Judgment

ALAGIRISWAMI, J. :- The petitioner was an officer of the Indian Army who served in Bangla Desh. Only 11th December, 1971 he was in a place called Hajiganj. He was tried before the Summary General Court Marital on the charge of committing robbery at Hajganj by causing fear of instant hurt to the Custodians of the United Bank Ltd., of certain properties belonging to the Bank and also the personal property of the Manager of the Bank as well as of a Chowkidar of the Bank. The Court sentenced the petitioner to be cashiered . This sentence was subject to confirmation under the provisions of Chapter XII of the Army Act. Maj.-Gen. Hira, General Officer Commanding, 23 Mountain Division, of which the petitioner was an officer, passed an order directing the petitioner was brought before the same Court Martial, as had tried him earlier, and he was asked whether he wanted to address the Court. On receiving a reply in the negative, the Court, after considering the observations of the confirming authority, revoked the earlier sentence which they had imposed on the petitioner and sentenced him to be cashiered and to suffer rigorous imprisonment for two years. Brig. B. P. Bhilla, the Officiating General Officer Commanding 23 Mountain Division, referred the finding and sentence for confirmation to the Chief of the Army Staff, who in due course confirmed the finding and the sentence. The present petition is filed under Art. 32 of the Constitution for quashing the order passed by the Chief of the Army Staff, after setting aside the order passed by Maj.-Gen. Hira.

2. Shri A. K. Sen appearing on behalf of the petitioner raised four points in support of his contention that the order passed against the petitioner should be quashed.

(1) The authority to confirm the sentence passed by a Court Martial does not confer on the confirming authority the power to enhance the sentence. That authority cannot, therefore, achieve that object indirectly by directing the revision of the sentence. The Court Martial s verdict should be unfettered.

(2) In any case, the confirming authority should have given a hearing to the affected party.

(3) The confirmation can be made only by the officer who convened the Court Marital and not by a different officer as was done in this case.

(4) The officer who finally confirmed the sentence on the petitioner should also have heard the petitioner.

3. (1) The officer who convened the Summary General Court Marital, which tried the petitioner, was Maj.-Gen. Hira. It was he that directed the revision of the sentence passed on the petitioner. The argument is that this order was in such terms that the Court Marital which revised the sentence was compelled to and was left with no alternative but to enhance the sentence and that this was against all principles of natural justice. Under Sec. 153 of the Army Act no finding of a Court Martial shall be valid except so far as it may be confirmed as provided under the Act. Under Section 157 the finding and sentences of summary general courts-martial may be confirmed by the convening officer or if he so directs, by an authority superior to him. Under Section 158, a confirming authority may, when confirming the sentence of a court-martial, mitigate or remit the punishment thereby awarded, or commute that punishment for any punishments lower in the scale laid down in Section 71. Under Section 160, any finding or sentence of a court-martial which requires confirmation may be once revised by order of the confirming authority and on such revision, the Court, if so direct by the confirming authority, may take additional evidence. Even after revision the sentence passed by the court-martial would have to be confirmed because of provision of Section 153. The order passed by Maj.-Gen. Hira directing revision of the sentence passed by the court-martial is as follows :

"The Summary General Court-Martial, which assembled at Field, on 9 March 1972 and subsequent days for the trial of IC-16394 Substantive Li