Page 1

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8360 OF 2010  

Union of India & Ors. …… Appellants

Versus

Vishav Priya Singh …… Respondent

With

CIVIL APPEAL NO…8830-8835 OF 2010 CIVIL APPEAL NO…8838 OF 2010

  CIVIL APPEAL NO…2547 OF 2011 CIVIL APPEAL NO…2548 OF 2011 CIVIL APPEAL NO…2549 OF 2011 CIVIL APPEAL NO…2550 OF 2011 CIVIL APPEAL NO. D.13803 OF 2015 CIVIL APPEAL NO. D.18038 OF 2015

AND CIVIL APPEAL NO.6679 OF 2015

JUDGMENT

Uday Umesh Lalit, J.

1. Civil Appeal Nos.8360 of 2010 and 8830-8835 of 2010, at the instance of Union of

India challenge correctness of the common judgment and order of the High Court

Page 2

2

of Delhi  dated 25.01.2008 in Writ  Petition (Civil)  Nos.2511 of 1992, 3519 of

1998, 6185 of 2002, 2433 of 2003, 17622 of 2004, 18185 of 2004 and  20233 of

2005. Civil Appeal No.8838 of 2010 seeks to assail the decision of the High Court

of Delhi dated 02.05.2008 in Writ Petition No.4341 of 1999 which relied upon the

earlier decision dated 25.01.2008.  

2. For  the  sake  of  facility  we  may reproduce  Paragraph  Nos.2  to  7  of  the

judgment of the High Court of Delhi dated  25.01.2008 which cull out the factual

matrix in each of the petitions before it.  Said Paragraph Nos.2 to 7 are as under:-

“2. In CWP 2511/1992 the Petitioner, Ex. L Nk Vishav Priya Singh, has alleged that he had made complaint against the CO, 19th Batallion Mahar Regiment of prejudicial treatment meted out by him to the Petitioner. It has been asseverated in the Writ Petition that initially the Brigade Commander had nominated the  CO,  17th  Kumaon  to  investigate  into  the  Petitioner's complaint. The CO of 19th Mahar through manipulation got his close  friend,  the  CO  of  18th  Batallion,  Punjab  Regiment, detailed  to  investigate  these  complaints.  The  Petitioner  was ordered to proceed to 18th Punjab Regiment.  Eventually, the CO,  18th Punjab  Regiment  tried the Petitioner  by  SCM and convicted/sentenced  him to  suffer  Rigorous  Imprisonment  of six months in the Civil  Jail  and dismissal  from service.  The argument  is  that  since  the  Petitioner  belonged  to  the  19th Mahar,  but  was  tried  by  SCM  held  by  CO  of  18th  Punjab Regiment, the Trial was rendered coram non judice. ………… ………………………………………………………………….. It  is  important  to  mention  that  the  Petitioner  had  made complaints against his CO on 26.3.1990; he was interviewed by the  Brigade  Commander  on  30.5.1990;  was  asked  to  appear before  the  CO,  18th  Punjab  Regiment  on  15.7.1990;  was charged under Section 41(2) of the Army Act for disobeying a lawful command given by a superior officer in that he, when

Page 7

7

to Judicial Review. We are certain that once this formality is complied with, the inevitable disregard of the accused rights for a fair trial shall automatically be restricted to those rare cases where the interests of maintaining a disciplined military force far outweigh the protection of the minor civil rights of a citizen of India.

