# [1983] 1 S.C.R. 393

- **Citation:** [1983] 1 S.C.R. 393
- **Court:** Supreme Court of India
- **Decided:** 1982-08-25
- **Case number:** Writ 'Petition-~Nos. 4903 of 1981
- **Bench:** Y.V. Chandrachud, D.A. Desai, A.N. Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1983-1-s-c-r-393-8574
- **Pages:** 52

## Headnote

Army Act. 1950-Section 21-Scope f!f-Law prescribing procedure for
trial of offences by court mart ial-lf should satisfy requiremen~s of Article 21 of
Constitution--:Absence of provision for appeal-A ~acuna in the Act.
Army Rules,· 1954~Rul~s i2 to 25, 37, 40, 44, 180 and 187-Scope ofComposilion of Court martial-Requirements of-"Corps" if nieans "Army
Corps:'-Rules 22 to 24, if violative of Article 21 of the Constitution--Trial 'by
Court martial-Prior enquiry by Court of enquiry if obligatory: ' '
'
.
Principles. of natural justic~Rules prescribe compliance with principles of
natural justice but make it dependent. upon requisition· by the person against whom
enquiry is held-;-Procedure, if violates-article 21 of Constitution.
Interpretation of statutes--/ntenlion of legislature how ascet:tained.
The petitioner in each of 'the three writ petitiolls \\ihO was to be tried by
general court ·~artial for.breach of army discipline questioned the legality atid
validity of the order convening the general court ~artial, more particularly its
composition.
In their petitions .under Art. 32 of the Constitutioff it was 'contended on
behalf of the petitioners that to satisfy the requirements of Article 33 the Jaw.
must be a specific law enacted by Parliameni in which a specific provision impo_sing restrictioti or eveh abrogation .. fof fundamental rights ~h<;!uld be made;
(2) that rule 40 of the Rules should· be so construed as to subserve the mandate of
Article 21 that the Army with its total commitment to national security against
for~ign invasion. must be assured the prized liberty of individual members against
unjust encroachment and the court should strike a just balance between military
discipline a~d. individual personal liberty; aiid (3) that principles of natural justice
should be obsefved even in resp.eel of persons tried by the Army Tribunals.
·
:Dismissing the petitionw,
..-
HBl..D: The dominant purpose in construing a statute is to ascertain
the intention Qf Parliament. One of the v.·cll recognised canoi:J.s of construction
is that the legislature speaks its mind by use of correct expression and unless~
. there is any ambiguit>: in tht? language of the provision, the Courflshould adopt
literal construction if if' does not le~d to an absurdity. To ascertain the literal
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[1983] I s.c.11..
meaning it is equally necessary first to ascertain the juxtaposition in which the
rule is placed. the Purpose for which it is enacted and the object which it is
required to subserve and the authority by which the rule is framed.
(404 F-H; 405 A-BJ
Article 33 of the Constitution which confers power on Parliament to determine to wha;t extent any of the rights conferr~d by Part III shall in their ,pplica~
tion to the members of armed forces be restricted or abrogated does not obligate.
that Parliament must spec~fically adumbrate each fundamental right and specify
in the law the degree of restriction or total abrogation of each right. That would
be reading into Art. 33 a requirement which it does not enjoin. The power to
legislate i_n respect of any iteffi must be referable to any entry in the relevant
legislative list. ThC law has 'to be enacted by Parliament subject to the requirement of Part III read with Art. 33 which itself forms part of Part III. Therefore
if any provision of the ·Army Act is in conflict with fundamental rights it shall
have to be read subject to Art. 33 as being enacted with a view to either restriCting or abrogating the fundamental rights to the extent of inconsistency or repug-
. nancy between Part III and the Army Act. (412 E-H]
Ram Sarup v. Union of India & Another (1964] 5 SCR 931 : referred to.·
Sectic~n 21 of the Army Act merely confers an additional power to modify
dghts conferred by Art. 19(l)(a) and (c) by rules and such rules may set out the
limits of 'restriction. But the specific provision does not derogate from the generality of po_wer conferred by Art. 3

## Text

_Characters 0–39,893 of 134,995. This is a partial read: ask again with offset=39893 for what follows._

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393
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LT. COL. PRtTHI PAL SINGB. BED! ETC.
v . .
UNION OF INDIA & OTHERS
August 25, 1982
-
[Y.V. CHANDRACHUD, CJ, D.A. DESAI AND A.N. SEN, JJ.]
Army Act. 1950-Section 21-Scope f!f-Law prescribing procedure for
trial of offences by court mart ial-lf should satisfy requiremen~s of Article 21 of
Constitution--:Absence of provision for appeal-A ~acuna in the Act.
Army Rules,· 1954~Rul~s i2 to 25, 37, 40, 44, 180 and 187-Scope ofComposilion of Court martial-Requirements of-"Corps" if nieans "Army
Corps:'-Rules 22 to 24, if violative of Article 21 of the Constitution--Trial 'by
Court martial-Prior enquiry by Court of enquiry if obligatory: ' '
'
.
