# CAPTAIN HARISH UPPAL v. UNION OF INDIA AND OTHERS

- **Citation:** [1973] 2 S.C.R. 1025
- **Court:** Supreme Court of India
- **Decided:** 1972-11-27
- **Bench:** A. Alagiriswami, C. A. YAlDIALINGAM
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/captain-harish-uppal-v-union-of-india-and-others-5755
- **Pages:** 10

## Headnote

1025
Arniy Act, 1950, Sec1io11s 158 and 160-Upward r£•1•isio11 of sentcnceWltether violative of 1u1tura/ justice principle in the circunutances nf the
casc.
Arniy Act, Sectio1: 160--Whe1Jr,·r oppurt1111i1y to he liearcl nece.'i,\'tll)'
u·hen Co11firn1ing Officer decides· to send /luck tire
1n~TtC'r to the Court
Martial for considering upward rtl!ision of the se111e11ce.
C
Anny Act, Sections 112 and 151-IVht•ther the u·ords 'autliorif)" and
D
B
F
[G
H
'Officer·· denote different authorities.
Anny Act, Section 164-Whether oppor1u11ity to he heard lll!CL'ssary
he/ore confinnation of upu·ard re\·isio1f of S£'11ten<.·e hy the Anny Chief of
the Staff. '
The petitioner was found guilty by the Court Martial (acting under the
Army Act) under section 392 IPC of committing robberies of a bank pro·
perty and the private property of the Manager and peons of the Bank
during the period of the liberation of Bangladesh, in Bangla Dcsh.
The
Court Martial sentenced the petitioner 'to be cashiered'. \Vhl!n the matter
went to the Officer Commanding under \\'horn the petitioner \~·as working
as an Officer, for confirmation of the sentence u/s 153 of the Act, he
returned the same 10 the Court Martial for re~considering whether the
upward revision of sentence was necessary in the light of the observ'ations
made by the Confirming Officer. The Confirming Officer had pointed out
in his report that the robberies were committed during the liherl)tion of
Bangladesh where the Indian Forces had gone as libfrators antl as guar·
dians and custodians of the life and properly of the people -0f Bangladesh.
Considering the nature a.id gravity and maintenance of high standard of
discipline in the Armed Forces, the sentcn..::e awarded was net commcn·
surate. The Confirming Officer further directed that the delinquent officer
should be given opportunity to. address the Court, if he so desired, if the
Court decides to enhance the sentence.
In the fresh proceedings before
the Court Martial, the Officer .did not prc'°nt himself. The Court Martial
revoked the ea:-lier sentence· and scntenc~d him to be cashiered and to
suffer rigorous imprisonment for two ye•rs.
The s•id sentence was duly
confirmed by the Chief of the Army Staff. Jn the petition challenging the
legality of the order under Art.. 32 of the Constitution, the petitioner con·
tended that the impugned order was bz,d for the violation of the principle
of natural justice inasmuch as that the Court Martial white re-considering
the sentence did not act as a free agent, that no opportunity of being heard
was given lo the Officer at the time of remand and 1\t the time of the
final confirmation by the Army Chief of the Staff and th•t the revision
was recommended by an officer subordinate in rank to the officer who con·
vened the Court Martial.
Jn dismissing the I- ~titian,
HELD : (i) Sec. 158 of the Army Act describes the procedure regard·
ing the re-consideration df the sentence by the Court Martial.
In conM
sidering a petition filed under Art. 32 of the Coristitution, the orily relevant
Article is Art. 21, and the procedure established by law has been com-
1026
SUPREME COURT REPORTS
[1973] 2 S.C.R.
pletely followed in this case. The circumstanc~ requiring the reconsideraA
tion pointed out by the Officer Commanding were unexceptionable and
there was no violation of the principle of natural justice. The petitioner
failed to appear before the Court Martial in the fresh hearing. [1031 C-D]
A. K. Kraipak & Ors. Etc. v. Union of India and Ors. (1970] (1) SCR
457 ancJ Purtabpore Co. Ltd. v. Cari<! Commissioner of Bihar & Ors."