24.  In  this  analysis  of  the  law in  the  context  of  the  factual matrix spelt out in the Petitions, we set aside the verdict of the impugned SCMs on the short ground that it was not convened, constituted and completed by the CO of the Unit to which the Petitioner  belonged.  We are  fully  mindful  of  the fact  that  in Vishav Priya Singh's petition the situation is a complex one, inasmuch as the allegations have been levelled against the CO of the Unit to which the Petitioner belongs. If the CO were to himself convene the SCM it would tantamount to his being a judge in his  own cause.  It  has so often been quipped in the portals of the Court that hard cases should not make bad law. Therefore,  solution  may  lie  in  constituting  any  other  Court Martial,  on  an  emergency  footing  if  the  circumstances  so dictate.  None  of  the  Petitioners  have  been  charged  with  the most reprehensible offence conceivable in the Armed Forces, that is of Desertion. Even if so charged it would have to have been further established, as a pre-condition for the holding of an SCM  by  the  CO  of  the  Unit  to  which  the  Petitioner  was attached, that the CO of the Unit to which the accused belonged was serving in a high altitude area, or overseas or engaged in counter-insurgency  operations  or  active  hostilities  or  in Andaman and Nicobar Islands. We clarify that since the Trial is non est, the Respondents shall be free to proceed against the Petitioners de novo in accordance with law.”

4. During  the  course  of  its  judgment,  the  High  Court  of  Delhi  considered

Sections 116 and 120 of the Act along with Note 5 below Section 116 and Note 5

below Section 120 as well as Paragraph 381 of the Defence Service Regulations

Page 8

8

(hereinafter referred to as the “DSR”).  According to the  High Court in cases

concerning trial of  deserters as dealt with in  Paragraph 381 of  the DSR,  a

specific exception  was carved out enabling CO of  a unit other than the  one  to

which  the   accused  belonged   to  convene,  constitute  and  complete  an  SCM.

Barring such exception, according to the High Court, it is the CO of the unit to

which the accused belonged, who alone is empowered to convene, constitute and

complete an SCM.  The High Court further held that for convening an SCM it was

imperative that immediate action was manifestly necessary.   

5. Along with the Appeals arising from the  decision of the  High Court of

Delhi,  Civil  Appeal  Nos.2547-2550  of  2011 at  the  instance  of  Original  Writ

Petitioners, challenging the correctness of the common decision of the High Court

of  Rajasthan at  Jaipur  dated  31.08.2006 dismissing their  Appeals  arising from

dismissal of their writ petitions, were also placed before us.  Though the question

as regards competence of the CO of a Unit other than the one to which the accused

belonged to convene, constitute and complete an SCM, was not raised before the

High Court of Rajasthan, the other question as to the circumstances in which an

SCM could be convened rather than a GCM or DCM or SGCM did arise in the

matters dealt with by the High Court of Rajasthan.  In any case, we proceed to

consider these appeals even with regard to the former question.

Page 9

9

6. The factual aspects of the matters which were dealt with by the High Court

of Rajasthan, as found in its judgment relating to the present appellants, were  as

under:-

“In  Writ  Petition  no.2490/1987  petitioner  Roop  Singh  was found  by  the  Duty  Officer  running  from  the  direction  of out-of-bound area at  about  0030 hours in  the night  of  17/18 May, 1987 when  he  was  supposed  to  be  on  sentry  duty  for which he was tried by summary court martial for committing an act  prejudicial  to  good  order  and  military  discipline  under Section  63  of  the Army  Act.  Before  being  subjected  to court-martial, summary of evidence was recorded in presence of  an  independent  witness,  the  charge  and names of  witness were made known to him. The petitioner refused to accept copy of  the  charge-sheet  and  the  summary  of  evidence.  During summary  court-martial  proceedings,  in  the  circumstances, charge was read over to him in presence of two witnesses. On completion of the proceedings, he was sentenced to one year's rigorous imprisonment which was later reduced to six months' and dismissed from service on 14.6.1987. From the reply of the respondents it appears that the incident had taken place when the unit was posted 1.5 kms. from the border during `Operation Trident'.  An  incident  had  occurred  in  the  neighbourhood  in which  a  woman  had  been  reportedly  raped  by  some  army personnel  and  in  the  circumstances,  instructions  had  been issued declaring the adjoining villages as `out-of-bound' area. In violation of the instructions, the petitioner went to the said area, he was seen in the midnight running from that  direction. He took  the  plea  that  he  had  gone  to  that  side  to  know  the password. The reply states that earlier two red ink entries had been made against the petitioner.(i) for absence without leave under Section 39(a) of the Army Act; and (ii) for committing act prejudicial  to  good order  and  military  discipline  (consuming liquor) under Section 63 of the Army Act. At the relevant time, he had four years and ten months service to his credit including one year as a recruit.

