# UNION OF INDIA AND ANR v. CHARANJIT S. GILL AND ORS

- **Citation:** [2000] 3 S.C.R. 245
- **Court:** Supreme Court of India
- **Decided:** 2000-04-24
- **Case number:** Civil Appeal No. 2865 of 2000
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-and-anr-v-charanjit-s-gill-and-ors-17331
- **Pages:** 30

## Headnote

UNION OF INDIA AND ANR.
A
v.
CHARANJIT S. GILL AND ORS.
APRIL 24, 2000
[G.B. PATTANAIK, RP. SETHI AND SHIVARAJ V. PATIL, 11.]
B
Anny Act, 1950-Sections 39( 1) & 63-Anny Rules, 1954-Rules 39, 40
& 102-Court Martial pmceedings-Judge-Advocate lower in rank than the
accused officer-Whether permissible-Held, Judge-Advocate though not
forming part of the court, yet being an integral part of it should not be an
C
officer of a rank lower than the officer facing the trial, unless the officer of
such rank is not available and the opinion regarding non-availability is
specifically recorded in the convening order.
Rules 39, 40(2) 102 & 103-Judge-Advocate-Disqualification of-In
court martial proceedings-An officer who is disqualified to be part of court
martial is also disqualified fmm acting and sitting as Judge-Advocate at court
martial-If a fit person is not appointed as a Judge-Advocate, the proceedings
of the court cannot be held to be valid.
Rules 39, 40 & 102--Notes appended to the rules-Whether can have the
effect of rules or regulations-Held, No-No power is conferred on the Central
Government for issuing notes or issuing orders which would have the effect of
rules made under the Army Act, 1950.
Court Martial-Are not courls in the strict sense of the term-The proceedings before the court mania[ are more administrative in nature and of
executive type.
General Court Martial (GCM) was convened to try the respondent,
wherein he was found guilty and hence subjected to sentence. The ConfirmD
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ing Authority, to whom the proceedings were transmitted for confirmation,
found the sentence to be inadequate and the ref ore directed the GCM to
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reconsider the matter. GCM, after reconsidering the matter, revoked its
"°.
earlier order and passed fresh order dismissing the respondent, which was
also made subject to confirmation.
Respondent filed Writ Petition before High Court against the order
of the GCM dismissing him. During pendency of the Writ Petition the order
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246
SUPREME COURT REPORTS
[2000] 3 S.C.R.
of the GCM was confirmed and subsequently the writ petition was dismissed by the Single Judge.
Respondent preferred appeal before the Division Bench of the High
Court, which was allowed on the ground that the Judge Advocate being
lower in rank to the accused officer, should not be able to take part in GCM.
In appeal to this Court, the appellant contended that the JudgeAdvocate being only a Legal Adviser and not a member of the Court
Martial, his rank is not material for being appointed as such to assist the
GCM; that under the Army Act, Rules and Regulations made thereunder,
there was no obligation for the appellants to appoint a Judge-Advocate who
should have been senior in rank to the accused; that there are separate
provisions under the Act, Rules and Regulations for members and JudgeAdvocate at GCM laying down their eligibility, disqualifications, duties,
etc.; that as the officers of the same or higher rank than the officers facing
trial are not available, the interpretation rendered by the Division Bench
would render the holding of Court Martials impossible; and that since Note
2 at the foot of Rule 102, having the force of law has been followed by the
army authorities and thus disqualifications of a Judge-Advocate in a Court
Martial are referable to Rule 39(2) alone which cannot be further stretched
to Rule 40(2).
The Respondent contended that the combined reading of Rules 39, 40
and 102 makes it clear that if the Judge-Advocate is lower than the accused
facing trial in GCM, the proceedings are liable to b~ quashed; that though,
technically the Judge-Advocate is an adviser to the prosecution, yet in .
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practice he wields a greatinfluence upon the verdict of the court in view of
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the powers conferred upon him under the Act and the Rules; and that the
. .jtNotes not being passed by the Parliament and having not vetted even by the
Ministry of Law and Justice or by the Law Commission, cannot be held to
be law.
"'
Dismis

## Text

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UNION OF INDIA AND ANR.
A
v.
CHARANJIT S. GILL AND ORS.
APRIL 24, 2000
[G.B. PATTANAIK, RP. SETHI AND SHIVARAJ V. PATIL, 11.]
B
Anny Act, 1950-Sections 39( 1) & 63-Anny Rules, 1954-Rules 39, 40
& 102-Court Martial pmceedings-Judge-Advocate lower in rank than the
accused officer-Whether permissible-Held, Judge-Advocate though not
forming part of the court, yet being an integral part of it should not be an
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officer of a rank lower than the officer facing the trial, unless the officer of
such rank is not available and the opinion regarding non-availability is
specifically recorded in the convening order.