Principles. of natural justic~Rules prescribe compliance with principles of
natural justice but make it dependent. upon requisition· by the person against whom
enquiry is held-;-Procedure, if violates-article 21 of Constitution.
Interpretation of statutes--/ntenlion of legislature how ascet:tained.
The petitioner in each of 'the three writ petitiolls \\ihO was to be tried by
general court ·~artial for.breach of army discipline questioned the legality atid
validity of the order convening the general court ~artial, more particularly its
composition.
In their petitions .under Art. 32 of the Constitutioff it was 'contended on
behalf of the petitioners that to satisfy the requirements of Article 33 the Jaw.
must be a specific law enacted by Parliameni in which a specific provision impo_sing restrictioti or eveh abrogation .. fof fundamental rights ~h<;!uld be made;
(2) that rule 40 of the Rules should· be so construed as to subserve the mandate of
Article 21 that the Army with its total commitment to national security against
for~ign invasion. must be assured the prized liberty of individual members against
unjust encroachment and the court should strike a just balance between military
discipline a~d. individual personal liberty; aiid (3) that principles of natural justice
should be obsefved even in resp.eel of persons tried by the Army Tribunals.
·
:Dismissing the petitionw,
..-
HBl..D: The dominant purpose in construing a statute is to ascertain
the intention Qf Parliament. One of the v.·cll recognised canoi:J.s of construction
is that the legislature speaks its mind by use of correct expression and unless~
. there is any ambiguit>: in tht? language of the provision, the Courflshould adopt
literal construction if if' does not le~d to an absurdity. To ascertain the literal
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[1983] I s.c.11..
meaning it is equally necessary first to ascertain the juxtaposition in which the
rule is placed. the Purpose for which it is enacted and the object which it is
required to subserve and the authority by which the rule is framed.
(404 F-H; 405 A-BJ
Article 33 of the Constitution which confers power on Parliament to determine to wha;t extent any of the rights conferr~d by Part III shall in their ,pplica~
tion to the members of armed forces be restricted or abrogated does not obligate.
that Parliament must spec~fically adumbrate each fundamental right and specify
in the law the degree of restriction or total abrogation of each right. That would
be reading into Art. 33 a requirement which it does not enjoin. The power to
legislate i_n respect of any iteffi must be referable to any entry in the relevant
legislative list. ThC law has 'to be enacted by Parliament subject to the requirement of Part III read with Art. 33 which itself forms part of Part III. Therefore
if any provision of the ·Army Act is in conflict with fundamental rights it shall
have to be read subject to Art. 33 as being enacted with a view to either restriCting or abrogating the fundamental rights to the extent of inconsistency or repug-
. nancy between Part III and the Army Act. (412 E-H]
Ram Sarup v. Union of India & Another (1964] 5 SCR 931 : referred to.·
Sectic~n 21 of the Army Act merely confers an additional power to modify
dghts conferred by Art. 19(l)(a) and (c) by rules and such rules may set out the
limits of 'restriction. But the specific provision does not derogate from the generality of po_wer conferred by Art. 33. Therefore, it is not possible to accept the
co-ntention that the law prescribing procedure for trial of offences by Court
Martial DJust satisfy the requirement of Art. 21 . because to the extent the procedure is prescribed by law. and if it stands in derogation of Art. 21 to that extent.
Art. 21 !n its application to the Armed Forces is modified by enactment of the
procedure in the Army Act itself. (413 E-G]
.
.
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Da/bir Singh v. State of Punjab, [1962] Suppl. 3 SCR 25 : held inapplicable ..
Rule 40 which deals with composition of the court martial enjoins botb
a positive and negative requirement,: positively that it shall be composed of
officers of different corps or departments and negatively that it shall not be composed exclusively of officers of the corps or the department to which the delinquent belongs. Both these requirements are sub-ject to the overriding consideration that one or the other requireri:ient' could be given a go.bye if it is othewise
found.not to be practicable. [418 A-C]
The expression '•Army corps" does not carry the same meaning as 'corps'.
The two expressions carry different connotations. Both connote a distinct and
different unit in the army. Corps forms a small part of what is called "army
corps". [420 DJ
Tbe Indian army is divided into commands and each command is divided
into army corps. Corps in this sense means an army formation. Each army corps
is composed of divisions, each division is divided into brigades, each brigade into
battalions and each battalion into companies. There may be an unattached
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395
company not forming part of a ·battalion and may be independent of any
battalion. Rule 187 (3) (b) treats such unattached company not fOrming part of
a battalion as a crops b)> itself. In other words~ eve.ry company is part of snme.
