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PETITIONER: SOM DATT DATTA

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT: 20/09/1968

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. HIDAYATULLAH, M. (CJ) SHAH, J.C. MITTER, G.K. GROVER, A.N.

CITATION:  1969 AIR  414            1969 SCR  (2) 177  CITATOR INFO :  R          1971 SC 500  (14,20)  R          1971 SC1120  (18)  R          1977 SC 567  (20)  RF         1986 SC1040  (6)  R          1986 SC1173  (7)  R          1990 SC1426  (24)  F          1990 SC1924  (6,7,8,27,33,44)  RF         1991 SC 564  (5,6)

ACT: Army  Act,  46  of 1950, ss. 125,  126,  164  and  165-First Information  Report of offences by Army Officer  and  others made   to   civil  police-Police   inspector   taking   some preliminary steps then stopping investigation at the request of  Army authorities-Area Commander  immediately  appointing Court of Inquiry to investigate-After trial by Court Martial accused convicted of offences under ss. 304 and 149  I.P.C.- Whether  Court  Martial  or  ordinary  criminal  court   had jurisdiction   to try the case.-When Rules 3 and 5 of  Rules framed under s. 549 Cr. P.C. applicable.-If reasons required to  be given by G.O.C. while deciding petition under s.  164 and  by  the  Central  Government   while   deciding  appeal under   s. 165-Army Rules, 1954, ss. 50(2)  and  121(4)-When attracted.

HEADNOTE: The  petitioner,  a  Second  Lieutenant  in  the  army,  was involved  in  a quarrel between two groups  of  soldiers  on September  1,  1965  which led to  an  altercation  and  the stabbing and death of a soldier.  On September 2, 1965,  the matter was reported to the Civil Police at the local  police station.   The Inspector o.f Police inspected the place:  of occurrence on the same day, seized certain exhibits produced by an Army Officer, held an inquest on the dead body of  the deceased  soldier  and sent it  for  postmortem  examination through  a  police  constable.  Later on the  same  day,  he stopped  further investigation as the Army Officer  incharge wanted the case to be handled by the Military authorities.     On  September  2,  1965, a Court of  Inquiry  under  the

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provisions  of Ch. VI of the Army Rules was ordered  by  the Commander  for  the  area. After the Court  of  Inquiry  had concluded its  proceedings, a Court Martial was  constituted by  an order dated  August 11. 1966, by the General  Officer Commanding  for  the area to try the  petitioner  and  other accused persons.  The Court-Martial came to the finding that the petitioner was guilty of culpable homicide not amounting to murder, and that he was a member of an unlawful assembly; it  sentenced  him  to cashiering  and  six  years  rigorous imprisonment.  The petitioner filed a petition under section 164  of  the  Army  Act,  but  this  was  dismissed  by  the confirming  authority  and the finding and sentence  of  the Court Material was confirmed.  The petitioner’s appeal under section  165 of the Army Act to the Central  Government  was also dismissed.     In  the  present  petition  under  Article  32  of   the Constitution,  the petitioner sought a writ of certiorari to quash  the   proceedings   of  the  Court-MartiaL   It   was contended on his  behalf  (i) that the  Court Martial had no jurisdiction  to try and convict him of offences  under  ss. 304   ’and  149  I.P.C.  having  regard  to  the   mandatory provisions of s. 125 of the Army Act and having also  regard to the fact that the Army Officer incharge had in the  first instance decided to hand over the. matter for  investigation to  the Civil Police; (ii) that no notice was given  by  the Commanding  Officer to the Magistrate under Rule  5  of  the Rules  framed by the Central Government under s. 549 of  the Criminal Procedure Code, that the petitioner should be tried by a Court-Martial; the Criminal Court alone 178 therefore   had  jurisdiction  under  Rule  3  to  try   the petitioner  for the offence charged; (iii) that even if  the 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 altered and amended in accordance with sub-rule 2 of Rule 50 of the Army Rules, 1954; the procedure contemplated by  Rule 121(4)  ’of  the Army Rules was not followed by  the  Court- Martial  and  its  finding  must therefore  be  held  to  be defective; and (iv) that the orders of the Chief of the Army Staff confirming the proceedings of the Court-Martial  under s.  164  of  the  Army Act and  of  the  Central  Government dismissing the petitioners appeal under s. 165 were  illegal since no reasons had been given in support of  the decisions contained in them. HELD: Dismissing the petition:     (i)  Merely  because the First  Information  Report  was lodged  with  the  civil  police  on  September  2  and  the Inspector  of  Police  inspected the  place  of  occurrence, seized  certain exhibits and held an inquest on the body  of the deceased, it could not reasonably be said that there was a decision of the competent military authority under s.  125 of  the  Army Act to hand over the inquiry to  the  criminal court.  On the other hand the action of the General  Officer Commanding the area, who was  the competent authority  under s.  125  constituting the Court of Inquiry on  September  2, 1965 indicates that there was a decision taken under s.  125 that the proceedings should be instituted before the  Court- Martial. [184 H]     (ii)  Rule  3  of  the  Rules  framed  by  the   Central Government under s. 549 Criminal P.C. only applies to a case where  the  police has completed the investigation  and  the accused is brought before the Magistrate after submission of a charage-sheet.  The provisions of Rule 3 cannot be invoked in  the  present case where the police  had  merely  started

