{"id":199897,"date":"1996-03-22T00:00:00","date_gmt":"1996-03-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-of-india-ors-vs-major-general-madan-lal-yadav-on-22-march-1996"},"modified":"2016-06-24T19:12:49","modified_gmt":"2016-06-24T13:42:49","slug":"union-of-india-ors-vs-major-general-madan-lal-yadav-on-22-march-1996","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-of-india-ors-vs-major-general-madan-lal-yadav-on-22-march-1996","title":{"rendered":"Union Of India & Ors vs Major General Madan Lal Yadav … on 22 March, 1996"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Union Of India & Ors vs Major General Madan Lal Yadav … on 22 March, 1996<\/div>\n
Equivalent citations: 1996 AIR 1340, \t\t 1996 SCC (4) 127<\/div>\n
Author: K Ramaswamy<\/div>\n
Bench: Ramaswamy, K.<\/div>\n
           PETITIONER:\nUNION OF INDIA & ORS.\n\n\tVs.\n\nRESPONDENT:\nMAJOR GENERAL MADAN LAL YADAV [RETD.]\n\nDATE OF JUDGMENT:\t22\/03\/1996\n\nBENCH:\nRAMASWAMY, K.\nBENCH:\nRAMASWAMY, K.\nAHMAD SAGHIR S. (J)\nG.B. PATTANAIK (J)\n\nCITATION:\n 1996 AIR 1340\t\t  1996 SCC  (4) 127\n JT 1996 (3)   465\t  1996 SCALE  (3)72\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nK. Ramaswamy, J.\n<\/p>\n
     This appeal  on  reference\t to  this  Bench  raises  an
\ninteresting question of law. The respondent while working as
\nMajor General,\tArmy Ordnance Corps., Southern Command, Pune
\nbetween December  1, 1982  and July 7, 1985 was in-charge of
\npurchase. The  Controller General  of  Defence\tAccounts  in
\nspecial audit  on the  local  purchases\t sanctioned  by\t the
\nrespondent prima  facie found that respondent had derelicted
\nhis duty and action under the Act was initiated against him.
\nAt that\t time, the  respondent was  attached to\t College  of
\nMilitary  Engineering,\t Pune  and  was\t promoted  as  Major
\nGeneral. After\tinitiation of the proceedings he was ordered
\nto retire  which he  had challenged  by filing Writ Petition
\nNo.3189 of  1986  in  the  Bombay  High\t Court\twhich  stood
\ndismissed on August 29, 1986.\n<\/p>\n
     On August\t30, 1986,  action was  initiated against the
\nrespondent under  Section 123  of the  Army Act,  1950\t[for
\nshort, the  ‘Act’]. He\twas kept under open arrest from that
\ndate onwards  and retired from service on August 31, 1986 as
\nMajor General.\tOn September  22, 1986,\t the respondent\t was
\nissued a  chargesheet and  recording of the summary evidence
\ncommenced on September 25, 1986. The respondent filed habeas
\ncorpus petition\t in this  Court\t under\tArticle\t 32  of\t the
\nConstitution on\t September 26,\t1986 and  refused to  cross-
\nexamine witnesses  examined at\tpreliminary enquiry  between
\nOctober 20  and 25, 1986. He sought for, and the proceedings
\nwere adjourned\tto November  3, 1986, on the ground that his
\nlawyer from  Delhi was to come to Pune for cross-examination
\nof the\twitnesses. Due\tto non-availment  of the opportunity
\ngiven to  the  respondent  to  cross-examine  the  witnesses
\nbetween November 20, 1986 and December 8, 1986, the case was
\nclosed for  prosecution on November 20, 1986. The respondent
\nsought 14  days’ time  to prepare  his case  which was\tduly
\nallowed. However,  the respondent  did not  give list of his
\ndefence witnesses  till November  30, 1986.  Consequent upon
\nit, on\tDecember 26, 1986, the Controller General of Defence
\nAccounts directed the Controller, Defence Accounts, Southern
\nCommand to  carry  out\tspecial\t audit\tfor  the  period  in
\nquestion. The  respondent had  sought permission  to  go  to
\nDelhi in connection with his writ petition which was granted
\nbetween December  16 and  18, 1986.  The writ  petition\t was
\ndismissed by  this Court  on December 18, 1986 against which
\nhe filed  special leave\t petition. On  January 3,  1987, the
\nrecording of  summary evidence\tagainst the  respondent\t was
\nconcluded. He sought permission to go to Delhi in connection
\nwith his  special leave\t petition which\t was granted between
\nJanuary 12  and February  5, 1987.  The summary evidence was
\nconsidered and\tGOC in\tCommand, Southern  Command submitted
\nhis report  on February\t 2, 1987. The special leave petition
\ncame to\t be dismissed  by this\tCourt on  February 5,  1987.
\nPursuant thereto,  general Court  martial [for short, ‘GCM’]
\nwas ordered  on February  24, 1987; the GCM assembled to try
\nthe respondent\ton February  25, 1987.\tOn  perusal  of\t the
\nreport, it was found that the respondent should be tried for
\nthe offence.  He was directed to be produced on February 26,
\n1987 but  it transpired\t that  the  respondent\thad  escaped
\nlawful military custody on the intervening night of February
\n15 and\t16, 1987.  Warrant was\tissued for  his arrest.\t The
\nrespondent voluntarily\tsurrendered on March 1, 1987 and was
\nplaced under  closed arrest  w.e.f. 2130  hours on  the said
\nday. The  Court-martial assembled  on March  2, 1987  but it
\nappears that  the respondent  had, in  the meanwhile,  filed
\nwrit petition  in the  Bombay  High  Court  challenging\t the
\njurisdiction of the Court-martial to try him. In W.P. No.301
\nor 1987,  invoking the\tprovisions of Section 123 [2] of the
\nActs the  Division Bench  had held  that the  trial  of\t the
\naccused had  not commenced  within six months of his ceasing
\nto be  subject to  the Act.  The trial\tby the Court-martial
\nwas, therefore,\t held to be illegal and accordingly writ was
\nissued. Calling in question this order, this appeal has been
\nfiled.\n<\/p>\n
     It\t is  undisputably  clear  that\tthe  respondent\t had
\nretired from  service on  August 31, 1986. He was kept under
\nopen arrest from August 26, 1986 and had escaped from lawful
\nmilitary custody on the intervening night of February 15 and
\n16, 1987  and voluntarily  surrendered\ton  March  1,  1987.
