# RAM SARUP v. THE UNION OF lNDIA AND ANOTHER

- **Citation:** [1964] 5 S.C.R. 931
- **Court:** Supreme Court of India
- **Decided:** 1963-12-12
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ram-sarup-v-the-union-of-lndia-and-another-3056
- **Pages:** 16

## Headnote

--
-
--
5 S.C.R.
SUPREME COURT REPORTS
931
been in custody for about 10 months before that.
1963
On a consideration of all the circumstances of the
-.-
case we reduce the sentenc1! on these women-appellants Mathurz andora.
under s. 304 Part JI read with s. 149, s 326149 and
v.
s. 148 to the period of imprisonment already under- Statt of Punjab
gone.
Das Gupta I.
Of the four male appellants Surjan was aged
70 at the time of the trial and Gokul 66.
Surjan
is thus about 73 years old now and Gokul just less
than 70. In consideration of their age we think
that the interests of justice will be served if their
sentences are also reduced to the period of imprisonment already undergone. We reduce their sentences
accordingly. Let these accused persons be set at
liberty, if not required in connection with some other
proceedings. We see no reason to interfere with
the sentences passed on the other two male appellants.
The appeal by the accused persons is thus dismissed except as regards the modification in sentences
of eight of them.
The appeal preferred by the State
of Punjab is dismissed.
Appeals dismissed.
RAM SARUP
v.
THE UNION OF lNDIA AND ANOTHER
(B.P. SINHA, C.J., K.N. \VANCHOO, RAGHUBAR DAYAL,
N. _RAJAGOPALA AYYANGAR AND J.R. MUDHOLKAll,
JJ.)
Army Act (XLVI of 1950), ss. 125, 126 and 164-Scope of-
-Constitution of India, 1950, Art. 33-Effect on fundamental
rights-s. 125 of Army Act if violative of Art. 14 of the Constitution.
The General Court Martial sentenced the petitioner, a sepoy,
to death under s. 69 of the Army Act read with s. 302 of the Indian
1965
Duember Jl
1963
Ram Sarup
v.
932
SUPREME COURT REPORTS
[1964]
Penal Code for shooting dead two sepoys and a Havildar. The
Central Government confirmed the sentence. The petitione:r
filed writs of habeas corpus and certiorari for setting aside the:
orders of the Court Martial and the Central Government ancl
for his release.
The Union of
India and another
Held: (i) The p~titioner made no req_uest for being represen··
ted at the court martial by a counsel of his choice; consequently
no such request was refused, and that there has been no violation
of the fundamental right of the petitioner to be defended by a.
counsel of his choice.
. (ii) There has been no non-compliance of the provisions
of s. 132(2) of the Act. In view of the provisions of rr. 45, 46,
61(2) and 62 of the Army Rules, 1954, the petitioner's statement,
that the death sentence was voted by an inadequate majority of
the members of the Court which can be considered to be a mere
allegation, cannot be based on any definite knowledge as to how
the voting went at the consideration of the finding in pursuance
of r. 61.
(iii) Section 164 does not lay down that the correctness of the
order or sentence of the Court Martial is always to be decided
by two higher authorities; it only provides for two remedies. The
further petition can only be made to the authority superior to the
authority which confirms the order of the Court Martial, and if
there be no authority superior to the confirming authority, the
question of remedy against its order does not arise.
(i,v) Each and every provision of the Army Act is a law made
by Parliament and ·that if any such provision tends to affect the
fundamental rights under Part III of the Constitution; that provision does not, on that account, become void, as it must be taken
that Parliament has in exercise of its power under Art. 33 of the
Constitution made the requisite modification to affect the respective fundamental right.
(v) The provisions of s. 125 of the Act are not discriminatory
and do not infringe the provisions of Art. 14 of the Constitution.
(vi) The discretion to be exercised by the Military Officer
specified in ·s. 125 of the Act as to the trial of accused by Court
Martial or by an ordinary court, cannot be said to be unguided
by any other policy laid down in the Act or uncontrolled by any
authority. There could be a variety of circumstances which may
influence the decision· as

## Text

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-
--
5 S.C.R.
SUPREME COURT REPORTS
931
been in custody for about 10 months before that.