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investigation against a person subject to military law.  The situation  contemplated  by Rule 5 had not  arisen  and  the requirements of that rule were not attracted.   Furthermore, Regulation  527 of the Defence Services  Regulations  itself provides  that  in  cases of  unnatural  death,  information should be given under s. 174 Criminal Procedure Code to  the civil  authorities.   The  action of the  Army  Officer   in sending   information  to  the civil police  was  merely  in accordance   with   the  provisions   of   this   particular Regulation. [187 D]     (iii) There Was no necessity for amending the charge  by the  Court  Martial under Rule 50(2) because  that  sub-rule only   relates  to  an  alteration  of  charge  before   the examination of  witnesses.  The  Court Martial had also  not contravened the provisions of Rule 121(4) because that  sub- rule  was  not  attracted  in  the  present  case.   On  the contrary, the finding of the Court-Martial was justified  in view of  the  language of s. 139(6) of the Army Act. [188 H]     (iv) 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  proceedings  of  the  Court- Martial.   No other Section of the Act or any Rule had  been shown from which a necessary implication could be drawn that such a duty is cast upon the Central Government or upon  the confirming  authority.  Furthermore, there was no  force  in the  contention that there is any general principle  or  any rule  of  natural justice that a statutory  tribunal  should always  and  in every case give reasons in  support  of  its decision. [190 H; 192 A-B] 179   Rex.  v.  Northumberland  Compensation  Appeal   Tribunal, [1952]  1   K.B. 338, considered.

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 118 of 1968.       Petition  under Art. 32 of the Constitution  of  India for enforcement of the fundamental rights. B. Datta, for the petitioner.       C.K. Daphtary, Attorney-General, B.D. Sharma and  R.H. Dhebar, for respondents Nos. 1 to 5. The Judgment of the Court was delivered by       Ramaswami, J. 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, 1965 was to be celebrated as the Raising Day of the  Unit when Games and Sports,  entertainment   and   Bara

