# Union of India and others v. No. 145432071-F Hav/Arm (Sub) Ram Adhar Tiwari EME, Station Workshop, New Cantt, Allahabad

- **Citation:** (2002) 2 ILRA 608
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-08-21
- **Case number:** Special Appeal No. 726 of 1997
- **Bench:** S.K. Sen, C.J. Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-and-others-v-no-145432071-f-hav-arm-sub-ram-adhar-tiwari-eme-39879
- **Pages:** 11

## Headnote

Army Act, S-120(2) Summary Court-
martial-Shortage of Stock found in May
96-employee chargeshetted on 6.6.97 No
grave reason disclosed-allegation under
Section 52 (b) and 63- Summary court
martial can be held.

Held - Para 13

Section 52 (a) read with clause (b) as
extracted above, makes it clear that
theft or misappropriation of any property
will be an offence but any offence with
regard to property of a mess, band or
institution cannot be said to be an
offence
against,
the
Commanding
Officer. Section 120 (2) refers to offence
against the officer holding the court.
Officer has been defined in Section 3
(xviii). The definition of officer as given
in aforesaid provision refers to persons
commissioned, gazetted or in pay as an
officer in the regular Army. From the
facts of the present case, there is no
material to hold that the offence in
question can be said to be an offence
against the officer holding the court. We
find force in the submission of counsel
for the appellants that provisions of
Section 120 (b) were not attracted in the
facts of the present case and summary
court martial proceedings could have
been proceeded in the present case. In
view of the aforesaid discussion, the first
submission
of
the
counsel
for
the
appellants has substance.
Case law discussed:
J.T. 1993 (5) SC - 154
AIR 1999 SC- 1980
AIR 1998 SC-577
1986 UPL BEC-663
AIR 1993 SC-773
JT 1997 (4) SC 8

## Text

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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
608
This
instant
Reference
stands
disposed of accordingly.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD AUGUST 21, 2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No. 726 of 1997

Union of India and others ...Appellants
Versus
No. 145432071-F Hav/Arm (Sub) Ram
Adhar Tiwari EME, Station Workshop,
New Cantt, Allahabad
 ...Respondent

Counsel for the Appellants:
Sri Shishir Kumar
Addl. S.C. Central Govt.

Counsel for the Respondent:
Sri G.D. Mukherji

Army Act, S-120(2) Summary Court-
martial-Shortage of Stock found in May
96-employee chargeshetted on 6.6.97 No
grave reason disclosed-allegation under
Section 52 (b) and 63- Summary court
martial can be held.

Held - Para 13

Section 52 (a) read with clause (b) as
extracted above, makes it clear that
theft or misappropriation of any property
will be an offence but any offence with
regard to property of a mess, band or
institution cannot be said to be an
offence
against,
the
Commanding
Officer. Section 120 (2) refers to offence
against the officer holding the court.
Officer has been defined in Section 3
(xviii). The definition of officer as given
in aforesaid provision refers to persons
commissioned, gazetted or in pay as an
officer in the regular Army. From the
facts of the present case, there is no
material to hold that the offence in
question can be said to be an offence
against the officer holding the court. We
find force in the submission of counsel
for the appellants that provisions of
Section 120 (b) were not attracted in the
facts of the present case and summary
court martial proceedings could have
been proceeded in the present case. In
view of the aforesaid discussion, the first
submission
of
the
counsel
for
the
appellants has substance.
Case law discussed:
J.T. 1993 (5) SC - 154
AIR 1999 SC- 1980
AIR 1998 SC-577
1986 UPL BEC-663
AIR 1993 SC-773
JT 1997 (4) SC 8

(Delivered by Hon'ble Ashok Bhushan,J.)

1. We have heard Sri Shishir Kumar,
counsel
for
appellants,
and
Sri
G.D.Mukherji, counsel appearing for the
respondent.

2. By this appeal, the appellants
have challenged the judgment of learned
Single Judge in Writ Petition No. 20405
of 1997 (Ram Adhar Tiwari Vs. the
Union of India & others). Learned Single
Judge
vide
judgment
dated
19th
August,1997 has allowed the writ petition
filed by the respondent setting aside the
order imposing sentence in the summary
court-martial dated 30th July,1997.