{1909J (2) SCR 807, distinguished.
I
B.
(ii) No opportunity to be heard was necessary before the Confirming
Officer formed the opinion to send the case back to the Court Martial for
re-consideration of sentence. fl 032 CJ
(ii) The words 'authority' and 'Officer' in Sec. 112. of the Army Act
have one and the same meaning. The Officer recommending the reconsideration or the sentence was also an Office

## Text

A
B
CAPTAIN HARISH UPPAL
v.
UNION OF INDIA AND OTHERS
November 27, 1972
[A. ALAGIRISWAMI AND C. A.
YAlDIALINGAM, JJ.]
1025
Arniy Act, 1950, Sec1io11s 158 and 160-Upward r£•1•isio11 of sentcnceWltether violative of 1u1tura/ justice principle in the circunutances nf the
casc.
Arniy Act, Sectio1: 160--Whe1Jr,·r oppurt1111i1y to he liearcl nece.'i,\'tll)'
u·hen Co11firn1ing Officer decides· to send /luck tire
1n~TtC'r to the Court
Martial for considering upward rtl!ision of the se111e11ce.
C
Anny Act, Sections 112 and 151-IVht•ther the u·ords 'autliorif)" and
D
B
F
[G
H
'Officer·· denote different authorities.
Anny Act, Section 164-Whether oppor1u11ity to he heard lll!CL'ssary
he/ore confinnation of upu·ard re\·isio1f of S£'11ten<.·e hy the Anny Chief of
the Staff. '
The petitioner was found guilty by the Court Martial (acting under the
Army Act) under section 392 IPC of committing robberies of a bank pro·
perty and the private property of the Manager and peons of the Bank
during the period of the liberation of Bangladesh, in Bangla Dcsh.
The
Court Martial sentenced the petitioner 'to be cashiered'. \Vhl!n the matter
went to the Officer Commanding under \\'horn the petitioner \~·as working
as an Officer, for confirmation of the sentence u/s 153 of the Act, he
returned the same 10 the Court Martial for re~considering whether the
upward revision of sentence was necessary in the light of the observ'ations
made by the Confirming Officer. The Confirming Officer had pointed out
in his report that the robberies were committed during the liherl)tion of
Bangladesh where the Indian Forces had gone as libfrators antl as guar·
dians and custodians of the life and properly of the people -0f Bangladesh.
Considering the nature a.id gravity and maintenance of high standard of
discipline in the Armed Forces, the sentcn..::e awarded was net commcn·
surate. The Confirming Officer further directed that the delinquent officer
should be given opportunity to. address the Court, if he so desired, if the
Court decides to enhance the sentence.
In the fresh proceedings before
the Court Martial, the Officer .did not prc'°nt himself. The Court Martial
revoked the ea:-lier sentence· and scntenc~d him to be cashiered and to
suffer rigorous imprisonment for two ye•rs.
The s•id sentence was duly
confirmed by the Chief of the Army Staff. Jn the petition challenging the
legality of the order under Art.. 32 of the Constitution, the petitioner con·
tended that the impugned order was bz,d for the violation of the principle
of natural justice inasmuch as that the Court Martial white re-considering
the sentence did not act as a free agent, that no opportunity of being heard
was given lo the Officer at the time of remand and 1\t the time of the
final confirmation by the Army Chief of the Staff and th•t the revision
was recommended by an officer subordinate in rank to the officer who con·
vened the Court Martial.
Jn dismissing the I- ~titian,
HELD : (i) Sec. 158 of the Army Act describes the procedure regard·
ing the re-consideration df the sentence by the Court Martial.