battalion because each battalion is
sub~divided into companies arid that is
possibly the army unit which is being designated as crops. Bearing in mind the
designation of battalion in infantry and regiment in cavalry, the unit designated •
as battalion or regiment will be a crops 'for the purpose of the Act and the Rules. ·
This conclusion is reinforced by reference to rule 187 (1) in which there are
separat~ bodies of persons ea(;h by its very designation1 duties and responsibilities,
and functional requiremeqts would not be .part of regUlar army battalion and,
therefore,. each has tO be designated as a corps for the purpose of the Act atid
the rules. (419 HJ
If various army crops frorn part of the command and if for setting up a
general court martial in strict compliance with r.40 is to be insisted upon, persons
from different army corps have to be selected. But the inhibition of rule 40 will
present arl insurmountable difficulty in that any such general court martial sball
'not be composed exclusively of officers of the. same corps. What is positively
desired is that for the composition of a. general court-martial one must strive to
secure services of officers of different corps or departments and what muSt be
eschewed is its being composed exclusively of officers of the corps or departments
to which the delinquent officer belongs. If a restricted meaning. is given to the
expression 'corps' th~ rule become~ workable. If 'on the other hand a ~ider mean"'
ing is given so as to substitute' ''army corps" for "corps" it would be wholly
un"'orkable because officers-will have to be Sll;mmoned from another command
altogether. A vertical movement starting from the bottom which is indicated by
reference to battalion and regiment in r.187 (3) clearly indicates that the lowest .
formation in the battalion or regiment is corps over and aboVe those specifically
designated as corps under t, 187(1). Therefore, the.expression 'corps' in rule 40
must be given the same meaning. as set out in rule 187(3) and it would mean that
every.battalion in the infantry.and every regiment in the cavalry would by itself be
a corps. [421 D-H; 422 A-DJ
\,
To put the personnel of the general court-martial beyond reproach and to
ma~e it unbiased and objective ·composition of the court-martial was so devised
by statutory rules as to make it a~ ideal body having all the trappings of a court.
People drawn from different ·corps, and ~voidi.ng officers of the s8JJ1e corps coniposing the geaeJ;"al court martial, would ensure an objective unbiased body. This
· is achieved by giving the expre$sion :•corps" a .restricted meaning so as not to
make it synonymous with Army Corps at the top, If a battalion or a regiment is
t!eated as a 'corps' then it is easy ~o. provide composition of court martial in
~trict compliance with rule 40. Viewed from . either angle the expression 'corps'
in rule 40 is not used in the same sense in which the expression 'army corps' is
used. It is used in the sense in which it is defined and elaborated in rule 187.
[422 E-H; 423 A-DJ
It is, or course, true tb'at the interpretation of rule 40 must be informed
by the. underlying intendment that officers com'Posiog the court ~artial must be
independent of command, influence or influence of superior e>fficers like· the
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conv~ning offi'cer·.' This' depends on what meaning one must assign to a loose
expression 1ike 'command influence' and 'influence of superior officers'. These
expr.ession haVe. to be understvod ·in the context of the vertical hierar~hy ·in the
composi,tion of army. Once it transpires· that the expression 'corps' in rule 40
hos the same meaning as has been set oUt in rule 187 and, therefore the battalion
would be a corps and an unattached companY can l:Je a corps by itself, it becomes
' easy and pr'acticable to set up a court~n1artial in which officers 'outside the corps
to which an accu~ed belongs are enlisted and it could certainly be said to be .free
from command influence. [423 E·H]
·
Rule 40 by its Very language is not mandatory. This rule on 1its Own force
insists on compliance with its requirements as far as may be practicable. Even
with this leeway,. a strict CompliRnC<'. with the requir.:.ncnts of rule 40 must be
insisted upon and the departure on the ground of practicability will, if challenged,
!Jav,e to be proved within the. bro~d. parameters of functional adjustibility of the
army requirement. Therefore, the expression 'corps in rule 40 is not synonymous
with the expression 'army corps'. It must receive a restricted construction with
·narrow connotation as explained in rule 187 (3). [424 C-F]
Two Other-requirement which should .be complied with while setting up a
general court martial are (i} that a general court-martial shall consist of not less
than five officers, each. of whom has held .a· commission for not less than three
whole years and of whom not less than four are of the rank not below that of a
Captain and (ii) that members of Court martial for trial of an officer sl:lall be of
a rank not lower than ihat of the delinq\lent officer unless iu: the opinion of the
convening officer., officers of such rank are not avail able. Sub-rule (3) of rule 40
merely incorporates the mandate Of section 113. [424 F-HJ
.
In the instant case the general court-martial set up to f.ry the 'petitioner in
Writ Petition No. 4903/81 consisted of.five officers one of whom was of a higher
-~ank and the others were of coOrdinate or of equal rank. Even though· all of
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them belonged to the 9th Infantry Division they were ·drawn from different
brigade:s and regiments and none of them belonged to the same corps to which the
petitioner belonged and none was lower in rank than the rank held bY the petitioner~ Therefore the reQuirement of rule 40 was strictIY complied with.
