# SOM DATI DATIA v. UNION OF INDIA AND ORS

- **Citation:** [1969] 2 S.C.R. 177
- **Court:** Supreme Court of India
- **Decided:** 1968-09-20
- **Case number:** Writ Petition No. 118 of 1968
- **Bench:** M. Hidayatullah, J. C. Shah, V. Ramas\Vami, G. K. Mitter, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/som-dati-datia-v-union-of-india-and-ors-4482
- **Pages:** 16

## Headnote

Army Act, 46 of 1950, ss. 125, 126, 164 and !65-First Information
Report of offences by Army Officer and others made to civil policePolice inspector taking some preliminary steps then stopping investigation
at the request of Army authorities-Area Commander immediately appointing Court of Inquiry to investigate-After trial by Court Martwl
accused convicted of offences under ss. 304 and 149 I.P.C.-Whether
Court Martial or ordinary criminal court had jurisdiction
to try the
case.-When Rules 3 and 5 of Rules framed under s. 549 Cr. P.C.
applicable.-If reasons required to be given by G.0.C. while deciding
petition under s. 164 and b,v the Central Government while deciding
appeal urtder s. 165-Army Rules, 1954, ss. 50(2) and !21(4)-When
attracted.
.
The petitioner, a Second Lieutenant in the army, was involved in a
quarrel between two groups of soldiers on September 1, 1965 which led
to an altercation and tbe stabbing and death of a soldier. On September
2, 1965, the matter was reported to tbe Civil Police at the local police
station. The Inspector of Police inspected the place of occurence on
the same day, seized certain exhibits produced by an Army Officer, held
an inquest on the dead body of the deceased soldier and sent it for postmortem examination through a police constable.
Later on the same day,
he stopped further investigation as the Army Officer incharge wanted tbe
case to be handled by the Military authorities.
On September 2, 1965, a Court of Inquiry under tbe provisions of
Ch. VI of th<l Army Rules was ordered by the Commander for the area.
After the Court of Inquiry had
concluded its
proceedings, a Court
Martial was constituted by an order dated
August 11, 1966, by tbe
General Officer Commanding for the area to try the petitioner and other
accused persons. The Court-Martial came to the finding that the petitioner was guilty of culpable homicide not amounting to murder, and
that he was a member of an unlawful assembly; it sentenced him to
cashiering and six years rigorous imprisonment.
The petitioner filed a
petition under section 164 of the Army Act, but this was dismissed
by the confirming authority and the finding and sentence of the CourtMaterial was confirmed. The petitioner's appeal under section 165 of
the Army Act to the Central Government was also dismissed.
In the present petition under Article 32 of tbe Constitution,
the
petitioner sought a writ of certiorari to quash the
proceedings of tbe
Court-Martial. It was contended on his
behalf
(i) tbat the CourtMartial had no jurisdiction to try and convict him of offences under
ss. 304 and 149 I.P.C. having regard to the mandatory provisions of s. 125
Of the Army Act and having also regard to the fact that the Army Officer
incharge had in the first instance decided to hand over the matter for investigation to the Civil Police; (ii) that no notice was given by the Commanding Officer to the Magistrate under Rule 5 of the Rules framed by
the Central Government under s. 549 of the Criminal Procedure Code, that
the petitioner should be tried by a Court-Martial; the Criminal. Court alone
178
SUPREME COURT REPORTS
[1969] 2 S.C.R.
therefore bad jurisdiction under Rule 3 to try the petitioner for the offence
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charged; (iii) that even if the Court-Martial had jnrisdiction, it could not
give a finding of guilt against the petitioner with regard to culpable homicide
not amounting to murder unless the charge was altered anμ amended in
accordance with sub-rule 2 of Rule 50 of the Army Rules, 1954; the
. procedure contemplated by Rule 121 ( 4) of the Army Rules was not
followed by the Court-Martial and .its finding must therefore be held
to be defective; and (iv) that the orders of the1 Chief of the Army Staff
confirming the proceedings of the Court-Martial under s. 164 of the Army
B
Act and of the Central Government dismissing the petitioners appeal
under s. 165 were illegal since no reasons bad been given in support of.
the decisions contained in them.
HELD : Dismissing the pe

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SOM DATI DATIA
v.
UNION OF INDIA AND ORS.
September 20, 1968
[M. HIDAYATULLAH, C.J., J. C. SHAH, V. RAMAS\VAMI,
G. K. MITTER, AND A. N. GROVER, JJ.]
Army Act, 46 of 1950, ss. 125, 126, 164 and !65-First Information
Report of offences by Army Officer and others made to civil policePolice inspector taking some preliminary steps then stopping investigation
at the request of Army authorities-Area Commander immediately appointing Court of Inquiry to investigate-After trial by Court Martwl
accused convicted of offences under ss. 304 and 149 I.P.C.-Whether
Court Martial or ordinary criminal court had jurisdiction
to try the
case.-When Rules 3 and 5 of Rules framed under s. 549 Cr. P.C.
applicable.-If reasons required to be given by G.0.C. while deciding
petition under s. 164 and b,v the Central Government while deciding
appeal urtder s. 165-Army Rules, 1954, ss. 50(2) and !21(4)-When
attracted.
