summary trial to give
an opportunity to the accused to exercise his right to
object to the empanelment of member/members of the GCM to
amend the charge and the right to plead guilty or not
guilty. These procedural steps are integral and inseparable
parts of trial. If the accused pleads guilty further trial
by adducing evidence by the prosecution is obviated. The
need for adduction of evidence arises only where the accused
pleads “not guilty”. In that situation, the members are
required to take oath or affirmation according to Rule 45.
It is to remember that the members get right power and duty
to try an accused only on appointment and the same ends with
the close of the particular case. Therefore, Rule 45 insists
on administration of oath in the prescribed manner. For a
judicial officer the act of appointment gives power to try
the offender under Criminal Procedure Code; warrant of
appointment by the President of India and the oath taken as
per the form prescribed in Schedule III of the Constitution
empowers the High Court/Supreme Court Judges to hear the
petition or appeals. For them, need to take oath on each
occasion of trial or hearing is obviated. Therefore, the
occasion to take oath as per the procedure for GCM and the
right of the member of the GCM arises with their empanelment
GCM and they get power to try the accused the moment they
assemble and commence examination of the case, i.e., charge-
sheet and the record. The trial, therefore, must be deemed
to have commenced the moment the GCM assembles and
examination of the charge is undertaken.
Our view gets fortified by two decisions of this Court
in Harish Chandra Baijapi & Anr. v Triloki Singh & Anr. [AIR
1957 SC 444] wherein the question was: as to when the trial
begins in an election dispute under the provisions of the
Representation of the People Act, 1951? The respondents had
filed election petitions against the appellant under Section
81 of that Act alleging that the appellant had committed
number of corrupt practices and the respondents prayed for
declaration that the appellant’s election was void. After
trial, the election was set aside against which the appeal
came to be filed ultimately in this Court. One of the
questions was: whether the particulars of the
corrupt practices and amendment therefore is vaild in law
and whether they are maintainable in appeal? In that
context, the question arose: as to when the trial began? It
was contended therein that the order amending pleadings
under Order 6 Rule 17, CPC was not part of the trial and,
therefore, it could not be subject of consideration in
appeal. Considering the above question, this Court held
that:
“Taking the first contention, the
point for decision is as to what
the word ‘trial’ in s.90(2) means.
According to the appellants, it
must be understood in a limited
sense, as meaning the final hearing
of the petition, consisting of
examination of witnesses, filing
documents and addressing arguments.
According to the respondent, it
connotes the entire proceedings
before the Tribunal from the time
that the petition is transferred to
it under s.86 of the Act until the
pronouncement of the award. While
the word ‘trial’ standing by itself
is susceptible of both the narrow
and the wider senses indicated
above, the question is, what
meaning attaches to it in s.90(2),
and to decide that, we must have
regard to the context and the
setting of the enactment. Now, the
provisions of the Act leave us in
no doubt as to in what sense the
word is used in s.90(2). It occurs
in Chapter III which is headed
“Trial of election petitions”.
Section 86(4) provides that if
during the course of the trial any
member of a Tribunal is unable to
perform his functions, the Election
Commission is to appoint another
members, and thereupon the trial is
to be continued. This provision
must apply to retirement or
relinquishment by a member, even
before the hearing commences and
the expression “during the course
of trial” must therefore include
the stages prior to the hearing.
Section 88 again provides that the
trial is to be held at such places
as the Election Commission may
appoint. The trial here must
necessarily include the matters
preliminary to the hearing such as
the settlement of issues, issuing
direction and the like. After the
petition is transferred to the
Election Tribunal under s.86,
various steps have to be taken
before the stage can be set for
hearing it. The respondent has to
file his written statement, issues
have to be settled. If ‘trial’ for
the purpose of s.90(2) is to be
interpreted as meaning only the
hearing, then what is the provision
of law under which the Tribunals to
call for written statements and
settle issues? Section 90(4) enacts
that when an election petition does
not comply with the provisions
s.81, s.83 or s.117, the Tribunal
may dismiss it. But if it does not
dismiss it, it must necessarily
have the powers to order
rectification of the defects
arising by reason of non-compliance
with the requirements of s.81, s.83
or s.117. That not being a power
expressly conferred on it under
s.92 can only be sought under s.
