1. Army officer tried by General Court Martial for theft and absenting without leave — Revision of not guilty finding under Section 160, Army Act. (Para 1 , 2 , 3 )
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1998 Supreme(SC) 253
1998(2) Supreme 316
Supreme Court of India
(From Allahabad High Court)
Sujata V. Manohar & D.P. Wadhwa, JJ.
Union of India & Ors. -Appellants
versus
Capt. A.P. Bajpai -Respondent
Civil Appeal No. 9190 of 1995
Decided on 20-2-1998
Counsel for the Parties :
For the Appellants : P.P. Malhotra, N.N. Goswami, Sr. Advocates, A.K. Srivastava, Hemant Sharma and Ms. Anil Katiyar, Advocates.
For the Respondent : J.S. Sinha, Rajiv Dutta, Randhir Singh, Advocates.
Important Points
Important point
The Confirming Authority under Section 160 of Army Act, 1953 has jurisdiction to direct the General Court Martial to revise its order of conviction and sentence.
The Confirming Authority under Section 160 of Army Act, 1953 has jurisdiction to direct the General Court Martial to revise its order of conviction and sentence.
Subject
Military Law - Court Martial
Act Referred
Headnote
Army Act, 1953-Section 160-Army Rules, 1954-Rule 68-Respondent, an officer in army, charged for theft and for absenting without leave-General Court Martial exonerated him for charge of theft but found guilty of second charge-Sentenced to forfeit 3 years service in promotion-Revision by confirming authority-Found guilty of first charge-But remanded to General Court Martial to reconsider-Court Martial found respondent guilty-Dismissed him from service-Confirmed by Chief of Army Staff-Challenged in writ-High Court judgment set aside on ground that first confirming authority overstepped its jurisdiction under Section 160-Whether correct? (No)-Appeal allowed-High Court reversed. (Para 7)
Held : In our view, the High Court did not properly appreciate the scope and intent of Section 160 of the Act. (Para 7)
We are unable to subscribe to the submissions now advanced before us that the jurisdiction of the confirming authority is confined only to giving of directions for recording additional evidence by General Court Martial or that from the order of the confirming authority “inference cannot be escaped that this is based not on any independent judgment but influenced by the undisguised opinion expressed by the confirming authority on merits of the case” or that the revisional order contained such unwarranted observations, which were tantamount to recording of finding, which was in no way the function of the confirming authority or that there has been “unabashed excess and misuse of jurisdiction” by confirming authority. It was asserted that the order in revision was liable to be quashed and rightly done so by the High Court. All this, however, appears to us to be mistaken view entertained by the High Court both in law and from the facts of the case. (Para 13)
Held further : Confirming authority cannot act merely as a rubber stamp. The fact that the finding and sentence of Court Martial should be valid only after it is confirmed by the competent authority would show that it has to examine the whole of the record of the proceeding of the Court Martial before confirming the finding or sentence. It is the requirement of Section 160 that when the confirming authority wishes that the finding or sentence of a Court Martial required revision it should not send back the case as a matter of course but record reasons as to why the confirming authority thought so as to where the Court Martial has failed in its duty to properly examine the facts and in application of correct law. When the matter is remitted back to the Court Martial under Section 160 the Court Martial may take additional evidence if so directed by the confirming authority. In the present case no such direction was given by the confirming authority and there was no occasion for the General Court Martial to record additional evidence. Full opportunity was given to the respondent to make submission before the General Court Martial after it had reassembled and as the record would show copy of the revisional order was also supplied to respondent and he made his submission in writing. The Court thereafter closed for reconsideration and it was thereafter that it revoked its earlier finding and sentence and held the respondent guilty of the first and second charge. It cannot be said that the finding and sentence after reconsideration was arrived at in a hurried fashion. We have noted above that now it was the Chief of the Army Staff who confirmed the finding and sentence and when he did so it could not be said that the whole of the record was not before him. We do not think that the confirming authority exceeded its jurisdiction in analysing the evidence recorded during Court Martial proceedings. The revision order was not intended in any way to interfere with the discretion of the Court Martial and the Court Martial was also not bound by any such observation. (Para 15)
Consequently held : We, therefore, allow the appeal, set aside the judgment of the High Court and dismiss the writ petition filed by the respondent. (Para 16)
Legal Category Hierarchy
Table of Contents
2. Whether the confirming authority's detailed analysis of evidence in a revision order under Section 160, Army Act, improperly influenced the Court Martial's subsequent finding. (Para 5 , 6 , 13 , 15 )
3. The confirming authority may analyze evidence and provide views to guide the Court Martial, provided it does not impermissibly dictate the final finding or sentence. (Para 9 , 11 , 12 , 14 , 15 )
4. A confirming authority under Section 160, Army Act, can record reasons and views on evidence to direct revision without overstepping jurisdiction or fettering the court's discretion. (Para 7 , 8 , 15 )