[425 B-E]
In the case of the petitioner in Writ Petition No. ·1513/79 the general courimartial was composed of seven officers, each of whom held a rank higher than the
petitioner was n~ne _of them belonged tO the corps to which he belonged. There
. was therefore no violation of rule 40. [425 F-H]
·The petitioner in Writ Petition No. 5930/80 belonged to the 33 Army
Corps. None of the qfficers composing the general court~martial belonged to his
corps nor was any of .tl:}em' lower in ~ank than a C_apta in. Therefore. there
was nothing to show that rule 40 had been violated. [ 42~ A·C]
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When either a general, distrlcl Or summary court-martial is assembled
and the a~cused is brought l:iefore it, section· 130 enjoins that the nan1es of the
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PRITHIPAL v .. UNION (Desai, J.)
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presiding officer and the members composing the court ~artial be read out and
the accused be asked whether he objects to his being tried by any of the officers
-sitting on the court. If the accused objects to any such officer being present his
objection and reply of the officer objected to shiill be heard and recorded and the
remaining officers of the court shall in the abseoe;e_ Of the- chaUenged officer decide
the objection. This provision is elaborated iti rules 41 to 44. In order to ensure
that any orie objected to does not participate i1;J° diSposing of the objection, clause
(8), of the proviso .to rule 44 directs tba~ the accused should state the names of all
officers· constituting the court in respect of whom he has· any objection. This is
a mapdatory requirement because the officer objected to cannot participate in the
decision disposing of the objection. It is true that if a court is not constituted,, .
'in accordance with the Act and the Rules, rule 44 would hardly assist becaUse as
in such a case if the contention is that rule 40 was violated there is none left to
dispose of the contention; because once such an objeciion is taken no one shall be 1
competent to decide the objection. The provision conferring the right on the
accused to object to a 'meJDber of the court-martial sitting as a member ·and participating in the trial ensure that a charge of bias could be made and investigated
against individual members col!lposing the court-martial. · This is a pr~-eminently
rational provision for ensuring a fair trial. In the present case however there was
no allegation of bias against any individual member of the court-nlartial;
.
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[ 426 D-H; 427 A-FJ
Rules 22 to 24 are n1andatory in respect -Of every person subject to the~
Act other .than officers. TJ:tat the requirem\,nts of these rules are not mandatory
in the case bf an officer, becomes. manifestly clear from rule 25(1) which provides
that where an officer is ·Charged with an offence· under the ACt the investigatio_n
shall if he requires it be held and the evidence if he so r~quires it, be taken in his
presence in writing in the same manner as nearly as circU:mstances .admit,as iS
required by rules 22 and 23 in the case of !)ther persoi;is subject to the Act.
[432 B-C]
The petit.ioner in this ca~ ·being an offi~er, the prOcCdure prescribed in
rules 22 and 23 would not, apply proprio vigore to him. If he wanted compliance with rules it was for him to have made a reqllest that the inVestigation be
done in bis preseDce and that the summary of evidence be' drawn in his Pr~sence.
Nowhere ·in the petition did the petitioner specifically state that he did make such
a recjue~t. In the absence of such a request failure to comply with rules 22 to 24
woul.d not vitiate the trial by the generiil court ma:rtial. [432 D~E; 433 A-CJ
. Rtx v. Thomson [1946] \4 ,Domiiiion Law Reports 579, held ioappJicable.
·
There is nO force in the argUment that to the Cxtent th;t the applicaiion '<
of principles of nittural justice enacted in rules 22 to 24 is ma.de dependent on the
demand by the officer concerned, compliance with ruICs of natural justice must
be deemed to be an integral part of the procedure prescribed for a. tribunal
whose decision is likely to result in deprivation of personal libert;. Parliament·
ha~ the power to restrict. or abrogate any of the rights conferred by Part Ill in
their app1ication to members of the Armed Force so as to ensure proper discharge
of ditties and maintenance of discipline amongst them, The Army·!Act is one
.
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such law. Therefore none of the rprovisions of the Act can be struck down on
the only ground that they restrict or abrogate or tend to restrict or abrogate any
of the rights conferred- by Part III which include Art. 21.
If the procedure
estabJished by law prescribes compliance with principles of natural justice but
m~kes it dependent upon a requisition by the person against whom an inquiry
has to be held such procedure would not be violative of Art: 21. [434 B·!'l
In the instant case the rules have made a clear distinction between an
officer governed by the Act and any other person subject to the Act. T_he accused
was a person belonging to the upper bracket in the Armed Forces. Although in
respect Of persons belonging_ to the lower category rules 22 to 24 are mandatory,
in respect of persons belonging to the upper bracket the necessary iJresumpOon is
that he is a highly educated knowledgable intelligent person and compliance with
thes:e rules is not obligatory. But the rules have to be complied with if the officer
so requires it. This is quite rational and understandable. An officer cannot be
heard to say that he would not insist upoi:i an inquiry in which he would participate and then turD. round and contend that failure to hold the inquiry in accordance with the principles of·natural justice would invalidate the inquiry.