1963
On a consideration of all the circumstances of the
-.-
case we reduce the sentenc1! on these women-appellants Mathurz andora.
under s. 304 Part JI read with s. 149, s 326149 and
v.
s. 148 to the period of imprisonment already under- Statt of Punjab
gone.
Das Gupta I.
Of the four male appellants Surjan was aged
70 at the time of the trial and Gokul 66.
Surjan
is thus about 73 years old now and Gokul just less
than 70. In consideration of their age we think
that the interests of justice will be served if their
sentences are also reduced to the period of imprisonment already undergone. We reduce their sentences
accordingly. Let these accused persons be set at
liberty, if not required in connection with some other
proceedings. We see no reason to interfere with
the sentences passed on the other two male appellants.
The appeal by the accused persons is thus dismissed except as regards the modification in sentences
of eight of them.
The appeal preferred by the State
of Punjab is dismissed.
Appeals dismissed.
RAM SARUP
v.
THE UNION OF lNDIA AND ANOTHER
(B.P. SINHA, C.J., K.N. \VANCHOO, RAGHUBAR DAYAL,
N. _RAJAGOPALA AYYANGAR AND J.R. MUDHOLKAll,
JJ.)
Army Act (XLVI of 1950), ss. 125, 126 and 164-Scope of-
-Constitution of India, 1950, Art. 33-Effect on fundamental
rights-s. 125 of Army Act if violative of Art. 14 of the Constitution.
The General Court Martial sentenced the petitioner, a sepoy,
to death under s. 69 of the Army Act read with s. 302 of the Indian
1965
Duember Jl
1963
Ram Sarup
v.
932
SUPREME COURT REPORTS
[1964]
Penal Code for shooting dead two sepoys and a Havildar. The
Central Government confirmed the sentence. The petitione:r
filed writs of habeas corpus and certiorari for setting aside the:
orders of the Court Martial and the Central Government ancl
for his release.
The Union of
India and another
Held: (i) The p~titioner made no req_uest for being represen··
ted at the court martial by a counsel of his choice; consequently
no such request was refused, and that there has been no violation
of the fundamental right of the petitioner to be defended by a.
counsel of his choice.
. (ii) There has been no non-compliance of the provisions
of s. 132(2) of the Act. In view of the provisions of rr. 45, 46,
61(2) and 62 of the Army Rules, 1954, the petitioner's statement,
that the death sentence was voted by an inadequate majority of
the members of the Court which can be considered to be a mere
allegation, cannot be based on any definite knowledge as to how
the voting went at the consideration of the finding in pursuance
of r. 61.
(iii) Section 164 does not lay down that the correctness of the
order or sentence of the Court Martial is always to be decided
by two higher authorities; it only provides for two remedies. The
further petition can only be made to the authority superior to the
authority which confirms the order of the Court Martial, and if
there be no authority superior to the confirming authority, the
question of remedy against its order does not arise.
(i,v) Each and every provision of the Army Act is a law made
by Parliament and ·that if any such provision tends to affect the
fundamental rights under Part III of the Constitution; that provision does not, on that account, become void, as it must be taken
that Parliament has in exercise of its power under Art. 33 of the
Constitution made the requisite modification to affect the respective fundamental right.
(v) The provisions of s. 125 of the Act are not discriminatory
and do not infringe the provisions of Art. 14 of the Constitution.
(vi) The discretion to be exercised by the Military Officer
specified in ·s. 125 of the Act as to the trial of accused by Court
Martial or by an ordinary court, cannot be said to be unguided
by any other policy laid down in the Act or uncontrolled by any
authority. There could be a variety of circumstances which may
influence the decision· as to whether the offender be tried by a
Court Martial or by ordinary criminal court and therefore
becomes inevitable that the discretion to make the choice as to
which court should try the accused be left to responsible Military
Officers ·under whom the accused is serving.
Those officers are
to be guided by considerations of the exigencies of the service
maintenance of discipline in the army, speedier trial, the nature
9fthe offe.nce and the person against whom the offence is committed.
(
-
5 S.C.R.
SUPREME COURT REPORTS
933
This discretion is subject to the control of the Central Govern1963
ment.