.
The petitioner, a Second Lieutenant in the army, was involved in a
quarrel between two groups of soldiers on September 1, 1965 which led
to an altercation and tbe stabbing and death of a soldier. On September
2, 1965, the matter was reported to tbe Civil Police at the local police
station. The Inspector of Police inspected the place of occurence on
the same day, seized certain exhibits produced by an Army Officer, held
an inquest on the dead body of the deceased soldier and sent it for postmortem examination through a police constable.
Later on the same day,
he stopped further investigation as the Army Officer incharge wanted tbe
case to be handled by the Military authorities.
On September 2, 1965, a Court of Inquiry under tbe provisions of
Ch. VI of th<l Army Rules was ordered by the Commander for the area.
After the Court of Inquiry had
concluded its
proceedings, a Court
Martial was constituted by an order dated
August 11, 1966, by tbe
General Officer Commanding for the area to try the petitioner and other
accused persons. The Court-Martial came to the finding that the petitioner was guilty of culpable homicide not amounting to murder, and
that he was a member of an unlawful assembly; it sentenced him to
cashiering and six years rigorous imprisonment.
The petitioner filed a
petition under section 164 of the Army Act, but this was dismissed
by the confirming authority and the finding and sentence of the CourtMaterial was confirmed. The petitioner's appeal under section 165 of
the Army Act to the Central Government was also dismissed.
In the present petition under Article 32 of tbe Constitution,
the
petitioner sought a writ of certiorari to quash the
proceedings of tbe
Court-Martial. It was contended on his
behalf
(i) tbat the CourtMartial had no jurisdiction to try and convict him of offences under
ss. 304 and 149 I.P.C. having regard to the mandatory provisions of s. 125
Of the Army Act and having also regard to the fact that the Army Officer
incharge had in the first instance decided to hand over the matter for investigation to the Civil Police; (ii) that no notice was given by the Commanding Officer to the Magistrate under Rule 5 of the Rules framed by
the Central Government under s. 549 of the Criminal Procedure Code, that
the petitioner should be tried by a Court-Martial; the Criminal. Court alone
178
SUPREME COURT REPORTS
[1969] 2 S.C.R.
therefore bad jurisdiction under Rule 3 to try the petitioner for the offence
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charged; (iii) that even if the Court-Martial had jnrisdiction, it could not
give a finding of guilt against the petitioner with regard to culpable homicide
not amounting to murder unless the charge was altered anμ amended in
accordance with sub-rule 2 of Rule 50 of the Army Rules, 1954; the
. procedure contemplated by Rule 121 ( 4) of the Army Rules was not
followed by the Court-Martial and .its finding must therefore be held
to be defective; and (iv) that the orders of the1 Chief of the Army Staff
confirming the proceedings of the Court-Martial under s. 164 of the Army
B
Act and of the Central Government dismissing the petitioners appeal
under s. 165 were illegal since no reasons bad been given in support of.
the decisions contained in them.
HELD : Dismissing the petition :
(i) Merely because the First Information Report was lodged with
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the civil police on September 2 and the Inspector of Police inspected
the place of occurrence, seized certain exhibits and held an inquest on
the body of the deceased, it could not reasonably be said that there was
a decision of the competent military authority under s. 125 of the Army
Act to hand over the inquiry to the criminal court On the other band
the action of the General Officer Commanding the area, who was
the
<:<>mpetent authority under s. 125 constituting the Court of Inquiry on
September 2, 1965 indicates that there was a decision taken under s. 125
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.that the proceedings should be instituted before the Court-Martial, [184 HJ
(ii) Rule 3 of the Rules framed by the Central Government under
·s. 549 Criminal P .C. only applies to a case where the police has complet-
·ed the investigation and the accused is brought before the Magistrata
.after submission of a charage-sheet. The provisions of Rule .3 cannot
be invoked in the present case where the police had merely started investigation against a person subject to military law.
The situation con1emplated by Rule 5 had n.ot arisen and the requirements of that rule
were not attracted. Furthermore, Regulation 527 of the Defence Services Regulations itself provides that in cases of unnatural death, infor ..
rnation shc>Uld be given under s. 174 Criminal Procedure Code te> the
·Civil authorities. The action of the Army Officer in sending information to the civil pOlice was merely in accordance with the provisions of
this particular Regulation. [187 DJ
(iii) There was no necessity for amending the charge by the CourtMartial under Rule 50(2) because that sub-rule only relates to an alteration of charge before the examination of
witnesses.
