IMPORTANT POINT
The principle of double jeopardy and the authority of the Confirming Authority to confirm findings and sentences under the Army Act.

JUDGMENT :

PUSHPENDRA SINGH BHATI, J.

1. This petition under Article 226 of the Constitution of India has been preferred claiming the following reliefs:

“It is, therefore, most respectfully prayed that this writ petition may kindly be allowed with costs and by issuance of an appropriate writ, direction or order the impugned show cause notices dated 31.03.2017 (Annex.7) may kindly be quashed and set aside. It is further prayed that the finding and sentence awarded by the GCM after revision may kindly be directed to be treated as confirmed.

Any other order may also kindly be passed which appears to be just in favour of the petitioner.”

2. Brief facts of the case, as placed before this Court by learned counsel for the petitioners, are that the petitioners, while being posted at Army Units located at Bikaner, the General Court Martial (GCM) proceedings were initiated against them by the respondent no. 3-General Officer Commanding vide order 26.05.2016. The charge-sheet dated 19.05.2016 was served upon the petitioners, alleging two charges against the petitioners; first charge was under Section 69 of the Army Act, 1950 (hereinafter referred as to ‘Act of 1950’) along with Section 34 of IPC, and the second charge was under Section 63 of the Act of 1950 alongwith Section 34 of IPC.

2.1. Thereafter, the GCM proceedings were started on 13.06.2016 and continued upto 02.11.2016; after completion of the proceeding, the petitioners were found ‘not guilty’ of the first charge, while ‘found guilty, of the second charge, whereupon the petitioners were convicted and sentenced to undergo rigorous imprisonment for a period of 7 days.

2.2. Thereafter, the aforesaid finding and the conclusion of award of sentence was submitted before the Confirming Authority for confirmation of the same, but the said Authority did not confirm the finding in regard to the first charge and the sentence awarded pursuant to the GCM proceedings, while sending the proceedings for revision vide order dated 24.12.2016. After the said order, the GCM reassembled on 13.01.2017, and thereafter, upon conclusion of the proceedings, the order dated 16.01.2017 was passed, whereby though the petitioners were again ‘not found guilty’ of the first charge, but the sentence awarded in regard to the second charge was enhanced from 7 days rigorous imprisonment to 2 months and 29 days rigorous imprisonment, and the sentence was announced on 16.01.2017.

2.3. Thereafter, the aforesaid finding and the enhanced sentence were sent for confirmation and the same were confirmed vide the order dated 08.03.2017; after confirmation, the sentence was promulgated and the extract thereafter was taken at Bikaner by the Units of the petitioners on 27.03.2017 and 18.03.2017 respectively. Subsequently, the respondents issued the impugned show cause notice dated 31.03.2017 under Section 20 (3) of the Act of 1950 read with Rule 17 of the Army Rules 1954 (hereinafter referred to as ‘Rules of 1954’) for dismissal of the petitioners from services.

2.4. After filing of the instant petition, wherein, the show cause notice dated 31.03.2017 was challenged, the respondents issued yet another show cause notice dated 31.07.2021, which was sought to be brought on record by the petitioners as Annexure-8 with an application for listing of the case for immediate hearing on stay petition.

2.5. Thus, in the above view of the matter, the petitioners are now laying challenge to the aforementioned show cause notices dated 31.03.2017 and 31.07.2021, claiming the afore-quoted reliefs.

3. Learned counsel for the petitioners submitted that the petitioners were already tried during the Court Martial proceedings for the aforementioned charges, and were found ‘not guilty’ of the first charge, but were found ‘guilty’ of the second charge; now, the subsequent impugned show cause notice dated 31.07.2021 is nothing but an act subjecting the pe