{"id":182879,"date":"1963-12-12T00:00:00","date_gmt":"1963-12-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ram-sarup-vs-the-union-of-india-and-another-on-12-december-1963"},"modified":"2016-10-27T15:52:16","modified_gmt":"2016-10-27T10:22:16","slug":"ram-sarup-vs-the-union-of-india-and-another-on-12-december-1963","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ram-sarup-vs-the-union-of-india-and-another-on-12-december-1963","title":{"rendered":"Ram Sarup vs The Union Of India And Another on 12 December, 1963"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ram Sarup vs The Union Of India And Another on 12 December, 1963<\/div>\n
Equivalent citations: 1965 AIR 247, \t\t 1964 SCR (5) 931<\/div>\n
Author: R Dayal<\/div>\n
Bench: Sinha, Bhuvneshwar P.(Cj), Wanchoo, K.N., Dayal, Raghubar, Ayyangar, N. Rajagopala, Mudholkar, J.R.<\/div>\n
           PETITIONER:\nRAM SARUP\n\n\tVs.\n\nRESPONDENT:\nTHE UNION OF INDIA AND ANOTHER\n\nDATE OF JUDGMENT:\n12\/12\/1963\n\nBENCH:\nDAYAL, RAGHUBAR\nBENCH:\nDAYAL, RAGHUBAR\nSINHA, BHUVNESHWAR P.(CJ)\nWANCHOO, K.N.\nAYYANGAR, N. RAJAGOPALA\nMUDHOLKAR, J.R.\n\nCITATION:\n 1965 AIR  247\t\t  1964 SCR  (5) 931\n CITATOR INFO :\n R\t    1971 SC 500\t (19)\n R\t    1971 SC1120\t (17)\n R\t    1979 SC1588\t (14)\n R\t    1982 SC1413\t (15,17)\n RF\t    1983 SC 658\t (7)\n\n\nACT:\nArmy  Act  (XLVI of 1950), ss. 125, 126\t and  164-Scope\t of-\nConstitution  of India, 1950, Art. 33-Effect on\t fundamental\nrights-s.  125\tof Army Act if violative of Art. 14  of\t the\nConstitution.\n\n\n\nHEADNOTE:\nThe General Court Martial sentenced the petitioner, a sepoy,\nto death under s. 69 of the Army Act read with s. 302 of the\nIndian\n932\nPenal Code for shooting dead two sepoys and a Havildar.\t The\nCentral\t Government confirmed the sentence.  The  petitioner\nfiled  writs  of habeas corpus and  certiorari\tfor  setting\naside  the  orders  of the Court  Martial  and\tthe  Central\nGovernment and for his release.\nHeld.:\t  (i)  The  petitioner\tmade no\t request  for  being\nrepresented at the court martial by a counsel of his choice;\nconsequently no such request was refused, and that there has\nbeen no violation of the fundamental right of the petitioner\nto be defended by a counsel of his choice.\n(ii) There has been no non-compliances of the provisions  of\nS. 132(2) of the Act.  In view of the provisions of rr.\t 45,\n46,  61(2) and 62 of the Army Rules, 1954, the\tpetitioner's\nstatement,   that  the\tdeath  sentence\t was  voted  by\t  an\ninadequate majority of the members of the Court which can be\nconsidered  to be a mere allegation, cannot be based on\t any\ndefinite  knowledge  as\t to  how  the  voting  went  at\t the\nconsideration of the finding in pursuance of r. 61.\n(iii)\t  Section 164 does not lay down that the correctness\nof  the order or sentence of the Court Martial is always  to\nbe  decided by two higher authorities; it only provides\t for\ntwo remedies.  The further petition can only be made to\t the\nauthority superior to the authority which confirms the order\nof the Court Martial, and if there be no authority  superior\nto the confirming authority, the question of remedy  against\nits order does not arise.\n(iv) Each and every provision of the Army Act is a law\tmade\nby Parliament and that if any such provision tends to affect\nthe  fundamental rights under Part III of the  Constitution,\nthat provision does not, on that account, become void, as it\nmust  be taken that Parliament has in exercise of its  power\nunder  Art.  33\t of  the  Constitution\tmade  the  requisite\nmodification to affect the respective fundamental right.\n(v)  The   provisions  of  s.  125  of\tthe  Act   are\t not\ndiscriminatory and do not infringe the provisions of Art. 14\nof the Constitution.\n(vi) The discretion to be exercised by the Military  Officer\nspecified in s. 125 of the Act as to the trial of accused by\nCourt Martial or by an ordinary court, cannot be said to  be\nunguided  by  any  other  policy laid down  in\tthe  Act  or\nuncontrolled by any authority.\tThere could be a variety  of\ncircumstances which may influence the decision as to whether\nthe  offender  be tried by a Court Martial  or\tby  ordinary\ncriminal  court\t and therefore becomes inevitable  that\t the\ndiscretion  to make the choice as to which court should\t try\nthe  accused be left to responsible Military officers  under\nwhom  the  accused  is serving.\t Those officers\t are  to  be\nguided\tby considerations of the exigencies of\tthe  service\nmaintenance  of discipline in the army, speedier trial,\t the\nnature\tof  the\t offence and the  person  against  whom\t the\noffence is committed\n933\nThis  discretion  is subject to the control of\tthe  Central\nGovernment.\n(vii)\t  According  to\t s.  549 of  the  Code\tof  Criminal\nProcedure  and the rules thereunder, the final choice  about\nthe  forum  of\tthe trial of a person  accused\tof  a  civil\noffence rests with the Central Government, whenever there be\ndifference of opinion between a Criminal Court and  Military\nauthorities about the forum.  The position under ss. 125 and\n126 of the Army Act is also the same.\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL JURISDICTION : Petition No. 166 of 1963.