The
CourtMartial had also not contravened the provisions of Rule' 121 ( 4) because
that sub-rule was not attracted in the present case.
On the contrary, the
finding of the Court-Martial was justified in view of the language di
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s. 139(6) of the Army Act. [188 HJ
G
(iv) There is no express obligation imposed by s. 164· or by s. 165
of the Army Act on the confirming authority or upon the Central Government to give reasons in support of its decision to con.firm the proceedings of the Court-Martial. No other Section of the Act or any Rule
had been shown from which a necessary implication could be drawn that
such a duty is cast upon the Central Government or upon. the confirming authority.
Furthermore, there was no force in the contention that
1here is any general principle or any rule of natural justice that a statu1ory tribunal should always and in every case give reasons in support
.of its decision. [190 H; 192 A-Bl
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SOM DATT v. UNION (Ramaswami, !.)
179
Rex. v. Northumberland Compensation Appeal Tribunal,
(1952]
1
K.B. 338, considered.
ORIGINAL JURISDICTION: Writ Petition No. 118 of 1968.
Petition under Art. 32 of the Constitution of India for enforcement of the fundamental rights.
B. Datta, for the petitioner.
C. K. Daphtary, Attorney-General, B. D. Sharma and R. H.
Dhebar, for respondents Nos. 1 to 5 .
The Judgment of the Court was delivered by
Ramaswami, J. In this case the petitioner has obtained a
rule from this Court asking the respondents to show cause why
a writ in the nature of certiorari should not be issued under Art.
32 of the Constitution for calling up and quashing the proceedings before the General Court Martial No. JAG 26/66-67 I AA
of 1965 from the Judge Advocate General (Army branch), Artny
Headquarters whereby the petitioner was found guilty of charges
under s. 304 and s. 149 of the Indian Penal Code and sentenced
to a period of 6 years rigorous imprisonment and cashiering.
Cause has been shown by the Attorney-General on behalf of the
Union of India and other respondents to whom notice of the rule
was ordered to be given.
The petitioner was commissioned in the Indian Artny m
February, 1964 and was posted as Second Lt. (E.C.-55461) and
was attached to 397 Engineering Construction Equipment Company in December, 1964.
In August, 1965 the petitioner was
posted as a Quarter Master and was transferred to Madras along
with the Company.
It appears that Wednesday, September 1,
1965 was to be celebrated as the Raising Day of the Unit when
Games and Sports, entertainment and Bara Khana
(evening
dinner) were to be arranged. In this celebration, all officers and
other ranks of the Unit had to take some part and a number of
other Army officers were to be received and entertained on behalf
of the Unit. At the variety entertainment Punjabis and Garhwalis
took part and each party was given free one bottle of rum. But
it is alleged that the Purbias were not given an opportunity to put
up their show and were not given free a bottle of rum. They were
consequently aggrieved for this reason.
The variety entertainment concluded at about 1900 hours at the end of which rum
was issued to the jawans. The bara khana was to commence at
2000 hours. As there was a delay in the assembly of the men
at the dining hall, Maj. Agarwal sent the petitioner to the lines
to find ?~t the cause for t~e delay ~nd to get the men quickly.
The petitioner went to the Imes and 1t is alleged that the accused
used filthy language while addressing the men.
Some of the
Purbias including the deceased Spr. Bishwanath Singh protested
180
SUPREME COURT REPORTS
[1969] 2 s.C.R.
against the use of such language. Though the petitioner expressed
regret, the men were not satisfied.
A few of the Sikh jawans,
including some of the accused, sided with the petitioner and there
was a heated argument between the two groups on their way to
the dining hall.
The bara khana was served in two sittings.
The
petitioner did not join the first sitting but joined the second sitting
which consisted of about 30 to 40 men. The quarrel which started
between the two groups earlier was continued in the dining hall.
The lights went off for a few minutes and when the lights came
on, it was observed that a scuffle was going on in the middle of
the hall between the petitioner and other Sikh jawans and the
deceased. As the scuffle progressed, the deceased was surrounded
by petitioner No. 1 and the other accused persons and the group
moved towards the service counter.
The lights went off for a
second time.
In the darkness tables, benches and plates were
hurled about. Most of the men ran out of the dining hall. It is
alleged that accused No. 6 was seen stabbing with a knife Spr.
Bishwanath Singh and the latter slwnped to the ground. Accused
No. 3 hit him with a soot rake. When the lights came on after
a few minutes, the petitioner and the other accused were found
standing near the place where Spr. Bishwanath Singh had fallen.
Consequently, Maj. Agarwal arrived at .the scene and took Spr.
