http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 12  

PETITIONER: CHIEF OF THE ARMY STAFF AND OTHERS

       Vs.

RESPONDENT: MAJOR DHARAM PAL KUKRETY

DATE OF JUDGMENT21/03/1985

BENCH: MADON, D.P. BENCH: MADON, D.P. CHANDRACHUD, Y.V. ((CJ) MISRA RANGNATH

CITATION:  1985 AIR  703            1985 SCR  (3) 415  1985 SCC  (2) 412        1985 SCALE  (1)582

ACT:      Constitution of  India Article  226-Maintainability  of writ petition at the stage of show cause notice to terminate the services of a service personnel by 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-Army Act, 1950  sections 18  to 24,  108,  121,  127,  153,  154, 160(1), 191  and the  Army Rules 1954 Rules 14 and 68 to 71, scope of-Competency  of the  Chief of the Army Staff to have recourse to  Rule 14  of the  Army Rules,  when the  general court martial  originally and on revision returned a verdict of "Not  guilty" -Principle  of  double  jeopardy  Aufrefois Acquit applicability-Constitution  of  India  Article  20(2) read with Army Act, section 121.

HEADNOTE:      The respondent, a permanent commissioned officer of the Indian Army  holding the substantive rank of captain and the acting rank of major, as a result of certain incidents which are alleged  to have  taken place  on November 5 and 6, 1975 was ordered to be tried by a general court martial. 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, reassembled 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  3,  1976, adhered to  its original  view and  once again announced the finding subject  to confirmation,  that the  respondent  was "Not  guilty  of  all  the  charges".  The  third  appellant reserved confirmation  of  the  finding  on  revision  by  a superior authority, namely, the General Officer, Commanding- in-Chief, Central  Command, Lucknow,  the second  appellant, and forwarded  the papers to him. By his order dated May 25, 1976, the  second appellant  did not  confirm the finding on revision of  the general  court martial.  The  charges  made against the  respondent, the finding and the nonconfirmation

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 12  

thereof were  promulgated as required by Rule 71 of the Army Rules. Thereafter, the Chief of the Army Staff under Rule 14 of the Army Rules 1954 issued the impugned show cause notice dated November  12, 1976  stating that the Chief of the Army Staff had carefully considered the facts of the case as also the respondent’s  defence at  the trial  and being satisfied that a 416 fresh trial  by a  court martial  for the  said offences was inexpedient, he  was of  the opinion  that the  respondent’s misconduct as  disclosed in  the  proceedings  rendered  his further retention  in the  service undesirable.  and  called upon the  respondent to  submit his explanation and defence, if any,  within twenty-five  days of the receipt of the said notice. Along  with the  said notice  copies of abstracts of evidence and the court-martial proceedings were forwarded to the respondent. The respondent, thereupon, filed in the High Court of  Allahabad a writ petition under Article 226 of the Constitution of  India being Civil Miscellaneous Writ No. 84 of 1976,  which was  allowed by a Division Bench of the said High Court. Hence the appeal by special leave      Allowing the appeal, the Court ^      HELD: 1.  Where the  threat of  a prejudicial action is wholly without  jurisdiction, a  person cannot  be asked  to wait for  the injury  to be caused to him before seeking the Court’s protection.  If, on the other hand, the Chief of the Army Staff had the power in law to issue the said notice, it would not  be open  to the  respondent to approach the court under Article 226 of the Constitution at the stage of notice only and in such an event his writ petition could be said to be premature.  This was,  however, not  a  contention  which could have been decided at the threshold until the court had come to  a finding  with respect  to the jurisdiction of the Chief of the Army Staff to issue the impugned notice. Having held  that  the  impugned  notice  was  issued  without  any jurisdiction, the  High Court  was right  in further holding that the  respondent’s writ  petition was  not premature and was maintainable. [420C-E]      2. Whether the Chief of the Army Staff was competent to issue the  impugned notice  of show  cause depends  upon the relevant provisions  of the Army Act 1950 and the Army Rules 1954. Under  Section 153  of the  Army Act,  no  finding  or sentence of  a general,  district or  summary general, court martial shall  be valid except so far as it may be confirmed as provided  by the  Army Act. Under Section ]60 of the Army Act, the  confirming authority  has the  power to  direct  a revision of  the finding of a court martial only once. There is no  power in  the confirming  authority, if  it does  not agree with  the finding  on revision,  to  direct  a  second revision of  such  finding.  In  the  absence  of  any  such confirmation, whether  of the  original finding  or  of  the finding on  revision, by reason of the provisions of Section 153 the  finding is not valid. Therefore, in the case of the respondent, the  finding of  the  general  court-martial  on revision not  having been  confirmed was not valid. Equally, there is however, no express provision in the Army Act which empowers the  holding of  a  fresh  court-martial  when  the finding of  a court-martial  on revision  is not  confirmed. [427C-F]      3. Though  it is  open to the Central Government or the Chief of  the Army  Staff to have recourse to Rule 14 of 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 14  or any  of the other Rules of the Army Rules