\nThough the  respondent has pleaded in the High Court that he
\nhad gone  with prior permission of the authorities, the same
\nhas been denied by the officer concerned. The High Court has
\nrecorded, as  a fact,  that  the  respondent  had  absconded
\nhimself. Section  123 of  the Act fastens culpability of the
\noffender who  ceased to\t be subject to the provisions of the
\nAct. Sub-section  [1] postulates that where an offence under
\nthe Act\t had been  committed by\t any person while subject to
\nthe Act, and he has ceased to be so subject, he may be taken
\ninto and  kept in  military custody,  and tried and punished
\nfor such  offence as  if he  continued to be so subject. Sub
\nsection [2]  which stands  amended by  Army Act\t [Amendment]
\nAct, 37\t of 1992,  prescribed limitation  on such action, at
\nthe relevant time, that no such person shall be tried for an
\noffence, unless\t his trial commences within six months after
\nhe had\tceased to  be subject  to the  Act. The amended sub-
\nsection [2]  is not  relevant  for  our\t purpose  since\t the
\noffence in  question was indisputably committed prior to the
\nAmendment came\tinto existence.\t The proviso  and other sub-
\nsections are also not relevant for our purpose.\n<\/p>\n
     The question,  therefore, is:  on which  date  did\t the
\ntrial of  the respondent  commence? In\tother words, whether
\nthe trial of the respondent commenced within six months from
\nthe date  of his  retirement,  viz.,  August  31,  1986?  By
\nprescription of\t six months’  limitation  under\t sub-section
\n[2], the  trial of  the respondent  was to  commence  before
\nFebruary 28,  1987. Consequently,  the question,  therefore,
\nis: what  is the  meaning of  the words “trial commenced” as
\nused in\t sub-section [2]  of Section  123 and  as to when it
\ncommences?\n<\/p>\n
     It is  contended by  Shri Malhotra, learned counsel for
\nthe appellants, that the word ‘commenced’ must be understood
\nand considered\tin the setting and scenario of the operation
\nof relevant  provisions of  the Act  and  the  rules  framed
\nthereunder, viz.,  the Army  Rules,  1954  [for\t short,\t the
\n‘Rules’]. Their\t conjoint reading  would indicate  that\t the
\nmoment the  Court martial assembles, takes cognisance of the
\noffence and  direct to\tproceed further,  the trial  must be
\ndeemed to  have been  commenced, as  all the  steps from the
\nstage are  integrally connected\t with the  trial. When Court
\nmartial assembled on February 25, 1987 and found prima facie
\ncase against  the respondent  to proceed  with the trial and
\ndirected to  secure his presence, it was discovered that the
\nrespondent had\tescaped the lawful open military custody and
\nmade himself  unavailable. Consequently, Court-martial could
\nnot proceed  with the  trial of\t the respondent until he was
\narrested and  brought before the Court martial or he himself
\nsurrendered.  Since   presence\tand   participation  by\t the
\nrespondent in  the trial  was a\t condition precedent, due to
\nnon-availability of  the respondent, the Court martial could
\nnot be proceeded with. After re-appearance of the respondent
\nor, March  1, 1987,  further steps were taken to conduct the
\ntrial by  the Court  martial. The  trial, therefore, was not
\nbarred by  operation of sub-section [2] of Section 123. Shri
\nBobde, appearing  for the  respondent, on  the\tother  hand,
\ncontended that\tSection 122  [3] provides  for exclusion  of
\ntime during  which the\taccused\t avoided  arrest  after\t the
\ncommission of  the  offence.  Similar  provision,  preceding
\namendment to sub-section [2] of Section 123 is not expressly
\nmade available\ton statute.  The offence  being of  criminal
\nnature, having\tregard to  the\tprovisions  of\tSection\t 123
\nlimitation should  strictly be\tconstrued, particularly when
\nit involves  liberty of\t the citizen.  He  argues  that\t the
\nlegislature had\t made a dichotomy of Sections 122 and 123 of
\nthe Act. The time during which the accused was not available
\ncannot, therefore, be excluded in computation of six months’
\nperiod prescribed in sub-section [2] of Section 123.\n<\/p>\n
     It is  further contended  that the trial commenced only
\nwhen the Court martial assembled, took oath in terms of Rule
\n45; applied  their mind\t under Rule  41 to  proceed  further
\nunder Rule  43. The  oath envisages  thus: “…..I will well
\nand truly  try the accused before the Court according to the
\nevidence and  that I  will duly administer justice according
\nto the\tArmy Act without partiality, favour or affection and
\nif any\tdoubt shall arise, then, according to my conscience,
\nthe  best  of  my  understanding  and  the  customs  of\t war
\nand….”.  The\t scheme\t would\tindicate  that\tthere  is  a
\ndistinction  between   inquiry\tand   trial  and  the  trial
\ncommences only\twhen the  Court-martial arraigns the accused
\non the\tcharge against him under Rule 48 whereby the accused
\nshall be  required to plead separately to each charge. Since
\nthe above Procedure had not been followed, the trial did not
\ncommence. It  is further  argued  that\tthe  accused  has  a
\nvaluable right\t under\tRule 48\t to object to the charge. If
\nthe objection  is sustained,  the charge  is required  to be
\namended under  Rule 50.\t He has\t also right to object to the
\nmembers of the Court-martial empanelled. He is also entitled
\nunder Rule  51 to  object to  the jurisdiction of the Court-
\nmartial.  Until\t the  Court  martial  assembles\t to  proceed
\nfurther, the  trial cannot  be said  to have  commenced. The
\nquestion, therefore,  is: as  to when  the  trial  commences
\nwithin the  meaning of\tSection 123  [2]?  With\t a  view  to
\nappreciate the\trival contentions  it is  necessary to grasp
\nthe relevant provision of the Act and the Rules.\n<\/p>\n
     Article 33\t of the Constitution empowers the Parliament
\nto modify  the fundamental  rights enshrined  in Part III in
\ntheir application  to the  members of  the Armed  Forces  or
\nmembers of  the Forces\tcharged with  the maintenance of the
\npublic\torder\tetc.  The  Act\twas  made  to  regulate\t the
\ngovernance of  the regular  Army. Under\t Section 2  [1] (a),
\nofficers shall\tbe subject  to the Act wherever they may be.