Ram Sarup
(vii) According to s. 549 of the Code of Criminal Procedure
and the rules thereunder, the final choice about the forum of the
v ..
trial of a person accused of a civil offence rests with the Central The Union of
Government, whenever there be difference of opinion between India and another
a Criminal Court and Military authorities about the forum. The
position under ss. 125 and 126 of the Army Act is also the same.
ORIGINAL JURISDICTION : Petition No. 166 of
1963.
Under Article 32 of the Constitution of India
for the enforcement of fondamental rights.
O.P. Rana, for the petitioner.
C.K. Daphtary, B.R.L. Iyengar and R.H. Dhebar
for the respondents.
December 12, 1963. The Judgment of the Court
was delivered by
RAGHUBAR DAYAL J.-Ram Sarup, petitioner,Raghubar Dayal
was a sepoy in 131 Platoon DSC, attached to the
J.
Ordnance Depot, Shakurbasti. As a sepoy, he is
subject to the Army Act, 1950 (XLVI of 1950), hereinafter called the Act.
On June 13, 1962 he shot dead two sepoys,
Sheotaj Singh and Ad Ram and one Havildar Pala
Ram. He was charge:d on three counts under s. 69
of the Act read with s. 302 I.P.C. and was tried by
the General Court 1fartial. On January 12, 1963
the General Court Martial found bim guilty of the
three charges and sentenced him to death.
The Central Government confirmed the findings
and sentence awarded by the General Court Martial
to the petitioner. Thereafter, the petitioner has filed
this writ petition praying for the issue of a writ in
the nature of a writ of habeas corpus and a writ of
certiorari setting aside the order dated January 12,
1963 of the General Court Martial and the order
of the Central Government confirming the said findings and sentence ancj for his release from the Central
934
SUPREME COURT REPORTS
[1964]
1963
Jail, Tebar, New Delhi, where he is detained pending
Ram sarup
execution of the sentence awarded to him.
v
.
The U~ion of
The contenti?~S raised for the petitioner ai:e:
lndiaandanother(l) J;hat the prov1s10ns of s. 125 of .t~e Act are d1scnmmatory and contravene the prov1s1ons of Art. 14 \
Raghubar Dayal of the Constitution inasmuch as it is left to the unJ.
guided discretion of the officer mentioned in that
section to decide whether the accused person would
be tried by a Court Martial or by a Criminal Court.
(2J Section 127 of the Act which provides for successive
trials by a Criminal Court and a Court Martial,
violates the provisions of Art. 20 of the Constitution
as it provides for the prosecution and punishment
of a person for the same offence more than once.
(3) The petitioner was not allowed to be defended
at the General Court Martial by a legal practitioner
of his choice and therefore there had been a violation
of the provisions of Art. 22(1) of the Constitution.
(4) The procedure laid down for the trial of offences
by the General Court Martial had not been followed
inasmuch as the death sentence awarded to the petitioner was not passed, with the concurrence of at
least two-thirds of the members of the Court. (5)
Section 164 of the Act provides two remedies, one
after the other, to a person aggrieved by any order
passed by a Court Martial. Sub-s. (I) allows him
to present a petition to the officer or authority empowered to confirm any finding or sentence of the
Court Martial and sub-s. (2) allows him to present
a petition to the Central Government or to any other
authority mentioned in that sub-section and empowers
the Central Government or the other authority to
pass such order on the petition as it thinks fit. The
petitioner could avail of only one remedy as the
finding and sentence of the Court Martial was confirmed by the Central Government.
He, therefore,
could not go to any other authority against the order
of the Central Government by which he was aggrieved.
It will be convenient to .deal with the first point
at the end and take up the other points here.
·
5 S.C.R.
SUPREME COURT REPORTS
935
1963
The petitioner has not been subjected to a second
trial for the offence of which he has been convicted
Ram Sarup
by the General Court Martial. We therefore do
not consider it necessary to decide the question of The ;;;,ion of
the validity of s. 127 of the Act in this case.