90(2), and resort to that section
can be had only if trial is
understood as including proceedings
prior to hearing. Section 92 enacts
that the Tribunal shall have powers
in respect of various matters which
are vested in 3 court under the
Civil Procedure Code when trying a
suit, and among the matters set out
therein are discovery and
inspection, enforcing attendance of
witnesses and compelling the
production of documents, which
clearly do not form part of the
hearing but precede it. In our
opinion, the provisions of Chapter
III read as a whole, clearly show
that ‘trial’ is used as meaning the
entire proceedings before the
Tribunal from the time when the
petition is transferred to it under
s.86 until the pronouncement of the
award.”
In Om Prabha Jain v. Gian Chand & Anr. [AIR 1959 SC
837], it was held that the word “trial” clearly means entire
proceedings before tribunal from the reference to it by the
Election Commission to the conclusion. This Court found no
reason to attribute a restricted meaning to the word ‘trial’
in Section 98 of the Representation of the People Act, 1951.
In the light of the above discussion, we hold that the
trial commences the moment GCM assembles to consider the
charge and examines whether they would proceed with the
trial. The preceding preliminary investigation is only part
of the process of investigation to find whether a charge
could be framed and placed before the competent authority to
constitute GCM. On February 25, 1987, the GCM assembled and
recorded the proceedings as under:
“Trial of Shri Yadava, Madan
Lal formerly IC-5122N Lt. Gen
[Substantive Maj Gen] Yadava Madan
Lal of Army Ordnance Corps. School
Jabalpur, attached to National
Defence Academy, Khadakwasla.
The order convening the court,
the charge-sheet and the summary of
evidence are laid before the court.
The court satisfy themselves
as provided by Army Rules 41 and
42.
———————————–
I have satisfied myself, that
no Court of Inquiry was held
respect the matters forming the
subject or the charge before this
court martial.
———————————–
At this stage, the court observe
that the Prosecutor and the
Defending Officer have taken their
respective places but the accused
is not present before the court.
The Prosecutor submits that the
accused Shri Madan Lal Yadava
formerly Lt Gen [Substantive Maj
Gen] Madan Lal Yadava of Army
Ordnance Corps School, Jabalpur
retired from service with effect
from 31 August 86 [AN]. He has been
subjected to the provisions of
Section 123 of the AA with effect
from the same date and put under
open arrest with effect from 1200 h
on 30 August 1986. According to a
note dated 15 February 1987, found
in his room the accused had
proceeded to Bombay to engage a
suitable counsel. Though he had
stated therein that he would keep
the Comdt, NDA Khadakwasla informed
about his whereabouts, they are not
yet known. Vigorous efforts are
being made to trace him out and
produce him before the Court. In
view of this he requests that the
Court be adjourned till 1100 h 26
February 1987.
The Defending Officer, IC-6727F Maj
Gen Yadav Yitendra Kumar, who is
present in the court submits in
reply that he too had had no
opportunity to get in touch with
the accused and as such has no
information regarding whereabouts
of the accused”.
“Advice by the Judge Advocate
Gentlemen, you have heard the
submission made by the Prosecutor
with regard to the absence of the
accused as also reply of the
learned Defending Officer. The
Prosecutor has given the detailed
circumstances in which the accused
had escaped from military custody.
He further submitted before you
that vigorous efforts were being
made to secure his presence before
you to stand the trial and to this
effect, prayed for the adjournment
of the Court until 1100 h on 26 Feb
87. In view of the foresaid
submission made by the Prosecutor,
I advise you to consider granting
him suitable adjournment to secure
the presence of the accused. The
Court decide to adjourn until 1100
h 26th Feb 1987. The above decision
is announced in the court”.
On February 26, 1987 when it again assembled, the GCM
was informed by the prosecutor that despite their diligent
steps taken to have the accused traced and produced before
the court they were unable to do that and a request for
adjourning the proceedings to the next day was made and the
defence counsel also had expressed his inability to know the
whereabouts of the respondent. On advice by the Judge-
Advocate, the court adjourned the case to February 27, 1987.