Rules 39, 40(2) 102 & 103-Judge-Advocate-Disqualification of-In
court martial proceedings-An officer who is disqualified to be part of court
martial is also disqualified fmm acting and sitting as Judge-Advocate at court
martial-If a fit person is not appointed as a Judge-Advocate, the proceedings
of the court cannot be held to be valid.
Rules 39, 40 & 102--Notes appended to the rules-Whether can have the
effect of rules or regulations-Held, No-No power is conferred on the Central
Government for issuing notes or issuing orders which would have the effect of
rules made under the Army Act, 1950.
Court Martial-Are not courls in the strict sense of the term-The proceedings before the court mania[ are more administrative in nature and of
executive type.
General Court Martial (GCM) was convened to try the respondent,
wherein he was found guilty and hence subjected to sentence. The ConfirmD
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F
ing Authority, to whom the proceedings were transmitted for confirmation,
found the sentence to be inadequate and the ref ore directed the GCM to
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reconsider the matter. GCM, after reconsidering the matter, revoked its
"°.
earlier order and passed fresh order dismissing the respondent, which was
also made subject to confirmation.
Respondent filed Writ Petition before High Court against the order
of the GCM dismissing him. During pendency of the Writ Petition the order
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SUPREME COURT REPORTS
[2000] 3 S.C.R.
of the GCM was confirmed and subsequently the writ petition was dismissed by the Single Judge.
Respondent preferred appeal before the Division Bench of the High
Court, which was allowed on the ground that the Judge Advocate being
lower in rank to the accused officer, should not be able to take part in GCM.
In appeal to this Court, the appellant contended that the JudgeAdvocate being only a Legal Adviser and not a member of the Court
Martial, his rank is not material for being appointed as such to assist the
GCM; that under the Army Act, Rules and Regulations made thereunder,
there was no obligation for the appellants to appoint a Judge-Advocate who
should have been senior in rank to the accused; that there are separate
provisions under the Act, Rules and Regulations for members and JudgeAdvocate at GCM laying down their eligibility, disqualifications, duties,
etc.; that as the officers of the same or higher rank than the officers facing
trial are not available, the interpretation rendered by the Division Bench
would render the holding of Court Martials impossible; and that since Note
2 at the foot of Rule 102, having the force of law has been followed by the
army authorities and thus disqualifications of a Judge-Advocate in a Court
Martial are referable to Rule 39(2) alone which cannot be further stretched
to Rule 40(2).
The Respondent contended that the combined reading of Rules 39, 40
and 102 makes it clear that if the Judge-Advocate is lower than the accused
facing trial in GCM, the proceedings are liable to b~ quashed; that though,
technically the Judge-Advocate is an adviser to the prosecution, yet in .
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practice he wields a greatinfluence upon the verdict of the court in view of
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the powers conferred upon him under the Act and the Rules; and that the
. .jtNotes not being passed by the Parliament and having not vetted even by the
Ministry of Law and Justice or by the Law Commission, cannot be held to
be law.
"'
Dismissing the appeal, the Court
""'
HELD 1.1. The judge-advocate though not forming a part of the
""f·
court, yet being an integral part of it is required to possess all such
qualifications and be free from the disqualifications which relate to the
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appointment of an officer to the court-martial. In other words a judge-
U.0.1. v. C.S. GILL
247
advocate appointed with the court-martial should not be an officer of a
rank lower than that the officer facing the trial unless the officer of such
rank is not (having due regard to the exigencies of public service) available
and the opinion regarding non-availability is specifically recorded in the
convening order. [270-C-D]
1.2. It is true that Judge-Advocate theoretically performs no function
as a judge but it is equally true that he is an effective officer of the court
conducting the case against the accused under the Act. It is his duty to
inform the court of any defect or irregularity in the charge and, in the
constitution of the court or in the proceedings. The quality of the advise
tendered by the Judge-Advocate is very crucial in a trial conducted under
the Act. With the role assigned to him a Judge-Advocate is in a position to
sway the minds of the members of the court-martial as his advise or verdict
cannot be taken lightly by the person composing the court who are admittedly not law knowing persons. [263-H; 264-A-B]
R v. Linzee, (1956) 3 All E.R. and S.N. Mukherjee v. Union of India,
[1990) 40 sec 594, referred to.
