# UNION OF INDIA & ORS v. VISHAY PRIYA SINGH

- **Citation:** [2016] 5 S.C.R. 473
- **Court:** Supreme Court of India
- **Decided:** 2016
- **Case number:** Civil Appeal No. 8360 of2010
- **Bench:** T.S. Thakur, Uday Umesh Lalit
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-ors-v-vishay-priya-singh-31351
- **Pages:** 30

## Headnote

Army Act, I950 - ss.116 and I20 - Summary Court Martial
(SCM) - Whether can be convened, constituted and completed by
the Commanding Officer (CO) of the Unit other than the present
Unit of the accused (i.e. the Unit to which the accused is attached)
- Delhi High Court dismissed the writ petitions of the accused on
the ground of competence of the CO as the SCM were convened,
constituted and completed by the CO of the Unit other than the
present Unit of the accused - Rajasthan High Court dismissed the
cases of accused deciding the cases on merit - On appeal, held: It
is not imperative that an SCM can be convened, constituted and
completed by the CO of the Unit to which the accused belonged - It
is competent and permissible for the CO of the Unit to which the
accused was attached or sent on attachment for the purpose of
trial - If the offence is linked to the Unit to which the accused is
attached, the CO of the attached Unit is competent to convene,
constitute and complete SCM, being in seisin of the matter - CO of
the parent Unit has nothing to do in such case - The matters arising
out of order of Delhi High Court are remanded to decide the case
on merit - Other matters are liable to be dismissed - Army Rules,
1954 - rr. 39, 133 and 146 - Defence Service Regulations - Regns.
9 and 38I.
Allowing the appeals arising out of order of Delhi High Court
and remitting them to High Court, and dismissing other appeals,
the Court
HELD: 1. The Army Act has given drastic power to one
single individual, namely, the Commanding Officer (CO) who alone
is to constitute the Court. No doubt, this power comes with
restrictions insofar as the power to award sentence is concerned
in terms of sub-Sections (4) & (5) of Section 120 of Army Act,
1950. However, even with such restrictions the power is quite
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[2016] 5 S.C.R.
drastic. The reason for conferment of such power is obvious that
in order to maintain discipline among the soldiers and units, the.
CO must have certain special powers, for it is the discipline which
to a great extent binds the unit and makes it a co-hesive force.
The High Court of Delhi was therefore completely correct in
observing that such power must be exercised rarely and when it
is absolutely imperative that immediate action is called for. The
satisfaction in that behalf must either be articulated in writing or
be available on record, specially when the matter can be
considered on merits by a tribunal, with the coming into force of
the Armed Forces Tribunals Act, 2007. [Paras 19, 20) [495-G-H;
496-A-C]
2. It cannot be said that only offences under Sections 34,
37 and 69 of the 1950 Act could be tried by an SCM. The provision
in Section 120(2) of the 1950 Act requiring a reference to the
superior authority which thought is again echoed in proviso to
Army Rule 22 (3) of the Rules, is a salutory provision and a check
on the exercise of drastic power conferred upon a CO and must
be scrupulously observed. A case for non-adherence to this
requirement must be made out on record and any deviation or
non observance of statutory requirements must be viewed
seriously. Offences under Sections 34, 37 and 69 of the Act are
special categories or kinds of offences where a reference to the
officer empowered to convene a DCM or an SGCM is considered
imperative unless there are grave reasons for immediate action.
Similarly, the offences against the officer holding the Court,
where that officer could possibly "be a judge in his own cause",
are also put at the same level and similar reference under subsection (2) ought to be made. The exercise of power in seeking
such reference and consequent consideration in respect thereof
must be in keeping with the seriousness attached in respect of
these offences. [Paras 22, 23) [497-C-F]
3.1 As regards the question as to which CO is competent
to convene, constitute and complete the SCM. Is it CO of the
Unit to which the accused belonged or CO of the U

## Text

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[2016] 5 S.C.R. 473
UNION OF INDIA & ORS.
v.
VISHAY PRIYA SINGH
(Civil Appeal No. 8360 of2010)
JULYOS,2016
[T.S. THAKUR, CJI, AND UDAY UMESH LALIT, J.)
Army Act, I950 - ss.116 and I20 - Summary Court Martial
(SCM) - Whether can be convened, constituted and completed by
the Commanding Officer (CO) of the Unit other than the present
Unit of the accused (i.e. the Unit to which the accused is attached)
- Delhi High Court dismissed the writ petitions of the accused on
the ground of competence of the CO as the SCM were convened,
constituted and completed by the CO of the Unit other than the
present Unit of the accused - Rajasthan High Court dismissed the
cases of accused deciding the cases on merit - On appeal, held: It
is not imperative that an SCM can be convened, constituted and
completed by the CO of the Unit to which the accused belonged - It
is competent and permissible for the CO of the Unit to which the
accused was attached or sent on attachment for the purpose of
trial - If the offence is linked to the Unit to which the accused is
attached, the CO of the attached Unit is competent to convene,
constitute and complete SCM, being in seisin of the matter - CO of
the parent Unit has nothing to do in such case - The matters arising
out of order of Delhi High Court are remanded to decide the case
on merit - Other matters are liable to be dismissed - Army Rules,
1954 - rr. 39, 133 and 146 - Defence Service Regulations - Regns.