, a·
d
the
,n saan ano
r
With regard to the third point, it is alleged that
the petitioner had expressed his desire, on lllailY Raghubizr Dayal
occasions, for permission to engage a practising civil
J.
lawyer to represent him at the trial but the authorities
turned down those requests and told him that it
was not permissible under the Military rules to
allow the services of a civilian lawyer and that he
would have to defend his case with the counsel he
would be provided by the Military Authorities. In reply,
it is stated that this allegation about the petitioner's
requests and their being turned down was not correct,
that it was not made in the petition but was made
in the reply after the State had filed its counteraffidavits in which it was stated that no such request
for his representation by a legal practitioner had
been made and that there had been no denial of his
fundamental rights. We are of opinion that the
petitioner made no request for his being represented
at the Court Martial by a counsel of his choice, that
consequently no such request was refused and that
he cannot be said to have been denied his fundamental right of being defended by a counsel of his choice.
In paragraph 9 of his petition he did not state
that he had made a request for his being represented
by a counsel of his choice. He simply stated that
certain of his relatives who sought interview with
him subsequent to his arrest were refused permission
to see him and that this procedure which resulted
in denial of opportunity to him to defend himself
properly by engaging a competent civilian
lawyer
through the resources and help of his relatives had
infringed his fundamental right under Art. 22 of
the .Constitution. If the petitioner had made any
express request for being defended by a counsel
of his choice, he should have stated so straight-forwardly in para 9 of his petition. His involved language
936
•·SUPREME COURT REPORTS
[1964]
1963
could only mean that he could not contact his relations
for their arranging a civilian lawyer for his defence.
Ram Sarnp
This negatives any suggestion , of a request to the
v.
Military Authorities for
permission to allow him
The Union of representation by a practising lawyer and its re ..
India and another fusal.
'
Ra hubar Dayal •
Vfe therefore hold that t.here had bee.n. no
g i
v10lation of the fundamental nght of the pet1t1oner
·
to be defended by a counsel of his choice, conferred
under Art. 22{1) of the Constitution.
Further, we do not consider it necessary to deal
with the questions, raised at the hearing, about the
validity of r. 96 of the Army Rules, 1954, hereinafter
called the rules, and about the power of Parliament
to delegate its powers under Art. 33 of the Constitution to any other authority.
The next point urged for the petitioner is the
sentence of death passed by the Court Martial
was against the provisions of s. 132(2) of the Act
inasmuch as the death sentence was voted by an
inadequate majority. The certificate, signed by the
presiding officer of the Court Martial and by the
Judge-Advocate, and produced as annexure 'A' to
the respondent's counter to the petition, reads:
"Certified that the sentence of death is passed
with the concurrence of at least Two-third of the
members of the Court as provided by AA Section
132(2)."
It is alleged by the · petitioner that this certificate
is not genuine but was prepared after his filing the
writ petition. We see no reason to accept the petitioner's allegations.
He could not have known
about the voting of the members of the General
Court Martial. Rule 45
~ives the Form of Oath
or of Affirmation which 1s administered to .every
member of a Court Martial. It enjoins upon him
that he will not on any account at any time whatsoeyer d. isc. lose or discover the vote or opinion of any '4
particular. member .of the Court Martial unless
~
required to give evidence thereof by a Court of Justice ..
•
l
t
',
5 S.C.R.
SUPREME COURT REPORTS
937
or Court Martial in due coursej'of law. Similar
1963
is the provision in the Form of Oath or of Affirmation which is administered to the Judge-Advocate,
Ram Sarup
in. pursuance of r. 46. Rule 61 provideslthat the
v.
Court shall deliberate on its finding in closed Court The Union of
in the presence of the Judge-Advocate. It is thereJndia and another
fore clear that only 'the members of the Court and R h -b -D
1
the Judge-Advocate can know how the members
ag u ;' aya
of the Court Martial gave their votes. The votes
·
are not tendered in writing. No record is made of
them. Sub-rule (2) of r. 61 provides that the opinion
of each member of the Court as to the finding shall
be given by word of mouth on each charge separately.
Rule 62 provides that the finding on ·every charge
upon which the accused is arraigned shall be recorded
and, except as provided in the rules, shall be recorded
simply as a finding of 'guilty' or of 'not guilty'. Jn
view of these provisions, the petitioner's statement,
which can be considered to be a mere allegation,
cannot be based on any definite knowledge as to
how the voting went at the consideration of the finding in pursuance of r. 61.
Further, there is no reason to doubt what is
stated in the certificate which, according to the counteraffidavit, is not recorded in pursuance of any provision governing the proceedings of the Court Martial,
and does not form part of any such proceedings.