Bishwanath Singh to the MI room where he was found dead by
Maj. Koley, the Medical Officer. It appears that on September 2,
1965 at about 0400 hours the matter was reported to the Civil
Police by Second Lt. F. D. A. Jesudian. A case under s. 302,
Indian Penal Code was registered as crime No. 726/ 1965 at
Pallavaran Police Station, Madras. Sri Bashyam, Inspector of
Police reached the place of occurrence at 0430 hours on the same
date.
He inspected the dining hall and seized certain exhibits
produced by Maj. Agarwal.
He also held inquest on the deadbody of Spr. Bishwanath Singh and sent the dead-body for postmortem examination to the mortuary, Madras General Hospital
through Police Constable No. 1407, Ratnam. He sent the exhibits seized to the State Forensic Science Laboratory, Madras for
chemical examination. At 1330 hours on the same date Sri
Bashyam stopped further investigations as Lt. Col. Bajpai wanted
the case to be handled by the Military authorities.
On September 2, 1965, a Court of Enquiry under the provisions of Ch. VI. of the Army Rules was ordered by the Commander, Mysore and Kerala Sub-Area. After the Court of Inquiry had
concluded the proceedings, a Court Martial was constituted by an
order, dated August 11, 1966 by Major-General. S. J. Sathe,
General Officer Commanding, Madras, ·Mysore and Kerala area
to try the petitioner and other accused persons. The Court Martial
assembled on August 18, 1966 and conducted its proceedings on
several subsequent dates. In suopcrt of the case of the prosecuA
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SOM DATT v. UNION (Ramaswami, !.)
181
tion, 30 witnesses were examined.
At the Court Martial, the
petitioner was defended by an Advocate of the Madras High Court,
Sri Natarajan and he was also assisted by a friend of the accused
Major T. B. Narayanan. At the trial the Counsel for the petitioner
cross-examined the witnesses for the prosecution and after the
prosecution evidence was concluded, the petitioner said that he
did not intend to call any defence witnesses. The petitioner, however, submitted a written statement.
He was also put various
questions by the Court Martial to which he replied. After the
Counsel for the defence was heard and after the Judge-Advocate
summed up the case, the Court Martial came to the finding that
the petitioner was guilty of culpable homicide not amounting to
murder and that he was a member of an unlawful assembly and
the petitioner was sentenced to cashiering and 6 years rigorous
imprisonment.
Against the decision of the Court Martial the
petitioner field a petition under s. 164 of the Army Act but the
petition was dismissed by the confirming authority and the finding
and sentence by the Court Martial was confirmed so far as the
petitioner was concerned. The petitioner thereafter filed an appeal
under s. 165 of the Army Act to the Central Government but the
appeal was dismissed.
The first question to be considered in this case is whether the
Court Martial had jurisdiction to try and convict the petitioner
of the offences under ss. 304 and 149, Indian Penal Code.
It
was contended by Mr. Dutta on behalf of the petitioner that the
Court Martial had no jurisdiction having regard to the mandatory
provisions contained in s. 125 of the Army Act and having also
regard to the fact that Maj. Agarwal had, in the first instance,
decided to hand over the matter for investigations to the Civil
Police. In order to test whether this argument is valid it is necessary to scrutinize the provisions of the Army Act in some detail.
Section 2 of the Army Act, 1950 (Act 46 of 1950), hereinafter
called the 'Army Act', describes the different categories of army
personnel who are subject to the Army Act. Section 3 (ii) defines
a "civil offence" to mean "an offence which is triable by a criminal
court"; s. 3(vii) defines a "court-martial" to mean "a courtmartial held under this Act"; s. 3 (viii) defines "criminal court"
to mean "a court of ordinary criminal justice in any part of India,
other than the State of Jammu and Kashmir"; s. 3 (xvii) defines
"offence" to mean "any act or omission punishable under this Act
and includes a civil offence"; and s. 3 (xxv) declares that "all
words and expressions used but not defined in this Act and defined
in the Indian Penal Code shall be deemed to have the meanings
assigned to them in that Code." Chapter VI is comprised of ss. 34
to 70. The heading of the Chapter is "Offences". As we have
already noticed, the word "offence" is defined to mean not only
any act or omission punishable under the Army Act, but also a
lSZ
SUPREME COURT REPORTS
(1969] 2 S.C.R.
civil offence.
Sections 34 to 68 define the offences against the
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Act triable by court-martial and also iudicate the punishments for
the said offences. Section 69 states as follows :
"69. Subject to the provisions of section 70, any
person subject to this Act who at any place in or beyond
India commits any civil offence shall be deemed to be
guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be tried by a
court-martial and, on conviction, be punishable as
follows, that is to say,-
(a) if the offence is one which would be punishable under any law in force in India with death or with
transportation, he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by
the aforesaid law and such less punishment as is in this
Act mentioned; and
(b) in any other case, he shall be liable to suffer
any punishment, other than whipping, assigned for the
offence by the law in force in India, or imprisonment
for a term which may extend to seven years, or such
less punishment as is in this Act mentioned."