\nUnder Section  3,  unless  the\tcontext\t otherwise  requires
\n“active service” as applied to a person subject to this Act,
\nmeans the  time during\twhich such person is attached to, or
\nforms part  of, a  force  which\t is  engaged  in  operations
\nagainst any enemy, or…”. “Court-martial” under sub-section
\n[vii] means  a court-martial  held under  the Act. “Military
\ncustody”  under\t sub-section  [xiii]  means  the  arrest  or
\nconfinement of\ta person  according to\tthe  usages  of\t the
\nservice and includes naval or air force custody.\n<\/p>\n
     “Offence” has  been defined under sub-section [xvii] to
\nmean “any  act or  omission punishable”\t under the  Act\t and
\n“includes a  civil offence as hereinbefore defined”. Chapter
\nIX deals with “arrest and proceedings before trial”. Section
\n101 enables  custody of\t offenders.  Under  sub-section\t [1]
\nthereof, any  person subject  to the Act who is charged with
\nan  offence  may  be  taken  into  military  custody.  Under
\nsubsection [3]\tthereof, an  officer may order into military
\ncustody of any “officer”, though he may be of a higher rank,
\nengaged in  a quarrel,\taffray or  disorder. Chapter X deals
\nwith “Court-martial”  The details  thereof are\tnot material
\nfor the\t purpose of this case since the admitted position is
\nthat G.C.M.  was ordered against the respondent which is not
\nunder  challenge.   Section  122   deals  with\t “period  of
\nlimitation for trial” of “any person” subject to the Act. As
\nstated earlier,\t sub-section [3]  thereof make provision for
\nexclusion of  time, in computation of the prescribed periods
\ni.e., of any time spent by such person as a prisoner of war,
\nor in  enemy territory,\t or  in\t evading  arrest  after\t the
\ncommission of  the offence. Section 123 deals with liability
\nof offenders  who cease\t to be\tsubject to the provisions of
\nthe Act.  Sub-section [1]  thereof envisages  that where  an
\noffence under the Act had been committed by any person while
\nsubject to  the Act,  and he has ceased to be so subjects he
\nmay be\ttaken into  and kept  in military custody, and tried
\nand punished  for such\toffence as  if he continued to be so
\nsubject In  other words,  though the officer governed by the
\nprovisions of  Act ceases  to be  the person governed by the
\nprovisions of the Act, no trial for an offence under the Act
\nshall be  proceeded with  and no  such person shall be tried
\nfor an\toffence unless the trial commences within six months
\nof his ceasing to be subject to the Act.\n<\/p>\n
     Chapter V\tof the Rules relates to investigation of the
\ncharge and  trial by  court  martial.  Rule  22\t deals\twith
\nhearing of  charge. Sub-rule  [1] provides  the procedure to
\ndeal with  the charge  in the  presence of  the accused\t who
\nshall  have   full  liberty  to\t cross-examine\tany  witness
\nexamined against  him and  he may  call any witness and make
\nany statement in his defence. Rule 23 provides procedure for
\ntaking down the summery of evidence. Rule 24 empowers remand
\nof the\taccused. Rule  25  prescribes  procedure  on  charge
\nagainst officer.  Rule 26  provides  procedure\tfor  summary
\ndisposal of  the  charge  against  the\tofficers.  If  delay
\noccasions in  postal, under  Rule 27,  it is  required to be
\nreported.  Rule\t  28  deals  with  framing  of\tcharge-sheet
\ncontaining the\tdetails and issue or issues to be tried by a
\nCourt-martial. The  charge-sheet may  contain one  charge or
\nseveral charges.  Rule 29  deals with  commencement  of\t the
\ncharge-sheet. Rule  30 contains contents of the charge. Rule
\n33 provides  procedure for  preparation or  defence  by\t the
\naccused.  Rule\t 34  enjoins  that  before  the\t accused  is
\narraigned for an offence, he shall be informed by an officer
\nof every charge for which he is to be tried and also that on
\nhis giving the names of the witnesses whom he desire to call
\nin his defence, reasonable steps will be taken for procuring
\ntheir attendance  etc. Rule  35 deals  with  Joint-trial  of
\nseveral accused\t persons. Due  to military  exigencies or on
\ngrounds of  necessity of  discipline Rule  36  empowers\t the
\nsuspension of rules.\n<\/p>\n
     In Section\t 2 of  the Rules  dealing with\tGeneral\t and
\nDistrict Courts-martial,  convening the\t Court\tmartial\t has
\nbeen  envisaged.   Under  Rule\t 38,  Court-martial  may  be
\nadjourned if  before  arraigning  the  accused\tinsufficient
\nnumber of officers of the Court martial are noticed. Rule 39
\nspeaks of disqualification and ineligibility of officers for
\nCourt-martial. Rule 40 envisages composition of the GCM Rule
\n41  prescribes\t procedure  to\tbe  followed  at  trial\t and
\nconstitution of\t Court-martial which  is  relevant  for\t the
\npurposes of this Court. The rule reads as under:\n<\/p>\n
     “41. Inquiry  be court  as to legal
\n     constitution.  [1]\t  On  the  court
\n     assembling, the order convening the
\n     court  shall   be\tlaid  before  it
\n     together with  the charge sheet and
\n     the summary  of evidence  or a true
\n     copy thereof,  and also  the ranks,
\n     names, and\t corps of  the\tofficers
\n     appointed to  serve on  the  court;
\n     and the  court shall satisfy itself
\n     that  it  is  legally  constituted;
\n     that is to say-\n<\/p><\/blockquote>\n
     (a) that,\tso far\tas the court can
\n     ascertain,\t the   court  has   been
\n     convened  in  accordance  with  the
\n     provisions of  the\t Act  and  these
\n     rules;\n<\/p><\/blockquote>\n
     (b) that  the court  consists of  a
\n     number of\tofficers, not  less than
\n     the minimum  required by  law  and,
\n     save as  mentioned in  rule 38, not
\n     less than the number detailed;\n<\/p><\/blockquote>\n
     (c) that  each of\tthe officers  so
\n     assembled\tis   eligible  and   not
\n     disqualified for  serving\ton  that
\n     court-martial; and\n<\/p><\/blockquote>\n
     (d) that  in the  case  of\t general
\n     court-martial, the\t offices are  of
\n     the required rank.\n<\/p><\/blockquote>\n
     [2] The court shall, further, if it
\n     is a  general  or\tdistrict  court-<\/p><\/blockquote>\n
     martial to\t which a  judge-advocate
\n     has been  appointed, ascertain that
\n     the    judge-advocate    is    duly
\n     appointed and  is not  disqualified
\n     for sitting on that court-martial.
\n     [3] The  court,  if  not  satisfied
\n     with regard  to the compliance with
\n     the  aforesaid   provisions,  shall
\n     report its opinion to the convening
\n     authority, and may adjourn for that
\n     purpose.<\/p><\/blockquote>\n
     Rule 43  prescribes procedure  of trial – challenge and
\nswearing.  if  the  court  has\tsatisfied  itself  that\t the
\nprovisions of  Rule 41\tand 42\thave been  complied with, it
\nshall cause  the accused  to be brought before the court and
\nthe prosecutor,\t who must  be a\t person subject\t to the Act,
\nshall take  his due  place in the court. As seen, under Rule
\n45, oath is to be administered to the members of the  Court-
\nmartial etc.  They are\trequired to swear by Almighty God or
\naffirmation to\t“well and  truly try  the accused”.  Similar
\noath  may   be\tadministered  to  Judge-Advocate  and  other
\nofficers  under\t  Rules\t 46   and  47.\tRule  48  speaks  of
\n“arraignment of\t accused”.  It\tenvisages  that\t “after\t the
\nmembers of  the Court-martial and other persons are sworn or
\naffirmed as  above mentioned, the accused shall be arraigned
\non the\tcharges against\t him which shall be read out and, if
\nnecessary, translated  to him  in his  mother tongue, and he
\nshall be  required to  plead separately to each charge. Rule
\n49 deals  with objection  by the  accused to  the charge and
\nRules 50  allows amendment of the charge, if necessary. Rule
\n51  gives   him\t right\t to  take  a  special  plea  on\t the
\njurisdiction of GCM and under Rule 52 he can plead guilty or
\nnot guilty.  Rule 53  deals with  “plea in  bar” and Rule 54
\nwith “procedure\t after plea  of guilty”.  Rule 56 deals with
\nplea of not guilty, application and adduction of evidence by
\nthe prosecution. Rule 57 deals with plea of no case and Rule
\n58 with “close of case for the prosecution and procedure for
\ndefence where  accused does not call witness”. Rule 59 deals
\nwith the  “defence where  the accused  calls witnesses”\t and
\nRule 60\t with “summing up of the case by the judge-advocat”.