Page 10

10

In  Writ  Petition  No.5506/1994,  petitioner  Dilip  Singh  was enrolled in the Army in 1986 as Sepoy (Nursing Assistant). He was  charged  with  absence  without  leave  from the  unit  lines from 1600 to 2200 hours on 1.8.1993 and using criminal force to  his  superior  officers  namely  Sub./NA  H.N.Gautam  and Hav/NA  Shawale  Babasahab  Shrimuri  whom  he  allegedly assaulted  by  hands  on  their  face  and  chest.  Summary  of evidence  was  recorded.  He  declined  to  cross-examine  and accepted  his  guilt.  He  was  supplied  copy  of  charge-sheet, summary of evidence. At the stage of summary court-martial, he was again apprised of the charges and consequences of his pleading guilty. The petitioner again admitted his guilt. He was punished  with  three  months'  rigorous  imprisonment  and dismissed  from  service  on  7.8.1993.  He  preferred  appeal without any success.

In Writ Petition No.5689/1994, petitioner Bhagwan Sahai was enrolled as Sepoy in the Army on 8.1979. While he was posted with Det.515 ASC Bn attached with 5011 ASC Bn(MT), he was sanctioned 42 days annual leave from 16.3.1992 to 26.4.1992. He failed to report on 27.4.1992. He had been informed about refusal  of  his  request  for  extension  of  leave.  He  ultimately submitted joining on 2.2.1993 after remaining wilfully absent from duty for 302 days. Charge-sheet was served and summary of evidence was recorded in course of which he was afforded opportunity to cross-examine witness and examine his own in defence. He declined to cross-examine the witnesses and make any  statement  in  his  defence.  Instead,  he  admitted  his  guilt. Summary  Court  Martial  was  thereafter  held.  Charge  was explained and papers were supplied, and he was provided with `friend  of  accused'  and  informed  of  the  consequences  of pleading guilty. After going through the papers supplied to him, he  admitted  his  guilt  which  was  recorded.  He  was  declared deserter and held guilty of the charge under Section 38(1) of the Army  Act and  dismissed  from  service  on  8.4.1993.  He preferred appeal which was rejected on 26.7.1994.

In  Writ  Petition  No.6134/1994,  petitioner  Chatar  Singh  was enrolled in the Army on 28.9.1976. He proved to be the habitual absentee. He remained absent from duty without leave for 12

Page 11

11

days  from 1.1.1982 to  2.11.1982  for  which he  was awarded punishment  of  21  days  rigorous  imprisonment  in  military custody on 6.12.1982. He overstayed leave without sufficient cause for 05 days from 8.10.1991 to 13.10.1991 for which he was awarded penalty of reduction in rank after Summary Court Martial. The punishment was set aside on technical ground and the authority  was advised to  hold de novo proceeding.  After fresh proceeding, the same punishment of reduction in rank was awarded  on  24.10.1992.  He  again  remained  absent  without leave for 16 days from 28.10.1992 i.e. within four days of the above order of punishment. Earlier too, he had overstayed leave for 02 days from 13.7.1992 to 14.7.1992, and remained absent without leave from 19.8.1992 to 01.09.1992 for which he was subjected  to  court  martial.  In  course  of  the  summary  court marital proceeding he pleaded guilty. He had been told about nature of the charge and consequences of pleading guilty and difference in procedure in case of pleading guilty. He was found guilty of the charge under Section 39 (a) and (b), and dismissed from  service  on  5.1.1993.  He  preferred  appeal  which  was rejected on 28.6.1994.”

