http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

CASE NO.: Appeal (civil)  1883 of 2004

PETITIONER: Union of India & Ors.

RESPONDENT: Gurnam Singh

DATE OF JUDGMENT: 23/03/2004

BENCH: K.G. Balakrishnan & B.N. Srikrishna.

JUDGMENT: J U D G M E N T

O R D E R

[Arising out of S.L.P. (C)  No. 21291 of 2003]

       Leave granted.

       The respondent herein was commissioned in the Parachute  Regiment of  the Indian Army on 2.3.1968.   He was subjected to court- martial proceedings on two charges  framed  against him.   The first  charge was to the effect that he failed to return two official files in spite of  directions;  and the  second charge was for using criminal force against  late Major A.S. Randhawa by throwing a chair at him and causing  bruises on his face.    The  respondent was  tried by a court-martial and   the court found him guilty of both the charges.   In view of the verdict of  the court-martial, the respondent was dismissed from service.   The  respondent challenged the court-martial proceedings and also the  punishment imposed on him  before the  Punjab & Haryana High Court.    The High Court of Punjab & Haryana   was of the view that it had no  jurisdiction and the writ petition should be filed before the Delhi High  Court.   Thus, the  writ petition was dismissed with  liberty to the  respondent to file it before the Delhi High Court.   The respondent later  filed a writ petition in the Delhi High Court  and by the impugned  judgment the punishment imposed on the respondent was set aside and  the  appellants  herein have been  directed to pay  a compensation  of   Rs. 5 lacs for the harassment and indignity meted out to the respondent.    The  judgment of the Delhi High Court is challenged by the Union of  India.

       We heard the counsel for the Union of India and also the  respondent who appeared in person.

       The High Court set aside the order  passed by the appellant- authorities mainly on the ground that there was violation of Rule 37 of   the Army Rules , 1954.   The  respondent had alleged  in the writ petition  that under Rule 37, the officer who is convening the general court- martial  shall  satisfy himself that the charges to be tried by the court are   offences within the meaning of the Army Act, and that the evidence  justifies a trial on those charges.   The  respondent contended that the  officer convening the general court-martial  did not pass any order to the  effect that he was prima facie satisfied that the evidence  justified a  court-martial.   According to the respondent, the  officer who convened  the court-martial was Brig. Raj Kumar Singh, who was the then  officiating General Officer Commanding,  and there is nothing on record  to show that  he had satisfied himself that the evidence justified a trial  on those charges.   The respondent had also contended that the  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

certificate  of  Major General G.L. Bakshi, who was the  General Officer  Commanding  in March, 1987,  that the allegations against the  respondent were fit for trial by general court- martial was irrelevant and  it  did not satisfy the requirements of Rule 37 of the Army Rules, 1954.    In the writ petition,  it was contended  by the respondent that the officer  who was competent to convene the general court-martial was Brig. Raj  Kumar Singh, but the order convening the court-martial was signed by  Lt. Colonel  R.N. Singh.   It was  also alleged that the convening order  was not personally signed by the General Officer Commanding and that  it was a case of clear non-application of mind.   Hence there was violation  of Rule 37(1) and (3) of the Army Rules, 1954.

       In order to appreciate the contentions raised by the parties on  either side, Rule 37 of the Army Rules, 1954 is to be extracted and it is to  the following effect:

"37.  Convening of General and District Court-martial. \026  (1) An officer  before convening a general or district court- martial shall first satisfy himself that the charges to be tried  by the court are for offences within the meaning of the Act,  and that the evidence justifies a trial on those charges, and if  not so satisfied, shall order the release of the accused, or  refer the case to superior authority.

(2)     He shall also satisfy himself that the case is a proper  one to be tried by the kind of court-martial which he  proposes to convene.

(3)     The officer convening a court-martial shall appoint or  detail  the officers to form the court and, may also appoint,  or detail such waiting officers as he thinks expedient.  He  may also, where he considers the services of an interpreter to  be necessary,  appoint or detail an interpreter to the court.

(4)     The officer convening a court-martial shall furnish to  the senior member of the court with the original charge- sheet on which the accused is to be tried and, where no  judge-advocate has been appointed, also with a copy of the  summary of evidence and the order  for the assembly of the  court-martial.    He shall also send, to  all the other  members, copies of the charge-sheet and to the judge- advocate when one has been appointed, a copy of the  charge-sheet and a copy of the summary of evidence."