Similarly, the case was adjourned to February 28, 1987 on
which date when it assembled, the proceedings were
recorded as under:
“At 1000 h on 28 February
1987, Court re-assemble, pursuant
to the adjournment; present the
same members and the Judge-Advocate
as on 27 February, 1987.
The Court observe that the
accused is still not present before
the court.
The Prosecutor submits that
despite the best efforts including
taking help from the various civil
agencies to locate the accused he
has not yet been able to find out
his whereabouts and as such unable
to produce him before the court. It
is, however, earnestly hoped that
he would be able to get some clue
about his whereabouts by 01 March
1987. In that event he would be
able to produce him before the
court on 02 March 1987. He
therefore, prays that an
adjournment until 1000 h 02 March
1987 be granted. He further gives
an undertaking that he will seek no
further adjournment on this account
and if he is not in a position to
produce the accused by that dates
will seek sine die adjournment of
the Court.
The learned Defending Officer
submits that he too has so far no
information about the accused.
Advice by the Judge Advocate
—————————-
Gentlemen, you have heard the
submissions of the Prosecutor and
the learned Defending Officer. The
Prosecutor submitted before you
that he would be in a position to
produce the accused on 02 March
1987 and that he would not seek any
further adjournment of the Court on
this account in case he failed to
secure his presence on or before
that date. In the interest of the
justice, you may therefore,
consider granting him yet another
adjournment to help secure the
presence of the accused .
The Court decide to adjourn until
0900 h on 2 March 1987.”
Accordingly, on March 2, 1987 when the court re-
assembled the accused was present, the charge was handed
over to him and he asked for adjournment for 15 days and on
advice it was adjourned to March 18, 1987 on which day the
respondent informed the court of his filing the writ
petition and the assurance given by the counsel appearing
for the appellants in the High Court not to proceed with the
trial. Accordingly, it was adjourned pending Writ Petition
No.301 of 1987, the subject of this appeal. It would thus be
clear that the respondent having escaped from the open
military detention caused adjournment of the trial beyond
February 28, 1987 to secure the presence and arrangement of
the respondent at the trial by GCM.
Our conclusion further gets fortified by the scheme of
the trial of a criminal case under the Code of Criminal
Procedure, 1973, viz., Chapter XIV “Conditions requisite for
initiation of proceedings” containing Sections 190 to 210,
Chapter XVIII containing Sections 225 to 235 and dealing
with “trial before a Court of Sessions” pursuant to
committal order under Section 209 and in Chapter XIX “trial
of warrant-cases by Magistrates” containing Sections 238 to
250 etc. It is settled law that under the said Code trial
commences the moment cognizance of the offence is taken and
process is issued to the accused for his appearance etc.
Equally, at a Sessions trial, the court considers the
committal order under Section 209 by the Magistrate and
proceeds further. It takes cognizance of the offence from
that stage and proceeds with the trial. The trial begins
with the taking of the cognizance of the offence and taking
further steps to conduct the trial.