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Khana   (evening  dinner)  were to  be  arranged.   In  this celebration, all officers and other ranks of the Unit had to take  some part and a number of other Army officers were  to be  received and entertained on behalf of the Unit.  At  the variety  entertainment Punjabis and Garhwalis took part  and each  party  was given free one bottle of rum.   But  it  is alleged  that the Purbias were not given an  opportunity  to put  up their show and were not given free a bottle of  rum. They  were  consequently  aggrieved for  this  reason.   The variety  entertainment concluded at about 1900 hours at  the end  of which rum was issued to the jawans.  The bara  khana was to commence at 2000 hours.  As there was a delay in  the assembly  of the men at the dining hall, Maj.  Agarwal  sent the petitioner to the lines   to find out the cause for  the delay and to get the men quickly. The petitioner went to the lines  and  it  is  alleged that  the  accused  used  filthy language  while addressing the men.  Some  of   the  Purbias including the deceased Spr. Bishwanath Singh protested 180 against  the  use of such language.  Though  the  petitioner expressed regret, the men were not satisfied.  A few of  the Sikh  jawans, including some of the accused, sided with  the petitioner  and there was a heated argument between the  two groups on their way to the dining hall.  The bara khana  was served  in  two sittings.  The petitioner did not  join  the first sitting but joined the second sitting which  consisted of about 30 to 40 men. The quarrel which started between the two  groups  earlier was continued in the dining  hall.  The lights  went off for a few minutes and when the lights  came on,  it  was  observed that a scuffle was going  on  in  the middle  of  the hall between the petitioner and  other  Sikh jawans  and  the deceased. As the  scuffle  progressed,  the deceased  was surrounded by petitioner No. 1 and  the  other accused  persons  and the group moved  towards  the  service counter.   The  lights went off for a second time.   In  the darkness tables, benches and plates were hurled about.  Most of  the men ran out of the dining hall.  It is alleged  that accused No. 6 was seen stabbing with a knife Spr. Bishwanath Singh  and the latter slumped to the ground. Accused  No.  3 hit  him with a soot rake.  When the lights came on after  a few minutes, the petitioner and the other accused 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 Rules was ordered by  the Commander,  Mysore and Kerala Sub-Area. After the  Court  of Inquiry  had concluded the proceedings, a Court Martial  was

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constituted  by  an order, dated August 11, 1966  by  Major- General.  S.J.  Sathe, General Officer  Commanding,  Madras, Mysore  and  Kerala  area to try the  petitioner  and  other accused  persons. The Court Martial assembled on August  18, 1966  and  conducted its proceedings on  several  subsequent dates.  In support of the case of the prosecu- 181 tion 30 witnesses were examined.  At the Court Martial, the defended   by  an  Advocate  of  the  Madras   High   Court, petitioner  was  Sri  Natarajan and he was  also  as      by assisted   a friend of the accused Major T.B. Narayanan.  At the trial the Counsel for the petitioner cross-examined  the witnesses  for  the prosecution and  after  the  prosecution evidence was concluded, the petitioner said that he did  not intend to call any defence witnesses.  The petitioner,  how- ever,  submitted  a  written statement.   He  was  also  put various questions by the Court Martial to which he  replied. After  the Counsel for the defence was heard and  after  the Judge-Advocate summed up the case, the Court Martial came to the  finding  that  the petitioner was  guilty  of  culpable homicide not amounting to murder and that he was a member of an  unlawful  assembly and the petitioner was  sentenced  to cashiering  and 6 years rigorous imprisonment.  Against  the decision  of  the  Court  Martial  the  petitioner  field  a petition  under s. 164 of the Army Act but the petition  was dismissed  by the confirming authority and the  finding  and sentence  by the Court Martial was confirmed so far  as  the petitioner was concerned. The petitioner thereafter filed an appeal  under  s.  165  of  the  Army  Act  to  the  Central Government but the appeal was dismissed. The first question to be considered in this case is  whether the  Court Martial had jurisdiction to try and  convict  the petitioner  of  the offences under ss. 304 and  149,  Indian Penal Code.  It was contended by Mr. Dutta on behalf of  the petitioner that the Court Martial had no jurisdiction having regard  to the mandatory provisions contained in s.  125  of the  Army Act and having also regard to the fact  that  Maj. Agarwal had, in the first instance, decided to hand over the matter  for investigations to the Civil Police. In order  to test  whether  this  argument is valid it  is  necessary  to scrutinize   the  provisions  of  the  Army  Act   in   some 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 182 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               sect.ion  70, any person subject to  this  Act               who  at any place in or beyond  India  commits

