TMI Blog1985 (3) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... incidents which are alleged to have taken place on November 6 and 7, 1975, the Respondent was tried by a general court-martial on four charges. It is unnecessary to reproduce the charges made against the Respondent. The charge-sheet was dated January 20, 1976, and was issued by the Commandant, Ordinance Depot, Fort Allahabad. On January 24, 1976, the Respondent was ordered to be tried by a general court-martial. The Respondent pleaded not guilty and his trial took place at Lucknow before a general court-martial consisting of one Brigadier, two Majors and two Captains both the prosecution and the Respondent led evidence. On March 13, 1976, the court-martial announced its finding subject to confirmation, the finding being Not guilty of all the charges . The General Officer, Commanding Madhya Pradesh, Bihar and Orissa Area, the Third Appellant, who was the confirming authority, did not confirm the verdict and by his order dated April 3, 1976, sent back the finding for revision. The same general court-martial, therefore, re assembled on April 14, 1976, and after hearing both sides and taking into consideration the observations made by the Third Appellant in his said order dated April ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tial which both at the time of the original trial and on revision had returned a verdict of 'not guilty, it could not be said that it was inexpedient to try the Respondent by a court-martial and, therefore, the impugned notice under Rule 14 was issued without any jurisdiction. At the hearing of the said writ petition a preliminary objection was raised by the Appellants that the said writ petition was not maintainable as being premature. The High Court held that as the impugned notice was issued without jurisdiction, it would be exposing the Respondent to jeopardy to require him to submit his reply to the said notice and to wait until his services were terminated. The same contentions, as were raised before the High Court, were taken before us at the hearing of this Appeal. We will first deal with the Appellants' preliminary objection that the Respondent's writ petition was not maintainable as being premature. It was the Respondent's case that the Chief of the Army Staff had no jurisdiction to issue the impugned show cause notice after he had been again found not guilty by the court-martial on revision. The said notice expressly stated that the Chief of the Army S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Act. Section 18 provides that every person subject to the Army . Act shall hold office during the pleasure of the President. Section 19 provides that subject to the provisions of the Army Act and the rules and regulations made thereunder, the Central Government may dismiss, or remove from the service, any person subject to the Army Act. Section 22 provides that any person subject to the Army Act may be retired, released or discharged from the service by such authority and in such manner as may be prescribed by rules made under the Act. Section 191 confers' upon the Central Government the power to make rules for the purpose of carrying into effect the provisions of the Army Act. Rule 14 of the Army Rules, 1954, provides as follows: 14. Termination of service by the Central Government on account of misconduct- (1) When it is proposed to terminate the service of an officer under Section 19 on account of misconduct, he shall be given an opportunity to show cause in the manner specified in sub-rule (2) against such action: Provided that this sub-rule shall not apply: (a) where the service is terminated on the ground of conduct which has led to his convictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e may be, and the recommendation of the Chief of the Army Staff, may dismiss or remove the officer with or without pension or call upon him to retire or resign, and on his refusing to do so, the officer may be compulsorily retired or removed from the service on pension or gratuity, if any, admissible to him. We are not concerned in this Appeal with a case where an officer has been convicted by a criminal court or with a case where the Central Government is satisfied that it is not expedient or reasonably practicable to give to the officer an opportunity of showing cause. A show cause notice was in fact issued to the Respondent by the Chief of the Army Staff. Under sub-rule (2) of Rule 14, the foundation of the jurisdiction of the Central B, Government or the Chief of the Army Staff to issue a show cause notice is the satisfaction of the Central Government or the Chief of the Army Staff after considering the reports of an officer's misconduct that the trial OF the officer by a court-martial is inexpedient or impracticable and the opinion formed that the further retention of the officer in the service is undesirable. The contention before us was that in the circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he power to try any person subject to the Army Act for any offence punishable thereunder and to pass any sentence authorized thereby. Section 121 provides as follows: 121. Prohibition of second trial.- When any person subject to this Act has been acquitted or convicted of an offence by a court-martial or by a criminal court, or has been dealt with under any of the sections 80, 83, 84 and 85, he shall not be liable to be tried again for the same offence by a court-martial or dealt with under the said sections. The Respondent was neither tried by a criminal court nor dealt with under any of the sections 80, 83, 84 and 85, most of which do not apply to an officer of his rank- He was, however, tried by a general court-martial which found him not guilty of any of the charges made against him. Under section 125, where a criminal court and a court-martial both have jurisdiction in respect of an offence, it is in the discretion of the officer commanding the army, army crops, division or independent brigade in which the accused person is serving or such other officer as may be prescribed by the Army Rules to decide before which court the proceedings shall be instituted. Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deputy or assistant judge-advocate general of the command who shall then forward it to the confirming officer. The proceedings of a district court-martial shall be sent by the presiding officer or the judge- advocate direct to the confirming officer who must, in all cases where the sentence is dismissal or above, seek advice of the deputy or assistant judge-advocate general of the command before confirmation. 70. Confirmation-Upon receiving the proceedings of a general or district court-martial, the confirming authority may confirm or refuse confirmation, or reserve confirmation for superior authority, and the confirmation, non-confirmation, or reservation shall be entered in and form part of the proceedings. 71. Promulgation-The charge, finding, and sentence, and any recommendation to mercy shall, together with the confirmation or non-confirmation of the proceedings, be promulgated in such manner as the confirming authority may direct; and if no direction is given, according to the custom of the service. Until promulgation has been effected, confirmation is not complete and the finding and sentence shall not be held to have been confirmed until they have been p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to retry the office. On enquiry the officer was informed that the findings and sentence of the general court-martial had not been confirmed as it was found that the proceedings were not in order and, therefore, there was no valid order convicting or acquitting the officer. After considering the relevant provisions of the Air Force Act and the Air Force Rules, 1969, which are in pari materia with the corresponding provisions of the Army Act and the Army Rules, a learned Single Judge of the Allahabad High Court held that the effect of non-confirmation was that though the finding and sentence passed by the court-martial existed, they could not be put into effect unless they had been confirmed under the provisions of the Air Force Act, and that in such a case section 120 of the Air Force Act (which is in pari materia with section 121 of the Army Act) barred a second trial by a court-martial. In Major Manohar Lal v. The Union of India and Anr. 1971(1) S.L.R. 717 the petitioner was tried by a general court- martial which found him not guilty. The General Officer Commanding-in-Chief held the proceedings to be null and void on the ground that one of the members of the court-martial was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or the Chief of the Army Staff when the finding of a court-martial even on revision is perverse or against the weight of evidence on record? The High Court in its judgment under appeal has also held that in such a case a fresh trial by another court-martial is not permissible. The crucial question, therefore, is whether the Central Government or the Chief of the Army Staff can have resort to Rule 14 of the Army Rules. Though it is open to the Central Government of the Chief of the Army Staff to have recourse to that Rule in the first instance without directing trial by a court-martial of the concerned officer, there is no provision in the Army Act or in Rule l 4 or any of the other rules of the Army Rules which prohibits the Central Government or the Chief of the Army Staff from resorting in such a case to Rule 14. Can it, however, be said that in such a case a trial by a court-martial is inexpedient or impracticable? The Shorter Oxford English Dictionary, Third Edition, defines the word inexpedient as meaning not expedient; disadvantageous in the circumstances, unadvisable, impolitic . The same dictionary defines expedient' inter alia as meaning advantageous; fit, prope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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