[434 G·H; 435 A·C]
Mohinder Singh Gill and Anr. v. The Chief Election Commlssioner, New
Delhi & Ors., [1978] 2 S.C.R. 2i2 and Maneka Gandhi v. Union of India, [1978] 2
" S.C.R. 621 referred to. ·
·
Rules 22, 23 and 24 prescribe participation at a stage prior to the trial by
the court martial. In a trial which is likely to result in deprivation of liberty
the body which bas ultimately the power to make an order which would result in
deprivation of liberty must hear the offender offering full participation. However, the procedure prescribed by these rules is at a stage anteriOr to the trial by
the court-martial. · It is the decision. of the court martial which would result in
deprivation of liberty and not the order directing that the charge be heard or that
summary of evidence be recorded or that a court martial be convened. There
is therefore no substance in the contention that rules 22, 23 and 24 in view of the
provision contained in rult 25, are ultra vir~'S Art. 21 of the Constiution. As
failure to comply with the requirements of rules 22, 23 and 24 depended upon a
requisition by the petitioner, his illaction or onlission in that behalf would have
no impact on the order convening the coun martial.
(4350-H; ,436A~C]
Major E.G. Barsay v. The State of Bombay, [1962] 2 S.C.R. 195 referred
Rule 180 cannOt be construed to mean that whenever or wherever in any
enquiry in respect ot any person subject to the ~t his character or military
reputation is Jikely to be affected, setting up of the court of enquity is sine qua
non. By its very nature the eourt of enquiry is likely to examine certain issues
coocCrning a situation or persons and in the course of such enquiry there may be
a distinct possibility of character or military reputation or a person subject to the
Act being affected. To ensure that such person should be afforded full opportunity to participate, rule 180 merely alakes an enabling provision to ensure his
participation. It cannot be used to say that ·whenever in any other enquiry or an
enquiry before the commanding officer under lrule 22 or a convening officer undCr
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rule 37 of the td.al b~ the court-ma;tial in which the character- or ~ilitary reputa_A
· tion of the officer c"lncemed is' likely to be affected, a prior enquiry by the court
of enquiry is a sine qu!l non: [439 G-H; 440 A-D] /
. Absence of even one ·appeal with power to review evidence, legal formu ..
tatlon, Conclusion and adequacy or otherwise or pui:i.ishment is a glaring iacuna
in a country where a counterpart civilian convict can prefer appeal after appeal
to hierarchy of courts .. The time has come when a step is required to be taken
. n
for at least one review and it must truly be a judicial review as and by way of ,,
appeal to a body composCd-of non-military personnel or civil personnel. ·
· [441 F-G; 442 BJ
. ORIGINAL JURISDICTION
Writ 'Petition-~Nos. 4903 of 1981, .
· 1513of1979 and 5930of1980.
C ·
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(Under Article 32 of the Constitution of India)
G.L. Sanghi, Ashok Grover and Girdhar Govind for the Petitio-.
. ·ner in W.P. :No. 4903of1981.
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M.K. Banerji, Additional Solicifor General, Girish . Chandra
a~d Miss A.' Subhashini for. the Resp()ndents in W,P; No. 4903/81.
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V.M. Tarkunde, If.C. Agarwala, V.K. Pandita and P.N. Ra_mafingam for the Petitioners in \V.P. Nos. 1513/?9 & 5930/80.
M.K. Banerji, Additional Solicitor General, Girish Chandra
and Miss A. Subhashini for the Respondents in W.P. Nos. 1513/79 &
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5930/80.
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The Judgment of the Court was_ delivered by
DESAI. J. Validity and legality of an order made _again&! each
petitioner convening General Court Martial to try each petitioner in·
•respect of the charges framed against each of them is questioned. on
· diverse grounds ·but principally the composition in each of these
petitions under Article 32 of the Constitution. In Writ Petition
· No. 4903/81 the petitioner has also challenged the
constit~tional
validity of rules 22, 23, 25 and 40 of tl:ie Army Rules, ·1954 {'Rules'
for short) as being violative of.the fundamental rights of the peti·
tioner .guaranteed under Articles/14 and 21 of the Constitution. - AS
certain contentions were com~on .to all the three petitions they were
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heard together and are being disposed of by this common judgment.
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Facts alleged on which legal formulations ·were founded may be
briefly set out in respect of each petitioner.
·
Re : Writ Petitfon No. 4903/81 :
Petitioner Lt Col. Prithipal Singh Bedi was granted permanent ·
regular commission in the Regiment of Artillery in 1958 and in
course of his service he came to be• promoted as Captain, then as
Major and at the relevant time he was holding the rank of Lt. Colonel and in that capacity he was designated as Commanding Officer,
226, Medium Regiment of 43 Artillery Brigade. As part of his duty
he had to write interim confidential reports of five officers of the
rank of Major subordinate to him. One Major R. S. Sehgal was
ope of the su~ordinate officers whose interim confidential report was
written by the petitioner. Under the relevant rules the officer whose
confidential report is written by his superior has to be· shown the
confidential report and in token of his having seen the same his
. signature is to be obtained, .the purpose underlying this procodure
being that the attention of the subordinate officer is drawn to the
counseJling remark in the confidential report which may encourage
him to remedy the defect pointed out and · to improve in his
efficiency.