\nUnder  Article\t32  of the Constitution\t of  India  for\t the
\nenforcement of fundamental rights.\n<\/p>\n
O.P. Rana, for the petitioner.\n<\/p>\n
C.K.  Daphtary,\t B.R.L.\t lyengar and  R.H.  Dhebar  for\t the
\nrespondents.\n<\/p>\n
December 12, 1963.  The Judgment of the Court was  delivered
\nby
\nRAGHUBAR DAYAL J.-Ram Sarup, petitioner, was a sepoy in\t 131
\nPlatoon\t DSC, attached to the Ordnance\tDepot,\tShakurbasti.
\nAs  a  sepoy, he is subject to the Army Act, 1950  (XLVI  of
\n1950), hereinafter called the Act.\n<\/p>\n
On June 13, 1962 he shot dead two sepoys, Sheotaj Singh\t and
\nAd  Ram and one Havildar Pala Ram.  He was charged on  three
\ncounts\tunder S. 69 of the Act read with s. 302\t I.P.C.\t and
\nwas tried by the General Court Martial.\t On January 12, 1963
\nthe  General  Court Martial found him guilty  of  the  three
\ncharges and sentenced him to death.\n<\/p>\n
The  Central Government confirmed the findings and  sentence
\nawarded\t by  the General Court Martial\tto  the\t petitioner.
\nThereafter,  the  petitioner has filed\tthis  writ  petition
\npraying\t for the issue of a writ in the nature of a writ  of
\nhabeas\tcorpus\tand a writ of certiorari setting  aside\t the
\norder  dated January 12, 1963 of the General  Court  Martial
\nand the order of the Central Government confirming the\tsaid
\nfindings and sentence and for his release from the Central
\n934<\/span>
\nJail,  Tehar,  New  Delhi,  where  he  is  detained  pending
\nexecution of the sentence awarded to him.\n<\/p>\n
The contentions raised for the petitioner are: (1) That\t the
\nprovisions  of\ts. 125 of the Act are  dis  criminatory\t and
\ncontravene  the\t provisions of Art. 14 of  the\tConstitution
\ninasmuch  as  it is left to the unguided discretion  of\t the
\nofficer\t mentioned  in that section to\tdecide\twhether\t the
\naccused\t person\t would be tried by a Court Martial or  by  a
\nCriminal  Court. (2) Section 127 of the Act  which  provides
\nfor  successive\t trials\t by a Criminal\tCourt  and  a  Court
\nMartial,   violates  the  provisions  of  Art.\t20  of\t the
\nConstitution   as  it  provides\t for  the  prosecution\t and
\npunishment of a person for the same offence more than  once.