\nRule 61\t deals with  “consideration of\tfinding” and Rule 62
\nwith “forms  record and\t announcement of  finding”. Rule  63
\nconcerns “procedure  on acquittal” and Rule 64 “procedure on
\nconviction”. Rule  65 gives  power to  the Court-martial  to
\nimpose sentence\t and Rule  66 deals  with recommendation  to
\nmercy. Rule  67 deals  with “announcement  of  sentence\t and
\nsigning and transmission of proceedings”.\n<\/p>\n
     It is  true, as rightly contended by Shri Bobde that on
\nadministration of  oath to the members of the Court-martial,
\nthe members  swear to  try  the\t accused  according  to\t the
\nprovisions of  Act and\tRules etc. and to administer justice
\naccording  to\tthe  Act   without  partiality,\t  favour  or
\naffection. Under  Rule 44, names of the members of the Court
\nand presiding  officer will  be read over to the accused. He
\nshall be  asked, under\tSection 130,  of his  objections, if
\nany, for trial by any officer sitting on the court. Any such
\nobjection shall\t be disposed  or according to the Rules. The
\npresence and  participation by the accused, therefore, is an
\nindispensable pre-condition. Rule 42 enjoins the court to be
\nsatisfied  that\t the  requirements  of\tRule  41  have\tbeen
\ncomplied with.\tIt shall, further, satisfy itself in respect
\nof the charge brought before it and then proceed further. If
\nhe pleads “guilty”, the procedure contemplated in Rule 54 is
\nto be  followed and if he pleads “not guilty”, the procedure
\ncontemplated in Rule 56 shall be proceeded with and evidence
\nrecorded etc.
\n     The words “trial commences” employed in Section 123 [2]
\nshall be  required to  be understood  in the  light  of\t the
\nscheme of  the Act and the Rules. The question is as to when
\nthe trial is said to commence? The word ‘trial’ according to
\nCollins English Dictionary means:\n<\/p>\n
     “the act  or an  instance of trying
\n     or proving;  test or  experiment…
\n     Law. a. the judicial examination of
\n     the issues\t in a  civil or criminal
\n     cause by  a competent  tribunal and
\n     the determination\tof these  issues
\n     in accordance  with the  law of the
\n     land. b.  the determination  of  an
\n     accused person’s guilt or innocence
\n     after  hearing   evidence\tfor  the
\n     prosecution and nor the accused and
\n     the  judicial  examination\t of  the
\n     issues involved”.<\/p><\/blockquote>\n
     According to  Ballentine’s\t Law  Dictionary  [2nd\ted.]
\n‘trial’ means:\n<\/p>\n
     “an examination  before a competent
\n     tribunal according\t to the\t law  of
\n     the land,\tof the\tfacts or law put
\n     in\t issue\t in  a\tcause,\tfor  the
\n     purpose of\t determining such issue.
\n     When a  court hears  and determines
\n     any issue\tof fact\t or law\t for the
\n     purpose of determining the right of
\n     the parties, it may be considered a
\n     trial”<\/p><\/blockquote>\n
     In Block’s\t Law Dictionary\t [Sixth Edition]  Centennial
\nEdition, the word ‘trial’ is defined thus:\n<\/p>\n
     “A\t  judicial    examination    and
\n     determination  of\t issues\t between
\n     parties to\t action, whether they be
\n     issues of\tlaw or of fact, before a
\n     court that\t has  jurisdiction…  A
\n     judicial examination, in accordance
\n     with law  of the  land, of a cause,
\n     either civil  or Criminal,\t of  the
\n     issues between the parties, whether
\n     of law  or facts,\tbefore\ta  court
\n     that has proper jurisdiction”.\n<\/p>\n
     In\t Webster’s  Comprehensive  Dictionary  International
\nEdition, at page 1339, the word ‘trial’ is defined thus:\n<\/p>\n
     “….The  examination,   before   a
\n     tribunal\t   having\tassigned
\n     jurisdiction, of  the facts  or law
\n     involved in  ail issue  in order to
\n     determine\tthat   issue.  A  former
\n     method  of\t  determining  guilt  or
\n     innocence by subjecting the accused
\n     to physical  tests of endurance, as
\n     by ordeal\tor by  combat  with  his
\n     accuser… In  the process of being
\n     tried   or\t   tested…   Made   or
\n     performed in  the course  of trying
\n     or testing…”.<\/p><\/blockquote>\n
     The word  `commence’  is  defined\tin  Collins  English
\nDictionary to mean “to start or begin; come or cause to come
\ninto being,  operation etc.” In Black’s Law Dictionary it is
\ndefined to mean :\n<\/p>\n
     “to  initiate   by\t performing  the
\n     first  act\t  or  step.   To  begin,
\n     institute or  start Civil action in
\n     most jurisdictions\t is commenced by
\n     filing   a\t  complaint   with   the
\n     court….\t Criminal    action   is
\n     commenced\t within\t   statute    of
\n     limitations  at   time  preliminary
\n     complaint or  information is  filed
\n     with magistrate in good faith and a
\n     warrant   issued\t thereon…    A
\n     criminal prosecution is “commenced”
\n     [1] when information is laid before
\n     magistrate charging  commission  of
\n     crime, and\t a warrant  of arrest is
\n     issued, or\t [2] when grand jury has
\n     returned an indictment”.<\/p><\/blockquote>\n
     In the “Words and Phrases” [Permanent Edition] Vol.42A,
\nat page\t 171, under  the head  “Commencement”, it  is stated
\nthat “.4  ‘trial’ commences at least from the time when work
\nof empanelling of a jury begins”.\n<\/p>\n
     It would,\ttherefore, be  clear that trial means act of
\nproving or  judicial examination  or  determination  of\t the
\nissues\tincluding  its\town  jurisdiction  or  authority  in
\naccordance with\t law or\t adjudging guilt or innocence of the
\naccused including  all steps  necessary thereto.  The  trial
\ncommences  with\t performance  of  the  first  act  or  steps
\nnecessary or essential to proceed with trial.\n<\/p>\n
     It would  be seen\tfrom the  scheme of  the Act and the
\nRules that  constitution of  court-martial for\ttrial of  an
\noffence under the Act is a pre-condition for commencement of
\ntrial.\tMembers\t of  the  court-martial\t and  the  presiding
\nofficer on nomination get jurisdiction to try the person for