The confidential reports prepared by' the petitioner
were to be reviewed by the Brigadier. It is alleged that Brig ..
N. Sondhi, A VSM who held the office of ·the . Brigadier and
under whom the petitioner was working as Lt. Colonel at· the
time of writing reports had already been transferred on January
8,. 1980 and therefore, the confidential reports submitted by the
petitioner were required to be reviewed by
the officer who
occupied the office of Brigadier consequent upon the transfer of Brig.
N. Sondhi. It is admitted that petitioner had also received his
order of transfer
dat~d' February 6, 1980 but he left the charge
on February 26, ·1980, after co;npleting the formality of handing
over charge and also writing the interim confidential reports . which
he was bound to complete before proceeding on transfer. It is
. alleged tliat Major R.S. Sehgal in respect of whom petitioner wrote
the confidential report on February 20, 1980, which contained a
counsellipg remark advers.e to the officer was a near relation of Brig.
N. Soridhi. It is further alleged that even though Brig. Sondhi had already been transferred and had left charge, yet on February 25,1980,
the confidential reports were forwarded by the Headqu,,rters 43
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PRITHIPAL v. UNION (Desai, J.)
401
Artillery Brigade to Brig.· Sondhi for reviewing the same. While so
reviewing the confidential reports, Brig. Sondhi . addressed a query
with respect. to the last sen.tence in para 27 in the confidential report
of Major Sehgal; "that the last ·sentence appears to have been written
possibly at a different time. It is suggested that a confirmation may
be asked for from the ~fficer as to whether he was aware of the
complete para prior to signing. The ICR may thereafter be returned
for onward despatch". Suspicion underlying. this query is that
adverse entry reflected in the last sentence of para 27 was interpolated after the confiential report was signed by Major Sehgal. The
auspicion arose OD• the Visual impression that : (a) there is Change in
ink of last line; (b) last line appears to have been written .over the
signature of the officer reported upon ; ( c) size of lettering of the
.last line is smaller than the rest of the para.
It may be mentioned
that ultilllately this alleged interpolation in the interim
confide~tial
. report after the same having been initialled by the officer reported
upon is the gravamen of the charge under s.ection 45 of the Army
Act on which the petitioner is called upon· to face a trial · by the
General Court Mart,ial convened under the impUg'ned order dated
April II, 1981.
Re: ·Writ Petition No.1513/79: .
. The first petitioner Captain Dha,rampal Knkrety and Petit.lfper
2 Naik Bhanwar Singh were both attached ,at the relevant time to 2
Rajput Regiment but since the order to try t!iem before a General
Court Martial both of them are attached to 237 Engineer Regiment
of 25 Infantry Division which is a part of the 16th Corps of the
Indian Army. Petitioner I was promoted as Acting Major but because of the direction to try him before a Court Martial he has been
reverted to the substantive rank of Captain. Petitioner 2 holds the
substantive rank of Naik. In 'the. year .1978 one Lt. Col. S. N.
Verma was the Commanding Office~ of the 2 Rajput Regiment and
'the !st petitioner was directly under him being secon'd in command.
One Major V.K. Singh belonging to the 2 R~jput Regimenf was a
Company Commander under Lt. Col.
Verma. He applied for
casual leave for seven days and Lt. Col. Verma granted. the same.
In the meantime on October .14, 1978, Lt: Col. Verma proceeded on
leave. First petitioMr being the second· in command was. officiating
Commandi.ng Officer when Lt. Col. Verma proceeded on leave. On
October 16, 1978, the !st ·petitioner informed Ml'jor ·V.K. Siniih
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that he could proceed on leave with effect from October, 17, 1978;
for a period of seven days. Major V.K. Singh, however, overstayed
his leave and returned after lO days. Petitioner contends that he
being a strict disciplinarian, he did not approve of the default of
Major Singh and, therefore, he reported the matter to Lt. Col.
• Verma on his return from leave who in turn asked the !st petitioner
tci make investigation and submit report. On tlje I st petitioner
making the report, Lt. Col. S.N. Verma ordered abstract of e'idence
to be recorded by framing some charge against Major V.K. Singh.
The iillegation is that the father-in-law of Major V.K. Singh is
Deputy Speaker of Haryana State Legislative Assembly and a man
of powerful political influence who appears to have contacted third
respondent Lt. General Gurbachan Singh to assist his son-in-law
Major V.K. Singh. It is alleged that when Major V.K. Singh was
produced before 7th respondent Brigadier P.N. Kacker, the latter
appeared reluctant to proceed against Major V.K. Singh. First
petitioner sought an interview with 7th respondent and insisted that
disciplinary action should be initiated against Major V.K. Singh.·
First petitioner sought an i~terview with 5th respondent on December 161 1978. Major V.K. Singh was awarded 'displeasure' which
appears to have infuriated the first petitioner because according to
him punishment was disproportionately low compared to default;
It is alleged that 5th respondent suggested th>1t !st petitioner be put
o~i\FMS-10 for psychiatric investigation. !st petitioner sought
a't'Mtchment to other unit, certain very untoward incidents followed
whicl,l are detailed in the report of Court of Inquiry set up for
ascertaining the fact.s which are not necessary to be detailed here.
