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PETITIONER: UNION OF INDIA  & ORS.

       Vs.

RESPONDENT: CAPT.A.P. BAJPAI

DATE OF JUDGMENT:       20/02/1998

BENCH: SUJATA V. MANOHAR, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                THE 20TH DAY OF FEBRUARY, 1998 Present :               Hon’ble Mrs. Justice Sujata V. Manohar               Hon’ble Mrs. Justice D.P. Wadhwa P.P. Malhotra,  N.N. Goswami,  Sr, Advs.,  A.K.  Srivastava, Hemant Sharma  and Ms. Anil Katiyar, Advs, with them for the appellants. J.S. Sinha,  Rajiv  Dutta,  Randhir  Singh,  Advs,  for  the Respondent                       J U D G M E N T      The following Judgment of the Court was delivered: D.P. Wadhwa. J.      The respondent,  an officer  in the  army, was tried by General Court Martial on the following two charges:      "(i) Under  Army Act  Section 52(a)      for committing  theft  of  property      belonging to the Government in that      he, at  Pithoragarh on  08  Sep  77      committed theft  of  the  following      property belonging to the Govt :-      (aa) Jam  td Kissan 4 tins (450 gms      each)                 - 1.800 Kgs      (bb) Pine  apple td 6 tins (850 gms      each)                 - 5.100 Kgs.      (cc) Sausage td 9 tins (400 gms      each)                - 3.600 Kgs.      (dd) Coffee 1 tins (500 gms)                          - 0.500 Kgs.      (ee) Milk td 54 tins (397 gms each)      -                   - 21. 438 Kgs.      (ii) Under  Army Act Section 39 (b)      for absenting himself without leave      in that  he, at  Pithoragarh, in 03      Jun 78,  while attached  to Station      Headquarters Pithoragarh,  absented      himself   without    leave    until      voluntarily rejoined on 07 Jun 78."      After the  conclusion  of  the  trial  by  order  dated January 21,  1979 General  Court Martial held the respondent not guilty  of the  first charge  of theft,  but  found  him

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guilty of  the second  charge and  sentenced him  to forfeit three years’ service for  the purpose of promotion and to be severely reprimanded.  Under Section  153 of  the Army  Act, 1953   (for short  ‘the Act’), the finding or sentence shall be valid except so far as it may be confirmed as provided by the’ Act.  Under Section  154 the  finding and  sentence  of General Government,  or by  any officer  empowered  in  this behalf by warrant of the Central Government. When the matter was placed  before the General Officer Commanding U.P. Area, the competent  confirming authority,  he in  the exercise of his power  under Section 160 of the Act revised the findings of the  General  Court  martial  on  the  first  charge  and directed it  to reconsider  the entire  evidence relating to the first  charge in  the light  of the observation made  by him in  the order.  He gave the following directions for the General Court Martial to observe:      "If the Court, on revision, revokes      its earlier  finding on  the  first      charge and  find the accused guilty      of  the   first  charge,  it  shall      revoke  its  earlier  sentence  and      pass a suitable fresh sentence.      After this  revision order  is read      in open Court, the accused shall be      given  a   further  opportunity  to      address the Court. Therefore, if it      becomes  necessary   to  clear  any      points raised  by the  accused, the      Judge Advocate  may give  a further      Summing up.      The  attention   of  the  Court  is      invited to Army Act Section 160 and      Army  Rule   68  and  the  form  of      proceedings on revision on page 370      of the  MIML  1961  reprint,  which      should be  modified to  conform  to      Army Rule 62(10)."      In pursuance  to the  aforesaid order of the confirming authority, General Court Martial assembled on March 10, 1979 and on  the request  of the  respondent was adjourned to the following day. The respondent made written submissions which were taken  on record.  After reconsideration the court held the respondent  guilty of both first and the second charges. Respondent was  thereafter sentenced  to be  dismissed  from service by  order dated  March 11,  1979. The conviction and sentence so  passed on  the respondent  was confirmed by the Chief of  the Army  Staff by  order dated September 14, 1979 which was promulgated on September 24, 1979.      The  respondent  under  Section  164  (2)  of  the  Act preferred a  post confirmation  petition before  the Central Government which  was rejected.  The  respondent  thereafter filed the  writ petition  in the High Court of Judicature at Allahabad  challenging   his  conviction   and  sentence.  A Division Bench  of the High Court by impugned judgment dated December 22.  1992 set  aside the  conviction  and  sentence passed on  the respondent  on the first charge and held that punishment on  the second  charge was yet to be confirmed by the confirming  authority so  as to make the same operative. On leave  being granted,  the  appellants  have  filed  this appeal.      The  stage   from  which  the  High  Court  thought  it necessary to  interfere in  the  proceedings  was  when  the confirming authority  passed order  under Section 160 of the Act revising  the order of the General Court Martial holding the respondent  not guilty  of the  first charge. High Court