\n(3)  The  petitioner was not allowed to be defended  at\t the
\nGeneral Court Martial by a legal practitioner of his  choice
\nand  therefore there had been a violation of the  provisions
\nof  Art. 22(1) of the Constitution. (4) The  procedure\tlaid
\ndown for the trial of offences by the General Court  Martial
\nhad not been followed inasmuch as the death sentence awarded
\nto the petitioner was not passed with the concurrence of  at
\nleast  two-thirds of the members of the Court.\t(5)  Section
\n164  of the Act provides two remedies, one after the  other,
\nto  a  person  aggrieved  by any order\tpassed\tby  a  Court
\nMartial.  Sub-s. (1) allows him to present a petition to the
\nofficer\t or  authority empowered to confirm any\t finding  or
\nsentence  of the Court Martial and sub-s. (2) allows him  to
\npresent a petition to the Central Government or to any other
\nauthority  mentioned  in that sub-section and  empowers\t the
\nCentral Government or the other authority to pass such order
\non  the\t petition as it thinks fit.   The  petitioner  could
\navail of only one remedy as the finding and sentence of\t the
\nCourt Martial was confirmed by the Central Government.\t He,
\ntherefore,  could not go to any other authority against\t the
\norder of the Central Government by which he was aggrieved.
\nIt  will be convenient to deal with the first point  at\t the
\nend and take up the other points here.\n<\/p>\n
935<\/span><\/p>\n
The petitioner has not been subjected to a second trial\t for
\nthe  offence of which he has been convicted by\tthe  General
\nCourt Martial.\tWe therefore do not consider it necessary to
\ndecide the question of the validity of s. 127 of the Act  in
\nthis case.\n<\/p>\n
With  regard  to  the third point, it is  alleged  that\t the
\npetitioner had expressed his desire, on many, occasions, for
\npermission to engage a practising civil lawyer to  represent
\nhim  at\t the  trial but the authorities\t turned\t down  those
\nrequests and told him that it was not permissible under\t the
\nMilitary  rules to allow the services of a  civilian  lawyer
\nand that, he would have to defend his case with the  counsel
\nhe  would  be  provided by  the\t Military  Authorities.\t  In
\nreply,,\t it  is\t stated\t that  this  allegation\t about\t the
\npetitioner’s  requests and their being turned down  was\t not
\ncorrect,  that it was not made in the petition but was\tmade
\nin  the\t reply\tafter  the  State  had\tfiled  its   counter
\naffidavits  in which it was stated that no such request\t for
\nhis representation by a legal practitioner had been made and
\nthat there had been no denial of his fundamental rights.  We
\nare  of opinion that the petitioner made no request for\t his
\nbeing  represented at the Court Martial by a counsel of\t his
\nchoice,\t that consequently no such request was\trefused\t and
\nthat  he cannot be said to have been denied his\t fundamental
\nright of being defended by a counsel of his choice.
\nIn paragraph 9 of his petition he did not state that he\t had
\nmade a request for his being represented by a counsel of his
\nchoice.\t He simply stated that certain of his relatives\t who
\nsought\tinterview  with him subsequent to  his\tarrest\twere
\nrefused permission to see him and that this procedure  which
\nresulted  in denial of opportunity to him to defend  himself
\nproperly  by engaging a competent civilian   lawyer  through
\nthe  resources and help of his relatives had  infringed\t his
\nfundamental right under Art. 22 of the Constitution.  If the
\npetitioner  had made any express request for being  defended
\nby  a  counsel\tof  his choice, he  should  have  stated  so
\nstraight-forwardly in para 9 of his petition.  His  involved
\nlanguage
\n936<\/span>
\ncould only mean that he could not contact his relations\t for
\ntheir  arranging  a civilian lawyer for his  defence.\tThis
\nnegatives  any\tsuggestion  of a  request  to  the  Military
\nAuthorities for permission to allow him representation by  a
\npractising lawyer and its refusal.\n<\/p>\n
We  therefore hold that there had been no violation  of\t the
\nfundamental  right  of the petitioner to be  defended  by  a
\ncounsel\t of  his choice, conferred under Art. 22(1)  of\t the
\nConstitution.\n<\/p>\n
Further,  we do not consider it necessary to deal  with\t the
\nquestions,  raised at the hearing, about the validity of  r.
\n96  of the Army Rules, 1954, hereinafter called\t the  rules,
\nand  about  the power of Parliament to delegate\t its  powers
\nunder Art. 33 of the Constitution to any other authority.
\nThe  next point urged for the petitioner is the sentence  of
\ndeath passed by the Court Martial was against the provisions
\nof’ s. 132(2) of the Act inasmuch as the death sentence\t was
\nvoted by an inadequate majority.  The certificate, signed by
\nthe presiding officer of the Court Martial and by the Judge-
\nAdvocate,  and produced as annexure ‘A’ to the\trespondent’s
\ncounter to the petition, reads:\n<\/p>\n
“Certified  that  the sentence of death is passed  with\t the
\n\t      concurrence  of  at  least  Two-third  of\t the
\n\t      members of the Court as provided by AA Section
\n\t      132(2).”\n<\/p>\n
It is alleged by the petitioner that this certificate is not
\ngenuine but was prepared after his filing the writ petition.
