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1996 (3) TMI 472 - SC - Indian LawsInterpretation of statutes - Court martial - Validity of the trial commencement under Section 123 of the Army Act 1950 - computation of six month s period prescribed in Section 123(2) - Meaning of the words trial commenced as used in Section 123(2) - Applicability of the maxim nullus commodum capere potest de injuria sua propria . Held that - It is true that the legislature has made a distinction between Section 122 3 and Section 123 2 . While in the former power to exclude time taken in specified contingencies is given in the little no such provision is made for exclusion of the time since the accused will be kept under detention after he ceased to be governed by the Act. It is equally settled law that penal provisions would be construed strictly. As soon as general Court martial GCM assembles the members are charged with the duty to examine the charge/charges framed in summary trial to give an opportunity to the accused to exercise his right to object to the empanelment of member/members of the GCM to amend the charge and the right to plead guilty or not guilty. These procedural steps are integral and inseparable parts of trial. If the accused pleads guilty further trial by adducing evidence by the prosecution is obviated. The need for adduction of evidence arises only where the accused pleads not guilty . In that situation the members are required to take oath or affirmation according to Rule 45. It is to remember that the members get right power and duty to try an accused only on appointment and the same ends with the close of the particular case. Therefore Rule 45 insists on administration of oath in the prescribed manner. For a judicial officer the act of appointment gives power to try the offender under Criminal Procedure Code; warrant of appointment by the President of India and the oath taken as per the form prescribed in Schedule III of the Constitution empowers the High Court/Supreme Court Judges to hear the petition or appeals. For them need to take oath on each occasion of trial or hearing is obviated. Therefore the occasion to take oath as per the procedure for GCM and the right of the member of the GCM arises with their empanelment GCM and they get power to try the accused the moment they assemble and commence examination of the case i.e. chargesheet and the record. The trial therefore must be deemed to have commenced the moment the GCM assembles and examination of the charge is undertaken. Thus we hold that the trial commences the moment GCM assembles to consider the charge and examines whether they would proceed with the trial. The preceding preliminary investigation is only part of the process of investigation to find whether a charge could be framed and placed before the competent authority to constitute GCM. The Division Bench of the High Court has recorded the finding that the respondent has absconded from open military detention. From the narration of the facts it is clear that the respondent was bent upon protracting preliminary investigation. Ultimately when the GCM was constituted he had challenged his detention order. When he was unsuccessful and the trial was to begin he escaped the detention to frustrate the commencement of the trial and pleaded bar of limitation on and from March 1 1987. The respondent having escaped from lawful military custody and prevented the trial from being proceeded with in accordance with law the maxim nullus commodum capere potest de injuria sua propria squarely applies to the case and he having done the wrong cannot take advantage of his own wrong and plead bar of limitation to frustrate the lawful trial by a competent GCM. Therefore even on the narrow interpretation we hold that continuation of trial from March 2 1987 which commenced on February 25 1987 is not a bar and it is a valid trial. The appeal is accordingly allowed. The judgment of the High Court is set aside. The writ petition stands dismissed.
1. ISSUES PRESENTED and CONSIDERED
The core legal questions considered by the Court were:
2. ISSUE-WISE DETAILED ANALYSIS Issue 1: When does the trial "commence" within the meaning of Section 123(2) of the Army Act? Legal Framework and Precedents: Section 123(2) of the Army Act, 1950, prescribes a six-month limitation period for commencing trial of a person who has ceased to be subject to the Act. The question was the meaning of "trial commenced". The Court examined the Army Act and Army Rules, 1954, particularly Rules 41 to 48, which govern the constitution and procedure of a General Court Martial (GCM). The Court also referred to definitions of "trial" and "commence" from various legal dictionaries and authoritative sources, including Collins English Dictionary, Ballentine's Law Dictionary, Black's Law Dictionary, and prior Supreme Court decisions on analogous statutory interpretation issues. In particular, the Court relied on the principle that "trial" means the judicial examination and determination of issues between parties, including all procedural steps integral to adjudicating guilt or innocence. "Commence" means to initiate by performing the first act or step necessary to proceed with the trial. The Court also considered precedents from election law cases where the word "trial" was held to include the entire proceedings from the filing of the petition until final adjudication, including preliminary steps. Court's Interpretation and Reasoning: The Court held that the trial under Section 123(2) commences when the General Court Martial assembles and begins the judicial examination of the charges, including considering the charge sheet, satisfying itself of its constitution and jurisdiction, and affording the accused the