In conM
sidering a petition filed under Art. 32 of the Coristitution, the orily relevant
Article is Art. 21, and the procedure established by law has been com-
1026
SUPREME COURT REPORTS
[1973] 2 S.C.R.
pletely followed in this case. The circumstanc~ requiring the reconsideraA
tion pointed out by the Officer Commanding were unexceptionable and
there was no violation of the principle of natural justice. The petitioner
failed to appear before the Court Martial in the fresh hearing. [1031 C-D]
A. K. Kraipak & Ors. Etc. v. Union of India and Ors. (1970] (1) SCR
457 ancJ Purtabpore Co. Ltd. v. Cari<! Commissioner of Bihar & Ors."
{1909J (2) SCR 807, distinguished.
I
B.
(ii) No opportunity to be heard was necessary before the Confirming
Officer formed the opinion to send the case back to the Court Martial for
re-consideration of sentence. fl 032 CJ
(ii) The words 'authority' and 'Officer' in Sec. 112. of the Army Act
have one and the same meaning. The Officer recommending the reconsideration or the sentence was also an Officer ccmmanding the ·Division
though he was only officiating and wu a Brigadier. The actual confirmaC
tion of the enhanced sentence was made by the Chie'f of Army Staff who
was higher in rank than the convening Officer. [1033 C)
(iv) In the face of the very clear indication in the Constitution, the
provisions oi Code of Criminal Procedure cannot be adopted in respect of
Court Martio!.
It wa~ open to the petitioner to make a petition to the
Chief of the Army Staff under section 164 of the Army Act which he
did not llO. fl 033 Hl
ORIGINAL JuRISD.ICTION
Writ Petition No. 456 of 1972.
Petition under Article 32 of the Constitution of Iridia for a
writ in the nature of habeas corpus.
A. K. Sen and B. Datta for the petitioner.
·r:. S. Nariman, Addi. Solicitor-General of India, B. D. Sharma
and S. P. Nayar for the respondents.
The Judgment of the Court was delivered by
ALAGIRISWAMI, J. The petitioner was an officer of the Indian
Army who served in Bangla Desh. On. 11th December, 1971 ·be
was in a place called Hajiganj. He was tried before the Summary
General Court Martial on the charge of committing robbery at
Hajiganj by causing fear of instant hurt to the Custodian of the
United Bank Ltd., of certain _properties belonging to the Bank
and also the personal property of th~ Manager of the Bank as well
a'°of a Chowkidar of the Bank. The Court sentepced the petitioner
to be 'cashiered'. This sentence was subject to con.finnation under
the provisions of Chapter XII of the Army Act. Maj-Gen. Hira,
General Officer Commanding, 23 Mountain Division, of which
the petitioner was an officer, passed an order directing the revision
of 1 he sentence. Thereafter. the petitioner was brought before the
same Court Martial, as had tried him earlier,. and he was asked
whether he wanled to address the Court. On receiving a reply in
the negative. the Court, .after considering the observations of the
confim1ing :i11thority, revoked the earlier sentence which they had
imposed on the petitioner and sentenced hi;n to be cashiered and
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BillSH UPPAL v. UNION (Alagirl,fwami, /.)
1027
ro s:uffer rigorous imprisonment for two years. Brif.· D. P. Bhilla,
the Olliciating Oeneral Ollicer Commanding 23 Mountain
Division, referred the finding and sentence for corilirmation to the
Chief of the Army Staff, who in due course con1i'rlned the finding
and the sentence. The present petition is filed under Article 32 of
the Constitution for q~g
the order passed by the Chief of the
Army Staff, aftc1.1 setting aside the order passed by Maj-Gen. Hira.
Shri A. K. Sen appearing on behalf of the petitione,r raised
four points in support of his contention that the order passed
agains~ the petitioner should be quashed :
1. The authority to confirm the sentence passed by
a Court Martial does not confer on the confirming
authority the power to enhance the sentence.
That auth.ority cannot, therefore, achieve
that
object indirectly by directing the revision of the
sentence. The Court Martial's verdict should be
unfettered.
