2016 Supreme(SC) 513

SUPREME COURT OF INDIA
T.S. Thakur, CJI., Uday Umesh Lalit, J.
Union of India & Ors. – Appellants
Versus
Vishav Priya Singh – Respondent
Civil Appeal Nos. 8360, 8830-8835 & 8838 of 2010; 2547, 2548, 2549 & 2550 of 2011; D.13803, D.18038 & 6679 of 2015
Decided On : 05-07-2016

IMPORTANT POINT
SCM is an exception and it is imperative that a case must be made out for immediacy of action.

Headnote:(A) Army Act 1950 – Sections 108, 116 and 120 – Army Rules, 1954 – Rules 22, 39 and 40 – Convening of Summary Court Martial – Act has given drastic power to one single individual, CO who alone is to constitute Court – This power comes with restrictions insofar as power to award sentence is concerned – However even with such restrictions power is quite drastic – Reason for conferment of such power is obvious that in order to maintain discipline among soldiers and units, CO must have certain special powers for it is discipline which to a great extent binds unit and makes it a cohesive force. (Para 19)

       (B) Army Act 1950 – Sections 108, 116 and 120 – Army Rules, 1954 – Rules 22, 39 and 40 – Summary Court Martial – Power of – SCM can try any offence punishable under the Act but this general principle is subject to provisions appearing in sub-Section (2) of Section 120 – Sub-Section (2) of Section 120 deals with some offences in respect of which certain restrictions are applicable – In normal circumstances, SCM shall not try accused without making a reference to officer who is otherwise empowered to convene a DCM in regular course or an SGCM while on active service – Provision in Section 120(2) requiring a reference to superior authority is a salutary provision and a check on exercise of drastic power conferred upon a CO and must be scrupulously observed – A case for non-adherence to this requirement must be made out on record and any deviation or non-observance of statutory requirements must be viewed seriously – Offences under Sections 34, 37 and 69 of the Act are special categories or kinds of offences where a reference to officer empowered to convene a DCM or an SGCM is considered imperative unless there are grave reasons for immediate action – Similarly, offences against officer holding Court where that officer could possibly be a judge in his own cause, are also put at same level and similar reference under sub-Section (2) ought to be made_1Exercise of power in seeking such reference and consequent consideration in respect thereof must be in keeping with seriousness attached in respect of these offences. (Paras 21 to 23)

       (C) Army Act 1950 – Sections 108, 116 and 120 – Army Rules, 1954 – Rules 22, 39 and 40 – Regulation 9 of DSR – Convening of Summary Court Martial – Power of CO to convene SCM – It is not imperative that an SCM be convened, constituted and completed by CO of Unit to which accused belonged – It is competent and permissible for CO of Unit to which accused was attached or sent on attachment for purposes of trial, to try such accused by convening, constituting and completing SCM in a manner known to law, strictly within confines of Sections 116 and 120 of Act and other Statutory provisions – SCM is an exception and it is imperative that a case must be made out for immediacy of action – Reasons to convene an SCM must be followed by well articulated reasons or record itself must justify such resort. (Para 33)

       Facts of Case:

       Matter concerns convening of Summary Court Martial. Appeals allege prejudicial treatment meted out to them in course of trial by SCM. Petitioner was attached for disciplinary purposes. High Court of Delhi had allowed Writ Petitions on short ground of competence of a CO of a Unit other than one to which accused belonged. Hence instant appeal by Union of India.

       Findings of Court:

       High Court of Delhi was therefore completely correct in observing that such power must be exercised rarely and when it is absolutely imperative that immediate action is called for. Satisfaction in that behalf must either be articulated in writing or be available on record, especially when the matter can be considered on merits by a Tribunal, with coming into force of Armed Forces Tribunals Act, 2007.

       Since High Court of Delhi had allowed Writ Petitions on short ground of competence of a CO of a Unit other than the one to which accused belonged, without going into merits of matters before it,

       while setting aside the view in respect of that point and allowing appeals preferred by Union of India, we remit the matters back to High Court.

       Result – Appeals dismissed.