opportunity to plead and raise objections. This includes procedural steps such as objections to the composition of the Court, reading and amendment of charges, and arraignment of the accused. The Court rejected the narrow view that trial commences only upon administration of oath to the members and examination of witnesses after a plea of not guilty. Instead, the broader view was adopted, consistent with the scheme of the Act and Rules, that trial begins with the assembly of the Court and consideration of the charges, as these are integral and inseparable parts of the trial process. Key Evidence and Findings: The GCM assembled on February 25, 1987, examined the charge sheet and summary of evidence, and sought to proceed with the trial. The accused was absent, having escaped lawful custody. The Court adjourned the trial to secure the accused's presence. These procedural steps were recorded in the Court-martial proceedings. Application of Law to Facts: Since the GCM assembled and took cognizance of the charges within six months from the respondent's retirement (before February 28, 1987), the trial was held to have commenced within the statutory limitation period. Treatment of Competing Arguments: The respondent argued that the trial commenced only upon formal arraignment and administration of oath, which occurred after his surrender on March 1, 1987, thus beyond the six-month period. The Court rejected this narrow interpretation as inconsistent with the statutory scheme and procedural realities of military trials. Conclusion: The trial commenced on February 25, 1987, when the GCM assembled and considered the charges, which was within the six-month limitation period prescribed by Section 123(2). Issue 2: Effect of the respondent's escape from lawful custody on the limitation period and trial validity Legal Framework: Section 122(3) of the Army Act allows exclusion of time spent evading arrest in computing limitation for trial of persons subject to the Act. However, Section 123(2) does not expressly provide such exclusion for persons who have ceased to be subject to the Act. The Court examined whether the respondent's absence tolled the limitation period or barred the trial. Court's Interpretation and Reasoning: The Court held that the respondent, having escaped lawful military custody and absented himself from the trial, cannot take advantage of his own wrong to claim the trial is barred by limitation. The legal maxim nullus commodum capere potest de injuria sua propria was applied to estop the respondent from pleading limitation to frustrate the trial. Key Findings: The Division Bench of the High Court found as a fact that the respondent absconded from open military detention without permission. The respondent's absence caused adjournments and delay in trial commencement. Application of Law to Facts: The respondent's conduct in absconding and frustrating the trial process prevented the trial from proceeding, and therefore the limitation period was tolled. The trial was validly commenced on February 25, 1987, and the subsequent continuation after the respondent's surrender was lawful. Treatment of Competing Arguments: The respondent contended that the limitation period should strictly apply, and no exclusion was permissible. The Court rejected this strict construction in light of the respondent's deliberate avoidance of trial. Conclusion: The respondent's escape and absence tolled the limitation period, and he is estopped from pleading limitation to bar the trial. The trial was validly commenced and continued. Issue 3: Justiciability of trial at a belated stage Legal Framework and Precedents: The Court considered whether the trial at a belated stage was barred by principles of justice or equity. Reliance was placed on a precedent where retrial was refused due to delay and failure of prosecution to prove the case. Court's Reasoning: The Court distinguished the present case from the precedent, noting that the delay was caused by the respondent's own conduct in absconding and frustrating trial. Accepting the respondent's contention would put a premium on avoidance of trial. Conclusion: The trial at the belated stage is justiciable and not barred by equity or justice considerations. Issue 4: Venue of trial Legal Framework: The offence and witnesses were located in Pune, and the trial was ordered to be conducted there. Court's Reasoning: The Court found no equity or justification to shift the trial to Delhi where the respondent surrendered, given the locus of offence and witnesses was Pune. Conclusion: The trial should be conducted at Pune and not shifted to Delhi. 3. SIGNIFICANT HOLDINGS "The trial, therefore, must be deemed to have commenced the moment the GCM assembles and examination of the charge is undertaken." "The words 'trial commences' employed in Section 123(2) shall be required to be understood in the light of the scheme of the Act and the Rules." "The respondent having escaped from lawful military custody and prevented the trial from being proceeded with in accordance with law, the maxim nullus commodum capere potest de injuria sua propria squarely applies to the case and he having done the wrong, cannot take advantage of his own wrong and plead bar of limitation to frustrate the lawful trial by a competent GCM." "The trial began on February 25, 1987 on which date the Court-martial assembled, considered the charge and the prosecution undertook to produce the respondent who was found escaped from the open detention." "The trial at this belated stage is justiciable and not barred by principles of equity and justice." "The trial should be conducted at Pune where the offence and witnesses are located and not shifted to Delhi."
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