2. In any case, the confinning authority should have
given a hearing to the affected party.
3. The confirmation can be made only by the officer
who convened the Court Martial and not by a
different officer as was done in this case.
4. The officer who finally confirmed the sentence on
the petitioner should also have heard the
petitioner.
(I} The officer who convened the Summary General Court
Martial, which tried the petitioner, was Maj-Gen. Hira. It was he
that directed the revision of the_.sentence passed on the petitioner.
The argument is that this order was in such terms that the Court
Martial which revised the sentence was compelled to and was left
with no alternative but to enhance the sentence and that this was
against all principles of natural justice. Under Section 153 of the
Army Act no finding of a Court Martial shall be valid except so far
as it may be confirmed as provided under the Act. Under Section
157 the findings and sentences of summary gi:neral courts-martial
may be confirmed by the convening officer or if he so directs, by
an authority superior to him. Under Section 1 S-8, a confim,ing
authority may, when confirming· the sentence of a court-martial,
mitigate or remit the punishment thereby awarded, or commute
that punishment for any punishment or punishments lower in the
scale laid down in section 71. Under Section 160, any finding or
sentence of a court-martial which requires confirmation may be
once revised by order of the confirming authority and on such revision, the court, if ~o directed by the confirming authority, may
take additional evidence.
Even after revision the sentence passed
14-LS21SupCJ/73
1028
SUPRE.WB COURT RBPOltTS
'
[1973] 2 s.c.a.
by the court m3flial would have to be confirmed because of provision of Section 153. The order passed by Maj-Gen.-Hira dire(:tiag revision of the sentence passed by the court martial is as
follows:
"The Summary General
Court
Martial, .., which
assembled at Field, on 9 March 1972 and subsequent
days for the trial of IC-16394 Substantive Lieut (Actg.
Capt.) HARISH uPPAL, Arty, 198 Mountain Regiment, will reassemble in open court on 15 May 1972
at Field at 1000 hrs for th.e purpose of reconsidering
the sentence awarded by it, whilst in no way intending
the qu:mtum of punishment to be awarded, the court
should fully take into consideration the following observations of the Confirming Officer.
2. The accused was convicted by the Courb under
Army Act ~ection 69 for committing a civil offence,
that is to say, Ro~bery,. contrary to section 392 of the
Indian Penal Code, the particulars hereby averred that
he, at HAJIGANJ (BANGLA DESH) on 11 December
1971, by causing fear of instant hurt to the Custodians
committed Robbery in respect of the undermentioned
articles, the property belonging to the i:ersons indicated
as follows :-
(a) The property of the United Bank
Ltd. COMILLA Dist.
(i) Cash in Pakistan Currency.
(ii) 28-12 Bore guns Registered
No. 027373 and 342.
(iii) Wall clock.
(iv) Telephone Set Auto TIP
(Sky Blue)
(v) Telephone
CE 'w:thout
hand set (Black)
(vi) Pens (eagle)
(vii) Locks with four keys
(viii) Winter.uniform of peons and
guard.
( b) Personal
property
of
Shri
MAKALAM, Manager,
United
Bank Ltd., :fAJIGANJ Branch :
Wrist Watch (Romer popular)
(c) Personal property of Shri Hab,_
u!lah, Chowkidar, United Bank
Ltd., Hajiganj Branch :
PAKISTAN Currency
Rs. 11,222.91
Two with seven
cartridges.
One
One
One
Two
Two
Two pairs
One
Rs. 6/- ·
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HARISH UPPAL v. UNION (Alagiriswami, /.)
1029
3. It is, therefore, appareDt that aparb from the property of the UDited Bank Ltd., the accused committed
robbery in respect of the personal properties of its two
custodians at a time when the War of liberation of
BANGLADESH was still being waged on some fronts
though the_ hostility in the town had ceased in HAJIGANJ area and the situation was fast returnlng to
normalcy.