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 12  

which 417 prohibits the  Central Government  or the  Chief of the Army Staff from resorting in such a case to Rule 14. [429F-G]      In the  present case,  the Chief of the Army Staff had, on the  one hand,  the finding  of a  general  court-martial which had not been confirmed and the Chief of the Army Staff was of  the  opinion  that  the  further  retention  of  the respondent in  the service was undesirable and, on the other hand, there  were three  difference conflicting decisions of different High  Courts on  this point  which point  was  not concluded by  a definitive  pronouncement of  this Court. In such circumstances,  to order  a fresh  trial  by  a  court- martial   could certainly be said to be both inexpedient and impracticable and the only expedient and practicable course, therefore, open  to the  Chief of the Army Staff would be to take action  against the  respondent under Rule 14, which he did. The  action of  the Chief  of the Army Staff in issuing the  impugned   notice  was,   therefore,  neither   without jurisdiction nor unwarranted in law. [430B-D]      Capt. Kashmir  Singh Shergill  v. The  Union of India & Another, Civil  Writ No.  553 of 1974 decided on November 6, 1974 by Prakash Narain, J., approved.      G.B. Singh  v. Union  of India  and Others, [1973] Crl. L.J. 485;  Major Manohar Lal v. The Union of India and Anr., 1971 (1)  S.L.R. 717;  J.C. 13018 Subedar Surat Singh v. The Chief Engineer Projects (Beacon) C/o.56 A.P.O. AIR 1970 J. & K 179 referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 663 of 1978.      From the Judgment and Order dt. 9.3.77 of the Allahabad High Court in Civil Misc. Writ No. 84/77.      Dr.  Anand   Prakash,  V.B..   Saharaya  and   Miss  A. Subhashini, for P the Appellants      H. S. Parihar, for the Respondent.      The judgment of the Court was delivered by      MADON,J. This  Appeal by  Special Leave granted by this Court is  preferred against  the judgment  and  order  of  a Division Bench of the Allahabad High Court allowing the writ petition filed  by the  Respondent under  Article 226 of the Constitution of India and quashing a show cause notice dated November 12,1976 issued by the First Appellant, the Chief of the Army Staff, under Rule 14 of the Army Rules. 1954. 418      The facts which have given rise to this Appeal lie in a narrow compass.  The Respondent  is a permanent commissioned officer of  the Indian  Army holding the substantive rank of Captain and  the acting  rank of Major. In November 1975, he was posted  in the  Army  School  of  Mechanical  Transport, Faizabad. As a result of certain 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 12  