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             any civil offence shall be deemed to be guilty               of an offence against this Act and, if charged               therewith under this section, shall be  liable               to  be  tried  by  a  court-martial  and,   on               conviction,  be  punishable  as follows,  that               is to say,--                     (a) if the offence is one which would be               punishable  under  any law in force  in  India               with death or with transportation, he shall be               liable  to suffer any punishment,  other  than               whipping,  assigned  for the offence,  by  the               aforesaid  law and such less punishment as  is               in this Act mentioned; and                     (b)  in  any  other case,  he  shall  be               liable  to suffer any punishment,  other  than               whipping, assigned for the offence by the  law               in force in India, or imprisonment for a  term               which may extend to seven years, or such  less               punishment as is in this Act mentioned."               Section 70 provides:                     "A  person  subject  to  this   Act  who               commits  an offence of murder against a person               not  subject to military, naval or  air  force               law, or of culpable homicide not amounting  to               murder  against  such a person or of  rape  in               relation to such a person, shall not be deemed               to  be guilty of an offence against  this  Act               and  shall  not be tried by  a  court-martial,               unless he commits any of the said offences--               (a) while on active service, or               (b) at any place outside India, or                    (c) at a frontier post  specified by  the               Central  Government  by notification  in  this               behalf.                  Explanation.--In   this  section   and   in               section   69,   "India" does not  include  the               State  of  Jammu    and   Kashmir." Shortly  stated  ,  under  this  Chapter  there  are   three categories of offences, namely, (1 ) offences committed by a person  subject  to the Act triable by  a  court-martial  in respect   whereof  specific punishments have been  assigned; (2) civil offences committed by the said person at any place in or beyond India, but deemed to 183 be offences committed under the Act and, if charged under s. 69     of  the  Act, triable by  a  court-martial;  and  (3) offences  of murder and culpable homicide not  amounting  to murder  or  rape committed by a person subject  to  the  Act against  a person not subject to the military law.   Subject to a few exceptions, they are not triable by  court-martial, but are triable only by ordinary criminal courts.  The legal position therefore is that when an offence is  for the first time  created by the Army Act, such as those created by  ss. 34,  35, 36, 37 etc., it would be exclusively triable  by  a court-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,

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             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  proceeded against according to law, or  to               postpone  proceedings pending a  reference  to               the Central Government.                      (2) In every such case the said officer               shall  either  deliver over  the  offender  in               compliance  with  the  requisition  or   shall               forthwith  refer the question as to the  court               before   which  the  proceedings  are  to   be               instituted   for  the  determination  of   the               Central  Government,  whose  order  upon  such               reference shall be final." Section 125 presupposes that in respect of an offence both a criminal  court  as  well  as  a  court-martial  have   each concurrent  jurisdiction.  Such a situation can arise  in  a case  of an act or omission punishable both under  the  Army Act aS well as under any law in force in India.  It may also arise  in  the case of an offence deemed to  be  an  offence under the Army Act.  Under the -scheme of the two  sections, in the first instance, it is left to the 184 discretion  of  the officer mentioned in s.  125  to  decide before which court the proceedings shall be instituted, and, if the officer decides that they should be instituted before a  court-martial,  the accused person is to be  detained  in military custody; but if a criminal court is of opinion that the said offence shall be tried before itself, it may  issue the requisite notice under s. 126 either to deliver over the offender  to  the  nearest magistrate  or  to  postpone  the proceedings  pending a reference to the Central  Government. On  receipt of the said requisition, the officer may  either deliver  .over the offender to the said court or  refer  the question  of  proper  court for  the  determination  of  the Central  Government  whose order shall be final.  These  two sections of the Army Act provide a satisfactory machinery to resolve  the conflict of jurisdiction, having regard to  the exigencies of the situation in any particular case.     In  the  present  case,  we are  unable  to  accept  the contention  of  the  petitioner  that  merely  because  Maj. Agarwal  had  directed  that the  First  Information  Report should be lodged with  the  Civil Police through Second  Lt. Jesudian, it means that the competent authority under s. 125 of  the  Army Act had exercised its discretion  and  decided that  the  proceedings  should  be  instituted  before   the criminal court.  The reason is that Maj. Agarwal was not the competent authority under s. 125 of the Army Act to exercise the choice under that section.  The competent authority  was the  General Officer Commanding, 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