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was of  the view  that the confirming authority had analysed the evidence  minutely almost returning the finding of guilt against the  respondent and  leaving no  discretion with the General Court  Martial to  act otherwise.  High Court termed the observations of the confirming authority unwarranted and said that even the subsequent confirming authority being the Chief of  the Army  Staff overlooked  the abuse of the power committed by  the first  confirming authority  under Section 160 of  the Act  in reappreciating  the  whole  evidence  on record in respect of the quilt of the respondent and further that the  authorities did  not care  to read  the revisional order of  the confirming authority properly and rejected the statutory representation  of the  respondent. High Court did notice  the   following  observations   of  the   confirming authority in  its order  of revision  but said it was a very ingenious method  adopted by  the  confirming  authority  to influence the  Court Martial  and said  that the whole thing was a mere camouflage:      "While  in   no  way   wishing   to      interfere with  the  discretion  of      the court to arrive at a particular      finding or  sentence, and regarding      the value  to be  attached  to  the      evidence   on    record   and   the      inference to be deducted therefrom,      I, as the confirming officer, am of      the view  that the  finding of ‘not      guilty’ on the first charge arrived      at by  the court  is perverse being      against the  weight of overwhelming      evidence...."      High  Court  was  thus  of  the  view  that  the  first confirming authority  over-stepped its jurisdiction and that its order  was invalid.  High Court  relied on a decision of the Delhi  High Court  in Naib  Subedar Avtar  vs. Union  of India [1989  Cr1.L.J. 1986  rendered by a single Judge where that Court took the view that the confirming authority could not appreciate  evidence as its jurisdiction was limited and that where  the confirming authority had given directions to the Court  Martial to  reverse the  findings of "not guilty" into "guilty",  the order  of the  confirming authority  was held to be bad and liable to be quashed.      In  our   view,  the   High  Court   did  not  properly appreciated the  scope and intent of Section 160 of the Act. Section 160 is as under:      "160. (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.      (2) The  court, on  revision, shall      consist of  the  same  officers  as      were  present   when  the  original      decision was  passed, unless any of      those  officers   are   unavoidably      absent.      (3) In  case  of  such  unavoidable      absence the  cause thereof shall be      duly certified  in the proceedings,      and the  court shall  proceed  with      the revision  provided that,  if  a      general  court-martial,   it  still

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    consists of five officers, or, if a      summary general  or district court-      martial of three officers."      Rule 68 of Army Rules, 1954 deals with confirmation and revision of  finding or  sentence of  a Court Martial. There are Notes under this Rule and Note 6 is relevant. These are:      "68.  Revision.-   (1)  Where   the      finding is  sent back  for revision      under Section  160, the court shall      reassemble  in   open  court,   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 and the court does not      adhere to  its former  finding,  it      shall  revoke   and   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      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.                     NOTES      1 to 5  xxx    xxx              xxx      6.   If a court brings in a finding      of "not  guilty" against the weight      of evidence,  the court  may be re-      assembled   and    the   confirming      officer may  give his  views on the      evidence, directing  the  attention      of the  court to any special points      which it  appears to have failed to      appreciate."      The finding  of sentence  of the  Court Martial  can be revised once  by the  confirming authority.  If after remand the Court  Martial returns  the  same  finding  or  sentence confirming authority  would be  bound by the same. As to why the confirming  authority would  like the  Court Martial  to reconsider the  matter, it  has per  force to give its views which it  can do only after examining the evidence on record and the proceedings of the Court Martial.      In Capt.  Harish Uppal  vs. Union  of India  and Others [1973 2  SCR 1023]  the petitioner,  an officer in the Army, was tried  before the  Summary General  Court Martial on the charge  of  committing  robbery  on  December  11,  1971  at Hajiganj (in  Bangladesh) of the properties of the Bank, its Manager as well as of the Chowkidar. The court sentenced him to be  cashiered. This sentence was subject to confirmation. The confirming  authority  passed  an  order  directing  the revision of  the sentence.  Thereafter  the  petitioner  was brought before  the same Court Martial and after considering the observations  of the  confirming authority  revoked  the earlier sentence  and now  sentenced him to be cashiered and