It is recorded for the satisfaction of the confirming
, authority.
The certificate is dated January 12,
1963, the date on which the petitioner was convicted.
The affidavit filed by Col. N.S. Bains, Deputy JudgeAdvocate General, Army Headquarters, New. Delhi,
contains a denial of the petitioner's allegation that
the certificate is a false and concocted document
and has been made by the authorities after the filing
of the writ petition. We see no reason to give preference to the allegations of the petitioner over the
statement made by Col Bains in his affidavit, which
finds support from the contents of Exhibit A signed
by the presiding officer of the Court Martial and
the Judge-Advocate who could possibly have no reason
1963
Ram Sarup
v.
938
SUPREME COURT REPORTS
[1964)
for issuing a false certificate. We therefore hold
that there had been no non-compliance of the provisions of s. 132(2) of the
Act.
The Union of
·
Next we come to the fifth point. It is true that
India and another s. 164 of the Act gives two remedies to the person
--
aggrieved by an· order, finding or. sentence of a Court
Raghubar Dayal Martial, they being a petition to the authority which
J.
is empowered to confirm such order, finding or sentence
and the petition to the Central Government or some
other officer mentioned in sub-s. (2), after the order
or sentence is confirmed by the former authority.
The final authority to which the person aggrieved
by the order qf the Court Martial can go is the authority mentioned in sub-s. (2) of s. 164 and if this authority
happens to be the confirming authority, it is obvious
that there could not be any further petition from the
aggrieved party to any other higher authority against
the order of confirmation. The further petition can
only be to the authority superior to the authority
which confirms the order of the Court Martial and
if there be no authority superior to the confirming
authority, the question of a remedy against its order
does not arise. Section 164 does not lay down that
the correctness of the order or sentence of the Court
Martial is always to be decided by two higher authorities. It only provides for two remedies.
Section 153 of the .Act provides inter alia that
no finding or sentence of a General Court Martial
shall be valid except so far as it may be confirmed
as provided by the Act and s. 154 provides that the
findings and sentence of.a General Court Martial may
be confirmed by the Central Government or by any
officer empowered in that behalf by warrant of the
Central Government. It appears that the Central
Government itself exercised the power of confirmation of the sentence awarded to the petitioner in the
instant case by the General Court Martial. The
Central Government is the highest authority mentioned in sub-s. (2) of s. 164. There could therefore
be no occasion for a further appeal to any other
body and therefore no
justifiable grievance can
--
•
J
l
5 S.C.R.
SUPREME COURT REPORTS
939
be made of the fact that the petitioner had no occasion
1963
to go to any other authority with a second petition
as he could possibly have done in case the order
Ram Sarup
of confirmation was by any authority subordinate
v.
to the Central Government.
The Act itself provides
The Union of
that the Central Government is to confirm the find-India and another
ings and sentences of General Courts Martial and
---
therefore could not have contemplated, by the pro- Raghubar Dayal
visions of s. 164, that the Central Government could
1·
not exercise this power but should always have this
power exercised by any other officer which it may
empower in that behalf by warrant.
We therefore do not consider this contention
to have any force.
'
Lastly, Mr. Rana, learned counsel for the petitioner, urged in support of the first that in the exercise
of the power conferred on Parliament under Art.
33 of the Constitution to modify the fundamental
rights guaranteed by Part III, in their application
to the armed forces, it enacted s. 21 of the Act which
empowers the Central Government, by notification,
to make rules restricting to such extent and in such
manner as may be necessary, the right of any person
with respect to certain matters, that these matters
do not cover the fundamental rights under Arts. 14,
20 and 22 of the Constitution, and that this indicated
the intention of Parliament not to modify any other
fundamental right.
