2015 Supreme(SC) 2

SUPREME COURT OF INDIA
VIKRAMAJIT SEN, SHIVA KIRTI SINGH, JJ.
UNION OF INDIA & ANR. – APPELLANTS
Versus
PURUSHOTTAM – RESPONDENT
CIVIL APPEAL No. 7133 OF 2008
Decided on : 05-01-2015

IMPORTANT POINTS
Although modern jurisprudence is presently partial to perusal of Parliamentary Debates in interpreting statutes; debates of Constituent Assembly are helpful in interpreting and understanding Constitution.
Departmental or disciplinary proceedings, even if punitive in amplitude, would not be outlawed by Article 20(2) of the Constitution. Criminal action and departmental action, even if on same set of facts and evidence, will not constitute double jeopardy.
Acquittal of an employee by a Criminal Court would not automatically and conclusively impact Departmental proceedings.
Unless an employee has been acquitted by a criminal court honourably, the order of acquittal will not preclude departmental proceedings.
Double Jeopardy principle contained in Section 121 of the Army Act, 1950 has only premised prohibition of a second trial in case the first one leads to punishment/conviction.
Section 300 Cr PC contemplating both autrefois acquit and autrefois convict, may not be in harmony with Article 20(2) of the Constitution which provides only for autrefois convict. However, disharmony, if any, remedied by providing protection only as regards autrefois convict.
Rules must be interpreted harmoniously with the parent statute.
A non-concluded court martial would not debar fresh proceedings.
Review under section 162, Army Act merely on technicalities is not permissible.
Order u/s 162 must be passed by competent authority.

Headnote:(a) Interpretation of Statute – Aid of debates of Parliament and Constituent Assembly – Modern jurisprudence presently partial to perusal of Parliamentary Debates in interpreting statutes – However debates of Constituent Assembly are helpful in interpreting and understanding Constitution. (Para 10)

       (1984) 2 SCC 183; (2000) 3 SCC 250; (1997) 8 SCC 191 – Relied upon

       (b) Constitution of India – Article 20(2) – Double jeopardy – Contemplating “prosecuted and punished” – Thus consciously excluding autrefois acquit – Postulating that the prescribed successive punishment must be of a criminal character – Therefore departmental or disciplinary proceedings, even if punitive in amplitude, would not be outlawed by Article 20(2) – Criminal action and departmental action even if on same set of facts and evidence will not constitute double jeopardy. (Para 12)

       (1984) 2 SCC 183; (2000) 3 SCC 250 – Relied upon

       522 US 93 (1997); 448 U.S. 242 (1980) – Referred

       (1988) 4 SCC 655 – Distinguished

       (c) Service law – Departmental and criminal proceedings – Acquittal of an employee by a Criminal Court would not automatically and conclusively impact Departmental proceedings for three reasons – Firstly, degrees of proof in the two are disparately different – Requirement of proof beyond reasonable doubt in criminal prosecution contrasted by preponderant proof in civil or departmental enquiries – Secondly, acquittal in criminal prosecution could be the consequence of shoddy investigation or slovenly assimilation of evidence, or lackadaisical if not collusive conduct of the Trial etc. – Thirdly, if acquittal in a criminal prosecution is a positive decision i.e. if the court declares the accused innocent and not that he has not been proved to be guilty beyond reasonable doubt may preclude a contrary conclusion in a departmental enquiry. (Para 13)

       (2013) 1 SCC 598 – Relied upon

       AIR 1964 SC 787 – Referred

       (d) Service law – Armed forces – Court martial letting respondent off leniently incorrectly on technicalities – Not having been acquitted ‘honourably’ – Departmental or Disciplinary proceedings ought not to be viewed as precluded. (Para 14)

       (e) Army Act, 1950 – Section 121 r/w sections 125 and 126, and sections 80, 83, 84 and 85 – Double jeopardy – Sections 121, 125 and 126, read conjointly do not contemplate simultaneous court-martial and trial by a Criminal Court – Protection only against a second court-martial or a dealing under Sections 80, 83, 84 and 85 – Double Jeopardy principle contained in Section 121 has only premised prohibition of a second trial in case the first one leads to punishment/conviction. (Para 15, 21)

