TMI Blog1968 (9) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissed. - W.P.(C) 118 OF 1968 - - - Dated:- 20-9-1968 - A. N. GROVER, G. K. MITTER, V. RAMASWAMI, M. HIDAYATULLAH AND J.C. SHAH, JJ. JUDGMENT In this case the petitioner has obtained a rule from tiffs Court asking the respondents to show cause why a writ in the nature of certiorari should not be issued under Art 32 of the Constitution for calling up and quashing the proceedings before the General Court Martial No. JAG 26/66-67/AA of 1965 from the Judge Advocate General (Army branch), Army Headquarters whereby the petitioner was found guilty of charges under s. 304 and s. 149 of the Indian Penal Code and sentenced to a period of 6 years rigorous imprisonment and cashiering. Cause has been shown by the Attorney-General on behalf of the Union of India and other respondents to whom notice of the rule was ordered to be given. The petitioner was commissioned in the Indian Army in February, 1964 and was posted as Second Lt. (E.C.-55461) and was attached to 397 Engineering Construction Equipment Company in December, 1964. In August, 1965 the petitioner was posted as a Quarter Master and was transferred to Madras along with the Company. It appears that Wednesday, September 1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d were found standing near the place where Spr. Bishwanath Singh had fallen. Consequently, Maj. Agarwal arrived at the scene and took Spr. Bishwanath Singh to. the MI room where he was found dead by Maj. Koley, the Medical Officer. It appears that on September 2, 1965 at about 0400 hours the matter was reported to the Civil Police by Second Lt. F.D.A. Jesudian. A case under s. 302, Indian Penal Code was registered as crime No. 726/1965 at Pallavaran Police Station, Madras. Sri Bashyam, Inspector of Police reached the place of occurrence at 0430 hours on the same date. He inspected the dining hall and seized certain exhibits produced by Maj. Agarwal. He also held inquest on the deadbody of Spr. Bishwanath Singh and sent the dead-body for postmortem examination to. the mortuary, Madras General Hospital through Police Constable No. 1407, Ratnam. He sent the exhibits seized to the State Forensic Science Laboratory, Madras for chemical examination. At 1330 hours on the same date Sri Bashyam stopped further investigations as Lt. Col. Bajpai wanted 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 Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome detail.Section 2 of the Army Act, 1950 (Act 46 of 1950), hereinafter called the 'Army Act', describes the different categories of army personnel who are subject to the Army Act. Section 3 (ii) defines a "civil offence" to mean "an offence which is triable by a criminal court"; s. 3(vii) defines a "court-martial" to mean "a court" to mean "a court of ordinary criminal justice in any part of India other that the state of Jammu and Kashmir" ; s. 3(xvii) defines "offence" to mean "any act or omission punishable under this act and includes a civil offence"; and s. 3 (xxv) declares that "all words and expressions used but not defined in this Act and defined in the Indian Penal Code shall be deemed to have the meanings assigned to them in that code." chapter is "Offences". As we have already noticed, the word "offence" is defined to mean not only any act or omission punishable under the Army Act, but also a civil offence. Sections 34 to 68 define the offences against the Act triable by court-martial and also indicate the punishments for the said 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt-martial; but where a civil offence is also an offence under the Act or deemed to be an offence under the Act, both an ordinary criminal court as well as a court-martial would have jurisdiction to try the person committing the offence. Such a situation is visualized and provision is made for resolving the conflict under ss. 125 and 126 of the Army Act which state: "125. When a criminal court and a court-martial have each jurisdiction in respect of an offence, it shall be in the discretion of the officer commanding the army, army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which court the proceedings shall be instituted, and, if that officer decides that they should be instituted before a court- martial, to direct that the accused person shall be detained in military custody. 126. (1 ) When a criminal court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of any alleged offence, it may, by written notice, require the officer referred to in section 125 at his option, either to deliver over the offender to the nearest magistrate to be pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Madras, Mysore and Kerala Area and that authority had decided on September 2, 1965 that the matter should be tried by a Court-Martial and not by the Criminal Court. On the same date, the General Officer Commanding, Madras, Mysore Kerala Area had ordered the constitution of the Court-Martial under Ch. VI of the Army Rules to investigate into the case of the petitioner and the other accused persons. There was admittedly no. direction by the Commander of that area to hand over the proceedings to the Criminal Court. It is true that Maj. Agarwal had directed a report to be lodged with the Civil Police at 4.00 a.m. on September 2, 1965. It is also true that Sri Bashyam, Inspector of Police had inspected the place of occurrence, seized certain exhibits and held inquest of the deadbody of Spr. Bishwanath Singh. Sri Bashyam has admitted that he stopped investigations on the same date as directed by the military authorities. Merely because Sri Bashyam conducted the inquest of the dead-body of Spr. Bishwanath Singh or because he seized certain exhibits and sent them to the State Forensic Science Laboratory, Madras for chemical examination, it cannot be reasonably argued that there was a dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such authority." "4. Before proceeding under clause (a) of rule 3 the Magistrate shall give written notice to the Commanding Officer of the accused and until the expiry