3. Brief facts giving rise to this
appeal are; respondent at the relevant time
was working as Havaldar in Corps of
Electrical and Mechanical Engineering
(E.M.E.) and was posted at Station
Workshop, Allahabad. The respondent
was detailed to look after the Canteen
Store Department (CSD) run by E.M.E.
Station Workshop. In the checking of
stock of canteen, at the time of handing
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over charge, shortage was found. A court
of enquiry was held to ascertain the facts.
In the court of enquiry the Commanding
Officer, Colonel S.C. Verma, was also
examined as Witness No.1. After the
court of enquiry, the charges were issued
to the respondent by charge-sheet dated
6th June,1997. The Commanding Officer,
Sri S.C. Verma, ordered for trial of the
respondent by summary court-martial. In
the summary Court Martial proceedings,
an application dated 14th June, 1997 was
filed by respondent praying that summary
court-martial be dissolved and reference
be
made
to
the
Commander,
Headquarters, Sub-Area, Allahabad to
convene a district court-martial. In the
aforesaid application it was stated that Sri
S.C. Verma, the Commanding Officer
being Witness No.1 in the court of
enquiry, he will be called as prosecution
witness to depose during the trial, hence
reference be made for general courtmartial. The said application was rejected.
The respondent filed Writ Petition No.
20405 of 1997 praying for quashing of the
summary court-martial proceedings. In
the aforesaid writ petition, an interim
order was granted on 24th June, 1997
staying proceedings of summary courtmartial for a period of one month. By the
order dated 24th June,1997 two weeks
time was granted to the appellants to file
counter affidavit and thereafter one week
was allowed to the respondent to file
rejoinder affidavit. The respondent filed
an application for extension of the interim
order well before expiry of the interim
order to which application an order was
passed on 22nd July, 1997 directing the
application to be listed in the next
supplementary cause list. The appellants
who were respondents in the writ petition
served their counter affidavit and filed
counter affidavit along with application
for vacation of stay order on 24th July,
1997. The respondent has also informed
the Commanding Officer that he has filed
an application for extension of the stay
order in the writ petition and case is fixed
for 1st August, 1997. On 29th July 1997
summary
court-martial
proceedings
started. The counsel for the respondent
was informed. It is stated that on 29th July,
1997 when the summary court-martial
proceedings started, the Commanding
Officer was informed that matter is fixed
for 1st August, 1997 and adjournment was
prayed for till 2nd August, 1997. The
summary court-martial proceedings were
adjourned for the next date. On the next
date, the counsel for the respondent could
not appear and sent a medical certificate.
On 30th July, 1997, the summary courtmartial proceedings proceeded and were
completed. One Captain H.R. Chandel
was appointed as friend of the accused.
By order dated 30th July, 1997, summary
court-martial sentenced the respondent for
90 days detention in military custody and
reduced his rank from Havadlar to
Craftsman. The respondent was allowed
to amend the writ petition challenging the
order dated 30th July,1997. Supplementary
counter
affidavit
and
supplementary
rejoinder affidavit were filed in the writ
petition and learned Single Judge vide its
Judgment
dated
17th
August,
1997
allowed the writ petition.

4. Learned Single Judge while
allowing
the writ petition recorded
following reasons:

(i) Commanding Officer was Chairman
of the Canteen Committee and has
himself caused the investigation which
was admitted by him in the court of
enquiry. The shortage was detected in
May, 1996 and charge-sheet submitted on
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6th June, 1997 which shows that one year
time was taken in reaching the stage of
issuing charge-sheet and the respondents
to the writ petition were not having any
feeling of urgency which suddenly arose
when petitioner to the writ petition
obtained an interim stay on 24th June,
1997. There was no reason for immediate
action to go on with the trial without
reference to officer empower to convene a
district court-martial, summary courtmartial or general court-martial.