       (f) Code of Criminal Procedure, 1973 – Section 300 – Contemplating both autrefois acquit and autrefois convict – May not be in harmony with Article 20(2) of the Constitution which provides only for autrefois convict – However, disharmony, if any, remedied by providing protection only as regards autrefois convict. (Para 17)

       (g) Interpretation – Rules – Rules are framed for dealing in detail with myriad situations – For guidance of the concerned Authority – Rules must, therefore, be interpreted harmoniously with the parent statute. (Para 19)

       (h) Army Act, 1950 – Section 121 – Court martial failing to get confirmation – In effect court martial cannot be held concluded – Fresh proceedings would not be debarred. (Para 21)

       (1985) 2 SCC 412; (2001) 5 SCC 593 – Relied upon

       (i) Army Act, 1950 – Section 23 r/w Rule 12 and 13, Army Rules – Deputy Judge-Advocate General setting aside, albeit illegally, order of Court Martial but opining against continuation of respondent in Army – Discharge certificate certifying his conduct as ‘exemplary’ – Discharge proceedings u/r 13 unsustainable – Discharge certificate issued after such proceeding not sustainable. (Para 22)

       (j) Army Act, 1950 – Section 162 – Section 162 confers power to review court martial proceedings – However, instantly power exercised by Deputy Judge Advocate General who is not the competent authority u/s 162 – Further, setting aside order passed on technicalities – Not permissible – Even otherwise section 161(1) does not require confirmation – It only requires transmission of record of proceedings to competent authority u/s 162 who may review and even set aside the proceedings but not on merely technical grounds – Instantly SCM proceedings set aside by an officer not competent to do so on technical ground that respondent’s not guilty plea was not recorded while conducting proceedings, notwithstanding his plea of guilty – Not sustainable – Order of Summary Court Martial restored – Liberty given to appellants to proceed in accordance with law. (Para 23, 24, 25)

       (k) Army Act, 1950 – Section 20 r/w rule 17, Army Rules – Any person other than an officer subject to the Act may be dismissed or removed from service or reduced in rank – High Court also permitting appellants to initiate departmental proceedings – Exactly that was done. (Para 25)

       Facts of the case:

       The Respondent, Purushottam, was enrolled in the Corps of Military Police.

       Chief Engineer, Project Beacon, ordered a Court of Inquiry which investigated the allegations against the respondent and concluded that he was blameworthy for two of the four aforesaid acts committed without authority: firstly, demanding and taking 100 litres of HSD from BRI HL Meena on 30th November, 2001 and selling it to a civilian, and secondly, on 5th December, 2001 demanding and taking a coat/parkha and two stone breaking steel hammers.

       The Chief Engineer partially agreed with the findings of the Court of Inquiry and directed disciplinary action against the Respondent.

       The Respondent was arraigned on two counts for the two respective acts and charged with committing extortion, under Section 53(a) of the Army Act, 1950. Summary of Evidence was recorded under Rule 23, Army Rules and the Respondent was tried by Summary Court Martial (SCM) on 11.04.2002.

       The Respondent pleaded guilty to both charges. Respondent declined to cross-examine the prosecution witnesses. The Respondent neither made any statement in his defence, nor did he produce any defence witnesses.

       He was ultimately awarded the sentence of a reduction in rank to that of “Naik”.

       Thereafter, the ‘reviewing authority’ purportedly acting under Section 162 of the Act, while ‘reviewing’ the SCM, set aside the same.

       A Show Cause Notice (SCN) was issued shortly afterwards to the Respondent, stating that the Respondent had during his tenure been found to have engaged in illegal activities. It was made known to the Respondent that his continued presence in the Army would possibly be detrimental to maintaining discipline and hence his retention in service was considered undesirable.

       The Respondent was allegedly orally told that his services had been terminated and a Discharge Certificate under Rule 13 was issued on 05.02.2003.

       The High Court allowed the Respondent’s writ petition, and quashed Show Cause Notice as unsustainable. The High Court did not preclude the Respondent before it from “taking any departmental action against the petitioner in respect of the allegations, in accordance with law.”

       Finding of the Court:

       Setting aside order of SCM is unsustainable.

       Result: Appeal disposed of by restoring the order of the Summary Court Martial, yet not prohibiting the Appellants to proceed in accordance with law.