9 and 38I.
Allowing the appeals arising out of order of Delhi High Court
and remitting them to High Court, and dismissing other appeals,
the Court
HELD: 1. The Army Act has given drastic power to one
single individual, namely, the Commanding Officer (CO) who alone
is to constitute the Court. No doubt, this power comes with
restrictions insofar as the power to award sentence is concerned
in terms of sub-Sections (4) & (5) of Section 120 of Army Act,
1950. However, even with such restrictions the power is quite
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SUPREME COURT REPORTS
[2016] 5 S.C.R.
drastic. The reason for conferment of such power is obvious that
in order to maintain discipline among the soldiers and units, the.
CO must have certain special powers, for it is the discipline which
to a great extent binds the unit and makes it a co-hesive force.
The High Court of Delhi was therefore completely correct in
observing that such power must be exercised rarely and when it
is absolutely imperative that immediate action is called for. The
satisfaction in that behalf must either be articulated in writing or
be available on record, specially when the matter can be
considered on merits by a tribunal, with the coming into force of
the Armed Forces Tribunals Act, 2007. [Paras 19, 20) [495-G-H;
496-A-C]
2. It cannot be said that only offences under Sections 34,
37 and 69 of the 1950 Act could be tried by an SCM. The provision
in Section 120(2) of the 1950 Act requiring a reference to the
superior authority which thought is again echoed in proviso to
Army Rule 22 (3) of the Rules, is a salutory provision and a check
on the exercise of drastic power conferred upon a CO and must
be scrupulously observed. A case for non-adherence to this
requirement must be made out on record and any deviation or
non observance of statutory requirements must be viewed
seriously. Offences under Sections 34, 37 and 69 of the Act are
special categories or kinds of offences where a reference to the
officer empowered to convene a DCM or an SGCM is considered
imperative unless there are grave reasons for immediate action.
Similarly, the offences against the officer holding the Court,
where that officer could possibly "be a judge in his own cause",
are also put at the same level and similar reference under subsection (2) ought to be made. The exercise of power in seeking
such reference and consequent consideration in respect thereof
must be in keeping with the seriousness attached in respect of
these offences. [Paras 22, 23) [497-C-F]
3.1 As regards the question as to which CO is competent
to convene, constitute and complete the SCM. Is it CO of the
Unit to which the accused belonged or CO of the Unit to which
he was attached or came to be attached. In this connection there
could possibly be three kinds of situations: (a) An accused
committing an act constituting an offence while he was part of his
UNION OF INDIA & ORS. v. VISHAY PRIYA SINGH
regular Unit is tried by SCM by his own CO i.e., the CO of the
Unit itself. (b) An accused while being on attachment to a different
Unit commits an act constituting an offence and is therefore tried
by SCM by the CO of such Unit to which he was sent on
attachment. In such cases the offence itself would be committed
while the accused was on attachment. (c) An accused committing
an act constituting an offence while being part of his regular Unit
is later sent on attachment to a different Unit and is then tried by
SCM by CO of such Unit i.e., Unit where he was sent on
attachment after the offence was committed. [Para 24) [497-GH; 498-A-B)
3.2 There is no embargo on CO of the Unit to which the
accused belongs being the Court for the purposes of trying the
accused by SCM. The first of the aforesaid three categories of
offences mentioned above can therefore certainly be tried by the
CO of the Unit to which he belongs. If the act constituting an
offence is linked to the Unit in question when such act was
committed, in respect of matters falling in the second category,
the offence could logically be tried by the CO of the Unit to which
the accused was attached. The accused cannot insist that the CO
of his parent unit alone must try him by SCM. It cannot be said
that his erstwhile connection with the parent unit must be taken
to be the governing factor of such extent that the normal linkage
of the Unit and the offence in question must stand displaced. If
requirements of Section 120(2) are otherwise complied with and
satisfied, the CO of such attached Unit is competent to convene,
constitute and complete the SCM. It is in his unit that the offence
in question was committed and in that sense he would be in seisin
of the matter. The CO of the parent unit wduld have nothing to
do in the matter. [Para 25) [498-C-F]