(ii) There was no reason for refusing
adjournment on the date of trial when the
counsel for respondent was ill and sought
adjournment
by
producing
medical
certificate. The appellants could not have
proceeded with the trial without giving an
opportunity to the respondent to appoint
another friend to assist him during the
trial of his own choice. The friend
imposed on the respondent by the
appellants
has
already
affirmed
an
affidavit on behalf of the appellants in the
writ proceedings. There was violation of
Rule 129 of Army Rules.

The counsel for the appellants
challenging the judgment of learned
Single
Judge
has
made
various
submissions.
Following
are
the
submissions raised by the counsel for the
appellants in support of this appeal :-

(i) Learned Single Judge has misread
the provisions of Section 120 of Army
Act. Reference is only necessary if a
person is tried under Section 34, 37 and
69 of the Act.

(ii) Findings recorded by learned Single
Judge regarding non compliance of Rule
129 of Army Rules is based on no
evidence.

(iii) Charges
leveled
against
the
respondent are fully proved and he also
admitted the charges and has made
deposit of the amount.

(iv) This Court in exercise of jurisdiction
under Article 226 of the Constitution will
not quash the proceedings of summary
court-martial, which were based on
evidence.

(v) There is very limited scope of
judicial
review
of
court-martial
proceedings.

(vi) It be clarified by this Court that the
appellants are entitled to proceed again
against the respondent as per observation
of learned Single Judge in the impugned
judgment.

5. The counsel for the appellants
placed reliance on various decision,
namely,
JT
1993(5)
S.C.154;
Bhuwneshwar Singh v.Union of India
and others, A.I.R. 1999 S.C. 1980; Union
of India v. Himmat Singh Chahar, A.I.R.
1998 S.C. 577; Union of India and
others v. Major A. Hussain, 1986
UPLBEC 663; Ruval Kumar Vasave v.
Chief of Army Staff and others, 1993 sc
773; Union of India and others v.
J.S.Brar and J.T. 1997(4) S.C. 8;
General Inder Jit Kumar v. Union of
India and others.

6. The counsel for respondent
refuted the submissions of counsel for the
appellants
and
has
supported
the
judgment of learned Single Judge. The
counsel for the respondent contended that
Commanding
Officer,
Colonel
S.C.
Verma, having personal interest in the
matter
being
Chairman
of
the
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management committee of Canteen was
not competent to hold summary courtmartial, relying on Section 120 Note(d) of
Army Act. It was contended that there
was clear violation of Rule 129 since
respondent could not appoint a friend of
his choice to assist him in the trial. The
friend of accused thrust upon the
respondent to assist him had already filed
counter affidavit against the respondent in
the writ petition and the respondent
objected his appointment as friend of
accused.

7. The counsel for the respondents
replying to the submissions of counsel for
the appellants that appellants can again
proceed against the respondent as directed
by the learned Single Judge contended
that appellants cannot proceed now
against the respondent. It was contended
that holding of successive trial is barred
by Army Amendment Act, 1992 which
has omitted Section 127 of the Army Act.

8. We have heard submissions of
both the counsels and have perused the
records. The first issue, which has arisen
for consideration in this appeal, is as to
whether in accordance with Section 120
of the Army Act, the Commanding
Officer was required to make reference
for
general
court-martial,
before
proceeding with the summary courtmartial and secondly whether there has
been violation of Rule 129 of the Army
Rules in the present case. Thirdly as to
whether the appellants can still proceed
against the respondent as permitted by
learned Single Judge.

9. Section 108 of Army Act, 1950
provides for four kinds of court-martials
i.e. general court-martial, district courtmartial, summary general court-martial
and summary court-martial. Section 120
of the Army Act provides for powers of
summary court-martial. Section 120 of the
Army Act is extracted below:-

"120 Powers of summary courtsmartial.-(1) Subject to the provisions of
sub-section(2), a summary court-martial
may try any offence punishable under this
Act.