\nWe see no reason to accept the petitioner’s allegations.  He
\ncould not have known about the voting of the members of\t the
\nGeneral Court Martial.\tRule 45 gives the Form of Oath or of
\nAffirmation  which,  is administered to every  member  of  a
\nCourt Martial.\tIt enjoins upon him that he will not on\t any
\naccount at any time whatsoever disclose or discover the vote
\nor  opinion  of any particular member of the  Court  Martial
\nunless\trequired  to give  evidence thereof  by\t a  Court of
\nJustice
\n937<\/span>
\nor  Court  Martial  in due course of law.   Similar  is\t the
\nprovision  in  the Form of Oath or of Affirmation  which  is
\nadministered  to the Judge-Advocate, in pursuance of r.\t 46.
\nRule  61  provides that the Court shall\t deliberate  on\t its
\nfinding\t in  closed  Court in the  presence  of\t the  Judge-
\nAdvocate.   It is therefore clear that only the\t members  of
\nthe Court and the Judge-Advocate can know how the members of
\nthe  Court  Martial  gave their votes.\tThe  votes  are\t not
\ntendered  in writing.  No record is made of them.   Sub-rule
\n(2) of r. 61 provides that the opinion of each member of the
\nCourt  as to the finding shall be given by word of mouth  on
\neach  charge separately.  Rule 62 provides that the  finding
\non every charge upon which the accused is arraigned shall be
\nrecorded  and,\texcept as provided in the  rules,  shall  be
\nrecorded  simply  as  a\t finding off  ‘guilty’\tor  of\t‘not
\nguilty’.   In  view of these  provisions,  the\tpetitioner’s
\nstatement, which can be considered to be a mere\t allegation,
\ncannot\tbe  based on any definite knowledge as\tto  how\t the
\nvoting went at the consideration of the finding in pursuance
\nof r. 61.\n<\/p>\n
Further,  there is no reason to doubt what is stated in\t the
\ncertificate  which, according to the  counter-affidavit,  is
\nnot  recorded  in pursuance of any provision  governing\t the
\nproceedings of the Court Martial, and does not form Dart  of
\nany  such proceedings.\tIt is recorded for the\tsatisfaction
\nof  the\t confirming  authority.\t The  certificate  is  dated
\nJanuary\t 12,  1963,  the date on which\tthe  petitioner\t was
\nconvicted.  The affidavit filed by Col.\t N.S. Bains,  Deputy
\nJudge-Advocate\t General,  Army\t Headquarters,\tNew   Delhi,
\ncontains  a denial of the petitioner’s allegation  that\t the
\ncertificate  is a false and concocted document and has\tbeen
\nmade  by  the  authorities  after the  filing  of  the\twrit
\nPetition.   We\tsee  no reason to  give\t preference  to\t the
\nallegations  of\t the petitioner over the statement  made  by
\nCol.   Bains in his affidavit, which finds support from\t the
\ncontents of Exhibit A signed by the presiding officer of the
\nCourt.Martial and the Judg-Advocate who could possibly\thave
\nno reason
\n938<\/span>
\nfor  issuing  a false certificates We  therefore  hold\tthat
\nthere  had  been no noncompliance of the  provisions  of  s.
\n132(2) of the Act.\n<\/p>\n
Next we come to the fifth point.  It is true that s. 164  of
\nthe  Act  gives two remedies to the person aggrieved  by  an
\norder, finding or sentence of a Court Martial, they being  a
\npetition to the authority which is empowered to confirm such
\norder,\tfinding or sentence and the petition to the  Central
\nGovernment  or some other officer mentioned in\tsub-s.\t(2),
\nafter  the  order  or sentence is confirmed  by\t the  former
\nauthority.    The  final  authority  to\t which\tthe   person
\naggrieved  by the order of the Court Martial can go  is\t the
\nauthority  mentioned  in sub-s. (2) of s. 164  and  if\tthis
\nauthority  happens  to be the confirming  authority,  it  is
\nobvious\t that there could not be any further  petition\tfrom
\nthe  aggrieved party to any other higher  authority  against
\nthe order of confirmation.  The further petition can only be
\nto  the authority superior to the authority  which  confirms
\nthe order of the Court Martial and if there be no  authority
\nsuperior  to  the confirming authority, the  question  of  a
\nremedy against its order does not arise.  Section 164,\tdoes
\nnot  lay down that the correctness of the order or  sentence
\nof  the Court Martial is always to be decided by two  higher
\nauthorities.  It only provides for two remedies.