!st petitioner !1as set out in his petition chronology of events leading
to his being charge-sheeted. Ultimately, an order was made to try
him by a General Court Martial and. a General Court Martial was
convened as per the. order dated October 7, 1979. The legality and
validity of the order constituting the General Court Martial is
impugned in this ?ehtion.
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Re : Writ Petition No. 5930/80
H
.Petitioner Captain Chander Kumar Chopra joined the Army
as 2nd Lieutanant on January 12, 1969, and in course of time came
to be promoted as Captain and at the relevant time he belonged ·to,
877 At BN. ASC under 20 Mountain Division which is one of the
Divisions in 33 Corps. Petitioner was second-in-command. On
February 12, 1979, the petitioner sought a persoi:rnl interview with
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PRITHIPAL v. UNION (Desai, J.)
403
CO Lt. Col. R.M. Bajaj to report against Major S.K. Malhotra for
the irregularities· committed in the Company disclosing misappropriation of funds, pilferage of petrol and stores, furnishing of false
-i.
information and certificates in official documents resulting in loss to
the State, misuse of transport and misuse of power and property.
As Lt. Col. Bajaj did not possibly take any action on this report,
the petitioner oil March 7, 1979, submitted an application to the
Chief of Staff, Headquarters, 33 Corps c/o 99 APO to brillg to the
notice of Chief of Staff the irregularities going on in 'A' Coy. 877
, ,
AT BN ASC and seeking an interview at an early date. The
petitioner's request for a personal interview was turned down where-
'
upon the petitioner made an application for casu.al leave for 13 days
w.e.f. February 26, 1979, which appears not to have been granted.
''1111111. On March 16, 1979, the petitioner was summoned by Lt. Col. Bajaj,
,.. at his residence and he was assured that justice would be done but
. the petitioner should cancel the letter dated Mar~h 7, 19.79, and
surrender .the demi official letter addressed to Coy.
33 Corps in the
)
interest and name of the Unit. Thereafter the petitioner Wl\S taken
to office by Lt. Col. Bajaj and it is alleged that under pressure,
letter dated March 16, 1979, written in, the petitioner's own hand as
dict.ated by Lt. Col. Bajaj was taken and at the same time a number
of certificates were also taken from the -petitioner. A Court of
Inquiry was set up to inquire into the allegations made against
Major Malhotra by the petitioner. The Court of inquiry commenced ·
"'
investigation on August 27, 1979. The petitioner submitted a request
> to summon 15 witnesses to substantiate his allegation against Major
Malhotra. Probably this request. did not find favour and the
petitioner entertained a suspicion th.at the members constituting the
Court of Inquiry were highly prejudiced against him. The Court of
Inquiry submitted its report. It is not necessary to recapitulate the
findings of the Court of Inquiry save and except that not only the
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Court of Inquiry negatived all the allegations of petitioner against
'1:-Major Malhotra but on the contrary found that the petitioner had
taken · some · store items unauth~risedly on January 30, 1979, which
were returned'on January 31, 1979 Pursuant to the findings .or the
Court Of Inquiry a charge-sheet was drawn up again.st the petitioner
for having· committed offences under sections 52 (b), 56~ (a) and 63
•
- of the Act. Dire.ction was given for recording summary of evidence.
Subsequently the impugned order convening the General Court
Martial was, issued., The peiitioner··thereupon filed :the present
...
,; petition.
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In each petition legality and validity of the order convening
the General Court Martial more particularly the composition of the
Court Martial in respect of each petitioner is questioned. The
challenge up to a point proceeds on grounds common to all the
three petitio~s and they IJViY be dealt with first.
f
The contention is · that the Constitution of General Court
Martial in each case is illegal and contrary to rule 40 and, therefore
" the order constituting the General Court. Martial in each case must
be. quashed.
The 'web of argumen·t is woven round the true construction
and intendme.nt underlying rule 40.. It was said 'that the grammatical construction must accord with .the un(lerlying intendment of rule
40 and that the approach must be· informed by the expanding
,jurisprudence and widening horizon of the subject of personal libertyin Art. 21 because in the absence of Art. 33 the procedure prescribed for tri.al by the General Court Martial under the Act would have
been violative of Art. 21. A pp roach, it was >nged, must be to ptit
such liberal construction on rule 40 as to sub-serve the mandate of
'
Art. 21.
Army, with its total commitment to national independence
against foreign .invasion must equally. be assured the prized liberty
of individual member against. unjust encroachment. It was said
that the court should strike a just balance between military discipline
and indivic!μal personal libetry.