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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 decision of the competent military authority under s. 125 of the Army Act for  handing over the inquiry to the Criminal Court.  On the other  hand, the action of the General Officer Commanding in constituting the Court of 185 Inquiry  on  September 2, 1965 indicates that  there  was  a decision  taken  under  s.  125 of the  Army  Act  that  the proceedings should be instituted before the Court-Martial.     The  second branch of the argument of the petitioner  is based  upon  s.  549 of the Criminal  Procedure  Code  which states:                    "(1)  The  Central  Government  may  make               rules  consistent with this Code and the  Army               Act,  the Naval Discipline Act and the  Indian               Navy (Discipline) Act, 1934, and the Air Force               Act and any similar law for the time being  in               force as to the cases in which persons subject               to military, naval or air force law, shall  be               tried  by a Court to which this Code  applies,               or  by Court martial, and when any  person  is               brought  before  a Magistrate and charged with               an offence for which he is liable, to be tried               either  by a Court to which this code  applies               or  by a Court-martial, such Magistrate  shall               have regard to such rules, and shall in proper               cases  deliver him, together with a  statement               of the offence of which he is accused, to  the               commanding  officer  of the  regiment,  corps,               ship or detachment, to which he belongs, or to               the   commanding   officer  of   the   nearest               military,  naval or air force station, as  the               case may be, for the purpose of being tried by               Court-martial. The Central Government has made rules in exercise of  powers conferred  on  it  under  this  section.   The  Rules   were published  at  p. 690 in s. 3 of Part H of  the  Gazette  of India, dated April 26, 1962, under Ministry of Home Affairs, S.R.O. 709, dated April 17, 1962. Rules 3, 4, 5 and 8 are to the following effect:                      "3. Where a person subject to military,               naval  or Air Force law is brought  before   a               Magistrate   and charged with an  offence  for               which  he  is liable to be tried by  a  court-               martial, such Magistrate shall not proceed  to               try  such  person or to issue orders  for  his               case to be referred to a Bench, or to  inquire               with a view to his commitment for trial by the

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             Court  of Sessions or the High Court for  ’any               offence friable by such Court, unless                   (a)  he is of opinion, for reasons  to  be               recorded,  that he should so  proceed  without               being  moved  thereto by  competent  military,               naval or Air Force authority, or               (b) he is moved thereto by such authority."                      "4. Before proceeding under clause  (a)               of  rule 3 the Magistrate shall  give  written               notice to the Com- Sup C1/69--13 186 manding  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 statement prescribed in sub-section (1) of               section 549 of the said Code to the  authority               specified in the said sub-section."                     "8.  Notwithstanding  anything  in   the               foregoing rules, where it comes to the  notice               of  a  Magistrate  that a  person  subject  to               military, naval or Air Force law has committed               an  offence, proceedings in respect  of  which               ought to be instituted before him and that the               presence  of  such person cannot  be  procured               unless  through military, naval or  Air  Force               authorities,  the Magistrate may by a  written               notice require the Commanding Officer of  such               person  either  to deliver such  person  to  a               Magistrate to be named in the said notice  for               being  proceeded against according to law,  or               to stay  the  proceedings against such  person               before the court-martial, if since instituted,               and  to  make a  reference  to   the   Central               Government  for determination as to the  Court               before    which    proceedings    should    be               instituted."     It was argued on behalf of the petitioner that there was no notice given by the Commanding Officer to the  Magistrate under Rule 5 that the petitioner should be tried by a Court- Martial and hence the criminal court alone had  jurisdiction under Rule 3 to conduct proceedings against the   petitioner for  the  offences charged. In our opinion, the argument  on