3.3 In the third category, there could be two sub categories.
In the first, the commission of offence itself may come to
knowledge, though the offence was committed in the parent unit,
after the accused was sent on attachment. Secondly, an accused
may be sent on attachment to another unit only for being tried by
SCM by the CO of that other unit. The commission of an act
constituting an offence being connected with the erstwhile unit
and having no connection with the unit where he is later sent on
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attachment, normally the former of the units in question would
be appropriate. But, when the offence itself may have been
committed against the CO of the former unit or the CO may be
an important witness reflecting on matters in issue or for the
purposes of discipline, the accused may be required to be moved
out of the unit in question. [Paras 26, 27] [498-G-H; 499-A-B]
3.4 If the concept of fairness in the procedure demands, as
is expressly set out in the form of Rule 39 of the Rules that CO
of the Unit to which an accused belongs is disentitled to serve on
a GCM or DCM, it would be complete contradiction to insist
upon the CO of the Unit to which the accused belongs, regardless
of the status and role of such CO in connection with the offence,
to be the only authority entitled to convene an SCM. Sections
116 and 120 do not admit of any such construction and in the
absence of any express provision to the contrary, Regulation 9
can certainly be the guiding factor. The expression "Commanding
Officer" in Section 116 is not qualified by any explanation that he
must be the CO of .the Unit to which the accused belongs.
Regulation 9 of Defence Service Regulations (DSR), with its width
and amplitutde affords such explanation and is completely
consistent with and subserves the basic ingredients of fairness
and impartiality. [Para 29] (499-G-H; 500-A-B]
3.5 The finding of the High Court that in all circumstances,
other than those dealt with by Regulation 381, it is the CO of the
Unit to which the accused belongs, alone is competent to convene,
constitute and complete an SCM, is incorrect. [Para 30] [500-D]
3.6 The expression "to which the accused belongs" finds
mention in Rule 39 of the Army Rules in the context of GCM or
DCM, but not with respect to SCM. Under Rule 133 of the Rules
the proceedings of an SCM must immediately on promulgation
be forwarded through the Deputy Judge Advocate General of
the command "in which the trial is held". On the other hand,
under Rule 146 of the Rules the proceedings of an SCM must be
preserved with the records of the corps or the department "to
which the accused belonged". It is thus possible and well
contemplated that the trial by SCM may be held in a unit other
than the one to which the accused belongs". Rules 39 and 146
further disclose that wherever the statute wanted to specify the
UNION OF INDIA & ORS. v. VISHAY PRIYA SINGH
unit or department "to which the accused belonged" it has done
that with great clarity. No such qualification is specified in respect
the CO who is to convene, constitute and complete the SCM.
[Para 31) [500-E-G]
3. 7 It is not imperative that an SCM be convened,
constituted and completed by CO of the Unit to which the accused
belonged. It is competent and permissible for the CO of the Unit
to which the accused was attached or sent on attachment for the
purposes of trial, to try such accused by convening, constituting
and completing SCM in a manner known to law i.e. strictly within
the confines of Sections 116 and 120 of the Act and other Statutory
provisions. SCM is an exc~ption and it is imperative that a case
must be made out for immediacy of action. The reasons to convene
an SCM must be followed by well articulated reasons or the record
itself must justify such resort. [Para 33] (501-B-C]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8360
of2010.
From the Judgment and Order dated 25.01.2008 of the High Court
of Delhi at New Delhi in Civil Writ Petition (C) No. 2511 of 1992
WITH
C. A. No. 8838 and 8830-8835 of2010
C. A. Nos. 254 7, 2548, 2549, 2550 and I 0 I 04of2011
C.A. No. 6679 of2015
C. A. D. Nos. 13803 and 18038 of2015.
Arun Mohan (AC), Ms. Jyoti Singh (AC), Ms. Rekha Palli, Sr.
Advs., Rajbhushan, R. Balasubramanian, Santosh Kumar, B. Krishna
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Prasad, Ms. Meenakshi Grover, Ajay Sharma, Prabhas Bajaj, Pranav
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Kumar, B. V. Balaram Das., Mrs. Anil Katiyar, M. G Kapoor, Devendra
Kumar Singh, C. P. Singh, Rameshwar Prasad Goyal, Santosh Mishra,
Surya Kant, Binay K. Das, Ranjit Sharma, Ms. Priyanka Das, Ravi
Shankar Ravi, RD. Upadhyay, Sudhanshu S. Padey, Sridhar Potaraju,
Gaichangpou Gangnei, Abhishek R. Shukla, Mukunda Rao, Arjun Singh,
G
Maj. K. Ramesh, V. Sushant Gupta, Dr. Kai lash Chand, Nikhil Palli, Ms.
Punam Singh, Ms. Ankita Patnaik, Deepak Goel, N. L. Bareja, Akash
Kaushik, Chander Shekhar Ashri, R. C. Kaushik, S. M. Dalal,
Rameshwar Prasad Goyal, Ms. Aishwarya Bhati, Dillip Kumar Nayak,
T. Gopal, Ms. Eshita Kapur, Anshul Shanna, Logmitra Chanden, Advs.
for the appearing parties.
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[2016] 5 S.C.R.