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 3, 1976, adhered to its original view and once again  announced the  finding that the Respondent was ’ Not guilty  of all  the charges".  The said finding was also expressly announced  as being  subject to  confirmation. The Third Appellant  reserved confirmation  of  the  finding  on revision  by  a  superior  authority,  namely,  the  General Officer, Commanding  in-Chief, Central Command, Lucknow, the Second Appellant,  and forwarded  the papers  to him. By his order dated  May 25,  1976, the  Second  Appellant  did  not confirm the  finding  on  revision  of  the  general  court- martial.  The  charges  made  against  The  Respondent,  the finding and the non-confirmation thereof were promulgated as required by Rule 71 of the Army Rules.      Thereafter the Chief of the Army Staff under Rule 14 of the Army  Rules issued  the impugned show cause notice dated November 12, 1976. It was stated in the said notice that the Chief of  the Army  Staff had carefully considered the facts of the  case as  also  the Respondent’s defence at the trial and being  satisfied that  a fresh  trial by a court-martial for the said offences was inexpedient, he 419 was of  the opinion  that  the  Respondent’s  misconduct  as disclosed  in the proceedings rendered his further retention in the  service undesirable.  The Respondent was called upon by the said notice to submit his explanation and defence, if any, within  twenty-five days  of the  receipt of  the  said notice. Along  with the  said notice  copies of abstracts of evidence and the court-martial proceedings were forwarded to the Respondent.  The Respondent  thereupon filed in the High Court of  Allahabad a writ petition under Article 226 of the Constitution of  India being Civil Miscellaneous Writ No. 84 of 1976, which, as aforesaid, was allowed.      It was  the contention  of the  Respondent in  his writ petition that under the Army Act, 1950 (Act No. 46 of 1950), and the  Army rules  there was  an initial  option either to have the  concerned officer  tried by  a court-martial or to take action  against him  under Rule 14 and that in his case the option  having been  exercised to  try him  by a  court- martial, the  Chief of  the Army  Staff was not competent to have  recourse  to  Rule  14  after  the  Respondent  was  - acquitted both  at the  time of  the original  trial and  on revision. This  contention found favour with the High Court. The High  Court held that as the Respondent had in fact been tried by  a court-martial  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 12  

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 Staff was of the opinion that the Respondent’s misconduct as disclosed in the proceedings rendered his further retention in service undesir 420 able and asked him to submit his explanation and defence, if any, to  the charges  made against  him. If the Respondent’s contention with  respect to the jurisdiction of the Chief of the Army  Staff to  issue the  said notice were correct, the Respondent was  certainly exposed  to the jeopardy of having his explanation and defence rejected and he being removed or dismissed from services. Were the said notice issued without jurisdiction, the  Respondent would  have  then  suffered  a grave, prejudicial  injury  by  an  act  which  was  without jurisdiction. Where  the threat  of a  prejudicial action is wholly without  jurisdiction, a  person cannot  be asked  to wait for  the injury  to be caused to him before seeking the Court’s protection.  If, on the other hand, the Chief of the Army Staff had the power in law to issue the said notice, it would not  be open  to the  Respondent to approach the court under Article 226 of the Constitution at the stage of notice only and in such an event his writ petition could be said to be premature.  This was,  however, not  a  contention  which could have been decided at the threshold until the court had come to  a finding  with respect  to the jurisdiction of the Chief of the Army Staff to issue the impugned notice. Having held  that  the  impugned  notice  was  issued  without  any jurisdiction, the  High Court  was right  in further holding that the  Respondent’s writ  petition was  not premature and was maintainable.      Before considering  the rival  contentions with respect to the  validity of the impugned notice, we may mention that a learned  Single Judge  of the Delhi High Court has held in the case  of Capt.  Kashmir Singh  Shergill v.  The Union of India and  another (1) that the  Chief of the Army Staff was competent to  issue a  show cause  notice under Rule 14 even though  the   court-martial  had  affirmed  its  verdict  on revision.      The answer  to the  question whether  the Chief  of the Army Staff  was  competent  to  issue  the  impugned  notice depends upon the relevant provisions of the Army Act and the Army Rules to which we now turn.      Chapter IV  of the  Army Act, which consists of Section 18 to  24, deals  with the  conditions of service of persons appointed under (1) Civil  Writ No.  553 of 1974 decided on November 6, 1974 by Prakash Narain, J. 421 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 12  