\noffence under  the Act.\t On their  assembly, the accused has
\nthe right  to object to the nomination of any or some of the
\nmembers of  the court-martial or even the presiding officer,
\nOn the\tobjection(s) so\t raised, it  is to be dealt with and
\nthereafter the\tpreliminary report  recorded  after  summary
\ntrial and the charge trammed would be considered. The charge
\nis required,  if need  be or asked by the accused to be read
\nover and could be objected by the accused and found tenable,
\nto be  amended. Thereafter,  the accused  would be arraigned
\nand in\this presence  the trial would begin. The accused may
\nplead guilty  or  not  guilty.\tIf  he\tpleads\tguilty,\t the
\nprocedure prescribed under Rule 54 should be followed and if
\nhe pleads  not guilty, procedure prescribed under Rule 56 is
\nto be  followed. Before\t actual trial  begins, oath would be
\nadministered to\t the members of the court-martial the Judge-
\nAdvocate and  the staff.  The regular  trial begins and ends
\nwith  recording\t  the  proceedings   either  convicting\t and
\nsentencing or  acquitting the  accused. Thus two views would
\nbe  possible   while  considering   as\tto  when  the  trial
\ncommences. The\tbroader view is that the trial commences the
\nmoment the  GCM assembles  for proceeding  with\t the  trial,
\nconsideration of  the charge  and arraignment of the accused
\nto  proceed   further\twith   the   trial   including\t all
\npreliminaries  like  objections\t to  the  inclusion  of\t the
\nmembers\t  of\tthe   Court-martial.\treading\t  out\t the
\ncharge\/charges, amendment  thereof etc.\t The narrow  view is
\nthat trial  commences with the actual administration of oath
\nto the\tmembers etc.  and to  the prosecution to examine the
\nwitnesses when\tthe accused  pleads not guilty. The question
\nthen emerges:  which of\t the two  views would  be consistent
\nwith and  conducive to\ta fair\ttrial in accordance with the
\nAct and the Rules?\n<\/p>\n
     It is  true that the legislature has made a distinction
\nbetween Section\t 122 [3]  and Section  123 [2]. While in the
\nformer,\t power\t to  exclude   time   taken   in   specified
\ncontingencies is given, in the little, no such\tprovision is
\nmade for  exclusion of\tthe time  since the  accused will be
\nkept under  detention after  he ceased to be governed by the
\nAct. It\t is equally  settled law that penal provisions would
\nbe construed  strictly. As  posed earlier,  which of the two
\nviews broader  or narrow  – would  subserve the\t object\t are
\npurpose of  the Act is the question We are of the considered
\nview that  from a  conpectus of\t the scheme  or the  Act and
\nRules the  broader view\t appears to be more conducive to and
\nconsistent with the scheme of the Act and the Rules. As soon
\nas GCM\tassembles the  members are  charged with the duty to
\nexamine the  charge\/charges framed  in summary trial to give
\nan opportunity\tto the\taccused to  exercise  his  right  to
\nobject to  the empanelment  of member\/members  of the GCM to
\namend the  charge and  the right  to  plead  guilty  or\t not
\nguilty. These  procedural steps are integral and inseparable
\nparts of  trial. If  the accused pleads guilty further trial
\nby adducing  evidence by  the prosecution  is obviated.\t The
\nneed for adduction of evidence arises only where the accused
\npleads “not  guilty”. In  that situation,  the\tmembers\t are
\nrequired to  take oath\tor affirmation according to Rule 45.
\nIt is  to remember that the members get right power and duty
\nto try an accused only on appointment and the same ends with
\nthe close of the particular case. Therefore, Rule 45 insists
\non administration  of oath  in the  prescribed manner. For a
\njudicial officer  the act  of appointment gives power to try
\nthe offender  under  Criminal  Procedure  Code;\t warrant  of
\nappointment by\tthe President of India and the oath taken as
\nper the\t form prescribed in Schedule III of the Constitution
\nempowers the  High Court\/Supreme  Court Judges\tto hear\t the
\npetition or  appeals. For  them, need  to take\toath on each
\noccasion of  trial or  hearing is  obviated. Therefore,\t the
\noccasion to  take oath\tas per the procedure for GCM and the
\nright of the member of the GCM arises with their empanelment
\nGCM and\t they get  power to  try the accused the moment they
\nassemble and commence examination of the case, i.e., charge-
\nsheet and  the record.\tThe trial, therefore, must be deemed
\nto  have   commenced  the   moment  the\t GCM  assembles\t and
\nexamination of the charge is undertaken.\n<\/p>\n
     Our view  gets fortified by two decisions of this Court
\nin Harish Chandra Baijapi & Anr. v Triloki Singh & Anr. [AIR
\n1957 SC\t 444] wherein the question was: as to when the trial
\nbegins in  an election\tdispute under  the provisions of the
\nRepresentation of  the People Act, 1951? The respondents had
\nfiled election petitions against the appellant under Section
\n81 of  that Act\t alleging that\tthe appellant  had committed
\nnumber of  corrupt practices  and the respondents prayed for
\ndeclaration that  the appellant’s  election was\t void. After
\ntrial, the  election was  set aside against which the appeal
\ncame to\t be filed  ultimately in  this\tCourt.\tOne  of\t the
\nquestions was: whether the particulars of the
\ncorrupt practices  and amendment  therefore is\tvaild in law
\nand whether they are maintainable in appeal? In that
\ncontext, the  question arose: as to when the trial began? It
\nwas contended  therein that  the  order\t amending  pleadings
\nunder Order  6 Rule  17, CPC  was not part of the trial and,
\ntherefore, it  could not  be  subject  of  consideration  in
\nappeal. Considering  the above\tquestion,  this\t Court\theld
\nthat:\n<\/p>\n
     “Taking the  first contention,  the
\n     point for\tdecision is  as to  what
\n     the word  ‘trial’ in s.90(2) means.
\n     According\tto  the\t appellants,  it
\n     must be  understood  in  a\t limited
\n     sense, as meaning the final hearing
\n     of\t the   petition,  consisting  of
\n     examination  of  witnesses,  filing
\n     documents and addressing arguments.
