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REPORTABLE

        IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

   Criminal Appeal No. 210 of 2017

Randhir Singh              Appellant(s)

                              Versus

Union of India & Ors               Respondent(s)

JUDGMENT

Dr  Dhananjaya Y Chandrachud, J

1 Admit.

2 This appeal arises from a judgment of the Armed Forces Tribunal at its

Chandigarh Regional Bench dated 7 December 2015.  The appellant was enrolled

on 29 October 1996 in the 43 Armed Brigade and was at the material time posted

as Acting Lance Dafadar1. It is alleged that on 11 August 2007 while on duty for

cleaning the service area in the morning, the appellant entered the residence of a

colleague and while his spouse was washing her son, placed his hands on her

shoulder.

3 A Summary Court Martial2 took place on 22 May 2008 during the course of

which evidence was recorded.  The appellant was held guilty and was dismissed

from service.  Among those who deposed during the SCM were the victim and her

husband.     

1 “ALD” 2 “SCM”

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4 The Armed Forces Tribunal, while holding that the charge had been duly

established,  came  to  the  conclusion  that  the  punishment  of  dismissal  was

disproportionate and should be modified to an order of discharge.

5 Mr. Naresh Ghai, learned counsel appearing on behalf of the appellant has

submitted that during the course of the evidence it emerged that in the month of

June  or  July  2007,  the  appellant  had  reported  the  spouse  of  the  victim  for

unauthorisedly  removing  petrol  from  a  Maruti  Gypsy  for  which  the  latter  was

awarded a punishment.   This was specifically brought out in the course of the

examination of the spouse of the victim in the SCM.  Hence, it was urged that the

entire incident is fabricated and is only a reprisal for the appellant having reported

the misconduct on the part of the spouse of the victim.

6 On  the  question  of  law,  it  was  urged  that  having  due  regard  to  the

provisions of Section 120 of the Army Act 1950 and the decision of this Court in Ex

Havildar Ratan Singh vs Union of India & Ors3  and in  Union of India and

Others  vs  Vishav  Priya  Singh4,  the  convening  of  an  SCM is  by  way  of  an

exception where immediate action is necessary.  Hence, it was urged on behalf of

the appellant that there was no reason or justification to hold an SCM in May 2008

in respect of an incident that took place in August 2007.

7 In  response,  Mr  Sanjay  Jain,  the  learned  Additional  Solicitor  General

submitted that on the merits of the charge of misconduct, both the victim and her

spouse deposed in the course of the inquiry by the SCM.  Hence, it was submitted

that there is no occasion for this Court to review the pure findings of fact which

3  AIR 1992 SC 415 4 (2016) 8 SCC 641

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have been affirmed by the Armed Forces Tribunal.  Moreover, it was urged that the

judgment in Vishav Priya Singh (supra) has since been clarified in the course of a

review so as to be applicable on and from 5 July 2016, whereas the incident in

question dates back to August 2007.

8 In the exercise of its appellate jurisdiction, this Court would be circumspect

in reassessing the evidence when the Armed Forces Tribunal has duly applied its

mind to the findings of fact. We have also duly assessed the submission of the

appellant that in the present case, the appellant had lodged a complaint in the past

against the spouse of the victim for pilferage of petrol.   Be that as it may, it is not

necessary  for  this  Court  to  enter  upon  the  findings  of  fact  since  there  is  an

independent ground on which the submissions of the appellant would be worthy of

acceptance.

9 Section 120 of the Army Act, 1950 provides as follows:

“120. Powers of summary courts- martial.

(1) Subject  to  the  provisions  of  sub-  section  (2),  a summary court- martial may try any offence punishable under this Act.

(2) When there is no grave reason for immediate action and reference can without detriment to discipline be made to the officer empowered to convene a district court- martial or on active service a summary general court- martial for the trial of the alleged offender, an officer holding a summary court- martial  shall  not  try  without  such  reference  any  offence punishable under any of the sections 34, 37 and 69, or any offence against the officer holding the court.

(3) A summary court- martial may try any person subject to this Act and under the command of the officer holding the court,  except  an  officer,  junior  commissioned  officer  or warrant officer.

(4) A summary  court-  martial  may  pass  any  sentence which may be passed under this Act, except a sentence of

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death  or  transportation,  or  of  imprisonment  for  a  term exceeding the limit specified in sub- section (5).

(5)   The limit referred to in sub- section (4) shall be one year if the officer holding the summary court- martial is of the rank of lieutenant colonel and upwards, and three months if such officer is below that rank.”