\nSection\t 153 of the Act provides inter alia that no  finding
\nor sentence of a General Court Martial shall be valid except
\nso far as it may be confirmed as provided by the Act and  s.
\n154  provides  that the findings and sentence of  a  General
\nCourt Martial may be confirmed by the Central Government  or
\nby  any officer empowered in that behalf by warrant  of\t the
\nCentral Government.  It appears that the Central  Government
\nitself\texercised the power of confirmation of the  sentence
\nawarded\t to  the  petitioner in the instant case  by  the  ,
\nGeneral\t Court\tMartial.   The\tCentral\t Government  is\t the
\nhighest authority mentioned in sub-s. (2) of s. 164.   There
\ncould  therefore be no occasion for a further appeal to\t any
\nother body and therefore no justifiable grievance can
\n939<\/span>
\nbe  made of the fact that the petitioner had no occasion  to
\ngo to any other authority with a second petition as he could
\npossibly have done in case the order of confirmation was  by
\nany  authority subordinate to the Central  Government.\t The
\nAct  itself  provides  that the\t Central  Government  is  to
\nconfirm the findings and sentences of General Courts Martial
\nand therefore could not have contemplated, by the provisions
\nof  s. 164, that the Central Government could  not  exercise
\nthis  power but should always have this power  exercised  by
\nany  other  officer which it may empower in that  behalf  by
\nwarrant.\n<\/p>\n
We  therefore  do not consider this contention to  have\t any
\nforce.\n<\/p>\n
Lastly, Mr. Rana, learned counsel for the petitioner,  urged
\nin  support of the first that in the exercise of  the  power
\nconferred on Parliament under Art. 33 of the Constitution to
\nmodify\tthe  fundamental rights guaranteed by Part  111,  in
\ntheir  application to the armed forces, it enacted s. 21  of
\nthe   Act   which  empowers  the  Central   Government,\t  by
\nnotification,  to make rules restricting to such extent\t and
\nin such manner as may be necessary, the right of any  person
\nwith  respect to certain matters, that these matters do\t not
\ncover  the fundamental rights under Arts. 14, 20 and  22  of
\nthe  Constitution, and that this indicated the intention  of
\nParliament  not to modify any other fundamental right.\t The
\nlearned\t Attorney-General has urged that the entire Act\t has
\nbeen  enacted by Parliament and if any of the provisions  of
\nthe Act is not consistent with the provisions of any of\t the
\narticles  in Part III of the Constitution, it must be  taken
\nthat  to  the  extent of the  inconsistency  Parliament\t had
\nmodified  the  fundamental rights under\t those\tarticles  in
\ntheir  application to the person subject to that  Act.\t Any
\nsuch provision in the Act is as much law as the entire\tAct.
\nWe  agree that each and every provision of the Act is a\t law
\nmade  by Parliament and that if any such provision tends  to
\naffect\tthe  fundamental  rights  under\t Part  III  of\t the
\nConstitution,  that  provision does not,  on  that  account,
\nbecome
\n940<\/span>
\nvoid,  as it must be taken that Parliament has\tthereby,  in
\nthe exercise of its power under Art. 33 of the Constitution,
\nmade  the  requisite modification to affect  the  respective
\nfundamental  right.   We  are however of  opinion  that\t the
\nprovisions  of s. 125 of the Act are not discriminatory\t and
\ndo   not  infringe  the\t provisions  of\t Art.  14   of\t the
\nConstitution.\tIt is not disputed that the persons to\twhom
\nthe  provisions\t of s. 125 apply do form a  distinct  class.
\nThey  apply to all those persons who are subject to the\t Act
\nand  such  persons are specified in s. 2 of  the  Act.\t The
\ncontention  for\t the  petitioner is that  such\tpersons\t are
\nsubject to be tried for civil offences i.e., offences  which
\nare  triable by a Criminal Court according to s. 3  (ii)  of
\nthe  Act,  both\t by  the Courts\t Martial  and  the  ordinary
\nCriminal  Courts, that s. 125 of the Act gives a  discretion
\nto  certain  officers  specified in the\t section  to  decide
\nwhether\t any particular accused be tried by a Court  Martial
\nor by a Criminal Court, that there is nothing in the Act  to
\nguide such officers in the exercise of their discretion\t and
\nthat  therefore\t discrimination\t between  different  persons
\nguilty of the same offence is likely to take place  inasmuch
\nas a particular officer may decide to have one accused tried
\nby  a Court Martial and another person, accused of the\tsame
\noffence,  tried by a Criminal Court, the procedures in\tsuch
\ntrials being different.\n<\/p>\n
We have been taken through the various provisions of the Act
\nand  the  rules with respect to the trial of offences  by  a
\nCourt  Martial.\t  The procedure to be followed\tby  a  Court
\nMartial is quite elaborate and generally follows the pattern
\nof  the\t procedure  under the Code  of\tCriminal  Procedure.
