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2012 Supreme(SC) 233
SUPREME COURT OF INDIA
H.L. Dattu and Anil R. Dave, JJ.
PRESIDING OFFICER, COURT OF INQUIRY AND OTHERS - Appellants;
Versus
SUNIL ISSAR - Respondent.
Civil Appeal No. 3144 of 2012,
Decided on : March 15, 2012
IMPORTANT POINT
Appointment of an officer junior to the delinquent vitiates the General Court Martial proceedings.
Headnote:(a) Army Rules, 1954 – Rule 40 – General Court Martial – Judge Advocate – Junior to the delinquent officer – Entire proceeding vitiated. (Para 12)
(2000) 5 SCC 742 – Relied upon
(b) Army Rules, 1954 – Rule 71 r/w rule 164(2) – Order of promulgation passed by General Court Martial – Makes the order executable – But subject to any interdiction as provided under Section 164(2) – Chief of the Army Staff modifying the order passed by the General Court Martial and reducing the sentence – Thus promulgation did not attain finality until after order by the Chief of the Army Staff. (Para 19, 21, 25)
AIR 1965 SC 1442 – Referred
(c) Interpretation of Judgment r/w rule 40 and 71 Army Rules, 1954 – Appointment of junior officer as Judge Advocate – Charanjit S. Gill barring reopening of cases attaining finality before it – Promulgation by General Court Martial before Charanjit S. Gill – Appeal to Chief of Army Staff – Chief of Army Staff modifying the order after Charanjit S. Gill – No infirmity in invoking Charanjit S. Gill in instant case. (Para 25)
(2009) 4 MLJ 690 (Bom) – Approved
Review Petition No. 41 of 2010 in WP No. 5293 of 2000 – Referred
Facts of the case:
The respondent was serving in the Indian Army as Lt. Colonel.
He was charge sheeted and finally the General Court Martial was convened.
In the General Court Martial proceedings a Major was appointed as a Judge Advocate. The General Court Martial awarded sentence of cashiering and rigorous imprisonment for three years. Immediately thereafter, the delinquent officer filed pre-confirmation petition which was rejected by the GOC-in-C, Southern Command. However, he remitted the unexpired portion of the sentence of rigorous imprisonment awarded by the General Court Martial.
Thereafter, the respondent filed a petition under Section 164(2) which was rejected by the Chief of the Army Staff; however, he reduced the sentence of imprisonment to the period already undergone by the respondent.
The respondent approached the Bombay High Court. The primary contention raised and canvassed before the High Court was that an officer who was below the rank of the delinquent officer, was appointed as a Judge Advocate to assist the General Court Martial and that would vitiate the entire inquiry proceedings. The High Court allowed the writ petition.
Finding of the Court:
There is no infirmity in the impugned judgment.
ORDER
1. Delay condoned. Leave granted. This appeal is directed against the judgment and order passed by the High Court of Bombay in Sunil Issar v. Presiding Officer (2009) 4 MLJ 690 (Bom) and the order passed in Union of India v. Sunil Issar Review Petition No. 41 of 2010 in WP No. 5293 of 2000 [Review Petition (ST) 16156/2009], order dated 17-2-2010 (Bom). By the impugned judgment and order, the High Court, relying on the observations made by this Court in Union of India v. Charanjit S. Gill (2000) 5 SCC 742, has granted relief to the respondent herein.
2. The facts are not in dispute. Therefore, we do not intend to notice the facts in extenso for deciding this appeal. It is an admitted fact that the respondent herein was serving in the Indian Army as Lt. Colonel. For certain acts of omission and commission on his part while working as Lt. Colonel, a charge-sheet came to be issued and served on the delinquent officer. In the charge memo, there were six charges which related to the alleged fraud committed by him while discharging his functions as Lt. Colonel in the Stores Department. A reply had been filed by the delinquent officer denying the allegations made therein. Not being satisfied with the explanation offered, the authorities under the Army Act, 1950 (“the Act”, for short) thought it fit to convene the General Court Martial.
3. In the General Court Martial proceedings, an officer who was serving as a Major in the Indian Army, was appointed as a Judge Advocate to assist the General Court Martial proceedings. After a detailed inquiry, the General Court Martial awarded sentence of cashiering and rigorous imprisonment for three years vide its order dated 20-8-1999. Immediately thereafter, the delinquent officer had filed pre-confirmation petition under Section 164(1) of the Act dated 3-9-1999, before the confirming authority. The said petition came to be rejected by the GOC-in-C, Southern Command vide his order dated 20-12-1999. However, he had remitted the unexpired portion of the sentence of rigorous imprisonment awarded by the General Court Martial. The same was promulgated on 6-1-2000.
4. In the meantime, the respondent herein filed Writ Petition No. 1558 of 1999 before the Bombay High Court on 23-9-1999. The said writ petition was withdrawn on 21-12-1999, since the delinquent officer wanted to exhaust the other remedies provided under the Act itself. Thereafter, the respondent filed a petition under Section 164(2) on 24-12-1999. The said petition was rejected by the Chief of the Army Staff vide his order dated 2-6-2000; however, he reduced the sentence of imprisonment to the period already undergone by the respondent.
5. Aggrieved by the said order passed by the General Court Martial, order passed by the GOC-in-C, Southern Command and also the order passed by the Chief of the Army Staff; the respondent approached the Bombay High Court by filing Writ Petition No. 5293 of 2000 under Articles 226 and 227 of the Constitution of India. The primary contention that was raised and canvassed before the High Court was that an officer who was below the rank of the delinquent officer, was appointed as a Judge Advocate to assist the General Court Martial and that would vitiate the entire inquiry proceedings. The Bombay High Court, following the observations made in S. Gill case (2000) 5 SCC 742, has allowed the writ petition on 20-4-2009 (2009) 4 MLJ 690 (Bom).
6. At this stage, it is relevant to notice the observations made by this Court in S. Gill case, which are as under: (SCC p. 761, para 25)
“25. … After examining various provisions of the Act, the Rules and Regulations framed thereunder and perusing the proceedings of the court martial conducted against Respondent 1, we are of the opinion that the Judge Advocate though not forming a part of the Court, yet being an integral part of it is required to possess all such qualifications and be free from the disqualifications which relate to the appointment of an officer to the cour