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to suffer  rigorous imprisonment for two years. This finding and sentence  were subsequently confirmed. It was challenged in the  Supreme Court  in a petition under Article 32 of the Constitution and one of the arguments was that the authority to confirm  the sentence  passed by  a Court Martial did not confer on  the confirming authority the power to enhance the sentence and  that authority  could not  achieve that object indirectly by directing the revision of the sentence. It was contended  that   the  Court   Martial  verdict   should  be unfettered. This Court examined the order of revision of the confirming authority.  While sending  the matter back of the Court martial  the confirming  authority gave a caution that "whilst in  no way intending the quantum of punishment to be awarded, the court should fully of punishment to be awarded, the court should fully take into consideration the following observations of  the Confirming  Officer" and  also that the court should  then carefully  consider  all  the  above  and should they  decide the  enhance the  sentence,  then  fresh sentence should  be announced in open court as being subject to confirmation.  This Court  held that  the  order  of  the confirming  authority  directing  revision  was  in  no  way vitiated.      In Gian  Chand vs.  Union of  India  and  others  [1983 Crl.L.J. 1059] a division bench of the Delhi High Court said that a  direction given  by the  confirming authority to the General Court  Martial to reconsider the finding or sentence could not  be said  to be a fetter on the exercise of powers of the  General Court Martial. High Court said that an order under Section  160 was   a sort of an application for review which was  made by the confirming authority and the statute, thereupon, caste  a duty  on the  General Court  Martial  to reconsider its  earlier finding  or sentence  but it was not obliged to change its earlier view. It further said that the Court Martial  when  it  was  reconsidering  the  matter  in pursuance of  a direction  having been  issued under Section 160 had  to  apply  its  mind  to  the  case  independently, uninfluenced by  any observations which might have been made in the  direction given  by the  confirming authority. These two decision,  it would  appear, were  not  brought  to  the notice of  the Judges  of the  Allahabad  High  Court  while delivering the impugned judgment as there is no reference to the aforesaid  two decisions,  one of  the Supreme Court and the other of the Division Bench of the Delhi High Court.      In Ex.  Lieut Jagdish  Pal Singh vs. Union of India and Ors. [Criminal  Appeal NO.  104 of  1991 decided  on May  7, 1997] the  appellant was  a commissioned officer in the Army and faced  trial before a Court Martial on the accusation of taking away  large number  of bottles of Rum worth about Rs. 5616/- from  the military  canteen. After  trial  the  Court Martial held  the charge  not proved  against the appellant. When the  matter was  placed before the confirming authority as required  under Section  153 of  the Act,  the confirming authority  remitted   the  matter   to  the   Court  Martial indicating various  aspects of  the case  which had not been considered properly.  It was  made clear  by the  confirming authority at  the outset  that the  observations made by the confirming authority  were not  made to in any way interfere with the  discretion of  the members of the Court Martial in basing  its   finding  on  reconsideration  of  the  matter. Thereafter   the    Court   Martial   met   again   and   on reconsideration came  to the  finding that the appellant was held guilty of the offence and sentenced him to be dismissed from service.  The finding and sentence were later confirmed by the  confirming authority.  The appellant  filed  a  writ petition in  the Delhi  High Court it was contended that the

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revisional authority  was empowered  merely  to  direct  for additional evidence  and that  no such  direction  had  been given and on  the contrary observation on merits of the case was made  overstepping the  limit  of  jurisdiction  by  the confirming authority.  This Court  held that  the confirming authority had not made any finding which was likely to cause prejudice against  the appellant and that it had at the very outset made  it clear  that the  Court Martial  was free  to decide by  adverting to  certain basic features indicated by the confirming  authority. This  Court therefore  refused to interfere in the matter.      We are  unable to  subscribe  to  the  submissions  now advanced before  us that  the jurisdiction of the confirming authority is  confined only  to  giving  of  directions  for recording additional  evidence by  General Court  Martial or that from  the order  of the confirming authority "inference cannot be  escaped that this is based not on any independent judgment but influenced by the undisguised opinion expressed by the  confirming authority  on merits of the case" or that the   revisional    order   contained    such    unwarranted observations, which were tantamount to recording of finding, which was in no way the function of the confirming authority or  that  jurisdiction"  by  confirming  authority.  It  was asserted that the order in revision was liable to be quashed and rightly  done so  by the  High Court. All this, however, appears to  us to  be mistaken  view entertained by the High Court both in law and from the facts of the case.      There is  no dispute  that in  the conduct of the Court Martial   proceedings   before   and   at   the   stage   of reconsideration procedure  as prescribed was followed. It is the true  that the  confirming authority  did  analyses  the evidence on  the record  of proceedings of the Court Martial but that  was so done in the context of indicating where the Court Martial  could have  gone  wrong  in  appreciation  of evidence and  nevertheless caution  had been administered to the Court  Martial that  what was said in the revision order was not intended in any way to interfere with the discretion of the  Court Martial  to arrive  at a particular finding or sentence and  regarding the  value to  be  attached  to  the evidence  on   record  and  the  inference  to  be  deducted therefrom. Confirming authority said:      "Consequently, I  am  also  of  the      view that  the sentence  awarded on      finding the  accused quality of the      second charge  is not  commensurate      with the gravity of the offence. At      the very  outset, I wish to impress      that where  the Court  ignores  the      broad features  of the  prosecution      case, and  restricts  itself  to  a      consideration       of        minor      discrepancies      and      further      meticulously     juxtaposes     the      evidence of  different witnesses on      disputed points  and  discards  the      evidence  in   its  entirety   when      discrepancies are found, the method      can  rightly   be   criticised   as      fallacious.  It   has  to  consider      whether      there      is      any      direct/reliable     evidence     on      questions   which    have   to   be      established  by   the  prosecution.      Undoubtedly, in considering whether      evidence   is   reliable,   it   is