\nThere  are,  however,  material differences  too.   All\t the
\nmembers\t of the Court Martial are Military Officers who\t are
\nnot expected to be trained Judges, as the presiding officers
\nof Criminal Courts are.\t No judgment is recorded.  No appeal
\nis  provided  against the order of the Court  Martial.\t The
\nauthorities  to\t whom  the convicted  person  can  represent
\nagainst his conviction by a Court Martial are also non-\n<\/p>\n
941<\/span><\/p>\n
judicial  authorities.\tIn the circumstances, a trial by  an
\nordinary  Criminal  Court would be more\t beneficial  to\t the
\naccused\t than one by a Court Martial.  The question then  is
\nwhether the discretion of the officers concerned in deciding
\nas  to\twhich Court should try a particular accused  can  be
\nsaid  to  be an unguided discretion, as\t contended  for\t the
\nappellant.   Section  125 itself does not  contain  anything
\nwhich can be said to be a guide for the exercise of the dis-
\ncretion,  but there is sufficient material in the Act  which
\nindicate  the policy which is to be a guide  for  exercising
\nthe  discretion\t and it is expected that the  discretion  is
\nexercised  in accordance with it.  Magistrates can  question
\nit  and\t the Government, in case of  difference\t of  opinion
\nbetween\t  the\tviews  of  the\tMagistrate  and\t  the\tarmy
\nauthorities,. decide the matter finally.
\nSection 69 provides for the punishment which can be  imposed
\non  a person tried for committing any civil offence  at\t any
\nplace  in  or  beyond  India, if charged  under\t s.  69\t and
\nconvicted  by  a  Court Martial.  Section  70  provides\t for
\ncertain persons who cannot be tried by Court Martial, except
\nin certain circumstances.  Such persons are those who commit
\nan  offence  of murder, culpable homicide not  amounting  to
\nmurder or of rape, against a person not subject to Military,
\nNaval or Air-Force law.\t They can be tried by Court  Martial
\nof  any of those three offences if the offence is  committed
\nwhile on active service or at any place outside India or  at
\na  frontier  post  specified by the  Central  Government  by
\nnotification  in that behalf.  This much therefore is  clear
\nthat  persons committing other offences over which both\t the
\nCourts\t Martial   and\t ordinary   Criminal   Courts\thave
\nJurisdiction can and must be tried by Courts Martial if\t the
\noffences  are  committed  while the  accused  be  on  active
\nservice or at any place outside India or at a frontier post.
\nThis  indication of the circumstances in which it  would  be
\nbetter\texercise  of  discretion to have a  trial  by  Court
\nMartial, is an index as to what considerations should guide
\n942<\/span>
\nthe decision of the officer concerned about the trial  being
\nby   a\tCourt  Martial\tor  by\tan  ordinary  Court.\tSuch
\nconsiderations\tcan  be based on grounds of  maintenance  of
\ndiscipline  in\tthe  army,  the\t persons  against  whom\t the
\noffences  are committed and the nature of the offences.\t  It
\nmay be considered better for the purpose of discipline\tthat
\noffences which are not of a serious type be ordinarily tried
\nby a Court Martial, which is empowered under s. 69 to  award
\na punishment provided by the ordinary law and also such less
\npunishment as he mentioned in the Act.\tChapter VII mentions
\nthe  various  punishments  which can be\t awarded  by  Courts
\nMartial and s. 72 provides that subject to the provisions of
\nthe  Act a Court Martial may, on convicting a person of\t any
\nof  the offences specified in ss. 34 to 68 inclusive,  award
\neither\tthe particular punishment with which the offence  is
\nstated\tin  the said sections to be punishable\tor  in\tlieu
\nthereof\t any one of the punishments lower in the  scale\t set
\nout in s. 7 1, regard being had to the nature and degree  of
\nthe offence.\n<\/p>\n
The  exigencies of service can also be a  factor.   Offences
\nmay be committed when the accused be in camp or his unit  be
\non  the march.\tIt would lead to great inconvenience if\t the
\naccused\t and  witnesses of the incident, if all or  some  of
\nthem happen to belong to the army, should be left behind for
\nthe purpose of trial by the ordinary Criminal Court.