(2) When there is no grave reason for
immediate action and reference can
without detriment to discipline be made to
the officer empowered to convene a
district court-martial or on active service
a summary general court-martial for the
trial of the alleged offender, an officer
holding a summary court-martial shall
not try without such reference any offence
punishable under any of the Section 34,
37 and 69, or any offence against the
officer holding the court.

(3) A summary court-martial may try
any person subject to this Act and under
the command of the officer holding the
court,
except
an
officer,
Junior
commissioned officer or warrant officer.

(4) A summary court-martial may pass
any sentence which may be passed under
this Act, except a sentence of death or
(imprisonment
for
life)
or
of
imprisonment for a term exceeding the
limit specified in sub-section(5)

(5) The limit referred to in sub-section
(4) shall be one year if the officer holding
the summary court-martial is of the rank
of lieutenant-colonel and upwards, and
three months if such officer is below that
rank."
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10. The provisions which need
consideration for the purposes of the
present case is Section 120(2) of the
Army Act which provides that when there
is no grave reason for immediate action
an officer holding summary court-martial
shall not try with regard to certain
offences without reference to the officer
empowered to convene a district courtmartial or summary general court-martial.
In the present case, it is clear from the
material on the records that detection of
shortage in the stock was found in May,
1996. The court of enquiry was held and
charges to the respondent were given only
on 6th June,1997 which shows that there
was no grave reason for immediate action,
since had there been any grave reason,
there was no occasion to initiate action for
court-martial after expiry of one year
from the date when shortage was
detected. The submission of counsel for
the appellants is that Section 120 (2) is
attracted only with regard to offences
punishable under any of the Sections34,
37 and 69 and since in the present case
the respondent was charged with an
offence under Section 52(b) and 63 of the
Army Act, the said provisions are not
attracted
and
summary
court-martial
could have been held in the matter.
Learned counsel for the respondent has
submitted that offence in the present case
was against the officer holding the court,
hence Section 120(2) is attracted. Counsel
for the respondent has referred to and
relied on Note (d) said to be appended to
Section 120 and quoted in paragraph 7 of
the writ petition. The counsel for the
respondent has read out the aforesaid
Note from book, namely, Compendium of
Law for Defence Service, the University
Book Agency, New Addition 1991. We
have examined the aforesaid Note (d)
appended to Section 120 in the aforesaid
book. The note, which is being relied by
counsel for the respondents appears to be
note of the author of the book. The
aforesaid note is not statutory note which
can be said to be part of the Section or the
Act. Thus Note (d) of the Act or Section
relied by counsel for the respondent
cannot be treated to be part of the Act or
Section. However, the words "any offence
against the officer holding the court" are
to be looked into for finding out the true
scope and its meaning. Section itself does
not define that what are offences against
the officer holding the court. Section
3(XVII) defines offence as follows :-

"3(xvii) "offence" means any act or
omission punishable under this Act and
includes a civil offence as hereinbefore
defined."

The offences in respect of property
has been defined in Section 52 of the
Army Act which is quoted as below :-

"52. Offences in respect of property:-
Any person subjeet to this Act who
commits any of the following offences,
that is to say-

(a) commits theft of any property
belonging to the Government, or to any
military, naval or air force mess, band or
institution, or to any person subject to
military, naval or air force law, or

(b) dishonestly
misappropriates
or
converts to his own use any such
property; or

(c) commits criminal breach of trust in
respect of any such property; or

(d) dishonestly receives or retains any
such property in reject of which any of the
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offences under clauses (a), (b) and (c) has
been committed, knowing or having
reason to believe the commission of such
offence; or

(e) willfully destroys or injuries any
property of the Government entrusted to
him; or

(f) does any other thing with intent to
defraud, or to cause wrongful gain to one
person or wrongful loss to another
person,

shall, on conviction by court-martial, be
liable to suffer imprisonment for a term
which may extend to ten years or such
less punishment as is in this Act
mentioned.

