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1996(2) Crimes 14 (SC)
SUPREME COURT OF INDIA
K. Ramaswami, S. Saghir
Ahmad and G.B. Pattanaik, JJ.
Union of India & Ors -Appellants
versus
Major General Madan Lal
Yadav (Retd.) -Respondent
Criminal Appeal No. 230 of 1988
Decided on 22-3-1996
Held that the legislature has made a distinction between Section 122(3) and Section 123(2). While in the former, power to exclude time taken in specified contingencies is given, in the latter, no such provision is made for excision of the time since the accused will be kept under detention after he ceased to be governed by the Act. It is equally settled law that penal provisions would be construed strictly. As posed earlier, which of the two views - broader or narrow - would sub serve the object and purpose of the Act is the question. We are of the considered view that from a conspectus of the scheme of the Act and Rules, the broader view appears to be more conducive to and consistent with the scheme of the Act and the Rules. As soon as GCM assembles the members are charged with the duty to examine the charge/charges framed in summary trial to give an opportunity to the accused to exercise his right to object to the empanelment of member/members of the G.C.M. to amend the charge and the right to plead guilty or not guilty. These procedural steps are integral and inseparable parts of trial. If the accused pleads guilty, further trial by adducing evidence by the prosecution is obviated. The need for adduction of evidence arises only where the accused pleads "not guilty". In that situation, the members are required to take oath or affirmation according to Rule 45. It is to remember that the members get right. power and duty to try an accused only on appointment and the same ends with the close of the particular case. Therefore Rule 45 insists on administration of oath in the prescribed manner. For a judicial officer the act of appointment gives power to try the offender under Criminal Procedure Code; warrant of appointment by the President of India and the oath taken as per the form prescribed in Schedule III of the Constitution empowers the High Court/Supreme Court Judges to hear the petition or appeals. For them, need to take oath on each occasion of trial or hearing is obviated. Therefore, the occasion to take oath as per the procedure for GCM and the right of the members of the GCM arises with their empanelment as GCM and they get power to try the accused the moment they assemble and commence examination of the case, i.e., charge-sheet and the record. The trial, therefore, must be deemed to have commenced the moment the GCM assembles and examination of the charge is undertaken. (Para 15)
Our conclusion further gets fortified by the scheme of the trial of a criminal case unser the Code of Criminal Procedure, 1973, viz., Chapter XIV "Conditions requisite for initiation of proceedings" containing Sections 190 to 210. Chapter XVIII containing Sections 225 to 235 and dealing with "trial before a Court of Sessions" pursuant to committal order under Section 209 and in Chapter XIX "trial of warrant-cases by Magistrates" containing Sections 238 to 250 etc. It is settled law that under the said Code trial commences the moment cognisance of the offence is taken and process is issued to the accused for his appearance etc. Equally, at a Sessions trial, the court considers the committal order under Section 209 by the Magistrate and proceeds further. It takes cognisance of the offence from that stage and proceed with the trial. The trial begins with the taking of the cognisance of the offence and taking further steps to conduct the trial. (Para 18)
Further held: Even if narrow interpretation is plausible, on the facts in this case, we have no hesitation to conclude that the trial began on February 25, 1987 on which date the Court-martial assembled, considered the charge and the prosecution under took to produce the respondent who was found escaped from the open detention, before the Court. It is an admitted position that GCM assembled on February 25, 1987 on consideration of the charge, the proceedings were adjourned from day to day till the respondent appeared on March 2, 1987. It is obvious that the respondent had avoided trial to see that the trial would not get commenced. Under the scheme of the Act and the Rules, presence of the accused is a pre-condition for commencement of trial. In his absence and until his presence was secured, it became difficult, nay impossible, to proceed with the trial of the respondent-accused. In this behalf, the maxim nullus commodum capere potest de injuria sua propria - meaning no man can take advantage of his own wrong squarely stands in the way of avoidance by the respondent and he is stopped to plead bar of limitation contained in Section 123(2). (Para 19)
(ii) Words and Pherases-Words A trial commences -Meaning.
Held that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilty or innocence of the accused including all steps necessary thereto. The trial commences with performance of the first act or steps necessary or essential to proceed with trial. (Para 13)
Result: Appeal allowed. Prayer for shifting the trial to Delhi rejected.
JUDGMENT
K. Ramaswamy, J. - This appeal on reference to this Bench raised an interesting question of law. The respondent while working as Major General, Army Ordnance Corps. Southern Command, Pune between December 1, 1982 and July 7, 1985 was in-charge of purchase. The Controller General of Defence Accounts in special audit on the local purchased sanctioned by the respondent prima facie found that respondent had deselected his duty and action under the Act was initiated against him. At that time, the respondent was attached to College of Military Engineering. Pune and was promoted as Major General. After initiating of the proceedings he was ordered to retire which he had challenged by filing Writ Petition. No. 3189 of 1986 in the Bombay High Court which stood dismissed on August 29, 1986.
2 On August 3O, 1986, action was initiated against the respondent under Section 123 of the Army Act, 1950 (for short the Act'). He was kept under open arrest from the date onwards and retired from service on August 31.1986 as Major General. On September 22-1986, the respondent was issued a charge sheet and recording of the summary evidence commenced on September 25, 1986. The respondent filed habeas corpus petition in this Court under Article 32 of the Constitution on September 26, 1986 and refused to cross-examine witnesses examined at preliminary enquiry between October 20 and 25, 1986. He sought for, and the proceedings were adjourned to November 3.1986, on the ground that his lawyer from Delhi was to come to Pune for cross-examination of the witnesses. Due to non-availment of the opportunity given to the respondent to cross-examine the witnesses between November 20, 1986 and December 8- 1986, the case was closed for prosecution on November 20, 1986. The respondent sought 14 days time to prepare his case which was duly allowed. However, the respondent did not give list of his defence witnesses till November 30, 1986. Consequent upon it, on December 26, 1986 the Controller General of Defence Accounts directed the Controller, Defence Accounts. Southern Command to carry out special audit for the period in question. The respondent had sought permission to go to Delhi in connection with his writ petition which was granted between December 16 and 18. 1986. The writ petition was dismissed by this Court on December 18, 1986 against which he filed special leave petition. On January 3.1987, the recording of summary evidence against the respondent was concluded He sought permission to go to Delhi in connection with his special leave petition which was granted between January 12 and February 5, 1987. The summary evidence was considered and GOC in Command, Southern Command submitted his report on February 2, 1987. The special leave petition came to be dismissed by this Court on February 5. 1987. Pursuant thereto, general Court-martial (for short, 'GCM') was ordered on February 24, 1987; the GCM assembled to try the respondent on February 25, 1987 On perusal of the report, it was found that the respondent should be tried for the offence. He was directed to be produced on February 26, 1987 but it transpired that the respondent had escaped lawful military custody on the intervening night of February 15 and 16. 1987. Warrant was issued for his arrest. The respondent voluntarily Surrendered on March 1, 1987 and was placed under closed arrest W.E.F. 21.30 hours on the said day. The Court-martial assembled on March 2, 1987 but it appears that the respondent had, in the meanwhile filed writ petition in the Bombay High Court challenging the jurisdiction of the Court-martial to try him. In W. P. No. 301 of 1987 invoking the provisions of Section 123(2) of the Act the Division Bench had held that the trial of the accused had not commenced within six months of his ceasing to be subject to the Act. The trial by the Court-martial was, therefore, held to be illegal and accordingly writ was issued. Calling in question this order this appeal has been filed.
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