IMPORTANT POINT
Officer who records satisfaction under sub-rule (1) of Rule 37 of Army Rules, 1954 and officer who actually convenes the court-martial under sub-rule (3) of Rule 37 can be two different officers, but both must be competent u/s 109 of Army Act.

Headnote:(i) Army Rules, 1954-Rule 37(1) and (3)-Respondent commissioned in Indian Army in 1968 was subjected to court-martial on charge of using criminal force against Major-Court found him guilty of charges and on basis of that verdict, respondent was dismissed from service-High Court set aside the order on ground that there was violation of Rule 37 of Army Rules-Court found that officer who convened court-martial, who was then officiating General Officer Commanding had not satisfied himself that evidence justified a trial on charges-Appeal-Rule did not contemplate that officer who actually convened court-martial need satisfy himself that charges framed against delinquent officer were within purview of Army Act-Said satisfaction could be entered by an officer empowered u/s 109 of Army Act before actual convening of court-martial-General Officer Commanding, Major General had passed order in compliance of Rule 37(1) and officer who convened court-martial was the successor in office-There was no violation of Rule 37(1) of the Rules.
       Held : At the outset, we must say that Rule 37 does not contemplate that the officer who actually convenes the court-martial need satisfy himself that the charges framed against the delinquent officer are within the purview of the Army Act and that the evidence justifies a trial by court-martial of such charges. The above satisfaction can be entered by an officer empowered under Section 109 of the Army Act before the actual convening of the court-martial. In other words, the officer who finds that the charges are coming within the meaning of the Act and the evidence justifies a trial by court-martial need not necessarily convene the court-martial. His successor who is very well competent to do so can convene the court-martial. The officer who records the satisfaction under sub-rule (1) and the officer who actually convenes the court-martial under sub-rule (3) of Rule 37 can be two different officers, but both must be competent under Section 109 of the Army Act. In the instant case, the facts are not disputed by the respondent. The documents produced by the respondent himself show that on 9.3.1987, the then General Officer Commanding, Major General G.L. Bakshi passed the order under sub-rule (1) of Rule 37, wherein it is specifically stated :
       "I consider this as a fit case for trial by general court-martial as a prima-facie case exists against the above named officer."
       These proceedings show that Major General Bakshi was furnished with all material particulars for such a decision. Brig. Raj Kumar Singh, who actually convened the court-martial was the successor in office of Major General Bakshi and on 7.5.1987 when he really convened the court-martial he was the officiating General Officer Commanding. These facts are not disputed by the respondent. It is also pertinent to note that Brig. Raj Kumar Singh sought to file an affidavit before the High Court, but the same was not received on file. The same is received on file and we find that in the affidavit sworn to by him on 12.2.1994, the following facts are stated :
       "1. In the GCM of IC-28082K Major Gurnam Singh of 48 GL Section Type `B attached to the Jat Reigmental Centre, Bareilly, I had applied my mind in the summary of Evidence and satisfied myself that there is a prime-facie case against the accused on both the charges under Army Act Section 63 and 47 respectively.
       2. In pursuance of Army Rule 41, I had approved and empowered my Staff Officer Lieutenant Colonel Ram Nagina Singh, the then Deputy Assistant General (Legal), Headquarters Uttar Pradesh Area, Bareilly, to sign the Convening Order dated 07 May 1987 on my behalf."
       Even if it is assumed that Brig. Raj Kumar Singh who really convened the court-martial should also be personally satisfied that the charges are coming within the purview of the Army Act and that the evidence justifies a trial by court-martial, these conditions are fulfilled in this case as evidenced by the affidavit filed by Brig. Raj Kumar Singh. Therefore, we do not see any violation of sub-rule (1) of Rule 37. (Paras 10 to 12)
       (ii) Army Rules, 1954-Rule 37(3) -Respondent held guilty by court-martial of charges-Punishment of dismissal from service-High Court in writ petition set aside the order-Appeal-Violation of Rule 37(3) of Army Rules concerning convening of court-martial-Grievance of respondent was that order convening court-martial was not signed by officiating General Officer Commanding-Entire proposal for Constitution of Court-martial was approved by officiating General Officer Commanding-Respondent had not raised any such objection-Rule stood complied-Impugned judgment on the question of non-compliance of Rule 37 was liable to be set aside and matter remanded for consideration on other issues. (Paras 16 to 18)

ORDER

Leave granted.

