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1981 Supreme(Del) 210
DELHI HIGH COURT
RAJINDAR SACHAR AND R. N. AGGARWAL, JJ.
R. S. GHALWAT
VERSUS
THE UNION OF INDIA AND OTHERS
Criminal Writ Petn. No. 83 of 1980.
Decided on : 4-6-1981.
The trial by court martial of army personnel is not violative of any of the provisions enshrined in Part III of the Constitution, including the right to a fair trial under Article 21, as Article 33 of the Constitution empowers Parliament to modify certain fundamental rights in their application to persons subject to the Army Act.
Headnote:
OFFICIAL SECRETS ACT - COURT MARTIAL - JURISDICTION - CONFESSION - VOLUNTARINESS - RIGHT TO COUNSEL - FAIR PROCEDURE - SEPARATION OF JUDICIARY AND EXECUTIVE - ARTICLE 21 - ARTICLE 33 - ARMY ACT - SCOPE AND APPLICABILITY - REVIEW OF FINDINGS BY CIVIL COURT - LIMITED SCOPE - WRIT OF CERTIORARI - WRIT OF HABEAS CORPUS - DISTINCTION - MILITARY TRIBUNALS - CONSTITUTIONALITY - AMERICAN AND ENGLISH PRECEDENTS - COURT MARTIALS (APPEALS) ACT 1951 (ENGLAND) - UNIFORM CODE OF MILITARY JUSTICE 1950 (USA) - MILITARY JUSTICE ACT 1968 (USA) - REFORMS AND SAFEGUARDS - DISCUSSION.
Fact of the Case:
The petitioner, a Major in the Army, was tried by General Court Martial and convicted of three charges under Section 3(1)(c) of the Official Secrets Act and sentenced to 14 years' rigorous imprisonment. He challenged the findings and conviction, raising various grounds, including the validity of the court martial proceedings, the admissibility of his confession, the denial of his right to engage a lawyer of his choice, and the alleged violation of his fundamental rights under Articles 21 and 22 of the Constitution.
Finding of the Court:
1. The court held that the petitioner was subject to the provisions of the Army Act and that the General Court Martial had jurisdiction to try him for offences under the Official Secrets Act by virtue of Section 69 of the Army Act, which creates a legal fiction deeming any civil offence committed by a person subject to the Act to be an offence against the Act. 2. The court rejected the petitioner's contention that the requirement of Section 13(3) of the Official Secrets Act, which mandates a complaint from a specified officer before cognizance can be taken of an offence, applies to proceedings under the Army Act. It held that this procedural requirement pertains only to prosecutions under the Official Secrets Act and does not automatically incorporate itself into the Army Act. 3. The court also dismissed the petitioner's argument that he was denied the assistance of a lawyer of his choice, emphasizing that there was no evidence that he had ever requested the services of a counsel. It noted that the petitioner was a senior officer who knew his rights and could have asked for legal assistance if he felt the need. 4. The court rejected the petitioner's contention that the trial by court martial violated his fundamental rights under Articles 21 and 22 of the Constitution, holding that the right to trial by ordinary criminal courts was not preserved to members of the Armed Forces notwithstanding the provisions of the Army Act. It relied on the Supreme Court's decision in Ram Sarup v. Union of India, which held that Article 33 of the Constitution empowers Parliament to modify certain fundamental rights in their application to persons subject to the Army Act. 5. The court also rejected the petitioner's argument that the trial by court martial was violative of the separation of judiciary and executive, noting that this issue had been settled by the Supreme Court in Ram Sarup v. Union of India, which held that the trial by court martial of army personnel is not violative of any of the provisions enshrined in Part III of the Constitution. 6. The court examined the petitioner's challenge to the admissibility of his confession, which he alleged was obtained under coercion and duress. It held that the court martial had fully examined the issue of voluntariness and overruled the petitioner's objection, and that this court could not reappraise that finding of fact on the supposed plea of violation of fundamental rights under Article 20(3) or Article 21 of the Constitution. 7. The court discussed the limited scope of review of findings of military tribunals by civil courts, emphasizing that the inquiry is limited to examining whether there is an error of jurisdiction or a total lack of evidence. It noted that the court martial had jurisdiction over the person and the case, and that its proceedings cannot be collaterally impeached for mere error or irregularity, if there were such, committed within the sphere of its authority.
Issues: 1. Whether the General Court Martial had jurisdiction to try the petitioner for offences under the Official Secrets Act. 2. Whether the requirement of Section 13(3) of the Official Secrets Act, mandating a complaint from a specified officer before cognizance can be taken of an offence, applies to proceedings under the Army Act. 3. Whether the petitioner was denied his right to engage a lawyer of his choice. 4. Whether the trial by court martial violated the petitioner's fundamental rights under Articles 21 and 22 of the Constitution. 5. Whether the trial by court martial violated the principle of separation of judiciary and executive. 6. Whether the petitioner's confession was obtained under coercion and duress, rendering it inadmissible. 7. The scope of review of findings of military tribunals by civil courts.