11. In the present case, there is no
allegation of any offence with regard to
person of the Commanding Officer. The
submission of counsel for the respondents
is to the effect that since the Commanding
Officer was Chairman of the Management
Committee running the CSD Canteen,
hence
allegation
of misappropriation
regarding the amount will be an offence
against the Commanding Officer. The
counsel
for
the
respondent
has
specifically referred to clause 22 of the
Standard. Operating Procedure (filed as
Annexure-3 to the writ petition). Clause
22 of the Standard Operating Procedure is
extracted as below :-

"2.2 Administration: A management
committee constituted as under will
administer, control and run the canteen.

a) C.O.

: Chairman
b) OIC Canteen
: Any Offr nominated
by the C.O.
c) JCO-in-Charge : Any JCO
d) Canteen Staff
:
Canteen
NCO
Salesman Canteen Clerk

12. We have carefully perused the
Standard
Operating
Procedure.
The
aforesaid Standard Operating Procedure
provides for several procedural Rules
with regard to running of CSD Canteen,
Maintenance of Account, Source of
Income, Disposal of Canteen Profits.
Clause 21 which is relevant for the
purpose is extracted below:-

"21. Disposal of profits: On the 5th
of every quarter the total net profit of the
proceeding Quarter along with its details
will be put up for approval of the C.O. by
CIC Adm. Op. The distribution of the
profit will be completed within a week
after the same is approved by the C.O.
The profit will be distributed as per
following guide lines which may be
reviewed, if felt necessary:-

a) Sub Area Offrs. Mess -
10%
b) JCO Club

-
 5%
c) Offrs. Amenity
-
 5%
d) Coy Fund

-
60%
e) Capital

-
20%

13. From a perusal of various
clauses
of
the
aforesaid
Standard
Operating Procedure, it is clear that
Commanding Officer cannot be said to be
owner of the assets and the properties of
the Canteen. The administration of
Canteen is vested in the Management
Committee
whose
constitution
is
mentioned in Clause-22 and is guided by
Commanding Officer for overall policy.
Thus the administration of the Canteen is
entrusted to a body not on an individual
and any offence committed by a person
while functioning as Canteen staff cannot
be held to be an offence against officer
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holding the court. No materials have been
brought on the record to show that
Commanding Officer is the owner of the
assets of the Canteen. Section 52 (a) read
with clause (b) as extracted above, makes
it clear that theft or misappropriation of
any property will be an offence but any
offence with regard to property of a mess,
band or institution cannot be said to be an
offence against the Commanding Officer.
Section 120 (2) refers to offence against
the Officer holding the court. Officer has
been defined in Section 3 (xviii). The
definition of officer as given in aforesaid
provision refers to persons commissioned,
gazetted or in pay as an officer in the
regular Army. From the facts of the
present case, there is no material to hold
that the offence in question can be said to
be an offence against the officer holding
the court. We find force in the submission
of
counsel
for
the appellants
that
provisions of Section 120 (2) were not
attracted in the facts of the present case
and summary court martial proceedings
could have been proceeded in the present
case. In view of the aforesaid discussion,
the first submission of the counsel for the
appellants has substance.

14. The second submission of the
counsel for the appellants is that there is
no violation of Rule 129 in the facts of the
present case, Rule 129 of the Army Act
provides:-

