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2007 Supreme(SC) 534
2007(3) Supreme 635
SUPREME COURT OF INDIA
(From Jammu and Kashmir High Court)
Dr. Arijit Pasayat and Lokeshwar Singh Panta, JJ.
Pradeep Singh — Appellant
versus
Union of India & Ors. — Respondents
Civil Appeal No. 5799 of 2000
Decided on 19-4-2007
Counsel for the Parties :
For the Appellant : P.D. Sharma, Advocate.
For the Respondents : Nagendra Rai, Sr. Advocate, Ms. Indra Sawhney, R.C. Kathia and B.V. Balaram Das, Advocates.
IMPORTANT POINT
If a court-martial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed the High Court or for that matter any Court must stay its hands.
Headnote:SERVICE LAW — Army Act, 1950 — Sections 39A, 80 and 116 — Absence from duty without leave — Dismissal order passed by a Summary Court Martial — Validity — Appellant posted in Leh was deputed for commando course in December, 1988 which he joined in January, 1989 — He completed the course on 7-2-1989 but instead of reporting at the Transit Camp after completion of the course, he went home on assumption that annual leave must have been sanctioned by his Commanding Officer — He finally reported at Transit Camp on 21-4-1989 and reached his unit on 19-5-1989 — However, immediately after he reached the unit, his rank of Naik was withdrawn — Summary Court Martial awarded punishment of dismissal — Writ petition filed challenging validity of order of dismissal was dismissed — Whether withdrawal of rank of Naik was punishment imposed by Court Martial — (No) — Whether High Court is empowered to interfere with the conviction and sentence of accused when evidence is sufficient before the Court Martial — (No) — Constitution of India — Articles 226, 227.
Held : Though Court Martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the court-martial is not subject to the superintendence of the High Court under Article 227 of the Constitution. If a court-martial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed the High Court or for that matter any court must stay its hands. Proceedings of a court-martial are not to be compared with the proceedings in a criminal court under the Code of Criminal Procedure, 1973 where adjournments have become a matter of routine though that is also against the provisions of law. It has been rightly said that court martial remains to be significant degree, a specialized part of overall mechanism by which the military discipline is preserved. It is for the special need for the armed forces that a person subject to Army Act is tried by court-martial for an act which is an offence under the Act. Court-martial discharges judicial function, and to a great extent, is a court where provisions of the Evidence Act are applicable. A court-martial has also the same responsibility as any court to protect the rights of the accused charged before it and to follow the procedural safeguards. If one looks at the provisions of law relating to court-martial in the Army Act, the Army Rules, Defence Service Regulations and other Administrative Instructions of the Army, it is manifestly clear that the procedure prescribed is perhaps equally fair if not more than a criminal trial provides to the accused. When there is sufficient evidence to sustain conviction, it is unnecessary to examine if pre-trial investigation was adequate or not. Requirement of proper and adequate investigation is non-jurisdictional and any violation thereof does not invalidate the court-martial unless it is shown that accused has been prejudiced or a mandatory provision has been violated. One may usefully refer to Rule 149 quoted above. The High Court should not allow the challenge to the validity of conviction and sentence of the accused when evidence is sufficient, court-martial has jurisdiction over the subject matter and has followed the prescribed procedure and it is within its powers to award punishment. (Para 9)
JUDGMENT
Dr. Arijit Pasayat, J. — Challenge in this appeal is to the judgment rendered by a Division Bench of the Jammu and Kashmir High Court dismissing the Letters Patent Appeal filed by the appellant.
2. Background facts in a nutshell are as follows:
Absence for a period of 2½ months was treated as misconduct and Summary Court Martial was convened in terms of Section 116 of the Army Act, 1950 (hereinafter referred to as the ‘Act’). He was charged under Section 39A of the Act by order dated 7.8.1989 for having remained absent from duty without leave. He was tried and punished by a Summary Court Martial vide order dated 16.8.1989. The order of dismissal passed by the Court Martial was challenged in the writ petition primarily on the following grounds:
(i) that officiating Commanding Officer was not competent to convene the Summary Court Martial and therefore, the proceedings and the sentence awarded by the Summary Court Martial is illegal being without jurisdiction;
(ii) that the petitioner was neither provided any legal assistance nor allowed to cross-examine the witnesses, and therefore, the right of hearing has been denied to him;
(iii) that the petitioner having been punished by removal of the rank could not be tried and punished on the same ground.
3. The respondents took the stand that all the submissions are without foundation. The High Court noticed that the appellant was posted somewhere in Leh and was deputed for Commando course in December, 1988 which he joined in January, 1989. He completed the course on 7.2.1989, but instead of reporting at the Transit Camp after completion of the course, he went home on the assumption that he had already applied for annual leave which must have been sanctioned by his Commanding Officer. He finally reported at 259-Transit Camp on 21.4.1989 and reached his unit on 19.5.1989. His grievance was that immediately after he reached the unit, his rank of Naik was withdrawn. Later he was directed to appear before the Summary Court Martial on 11.8.1989, which concluded the hearing and awarded the punishment of dismissal. The High Court found that the stand that Officiating Commanding Officer was not competent to convene Summary Court Martial was without substance in view of the definition of “Commandant Officer” as given in Section 3(v) of the Act. So far as the denial of legal assistance is concerned, it was noted that the appellant admitted that Major D.P. Naikavde was named as his friend to advise him during the course of trial. His plea that he did not see the said officer during the court martial was found to be without substance. It was noted that in case he was not assisting him, he could have made a grievance before the Summary Court Martial. That has not been done. There was no substance in the plea. The appellant was informed that on completion of the commandant course he did not immediately join the unit and instead joined after 2½ months. He assumed leave may have been granted without any foundation. As he was holding acting rank of Naik, he forfeited the right to hold the same because of his absence from duty without leave as per army Headquarter letter No.94930/AG/PSC (C) dated 21.11.1988. Appellant was not holding the substantive rank of Naik, the same was withdrawn, because of absence without leave. It was in essence withdrawal of a concession given. The plea relating to dual jeopardy was, therefore, without any substance. Accordingly, writ petition was dismissed. Before the Division Bench the stand taken before the learned Single Judge was reiterated. The Division Bench found that in view of the factual scenario as noted by the learned Single Judge, the writ petition had been rightly dismissed. It, however, observed that in case some persons similarly situated were treated with leniency, it was open to the appellant to make a representation which shall be duly considered by the respondents. With the aforesaid observation the Letters Patent Appeal was dismissed.
4. The