Section 70 provides :
"A person subject to this Act who commits an
offence of murder against a person not subject to military, naval or air force law, or of culpable homicide
not amounting to murder against such a person or of
rape in relation to such a person, shall not be deemed
to be guilty of an offence against this Act and shall
not be tried by a court-martial, unless he commits any
of the said offences--
(a) while on active service, or
(b) at any place outside India, or
( c) at a frontier post specified by the Central
Government by notification in this behalf.
Explanatlon.-In this section and in section 69,
"India" does not include the State of Jammu and
Kashmir."
Shortly stated, under this Chapter there are three categories of
offences, n_amely, ( 1) offences c_omJ?litted by a person subject to
the Act triable by a court-martial m respect whereof specific
punishments have been assigned; (2) civil offences committed by
the said person at any place· in or beyond India, but deemed to
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SOM DATT v. UNION (Ramaswami, J.)
18 3
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be offences committed under the Act and, if charged under s. 69
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of the Act, triable by a court-martial; and (3) offences of murder
and culpable homicide not amounting to mmder or rape committed by a person subject to the Act against a person not subject
to the military law.
Subject to a few exceptions, they are not
triable by court-martial, but are triable only by ordinary criminal
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courts.
The legal position therefore is that when an offence is
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for the first time created by the Army Act, such as those created
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by ss. 34, 35, 36, 37 etc., it would be exclusively triable by a
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court-martial; but where a civil offence is also an offence under
the Act or deemed to be an offence under the Act, both an ordinary criminal court as well as a court-martial would have jurisdicc tion to try the person committing the offence. Such a situation is
visualized and provision is made for resolving the conflict under
ss. 125 and 126 of the Army Act which state :
"125. When a criminal court and a court-martial
have each jurisdiction in respect of an offence, it shall
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be in the discretion of the officer commanding the army,
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army corps, division or independent brigade in which
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the accused person is serving or such other officer as
may be prescribed to decide before which court the
proceedings shall be instituted, and, if that officer decides
that they should be instituted before a court-martial, to
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direct that the accused person shall be detained in miliE
tary custody.
126. (1) When a criminal court having jmisdiction
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is of opinion that proceedings shall be instituted before
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itself in respect of any alleged offence, it may, by written
notice, require the officer referred to in section 125 at
his option, either to deliver over the offender to the
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nearest magistrate to be proceeded against according to
law, or to postpone proceedings pending a reference to
the Central Government.
(2) In every such case the said officer shall either
deliver over the offender in compliance with the requi_,.
sition or shall forthwith refer the question as to the
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court before which the proceedings are to be instituted
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for the determination of the Central Government, whose
order upon such reference shall be final."
Section 125 presupposes that in respect of an offence both a,
criminal court as well as a court-martial have each concurrent
jurisdiction.
Such a situation can arise in a case of an act or
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omission punishable both under the Army Act as well as under
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any law in force in India. It may also arise in the case -of an
offence deemed to be an offence under the Army Act. Under the
scheme of the two sections, in the first instance, it is left to the-
184
SUPREME COURT REPORTS
[1969] 2 S.C.R.
discretion of the officer mentioned in s. 125 to decide before
which court the proceedings shall be instituted, and, if the officer
.decides that they should be instituted before a court-martial, the
accused person is to be detained in military custody; but if a
criminal court is of opinion that the said offence shall be tried
before itself, it may issue the requisite notice under s. 126 either
to deliver over the offender to the nearest magistrate or to postpone
the proceedings pending a reference to the Central Government.
On receipt of the said requisition, the officer may either deliver
·Over the offender to the said court or refer the question of proper
court for the determination of the Central Government whose
order shall be final.
These two sections of the Army Act provide a satisfactory machinery to resolve the conflict of jurisdiction,
having regard to the exigencies of the situation in any particular
.case.
In the present case, we are unable to accept the contention of
the petitioner that merely because Maj. Agarwal had directed that
the First Information Report should be lodged with
the Civil
Police through Second Lt. Jesudian, it means that the competent
authority under s. 125 of the Army Act had exercised its discretion and decided that the proceedings should be instituted before
the criminal court.
The reason is that Maj. Agarwal was not
the competent authority under s. 125 of the Army Act to exercise
the choice under that section. The competent authority was the
General Officer Commanding, Madras, Mysore and Kerala Area
and that authority had decided on September 2, 1965 that the
matter should be tried by a Court-Ma1tial and not by the Criminal
Court.
On the same date, the General Officer Commanding,
Madras, Mysore & Kerala Area had ordered the constitution of
the Court-Martial under Ch. VI of the Army Rules to investigate
into the case of the petitioner and the other accused persons.