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1.3. A combined reading of Rules 39, 40 and 102 suggest that an
officer who is disqualified to be a part of as a Judge-Advocate at the court
martial is also disqualified for acting and sitting as a Judge-Advocate at the
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court martial. It follows, therefore, that if an officer lower in rank than the
officer facing the trial cannot become a part of the court martial, the officer
of such rank would be disqualified from acting as a Judge-Advocate at the
trial before a GCM. Accepting a plea to the contrary, would be invalidating
the legal bar imposed upon the composition of the Court in sub-rule (2) of
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Rule 40. [266-E-F]
1.4. Ha 'fit person' is not appointed as a Judge-Advocate, the proceedings of the court martial cannot be held to be valid and its finding
legally arrived at. Such an invalidity in appointing an 'unfit' person as a
. Judge-Advocate is not curable under Rule 103 of the Rules. Ha fit person
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possessing_requisite qualifications and otherwise eligible to from part of the
General Court Martial is appointed as a Judge-Advocate and ultimately
some invalidity is found in his appointment, the proceeding of the court
martial cannot be declared invalid. A ''fit person" mentioned in Rule 103 is
referable to Rules 39 and 40. [266-A-B]
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[2000] 3 S.C.R.
1.5. The purpose and object of prescribing the conditions of eligibility
and qualification along with desirability of having members of the court
martial of the rank not lower than the officer facing the trial is obvious. The
law makers and the rule framers appear to have in mind the respect and
dignity of the officer facing the trial till guilt is proved against him by not
exposing him to humiliation of being subjected to trial by officers of lower
rank. The importance of the Judge-Advocate as noticed earlier being of a
paramount nature requires that he should be such person who inspires
confidence and does not subject the officer facing the trial to humiliation
because the accused is also entitled to the opinion and services of the JudgeAdvocate. Availing of the services or seeking advise from a personjuniorin
rank may apparently be not possible ultimately resulting in failure of
justice. [266-H; 267-A-B]
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1.6. Sub-rule (2) of Rule 40 itself gives a discretion to the convening
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officer who is authorised 'to appoint a member of the court-martial or
judge-Advocate who is lower in rank than t~e officers facing the trial, if he
is of the opinion that officer of such rank is not (having due regard to the
exigencies of the public service) available, subject to a further condition
that such opinion is required to be recorded in the convening order. It
implies, therefore, that the provisions of sub-rule (2) of Rule 40 are not
mandatory because they, give a discretion to appoint a member of the court
martial or a Judge-Advocate who is lower in rank than the officer facing
the trial under the circumstances specified. Rule 39, admittedly, has no
exception and is thus mandatory.[267-D-E]
2.1. When Rule 39 read with Rule 40 imposes a restriction upon the
Government and a right in favour of the person tried by the court-martial
to the effect that a person lower in rank shall not be a member of the court
martial or be a Judge-Advocate, the insertion of Note 2 to Rule 102 cannot
be held to have the effect of a Rule or Regulation. It appears that the 'notes'
have been issued by the authorities of the Armed Forces for the guidance of
the officers connected with the implementation of the provisions of the Act
and the Rules and not with the object of supplementing or superseding the
statutory Rules by administrative instructions. (270-A-C]
2.2.•N o power is conferred upon the Central Government of issuing
Notes or issuing orders could have the effect of the Rules made under the
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Act. Rules and Regulations or administrative instructions can neither be
.,.,
U.0.1. v. C.S. GILL
249
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supplemented nor substituted under any provision of the Act or the Rules
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and Regulations framed thereunder. The administrative instructions issued
or the Notes attached to the Rules which are not referable to any statutory
authority cannot be permitted to bring about a result which m.ay take away
the rights vested in a person governed by the Act. The Government, however, has the power to fill up the gaps in supplementing the rules by issuing
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instructions if the Rules are silent on the subject provided the instructions
issued are not inconsistent with the Rules already framed. (269-F-G]
.. ,.
3. The court martials under the Act are not courts in the strict sense
of the term as understood in relation to implementation of the civil laws.
The proceedings before court martial are more administrative in nature c
and of the executive type. Such courts under the Act, deal with two types of
offences, namely, (1) such acts and omissions which are peculiar fo the
Armed Forces regarding which no punishment is provided under the ordi-
.....
nary law of the land and (2) a class of offences punishable under the Indian
Penal Code or any other legislation passed by the Parliament. (260-D-E]
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4. Army Act, 1950 has been found to be suffering from various drawbacks. Even today the law relating to Armed Forces remains static which
requires to be changed. In the absence of effective steps taken by
the Parliament and the Central Government, it is the constitutional
...
obligation of the courts in the country to protect and safeguard the
constitutional rights of all citizens including the persons enrolled in the
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Armed Forces to the extent permissible under law by not forgetting the
paramount need of maintaining the discipline in the Armed Forces of the
country. (260-C-D]
Prithi Pal Singh Be div. Union of India & Ors., (1982) 3 SCC 140, relied
p
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on.
5. The judgments rendered by the court martial which have attained
finality cannot be permitted to be re-opened on the basis oflaw laid down in
this judgment. The proceedings of any court-martial, if already challenged
on this ground and are pending adjudication in any court in the country
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would, however, be not governed by the principles of'defacto doctrine'. No
pending petition shall, however, be permitted to be amended to incorporate
the plea regarding the ineligibility and disqualification of Judge-Advocate ·
on the ground of appointment being contrary to the mandate of Rule 40(2).