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behalf of the petitioner 187 is   mis-conceived.   The  rules  framed  by   the   Central Government under s. 549 of the Criminal Procedure Code apply to a case where the proceedings against the petitioner  have already been instituted in an ordinary criminal court having jurisdiction to try the matter and not at a stage where such proceedings have not been instituted.  it is clear from  the affidavits filed in the present case that the petitioner was not  brought  before  the Magistrate and  charged  with  the offences  for which he was liable to be tried by the  Court- Martial  within the meaning of Rule 3 and so  the  situation contemplated  by Rule 5 has not arisen and the  requirements of  that rule are therefore not attracted.  It  was  pointed out by Mr. Dutta that after the First Information Report was lodged  at Pallavaran police station a copy  thereof  should have  been sent to the Magistrate.  But that does  not  mean that  the petitioner "was brought before the Magistrate  and charged  with  the  offences" within the meaning of Rule  3. It is manifest that Rule 3 ,only applies to a case where the police  had  completed  investigation  and  the  accused  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  .altered and amended in accordance with sub-rule  2  of Rule  50 of the Army Rules, 1954. It was also  contended  on behalf of the petitioner that the procedure contemplated  by Rule 121(4) of the Army Rules was not followed by the Court- Martial and the finding of the Court-Martial  must therefore be  held  to  be defective.  In our  opinion,  there  is  no warrant or justification for this argument since rules 50(2) and 121 (4) have no application to the present case.   Rules 50 and 121 provide as follows:     "50. Amendment of charge.--( 1 ) At          any  time during the trial, if it appears to the court that there is 188                 any  mistake in the name or  description  of               the  accused   in the charge-sheet, the  court               may  amend  the chargesheet so as  to  correct               that  mistake.   (2) If, on the trial  of  any               charge,  it appears to the  court at any  time               before it has begun to examine the  witnesses,               that in the interests of justice any  addition               to,  commission  from, or alteration  in,  the               charge is required,  it may report its opinion               to the convening authority, and  may  adjourn,               and the convening authority may either  direct

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             the  new trial to be commenced, or  amend  the               charge,  and order the trial to  proceed  with               such  amended  charge after due notice to  the               accused."                 "121.  Form and record of finding.--(1)  The               finding on every charge upon which the accused               is  arraigned   shall be recorded, and  except               as  mentioned  in these  rules,  such  finding               shall  be  recorded simply as  a  finding   of               "Guilty" or of "Not guilty".                   (2)  When  the  court  is  of  opinion  as               regards  any  charge that the facts proved  do               not  disclose  the  offence   charged  or  any               offence  of  which  he might  under  the   Act               legally be found guilty on the charge as laid,               the   court shall acquit the accused  of  that               charge.                   (3)  When  the  court  is  of  opinion  as               regards any  charge that the facts found to be               proved in evidence  differ materially from the               facts alleged in the statement of  particulars               in   the   charge,   but   are    nevertheless               sufficient to prove the offence stated in  the               charge,  and   that the difference is  not  so               material as to have prejudiced the accused  in               his defence, it may, instead of  a finding  of               "Not guilty" record a special finding.                   (4)  The  special finding may   find   the               accused   guilty  on a charge subject  to  the               statement   of   exceptions    or   variations               specified therein.                    (5)   The  court  shall  not  find    the               accused   guilty  on more than one of  two  or               more  charges  laid 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 189 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  order  by  the Chief of the Army Staff.   It  was  also pointed  out that the Central Government has also not  given any  reasons while dismissing the appeal of  the  petitioner under  s.  165  of the Army Act and that the  order  of  the Central Government must therefore be held to be illegal  and ultra  vires  and  quashed by the. grant of a  writ  in  the