There was admittedly no direction by the Commander of that
area to hand over the proceedings to the Criminal Court. It is
true that Maj. Agarwal had directed a report to be lodged with
the Civil Police at 4.00 a.m. on September 2, 1965. It is also
true that Sri Bashyam, Inspector of Police had inspected the place
of occurrence, seized certain exhibits and held inquest of the deadbody of Spr. Bishwanath Singh.
Sri Bashyam has admitted that
he stopped investigations on the same date as directed by the
military authorities. Merely because Sri Bashyam conducted the
inquest of the dead-body of Spr. Bishwanath Singh or because he
seized certain exhibits and sent them to the State Forensic Science
:(.,aboratory, Madras for chemical examination,
it cannot
be
_reasonably argued that there was a decision of the competent military authority under s. 125 of the Army Act for handing over
the inquiry to the Criminal Court. On the other hand, the action
·of the General Officer Commanding in constituting the Comt of
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SOM DATT v. UNION (Ramaswami, J.)
185
Inquiry on September 2, 1965 indicates that there was a decision
taken under s. 125 of the Army Act that the proceedings should
be instituted before the Court-Martial.
The second branch of the argument of the petitioner is based
upon s. 549 of the Criminal Procedure Code which states : ·
"(1) The Central Government may make rules
consistent with this Code and the Army Act, the Naval
Discipline Act and the Indian Navy (Discipline) Act,
1934, and the Air Force Act and any similar law for
the time being in force as to the cases in which persons
subject to military, naval or air force law, shall be tried
by a Court to which this Code· applies, or by Courtmartial, and when any person is brought before a
Magistrate and charged with an offence for which he is
liable, to be tried either by a Court to which this code
applies or by a Court-martial, such Magistrate 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 tried by Court-martial.
"
The Central Government has made rules in exercise of powers
conferred on it under this section. The Rules were published at
p. 690 in s. 3 of Part Il of the Gazette of India, dated April 26,
1962, under Ministry of Home Affairs, S.R.0. 709, dated April
17, 1962. Rules 3, 4, 5 and 8 are to the following effect:
"3. Where a person subject to military, naval or
Air Force law is brought before a Magistrate arid
charged with an offence for which he is liable to be tried
by a court-martial, such Magistrate shall not proceed
to try such person or to issue orders for his case to be
referred to a Bench, oi: to inquire with a view to his
commitment for trial by the Court of Sessions or the
High Court for ·any offence triable by such Court, unless
(a) he is of opinion, for reasons to be recorded, that
he should so proceed without being moved thereto by competent military, naval or Air Force
authority, or
(b) he is moved thereto by such authority."
"4. Before proceeding under clause (a) of rule 3
the Magistrate shall give written notice to the Com2Sup CI/69-13
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(1969] 2 S.C.R
manding Officer of the accused and until the expiry of a
period of seven days from the date of the service of
such notice he shall not-
( a) convict or acquit the accused under sections 243,
245, 24 7 or 248 of the Code of Criminal Procedure, 1898 (V of 1898), or hear him in his
defence under section 244 of the said Code; or
(b) frame in writing a charge against the accused
under section 254 of the said Code; or
( c) make an order committing the accused for trial
by the High Court or the Court of Sessions
under section 213 of the said Code."
"5. Where within the period of seven days mentioned in rule 4, or at any time thereafter before the
Magistrate has done any act or issued any order
referred to in that rule, the Commanding Officer of the
accused or competent military, naval or Air Force
authority, as the case may be, gives notice to' the
Magistrate that in the opinion of such authority, the
accused should be tried by a court-martial, the Magistrate shall stay proceedings and if the accused is in his
power or under his control, shall deliver him, with the
statement prescribed in sub-section ( 1) of section 549
of the said Code to the authority specified in the said
sub-section."
"8. Notwithstanding anything in the foregoing rules,
where it comes to the notice of a Magistrate that a
person subject to military, naval or Air Force law has
committed an offence, proceedings in respect of which
ought to be instituted before him and that the presence
of such person cannot be procured unless through military, naval or Air Force authorities, the Magistrate may
by a written notice require the Commanding Officer of
such person either to deliver such person to a Magistrate to be named in the said notice for being proceeded
against according to Jaw, or to stay the proceedings
against such person before the court-martial, if since
instituted, and to make a reference to the Central
Government for determination as to the Court before
which proceedings should be instituted."
It was argued on .behalf of the petitioner that there was no
notice given by the Commanding Officer to the Magistrate under
Rule 5 that the petitioner should be tried by a Court-Martial and
hence the criminal court alone had jurisdiction under Rule 3 to
conduct proceedings against the petitioner for
the offences
charged. In our opinion, the argument on behalf of the petitioner
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SOM DATT v. UNION (Ramaswami, J.)