4. It would bi:i appreciated tha~ the ·charge of which
the accused was convicted is of a very serious nature.
The punishment of 'Cashiering', therefore, awarded for
the offence appears to be palpably lenient. The maximum punishment provided for the offence under IPC
Sec. 392 is 10 years RI. Even though the proper amount
of punishment to be inflicted is the least amount by
which descipline can be effectively maintained, it is
nevertheless equally essential that the punishment
awarded should be appropriate and commens1,1rate with
the nature and gravity of the offence and adequate for
the maintenance of the high standard of discipline in the
Armed Forces. I! should be clearly borne in mind that
our Forces had been ordered to march into BANGLADESH as the liberators of tlie oppressed people who had
been subjected to untold torture and miseries at the
hands of Pak troops. It is, therefore, clear that our Forces
had gone there as guardians and custodians of the lives
and property of the persons of. that country. The conduct
of the accused by indulging in broad day light bank
robbery is despicable and his stooping so low as to deprive Shri HABIBULLAH (PW-2), Chowkidar of the
United Bank Ltd.,. of paltry amount of Rs. 6 in Pak
currency as also his taking away the Romer Wrist watch
from Shri MAKALAM (PW-4), Manager of the said
Bank, is indeed highly reprehensible. Such actions on
the part of responsible officer of the Indian Army are
calculated to bring a blot on the fair name of the Indian
Army. It is, therefore, our imperative duty to ensure that
such cases dealt with firmly when a verdict of guilty has
been returned by the court.
5. There are certain norms and standards of behaviour laid down in the Armed Forces for strict adherence by persons who have the honour to belong to the
Corps of Officers of the Indian Army. A person of the
rank of an officer, who indulges in such an offence,
should, therefore. be awarded suitable punishment. In
the course of six years commissioned service he had
once been convicted under Army Act Section 41(2) for
1030
SUPREME COURT REPORTS
[1973] 2 S.C.R.
disobeying a lawful command given by his
~uperior
officer in the execution of his duties for which he was
severely reprimanded on 13 June 1970.
·
6. The accused/ or his
defending officer/ counsel
should be given an opportunity to address the court, if
so desired. The court should then carefully
consider
all the above and should they decide to enhance the
sentence, then the fresh sentence should be announced
in open court as being subject to confirmation.
7, The attention of the court i~ drawn to Army Act
Section 160, Army Rule 68 and the form of proceedings
on revision given on page 370 of NlML (1961 Reprint),
which should be amended to conform to the provisions
of Army Rule 67 ( 1 ).
8. After revis10n, the proceedings shall be return~d
to this Heaqquarters.
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(R. D. HIRA)
Maj-Gen.
General Officer Commanding 23 Mtn Div.
Field
03 May 1972.
It was contended that in the face of such strong observations
by the General Officer CoIPmanding the Division the officers
constituting the court martial would have felt compelled to enhance the sentence and the revised sentence passed on the petitioner was not the free act of the court martial but one forced on
them by the Officer Commarding and that this militates
agains~
the principle of natural justice. But it should be remembered that
under the provisions of the Army Act set out earlier the confirming
authority could himself mitigate or remit the punishment awarded
by the court martial or commute that punishment for any lower
punishment and, therefore, when a sentence is directed to be
revised by the· confirming ·authority it necessarily means that the
confirming authority considers that the punishment awarded by
the court martial is not commensurate with the offence and it
should, therefvre, be revised upwards. To object to this is to object
to the provisions of section 15 8 itself. A direction by the confirming authority merely showing that the punishment awarded by the
court martial is not commensurate with the offence, would be
certainly unexceptionable and would be in accordance with the
provisions of law. Instead of baldly stating so the confirming
authority in this case has given reasons as to why he considers that
the. punishment awarded to the petitioner was wholly inadequate.
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HARISH UPPAL v. UNION (Alaglriswami, !.)