This would also not debar the Central Government or the appropriate
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SUPREME COURT REPORTS
[2000] 3 S.C.R.
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authority in passing fresh orders regarding appointment of the fit persons
~
as Judge-Advocates in pending court-martials, if so required. (274-D-E]
Gokaraju Rangaraju v. State of Andhra Pradesh, (1981) 3 SCC 132 and
State of U.P. v. Rafiquddin, (1987) Supp. SCC 401, relied on.
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2865 of 2000.
From the Judgment and Order dated 24.4.99 of the Calcutta High Court
in M.A.T. No. 2181 of 1997.
K.N. Raval, Additional Solicitor General, P.P. Malhotra, Krishna
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Venugopal, T.A. Khan, B.K. Prasad and A.K. Sharma for the appellants.
Ranjit Kumar for the Respondents.
The Judgment of the Court was delivered by
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SETHI, J. Leave granted.
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Finding that the Judge-Advocate was lower in rank to the accused facing
trial before a General Court Martial (hereinafter referred to as "GCM"), the
Division Bench of the High Court set aside the order of the Trial Court and
the entire Court Martial proceedings conducted against the respondent No. l.
The Bench, however, observed that the quashing of the proceedings of the
GCM will not prevent the authorities concerned to initiate fresh court martial
proceedings if they are so advised in accordance with law and also in the light
of the judgment delivered. Feeling aggrieved by the aforesaid judgment the
present appeal has been filed with a prayer for setting aside the impugned
judgment and upholding the order of the GCM as well as the learned Single
Judge.
The relevant and almost admitted facts for determining the controversy
in this appeal are that the first respondent joined the Indian Army as a
Commissioned Officer in 1971 and was promoted to the rank of Major in
1984. He was posted at Fort William, Calcutta in April, 1990. While attached
with 235 IWT company, Engineers, the respondent No.1 was alleged to have
absented himself without leave on four occasions which was an offence under
Section 39(1) of the Army Act. He was also charged under Section 63 of the
Army Act for violation of good order and military discipline. A GCM was
convened by the General Officer Commanding (GOC), Bengal Area by his
....
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U.0.1. V. c.s. GILL, [SETHI, J.]
25I
order dated 23rd December, 1991. The court martial comprised of Col.
Rabinder Bahadur Singh as Presiding otlicer and Col. Kunjachen Puthenveetil
Sebastian, Col. Prakash Nambiar, Col. Mahitosh Deb and Major Kadam Ne~ji
Kesharuo as Members. Capt. Vashishta Arun Kumar, Dy. Assistant Judge
Advocate General was appointed as Judge Advocate in the court martial
proceedings. The respondent No. l was found guilty of four out of five charges
by the GCM and was sentenced to forfeit six months service for the purposes
of promotion. The order of conviction and sentence was, however, made
subject to the confi1mation by the Confirming Authority to whom the
proceedings were transmitted by the GCM in terms of Section I53 of the Anny
Act. The Confirming Authority felt that the sentence awarded to the respondent No.I by the GCM was grossly inadequate and inappropriate which
required review. The order of the Con.firming Authority dated 2.5.1992 was
conveyed to the GCM which on I9.5. I992 upon re-consideration revoked the
earlier sentence and passed a fresh order of sentence of dismissing the
respondent No. I from service. This order was also made subject to confinnaA
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tion by the Confirming Authority.
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Aggrieved by the order of conviction and sentence passed by the GCM,
the respondent No.I filed writ petition being CO No.7102(W) of I992 in the
High Court at Calcutta praying therein for quashing orders dated 23. I2. I99 I,
10.2.I992, 2.5.I992 and I9.5.-I992. At the time of admission of the writ
petition a learned Single Judge of the High Court passed an interim order on
29th May, I992 directing the appellants not to confirm the impugned order of
dismissal and not to take any steps against respondent No. I, without the leave
of the Court. The interim order was, however, vacated by the learned Single
Judge on I6.12.1996 allowing the Confirming Authority to complete the
process of confomation and passing appropriate orders. Consequently, the
GCM proceedings were confirmed on 17.12.I996 and the respondent No.I
was dismissed from service on 18. I2. I996. The writ petition filed by the first
respondent was dismissed by the learned Single Judge on 3rd July, I997.
Feeling aggrieved by the judgment of the learned Single Judge the respondent
No. I preferred appeal b~ing MAT No.2LM/97 before the Division Bench
which was allowed vide the order impugned in this appeal.
In his writ petition the respondent No. I is stated to have alleged that in
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the year I987-88 when he was posted as Ganison Engineer in Jammu &
Kashmir State under the Northern Command, he had pointed out to the higher
authorities some embezzlement instances involving Rs. 22.49 lacs in which
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SUPREME COURT REPORTS
[2000] 3 S.C.R.