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The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
l.Civil Appeal Nos.8360 of 2010 and 8830-8835 of2010, at the
instance of Union oflndia challenge correctness of the common judgment
and order of the High Court of Delhi dated 25.01.2008 in Writ Petition
(Civil) Nos.2511 of 1992, 3519 of 1998, 6185 of2002, 2433 of 2003,
17622 of2004, 18185 of2004 and 20233 of2005. Civil Appeal No.8838
of 20 JO seeks to assail the decision of the High Court of Delhi dated
02.05.2008 in Writ Petition No.4341 of 1999 which relied upon the earlier
decision dated 25.01 .2008.
2. For the sake of facility we may reproduce Paragraph Nos.2 to
7 of the judgment of the High Court of Delhi dated 25.01.2008 which
cull out the factual matrix in each of the petitions before it. Said Paragraph
Nos.2 to 7 are as under:-
"2. In CWP 2511/1992 the Petitioner, Ex. L Nk Vishav Priya Singh,
has alleged that he had made complaint against the CO, 19th
Batallion Mahar Regiment of prejudicial treatment meted out by
him to the Petitioner. It has been asseverated in the Writ Petition
that initially the Brigade Commander had nominated the CO, 17th
Kumaon to investigate into the Petitioner's complaint. The CO of
19th Mahar through manipulation got his close friend, the CO of
18th Batallion, Punjab Regiment, detailed to investigate these
complaints. The Petitioner was ordered to proceed to 18th Punjab
Regiment. Eventually, the CO, 18th Punjab Regiment tried the
Petitioner by SCM and convicted/sentenced him to suffer Rigorous
. Imprisonment of six months in the Civil Jail and dismissal from
service. The argument is that since the Petitioner belonged to the
19th Mahar, but was tried by SCM held by CO of 18th Punjab
Regiment, the Trial was rendered coram non judice .
... . .................................................................. It is important
to mention that the Petitioner had made complaints against his
·CO on 26.3 .1990; he was interviewed by the Brigade Commander
on 30.5. 1990; was asked to appear before the CO, 18th Punjab
Regiment on 15. 7.1990; was charged under Section 41(2) of the
Army Act for disobeying a lawful command given by a superior
UNION OF INDIA & ORS. v. VISHAY PRIYA SINGH
[UDAY UMESH LALIT, J.)
officer in that he, when asked to accept a letter dated 16. 7 .1990,
requiring his presence in CO's Office for investigation in Unit
refused to do so and disobeyed verbal orders.
2.Ex. NK Prem Singh has filed CWP 3 519/1998 pleading that he
belonged to 15 INF DIV ORD Unit which assertion stands
admitted. On 17.4.1998 he was charged under Section 40(a) of
the Army Act for using criminal force to his superior officer in
that he, at Amritsar on 20.10.1997 struck with an iron implement
on the head and legs of Company Hav. Major Clerk. The Petitioner
was sentenced to (a) reduced to ranks, (b) dismissed from service
and (c) Rigorous Imprisonment for six months in the Civil Jail.
............................................................................ The
CO, 194 Field Regiment, convened the SCM which concluded on
21.4.1998. The Respondents have pleaded that the Petitioner was
attached for disciplinary purposes with 194 Field Regiment vide
letter dated 21 . I 0.1997. In paragraph 3 of the Counter Affidavit it
has been asseverated that the 'occurrence for which the petitioner
·was taken into custody took place oh the evening of20.10.1997.
He was taken into custody by the CO of his Unit and since his
Unit had no quarter guard, the petitioner was shifted to the quarter
guard towards of 194 Field Regiment for safe custody'. It has
further been pleaded that by letter dated 24.10.1997 the Petitioner
was attached with the Unit for disciplinary purposes, to remain
attached till finalisation of the investigation against him. In other
words, six months had elapsed between the incident which is the
subject matter of the SCM and the holding of the SCM.
4. CWP 6185/2002 has been filed by Ex. NK Dwarka Prasad
stating that he belonged to 24th Rajput Regiment. In the year
2000 he was temporarily attached to 6lst Infantry Brigade to
perform the duties as a Sahayak. By Charge-sheet dated
29.10.200 I under Section 69 of the Army Act he was accused of
committing a civil offence on 25.10.2001, that is to say, using
criminal force to a woman with an intent to outrage her modesty
and on that very date the Commander, 65th Infantry Brigade
ordered that he be tried by an SCM. The Petitioner was tried by
the SCM between 3 .11.200 I and 5 .11 .200 I and was convicted/
sentenced (I) to be reduced to ranks (ii) to be dismissed from
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service, (iii) to suffer imprisonment in civil jail for one year.
5. CWP 2433/2003 has been filed by Ex. Hav Dharambir Kanker
who had been promoted to the rank of Havaldar in the Corps of
the Military Police. After sixteen years he was posted to 4th Corps
Provost Unit at Tezpur in Assam. By Charge-sheet dated 9.6.2000
the Petitioner was accused of making sundry accusations against
a person subject to the Army Act. On 22.6.2000 the SCM
sentenced the Petitioner (a) to be reduced to -the ranks and (b) to
be dismissed from service.