1031
We consider that the reasons given by him cannot be taken exception to. It was urged that the confirming authority proceeded on
the basis that in respect of the charges against the petitioner the
evidence available was as he had set out in his order directing
revision and that this was not correct. We must
point
out
that
this
Court
cannot
go
into the
evidence
in support of the charge
against the petitioner. Indeed
the court martial itself could not have set out the evidence against
the petitioner; it should have only given the finding <μ1d ~he sentence. Under the provisions of Article 136(2) of the Constitution
this Court cannot grant special leave in respect of any judgment,
determination or order passed or made by any court or tribunal
constituted by or under any law relating to the Armed Forces.
In considering a petition filed under Article 32 of the Constitution
this Court can only consider whether any fundamental right of the
petitioner has been violated and the only Article relevant is Article
21 of the Constitution. There is no doubt that the procedure estab'
lished by law as required under that Article has been completely
followed in this case.
It is, however, urged that the decisions of this Court have laid
down that the rules of natural justice operate in areas not covered
by any law validly made and that they do not supplant the law of
the land but supplement it and, therefore, though the procedure
established by law may have been followed as required under
Article 21, the principles of natural justice should also be followed.
The cases relied on are A. K. Kraipak & Ors. etc. v. Union of India
& Ors. (1) and Purtabpore Co. Ltd. v,. Cane Commissioner of
Bihar & Ors.(').· This Court in the first decision_ had pointed out
that what particular rule of natural justice should apply to a given
case must depend to a great extent on the facts and circumstances
of that case, the frame work of the law under which the enquiry
jg held and the constitution of the tribunal or body of persons
appointed for that purpose. It was also pointed out that the Court
has to decide whether the observance of that rule was n~essary for
a just decision and that the rule that enquiries must be held in
good faith and withoutbias and not arbitrarily or unreasonably is
now included among the principles of natural justice. There is no
analogy between the facts of that case and the present and applying the ratio of that to the facts of this case we are not satisfied
that anv rule of natural justice has been violated. The latter wllS
a case-where the authority comQ~tent to pass the order had simply
passed an order adopting what the Minister had directed and had
not applied his mind. The facts of this case are quite different. The
confirming authority while pointing out the facts had left the ,discretion regarding the punishment to be imposed to the court
(!) [1970] I S.C.R. 457.
(2)
[1969] 2· S.C.R. 807
1032
SUPREME COURT REPORTS
[1973] 2 S.C.R,
martial. If the court ~!)rtial in spite. of the direction given by the
confirming authority had reaffirmed its original. order, the confirming authority could do nothing because it can exercise its power
of directing revision only once and that power was ah:eady exhausred. Furthermore, when the court martial reassembled to revise
its earlier order under the directions of the confirming authority,
the petitiener was given the reasons of the_ confirming officer for
requiring revision and asked whether he wanted to address the
court, he replied in the negative, It was open to him to have
pointed out to the court martial how the observations of the confirming authority were wrong, how they were not borne out by the
evidence on record. J:!aving failed to avail himself of the opP4Jrtunity accorded to him, the petitioner cann'ot be now heard to complain that he was not given an oppo;tunity by the confirming authortty before -he directed revision. The court martial had originally
folDld the petitioneil guilty of the charge of robbery, under Section
392 of the Indian Penal Code. There was, therefore, no question
of the court· martial, :when it proceeded to reconsider the matter,
of reconsidering the finding of guilty. Therefore, any attempt to
question the order of the confirming authority on the basis that
he relied upon facts which were not proved for directing revision,
is wholly beside the point. And as far as the question of sentence
is concerned, one cannot quarrel with .the sentiments expressed
by the confirming authority. We find ourselves unable, therefore,
to agree to. petitioner's contention that the orier of the confirming
authority directing revision is in any way vitiated.