2. The respondent herein was commissioned in the Parachute Regiment of the Indian Army on 2.3.1968. He was subjected to court-martial proceedings on two charges framed against him. The first charge was to the effect that he failed to return two official files in spite of directions; and the second charge was for using criminal force against late Major A.S. Randhawa by throwing a chair at him and causing bruises on his face. The respondent was tried by a court-martial and the court found him guilty of both the charges. In view of the verdict of the court-martial, the respondent was dismissed from service. The respondent challenged the court-martial proceedings and also the punishment imposed on him before the Punjab & Haryana High Court. The High Court of Punjab & Haryana was of the view that it had no jurisdiction and the writ petition should be filed before the Delhi High Court. Thus, the writ petition was dismissed with liberty to the respondent to file it before the Delhi High Court. The respondent later filed a writ petition in the Delhi High Court and by the impugned judgment the punishment imposed on the respondent was set aside and the appellants herein have been directed to pay a compensation of Rs. 5 lacs for the harassment and indignity meted out to the respondent. The judgment of the Delhi High Court is challenged by the Union of India.

3. We heard the counsel for the Union of India and also the respondent who appeared in person.

4. The High Court set aside the order passed by the appellant-authorities mainly on the ground that there was violation of Rule 37 of the Army Rules, 1954. The respondent had alleged in the writ petition that under Rule 37, the officer who is convening the general court-martial shall satisfy himself that the charges to be tried by the court are offences within the meaning of the Army Act, and that the evidence justifies a trial on those charges. The respondent contended that the officer convening the general court-martial did not pass any order to the effect that he was prima facie satisfied that the evidence justified a court-martial. According to the respondent, the officer who convened the court-martial was Brig. Raj Kumar Singh, who was the then officiating General Officer Commanding, and there is nothing on record to show that he had satisfied himself that the evidence justified a trial on those charges. The respondent had also contended that the certificate of Major General G.L. Bakshi, who was the General Officer Commanding in March, 1987, that the allegations against the respondent were fit for trial by general court-martial was irrelevant and it did not satisfy the requirements of Rule 37 of the Army Rules, 1954. In the writ petition, it was contended by the respondent that the officer who was competent to convene the general court-martial was Brig. Raj Kumar Singh, but the order convening the court-martial was signed by Lt. Colonel R.N. Singh. It was also alleged that the convening order was not personally signed by the General Officer Commanding and that it was a case of clear non-application of mind. Hence there was violation of Rule 37(1) and (3) of the Army Rules, 1954.

5. In order to appreciate the contentions raised by the parties on either side, Rule 37 of the Army Rules, 1954 is to be extracted and it is to the following effect:

"37. Convening of General and District Court-martial.- (1) An officer before convening a general or district court-martial shall first satisfy himself that the charges to be tried by the court are for offences within the meaning of the Act, and that the evidence justifies a trial on those charges, and if not so satisfied, shall order the release of the accused, or refer the case to superior authority.

(2) He shall also satisfy himself that the case is a proper one to be tried by the kind of court-martial which he proposes to convene.

(3) The officer convening a court-martial shall appoint or detail the officers to form the court and, m

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2004 Supreme(SC) 362

IMPORTANT POINTOfficer who records satisfaction under sub-rule (1) of Rule 37 of Army Rules, 1954 and officer who actually convenes the court-martial under sub-rule (3) of Rule 37 can be two different officers, but both must be competent u/s 109 of Army Act.

Cases Referred (1)

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IMPORTANT POINT
Officer who records satisfaction under sub-rule (1) of Rule 37 of Army Rules, 1954 and officer who actually convenes the court-martial under sub-rule (3) of Rule 37 can be two different officers, but both must be competent u/s 109 of Army Act.