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TMI Blog1972 (11) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed an order directing the revision of the sentence. Thereafter the petitioner was brought before the same Court Martial, as had tried him earlier, and he was asked whether he wanted to address the Court. On receiving a reply in the negative, the Court, after considering the observations of the confirming authority, revoked the earlier sentence which they had imposed on the petitioner and sentenced him to be cashiered and to suffer rigorous imprisonment for two years. Brig. D. P. Bhilla, the Officiating General Officer Commanding 23 Mountain Division, referred the finding and sentence for confirmation to the Chief of the Army Staff, who in due course confirmed the finding and the sentence. The present petition is filed under Article 32 of the Constitution for quashing the order passed by the Chief of the Army Staff, after setting aside the order passed by Maj-Gen. Hira. Shri A. K. Sen appearing on behalf of the petitioner raised four points in support of his contention that the order passed against, the petitioner should be quashed: 1. The authority to confirm the sentence passed by a Court Martial does not confer on the confirming authority the power to enhance the sentence. Tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be awarded, the court should fully take into consideration the following observations of the Confirming Officer. 2. The accused was convicted by the Court, under Army Act Section 69 for committing a civil offence, that is to say, Robbery, contrary to section 392 of the Indian Penal Code, the particulars hereby averred that he, at HAJIGANJ (BANGLA DESH) on 11 December 1971, by causing fear of instant hurt to the Custodians committed Robbery in respect of the undermentioned articles, the property belonging to the persons indicated as follows (a) The property of the United Bank Ltd. COMILLA Dist. (i) Cash in Pakistan Currency ₹ 11,222.91 (ii) 28-12 Bore guns Registered Two with s No. 027373 and 342. Two with s cartridges. (iii) Wall clock. One (iv) Telephone Set Auto TIP (Sky Blue) One (v) Telephone CE without hand set (Black) One (vi) Pens (eagle) Two (vii) Locks with four keys TWO (viii) Winter uniform of peons and guard. Two pairs (b) Personal property of Shri MAKALAM, Manager, United Bank Ltd., HAJIGANJ Branch: Wrist Watch (Romer popular) One (c) Personal property of Shri Habibullah, Chowkidar, United Bank Ltd., Hjiganj Branch: PAKISTAN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned service he had once been convicted under Army Act Sect-ion 41(2) for disobeying a lawful command given by his superior officer in the execution of his duties for which he was severely reprimanded on 13 June 1970. 6. The accused/or his defending officer/counsel should be given an opportunity to address the court, if so desired. The court should then carefully consider all the above and should they decide to enhance the sentence, then the fresh sentence should be announced in open court as being subject to confirmation. 7. The, attention of the court is drawn to Army Act Section 160, Army Rule 68 and the form of proceedings on revision given on page 370 of N1ML (1961 Reprint), which should be amended to conform to the provisions of Army Rule 67(1). 8. After revision, the proceedings shall be returned to this Headquarters. Sd/- (R. D. HIRA) Maj-Gen. General Officer Commanding 23 Mtn Div. Field 03 May 1972. It was contended that in the face of such strong observations by the General Officer Commanding the Division the officers constituting the court martial would have felt compelled to enhance the sentence and the revised sentence passed on the petitioner was not the fre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of natural- justice operate in areas not covered by any law validly made and that they do not supplant the law of the land but supplement it and, therefore, though the procedure established by law may have been followed as required under Article 21, the principles of natural justice should also be followed. The cases relied on are A. K. Kraipak & Ors. etc. v. Union of India & Ors. (1) [1970] 1 S.C.R. 457. and Purtabpore Co. Ltd. v. Cane Commissioner of Bihar & Ors. [1969] 2 S.C.R. 807. This Court in the first decision had pointed out that what particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the frame work of the law under which the enquiry is held and the constitution of the tribunal or body of persons appointed for that purpose. It was also pointed out that the Court has to decide whether the observance of that rule was necessary for a just decision and that the rule that enquiries must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice. There is no analogy between the facts of that case and the present and apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the court martial was not bound by his opinion by stating that should the court martial decide to enhance the sentence the fresh sentence should be announced in open court as being subject to confirmation. Right in the beginning of his order he had also stated 'Whilst in no way intending the quantum of punishment to be awarded, the court should fully take into consideration the following observations'. To hold in the circumstances that the confirming authority should have, heard the appellant before he directed the revision of the sentence passed on him would not be a requirement of principle of natural justice. In the circumstances and facts of a case like the present one where the petitioner had an opportunity of putting forward whatever contentions he wanted to rely upon before the court martial, we do not consider that there is any- substance in this contention. 3) The contention here was that while the court martial was convened by a Maj-General the officer who directed revision was a Brigadier, and that only the convening officer can confirm or direct revision. This is perhaps the one contention with the least substance put forward on behalf of the petitioner. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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