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    justified in directing attention to      other evidence which contradicts or      is inconsistent  with the  evidence      relied upon by the prosecution. But      to  discard  all  evidence  because      there are discrepancies without any      attempt  at   evaluation   of   the      inherent quality of the evidence is      unwarranted. The  court should make      an effort  to disengage  the  truth      from falsehood.  It is  an error to      take and easy course by holding the      evidence discrepant  and the  whole      case   untrue.    Even   when   the      prosecution  witnesses   have   not      deposed   the   whole   truth   and      although it  may not be possible to      get an  absolutely true  picture of      the events  from their evidence, it      is not  proper and  justifiable  to      say that  the prosecution case is a      complete  fabrication.  Bearing  in      mind  these  principles  the  Court      should examine the evidence adduced      before  them  in  respect  of  each      charge."      It was contended by the respondent that the very use of the expression  "perverse" in  the revision order would have influenced the  mind of  the members  of the  General  Court Martial as  the  officers  constituting  the  General  Court Martial were lower in rank than the confirming authority who was of  the rank  of Major  General and  that the confirming authority of  its own  appreciated  whole  of  the  evidence instead of  saying as  to what evidence was to be considered by the  General  Court  Martial  which  had  the  effect  of influencing the  General Court Martial. An argument was also raised that  when the  Court Martial  reassembled after  the revision order the whole proceeding concluded within half an hour and the General Court Martial returned finding of guilt against the  respondent. That  according to  the  respondent would show  that the General Court Martial did not apply its mind independently  and was  swayed by  the opinion  of  the confirming authority. It was lastly submitted that there was no ground  for the  confirming authority to interfere in the proceeding of the General Court Martial which had considered the evidence and argument in depth and held the first charge not proved against the respondent. We are unable to agree to any of  the submissions.  Confirming  authority  cannot  act merely as  a rubber  stamp. The  fact that  the finding  and sentence of  Court Martial  should be valid only after it is confirmed by  the competent authority would show that it has to examine  the whole of the record of the proceeding of the Court Martial  before confirming the finding or sentence. It is the  requirement of  Section 160 that when the confirming authority wished  that the  finding or  sentence of  a Court Martial required  revision it  should not send back the case as a  matter of  course but  record reasons  as to  why  the confirming authority  thought  so  as  to  where  the  Court Martial has failed in its duty to properly examine the facts and in  application of  correct  law.  When  the  matter  is remitted back  to the  Court Martial  under Section  160 the Court Martial may take additional evidence if so directed by the confirming  authority.  In  the  present  case  no  such direction was  given by  the confirming  authority and there was no  occasion for  the General  Court Martial  to  record

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additional evidence.  Full  opportunity  was  given  to  the respondent to  make  submission  before  the  General  Court Martial after  it had  reassembled and  as the  record would show copy  of the  revisional order  was  also  supplied  to respondent and  he made his submission in writing. The Court thereafter that  it revoked its earlier finding and sentence and held  the respondent  guilty of  the  first  and  second charge. It  cannot be  said that  the finding  and  sentence after reconsideration  was arrived  at in a hurried fashion. We have  noted above  that now  it was the Chief of the Army Staff who confirmed the finding and sentence and when he did so it could not be said that the whole of the record was not before him.  We do  not think  that the confirming authority exceeded its jurisdiction in analysing the evidence recorded during Court Martial proceedings. The revision order was not intended in  any way to interfere with the discretion of the Court Martial  and the  Court Martial  was also not bound by any such observation.      We, therefore, allow the appeal, ser aside the Judgment of the High Court and dismiss the writ petition filed by the respondent.