6. CWP 20233/2005 has been filed by Sepoy U.S. Mishra stating
that he was enrolled in the Indian Army in March, 1987 and that
on 18.3.1999 he was posted to 38 defence Medical Store Depot.
By letter dated 27.3.2002 the Petitioner was attached, for
disciplinary purposes, to 38 AMSD Blocks. The Petitioner was,
along with 15 Army personnel, tried by SCM between 20.12.2004
and 4.1.2005 by CO 118 Field Regiment where the Petitioner
was attached for disciplinary purposes. The first charge
under Section 52(f) of the Army Act was that the Petitioner
between 4.8.1999 to 6.6.200 I, with intent to defraud, improperly
altered several entries in the Issue Vouchers. The Petitioner was
found guilty and sentenced to be reduced to ranks on 4.1.2005.
The contention is that the CO of 118 Field Regiment could not try
the Petitioner by SCM since he was only 'attached with the Unit'.
Delay in convening the SCM would also obviously come in for
consideration.
7. The facts in CWP 17622/2004 filed by Sep/Clerk S.K. Nair
and CWP 18185/2004 filed by Sep/Clerk Balwinder Singh are
similar. In September 1998 a Court of Inquiry was ordered to
investigate into the irregular enrollment during a recruitment rally
held at Pathankot in March 1995. The Petitioners' assert that
since they were posted to 14th Sikh Regiment, only the CO of
that Unit was competent to try them by an SCM. Accordingly,
SCM by the CO of I TB ASC Centre, Gaya was legally
incompetent and non-est. Delay in convening the SCM would
also obviously come in for consideration."
3. Writ Petitions before the High Court of Delhi raised two
common questions of law pertaining to Summary Courts Martial
(hereinafter referred to as SCM):-
UNION OF INDIA & ORS. v. VISHAY PRIYA SINGH
481
[UDAY UMESH LAUT, J.]
(a) whether an SCM can be convened, constituted and completed
A
by the Commanding Officer ("CO" for short) of a Unit to which
the accused did not belong and
(b) the circumstances in which the SCM can be convened rather
than a General Courts Martial ("GCM" for short), a District Courts
,Martial ("DCM" for short) or Summary General Courts Martial
B
("SGCM" for short) as envisaged in Section 108 of the Army Act
1950 (hereinafter referred to as the Act).
While allowing these Writ Petitions, the High Court in Paragraphs
20, 22, 23 and 24 of its judgment observed as under:
"20. An SCM can legitimately be convened where there is grave
and compelling cause for taking immediate action which would
be defeated if reference to a District Court Martial or Summary
General Court Martial is made. In other words, holding of an SCM
is the exception and not the rule. From the multitude.of possible
offences it is only those envisaged in Sections 34, 3 7 and 69, that
can be tried by an SCM, further fortifying the exceptional and
extraordinary character of an SCM. We think it necessary to
underscore that it is not proper to convene an SCM merely because
the offence(s) with which a sepoy of the force is charged finds
mention in the enumeration contained in these three Sections. What
is of pre-eminence in convening an SCM is that it should be found
imperative that immediate action is manifestly necessary.
Therefore, it is essential that this factor, viz. need to hold a trial
immediately, is articulated and reasoned out in writing in the order
convening the SCM. Failure to do so would create good reason to
quash the SCM itself. Routinely, and certainly far too frequently,
the sentence passed by SCMs violates the spirit of Regulation
448( c) (supra) thereby taking away the sepoys' livelihood without
affording them the normal procedural protections of law.
21 ........................................................................ .
22. We shall endeavor to discharge this duty by enunciating firstly
that it is the CO of the Unit to which the accused belongs who is
empowered to convene an SCM. This is not a empty formality or
pointless punctilio. There is an abiding and umbilical connection
between the CO and his regime. The Ranks have always looked
up at their CO as the father figure who will be as concerned with
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their welfare as with their discipline. This is the only conclusion
that can be arrived at on a holistic reading of the Army Act, Rules
and Regulations.
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23. As per our analysis above, the exception to th is Rule is
restricted to the case of Deserters and that too where the CO of
the Unit to which they belong is not readily and easily available.
Secondly, an SCM must be the exception and not the Rule. It can
only be convened where the exigencies demand an immediate
and swift decision without which the situation will indubitably be
exacerbated with widespread ramifications. Obviously, where the
delinquent or the indisciplined action partakes of an individual
character or has civil law dimensions, an SCM should not be
resorted to. Delay would thus become fatal to an SCM. Thirdly,
the decision to convene an SCM must be preceded by a reasoned
order which itself will be amenable to Judicial Review. We are
certain that once this formality is complied with, the inevitable
disregard of the accused rights for a fair trial shall automatically
be restricted to those rare cases where the interests of maintaining
a disciplined military force far outweigh the protection of the minor
civil rights of a citizen of India.