"129.
Friend of accused. In any
summary
court-martial,
an
accused
person may have a person to assist him
during the trial, whether a legal advisor
or any other person. A person so assisting
him may advice him on all points and
suggest the questions to be put to
witnesses, but shall not examine or crossexamine witnesses or address the court."
15. Rule 129 provides a measure of
protection to an accused person. Under
Rule 129 legal advisor or any other
person can be chosen by accused person
for assisting him. From the facts which
have been brought on the record, in the
present case, it is clear that it is claimed
that in the court-martial proceedings
which assembled on 29th July, 1997, the
counsel
appearing
for
respondent
appeared in the court-martial proceeding.
The proceedings were adjourned for 30th
July, 1997 on which date counsel for the
respondent could not appear and medical
certificate was sent by the counsel for
adjournment
of
that
date.
The
Commanding Officer did not grant
adjournment
and
proceeded
and
concluded the court-martial proceedings
on the same day i.e. 30th July, 1997, it has
also been brought on the record that one
Captain H.R. Chandel was directed by
Commanding Officer to act as friend of
the accused. The respondent has stated
that he objected to appointment of
Captain H.R. Chandel as his friend. It is
relevant to note that said H.R. Chandel
who was appointed as friend of the
accused is the same officer who has filed
a counter affidavit in the writ petition of
the writ petitioner sworn on 21st July,
1997. From the aforesaid, it is clear that
on
30th
July,
1997
court-martial
proceedings were held and concluded and
the respondent did not get any assistance
as contemplated under Rule 129 of the
Army Act. The counsel for the respondent
when could not appear on 30th July, 1997
due to his illness, it was appropriate that
an opportunity ought to have been given
to the respondent to engage another
person as friend of accused. The Division
Bench of this Court in 1993 Allahabad
Weekly Cases 883; Union of India and
others Vs. Sepoy/Driver, Rameshwar
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Mehato has considered the provisions of
Rule 129 of the Army Rules. The
Division Bench laid down in para 3 which
is being extracted below :-

"3 Having considered the record of
the trial in the light of the provisions of
Rule 129 we find no merit in the
contention raised on behalf of the
appellants. From a plain reading of Rule
129 it is ineluctively clear that an accused
who is being tried in a court martial is
entitled to be assisted by a legal advisor
or any other person, of his choice for the
purposes mentioned therein. In paragraph
25 of the writ petition, the respondent has
categorically stated that on 7.3.1984 (the
date on which the trial commenced) he
asked for
the
service of
a legal
practitioner to assist him during his trial
by summary court-martial and was
prepared to bear the expenses for the
same, but even though it was his legal
right under the provisions of Rule 129, the
appellant No. (commanding officer, 504
ASC Battalion) did not allow his prayer
for reasons best known to him. In their
counter
affidavit
the
appellants
(respondents in the writ petition), while
dealing with the complaint made in
paragraph 25 of the writ petition stated as
under:-

"That the contents of paragraph 25
of the writ petition are incorrect and are
denied. As per the Army Act and the Rules
Captain A.R. Bhardwaj was detailed as
friend of the accused"

From the above pleadings of the
parties on the question of compliance of
Rule 129 we find no merit in the
contention raised that the appellants did
not specifically deny the fact that the
respondent had asked for a legal advisor.
On the contrary they stated that they had
appointed a person as friend of the
accused. The right to be defended by a
lawyer of one's choice is expressly
provided for in Rule 129 and, therefore,
it was incumbent upon the appellants to
provide the respondent with a lawyer of
his choice. In case the respondent had not
exercised such right the appellants might
have appointed a person to assist him as
his friend, but as in the instant case the
record clearly shows that the respondent
had asked for the assistance of a legal
advisor and such right was denied, it must
be
said
that
the
respondent
was
prejudiced in his defence and the
principles
of
natural
justice
were
violated..

16. From the facts of the present
case, it is clear that there was violation of
Rule 129 of Army Rules in proceeding
with
the
summary
court-martial
proceeding on 30th July, 1997. Learned
Single Judge has rightly held so. The fact
that summary court-martial proceedings
were concluded in great haste, within a
day,
also
supports
our
view
that
proceedings were concluded without
giving opportunity to respondent to avail
the benefit of Rule 129. Thus we are of
the view that learned Single Judge did not
commit any error in recording a finding
that there is violation of Rule 129 in the
summary court-martial proceedings.