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is mig..conceived. The rules framed by the Central Gove=ent
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under s. 549 of the Criminal Procedure Code apply to a case
where the proceedings against the petitioner have already been
instituted in an ordinary criminal court having jurisdiction to try
the matter and not at a stage where such proceedings have not
been instituted. It is clear from the affidavits filed in the present
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case that the petitioner was not brought before the Magistrate and
charged with the offences for which he was liable to be tried by
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. the Court-Martial within the meaning of Rule 3 and so the situa-
•
tion contemplated by Rule 5 has not arisen and the requirements
of that rule are therefore not attracted. It was pointed out by
Mr. Dutta that after the First Information Report was lodged at
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Pallavaran police station a copy thereof should have been sent to
the Magistrate. But that does not mean that the petitioner "was
brought before the Magistrate and charged with the offences"
within the meaning of Rule 3.
It is manifest that Rule 3 only
applies to a case where the police had completed investigation and
the accused is brought before the Magistrate after submission of
<
a charge-sheet. The provisions of this rule cannot be invoked in
D
a case where the police had merely started investigation against a
person subject to military, naval or air force law.
With regard
to the holding of the inquest of the dead-body of Spr. Bishwanath
Singh it was pointed out by the Attorney-General that Regulation
527 of the Defence Services Regulations has itself provided that
•
in cases of unnatural death that is death due to suicide, violence
E
or under suspicious circumstances information should be given
under s. 17 4, Criminal Procedure Code to the Civil authorities,
and the conduct of Maj. Agarwal in sending informati9n to the
Civil Police was merely in accordance with the provisions of this
particular regulation.
For these reasons we hold that Counsel
for the petitioner is unable to make good his argument on this
F
aspect of the case.
We proceed to consider the next argument presented on behalf
•
of the petitioner, namely, that even if the Military Court-Martial
had jurisdiction, it could not give a finding of guilt against the
petitioner with regard to culpable homicide not amounting to
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murder unless the charge was altered and amended in accordance
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with sub-rule 2 of Rule 50 of the Army Rules, 1954. It was also
contended on behalf of the petitioner that the procedure contemplated by Rule 121 ( 4) of the Army Rules was not followed by
the Court-Martial and the finding of the Court-Martial. must
therefore be held to be defective.
In our opinion, there is no
H
warrant or justification for this argument since rules 50 (2) and
l 21 ( 4) have no application to the present case. Rules 50 and
121 provide as follows :
-'-f.
"50. Amendment of charge.-(1) At
any time
during the trial, if it appears to the court that there is
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SUPREME COURT REPORTS
[1969] 2 S.C.R.
any mistake in the name or description of the accused
in the charge-sheet, the court may amend the chargesheet so as to correct that mistake.
(2) If, on the trial of any charge, it appears to the
court at any time before it has begun to examine the
witnesses, that in the interests of justice any addition to,
omission from, or alteration in, the charge is required,
it may report its opinion to the convening authority, and
may adjourn, and the convening authority may either
direct the new trial to be commenced, or amend the
charge, and order the trial to proceed with such amended
charge after due notice to the accused."
"121. Form and record of finding.-(!) The finding on every charge upon which the accused is arraigned
shall be recorded, and excep~ as mentioned in these
rules, such finding shall be recorded simply as a finding
of "Guilty", or of "Not guilty".
(2) When the court is of opinion as regards any
charge that the facts proved do not disclose the offence
charged or any offence of which he might under the
Act legally be found guilty on the charge as laid, the
court shall acquit the accused of that charge.
( 3) When the court is of opinion as regards any
charge that the facts found to be proved in evidence
differ materially from the facts alleged in the statement. of particulars in the charge, but are nevertheless
sufficient to prove the offence stated· in the charge, and
that the difference is not so material as to have prejudiced the accused in his defence, it may, instead of
a finding of ".Not guilty" record a special finding.
( 4) The speci:il finding may
find
the
accused
guilty on a charge subject to the statement of exceptions
or variations specified therein.
( 5) The court shall not find the accused guilty
on more than one of two or more charges laid down
in the alternative, even if conviction upon one charge
necessarily connotes guilt upon the alternative charge or
charges."
In the present case there was no necessity for amending the
charge by the Court-Martial under Rule 50 (2) because that subrule only relates to an alteration of charge before the examination
of witnesses.
The Court.Martial has also not contravened the
provisions of Rule 121 ( 4) because that sub-rule is not attracted
to the present case.
On the contrary, the finding of the Court
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SOM DATT v. UNION (Ramaswami, J.)
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Martial is justified in view of the language of s. 139(6) of the
Army Act which states :-
"139. (6) A person charged before a court-martial
with an offence punishable under section 69 may be
found guilty of any other offence of which he might
have been found guilty if the provisions of the Code of
Criminal Procedure, 1898, were applicable."
We accordingly reject the argument of learned Counsel for the
petitioner on this part of the case.