24. In this analysis of the law in the context of the factual matrix
spelt out in the Petitions, we set aside the verdict of the impugned
SCMs on the short ground that it was not convened, constituted
and completed by the CO of the Unit to which the Petitioner
belonged. We are fully mindful of the fact that in Vishav Priya
Singh's petition the situation is a complex one, inasmuch as the
allegations have been levelled against the CO of the Unit to which
the Petitioner belongs. If the CO were to himself convene the
SCM it would tantamount to his being a judge in his own cause. It
has so often been quipped in the portals of the Com1 that hard
cases should not make bad law. Therefore, solution may lie in
constituting any other Court Martial, on an emergency footing if
the circumstances so dictate. None of the Petitioners have been
charged with the most reprehensible offence conceivable in the
Armed Forces, that is of Desertion. Even if so charged it would
have to have been further established, as a pre-condition for the
holding of an SCM by the CO of the Unit to which the Petitioner
was attached, that the CO of the Unit to which the accused
UNION OF INDIA & ORS. v. VISHAY PRIYA SINGH
[UDAY UMESH LAUT, J.)
belonged was serving in a high altitude area, or overseas or engaged
in counter-insurgency operations oractive hostilities or in Andaman
and Nicobar Islands. We clarify that since the Trial is non est, the
Respondents shall be free to proceed against the Petitioners de
novo in accordance with law."
4. During the course of its judgment, the High Court of Delhi
considered Sections 116 and 120 of the Act a!Ong with.Note 5 below
Section 116 and Note 5 below Section 120 as well as Paragraph 381 of
the Defence Service Regulations (hereinafter referred to as the "DSR'~).
According to the High Court in cases concerning trial of deserters as
dealt with in. Paragraph 381 of the DSR, a specific exception was
carved out enabling CO of a unit other than the one to which the
accused belonged to convene, constitute and complete an SCM. Barring
such exception, according to the High Court, it is the CO of the unit to
which the accused belonged, who alone is empowered to convene,
constitute and complete an SCM. The High Court further held that for
convening an SCM it was imperative that immediate action was
manifestly necessary.
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5. Along with the Appeals arising from the decision of the High
Court of Delhi, Civil Appeal Nos.2547c2550 of2011 at the instance of
Original Writ Petitioners, challenging the correctness of the common
decision of the High Court of Rajasthan. at Jaipur dated 31.08.2006 · . E
dismissing their Appeals arising from dismissal of their writ petitions,
were also placed before us. Though the question as regards competence
·of the CO of a Unit other than the one to which the accused belonged to
convene, eonstitute and complete an SCM, was not raised before the
High Court of Rajasthan, the other question as to the circumstances in ·
which an SCM could be convened rather than a GCM or DCM or SGCM
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did arise in the matters dealt with by the High Court of Rajasthan. In
any case, we proceed.Jo consider these appeals even with regard to the
former question.
6. The factual aspects of the matters which were dealt with by the
High Court ofRajasthan, as found in its judgment relating to the present
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appellants, were as und~r:-
"In Writ Petition no.2490/1987 petitioner Roop Singh was found
by the Duty Officer running from the direction. of out-of-bound
areaatabout0030 hours in the night of 17/18 May, 1987 when he
was supposed to be on sentry duty for which he was tried by
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summary court martial for committing an act prejudicial to good
order and military discipline under Section 63 of the Army Act.
Before being subjected to court-martial, summary of evidence
was recorded in presence of an independent witness, the charge
and names of witness were made known to him. The petitioner
refused to accept copy of the charge-sheet and the summary of
evidence. During summary court-martial proceedings, in the
circumstances, charge was read over to him in presence of two
witnesses. On completion of the proceedings, he was sentenced
to one year's rigorous imprisonment which was later reduced to
six months' and dismissed from service on 14.6.1987. From the
reply of the respondents it appears that the incident had taken
place when the unit was posted 1.5 kms. from the border during
'Operation Trident'. An incident had occurred in the neighbourhood
in which a woman had been reportedly raped by some army
personnel and in the circumstances, instructions had been issued
declaring the adjoining villages as 'out-of-bound' area. In violation
of the instructions, the petitioner went to the said area, he was
seen in the midnight running from that direction. He took the plea
that he had gone to that side to know the password. The reply
states that earlier two red ink entries had been made against the
petitioner.(i) for absence without leave under Section 39(a) of
the Army Act; and (ii) for committing act prejudicial to good order
and military discipline (consuming liquor) under Section 63 of the
Army Act. At the relevant time, he had four years and ten months
service to his credit including one year as a recruit.