And door must not be bolted
against principles of Natural justice even iri respect of Army tribunal.
An unnatural distinction or differentiation between a civilian offender
and an offender subject to the Act would be destructi_ve of the
cherished principle of equality, the dazzling light of the Constitution
which illumines all other provisions.
The dominant purpose in construing a statute is to ascertain
the intention of the Parliament. One of the well recognised canons
of construction. is that the legislature speaks its mind by use of
correct expression and unless there i~ any ambiguity in the Japguage
of the provision the Court should adopt literal construction if it
does not lead to an absurdity. ·The first question to be posed is
whether there is any ambiguity in the language used in R11le 40. If
there is none, it would mean the language used, speaks the mind 'or
Parliament and ;there is no need to look SOJ!lewhere elese discover
\he intention or !lleatiing. · If the 'literal co11structio11 ·leads to' an
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PRITWPAL v. UNION (Desai, J.)
405
_absurdity, external aids to construction can be. resorted to. To
ascertain the literal ineaning it is equally necessary l)rst to ascertain
, the juxtaposition in which th~ rule is placed, the purpose for which
-1 ~ it is enacted and the object which· it is required to' subserve and the
authority by which the rule is framed.. This necessitates examination ·
of the broad features of the Act.
The Act'as its long tille would show was enacted to consoli-
,.
·date and amend the law relating to the governance of the regular
Army and.ii came into force on July 22, 1950. Section 2 sets out
~ the persons subject to the Act.
S~ctiqn 3 provides the. dictionary.
clause. Sub-section (2) of section 3 definces·, 'civil offence' to mean
..... an offence which is triable by a criminal court; Expression 'corps' is
defined in section 3 (vi) to mean any separate body of per~ons subject
to' the Act which is prescribed as a corps for the purpose of all or any
of the proVisfons · of the Act. 'Department' has been defined in
~
placitium
(ix) to include any divJsion. or branch of a department.
•
Chapter III deals with the commission; appointment and·enrolment
of Army personnel. Chapter IV seis out the statutory conditions of
service and Chapter V deals with service privileges.
Chapter VI.
sets out various offences made punishable by the Act. Section 69
provides. that subject to the provisions of section 70 any person
subject to,the Act who at any place in or beyond India commits any
civil offence shall be · deemed to 'be guilty of an offence _against the
> Act and· if ch.arge.d therewith under the, section, shail be liable to be •
tried by a court-martial and, on conviction, be punishable in the
manner therein prescribed,. This .provision would show' that if any
person subject to the -Act commits any o!fence triable by ordinary
criminal court which for the purpose of the Act 'would be a civil
~ · - offence, is liable to.be tried for the same, though not an offence
~ u. oder the. Act, by the court martial and be punisha.ble in the manner
'"-prescribed in. section 69.
Section· 70 carves out an exception in
respect of certain civil offences· which cannot be tried by a court
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· martial. In view of the provision prescribed i,n section 69, a situation is bound to arise
where
an ordinary . criminal
court
and the court martial both will have jurisdiction to try a person for
having committee a certain: civil offence. .To avoid cnnfiict of juris:
diction, section 125 is en.acted conferring a discretion on rhe officer·
. commanding ·the ai:my, army corps, division: or independent brigade
.;.
in which the accused person is serving or such other officer as may
· . be prescribed to decide_ before which court the proceeding shall be
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instituted and if that officer decides that it should be instituted befor~
a court-martial, to direct that the accused person shall be detained
in' military custody. Section 126 confers power on the criminal court
to require the officer who has decided to nse his discretion in favour
of couri-martial under section 125, to deliver the accused to the
nearest roagistrate to be proceeded against according to law; or he
may direct the officer to po~tpone proceedings pending a reference to
the Central Governinent. . On such a reference being made, the
Central Government will l:tave power to determine whether the per·
son should be tried by an ordinary criminal court or by· a Court·
Martial and the decision'of th6 Central Government in this behalf is
rendered final. A successive tiral by a court-martial and the ordinary
criminal court is distinctly possible in view of the provision contained
in section 127. Chapter VU sets out the various punishments which
can be imposed under the' Act., Chapter VIII deals with penal deductions that can be made from the, pay and allowances of an officer.
Chapter IX provides for arresl: and proceedings before trial. Section
108 in Chapter X provides that there shall be four kinds of court·
martial': (a) general courts-martial; (b) district courts-martial; (c)
summary general courts-martial; and (d) summary courts-martial.
Section 109 to 112 confer power on various authorities to convene
one or dther kind of court·martial. Section 113 provides for com·
position of General Court-Martial and Ii may be extracted :
"113. A general court-'martlal shall consist of not Jess
than five officers, each of whom has held a commission for
not less than three whole years and of whom not less than
four are of a rank not below that of captain."
Section 118 confers power on general or summary general court·
martial to try any person subject to the Act fot any offence punishable therein and to pass any sentence authorised thereunder. Chapter
XI prescribes procedure of court-martial. Sec.