of a period of seven days from the date of the service of such notice he shall not- (a) convict or acquit the accused under sections 243, 245, 247 or 248 of the Code of Criminal Procedure, 1898 (V of 1898), or hear him in his defence under section 244 of the said Code; or (b) frame in writing a charge against the accused under section 254 of the said Code; or (c) make an order committing the accused for trial by the High Court or the Court of Sessions under section 213 of the said Code." "5. Where within the period of seven days mentioned in rule 4, or at any time thereafter before the Magistrate has done any act or issued any order referred to in that rule, the Commanding Officer of the accused or competent military, naval or Air Force authority, as the case may be, gives notice to the Magistrate that in the opinion of such authority, the accused should be tried by a court-martial, the Magistrate shall stay proceedings and if the accused is in his power or under his control, shall deliver him, with the stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is brought before the Magistrate after submission of a charge- sheet. The provisions of this rule cannot be invoked in a case where the police had merely started investigation against a person subject to. military, naval or air force law. With regard to the holding of the inquest of the dead- body of Spr. Bishwanath Singh it was pointed out by the Attorney-General that Regulation 527 of the Defence Services Regulations has itself provided that in cases of unnatural death that is death due to suicide, violence or under suspicious circumstances information should be given under s. 174, Criminal Procedure Code to the Civil authorities, and the conduct of Maj. Agarwal in sending information to the Civil Police was merely in accordance with the provisions of this particular regulation. For these reasons we hold that Counsel for the petitioner is unable to make good his argument on this aspect of the case. We proceed to consider the next argument presented on behalf of the petitioner, namely, that even if the Military Court-Martial had jurisdiction, it could not give a finding of guilt against the petitioner with regard to culpable homicide not amounting to murder unless the charge was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d down in the alternative, even if conviction upon one charge necessarily connotes guilt upon the alternative charge or charges." In the present ease there was no necessity for amending the charge by the Court-Martial under Rule 50(2) because that subrule only relates to an alteration of charge before the examination of witnesses. The Court-Martial has also not contravened the provisions of Rule 121 (4) because that sub- rule is not attracted to the present ease. On the contrary, the finding of the Court Martial is justified in view of the language of s. 139(6) of the Army Act which states :-- "139. (6) A person .charged before a court-martial with an offence punishable under section 69 may be found guilty of any other offence of which he might have been found guilty if the provisions of the Code of Criminal Procedure., 1898, were applicable." We accordingly reject the argument of learned Counsel for the petitioner on this part of the case. Finally it was contended on behalf of the petitioner that the order of the Chief of the Army Staff confirming the proceedings of the Court-Martial under s. 164 of the Army Act was illegal since no reason has been given in support of the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this context to refer to Rules 61 and 62 of the Army Rules which prescribe the standard form of recording the opinion of the Court Martial on each charge and of announcement of that finding. These rules omit all mention of the evidence or the reasoning by which the finding is reached by the Court Martial. Rules 61 and 62 are to the following effect: 61. Consideration of finding.--(1) The court shall deliberate on its finding in closed court in the presence of the judge- advocates. (2) The opinion of each member of the court as to the finding shall be given by word of mouth on each charge separately. 62. Form, record and announcement of finding.-(1) The finding on every charge upon which the accused is arraigned shall be recorded and, except as provided in these rules, shall be recorded simply as a finding of 'Guilty' or of 'Not guilty'. (10) The finding on each charge shall be announced forthwith in open court as subject to confirmation." In the present case it is manifest that there is no express obligation imposed by s. 164 or by s. 165 of the Army Act on the confirming authority or upon the Central Government to give reasons in support of its decision to confirm the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party genuinely interested the reasons for its decision. Section 12 of the Act states that when a tribunal mentioned in the First Schedule of the Act gives a decision it must give a written or oral statement of the reasons for the decision, if requested to do so on or before the giving or notification of the decision. The statement may be refused or the specification of reasons restricted on grounds of national security, and the tribunal may refuse to give the statement to a person not principally concerned with the decision if it thinks that to give it would be against the interests of any person primarily concerned. Tribunals may also be exempted by the Lord Chancellor from the duty to give reasons but the Council on Tribunals must be consulted on any proposal to do so. As already stated, there is no express obligation imposed in the present case either by s. 164 or by s. 165 of the Indian Army Act on the confirming (1) [1952] 1 K.B. 338. 192 authority or on the Central Government to give reasons for its decision. We have also not been shown any other section of the Army. Act or any other statutory rule from which the necessary implication can be drawn that such a duty is cast ..... X X X X Extracts X X X X X X X X Extracts X X X X
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