\n     According\tto  the\t respondent,  it
\n     connotes  the   entire  proceedings
\n     before the\t Tribunal from\tthe time
\n     that the petition is transferred to
\n     it under  s.86 of the Act until the
\n     pronouncement of  the award.  While
\n     the word ‘trial’ standing by itself
\n     is susceptible  of both  the narrow
\n     and  the\twider  senses  indicated
\n     above,  the   question   is,   what
\n     meaning attaches  to it in s.90(2),
\n     and to  decide that,  we must  have
\n     regard  to\t  the  context\tand  the
\n     setting of\t the enactment. Now, the
\n     provisions of  the Act  leave us in
\n     no doubt  as to  in what  sense the
\n     word is  used in s.90(2). It occurs
\n     in\t Chapter  III  which  is  headed
\n     “Trial  of\t  election   petitions”.
\n     Section  86(4)   provides\tthat  if
\n     during the\t course of the trial any
\n     member of\ta Tribunal  is unable to
\n     perform his functions, the Election
\n     Commission is  to\tappoint\t another
\n     members, and thereupon the trial is
\n     to\t be  continued.\t This  provision
\n     must   apply   to\t retirement   or
\n     relinquishment by\ta  member,  even
\n     before the\t hearing  commences  and
\n     the expression  “during the  course
\n     of trial”\tmust  therefore\t include
\n     the stages\t prior to  the\thearing.
\n     Section 88\t again provides that the
\n     trial is  to be held at such places
\n     as\t the   Election\t Commission  may
\n     appoint.  The   trial   here   must
\n     necessarily  include   the\t matters
\n     preliminary to  the hearing such as
\n     the settlement  of issues,\t issuing
\n     direction and  the like.  After the
\n     petition  is   transferred\t to  the
\n     Election\tTribunal   under   s.86,
\n     various  steps  have  to  be  taken
\n     before the\t stage can  be\tset  for
\n     hearing it.  The respondent  has to
\n     file his  written statement, issues
\n     have to  be settled. If ‘trial’ for
\n     the purpose  of s.90(2)  is  to  be
\n     interpreted  as  meaning  only  the
\n     hearing, then what is the provision
\n     of law under which the Tribunals to
\n     call  for\twritten\t statements  and
\n     settle issues? Section 90(4) enacts
\n     that when an election petition does
\n     not  comply   with\t the  provisions
\n     s.81, s.83\t or s.117,  the Tribunal
\n     may dismiss  it. But if it does not
\n     dismiss  it,  it  must  necessarily
\n     have   the\t   powers    to\t   order
\n     rectification   of\t   the\t defects
\n     arising by reason of non-compliance
\n     with the requirements of s.81, s.83
\n     or s.117.\tThat not  being a  power
\n     expressly\tconferred  on  it  under
\n     s.92 can  only be\tsought under  s.
\n     90(2), and\t resort to  that section
\n     can  be   had  only   if  trial  is
\n     understood as including proceedings
\n     prior to hearing. Section 92 enacts
\n     that the Tribunal shall have powers
\n     in respect of various matters which
\n     are vested\t in 3  court  under  the
\n     Civil Procedure  Code when trying a
\n     suit, and among the matters set out
\n     therein\tare\tdiscovery    and
\n     inspection, enforcing attendance of
\n     witnesses\t and\tcompelling   the
\n     production\t of   documents,   which
\n     clearly do\t not form  part\t of  the
\n     hearing  but  precede  it.\t In  our
\n     opinion, the  provisions of Chapter
\n     III read  as a  whole, clearly show
\n     that ‘trial’ is used as meaning the
\n     entire   proceedings   before   the
\n     Tribunal from  the\t time  when  the
\n     petition is transferred to it under
\n     s.86 until the pronouncement of the
\n     award.”<\/p><\/blockquote>\n
     In Om  Prabha Jain\t v. Gian  Chand &  Anr.<\/a> [AIR 1959 SC
\n837], it was held that the word “trial” clearly means entire
\nproceedings before  tribunal from the reference to it by the
\nElection Commission  to the  conclusion. This Court found no
\nreason to attribute a restricted meaning to the word ‘trial’
\nin Section 98 of the Representation of the People Act, 1951.\n<\/p>\n
     In the  light of the above discussion, we hold that the
\ntrial commences\t the moment  GCM assembles  to consider\t the
\ncharge and  examines whether  they would  proceed  with\t the
\ntrial. The  preceding preliminary investigation is only part
\nof the\tprocess of  investigation to  find whether  a charge
\ncould be framed and placed before the competent authority to
\nconstitute GCM.\t On February 25, 1987, the GCM assembled and
\nrecorded the proceedings as under:\n<\/p>\n
\t  “Trial of  Shri Yadava,  Madan
\n     Lal  formerly   IC-5122N  Lt.   Gen
\n     [Substantive Maj  Gen] Yadava Madan
\n     Lal of  Army Ordnance Corps. School
\n     Jabalpur,\tattached   to\tNational
\n     Defence Academy, Khadakwasla.
\n\t  The order convening the court,
\n     the charge-sheet and the summary of
\n     evidence are laid before the court.
\n\t  The court  satisfy  themselves
\n     as provided  by Army  Rules 41  and\n<\/p><\/blockquote>\n
     42.\n<\/p><\/blockquote>\n
     ———————————–
\n\t  I have  satisfied myself, that
\n     no\t Court\t of  Inquiry   was  held
\n     respect  the  matters  forming  the
\n     subject or\t the charge  before this
\n     court martial.\n<\/p><\/blockquote>\n
     ———————————–
\n     At this  stage, the  court\t observe
\n     that   the\t  Prosecutor   and   the
\n     Defending Officer\thave taken their
\n     respective places\tbut the\t accused
\n     is not  present before  the  court.