\nThe trials in an ordinary court are bound to take longer, on
\naccount\t of  the procedure for such  trials  and  consequent
\nappeals\t and revision, then trials by Courts  Martial.\t The
\nnecessities  of\t the service in the  army  require  speedier
\ntrial.\t Sections  102\tand  103 of the\t Act  point  to\t the
\ndesirability  of the trial by Court Martial to be  conducted
\nwith  as much speed as possible.  Section 120 provides\tthat
\nsubject\t to  the provisions of sub-s. (2), a  summary  Court
\nMartial may try any of the offences punishable under the Act
\nand sub-s (2) states that an officer holding a summary Court
\nMartial\t shall not try certain offences without a  reference
\nto the officer empowered
\n943<\/span>
\nto  convene a district court martial or on active service  a
\nsummary\t general court martial for the trial of the  alleged
\noffender when there is no grave reason for immediate  action
\nand  such  a  reference can be\tmade  without  detriment  to
\ndiscipline.    This  further  indicates\t that  reasons\t for
\nimmediate action and detriment to discipline are factors  in
\ndeciding the type of trial.\n<\/p>\n
Such considerations, as mentioned above, appear to have\t led
\nto  the\t provisions  of s. 124 which are  that\tany  person,
\nsubject to the Act, who commits any offence against it,\t may
\nbe  tried  and\tpunished  for  such  offence  in  any  place
\nwhatever.   It is not necessary that he be tried at a  place
\nwhich be within the jurisdiction of a criminal court  having
\njurisdiction over the place where the offence be committed.
\nIn  short,  it\tis clear that there could be  a\t variety  of
\ncircumstances which may influence the decision as to whether
\nthe  offender be tried by a Court Martial or by an  ordinary
\nCriminal Court, and therefore it becomes inevitable that the
\ndiscretion  to make the choice as to which court should\t try
\nthe  accused be left to responsible military officers  under
\nwhom  the  accused  be serving.\t Those officers\t are  to  be
\nguided\tby considerations of the exigencies of the  service,
\nmaintenance  of discipline in the army, speedier trial,\t the
\nnature-\t of  the  offence and the person  against  whom\t the
\noffence is committed.\n<\/p>\n
Lastly,\t it  may  be  mentioned that  the  decision  of\t the
\nrelevant  military  officer  does  not\tdecide\tthe   matter
\nfinally.   Section  126\t empowers a  criminal  court  having
\njurisdiction  to  try an offender to  require  the  relevant
\nmilitary  officer to deliver the offender to the  Magistrate
\nto  be\tproceeded against according to law  or\tto  postpone
\nproceedings pending reference to the Central Government,  if
\nthat  criminal\tcourt  be of  opinion  that  proceedings  be
\ninstituted  before itself in respect of that offence.\tWhen
\nsuch  a request is made, the military officer has either  to
\ncomply\twith  it  or  to make a\t reference  to\tthe  Central
\nGovernment  whose orders would be final with respect to\t the
\nvenue of the trial.\n<\/p>\n
944<\/span><\/p>\n
The   discretion  exercised  by\t the  military\tofficer\t  is
\ntherefore subject to the control of the Central Government.
\nReference  may\talso  be  made to s. 549  of  the   Code  of
\nCriminal Procedure which empowers the Central Government  to
\nmake  rules  consistent\t with\tthe  Code  and\tother  Acts,
\nincluding  the\tArmy Act, as to the cases in  which  persons
\nsubject\t to military, naval or air-force law be tried  by  a
\ncourt  to  which the Code applies or by Court  Martial.\t  It
\nalso provides that when a person accused of such an  offence
\nwhich  can  be tried by an ordinary criminal court or  by  a
\nCourt Martial is brought before a Magistrate, he shall\thave
\nregard\tto such rules, and shall, in proper  cases,  deliver
\nhim, together with a statement of the offence of which he is
\naccused,  to the Commanding Officer of the regiment,  corps,
\nship or detachment to which he belongs, or to the Commanding
\nOfficer of the nearest military, naval or air-force station,
\nas the case may be, for the purpose of being tried by  Court
\nMartial.  This gives a discretion to the Magistrate,  having
\nregard\tto the rules framed, to deliver the accused  to\t the
\nmilitary authorities for trial by Court Martial.