Jn Writ Petition No.5506/1994, petitioner Di lip Singh was enrolled
in the Army in 1986 as Sepoy (Nursing Assistant). I-le was charged
with absence without leave from the unit lines from 1600 to 2200
hours on 1.8.1993 and using criminal force to his superior officers
namely Sub./NA 1-1.N.Gautam and Hav/NA Shawale Babasahab
Shrimuri whom he allegedly assaulted by hands on their face and
chest. Summary of evidence was recorded. He declined to crossexamine and accepted his guilt. He was supplied copy of chargesheet, summary of evidence. At the stage of summary courtmartial, he was again apprised of the charges and consequences
of his pleading guilty. The petitioner again admitted his guilt. He
was punished with three months' rigorous imprisonment and
dismissed from service on 7.8.1993. He preferred appeal without
UNION OF INDIA & ORS. v. VISHAY PRIYA SINGH
[UDAY UMESH LAUT, J.]
any success.
In Writ Petition No.5689/1994, petitioner Bhagwan Sahai was
enrolled as Sepoy in the Army on 8.1979. While he was posted
with Det.515 ASC Bn attached with 5011 ASC Bn(MT), he was
sanctioned 42 days annual leave from 16.3.1992 to 26.4.1992. He
failed to report on 27.4.1992. He had been informed about refusal
of his request for extension ofleave. He ultimately submitted joining
on 2.2.1993 after remaining wilfully absent from duty for 302 days.
Charge-sheet was served and summary of evidence was recorded
in course of which he was afforded opportunity to cross-examine
witness and examine his own in defence. He declined to crossexamine the witnesses and make any statement in his defence.
Instead, he admitted his guilt. Summary Court Martial was
thereafter held. Charge was explain~d and papers were supplied,
and he was provided with 'friend of accused' and informed of the
consequences of pleading guilty. After going through the papers
supplied to him, he admitted his guilt which was recorded. He
was declared deserter and held guilty of the charge under Section
38( I) of the Army Act and dismissed from service on 8.4.1993.
He preferred appeal which was rejected on 26. 7 .1994.
In Writ Petition No.6134/1994, petitionerChatar Singh was enrolled
in the Army on 28.9.1976. He proved to be the habitual absentee.
He remained absent from duty without leave for 12 days from
1.1.1982 to 2.11.1982 for which he was awarded punishment of
21 days rigorous imprisonment in military custody on 6.12.1982.
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He overstayed leave without sufficient cause for 05 days from
8.10.1991 to 13.10.1991 for which he was awarded penalty of
reduction in rank after Summary Court Martial. The punishment
· Fwas set aside on technical ground and the authority was advised
to hold de novo proceeding. After fresh proceeding, the same
punishment of reduction in rank was awarded on 24.10.1992. He
again remained absent without leave for 16 days from 28.10.1992
i.e. within four days of the above order of punishment. Earlier
too, he had overstayed leave for 02 days from 13. 7 .1992 to
14.7.1992, and remained absent without leave from 19.8.1992 to
01.09 .1992 for which he was subjected to court martial. In course
of the summary court marital proceeding he pleaded guilty. He
had been told about nature of the charge and consequences of
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pleading guilty and difference in procedure in case of pleading
guilty. He was found guilty of the charge under Section 39 (a) and
(b), and dismissed from service on 5.1.1993. He preferred appeal
which was rejected on 28.6.1994."
7. The submissions advanced before the High Court ofRajasthan
were rejected by the High Court after considering the relevant statutory
provisions. It was observed that the rules in question not only contained
sufficient safeguards but also ensured fair degree of transparency in the
proceedings. It was observed:-
"lf the decision of the commanding officer under Rule 22 to try
an accused by summary Court-martial depends on the nature of
the charge, evidence collected at the stage of hearing on the point
of charge, it is clear that trial by summary Court-martial depends
on facts of the particular case, and ifthat is so, the sub-mission of
the counsel that the choice of trial by summary Court-martial
depends on status of the offender and not on nature of the offence
must be rejected. This was the thrust of the case of the petitioner.
We find no substance therein"
8. Civil Appeal CAD Nos.13803 and 18038 of2015, atthe instimce
of Union of India seek to challenge common judgment and order dated
13.12.2015 passed by the Armed Forces Tribunal, Kolkata in TA Nos.6
and 8 of 2011. Though one of the questions raised was relating to the
competence of the CO of the Unit where the accused were later sent
on attachment, to convene, constitute and complete the SCM, the Tribunal
found on facts that the offence in respect of a major charge was not
proved. It however found that the charge in respect of a minor offence
stood proved and thus awarded punishment of seven days' detention
with consequential directions protecting their retiral benefits.
9. In Civil Appeal No.6679of2015 decision of the High Court of
Rajasthan dated 24.01.2014 dismissing Civil Writ Petition No.401 of2014
affirming the decision of the Armed Forces Tribunal, Jaipur in dismissing/
rejecting the challenge to the sentence of dismissal from service and
rigorous imprisonment awarded by an SCM, is under challenge before
this Court. In this case the challenge was negated on facts though one
of the questions raised pertained to the competence of the co of the
attached Unit, to convene, constitute and complete the SCM.