The learned Attorney-General
has urged that the entire Act has been enacted by
Parliament and if any of the provisions of the Act
is not consistent with the provisions of any of the
articles in Part III of the Constitution, it must be
taken that to the extent of the inconsistency Parliament
had modified the fundamental rights under those
articles in their application to the person subject
to that Act. Any such provision in the Act is as
much law as the entire Act. We agree that each
and every provision of the Act is a law made by Parliament and that if any such provision tends to affect the
fundamental rights under Part III of the Constitution, that provision does not, on that account, become
940
SUPREME COURT REPORTS
(1964]
. ~,
1963
void, as it must be taken that Parliament has thereby,
in the exercise of its power under Art. 33 of the ConstiRam Sarup
tution, made the requisite modification to affect
v.
the respective fundamental right. We are however
The Union of of opinion that the provisions of s. 125 of the Act
India and another are not discriminatory and do not infringe the pro-
--
visions of Art. 14 of the Constitution. rt is not dispuRaghubar Dayal ted that the persons to whom the provisions of s. 125
J.
apply do form a distinct class. They apply to all
those persons who are subject to the Act and such
persons are specified in s. 2 of the Act.
The contention for the petitioner is that such persons are subject
to be tried for civil offences i.e., offences which are
triable by a Criminal Court according to s. 3 (ii) of
the Act, both by the Courts Martial and the ordinary
Criminal Courts, that s. 125 of the Act gives a discretion to certain officers specified in the section to
decide whether any particular accused be tried by a
Court Martial or by a Criminal Court, that there is
nothing in the Act to guide such officers in the exercise
of their discretion and that therefore discrimination
between different persons guilty of the same offence
is likely to take place inasmuch as a particular officer
may decide to have one accused tried by a Court
Martial and another person, accused of the same
offence, tried by a Criminal Court, the procedures
in such trials being different.
We have been taken through the various provisions of the Act and the rules with respect to the
trial of offences by a Court Martial. The procedure
to be followed by a Court Martial is quite elaborate
and generally follows the pattern of the procedure
under the Code of Criminal Procedure.
There
are, however, material differences too.
All the
members of the Court Martial are Military Officers
who are not expected to be trained Judges, as
the presiding officers of Criminal Courts are. No
judgment is recorded. No appeal is provided against
the order of the Court Martial. The authorities
to whom the convicted person can represent against
his conviction by a Court Martial are also non-
·-
J
--
'
(
5 S.C.R.
SUPREME COURT REPORTS
941
judicial authorities. In the circumstances, a trial
1963
by an ordinary Criminal Court would be more beneficial to the accused than one by a Court Martial.
Ram Sarup
The question then is whether the discretion of the
v.
officers concerned in deciding as to which Court The Union of
should try a particular accused can be said to be an India and another
unguided discretion, as contended for the appellant.
--
Section 125 itself does not contain anything which Raghubar Dayal
can be said to be a guide for the exercise of the dis- .J
J,
cretion, but there is sufficient material in the Act
which indicate the policy which is to be a guide for
exercising the discretion and it is expected that the
discretion is exercised in accordance with it,. Magistrates can question it. and the Government, in case of
difference of opinion between the views of the Magistrate and the army authorities, decide the matter
finally.
Section 69 provides for the punishment which
can be imposed on a person tried for committing
any civil offence at any place in or beyond India,
if charged under s. 69 and convicted by a Court
Martial. Section 70 provides for certain persons
who cannot be tried by Court Martial, except in
certain circumstances. Such persons are those who
commit an offence of murder, culpable homicide
not amounting to murder or of rape, against a person
not subject to Military, Naval or Air-Force law.
They can be tried by Court Martial of any of those
three offences if the offence is committed while on
active service or at any place outside India or at a
frontier post specified by the Central Government
by notification in that behalf. This much therefore
is clear that persons committing other offences over
which both the Courts Martial and ordinary Criminal
Courts have jurisdiction can and must be tried by
Courts Martial if the offences are committed while
the accused be on active service or at any place outside India or at a frontier post. This indication of
the circumstances in which it would be better exercise
of discretion to have a trial by Court Martial, is
an index as to what considerations should guide
942
SUPREME COURT REPORTS
[1964]
1963
the decision of the officer concerned about the trial
being by a Court Martial or by an ordinary Court.
Ram Sarup
Such ·considerations can be based on grounds of
v.
maintenance of discipline in the army, the persons
The Union of against whom the offences are committed and the
India and another nature of the offences
It mav be considered better
--
for the purpose of di~cipline that offences which are
Raghubar Dayal not of a serious type be ordinarily tried by a Court
J.
Martial, which is empowered under s. 69 to award
a punishment .provided by the ordinary law and also
such less. punishment as he mentioned in the Act.
