TMI Blog1996 (3) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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. - - - - - Dated:- 22-3-1996 - K. RAMASWAMY, SAGHIR S. AHMAD AND G.B. PATTANAIK, JJ JUDGMENT This appeal on reference to this Bench raises an interesting question of law. The respondent while working as Major General, Army Ordnance Corps., Southern Command, Pune between December 1, 1982 and July 7, 1985 was in-charge of purchase. The Controller General of Defence Accounts in special audit on the local purchases sanctioned by the respondent prima facie found that respondent had derelicted his duty and action under the Act was initiated against him. At that time, the respondent was attached to College of Military Engineering, Pune and was promoted as Major General. After initiation of the proceedings he was ordered to retire which he had challenged by filing Writ Petition No.3189 of 1986 in the Bombay High Court which stood dismissed on August 29, 1986. On August 30, 1986, action was initiated against the respondent under Section 123 of the Army Act, 1950 [for short, the Act ]. He was kept under open arrest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced under closed arrest w.e.f. 2130 hours on the said day. The Court-martial assembled on March 2, 1987 but it appears that the respondent had, in the meanwhile, filed writ petition in the Bombay High Court challenging the jurisdiction of the Court-martial to try him. In W.P. No.301 or 1987, invoking the provisions of Section 123 [2] of the Acts the Division Bench had held that the trial of the accused had not commenced within six months of his ceasing to be subject to the Act. The trial by the Court-martial was, therefore, held to be illegal and accordingly writ was issued. Calling in question this order, this appeal has been filed. It is undisputably clear that the respondent had retired from service on August 31, 1986. He was kept under open arrest from August 26, 1986 and had escaped from lawful military custody on the intervening night of February 15 and 16, 1987 and voluntarily surrendered on March 1, 1987. Though the respondent has pleaded in the High Court that he had gone with prior permission of the authorities, the same has been denied by the officer concerned. The High Court has recorded, as a fact, that the respondent had absconded himself. Section 123 of the Act f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self surrendered. Since presence and participation by the respondent in the trial was a condition precedent, due to non-availability of the respondent, the Court martial could not be proceeded with. After re-appearance of the respondent or, March 1, 1987, further steps were taken to conduct the trial by the Court martial. The trial, therefore, was not barred by operation of sub-section [2] of Section 123. Shri Bobde, appearing for the respondent, on the other hand, contended that Section 122 [3] provides for exclusion of time during which the accused avoided arrest after the commission of the offence. Similar provision, preceding amendment to sub-section [2] of Section 123 is not expressly made available on statute. The offence being of criminal nature, having regard to the provisions of Section 123 limitation should strictly be construed, particularly when it involves liberty of the citizen. He argues that the legislature had made a dichotomy of Sections 122 and 123 of the Act. The time during which the accused was not available cannot, therefore, be excluded in computation of six months period prescribed in sub-section [2] of Section 123. It is further contended that the tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "Offence" has been defined under sub-section [xvii] to mean "any act or omission punishable" under the Act and "includes a civil offence as hereinbefore defined". Chapter IX deals with "arrest and proceedings before trial". Section 101 enables custody of offenders. Under sub-section [1] thereof, any person subject to the Act who is charged with an offence may be taken into military custody. Under subsection [3] thereof, an officer may order into military custody of any "officer", though he may be of a higher rank, engaged in a quarrel, affray or disorder. Chapter X deals with "Court-martial" The details thereof are not material for the purpose of this case since the admitted position is that G.C.M. was ordered against the respondent which is not under challenge. Section 122 deals with "period of limitation for trial" of "any person" subject to the Act. As stated earlier, sub-section [3] thereof make provision for exclusion of time, in computation of the prescribed periods i.e., of any time spent by such person as a prisoner of war, or in enemy territory, or in evading arrest after the commission of the offence. Section 123 deals with liability of offenders who cease to be subje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of the Court martial are noticed. Rule 39 speaks of disqualification and ineligibility of officers for Court-martial. Rule 40 envisages composition of the GCM Rule 41 prescribes procedure to be followed at trial and constitution of Court-martial which is relevant for the purposes of this Court. The rule reads as under: "41. Inquiry be court as to legal constitution. [1] On the court assembling, the order convening the court shall be laid before it together with the charge sheet and the summary of evidence or a true copy thereof, and also the ranks, names, and corps of the officers appointed to serve on the court; and the court shall satisfy itself that it is legally constituted; that is to say- (a) that, so far as the court can ascertain, the court has been convened in accordance with the provisions of the Act and these rules; (b) that the court consists of a number of officers, not less than the minimum required by law and, save as mentioned in rule 38, not less than the number detailed; (c) that each of the officers so assembled is eligible and not disqualified for serving on that court-martial; and (d) that in the case of general court-martial, the offices are of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 67 deals with "announcement of sentence and signing and transmission of proceedings". It is true, as rightly contended by Shri Bobde that on administration of oath to the members of the Court-martial, the members swear to try the accused according to the provisions of Act and Rules etc. and to administer justice according to the Act without partiality, favour or affection. Under Rule 44, names of the members of the Court and presiding officer will be read over to the accused. He shall be asked, under Section 130, of his objections, if any, for trial by any officer sitting on the court. Any such objection shall be disposed or according to the Rules. The presence and participation by the accused, therefore, is an indispensable pre-condition. Rule 42 enjoins the court to be satisfied that the requirements of Rule 41 have been complied with. It shall, further, satisfy itself in respect of the charge brought before it and then proceed further. If he pleads "guilty", the procedure contemplated in Rule 54 is to be followed and if he pleads "not guilty", the procedure contemplated in Rule 56 shall be proceeded with and evidence recorded etc. The words "trial commences" employed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... menced