\n     The  Prosecutor  submits  that  the
\n     accused  Shri   Madan  Lal\t  Yadava
\n     formerly Lt  Gen  [Substantive  Maj
\n     Gen]  Madan   Lal\tYadava\tof  Army
\n     Ordnance  Corps   School,\tJabalpur
\n     retired from  service  with  effect
\n     from 31 August 86 [AN]. He has been
\n     subjected\tto   the  provisions  of
\n     Section 123  of the  AA with effect
\n     from the  same date  and put  under
\n     open arrest with effect from 1200 h
\n     on 30  August 1986.  According to a
\n     note dated\t 15 February 1987, found
\n     in\t his   room  the   accused   had
\n     proceeded to  Bombay  to  engage  a
\n     suitable  counsel.\t Though\t he  had
\n     stated therein  that he  would keep
\n     the Comdt, NDA Khadakwasla informed
\n     about his whereabouts, they are not
\n     yet  known.  Vigorous  efforts  are
\n     being made\t to trace  him\tout  and
\n     produce him  before the  Court.  In
\n     view of  this he  requests that the
\n     Court be  adjourned till  1100 h 26
\n     February 1987.\n<\/p><\/blockquote>\n
     The Defending Officer, IC-6727F Maj
\n     Gen Yadav\tYitendra Kumar,\t who  is
\n     present in\t the  court  submits  in
\n     reply  that   he  too  had\t had  no
\n     opportunity to  get in  touch  with
\n     the accused  and  as  such\t has  no
\n     information  regarding  whereabouts
\n     of the accused”.\n<\/p><\/blockquote>\n
     “Advice by the Judge Advocate
\n     Gentlemen,\t you   have  heard   the
\n     submission made  by the  Prosecutor
\n     with regard  to the  absence of the
\n     accused  as   also\t reply\t of  the
\n     learned  Defending\t  Officer.   The
\n     Prosecutor has  given the\tdetailed
\n     circumstances in  which the accused
\n     had escaped  from military custody.\n<\/p><\/blockquote>\n
     He further\t submitted before    you
\n     that vigorous  efforts  were  being
\n     made to  secure his presence before
\n     you to  stand the trial and to this
\n     effect, prayed  for the adjournment
\n     of the Court until 1100 h on 26 Feb\n<\/p><\/blockquote>\n
     87.  In   view  of\t  the\tforesaid
\n     submission made  by the Prosecutor,
\n     I advise  you to  consider granting
\n     him suitable  adjournment to secure
\n     the presence  of the  accused.  The
\n     Court decide  to adjourn until 1100
\n     h 26th Feb 1987. The above decision
\n     is announced in the court”.<\/p><\/blockquote>\n
     On February  26, 1987  when it again assembled, the GCM
\nwas informed  by the  prosecutor that despite their diligent
\nsteps taken  to have  the accused traced and produced before
\nthe court  they were  unable to\t do that  and a\t request for
\nadjourning the\tproceedings to the next day was made and the
\ndefence counsel also had expressed his inability to know the
\nwhereabouts of\tthe respondent.\t On  advice  by\t the  Judge-
\nAdvocate, the court adjourned the case to February 27, 1987.
\nSimilarly, the\tcase was  adjourned to\tFebruary 28, 1987 on
\nwhich date when it assembled, the proceedings were
\nrecorded as under:\n<\/p>\n
\t  “At  1000  h\ton  28\tFebruary
\n     1987, Court  re-assemble,\tpursuant
\n     to\t the  adjournment;  present  the
\n     same members and the Judge-Advocate
\n     as on 27 February, 1987.\n<\/p><\/blockquote>\n
\t  The  Court  observe  that  the
\n     accused is still not present before
\n     the court.\n<\/p><\/blockquote>\n
\t  The  Prosecutor  submits  that
\n     despite the  best efforts including
\n     taking help  from the various civil
\n     agencies to  locate the  accused he
\n     has not  yet been\table to find out
\n     his whereabouts  and as such unable
\n     to produce him before the court. It
\n     is, however,  earnestly hoped  that
\n     he would  be able\tto get some clue
\n     about his\twhereabouts by\t01 March
\n     1987. In  that event  he  would  be
\n     able  to  produce\thim  before  the
\n     court  on\t 02   March   1987.   He
\n     therefore,\t   prays     that     an
\n     adjournment until\t1000 h\t02 March
\n     1987 be  granted. He  further gives
\n     an undertaking that he will seek no
\n     further adjournment on this account
\n     and if  he is  not in a position to
\n     produce the  accused by  that dates
\n     will seek\tsine die  adjournment of
\n     the Court.\n<\/p><\/blockquote>\n
\t  The learned  Defending Officer
\n     submits that  he too  has so far no
\n     information about the accused.
\n     Advice by the Judge Advocate\n<\/p><\/blockquote>\n
     —————————-
\n     Gentlemen,\t you   have  heard   the
\n     submissions of  the Prosecutor  and
\n     the learned  Defending Officer. The
\n     Prosecutor\t submitted   before  you
\n     that he  would be\tin a position to
\n     produce the  accused  on  02  March
\n     1987 and that he would not seek any
\n     further adjournment of the Court on
\n     this account  in case  he failed to
\n     secure his\t presence on  or  before
\n     that date.\t In the\t interest of the
\n     justice,\tyou    may    therefore,
\n     consider granting\thim yet\t another
\n     adjournment  to   help  secure  the
\n     presence of the accused .
\n     The Court\tdecide to  adjourn until
\n     0900 h on 2 March 1987.”\n<\/p><\/blockquote>\n
     Accordingly, on  March  2,\t 1987  when  the  court\t re-\n<\/p><\/blockquote>\n
assembled the  accused was  present, the  charge was  handed
\nover to\t him and he asked for adjournment for 15 days and on
\nadvice it  was adjourned  to March 18, 1987 on which day the
\nrespondent  informed  the  court  of  his  filing  the\twrit
\npetition and  the assurance  given by  the counsel appearing
\nfor the appellants in the High Court not to proceed with the
\ntrial. Accordingly,  it was  adjourned pending Writ Petition
\nNo.301 of 1987, the subject of this appeal. It would thus be
\nclear that  the respondent  having  escaped  from  the\topen
\nmilitary detention  caused adjournment\tof the\ttrial beyond
\nFebruary 28,  1987 to secure the presence and arrangement of
\nthe respondent at the trial by GCM.\n<\/p>\n
     Our conclusion  further gets fortified by the scheme of
\nthe trial  of a\t criminal case\tunder the  Code of  Criminal
\nProcedure, 1973, viz., Chapter XIV “Conditions requisite for
\ninitiation of  proceedings” containing\tSections 190 to 210,
\nChapter XVIII  containing Sections  225 to  235 and  dealing
\nwith  “trial   before  a  Court\t of  Sessions”\tpursuant  to
\ncommittal order\t under Section 209 and in Chapter XIX “trial
\nof warrant-cases  by Magistrates” containing Sections 238 to
\n250 etc.  It is\t settled law  that under the said Code trial
\ncommences the  moment cognizance of the offence is taken and
\nprocess is  issued to  the accused  for his  appearance etc.