       The first part of Rule 37 says that before convening a general  court-martial, the officer competent to convene the court-martial shall   satisfy  himself that the charges levelled against the delinquent officer  are offences coming within the meaning of the Army Act, and that the  evidence justifies a trial on those charges, and if he is not satisfied, he  shall release the accused and shall refer the matter to the superior  authority.    It is clear that before proceeding further,  the officer must  understand the nature of the offences alleged and satisfy himself whether  a  prima facie case  is proved warranting a trial by court-martial..  The  Army Act and the Rules show that subjecting an officer  to  the court- martial is a serious step  and under Section 109 of the Army Act, such a  power  conferred on the Central Govt.  can to be exercised  by the Chief  of Army Staff  or any officer empowered  in this behalf by warrant of  Chief of Army  Staff.   A  personal satisfaction is required to be done by  the officer who proposes to convene the court-martial proceedings.

       The second part of Rule 37 says that the officer convening the  court-martial shall appoint or detail  the officers to form the court and  may also appoint or detail such  waiting officers as he thinks expedient.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

He may also appoint or detail an interpreter to the court,   if he so thinks  fit.

       The respondent in this case alleged violation of Rule 37 (1) and  Rule 37(3) of the Army Rules.   In the writ petition filed by the  respondent before the Delhi High Court, the respondent alleged that Rule  37 of the Army Rules provides that an officer before convening a court- martial shall first satisfy himself that the charge amounted to an offence  within  the  meaning  of the Army Act and sub-rule (3) of Rule 37  provides that the officer convening the court-martial shall  appoint or  detail the officer to constitute a court-martial.   The respondent alleged  that there was total non-compliance with  these provisions.    It was  alleged that the convening authority neither applied its mind to the  charges or the evidence available  therein  nor he exercised the personal  power in appointing/detailing the members of the court-martial.    He  contended that the  convening order was required to be personally signed  by the officer himself and there was infraction of Rule 37.

       The High Court in the impugned  judgment  held that there was no  compliance of Rule 37 of the Army Rules.   It was held that the  letter  of  Major General  Bakshi, dated 9.3.1987, was irrelevant as he was  not the  convening officer.   According to the High Court, Brig. Raj Kumar Singh  was the convening officer,  but  the order convening the court-martial  was signed by Lt. Col. R.N. Singh and  that there was nothing on record  to show that Brig. Raj Kumar Singh had applied his mind and satisfied  himself that the charges to be tried were offences within the meaning of  the Army Act and that  the evidence justified a trial of those charges.    The contention   urged   by   the appellants herein that Major General  G.L. Bakshi   was the officer who satisfied himself about the charges to  be tried by court-martial ,  was rejected  and his letter dated 9.3.1987  was  held to be not in accordance with Rule 37 of the Army Rules.   On  that ground, the findings of the court-martial were set aside and the  reliance was placed by the High Court  on the decision of this Court in   Union of India  & Ors. vs. Harish Chandra Goswami (1999) 4 SCC 575.

       At the outset, we must say that Rule 37 does not contemplate that  the officer who actually convenes the court-martial need satisfy himself  that the charges framed against the delinquent officer are within the  purview of the Army Act  and that the evidence justifies a trial by court- martial of such charges.     The  above satisfaction can be entered  by an  officer empowered under Section 109 of the Army Act before the actual  convening of the court-martial.   In other words, the officer who finds  that the charges are coming within the meaning of the Act and the  evidence justifies a trial by court-martial need not necessarily convene  the court-martial.  His successor who is very well competent to do so can  convene the court-martial.  The officer who records the satisfaction  under sub-rule (1) and the officer who actually convenes the court- martial under sub-rule (3) of Rule 37 can be two different officers, but  both must be competent under Section 109 of the Army Act.

       In  the instant case,  the facts are not disputed by the respondent.    The documents produced by the respondent himself  show that on  9.3.1987, the then General Officer Commanding, Major General G.L.  Bakshi  passed the order under sub-rule (1) of Rule 37, wherein it is  specifically stated :

"I consider this as a fit case for  trial by general court- martial as a prima-facie case exists against the above named  officer."

These proceedings show that Major General Bakshi was furnished with  all material particulars for such a decision.   Brig. Raj Kumar Singh, who  actually convened the court-martial was the successor in office of Major  General Bakshi and on 7.5.1987  when he really  convened the court-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

martial he was the officiating General Officer Commanding.  These facts  are not disputed by the respondent.   It is also pertinent to note that  Brig. Raj Kumar Singh sought to file an affidavit before the High Court,   but the same was not received on file.  The same is received on file and  we find that in the affidavit sworn to by him on 12.2.1994, the following  facts are stated :

"1.     In the GCM of  IC-28082K Major Gurnam Singh of 48  GL Section  Type ’B’ attached to the Jat Reigmental Centre,  Bareilly, I had applied my  mind in the summary of Evidence  and satisfied  myself that there is a prime-facie case against  the accused on both the charges under Army Act  Section 63  and 47 respectively.