(2) w~ have already held above that the confirming authority,
when he directed a revision of the sentence passed on the petitioner,
was only exercising the powers conferred on him by Section 160
of the Army Act. He also made it clean than the court martial was
not biound by his opinion by stating that should the court martial
decide to enhance the sentence rthe fresh sentence should be
announced in open court as bein-g subject to confirmation. Right
in the beginning of his order he had also stated 'Whilst in no way
;ntending the quantum of punishment to be awarded, the court
should fully take into consideration the following observations'.
To hold in the circumstances that the confirming authority should
have heard the appellant before he directed the revision of the
sentence passed on him would not be a requirement of principle of
natural justice. In the. circumstances and facts of a case like the
present one where the petitioner had an opportunity of putting
forward whi:tever contentions he wanted to rely upon before the
court martial, we do not consider that there is any substance in this
contention.
( 3) The contention here was that while the court martial was
convened by a Maj-'General the_ officer who directed revision was
a Brigadier, and that 'Joly the convening officer can confirn1 or
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HARISH UPPAL \I, UNION (Alaglri.nvaml, J.)
I 033
direct revision. Thi' is perhaps the one contention with the least
substance put forward on behalf of the petitioner. The contention
is based on the words found in Section 157 of the Army Act that
the findings and sentences of summary general courts-martial may
be confirmed by the convening officer or if he so directs, by an
authority superior to him. The words 'convening officer' and 'an
authority superior to him' are sought to be conttasted and it is
argued that while a confirmation can only be by a convening
officer and by no other, the authority superior to him may also
confirm showing that in the latter case neither the rank of aul!llorit_y nor the person holding the post is relevant. Section 112 of the
Act which deals with the power to convene a summary ' general
court martial shows l!llat this attempted distinction between
"authority" and -"offi~r" is without substance. The officer is the
authority and the authority is the officer. Both the words refer only
to one person. To acct_pt this argument would mean that if the
officer who convened the court martial is transferred to a distant
place or retires or is dead, the whole procedure would have to be
gone through again. A -useful comparison will be of decisions
under Article 311 of the Constitution where it has been held that
the power to deal with an officer under that Article can be exer·
cised even by an authority lower in rank to the authority which
originally appointed the officer, if at the relevant period of time
that authority was competent to appoint the 0tlicer sought to be
dealt with. It may be noted that in this case the officer who convened the court martial was a Maj-General Officer COiilmanding
the 23rd Mountain Division, and the officer who directed that the
findings and sentence should be confirmed by the Chief of Staff
was also the officer Commanding the same Division, though he
was only officiating and was a Brigadier. The confirmation itself
was by the Chief of Anny Staff, higher in rank than the convening
officer.
( 4) The contention that Brig. Bhilla should either have given
a hearing to the petitioner or the Chief of Anny Staff should have
given a hearing to the petitioner before confirming the subsequent
sentence by the court martial is not a requirement under the Act.
While it can be at least said that there is some semblance of reasonableness in tJte epntention that before be ordered wha~ in effect
was an upward revision of the sentence passed on the petitioner,
he should have been given a hearing, to insist that the confirming
authority should give a, hearing to the petitioner before it confirmed the sentence passed by the court martial, is a contention
which cannot be acce__pted. To accept this contention would mean
that all the procedur~ laid down by the Code of Criminal Procedure should be adopted in respect of the court martial, a con,
tention which cannot be accepted in the face of the very clear
indications in the Constitution that the provisions which are
1034
SUl.'REME COURT REPORTS
(1973] 2 S.C.ll,
applicable to all the civil cases are not applicable to cases of Armed
A
Personnel. It is not a requirement of the principles of natural
justice. Indeed when he was informed that the subse.queno sentence
passed on him had been sent to the Chief of the Army Staff for
confirmation it was open to the petitioner to have availed himself
of the remedy provid~d under Section 164 of presenting a peti~ion
1 to the confirming officer, i.e. the Chief of the Army Staff in this
B
case. He does not appear to have done so.
We are, therefore, qf the opinion that there are no merits in
this peti!ion and dismiss it.
S.B.W.
Petition dismissed.