within statute of limitations at time preliminary complaint or information is filed with magistrate in good faith and a warrant issued thereon... A criminal prosecution is "commenced" [1] when information is laid before magistrate charging commission of crime, and a warrant of arrest is issued, or [2] when grand jury has returned an indictment". In the "Words and Phrases" [Permanent Edition] Vol.42A, at page 171, under the head "Commencement", it is stated that ".4 trial commences at least from the time when work of empanelling of a jury begins". It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with performance of the first act or steps necessary or essential to proceed with trial. It would be seen from the scheme of the Act and the Rules that constitution of court-martial for trial of an offence under the Act is a pre-condition for commencement of trial. Members of the court-martial and the presiding officer on nomination get juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view that from a conpectus of the scheme or the Act and Rules the broader view appears to be more conducive to and consistent with the scheme of the Act and the Rules. As soon as 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 In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n s.90(2), and to decide that, we must have regard to the context and the setting of the enactment. Now, the provisions of the Act leave us in no doubt as to in what sense the word is used in s.90(2). It occurs in Chapter III which is headed "Trial of election petitions". Section 86(4) provides that if during the course of the trial any member of a Tribunal is unable to perform his functions, the Election Commission is to appoint another members, and thereupon the trial is to be continued. This provision must apply to retirement or relinquishment by a member, even before the hearing commences and the expression "during the course of trial" must therefore include the stages prior to the hearing. Section 88 again provides that the trial is to be held at such places as the Election Commission may appoint. The trial here must necessarily include the matters preliminary to the hearing such as the settlement of issues, issuing direction and the like. After the petition is transferred to the Election Tribunal under s.86, various steps have to be taken before the stage can be set for hearing it. The respondent has to file his written statement, issues have to be settled. If trial for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce are laid before the court. The court satisfy themselves as provided by Army Rules 41 and 42. I have satisfied myself, that no Court of Inquiry was held respect the matters forming the subject or the charge before this court martial. At this stage, the court observe that the Prosecutor and the Defending Officer have taken their respective places but the accused is not present before the court. The Prosecutor submits that the accused Shri Madan Lal Yadava formerly Lt Gen [Substantive Maj Gen] Madan Lal Yadava of Army Ordnance Corps School, Jabalpur retired from service with effect from 31 August 86 [AN]. He has been subjected to the provisions of Section 123 of the AA with effect from the same date and put under open arrest with effect from 1200 h on 30 August 1986. According to a note dated 15 February 1987, found in his room the accused had proceeded to Bombay to engage a suitable counsel. Though he had stated therein that he would keep the Comdt, NDA Khadakwasla informed about his whereabouts, they are not yet known. Vigorous efforts are being made to trace him out and produce him before the Court. In view of this he requests that the Court be adjourned till 1100 h 26 Feb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill seek no further adjournment on this account and if he is not in a position to produce the accused by that dates will seek sine die adjournment of the Court. The learned Defending Officer submits that he too has so far no information about the accused. Advice by the Judge Advocate Gentlemen, you have heard the submissions of the Prosecutor and the learned Defending Officer. The Prosecutor submitted before you that he would be in a position to produce the accused on 02 March 1987 and that he would not seek any further adjournment of the Court on this account in case he failed to secure his presence on or before that date. In the interest of the justice, you may therefore, consider granting him yet another adjournment to help secure the presence of the accused . The Court decide to adjourn until 0900 h on 2 March 1987." Accordingly, on March 2, 1987 when the court reassembled the accused was present, the charge was handed over to him and he asked for adjournment for 15 days and on advice it was adjourned to March 18, 1987 on which day the respondent informed the court of his filing the writ petition and the assurance given by the counsel appearing for the appellants in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd he is estopped to plead bar of limitation contained in Section 123 [2]. In Broom s Legal Maximum [10th Edn.] at page 191 it is stated "it is a maxim of law, recognized and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognized in Courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure. The reasonableness of the rule being manifest, we proceed at once to show its application by reference to decided cases. It was noted therein that a man shall not take advantage of his own wrong to gain the favourable interpretation of the law. In support thereof, the author has placed reliance on another maxim frustra legis auxilium quoerit qui in legem committit. He relies on Perry v. Fitzhowe [8 Q.B. 757]. At page 192, it is stated that if a man be bound to appear on a certain day, and before that day the obligee put him in prison, the bond is void. At page 193, it is stated that "it is moreover a sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned". At page 195, it is further stated that "a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable doubt. Under those circumstances, this Court had rightly declined to order retrial. But the ratio does not fit into the facts of this case. It is seen that the respondent had frustrated the trial by escaping from detention and reappeared after the limitation for trial of the offence was barred. Therefore, acceptance of the contentions would amount to putting a premium on avoidance. We find ourselves unable to agree with the view expressed by the Assam High Court in Gulab Nath Singh v. The Chief of the Army Staff [1974 Assam LR 260]. It is next contended that since the respondent had surrendered himself, trial could be conducted by GCM at Delhi. We find no equity in this behalf. The witnesses are at Pune; records are at Pune, and the offence has taken place at Pune. Therefore, the GCM should be conducted at Pune. We find no justification in shifting the trial to Delhi. The appeal is accordingly allowed. The judgment of the High Court is set aside. The writ petition stands dismissed. The appellants are at liberty to secure the presence of the respondent; it would be open to the respondent to surrender himself to closed military detention; and the respondent would keep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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