17. The third submission of counsel
for the appellants is to the effect that
charges
were
fully
proved
since
respondent himself admitted his guilt and
deposited the money. Learned Single
Judge while allowing the writ petition has
not considered the merits of charges nor
recorded any finding on merits of the
case.
The
summary
court-martial
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
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proceedings were quashed in view of the
reasons given in the judgment. Learned
Single Judge in his judgment has also left
it open to the appellants to proceed
against respondent in accordance with
law. In view of this, there is no necessity
for considering this submission of the
counsel for the appellants. Merit of
charges having been not considered by
learned Single Judge, the same need not
be considered in this appeal.

18. The next submission of counsel
for the appellants is that under Article 226
of the Constitution, the Court has limited
scope of review. The counsel for the
appellants has also relied on various
judgments
as
referred
above.
In
Bhuwneshwar Singh's case (supra), in
paragraph 13, the Apex Court held as
under:-

"13. Keeping in view the limited nature of
judicial review in matters arising out of
Court Martial Proceedings, it is not only
desirable
but
necessary
that
the
authorities under the Army Act strictly
follow the requirements of the Act and the
Rules ........................................"

19. It is true that the Apex Court in
the
aforesaid
judgment
and
other
decisions cited by counsel for the
appellants has held that power of judicial
review under Article 226 is for limited
purpose and the said power of judicial
review cannot be a power of appellate
authority permitting the High Court to reappreciate the evidence. In Union of
India v. Himmat Singh Chahar's case
(supra), in paragraph 5, the Apex Court
held as under :-

"5. Since the entire procedure is
provided in the Act itself and the Act also
provides for a further consideration by
the Chief of Naval Staff and then by the
Union Government then ordinarily there
should be a finality to the findings arrived
at by the Competent Authority in the
Court Martial Proceeding. It is of course
true that notwithstanding the finality
attached to the orders of the Competent
Authority
in
the
Court
Martial
Proceedings the High Court is entitled to
exercise its power of judicial review by
invoking jurisdiction under Art. 226 but
that would be for a limited purpose of
dinging out whether there has been
infraction of any mandatory Provisions of
the Act prescribing the procedure which
has caused gross miscarriage of justice or
for finding out that whether there has
been violation of the principles of natural
justice
which
vitiates
the
entire
proceeding
or
that
the
authority
exercising the jurisdiction had not been
vested with the jurisdiction under the Act.
The said power of judicial review cannot
be a power of an Appellate Authority
permitting
the
High
Court
to
reappreciate the evidence and in coming to
a conclusion that the evidence is sufficient
for the conclusion arrived at by the
Competent Authority in the Court Martial
Proceedings."

20. The other decisions cited by
counsel for the appellants lays down the
same proposition. There cannot be any
dispute with the proposition as laid down
by the Apex Court in the aforesaid cases.
The scope of judicial review is limited
and has to be exercised in well defined
parameters of judicial review. In the
present case learned Single Judge has not
interfered
with
the
court-martial
proceedings by way of re-appraising the
evidence or setting aside the findings. The
learned Single Judge has granted the relief
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617
due to violation of Rule 129 of Army
Rules and other reasons mentioned in the
judgment. The Division Bench of this
Court in Union of India v. Sepoy/Driver
Rameshwar Mahato's case (supra)which
was also a case of violation of Rule 129
has held that respondent was prejudiced in
his defence and principles of natural
justice were violated. As laid down by
Apex Court in 1990(4) S.C.C. 594; S.N.
Mukherjee v. Union of India the
principles of natural justice are to prevent
miscarriage of justice and secure fair play
in action. In paragraph 42 of the
judgment,
the
Apex
Court
while
considering the scope of judicial review
under Article 226 with regard to courtmartial proceedings held as under :-

"42............This Court under Article
32 and the High Courts under Article 226
have, however, the power of judicial
review in respect of proceedings of courts
martial and the proceedings subsequent
thereto and can grant appropriate relief if
the said proceedings have resulted in
denial
of
the
fundamental
rights
guaranteed
under
Part
III
of
the
Constitution or if the said proceedings
suffer from a jurisdictional error or any
error of law apparent on the face of the
record."

21. Thus we are satisfied that
exercise of jurisdiction by learned Single
Judge
under
Article
226
of
the
Constitution was within the well defined
parameters of judicial review.