\nThe  Central  Government framed rules by  S.R.O.  709  dated
\nApril 17, 1952 called the Criminal Courts and Court  Martial
\n(Adjustment  of Jurisdiction) Rules, 1952, under s. 549\t Cr.
\nP.C.  It  is  not  necessary to quote  the  rules  in  full.
\nSuffice\t it  to say that when a person\tcharged\t is  brought
\nbefore\ta Magistrate on an accusation of offences which\t are
\nliable\tto be tried by Court Martial, the Magistrate is\t not
\nto proceed with the case unless he is moved to do so by\t the
\nrelevant military authority.  He can, however, proceed\twith
\nthe case when he be of opinion, for reasons to be  recorded,
\nthat he should so proceed without being moved in that behalf
\nby competent authority.\t Even in such a case he has to\tgive
\nnotice\tof  his\t opinion to the Commanding  Officer  of\t the
\naccused\t and  is  not to pass any  order  of  conviction  or
\nacquittal under ss. 243, 245, 247 or 248 of the
\n945<\/span>
\nCode of Criminal Procedure, or hear him in defence under  s.
\n244 of the said Code; is not to frame any charge against the
\naccused\t under\ts.  254\t and is not  to\t make  an  order  of
\ncommittal to the Court of Session or the High Court under s.
\n213  of the Code, till a period of 7 days expires  from\t the
\nservice\t of  notice  on the military  authorities.   If\t the
\nmilitary  authorities intimate to the Magistrate before\t his
\ntaking\tany of the aforesaid steps that in its\topinion\t the
\naccused be tried by Court Martial, the Magistrate is to stay
\nproceedings   and  deliver  the\t accused  to  the   relevant
\nauthority  with the relevant statement as prescribed  in  s.
\n549 of the Code.  He is to do so also when he proceeds\twith
\nthe  case  on  being moved by  the  military  authority\t and
\nsubsequently  it changes its mind and intimates him that  in
\nits view the accused should be tried by Court Martial.\t The
\nMagistrate,  however, has still a sort of control over\twhat
\nthe  military  authorities  do\twith  the  accused.   If  no
\neffectual  proceedings are taken against the accused by\t the
\nmilitary   authorities\t within\t a  reasonable\t time,\t the
\nMagistrate  can\t report\t the  circumstances  to\t the   State
\nGovernment  which  may,\t in consultation  with\tthe  Central
\nGovernment,  take  appropriate\tsteps  to  ensure  that\t the
\naccused\t person is dealt with in accordance with  law.\t All
\nthis  is  contained  in\t rr. 3\tto  7.\tRule  8\t practically
\ncorresponds  to s. 126 of the Act and r. 9 provides for\t the
\nmilitary authorities to deliver the accused to the  ordinary
\ncourts\twhen,  in  its opinion or under the  orders  of\t the
\nGovernment,  the proceedings against the accused are  to  be
\nbefore a Magistrate.\n<\/p>\n
According  to  s.  549\tof the Code  and  the  rules  framed
\nthereunder, the final choice about the forum of the trial of
\na  person accused of a civil offence rests with the  Central
\nGovernment, whenever there be difference of opinion  between
\na  Criminal  Court and the military  authorities  about\t the
\nforum where an accused\tbe tried for the particular  offence
\ncommittee by him.  His position under ss. 125 and 126 of the
\nAct is also the same
\n1\/SCI\/64-60
\n946<\/span>
\nIt is clear therefore that the discretion to be exercised by
\nthe military officer specified in of the Act as to the trial
\nof accused by Court Martial or by an ordinary court,  cannot
\nbe said to be unguided by any policy laid down by the Act or
\nuncontrolled by any other authority.  Section 125 of the Act
\ntherefore  cannot, even on merits, be said to  infringe\t the
\nprovisions of Art. 14 of the Constitution.
\nThe writ petition  therefore fails and is dismissed.
\nPetition dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ram Sarup vs The Union Of India And Another on 12 December, 1963 Equivalent citations: 1965 AIR 247, 1964 SCR (5) 931 Author: R Dayal Bench: Sinha, Bhuvneshwar P.(Cj), Wanchoo, K.N., Dayal, Raghubar, Ayyangar, N. Rajagopala, Mudholkar, J.R. PETITIONER: RAM SARUP Vs. RESPONDENT: THE UNION OF INDIA AND ANOTHER DATE OF […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-182879","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRam Sarup vs The Union Of India And Another on 12 December, 1963 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ram-sarup-vs-the-union-of-india-and-another-on-12-december-1963\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ram Sarup vs The Union Of India And Another on 12 December, 1963 - 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