I 0. In these appeals, by order of this Cou.rt dated 12.11.2014, Mr.
UNION OF INDIA & ORS. v. VISHAY PRIYA SINGH
[UDAY UMESH LAUT, J.]
Arun Mohan and Ms. Jyoti Singh, learned Senior Advocates were
appointed amicus curiae to assist this Court. We are deeply grateful
for the assistance rendered by them. It was submitted by Mr. Arun
Mohan, learned Amicus Curiae that absence of an appeal from the
decision of an SCM did weigh with the High Court of Delhi but that
factor would stand modified with the enactment of the Armed Forces
Tribunal Act, 2007 which came into force on and with effect from
16.02.2008. He further submitted that Note 5 below Section 120
considered by the High Court was already deleted vide Government
Order dated 28.01.200 I. In his submission, the sentence appearing in
Paragraph 20 of the judgment of the High Court, "From the multitude of
possible offences it is only those envisaged in Sections 34, 37 and 69,
that can be tried by an SCM, further fortifying the exceptional and
extraordinary character of an SCM" was not correct. Ms. Jyoti Singh,
learned Amicus Curiae submitted that SCM was available only in the
Army Act and not in the Air Force Act or in the Navy Act, that in
SCMs there was less observance of due process of law even though
the procedure contained in the Statute was in tune with concept of fair
trial, that the quantum of punishment awarded in SCMs was hugely
disproportionate to the offences and that the provisions enabling convening
of an SCM ought to be used in rarest of the rare cases. In her
submission an accused should be tried by CO of the parent unit of the
accused. Mr. R. Balasubramanian appearing for the Union of India
submitted that there was nothing in the Act to suggest that it is only the
CO of a Unit to which the accused belonged, who alone could validly
convene, constitute and complete an SCM and according to him even a
CO of a Unit to which the accused was attached or later sent on
attachment would have requisite competence. Learned Counsel appearing
for the respondents led by Mrs. Rekha Patti, learned Senior Advocate
supported the view taken by the High Court of Delhi. In matters arising
from the High Court of Rajasthan, learned counsel appearing for the
appellants led by Ms. Aishwarya Bhati, learned Advocate submitted that
.the view taken by the High Court of Rajasthan was not correct.
11 . Chapter X of the Act deals with "Courts Martial" and the
relevant Sections are:-
"108. Kinds of courts- martial. -For the purposes of this Act
there shall be four kinds of courts- martial, that is to say,-
(a) general courts- martial;
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(b) district courts- martial;
(c) summary general courts- martial; and
(d) summary courts- martial.
[2016) 5 S.C.R.
109. Power to convene a general court- martial.- A general
court- martial may be convened by the Central Government or
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the Chief of the Army Staff or by any officer empowered in this
behalf by warrant of the Chief of the Army Staff.
110; Power to convene a district court- martial. -A district
court- martial may be convened by an officer having power to
convene a general court- martial or by any officer empowered in
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this behalf by warrant of any such officer.
112. Power to convene a summary general court- martial. -
The following authorities shall have power to convene a summary
general court- martial, namely,-
(a) an officer empowered in this behalf by an order of the
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Central Government or of the Chief of the Army Staff;
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(b) on active service, the officer commanding the forces in the
field, or any officer empowered by him in this behalf;
( c) an officer commanding any detached portion of the regular
Army on active service when, in his opinion, it is not practicable,
with due regard to discipline and the exigencies of the service,
that an offence should be tried by a general court- martial.
113. Composition of general court- martial.- A general courtmartial shall consist of not less than five officers, each of whom
has held a commission for not less than three whole years and of
whom not less than four are of a rank not below that of captain.
114. Composition of district court-martial. -A district courtmartial shall consist ofnot less than three officers, each of whom
has held a commission for not less than two whole years.
115. Composition of summary general court-martial. -A
summary general court- martial shall consist of not less than three
officers.
116. Summary court-martial. -(I) A summary court- martial
may be held by the commanding officer of any corps, department
or detachment of the regular Army, and he shall alone constitute
the court.
UNION OF INDIA & ORS. v. VISHAY PRIYA SINGH
489
[UDAY UMESH LAUT, J.]
(2) The proceedings shall be attended throughout by two other
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persons who shall be officers or junior commissioned officers or
one of either, and who shall not as such, be sworn or affirmed.'
118. Powers of general and summary general courtsmartial. -A general or summary general court- martial shall have
power to try any person subject to this Act for any offence
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punishable therein and to pass any sentence authorised thereby.
119. Powers of district courts-martial. -A district court- martial
shall have power to try any person subject to this Act other than
an officer or a junior commissioned officer for any offence made
punishable therein, and to pass any sentence authorised by this
Act other than a sentence of death, transportation, or imprisonment
for a term exceeding two years: Provided that a district courtmartial shall not sentence a warrant officer to imprisonment.
120.