2.      In pursuance of Army Rule 41, I had approved and  empowered my Staff Officer Lieutenant Colonel Ram Nagina  Singh, the  then Deputy Assistant Adjutant General (Legal),  Headquarters Uttar  Pradesh Area, Bareilly, to sign the  Convening Order dated 07 May 1987 on  my behalf."

Even if it is assumed that Brig. Raj Kumar Singh who really  convened the court-martial  should also be personally satisfied that the  charges are coming within the purview of the Army Act and that the  evidence justifies a trial by court-martial, these conditions are fulfilled in  this case as evidenced by the affidavit filed by  Brig. Raj Kumar Singh.    Therefore, we do not see any violation of sub-rule (1) of Rule 37. The next allegation pertains to infraction of  sub-rule (3) of Rule  37.   It is alleged  that the General Officer Commanding, Brig. Raj Kumar  Singh was the officer competent to convene the court-martial, but the  proceedings were signed by Lt. Col. Ram Nagina Singh and hence the  rule was violated.   We have perused the  various documents produced in  court.   From the documents produced by the respondent, it is clear that  Lt. Col. R.N. Singh on 1.4.1987 submitted a proposal by way of office  note as to the manner in which the general court-martial order is to be  issued.   In the office note, he indicated the composition of the court.   It  was mentioned that there shall be one Colonel as  Presiding Officer, two  Lt. Colonels  and  two  Majors  as Members of the court-martial.   One  Colonel, one Lt. Colonel and one Major were proposed as Waiting  Members, apart from one legally qualified officer as prosecutor, one  defending officer and one civil lawyer as prosecution counsel of defence  counsel.  This proposal was approved by the then General Officer  Commanding on 2.4.1987 and thereafter on 7.5.1987, proceedings were  issued and that order was signed  by Lt. Col. R.N. Singh, the then  officiating General Officer Commanding.   In the order, the names  of all  the members of the court-martial and waiting members are given with   their designations.  The grievance of the respondent is that this order  was not signed by the officiating General Officer Commanding, but by Lt.  Col. R.N. Singh,  who was not competent to issue the order convening  the general court-martial.

This plea is devoid  of  any merit as the entire proposal for  constitution of court martial was approved by officiating General Officer  Commanding.   Apart from these official records, Brig. Raj Kumar Singh  in his  affidavit  specifically  stated that he had approved and empowered  his Staff  Officer,  Lt. Col. R.N. Singh to sign the convening order dated  7.5.1987 on his behalf.

Therefore, it is clear that the contention of the respondent that the  proceedings dated 7.5.1987 was  not  approved  by the competent officer,  namely Brig. Raj Kumar Singh, is only to be rejected.   The   respondent  placed  reliance on the decision of this Court in  Union of India  & Ors.  vs.  Harish Chandra Goswami (1999) 4 SCC 575.   That is a case  wherein  violation of sub-rule (3) of Rule 37 was alleged.   The competent  officer to convene the court-martial was one Lt. Gen.  R.N. Mahajan.    Union of  India contended that though the order convening the court-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