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Major S.K. Datta and Col. S.C. Gulati were allegedly involved. He alleged that
;._
because of his reporting the case of embezzlement he incurred animosity of
the persons in the higher echelons of the Anny. He submitted that in the year
1990 he had made a direct complaint to the Chief of the Anny Statt: Anny
Headquarters, New Delhi with regard to the aforesaid embezzlement which,
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according to him, generated further feelings of animosity and ill-will against
him. He was attached to 235 IWT Company on 14th September, 1990 and
allegedly not given any duty after attachment to the said unit. On 22nd
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October, 1990, the Commanding Officer of 235 IWT Company called upon
the respondent No. l to produce the evidence by 25th October, 1990 in
connection with his allegations of embezzlement. At that time the Company
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to which he was attached was stationed at Alambazar, near Dakshineswar, just
outside Calcutta and his family was residing at Fort Williams, Calcutta. He was
served with a chargesheet on 18th November, 1991 signed by the Commanding Officer, 121, Infantry Battalian (TA) which was endorsed by the General
y
Officer Commanding, Bengal Area. Though the respondent No.I was posted
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to 235 IWT Company vide order dated 12th September, 1990 he was attached
on 23rd March, 1991 under the provisions of Anny Instructions 30 of 1986
to 121 Infantry Battalion (TA) till finalisation of the disciplinary proceedings
which had been initiated against him. The charge-sheet dated 18th November,
1991 disclosed the commission of offences punishable contrary to Sections
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39( a) and 63 of the Anny Act. The respondent No. l in his petition had prayed
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for quashing and setting aside of orders dated 23rd December, 1991 convening
the GCM, order dated 10th February, 1992 finding the respondent No.I guilty
and imposition of the sentence by GCM, order dated 2nd May, 1992 exercising
the revisional jurisdiction by the GOC, BA and order dated 19th May, 1992
revising the initial sentence and dismissing the respondent No. l from service.
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The grounds of challenging the aforesaid orders were as under:
.y
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"1. The composition of the GCM, as was determined by the Convening Order dated 23rd December, 1991 was bad in law because Captain
Arun Kumar Vashistha was not qualified to be appointed as a Judge
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Advocate in the said GCM. This ground of challenge is based on two
counts, firstly because no officer of a rank inferior to the accused can
be appointed as a Judge - Advocate in GCM and secondly the
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participation of the Judge-Advocate in the proceedings held on 18th
and 19th May, 1982 upon revision was bad since he was not entitled
to take part in the proceedings after 10th February, 1992 when the
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GCM proceedings had originally stood concluded.
U.O.I. v. C.S. GILL [SETHI, J.]
253
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2. GOC, BA had no jurisdiction to either convene the GCM vide his
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order da~ 23rd December, 1991 or to pass the order dated 2nd May,
1992, as he was neither a properly appointed nor a properly designated Convening Authority for the purposes of convening a GCM nor
could he be deemed considered to be a legally and validly appointed
conforming authority for the purposes of exercising the power under
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Section 160 of the Army Act. In either event, his act of convening
--)•'
the GCM was illegal and therefore the proceedings of the GCM on
that ground were void ab initio. Similarly since he did not have any
power to acts a confirming ·authority, he had no jurisdiction to
exercise any power under section 160 of the Army Act and order
revision of the sentence. Reliance was placed upon Regulation 472 c
of the Regulations fof the Army in support of this contention.
3. TI1e order dated 2nd May, 1992 was bad in law because while
exercising revisional jurisdiction under Section 160 of the Army Act,
the GOC, BA not only expressed his views and opinion about the
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merits of the case but the order amounted to almost a direction upon
the GCM, and the GCM comprising, as it were, of the officers
subordinate to GOC, BA had no option but to revise the sentence, as
was desired by GOC, BA.
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4. GOC, BA was also not an appropriate Convening Authority for the
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purposes of convening a GCM as the petitioner was not serving under
him. Since the petitioner was serving in the Head Quarter, Eastern
Command, it was only GOC-in-C who could be considered to be the
appropriate, convening authority in respect of the petitioner for
convening a GCM. Merely because the petitioner was attached to a
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unit which was under the control of GOC, BA, that by itself did not
make GOC, BA the duly appointed convening authority for convening a GCM. Reliance was placed upon the contents of warrant A-1
appointing GOC, BA and GOC-in-C as/espective convening authorities.
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5. The sentence of dismissal for a minor offence like being absent
without leave, and for committing an offence under section 63 of the
Army Act was highly and grossly disproportionate to the gravity of
the offence. Even if the proceedings of the GCM and the finding of
"guilty" was to be upheld by this court, the initial sentence of
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[2000] 3 S.C.R.
forfeiture of six months of service for the purpose of promotion was
a reasonable punishment in the facts and circumstances of this case.