\nEqually, at  a\tSessions  trial,  the  court  considers\t the
\ncommittal order\t under Section\t209 by\tthe  Magistrate\t and
\nproceeds further.  It takes  cognizance of  the offence from
\nthat stage  and proceeds  with the  trial. The\ttrial begins
\nwith the  taking of the cognizance of the offence and taking
\nfurther steps to conduct the trial.\n<\/p>\n
     Even if  narrow interpretation  is\t plausible,  on\t the
\nfacts in  this case,  we have no hesitation to conclude that
\nthe trial  began on  February 25,  1987 on  which  date\t the
\nCourt-martial  assembled,  considered  the  charge  and\t the
\nprosecution undertook  to produce  the\trespondent  who\t was
\nfound escaped  from the open detention, before the Court. It
\nis an  admitted position  that GCM assembled on February 25,
\n1987. On  consideration of  the charge, the proceedings were
\nadjourned from\tday to\tday till  the respondent appeared on
\nMarch 2, 1987. It is obvious that the respondent had avoided
\ntrial to  see that  the trial would not get commenced. Under
\nthe scheme of the Act and the Rules, presence of the accused
\nis a pre-condition for commencement of trial. In his absence
\nand until his presence was secured, it became difficult, may
\nimpossible, to\tproceed with  the trial\t of the\t respondent-
\naccused. In  this behalf,  the maxim  nullus commodum capere
\npotest de  injuria sua\tpropria- meaning  no  man  can\ttake
\nadvantage of  his own  wrong – squarely stands in the way of
\navoidance by  the respondent and he is estopped to plead bar
\nof limitation contained in Section 123 [2]. In Broom’s Legal
\nMaximum [10th  Edn.] at page 191 it is stated “it is a maxim
\nof law,\t recognized and\t established, that no man shall take
\nadvantage of  his own  wrong; and this maxim, which is based
\non elementary  principles, is  fully recognized in Courts of
\nlaw and\t of equity, and, indeed, admits of illustration from
\nevery branch  of legal\tprocedure. The reasonableness of the
\nrule  being  manifest,\twe  proceed  at\t once  to  show\t its
\napplication by\treference to  decided cases.  It  was  noted
\ntherein that a man shall not take advantage of his own wrong
\nto gain the favourable interpretation of the law. In support
\nthereof, the  author has  placed reliance  on another  maxim
\nfrustra legis  auxilium quoerit\t qui in\t legem committit. He
\nrelies on Perry v. Fitzhowe [8 Q.B. 757]. At page 192, it is
\nstated that  if a  man be  bound to appear on a certain day,
\nand before  that day the obligee put him in prison, the bond
\nis void.  At page  193, it  is stated that “it is moreover a
\nsound principle that he who prevents a thing from being done
\nshall not  avail  himself  of  the  non-performance  he\t has
\noccasioned”. At page 195, it is further stated that “a wrong
\ndoer ought  not to  be permitted to make a profit out of his
\nown wrong”.  At page  199 it  is  observed  that  “the\trule
\napplies to  the extent of undoing the advantage gained where
\nthat can  be done  and not  to the  extent of  taking away a
\nright previously possessed”.\n<\/p>\n
     The Division  Bench of  the High Court has recorded the
\nfinding that the respondent has absconded from open military
\ndetention. From\t the narration of the facts it is clear that
\nthe  respondent\t  was  bent   upon  protracting\t preliminary
\ninvestigation. Ultimately,  when the GCM was constituted, he
\nhad challenged his detention order. When he was unsuccessful
\nand the\t trial was  to begin  he escaped  the  detention  to
\nfrustrate the  commencement of\tthe trial and pleaded bar of
\nlimitation on  and from March 1, 1987. The respondent having
\nescaped from lawful military custody and prevented the trial
\nfrom being  proceeded with in accordance with law, the maxim
\nnullus\tcommodum   capere  potest  de  injuria\tsua  propria
\nsquarely applies  to the  case and he having done the wrong,
\ncannot take  advantage of  his own  wrong and  plead bar  of
\nlimitation to frustrate the lawful trial by a competent GCM.
\nTherefore, even\t on the\t narrow interpretation, we hold that
\ncontinuation of\t trial from March 2, 1987 which commenced on
\nFebruary 25, 1987 is not a bar and it is a valid trial.\n<\/p>\n
     It is  next contended  that trial\tof the respondent at
\nthis distance of time is not justiciable. In support of this
\ncontention, reliance  is placed\t by Shri Bobde on Devi Lal &
\nAnr. v.\t The State  of Rajasthan  [(1971) 3 SCC 471] wherein
\nthe High  Court had  confirmed the  conviction under Section
\n302 read  with Section 34, IPC and sentence for imprisonment
\nfor life.  This Court  found that  the prosecution  had\t not
\nproved as to which of the two persons had opened the fire as
\nfound by  the Sessions\tCourt and  the\tdistinction  between
\nSection 149  and 34,  IPC was  not clearly  noticed  by\t the
\nSessions Court\tand the\t High Court. When retrial was sought
\nfor by\tthe prosecution,  this Court rejected the contention
\non the\tground that  retrial at such a belated stage was not
\njustifiable. The  ratio has  no application  to the facts in
\nthis case.  Therein, the  trial was  proceeded with and when
\nthe  accused   was  convicted  by  the\tSessions  Court\t and
\nconfirmed by  the High\tCourt, this  Court  found  that\t the
\nprosecution had\t not established the case in accordance with
\nlaw and\t had not  proved the  guilt beyond reasonable doubt.
\nUnder those  circumstances, this  Court had rightly declined
\nto order  retrial. But the ratio does not fit into the facts
\nof this\t case. It is seen that the respondent had frustrated
\nthe trial  by escaping\tfrom detention\tand reappeared after
\nthe  limitation\t  for  trial  of  the  offence\twas  barred.
\nTherefore, acceptance  of the  contentions would  amount  to
\nputting a premium on avoidance.\n<\/p>\n
     We\t find  ourselves  unable  to  agree  with  the\tview
\nexpressed by the Assam High Court in Gulab Nath Singh v. The
\nChief of the Army Staff [1974 Assam LR 260].\n<\/p>\n
     It is  next contended  that since\tthe  respondent\t had
\nsurrendered himself,  trial could  be conducted\t by  GCM  at
\nDelhi. We  find no  equity in this behalf. The witnesses are
\nat Pune;  records are  at Pune,\t and the  offence has  taken
\nplace at  Pune. Therefore,  the GCM  should be\tconducted at
\nPune. We  find no  justification in  shifting the  trial  to
\nDelhi.\n<\/p>\n
     The appeal\t is accordingly allowed. The judgment of the
\nHigh Court is set aside. The writ petition stands dismissed.
\nThe appellants\tare at liberty to secure the presence of the
\nrespondent; it\twould be open to the respondent to surrender
\nhimself to  closed military  detention; and  the  respondent
\nwould keep  him\t in  detention\tand  conduct  the  trial  as
\nexpeditiously as possible.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Union Of India & Ors vs Major General Madan Lal Yadav … on 22 March, 1996 Equivalent citations: 1996 AIR 1340, 1996 SCC (4) 127 Author: K Ramaswamy Bench: Ramaswamy, K. PETITIONER: UNION OF INDIA & ORS. Vs. RESPONDENT: MAJOR GENERAL MADAN LAL YADAV [RETD.] DATE OF JUDGMENT: 22\/03\/1996 BENCH: RAMASWAMY, […]<\/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-199897","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nUnion Of India & Ors vs Major General Madan Lal Yadav ... on 22 March, 1996 - 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\/union-of-india-ors-vs-major-general-madan-lal-yadav-on-22-march-1996\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Union Of India & Ors vs Major General Madan Lal Yadav ... on 22 March, 1996 - 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