martial was signed by the Colonel,  he was  authorised  by the Lt.  General to sign  his order and thus the requirement of Rule 37 was  complied with.   It was also urged on behalf of the Union of India that  convening of court-martial was only procedural in nature.   Both these  pleas were rejected and the facts in that case showed that there was  nothing  on  record to show that Lt. General  had authorized the Colonel  to sign the order.   It was held in paragraph 8 on page 578 as under :          "Admittedly there is no record whatever in the file to show that  the personnel of the court-martial were appointed by or  nominated by the Lt. General.  The order for the assembly of a  General Court-Martial did not contain either the signature or  the initial of the Lt. General.   It  was signed only by the Colonel  and none else.   In the circumstances the said order cannot be  considered to be an order evidencing the appointment of  personnel of the court-martial by the Lt. General.   There is no  dispute before us that under Rule 37, the Commanding Officer  has to apply his mind to satisfy himself that the charges to be  tried by the Court are for offences within the meaning of the Act  and that the evidence justifies the trial of those charges.    It is  also admitted that the Commanding Officer has also to satisfy  himself that the case is a proper one to be tried by the kind of  court-martial which he proposes to convene.   However, learned  counsel for the appellants contended that sub-rule (3) of Rule  37 is only procedural in nature and there is no need for  application  of mind by the Commanding Officer in the matter of  appointment of the personnel of the court-martial.  That  contention loses its relevance in the  present case in view of the  categorical stand taken by the appellant that there was an order  by the Commanding Officer appointing or detailing  the officers  to form the court-martial   According to the learned counsel as  stated earlier, the form of assembly of a court-martial is the   only relevant form and when it is signed by an officer on behalf  of the Lt. General, that is sufficient proof of the appointment of  the personnel  of the court-martial by the Lt. General.   We are  unable to accept this contention in view of the fact that the said  form  does not contain either the signature or the  initials of the  Lt. General.   Even  assuming that the Lt. General  passed an  oral order, there is no record of any kind whatever to prove it.    The form for assembly of a court-martial was not   contemporaneous  to such oral order, if any.   In the absence of  any  record whatever to show that the appointment of the  personnel of the court-martial was by the Lt. General, we are  not persuaded to accept the contention of the appellants that  the requirements of Rule 37 were fully satisfied.   It is  unnecessary for us to consider whether sub-rule (3) of Rule 37  requires an order in writing or not in view of the specific stand  taken by the learned counsel for the appellants in this case   that there was an order in writing and the said order was  nothing else but the form for assembly of the court-martial."

       In the instant case, the officiating General Officer Commanding,  Major General Raj Kumar Singh approved the constitution of the court- martial and the officers were detailed for the said purpose.   The  proceedings dated 7.5.1987 are signed by Col. R.N. Singh and it is stated  that it is by the order of the Officer Commanding.  Therefore, we find  there was no violation of sub-rule (3)  of Rule 37.  It is pertinent to note  that the respondent did not raise any plea either under Rule 44 or under  Rule 51 alleging that the court-martial was not properly  constituted.   In  order to  ensure proper constitution of court-martial, detailed procedure  is laid down under the Army Rules.   Rule 41 says  how the court-martial  proceedings have to be commenced.   It is stated that on the court  assembling, the order convening the court  shall be laid before it together  with the charge sheet and the  summary of evidence and also the ranks,  names and corps of the officers appointed to serve on the court and the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

court shall satisfy itself that it is legally constituted.   Rule 44 says that  the order convening the court and the names of the presiding officers  shall be read over to the accused and he shall be asked whether he has  any objection  to being  tried by any officer sitting on the court.    If the  accused raises any objection, such objection shall be considered and  disposed of in accordance with the provisions of that section.   The  accused is given opportunity to adduce evidence in support of his  objection and if his objection is sustained in respect of any member,  such member shall forthwith retire and the  presiding officer shall  appoint any officer in waiting.   Rule 51 says that the accused before  pleading to a charge, may offer a special plea to the general jurisdiction  of the court, and if the court finds that anything stated in such plea  shows that the court has no jurisdiction, it shall  not proceed with the  trial and adjourn, but  report it to  the convening authority.  The above  rules have been indicated to  show that the delinquent officer  would get  ample opportunity to point out that the order convening the court- martial was defective.

       Admittedly, the respondent did not raise any such objection, much  less the violation of Rule 37.    The respondent submitted that at the  commencement of the court-martial he was not aware of the alleged  violation of Rule 37 and that these facts came to his notice only later.     

       It is satisfactorily proved that sub-rules (1) and (3) of Rule 37 have  been fully complied with and the High Court erred in finding that there  was violation of Rule 37.  Such finding is without any factual foundation.   We reverse that finding on the question of non-compliance of Rule 37.

       In the impugned judgment, the High Court has made certain  passing references regarding the merits of the case, though such matters  were not dealt with in detail.    It was also observed that the punishment  imposed on the respondent was totally disproportionate.   We do not  express any opinion on other contentions raised by the respondent in  this case.   We feel that the matter requires to be re-considered by the  High Court.

       In the result, we set aside the judgment of the High Court and  remit the matter to be considered on all the points  urged by the  respondent, except his plea regarding the infraction of Rule 37 of Army  Rules,  1954.    We  notice that the respondent had filed the writ petition  in the High Court  of Punjab & Haryana in the year 1990 and later he  had filed the same before the Delhi High Court and that was disposed of   in May, 2003.  The respondent has been  litigating over this matter for  quite a long period.   Therefore, we request the High Court to consider  this case on priority basis and dispose of the same in accordance with  law.

       The appeal is disposed of accordingly.   There will be no order as to  costs.