Finally it was contended on behalf of the petitioner that the
order of the Chief of the Army Staff confirming the i;roceedings
of the Court-Martial under s. 164 of the Army Act was illegal
since no reason has been given in support of the order by the
Chief of the Army Staff. It was also pointed out that the central
Govermnent has also not given any reasons while dismissing the
appeal of the petitioner under s. 165 of the Army Act and that
the order of the Central Government must therefore be held to
be illegal and ultra vires and quashed by the grant of a writ in
the nature of certiorari.
In this context it is necessary to reproduce ss. 164 and 165 of the Army Act which are to the
following effect :
"164. (1) Any person subject to this Act
who
considers himself aggrieved by any order passed by any
court-martial may present a petition to the officer or
authority empowered to confirm any finding or sentence
of such court-martial, and the confirming authority may
take such steps as may be considered necessary to
satisfy itself as to the correctness, legality or propriety
of the order passed or as to the regularity of any
proceeding to which the order relates.
(2) Any person subject to this Act who considers
himself aggrieved by a finding or sentence of any court-
~artial which has been confirmed, may present a petition to the Central Government, the Chief of the Army
Staff or any prescribed officer superior in command to
the one who confirmed such finding or sentence, and
the Central Government, the Chief of the Army Staff
or other officer, as the case may be, may pass such
order thereon as it or he thinks fit."
"165. The Central Government, the Chief of the
Army Staff or any prescribed officer may annul the
proceedings of any court-martial on the around that
they are illegal or unjust."
"'
In contrast to these sections, s. 162 of the Army Act expressly
provides that the Chief of the Army Staff "for reasons based on
190
SUPREME COURT REPORTS
[1969] 2 S.C.R.
the merits of the case" set aside the proceedings or reduce the
sentence to any other sentence which the court might have
passed. Section 162 reads as follows :
"The proceedings of every summary court-martial
shall without delay be forwarded to the officer commanding the division or brigade within which the trial
was held, or to the prescribed officer; and such officer, or
the Chief of the Army Staff, or any officer empowered
in this behalf by the Chief of the Army Staff, may, for
reasons based on the merits of the case, but not any
merely technical grounds, set aside the proceedings or
reduce the sentence to any other sentence which the
court might have passed."
It is necessary in this context to refer to Rules 61 and 62 of the
Army Rules which prescribe the standard form of recording the
opinion of the Court Martial on each charge and of announcement of that finding.
These rules omit all mention of the evidence or the reasoning by which the finding is reached by the
Court Martial. Rules 61 and 62 are to the following effect :
"61. Consideration of
fmding.-(1) The
court
shall deliberate on its finding in closed court in the
presence of the judge-advocates.
(2) The opinion of each member of the court as
to the finding shall be given by word of mouth on each
charge separately.
"62. Form, record and announcement
of
finding.-( 1) The finding on every charge upon which
the accused is arraigned shall be recorded and, except
as provided in these rules, shall be recorded simply as
a finding of 'Guilty' or of 'Not guilty'.
(10) The finding on each charge shall be announced forthwith in open court as subject to confirmation."
In the present case it is manifest that there is no express
obligation imposed by s. 164 or by s. 165 of the Army Act on
/the confirming authority or upon the Central Government to
give reasons in support of its decision to confirm the proceedings
of the Court Martial.
Mr. Dutta has been unable to point out
any other section of the Act or any of the rule made therein from
which necessary implication can be drawn that such a duty is
cast upon the Central Government or upon the confirming authority.
Apart from' any requirement imposed by the statute or
statutory rule either expressly or by necessary implication, we
are unable to accept the contention of Mr. Dutta that there is
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SOM DATT v. UNION (Ramaswami, J.)
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any general principle or any rule of natural jus~ce that a stat1;1tory tribunal should always and in every case give reasons m
support of its decision.
In English law there is no general: rule apart fro~ the statutory requirement that the statutory tnbunal should give reasons
for its decision in every case. In Rex v. Northumberland Compensation Appeal Tribunal( 1) it was decided for the first time
by the Court of Appeal that if there was a "spe~g. order" a
writ of certiorari could be granted to quash the dec!Slon of an
inferior court or a statutory tribunal on the ground of error on
the face of record. In that case, Denning, L. J. pointed out that
the record must at least contain the document which initiates the
proceedings; the pleadings, if any; and the adjudication, but not
the evidence, nor the reasons, unless the tribunal chooses to incorporate them in its decision. It was observed that if the tribunal
did state its reasons and those reasons were wrong in law, a writ
of certiorari might be granted by the High Court for quashing
the decision. In that case the statutory tribunal under the
National Health Service Act, 1946 had fortunately given a
reasoned decision; in other words, made a 'speaking order' and
the High Court could hold that there was an error of law on the
face of the record and a writ of certiorari may be granted for
quashing it.