5. Appeal allowed — High Court judgment set aside — Writ petition dismissed. (Para 16 )
6. What is the scope of the confirming authority's power to revise findings under Section 160 of the Army Act?
The confirming authority can once revise a finding or sentence. If a not guilty finding is against the weight of evidence, the authority may re-assemble the court and provide views on evidence, directing attention to special points the court may have failed to appreciate. (Para 7 , 8 , 9 )
7. Does a confirming authority's detailed analysis of evidence in a revision order constitute an illegal fetter on the Court Martial's discretion?
No, provided the authority clarifies that its observations are not intended to interfere with the court's discretion. The Court Martial is required to reconsider the matter independently and is not bound by the confirming authority's observations. (Para 11 , 12 , 14 , 15 )
8. Is the confirming authority merely a rubber stamp for the findings of a Court Martial?
No. The requirement for confirmation under Section 153 implies that the authority must examine the entire record of proceedings before confirming a finding or sentence, and may record reasons for revision under Section 160. (Para 15 )
Judgment
D.P. Wadhwa, J.-The respondent, an officer in the army, was tried by General Court Martial on the following two charges :
“(i) Under Army Act Section 52(a) for committing theft of property belonging to the Government in that he, at Pithoragarh on 08 Sept. 77 committed theft of the following property belonging to the Govt. :-
(aa) Jam td Kissan 4 tins (450 gms each) = 1.800 Kgs.
(bb) Pine apple td 6 tins (850 gms each) = 5.100 Kgs.
(cc) Sausage td 9 tins (400 gms each) = 3.600 Kgs.
(dd) Coffee 1 tin (500 gms)
= 0.500 Kgs.
(ee) Milk td 54 tins (397 gms each)
= 21.438 Kgs.
(ii) Under Army Act Section 39(b) for absenting himself without leave in that he, at Pithoragarh, on 03 June 78, while attached to Station Headquarters Pithoragarh, absented himself without leave until voluntarily rejoined on 07 June, 1978.”
2. After the conclusion of the trial by order dated January 21, 1979 General Court Martial held the respondent not guilty of the first charge of theft, but found him guilty of the second charge and sentenced him to forfeit three years’ service for the purpose of promotion and to be severely reprimanded. Under Section 153 of the Army Act, 1953 (for short ‘the Act’), the finding or sentence shall be valid except so far as it may be confirmed as provided by the Act. Under Section 154 the finding and sentence of General Court Martial may be confirmed by the Central Government, or by any officer empowered in this behalf by warrant of the Central Government. When the matter was placed before the General Officer Commanding U.P. Area, the competent confirming authority, he in the exercise of his power under Section 160 of the Act revised the findings of the General Court Martial on the first charge and directed it to reconsider the entire evidence relating to the first charge in the light of the observations made by him in the order. He gave the following directions for the General Court Martial to observe :
“If the Court, on revision, revokes its earlier finding on the first charge and find the accused guilty of the first charge, it shall revoke its earlier sentence and pass a suitable fresh sentence.
After this revision order is read in open Court, the accused shall be given a further opportunity to address the Court. Therefore, if it becomes necessary to clear any points raised by the accused, the Judge Advocate may give a further Summing up.
The attention of the Court is invited to Army Act Section 160 and Army Rule 68 and the form of proceedings on revision on page 370 of the MIML 1961 reprint, which should be modified to conform to Army Rule 62(10).”
3. In pursuance to the aforesaid order of the confirming authority, General Court Martial assembled on March 10, 1979 and on the request of the respondent was adjourned to the following day. The respondent made written submissions which were taken on record. After reconsideration the court held the respondent guilty of both first and the second charges. Respondent was thereafter sentenced to be dismissed from service by order dated March 11, 1979. The conviction and sentence so passed on the respondent was confirmed by the Chief of the Army Staff by order dated September 14, 1979 which was promulgated on September 24, 1979.
4. The respondent under Section 164(2) of the Act preferred a post confirmation petition before the Central Government which was rejected. The respondent thereafter filed the writ petition in the High Court of Judicature at Allahabad challenging his conviction and sentence. A Division Bench of the High Court by impugned judgment dated December 22, 1992 set aside the conviction and sentence passed on the respondent on the first charge and held that punishment on