10 These provisions were interpreted in the decision in  Ex-Havildar Ratan

Singh (supra).  Subsequently in Vishav Priya Singh (supra), a three judge Bench

of this Court, while interpreting Section 120, has observed thus:

“19. Section 116 of the Act empowers the CO of any Corps, Department and Detachment of the regular Army to hold an SCM and specifically states that he alone shall constitute the Court. Sub-Section (2) then prescribes that the proceedings shall, however, be attended through-out by two other persons specified therein. However, such persons are not to be sworn or  affirmed.  Unlike  Sections  113,  115  and  114,  where composition of the Court-Martial concerned is prescribed to consist  of  at  least  three  officers,  it  is  the  CO  alone  who constitutes the Court under Section 116 in respect of SCM. Further,  under  Rules  39  and  40  of  the  Rules,  CO  of  the accused,  or  of  the Corps to which the accused belongs is specifically  disqualified for  serving on a GCM or DCM and composition  of  a  GCM  ought  to  compose  of  officers  of different corps or departments. However, no such restriction applies to SCMs and in fact the CO himself must constitute the Court. The Act has thus given drastic power to one single individual,  namely,  the  CO  who  alone  is  to  constitute  the Court. No doubt, this power comes with restrictions insofar as the power to award sentence is concerned in terms of sub- Sections (4)  &(5)  of  Section 120.  However even with such restrictions  the  power  is  quite  drastic.  The  reason  for conferment of such power is obvious that in order to maintain discipline among the soldiers and units, the CO must have certain special powers, for it is the discipline which to a great extent binds the unit and makes it a cohesive force.

20. The High Court of Delhi was therefore completely correct in observing that such power must be exercised rarely and when  it  is  absolutely  imperative  that  immediate  action  is called  for.  The  satisfaction  in  that  behalf  must  either  be articulated in writing or be available on record, specially when the matter can be considered on merits by a tribunal, with the coming into force of the Armed Forces Tribunals Act, 2007.”

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11 In a review petition5  filed by the Union of India, the earlier judgment was

clarified on 16 February 2017 in the following terms:

“…… the requirement, as stipulated in aforesaid paragraphs 20  and  33,  of  recording  reasons  for  convening  Summary Court Martial, shall apply on and with effect from the date of the  Judgment  namely  from  05.07.2016.    Except  for  this clarification, we are satisfied, that no case for review of the judgment dated 05.07.2016 has been made out.”

12 The above clarification indicates that the requirement of recording  reasons

for convening a Summary Court Martial shall apply from 5 July 2016.  However,

the fundamental principle of law which has been enunciated is that the power to

order an SCM is a drastic power which must be exercised in a situation where it is

absolutely  imperative  that  immediate  action  is  necessary.   Sub-section  (2)  of

Section  120  is  prefaced  by  the  words  “when  there  is  no  grave  reason  for

immediate  action”.  In  the  present  case,  though the  incident  took  place  on  11

August 2007, the SCM took place on 22 May 2008. The convening of an SCM was

contrary to law.   

13 Having come to this conclusion, we would have ordinarily granted liberty to

the respondents to pursue proceedings against the appellant in accordance with

law.  However, nearly twelve years have elapsed since the date of the incident.

During  the  course of  his  submissions,  the  learned  Additional  Solicitor  General

submitted before the Court  that  at  this  point  of  time,  it  may be difficult  to  find

witnesses to conclude the inquiry and hence, no useful purpose would be served

and it would not be practicable to hold the inquiry.    

14 The appellant had nearly twelve years’ service when he was dismissed

5 Review Petition No 3927 of 2016

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from service.  In this view of the matter, we are of the view that the ends of justice

would  be  met  if  in  the  exercise  of  our  jurisdiction  under  Article  142  of  the

Constitution of India, we order and direct that the discharge of the appellant shall

take effect from the date on which he completes fifteen years of service so as to

render him eligible for the grant of pension.  The learned counsel appearing on

behalf of the appellant has submitted that this would meet the ends of justice.

15 We accordingly allow the appeal and modify the impugned order of the

Armed Forces Tribunal in the above terms. The appellant shall stand discharged

from service on the completion of the minimum pensionable service with the result

that he would be entitled to the disbursal of his pensionary benefits in accordance

with law.  The arrears of pension shall be paid over to the appellant within a period

of three months from the date of receipt of a certified copy of this order.  No costs.

16 Pending application(s), if any, shall stand disposed of.

…..…………..................................J.           (Dr  Dhananjaya Y  Chandrachud)

.……………..……………...............J.             (Indira Banerjee)

New Delhi July 8, 2019

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ITEM NO.43               COURT NO.10               SECTION II-B

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Criminal Appeal  No(s).  210/2017

RANDHIR SINGH                                      Appellant(s)

                               VERSUS

UNION OF INDIA & ORS.                              Respondent(s)

(IA  No.  184775/2018  -  PERMISSION  TO  FILE  ADDITIONAL DOCUMENTS/FACTS/ANNEXURES)   Date : 08-07-2019 These matters were called on for hearing today.

CORAM :           HON'BLE DR. JUSTICE D.Y. CHANDRACHUD          HON'BLE MS. JUSTICE INDIRA BANERJEE

For Appellant(s) Mr. Naresh Ghai, Adv.

                   Mr. Naresh Kumar, AOR                     For Respondent(s)

Mr. Sanjay Jain, ASG Mr. Anish Kumar Gupta, Adv. Mr. VVV Pattabhiram, Adv.

                   Mr. Arvind Kumar Sharma, AOR Mr. Chandra Shekhar Suman, Adv. Mr. Puneet Sheoran, Adv. Ms. Rimi Basu, Adv.                     

         UPON hearing the counsel the Court made the following                              O R D E R

Admit.

The  appeal  is  allowed  in  terms  of  the  signed  reportable

judgment.

Pending application(s), if any, shall stand disposed of.

(MANISH SETHI)                                  (SAROJ KUMARI GAUR) COURT MASTER (SH)                                  BRANCH OFFICER

(Signed reportable judgment is placed on the file)