Chapter VII mentions the various punishments which
can be awarded by Courts Martial and s. 72 provides
that subject to the provisions of the Act a Court
Martial may, on convicting a person of any of the
offences specified in ss. 34 to 68 inclusive, award
either the particular punishment with which the
offence is stated in the said sections to be punishable
or in lieu thereof any one of the punishments lower
in the scale set out in s. 71, regard being had to the
nature and degree of the offence.
The exigencies of service can also be a factor.
Offences may be committed when the accused be
in camp or his unit be on the march. It would lead
to great inconvenience if the accused and witnesses
of the incident, if all or some of them happen to belong
to the army, should be left behind for the purpose
of trial by the ordinary Criminal Court.
The trials in an ordinary court are bound to
take longer, on account of the procedure for such
trials and consequent appeals and revision, then
trials by Courts Martial. The necessities of the service
in the army require speedier trial. Sections 102
and 103 of the Act point to the desirability of the
trial by Court Martial to be conducted with as much
speed as possible.
Section 120 provides that subject
to the provisions of sub-s. (2), a summary Court
Martial may try any of the offences punishable under
the Act and sub-s. (2) states that an officer holding
a summary Court Martial shall not try certain offences
without a reference to
the
officer
empowered
'
)
·.
-
I
5S.C.R.
SUPREME COURT REPORTS
943
1963
to convene a district court martial or on active service
a summary general court martial for the trial of the
alleged offender when there is no grave reason for
Ram Sarup
immediate action and such a reference can be made
v.
without detriment to discipline. This further inThe Union of
dicates that reasons for immediate action and detriment India and another
to discipline are factors in deciding the type of
b--
1
trial.
Raghu ar Daya
Such considerations, as mentioned above, appear
to have led to the provisions of s. 124 which are that
any person, subject to the Act, who commits any
offence against it, may be tried and punished for
such offence in any place whatever. It is not necessary
that he be tried at a place which be within the jurisdiction of a criminal court having jurisdiction over
the place where the offence be committed.
In short, it is clear that there could be a variety
of circumstances which may influence the decision
as to whether the offender be tried by a Court Martial
or by an ordinary Criminal Court, and therefore it
becomes inevitable that the discretion to make the
choice as to which ·court should try the accused be
left to responsible military officers under whom the
accused be serving. Those officers are to be guided
by considerations of the exigencies of the service,
maintenance of discipline in the army, speedier trial,
the nature of the offence and the person against whom
the offence is committed.
Lastly, it may be mentioned that the decision of
the relevant military officer does not decide the matter
finally. Section 126 empowers a criminal court having
jurisdiction to try an offender to require the relevant
military officer to deliver the offender to the Magistrate
to be proceeded against according to law or to postpone proceedings pending reference to the Central
Government, if that criminal court be of opinion
that proceedings be instituted before itself in respect
of that offence. When such a request is made, the
military officer has either to comply with it or to make
a reference to the Central Government whose orders
would be final with respect to the venue of the trial.
J.
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944
SUPREME COURT REPORTS
[1964)
1963
The discretion exercised by the military officer is
therefore subject to the control of the Central GovernRam Sarup
ment.
v.
The Union of
Referenc.e :nay also be made. to s. 549 of the
IndiaandanotherCode of Cnmmal Procedure which empowers the
Central Government to make rules consistent with
Raghubar Dayal the Code and other Acts, including the Army Act,
J.
as to the cases in which persons subject to military,
naval or air-force law be tried by a court to which
the Code applies or by Court Martial. It also provides that when a person accused of such an offence
which can be tried by an ordinary criminal court
or by a Court Martial is brought before a Magistrate,
he shall have regard to such rules, and shall, in proper
cases, deliver him, together with a statement of the
offence of which he is accused, to the Commanding
Officer of the regiment, corps, ship or detachment
to which he belongs, or to the Commanding Officer
of the nearest military, naval or air-force station,
as the case may be, for the purpose of being tJied
by Court Martial. This gives a discretion to the
Magistrate, having regard to the rules framed, to
deliver the accused to the military authorities for
trial by Court Martial.
The Central Government framed rules by S.R.O.
709 dated April 17, 1952 called the Criminal Courts
and Court Martial (Adjustment of Jurisdiction) Rules,
1952, under s. 549 Cr. P.C. It is not necessary to
quote the rules in full.