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  conviction  by  a           criminal court; or      (b)  where the Central Government is satisfied that for           reasons to  be recorded  in  writing,  it  is  not           expedient or reasonably practicable to give to the           officer an ’  opportunity of showing cause.      (2) When  after considering the reports of an officer’s misconduct, the  Central Government or the Chief of the Army Staff is  satisfied that  the trial of the officer by court- martial is  inexpedient or  impracticable,  but  is  of  the opinion that  the further ’ retention of the said officer in the service is undesirable the Chief of the Army Staff shall so inform  the officer  together with all reports adverse to him and  he shall  be called upon to submit, in writing, his explanation and defence:      Provided that  the Chief of the Army Staff may withhold from 422 disclosure any  such  report  or  portion  thereof,  in  his opinion, its  disclosure is  not  in  the  interest  of  the security of the State.      In the  event of  the explanation  of the officer being considered unsatisfactory  by the  Chief the  Army Staff, or when so  directed by  the Central Government, the case shall be submitted  to the  Central Government  with the officer’s defence and  the recommendation  of the  Chief of  the  Army Staffs to  the termination  of the  officer’s service in the manner specified in sub-rule (4).      (3) Where,  upon the  conviction of  an  officer  by  a criminal court,  the Central  Government or the Chief of the Army staff  considers that  the conduct of the officer which has led  to his  conviction renders his further retention in service undesirable, a certified copy of the judgment of the criminal court  convicting him  shall be  submitted  to  the Central Government  with the  recommendation of the Chief of the Army  Staff as  to the  termination of  the officer’s  n service in the manner specified in sub-rule (4).      (4) When  submitting a  case to  the Central Government under the  provisions of  sub-rule (2)  or sub-rule (3), the Chief of  the  Army  Staff  shall  make  his  recommendation whether the  officer’s service  should be terminated, and if so, whether the officer should be-      (a)  dismissed from the service; or      (b)  removed from the service; or      (c)  called upon to retire; or      (d)  called upon to resign.      (5)  The  Central   Government  after  considering  the           reports and  the officer’s defence, if any, or the           judgment of  the criminal  court, as  the case may           be, and  the recommendation  of the  Chief of  the           Army Staff, may dismiss or remove the officer with           or with  out pension or call upon him to retire or           resign, and  on his refusing to do so, the officer

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 12  

         may be  compulsorily retired  or removed  from the           service on pension or gratuity, if any, admissible           to him." 423      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 of this  case it  cannot be  said  that  the  trial  of  the Respondent   by   a   court-martial   was   inexpedient   or impracticable as  in fact the Respondent had been tried by a court-martial.  It   was  also  submitted  that  on  a  true construction of Rule 14, the Central Government or the Chief of the  Army Staff has an initial option to have the officer tried by a court-martial or to take action against him under Rule 14  and if it were decided that he should be tried by a court-martial, then action under Rule 14 was not permissible in case of his acquittal by the court-martial.      To test  the correctness  of these submissions, we must examine the  provisions of  the Army  Act relating to court- martial. Section  108 provides  for four  kinds  of  courts- martial, namely.      (1)  general courts-martial;      (2)  district courts-martial;      (3)  summary general courts-martial; and      (4)  summary courts-martial.      As the Respondent was tried by a general court-martial, we are  not concerned  here with  any other  type of courts- martial, Under  section 109,  a general court-martial may be convened by  the Central Government or the Chief of the Army Staff or  by any officer empowered in that behalf by warrant of the  Chief of the Army Staff. Section 113 provides that a general court-martial shall consist of 424      not less  than five  officers, each  of whom has held a commission for  not less  than three whole years and of whom not less  than four are of a rank not below that of captain. Section 117  provides for cases in which a court-martial can be dissolved. These cases are:      (1)  Where after the commencement of a trial the court-           martial is  reduced below  the minimum  number  of           officers required  by the Army Act. In such a case           the dissolution of the court-martial is mandatory.      (2)  If, on  account  of  the  illness  of  the  judge-           advocate or  of the accused before the finding, it           is impossible  to continue the trial. In this case           also  the  dissolution  of  the  court-martial  is           mandatory.      (3)  If it  appears to the officer who convened a court           martial   that    military   exigencies   or   the           necessities of  discipline render it impossible or           inexpedient to continue the court-martial. In this           case, the  dissolution  of  the  court-martial  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 12  