Ratio Decidendi: 1. The court held that the General Court Martial had jurisdiction to try the petitioner for offences under the Official Secrets Act by virtue of Section 69 of the Army Act, which creates a legal fiction deeming any civil offence committed by a person subject to the Act to be an offence against the Act. 2. The court held that the requirement of Section 13(3) of the Official Secrets Act, mandating a complaint from a specified officer before cognizance can be taken of an offence, does not apply to proceedings under the Army Act, as it is a procedural requirement pertaining only to prosecutions under the Official Secrets Act. 3. The court held that the petitioner was not denied his right to engage a lawyer of his choice, as there was no evidence that he had ever requested the services of a counsel. It noted that the petitioner was a senior officer who knew his rights and could have asked for legal assistance if he felt the need. 4. The court held that the trial by court martial did not violate the petitioner's fundamental rights under Articles 21 and 22 of the Constitution, as Article 33 of the Constitution empowers Parliament to modify certain fundamental rights in their application to persons subject to the Army Act. 5. The court held that the trial by court martial did not violate the principle of separation of judiciary and executive, as this issue had been settled by the Supreme Court in Ram Sarup v. Union of India, which held that the trial by court martial of army personnel is not violative of any of the provisions enshrined in Part III of the Constitution. 6. The court held that the petitioner's challenge to the admissibility of his confession, which he alleged was obtained under coercion and duress, could not be reappraised by the court, as the court martial had fully examined the issue of voluntariness and overruled the petitioner's objection. 7. The court held that the scope of review of findings of military tribunals by civil courts is limited to examining whether there is an error of jurisdiction or a total lack of evidence, and that the court martial had jurisdiction over the person and the case, and its proceedings cannot be collaterally impeached for mere error or irregularity, if there were such, committed within the sphere of its authority.
Final Decision: The petition was dismissed.
Sachar J. :- The petitioner was a Major in the Army and was tried by General Court Martial in the month of Aug, 1977. This petition challenges the finding and conviction by General Court Martial as confirmed by respondent No. 2 by which the petitioner has been held guilty of three charges for offence under Section 3(1)(c) of the Official Secrets Act and sentenced to R.I. for 14 years.
2. The petitioner was an officer the rank of Major in the Army and was undoubtedly subject to the provisions of the Act vide Section 2 of the Army Act, 1950 (to be called the Act). Chapter VI of the Act, deals with the offences punishable under the Act and provides that whosoever commits any of the offences mentioned therein shall on conviction by court martial be liable to suffer such or less punishments as are mentioned therein. Shortly stated under this Chapter there are three categories of offences namely (1) offences committed by a person subject to the Act triable by a court-martial in respect whereof specific punishments have been assigned; (2) civil offences committed by the said person at any place in or beyond India but deemed to be offences committed under the Act and if charged under Section 69 of the Act triable by a court-martial and, (3) offences of murder and culpable homicide not amounting to murder or rape committed by a person subject to the Act against a person not subject to the military law. Subject to a few exceptions, they are not triable by court martial but are triable only by ordinary courts.
3. Section 69 of the Act lays down that subject to the provisions of Section 70 any person subject to this Act who at any place in or beyond India commits any civil offence shall be deemed to be guilty of an offence against this Act and if charged therewith under this Section, shall be liable to be tried by a court martial and, on conviction be punishable.
4. The scheme of the Act, therefore, is self-evident. It applies to offences committed by army personnel described in Section 2 of the Act; it creates new offences with specified punishments, imposes higher punishments to pre-existing offences and enables civil offences by a fiction to be treated as offences under the Act. (vide AIR 1961 SC 1762 : ((1961) 2 Cri LJ 828) E.G. Barasay v. State of Bombay). The expression 'if charged therewith under this Section' occurring in Section 69 of the Act means 'if accused of an offence which is an Army Act offence because of the legal fiction created by Section 69 (vide AIR 1963 Madh Pra 249) : ((1963) 2 Cri LJ 161) Gopinathan v. State of Madhya Pradesh.) Civil offence is defined in Section 3(ii) of the Act to mean an offence which is triable by a criminal court and sub-clause (viii) defines the criminal court to mean a court of ordinary criminal justice in any part of India. Section 13(1) of the Official Secrets Act says that no court other than that of a Magistrate of the first class specially empowered in this behalf by the appropriate Government which is inferior to that of a District or Presidency Magistrate shall try any offence under this Act. Admittedly Magistrate of the first class is one of the classes of criminal courts mentioned in Section 6 of the Criminal P.C. 1973. Thus as the offence under the Official Secrets Act triable by the Magistrate of the first class it would be a civil offence as defined in the Act and Section 69 would be applicable. Mr. Garg however, contends that as Section 13 does not empower every Magistrate of the first class to try an offence under the Official Secrets Act but only a Magistrate specially empowered by the appropriate government the said court cannot be treated to be a court of ordinary criminal justice but it is a special court, and Section 69 of the Act would not apply. The argument is without substance. The court of Magistrate of the first class is one of the classes of criminal courts as defined in the Criminal P.C. When the, Criminal Court, is defined in the Act to mean a court of ordi