6. Distinction has to be drawn between "absent from a place" and
absence from duty" because in the facts and circumstances in which
the petitioner was placed, the petitioner was not allocated or entrusted
with any duties and therefore if he absented from a place, without
there being any duty that he was to perform, Section 39 of the Anny
Act could not be attracted in his case and therefore he could not be
held guilty of the charges levelled against him.
7. The appropriate Confirming Authority have been prescribed in
Regulation 472 and even though this Regulation is not ~tutory in
character and has not been issued under Section 192 of the Anny Act,
yet it amounting to an executive instruction has the force of law and
thus supersedes the warrants issued by the Central Government under
Section 164 of the Anny Act. The contention is that the authorities
prescribed in Regulation 472 alone are competent to act as confirming
or convening authorities and that the authorities appointed under the
warrants by the Central Governmen.t in exercise of the powers vesting
in it under Section 154 have no jurisdiction to act as such.
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8. The order dated 17th December, 1996 is bad because it was passed
without affording the petitioner an opportunity of submitting a preconfirtnation representation, as was directed by this court on 16th
December, 1996."
None of the grounds found favour with the learned Single Judge who
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after.hearing dismissed the writ petition. The respondent No.1 was, however,
given two weeks time to vacate the accommodation occupied by him upon his
giving an undertaking. The appeal filed against the judgment of the learned
Single Judge was allowed holding:
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"However, without deciding any other point we are of the view that
a Judge-Advocate being lower in rank to an accused officer should
not be able to take part in the general court-martial proceedings for
the above reason."
Mr. Rawal, the learned Additional Solicitor General appearing for the
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appellants has vehemently argued that as the Judge-Advocate is only a Legal
.....
U.0.1. v. C.S. GILL [SETHI, J.]
255
Adviser and not a member of the Court Martial, his rank is not material for
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being appointed as such to assist the GCM. It is ft.lrther contended that under
the Army Act, Rules and Regulations made iliereunder, there was no obligation for the appellants to appoint a Judge-Advocate who should have been
senior in rank to the accused on the analogy that the members of the court
martial who tried the accused are required to be of the same or higher rank
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to the accused officers. According to him there are separate provisions under
the Act, Rules and Regulations for members and Judge-Advocate at GCM
laying down their eligibility, disqualifications, duties, etc. Relying upon Note
2 attached to Rule 102, the learned counsel has submitted that the disqualification for being a Judge-Advocate in a court martial is referable to Rule
39(2) alone which cannot be stretched further to Rule 40(2) of the Rules. It
is contended that the Division Bench of the High Court has not properly
interpreted the provisions of Sections 113 and 129 of the Act and Rules 39,
40 and 102 of the Army Rules.
Appearing for the respondent No.1 Mr. Ranjit Kumar, Advocate has
submitted that the combined reading of Rules 39, 40 and 102 makes it clear
that if the Judge-Advocate is lower in rank than the accused facing the trial
in GCM, the proceedings are liable to be quashed. According to him the
provisions of Rule 39 read with Rules 40 and 102 of the Army Rules leave
no doubt that the Judge-Advocate appointed for the trial of an officer by the
GCM should be a rank not lower than that of the Officer facing the trial. He
has submitted that though, technically the Judge-Advocate is an Adviser to the
prosecution, yet in practice he wields a great influence upon the verdict of the
court in view of the powers confe1red upon him under the Act and the Rules.
He has specifically refetTed to the provisions of Rules 60, 61, 62 and 105 of
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Advocate during the trial in a court martial.
In order to appreciate the rival contentions of the learned counsel for the
parties it is necessary to take note of some of the relevant provisions of the
Act, the Rules and the Regulations made thereunder. The Act was enacted on
20th May, 1950 and enforced w.e.f. 22nd July, 1950 to consolidate and amend
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the law relating to the Government of the regular Army keeping i,n view the
report of the Select Committee appointed for the purpose. Prior to the
enactment of Army Act, 1950, there existed the Indian Army Act, 1911 made
and applied by the British Rulers. Feeling that some of the provisions of the
1911 Act had become out of date and insufficient for modem requirements
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after independence, a need for revision was felt to have become imperative for
obvious reasons. However, the scheme of the Act by and large remained the
same as was incorporated in Army Act, 1911. The Act has been found to be
suffering from various draw-backs as were pointed out by this Court in Lt. Col.