         discretionary. Sub-section (4) of section 117 expressly provides that where a court  martial is  dissolved, the  accused  may  be  tried again. Section  118 ’  confers upon  a general court-martial the 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 425 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. Under section  127, a  person convicted  or acquitted  by  a court-martial may, with the previous sanction of the Central Government, be  tried again by a criminal court for the same offence  or  on  the  same  facts.  There  is,  however,  no provision for  the trial  by a  court-martial for  the  same offence or  on the  same  facts  where  a  person  has  been convicted or  acquitted by  a criminal  court. Sections 153, 154 and 160(1) provide as follows:      "153.  Finding   and   sentence   not   valid,   unless      confirmed.- No finding  or sentence  of a  general, district  or summary general, court-martial  shall be  valid except  so far as it may be confirmed as provided by this Act.      "154. Power  to confirm finding and sentence of general      court-martial.-      The findings  and sentences  of general  courts-martial      may be  confirmed by  the Central Government, or by any      officer empowered  in this  behalf by  warrant  of  the      Central  Government.      "160. Revision of finding or sentence,-           (1) Any  finding or  sentence of  a  court-martial      which requires  confirmation may  be  once  revised  by      order of the confirming authority and on such revision,      the court,  if so directed by the Confirming authority,      may take additional evidence. In this  connection it  will also be relevant to set out the provisions of  Rules 68,  69, 70  and 11  of the Army Rules. These Rules provide as follows:      ‘68. Revision.  (1) Where  the finding is sent back for      revision under  section 160, the Court shall reassemble      in open court, 426      the revision  order shall  be read, and if the court is      directed to  take fresh  evidence, such  evidence shall      also be  taken in  open court.  The  court  shall  then      deliberate on its finding - in closed court.           (2) Where  the finding  is sent  back for revision

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 12  

    and the court does not adhere to its former finding, it      shall revoke  the finding  and sentence, and record the      new  finding,  and  if  such  new  finding  involves  a      sentence, pass sentence afresh.           (3) Where  the sentence  alone is  sent  back  for      revision, the court shall not revise the finding.           (4) After  the  revision,  the  presiding  officer      shall date  and y  sign the  decision of the court, and      the  proceedings,  upon  being  signed  by  the  judge-      advocate, if  any, shall  at once  be  transmitted  for      confirmation.      "69. Review of court-martial proceedings.-      The proceedings  of a  general court-martial  shall  be      submitted by the judge-advocate at the trial for review      to 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 427      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 promulgated."      It is  pertinent to  note that  under Section  160  the confirming authority  has the  power to direct a revision of the finding  of a court-martial only once. There is no power in the  confirming authority,  if it does not agree with the finding on  revision, to  direct a  second revision  of such finding. In the absence of any such confirmation, whether of the original  finding or  of the  finding  on  revision,  by reason of  the provisions of section l 53 the finding is not valid. Therefore, in the case of the Respondent, the finding of the  general court-martial  on revision  not having  been confirmed was not valid. Could he, therefore, be tried again by another court-martial on the same charges ? Under Section 121, a  person  subject  to  the  Army  Act,  who  has  been acquitted or  convicted of  an offence by a court-martial or by a criminal Court, is not liable to be tried again for the same offence  by a court-martial. It can well be argued that by reason  of the  provisions of  section 153 under which no finding or  sentence  of  a  general,  district  or  summary general court-martial  is valid  except in  so far  as it is confirmed as  provided by  the Army  Act a  person cannot be said to  have been acquitted or convicted by a court-martial until the  finding of  "guilty" or  "not guilty" in his case has been  confirmed by  the confirming  authority. There is, however, no express provision in the Army Act which empowers the holding  of a  fresh court-martial when the finding of a court-martial on revision is not confirmed.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 12  