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nature  of certiorari.  In this context it is  necessary  to reproduce  ss. 164 and 165 of the Army Act which are to  the following effect:                     "164. (1) Any person subject to this Act               who  considers himself aggrieved by any  order               passed  by  any court-martial  may  present  a               petition to the officer or authority empowered               to  confirm  any finding or sentence  of  such               court-martial,  and the  confirming  authority               may  take  such  steps as  may  be  considered               necessary    to  satisfy  itself  as  to   the               correctness,  legality  or  propriety  of  the               order passed or as to  the regularity  of  any               proceeding to which the order relates.                     (2)  Any person subject to this Act  who               considers  himself aggrieved by a  finding  or               sentence  of any court martial which has  been               confirmed,  may  present  a  petition  to  the               Central  Government,  the Chief  of  the  Army               Staff  or any prescribed officer  superior  in               command to the one who confirmed such  finding               or  sentence, and the Central Government,  the               Chief  of the Army Staff or other officer,  as               the  case may be, may pass such order  thereon               as it or he thinks fit."                     "165. The Central Government, the  Chief               of  the Army Staff or any  prescribed  officer               may   annul   the proceedings  of  any  court-               martial on the ground that they are illegal or               unjust." In     contrast  to these sections, s. 162 of the  Army  Act expressly  provides  that the Chief of the Army  Staff  "for reasons based on 190 the merits of the case" set aside the proceedings or  reduce the  sentence to any other sentence which the  court   might have passed.  Section 162 reads as follows:                     "The proceedings of every summary court-               martial  shall without delay be  forwarded  to               the officer commanding the division or brigade               within  which  the trial was held, or  to  the               prescribed  officer; and such officer, or  the               Chief  of  the  Army  Staff,  or  any  officer               empowered  in this behalf by the Chief of  the               Army  Staff,  may, for reasons  based  on  the               merits  of  the  case,  but  not  any   merely               technical  grounds, set aside the  proceedings               or  reduce the sentence to any other  sentence               which the court might have passed." It is necessary 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

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             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 proceedings of the Court Martial.  Mr. Dutta has been unable to point out any other section of the Act or any of  the rule made therein from which  necessary  implication can  be  drawn  that such a duty is cast  upon  the  Central Government or upon the confirming authority.  Apart from any requirement imposed by the statute or statutory rule  either expressly  or  by necessary implication, we  are  unable  to accept the contention of Mr. Dutta that there is 191 any general principle or any rule of natural justice that  a statutory  tribunal  should always and in  every  case  give reasons in support of its decision.     In  English law there is no general rule apart from  the statutory  requirement  that the statutory  tribunal  should give  reasons  for its decision in every case.   In  Rex  v. Northumberland   Compensation  Appeal  Tribunal(1)  it   was decided  for.the first time by the Court of Appeal  that  if there  was a "speaking order" a writ of certiorari could  be granted  to  quash the decision of an inferior  court  or  a statutory  tribunal  on the ground of error on the  face  of record.  In  that case, Denning, L.J. pointed out  that  the record  must at least contain the document  which  initiates the   proceedings;   the   pleadings,  if   any;   and   the adjudication, but not the evidence, nor the reasons,  unless the tribunal chooses to incorporate them in its decision. It was observed that if the tribunal did state its reasons  and those reasons were wrong in law, a writ of certiorari  might be granted by the High Court for quashing the decision.   In that  case  the  statutory  tribunal   under   the  National Health  Service   Act,  1946   had  fortunately   given    a reasoned  decision; in other words, made a ’speaking  order’ and the High Court could hold that there was an error of law on  the face of the record and a writ of certiorari  may  be granted for quashing it.  But the decision in this case  led to  an  anomalous result, for it meant that the  opportunity for  certiorari  depended on whether or  not  the  statutory tribunal  chose to give reasons for its decision;  in  other words,  to make a ’speaking order’.  Not all  tribunals,  by any means, were prepared to do so, and a superior court  had no  power  to compel them to give reasons  except  when  the statute  required it.  This incongruity was remedied by  the Tribunals and Inquiries Act, 1958 (s. 12), [6 & 7  Elizabeth 2  c.  66],  which provides that on  request  a  subordinate authority  must supply to .a 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

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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 upon   the  Central  Government  or  upon  the    confirming authority.   We,  therefore,  reject  the  argument  of  the petitioner  that the order of the Chief of the  Army  Staff, dated  May  26,  1967 confirming the finding  of  the  Court Martial  under  s. 164 of the Army Act or the order  of  the Central Government dismissing the appeal under s. 165 of the Army Act are in any way defective in law.     For  the reasons expressed we hold that  the  petitioner has  made out no case for the grant of a writ under Art.  32 of the Constitution.  The application accordingly fails  and is dismissed. R.K.P.S.                                 Petition dismissed. 193