Pritfii Pal Singh Bedi v. Union of India & Ors., [1982] 3"scc 140. This Court
hoped and stressed that changes all over the English speaking democracies
would awaken the Parliament to the changed system as regards the Armed
Forces. Merely by joining the Armed Forces a person does not cease to be a
citizen so as to be wholly deprived of his rights under the Constitution. While
dismissing the writ petitions in that case, this Court noticed with anguish and
concern and observed:
"Reluctance of the apex court more concerned with civil law to
interfere with the internal affairs of the Army is likely to create a
distorted picture in the minds of the military personnel that persons
subject to Army Act are not citizens of India. It is one of the cardinal
features of our Constitution that a person by enlisting in or entering
Armed Forces does not cease to be a citizen so as to wholly deprive
him of his rights under the Constitution. More so when this Court held
in Sunil Batra v. Delhi Administration, (1979] 1 SCR 394 that even
prisoners deprived of personal liberty are not wholly denuded of their
fundamental rights. In the larger interest of national security and
military discipline Parliament in its wisdom may restrict or abrogate
such rights in their application to the Armed Forces but this process
should not be carried so far as to create a class of citizens not entitled
to the benefits of the liberal spirit of the Constitution. Persons subject
to Army Act are citizens of this anci~nt land having a feeling of
belonging to the civilised community governed by the liberty-oriented
constitution. Personal lil?erty makes for the worth of human being and
is a cherished and prized right. Deprivation thereof must be preceded
by a judge of unquestioned integrity and wholly unbiased. A marked
difference in the procedme for trial of an offence by the criminal court --
and the court martial is apt to generate dissatisfaction arising out of
this differential treatment. Even though it is pointed out that the
procedure of trial by court martial is almost analogous to the
procedure of trial in the ordinary criminal courts, we must recall that
Justice William O'Douglas observed: "[T]that civil trial is held in an
atmosphere conduciv~ to the protection of individual rights while a
military trial is marked by the age-old manifest destiny of retributive
U.0.1. v. C.S. GILL [SETHI, J.]
257
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justice. Very expression 'court martial' generally strikes terror in the
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heart of the person to be tried by it. And somehow or the other the
trial is looked upon with disfavour." InReidv. Covert, 1LEd2d 1148
= 354 US l (1957) Justice Black observed at page 1174 as under:
Court martial are typically ad hoc bodies appointed by a military
officer from among his subordinates. They have always been subB
ject to varying degrees of 'command influence'. Jn essence, these
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tribunals are simply executive tribunals whose personnel are in
the executive chain of command. Frequently, the members of the
court marital must look to the appointing officer for promotions,
advantageous assignments and efficiency ~atings - in short, for
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their future progress in the service. Conceding to military personnel that high degree of honesty and sense of justice which
nearly all of them undoubtedly have, the members of a court
martial, in the nature of things, do not and cannot have the independence of jurors drawn from t11e general public or of civilian
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judges.
Absence of even one appeal with power to review evidence, legal
formulation, conclusion and adequacy of otherwise of punishment is
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a glaring lacuna in a country where a counterpart civilian convict can
prefer appeal after appeal to hierarchy of courts. Submission that full
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review of finding and/or sentence in confitmation proceedings under
Section 153 is provided for is poor solace. A hierarchy of courts with
appellate powers each having its own power of judicial review has
of course been found to be counter productive but the converse is
equally distressing in that there is not even a single judicial review.
With the expanding horizons of fair play in action even in adminisF
trative decision, the universal declaration of human rights and retributive justice bemg relegated to the uncivilised days, a time has come
when a step is required to be taken for at least one review and it must
truly be a judicial review as and by way of appeal to a body composed
9f non-military personnel or civil personnel. Army is always on alert
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for repelling external aggression and suppressing internal disorder so
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that the peace-loving citizens enjoy a social,order based on rule of
law; the same cannot be denied to the protectors of this order. And
it must be realised t11at an appeal from Ceaser to Ceaser' s wife -
confirmation proceedings under Section 153 - has been condemned
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as injudicious and merely a lip sympathy to form. The core question
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is whether at least there should be one appeal to a body composed
),..
of non-military personnel and who would enjoy the right of judicial
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review both on law and facts as also determine the adequacy of
punishment being commensurate with the gravity of the offence
charged. Judicial approach by people well-versed in objective analyB
sis of evidence trained by experience to look at facts and law
objectively, fair play and justice cannot always be sacrificed at the
altar of military discipline. Unjust decision would be subversive of
discipline. There must be a judicious admixture of both. And nothing
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revolutionary is being suggested. Our Anny Act was more or less
modelled on the U.K. Act. Three decades of its working with winds
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of chang~ blowing over the world necessitates a second look so as
to bring in it conformity with liberty-oriented constitution and rule of
law which is the uniting and integrating force in our political society.