22. The last submission of the
counsel for the appellants was that this
Court may clarify that the appellants are
entitled to proceed against the respondent
in accordance with law as per liberty
granted by learned Single Judge in the
impugned judgment. The learned Single
Judge while allowing the writ petition has
himself left it open to the appellants to
proceed in accordance with law. The
counsel for the respondent contended that
now the appellants could not proceed
since it will be second trial which is
prohibited by Section 121 of the Army
Act. Counsel for the respondents further
contended that Section 127 of the Army
Act which provided for successive trial
has been omitted by Army Act, 1992,
hence the appellants are not entitled to
proceed again.

23. We have examined Section 121
and Section 127. Section 121 provided
that where any person subject to this Act
has been acquitted or convicted of an
offence by a court-martial or by a
criminal court, or has been dealt with
under any of the Sections 80, 83, 84 and
85, he shall not be liable to be tried again
for the same offence. In the present case
when the learned Single Judge has setaside the summary court-martial dated
30th July, 1997, it cannot be said that
conviction of the respondent is still
standing. Section 121 contemplates those
acquittal and conviction which have
attained finality. In the present case when
court quashes the conviction, Section 121
cannot be said to be attracted. Section 121
will not come into play when the
conviction or acquittal has been quashed
by the Court and the Court itself permits
the authorities to again proceed in
accordance with law. In view of the order
passed by learned Single Judge in the writ
petition, Section 121 is not attracted.
Section 127 provided for successive trial
by a criminal court and court-martial.
Section 121 covers different contingency.
The counsel for the respondent has
submitted that the said section 127 has
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618
now been omitted by Army Act, 1992,
hence successive trial cannot be made.
The submission is without substance.
Section 127 covered a contingency
regarding successive trial by court-martial
or criminal courts. In the present case the
question of trial by criminal court has not
arisen nor Section 127 is attracted.
Further omission of Section 127 has also
no effect. Thus, in our opinion, neither
Section 121 nor Section 127 creates any
fetter in the rights of the appellants to
proceed again against the respondent.

24. One more relevant fact is to be
noted in the present case. Learned Single
Judge in the writ petition granted interim
order for one month on 24th June, 1997.
The charge-sheet was given to the
respondent only on 6th June,1997. The
court granted two weeks time to the
appellants to file counter affidavit. A
counter affidavit was filed by the
appellants only on 24th July, 1997 along
with the application for vacation of the
interim order. The respondent, in the
meantime,
had
already
filed
an
application for extension of interim order
on 17th July, 1997. All these facts were
brought in the notice of commanding
officer who was holding the court. The
appellants having themselves not filed
counter affidavit within the time allowed
by the Court, it was not appropriate to
proceed hastily in concluding the courtmartial proceedings. The respondent has
further informed the Commanding Officer
that matter is to be taken on 1st August,
1997 and adjournment was sought only up
to 2nd August, 2002. The fact that
Commanding Officer was retiring on 31st
July, 1997 was not relevant nor was a
valid
reason
for
completing
the
proceedings by 31st July,1997. We are in
full agreement with the finding of learned
Single Judge that proceedings were
concluded with haste which shows that
fair opportunity was not given to the
respondent.

25. In view of the foregoing
discussions, we do not find any good
ground to interfere with judgment of
learned Single Judge.

This special appeal is dismissed
subject to observations as made above.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.8.2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No. 547 of 1997

Anil Kumar Sharma

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri B.B. Paul

Counsel for the Respondents:
Sri M. Sarwar Khan
S.C.

(A) U.P. Act No. 5 of 1982- Para 2
explaination III, readwith Section 18-
short terms vacancy- what is?- arises out
consequent
to
suspension,
adhoc
promotion or grant of leave-vacancy
caused due to retirement of permanent
lecturer- can not be termed as short
terms vacancy.

Held- Para 7

The submission of counsel for the
appellant that the vacancy in question is
short term vacancy and the management