Suffice it to say that when
a person charged is brought before a Magistrate
on an accusation of offences which are liable to be
tried by Court Martial, the Magistrate is not to
·proceed with the case unless he is moved to do so
by the relevant military authority. He can, however,
proceed with the case when he be of opinion, for
reasons to be recorded, that he should so proceed
without being moved in that behalf by competent
authority. Even in such a case he has to give notice
of his opinion to the Commanding Officer. of the
accused and is not to pass any order of conviction
or acquittal under ss. 24~, 245, 247 or 248 of the
p
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5S.C.R
SUPREME COURT REPORTS.
945
Code of Criminal Procedure, or hear him in defence
1963
under s. 244 of the said Code; is not to frame any
charge against the accused under s. 254 and is not
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to make an order of committal to the Court of Session
v.
or the High Court under s. 213 of the Code, till a The Union of
period of 7 days expires from the service of notice India and another
on the military authorities.
If the military authorities intimate to the Magistrate before his taking Raghubar Dayal
any of the aforesaid steps that in its opinion the
I.
accused be tried by Court Martial, the Magistrate
is to stay proceedings and deliver the accused to the
relevant authority with the relevant statement as
prescribed in s. 549 of the Code. He is to do so
also when he proceeds with the case on being moved
by the military authority and subsequently it changes
its mind and intimates him that in its view the accused
should be tried by Court Martial.
The Magistrate,
however,
has still a sort of control over what the
military authorities do with the accused. If no
effectual proceedings are taken against the accused
by the military authorities within a reasonable time,
the Magistrate can report the circumstances to the
State Government which may, in consultation with
the Central Government, take appropriate steps to
ensure that the accused person is dealt with in accordance with law. All this is contained in rr. 3 to 7.
Rule 8 practically corresponds to s. 126 of the Act
and r. 9 provides for the military authorities to deliver
the accused to the ordinary courts when, in its opinion
or under the orders of the Government, the proceedings against the accused are to be before a Magistrate.
According to s. 549 of the Code and the rules
framed thereunder, the final choice about the forum
of the trial of a person accused of a civil offence
rests with the Central Government, whenever there
be difference of opinion between a Criminal Court
and the military authorities about the forum where
an accused be tried for the particular offence committed by him. His position under ss. 125 and 126
of the Act is also the same
1/SCl/64-60
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SUPREME COURT REPORTS
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:1963
It is · clear therefore that the discretion to be
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exercised by the military officer specified in s. 125
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of the Act as to the trial of accused by Court Martial
v.
or by an ordinary court, cannot be said to be unguided
The Union of by any policy laid down by the Act or uncontrolled
India and another by any other authority. Section 125 of the Act
. ,, --.
therefore cannot, even on merits, be said to infringe
'Raghub<;r Dayal the provisions of Art. 14 of the Constitution.
J:
The writ petition therefore fails and is dismissed.
Petition dismr1scd.
1963
December 13
ARJUN SINGH
1'.
MOHINDRA KUMAR & ORS.
(B.P. SINHA, C.J., A.K. SARKAR AND N. RAJAGOPALA
AYYANGAR, JJ.)
Code of Civil Procedure (Act V of 1908). ss. 11 and 151 and
0. IX, rr, 3, 7 and 13-Principle ofresjudicata when applicable-
"Good cause" and "sufficient cause" if different.
There were three suits in two of which the appellant was
defendant and in the other the plaintiff. One of the three was
the main suit (in which appellant was a. defendant and the others
were connected suits. They were ordered to be consolidated
for the purpose of hearing and a day was fixed for pronouncing
judgment. The appellant did not appear and ex parte orders
were passed against him. He filed application (purporting to be
under Or. IX, r. 7 Code of Civil Procedure) for setting aside the
ex parte orders which were rejected. Thereupon he filed revision
application before the High Court which applications were rejected.
·Within a short time he applied to the trial court for taking evidence
and proceeding with the case. This application was rejected.
Thereafter he filed again another application (under Or. IX, r. 13
Code of Civil Procedure) for setting aside the ex parte order alleging
.. the same facts and reasons as before. The respondents raised
the bar of res judicata which was accepted by the Court. On the
rejection of his application he appealed to the High Court. The
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