Even U.K. has taken a step of far-reaching importance for rehabilitating the confidence of the Royal Forces in respect of judicial review
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of decisions of comt martial. U.K. bad enacted a Court Martial
(Appeal) Act of 1951 and it has been extensively amended in Court
Martial (appeals) Act, 1968. Merely providing an appeal by itself may
not be very reassuring but the personnel of the appellate court must
inspire confidence. The court martial appellate cpurt consists of the
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ex officio and ordinary judges of the Court of Appeal, such of the
judges of the Queen's Bench Division as the Lord Chief Justice may
nominate after consultation with the Master of the Rolls, such of the
Lords, Commissioners of Justiciaiy in Scotland as the Lord Chief
Justice generally may nominate, such Judges of the Supreme Court
of the Northern Ireland as the Lord Chief Justice of Northern Ireland
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may nominate and such of the persons of legal experience as the Lord
Chancellor may appoint. The court martial appellate court has power
to determine any question necessary to be determined in order to do
justice in the case before the court and may authorise a new trial
where the conviction is quashed in the light of fresh evidence. The
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court has also power inter alia, to order production of documents or
exhibits connected with the proceedings, order the attendance of
witnesses, receive evidence, obtain reports and the like from the
....
members of the court martial or the person who acted as JudgeAdvocate, order a reference of any question to a Special Commissioner for Enquiry and appoint a person with special expert knowlH
edge to act as an assessor (Halsbmy's Laws of England, 4th Edn.,
U.0.1. v. C.S. GILL [SETHI, J.]
259
paras 954-955 pp. 458-59). Frankly the appellate court has power to
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full judicial review unhampered by any procedural claptrap.
Turning towards the U.S.A., a refemece to Uniform Code of Military
Justice Act, 1950, would be instructive. A provision has been made
for setting up of a comt of military appeals. The Act contained many
procedmal reforms and due process safeguards not then guaranteed
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in civil comts. To cite one example, the right to legally qualified
counsel was made mandatory in general court martial cases 13 years
before the decision of the Supreme Court in Gideon v. Haiwright, 372
US 335 (1963). Between 1950 and 1968 when the Administration of
Justice Act, 1968 was introduced, many advances were made in the
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administration of justice by civil courts but they were not refle~ted
in military court proceedings. To correct these deficiencies the
Congress enacted Military Justice Act, 1968, the salient features of
which are: (1) a right to legally qualified counsel guaranteed to an
accused before any special court martial; (2) a military judge can in
certain circumstances conduct the trial alone and the accused in such
a situation is given the option after learning the identity of the niilitary
judge of requesting for the trial by the judge alone. A ban has been
imposed on command interference with military justice, etc. Ours is
still an antiquated system. The wind of change blowing over the
country has not permeated the close and sacrosanct precincts of the
Anny. If in civil courts the universally accepted dictum is that justice
must not only be done but it must seem to be done, the same holds
good with all the greater vigour in case of court martial where the
judge and the accused don the same dress, have the same mental
discipline, have a strong hierarchical subjugation and a feeling of bias
in such circumstances is irremovable. We, therefore, hope and believe
that the changes all over the English-speaking democracies will
awaken om Parliament to the changed value system. In this behalf,
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we would like to draw pointed attention of the Government of the
glaring anomaly that courts martial do not even write a brief reasoned
order in support of their conclusion, even in cases in which they
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impose the death sentence. This must be remedied in order to ensure
that a disciplined and dedicated Indian Army may not nurse a
grievance that the substance of justice and fair play is denied to it."
Despite lapse of about two decades neither the Parliament nor the Central
Govemment appears to have realised their constitutional obligations, as were
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expected by this Court, except amending Rule 62 providing that after
recording the finding in each charge the Court shall give brief reasons in
support thereof. The Judge-Advocate has been obliged to record or caused to
be recorded brief reasons in the proceedings. Even today the law relating to
Armed Forces remains static which requires to be changed keeping in view
the observations made by this Court in Prithi Pal Singh Bedi's case (supra),
the constitutional mandate and the changes effected by other democratic
countries. The time has come to allay the apprehension of all concerned that
the system of trial by court martial was not the arch type of summary and
arbitrary proceedings.
In the absence of effective steps taken by the Parliament and the Central
Government, it is the constitutional obligation of the courts ill the country to
protect and safeguard the constitutional rights of all citizens including the
persons enrolled in the Aimed Forces to the extent permissible under law by
not forgetting the paramount need of maintaining the discipline in the A:nned
Forces of the country.
TI1e court martials under the Act are not courts in the strict sense of the
term as understood in relation to implementation of the civil laws. The
proceedings before court martial are more administrative in nature and of the
executive type. Such courts under the Act, deal with two types of offences,
namely, (1) such acts and omissions which are peculiar to the Armed Forces
regarding which no punishment is provided under the ordinary law of the land
and (2) a class of offences punishable under the Indian Penal Code or any
other legislation passed by the Parliament. Chapter VI of the Act deals with
the offences. Sections 34 to 68 relate to the offences of the first description
noted hereinabove and Section 69 with civil offences which means the offence
triable by an ordinary criminal court. Chapter VII provides for punishments
which can be inflicted in respect of offences committed by persons subject to
the Act and convicted by court martial, according to the scale provided therein.
Chapter X deals with court martials.