Even if narrow interpretation is plausible, on the
facts in this case, we have no hesitation to conclude that
the trial began on February 25, 1987 on which date the
Court-martial assembled, considered the charge and the
prosecution undertook to produce the respondent who was
found escaped from the open detention, before the Court. It
is an admitted position that GCM assembled on February 25,
1987. On consideration of the charge, the proceedings were
adjourned from day to day till the respondent appeared on
March 2, 1987. It is obvious that the respondent had avoided
trial to see that the trial would not get commenced. Under
the scheme of the Act and the Rules, presence of the accused
is a pre-condition for commencement of trial. In his absence
and until his presence was secured, it became difficult, may
impossible, to proceed with the trial of the respondent-
accused. In this behalf, the maxim nullus commodum capere
potest de injuria sua propria- meaning no man can take
advantage of his own wrong – squarely stands in the way of
avoidance by the respondent and he is estopped to plead bar
of limitation contained in Section 123 [2]. In Broom’s Legal
Maximum [10th Edn.] at page 191 it is stated “it is a maxim
of law, recognized and established, that no man shall take
advantage of his own wrong; and this maxim, which is based
on elementary principles, is fully recognized in Courts of
law and of equity, and, indeed, admits of illustration from
every branch of legal procedure. The reasonableness of the
rule being manifest, we proceed at once to show its
application by reference to decided cases. It was noted
therein that a man shall not take advantage of his own wrong
to gain the favourable interpretation of the law. In support
thereof, the author has placed reliance on another maxim
frustra legis auxilium quoerit qui in legem committit. He
relies on Perry v. Fitzhowe [8 Q.B. 757]. At page 192, it is
stated that if a man be bound to appear on a certain day,
and before that day the obligee put him in prison, the bond
is void. At page 193, it is stated that “it is moreover a
sound principle that he who prevents a thing from being done
shall not avail himself of the non-performance he has
occasioned”. At page 195, it is further stated that “a wrong
doer ought not to be permitted to make a profit out of his
own wrong”. At page 199 it is observed that “the rule
applies to the extent of undoing the advantage gained where
that can be done and not to the extent of taking away a
right previously possessed”.
The Division Bench of the High Court has recorded the
finding that the respondent has absconded from open military
detention. From the narration of the facts it is clear that
the respondent was bent upon protracting preliminary
investigation. Ultimately, when the GCM was constituted, he
had challenged his detention order. When he was unsuccessful
and the trial was to begin he escaped the detention to
frustrate the commencement of the trial and pleaded bar of
limitation on and from March 1, 1987. The respondent having
escaped from lawful military custody and prevented the trial
from being proceeded with in accordance with law, the maxim
nullus commodum capere potest de injuria sua propria
squarely applies to the case and he having done the wrong,
cannot take advantage of his own wrong and plead bar of
limitation to frustrate the lawful trial by a competent GCM.
Therefore, even on the narrow interpretation, we hold that
continuation of trial from March 2, 1987 which commenced on
February 25, 1987 is not a bar and it is a valid trial.
It is next contended that trial of the respondent at
this distance of time is not justiciable. In support of this
contention, reliance is placed by Shri Bobde on Devi Lal &
Anr. v. The State of Rajasthan [(1971) 3 SCC 471] wherein
the High Court had confirmed the conviction under Section
302 read with Section 34, IPC and sentence for imprisonment
for life. This Court found that the prosecution had not
proved as to which of the two persons had opened the fire as
found by the Sessions Court and the distinction between
Section 149 and 34, IPC was not clearly noticed by the
Sessions Court and the High Court. When retrial was sought
for by the prosecution, this Court rejected the contention
on the ground that retrial at such a belated stage was not
justifiable. The ratio has no application to the facts in
this case. Therein, the trial was proceeded with and when
the accused was convicted by the Sessions Court and
confirmed by the High Court, this Court found that the
prosecution had not established the case in accordance with
law and had not proved the guilt beyond reasonable doubt.
Under those circumstances, this Court had rightly declined
to order retrial. But the ratio does not fit into the facts
of this case. It is seen that the respondent had frustrated
the trial by escaping from detention and reappeared after
the limitation for trial of the offence was barred.
Therefore, acceptance of the contentions would amount to
putting a premium on avoidance.
We find ourselves unable to agree with the view
expressed by the Assam High Court in Gulab Nath Singh v. The
Chief of the Army Staff [1974 Assam LR 260].
It is next contended that since the respondent had
surrendered himself, trial could be conducted by GCM at
Delhi. We find no equity in this behalf. The witnesses are
at Pune; records are at Pune, and the offence has taken
place at Pune. Therefore, the GCM should be conducted at
Pune. We find no justification in shifting the trial to
Delhi.
The appeal is accordingly allowed. The judgment of the
High Court is set aside. The writ petition stands dismissed.
The appellants are at liberty to secure the presence of the
respondent; it would be open to the respondent to surrender
himself to closed military detention; and the respondent
would keep him in detention and conduct the trial as
expeditiously as possible.