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TMI Blog1968 (9) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1965 the petitioner was posted as a Quarter Master and was transferred to Madras along with the Company. It appears that Wednesday, September 1, 1965 was to be celebrated as the Raising Day of the Unit when Games and Sports, entertainment and Bara Khana (evening dinner) were to be arranged. In this celebration, all officers and other ranks of the Unit had to take some part and a number of other Army officers were to be received and entertained on behalf of the Unit. At the variety entertainment Punjabis and Garhwalis took part and each party was given free one bottle of rum. But it is alleged that the Purbias were not given an opportunity to put up their show and were not given free a bottle of rum. They were consequently aggrieved for this reason. The variety entertainment concluded at about 1900 hours at the end of which rum was issued to the jawans. The bara khana was to commence at 2000 hours. As there was a delay in the assembly of the men at the dining hall, Maj. Agarwal sent the petitioner to the lines to find out the cause for the delay and to get the men quickly. The petitioner went to the lines and it is alleged that the accused used filthy language while addressing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the case to be handled by the Military authorities. On September 2, 1965, a Court of Enquiry_ under the provisions of Ch. VI. of the Army Rules was ordered by the Commander, Mysore and Kerala Sub-Area. After the Court of Inquiry had concluded the proceedings, a Court Martial was constituted by an order, dated August 11, 1966 by Major- General. S.J. Sathe, General Officer Commanding, Madras, Mysore and Kerala area to try the petitioner and other accused persons. The Court Martial assembled on August 18, 1966 and conducted its proceedings on several subsequent dates. In support of the case of the prosecution 30 witnesses were examined. At the Court Martial, the defended by an Advocate of the Madras High Court, petitioner was Sri Natarajan and he was also as by assisted a friend of the accused Major T.B. Narayanan. At the trial the Counsel for the petitioner cross-examined the witnesses for the prosecution and after the prosecution evidence was concluded, the petitioner said that he did not intend to call any defence witnesses. The petitioner, how- ever, submitted a written statement. He was also put various questions by the Court Martial to which he replied. After the Counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id offences. Section 69 states as follows: "69. Subject to the provisions of section 70, any person subject to this Act who at any place in or beyond India commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be tried by a court-martial and, on conviction, be punishable as follows, that is to say,-- (a) if the offence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and (b) in any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned." Section 70 provides: "A person subject to this Act who commits an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... require the officer referred to in section 125 at his option, either to deliver over the offender to the nearest magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central Government. (2) In every such case the said officer shall either deliver over the offender in compliance with the requisition or shall forthwith refer the question as to the court before which the proceedings are to be instituted for the determination of the Central Government, whose order upon such reference shall be final." Section 125 presupposes that in respect of an offence both a criminal court as well as a court-martial have each concurrent jurisdiction. Such a situation can arise in a case of an act or omission punishable both under the Army Act aS well as under any law in force in India. It may also arise in the case of an offence deemed to be an offence under the Army Act. Under the -scheme of the two sections, in the first instance, it is left to the discretion of the officer mentioned in s. 125 to decide before which court the proceedings shall be instituted, and, if the officer decides that they should be instituted before a court-martial, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them to the State Forensic Science Laboratory, Madras for chemical examination, it cannot be reasonably argued that there was a decision of the competent military authority under s. 125 of the Army Act for handing over the inquiry to the Criminal Court. On the other hand, the action of the General Officer Commanding in constituting the Court of Inquiry on September 2, 1965 indicates that there was a decision taken under s. 125 of the Army Act that the proceedings should be instituted before the Court-Martial. The second branch of the argument of the petitioner is based upon s. 549 of the Criminal Procedure Code which states: "(1) The Central Government may make rules consistent with this Code and the Army Act, the Naval Discipline Act and the Indian Navy (Discipline) Act, 1934, and the Air Force Act and any similar law for the time being in force as to the cases in which persons subject to military, naval or air force law, shall be tried by a Court to which this Code applies, or by Court martial, and when any person is brought before a Magistrate and charged with an offence for which he is liable, to be tried either by a Court to which this code applies or by a Court-martial, suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agistrate shall stay proceedings and if the accused is in his power or under his control, shall deliver him, with the statement prescribed in sub-section (1) of section 549 of the said Code to the authority specified in the said sub-section." "8. Notwithstanding anything in the foregoing rules, where it comes to the notice of a Magistrate that a person subject to military, naval or Air Force law has committed an offence, proceedings in respect of which ought to be instituted before him and that the presence of such person cannot be procured unless through military, naval or Air Force authorities, the Magistrate may by a written notice require the Commanding Officer of such person either to deliver such person to a Magistrate to be named in the said notice for being proceeded against according to law, or to stay the proceedings against such person before the court-martial, if since instituted, and to make a reference to the Central Government for determination as to the Court before which proceedings should be instituted." It was argued on behalf of the petitioner that there was no notice given by the Commanding Officer to the Magistrate under Rule 5 that the petitioner should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve a finding of guilt against the petitioner with regard to culpable homicide not amounting to murder unless the charge was .altered and amended in accordance with sub-rule 2 of Rule 50 of the Army Rules, 1954. It was also contended on behalf of the petitioner that the procedure contemplated by Rule 121(4) of the Army Rules was not followed by the Court- Martial and the finding of the Court-Martial must therefore be held to be defective. In our opinion, there is no warrant or justification for this argument since rules 50(2) and 121 (4) have no application to the present case. Rules 50 and 121 provide as follows: "50. Amendment of charge.--( 1 ) At any time during the trial, if it appears to the court that there is any mistake in the name or description of the accused in the charge-sheet, the court may amend the chargesheet so as to correct that mistake. (2) If, on the trial of any charge, it appears to the court at any time before it has begun to examine the witnesses, that in the interests of justice any addition to, commission from, or alteration in, the charge is required, it may report its opinion to the convening authority, and may adjourn, and the convening authority may ei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Court-Martial under s. 164 of the Army Act was illegal since no reason has been given in support of the order by the Chief of the Army Staff. It was also pointed out that the Central Government has also not given any reasons while dismissing the appeal of the petitioner under s. 165 of the Army Act and that the order of the Central Government must therefore be held to be illegal and ultra vires and quashed by the. grant of a writ in the nature of certiorari. In this context it is necessary to reproduce ss. 164 and 165 of the Army Act which are to the following effect: "164. (1) Any person subject to this Act who considers himself aggrieved by any order passed by any court-martial may present a petition to the officer or authority empowered to confirm any finding or sentence of such court-martial, and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates. (2) Any person subject to this Act who considers himself aggrieved by a finding or sentence of any court martial which has been confirmed, may present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irming authority or upon the Central Government to give reasons in support of its decision to confirm the proceedings of the Court Martial. Mr. Dutta has been unable to point out any other section of the Act or any of the rule made therein from which necessary implication can be drawn that such a duty is cast upon the Central Government or upon the confirming authority. Apart from any requirement imposed by the statute or statutory rule either expressly or by necessary implication, we are unable to accept the contention of Mr. Dutta that there is any general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision. In English law there is no general rule apart from the statutory requirement that the statutory tribunal should give reasons for its decision in every case. In Rex v. Northumberland Compensation Appeal Tribunal(1) it was decided for the first time by the Court of Appeal that if there was a "speaking order" a writ of certiorari could be granted to quash the decision of an inferior court or a statutory tribunal on the ground of error on the face of record. In that case, Denning, L.J. pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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