    The decisions  of three  High Courts may be referred to in this  connection. The first decision is that of Allahabad High Court  in G.B.  Singh v. Union of India and Others. (1) That was a case under the Air Force Act, 1950 (Act No. 45 of 1950). In  that case,  the officer  was found  guilty  by  a general court-martial  and sentenced ,. to be dismissed from service. The  finding  and  sentence  was  referred  to  the confirming authority.  The confirming  authority  passed  an order  reserving  the  same  for  confirmation  by  superior authority and  forwarded the proceedings to the Chief Of the Air Staff. The (1) [1973] Crl. L.J. 485 428 Chief of  the Air  staff passed  an order not confirming the finding  or  sentence  awarded  by  the  court-martial.  The finding and  sentence which  were not confirmed by the Chief of Air  Staff were  promulgated after the lapse of about ten months.A fresh  general court-martial  was convened 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.  (1) 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 of the rank of Captain and was thus lower in the rank to the petitioner  and no  certificate had been recorded by the officer convening  the court-martial  as  required  by  Rule 40(2) of  the Army Rules, that an officer of the rank of the petitioner was  not available  and he,  therefore, ordered a retrial.A learned  Single Judge  of the  Punjab and  Haryana High Court  held that under the Army Act and the Army Rules, a Captain  was eligible  to be  made a  member of  a general court-martial and  the mere  fact that the convening officer did not  append the  certificate that an officer of the rank of the  petitioner  was  not  available  did  not  make  the constitution of  the general  court martial  invalid or  the finding given  by it  to  be  without  jurisdiction  or  the proceedings of  the trial before it to be null and  void. He further held  that as  the petitioner  had  no  say  in  the constitution of  the general  court-martial and had suffered the trial  before it,  the proceedings  could not  have been declared null  and void  on a  highly technical  ground. The learned Single Judge, therefore. came to the conclusion that the second trial of the petitioner (1) 1971(1) S.L.R. 717. 429 was without  jurisdiction and  the sentence imposed upon him in consequence  of that  trial was  wholly illegal.  In J.C. 13018 Subedar  Surat Singh  v. The  Chief Engineer  Projects (Beacon). Co.  56 A.P.O.  (1).A Division  Bench of the Jammu and Kashmir  High Court  held that though every finding of a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 12  

general court-martial,  whether of  acquittal or  of  guilt, cannot be  recorded as  valid unless  it is confirmed by the competent  authority,   the  Legislature   could  not   have reasonably intended  that an  officer  convening  a  general court martial  can go  on dissolving such court-martials and reconstituting them ad infinitum until he obtained a verdict or a  finding of  his own liking. The Division Bench further held that  such a  position would not only be against public policy and  the ancient maxim "nemo debet bis vexari pro una et eadem  causa" (no man ought to be twice vexed for one and the same  cause) but would also reduce the provisions of the Army Act  to a mockery and give an appearance of mala fides. According to  the Jammu  and Kashmir  High Court,  in such a case the proper course for the confirming authority would be to  refer   the  case   to  its   superior   authority   for confirmation.      This being  the position,  what then is the course open to the  Central Government  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, proper,  or suitable  to the circumstances o the case". Webster’s Third New International Dictionary also (1) A.I.R. 1970 J. & K, 179. 430 defines  the   term  "expedient"   inter  alia   as  meaning "characterized by  suitability, practicality, and efficiency in achieving  a particular end: fit, proper, or advantageous under the circumstances".      In the  present case, the Chief of the Army Staff. had, on the  one hand,  the finding  of a  general  court-martial which had not been confirmed and the Chief of the Army Staff was of  the  opinion  that  the  further  retention  of  the Respondent in  the service was undesirable and, on the other hand, there  were the  above three  High Court decisions and the point was not concluded by a definitive pronouncement of this Court. In such circumstances, to order a fresh trial by a  court-martial   could  certainly   be  said  to  be  both inexpedient and  impracticable and  the only  expedient  and practicable course, therefore, open to the Chief of the Army Staff would  be to  take action against the Respondent under Rule 14,  which he  did. The action of the Chief of the Army Staff in issuing the impugned notice was, therefore, neither without jurisdiction nor unwarraned in law.      In  the   result,  this  Appeal  must  succeed  and  is accordingly allowed  and the  judgment of the Division Beach of the Allahabad High Court under Appeal is reversed and the order passed  by it is set aside. The writ petition filed by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 12  

the Respondent  in the  Allahabad High  Court, namely, Civil Miscellaneous Writ No. 84 of 1977, is hereby dismissed.      Before parting  with this  Appeal,  we  would  like  to observe that  the alleged  incidents in respect of which the Respondent was  tried before  the general court-martial took place nearly  ten years  ago. We,  therefore, feel  that the Chief of the Army Staff should take into account the conduct and behaviour  of  the  Respondent  during  the  intervening period and  if they  have been in conformity with good order and military  discipline and  the  high  traditions  of  the Indian Army,  he may consider the desirability of proceeding further in the matter.      In the  circumstances of  the Case,  there Will  be  no order as to costs throughout. S. R.                                        Appeal allowed, 431