7. The submissions advanced before the High Court of Rajasthan were rejected

by the  High Court  after  considering the  relevant  statutory  provisions.   It  was

observed that the rules in question not only contained sufficient safeguards but

also ensured fair degree of transparency in the proceedings.  It was observed:-

“If the decision of the commanding officer under Rule 22 to try an accused by summary Court-martial depends on the nature of the charge,  evidence collected at  the stage of  hearing on the point of charge, it is clear that trial by summary Court-martial depends on facts of the particular case,  and if  that is  so,  the sub-mission of the counsel that the choice of trial by summary Court-martial  depends  on  status  of  the  offender  and  not  on nature of the offence must be rejected.  This was the thrust of the case of the petitioner.  We find no substance therein”

Page 12

12

8. Civil Appeal CAD Nos.13803 and 18038 of 2015, at the instance of Union

of India seek to challenge common judgment and order dated 13.12.2015 passed

by the Armed Forces Tribunal, Kolkata in TA Nos.6 and 8 of 2011. Though one of

the questions raised was relating to the competence of the CO of the Unit where

the accused were later sent on attachment, to convene, constitute and complete the

SCM, the Tribunal found on facts that the offence in respect of a major charge was

not proved.  It however found that the charge in respect of a minor offence stood

proved and thus awarded punishment of seven days’ detention with consequential

directions protecting their retiral benefits.

9.  In Civil Appeal No.6679 of 2015 decision of the High Court of Rajasthan

dated 24.01.2014 dismissing Civil  Writ  Petition No.401 of  2014 affirming the

decision  of  the  Armed  Forces  Tribunal,  Jaipur  in   dismissing/rejecting   the

challenge to the sentence of dismissal from service and rigorous imprisonment

awarded by an  SCM, is under challenge before this  Court.   In this case the

challenge was negated on facts though one of the questions raised pertained to the

competence of the CO of the attached Unit, to convene, constitute and complete

the SCM.

10. In these appeals, by order of this Court dated 12.11.2014, Mr. Arun Mohan

and Ms. Jyoti Singh, learned Senior Advocates were appointed amicus curiae   to

Page 14

14

belonged, who alone could validly convene, constitute and complete an SCM and

according to him even a CO of a Unit to which the accused was attached or later

sent on attachment would have requisite competence. Learned Counsel appearing

for the respondents led by Mrs. Rekha Palli, learned Senior Advocate supported

the view taken by the High Court of Delhi.  In matters arising from the High Court

of Rajasthan, learned counsel appearing for the appellants led by Ms. Aishwarya

Bhati,  learned  Advocate  submitted  that  the  view taken  by  the  High  Court  of

Rajasthan was not correct.   

11. Chapter X of the Act deals with “Courts Martial” and the relevant Sections

are:-

“108. Kinds of courts- martial. -For the purposes of this Act there shall be four kinds of courts- martial, that is to say,-  

(a) general courts- martial;  (b) district courts- martial;  (c) summary general courts- martial; and  (d) summary courts- martial.  

109.  Power to convene a general court- martial.- A general court- martial may be convened by the Central Government or the Chief of the Army Staff or by any officer empowered in this behalf by warrant of  the Chief of the Army Staff.  

110. Power to convene a district court- martial. -A district court- martial may be convened by an officer having power to convene a general court- martial or by any officer empowered in this behalf by warrant of any such officer.

Page 15

15

112. Power to convene a summary general court- martial. - The  following  authorities  shall  have  power  to  convene  a summary general court- martial, namely,-  

(a) an officer empowered in this behalf by an order of the Central Government or of  the Chief of the Army Staff;  

(b) on active service, the officer commanding the forces in  the  field,  or  any  officer  empowered by him in  this behalf;  

(c) an officer commanding any detached portion of the regular Army on active service when, in his opinion, it is not   practicable,  with  due  regard to  discipline  and the exigencies of the service, that an offence should be tried by a general court- martial.  

113. Composition of general court- martial.- A general court- martial shall consist of 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.  

114. Composition of district court-martial. -A district court- martial  shall  consist  of  not  less  than  three  officers,  each  of whom has held a commission for not less than two whole years.

115.  Composition  of  summary  general  court-martial. -A summary general court- martial shall  consist of not less than three officers.  

116. Summary court-martial. -(1) A summary court- martial may  be  held  by  the  commanding  officer  of  any  corps, department  or  detachment  of  the regular  Army, and he  shall alone constitute the court.  

(2) The proceedings shall be attended throughout by two other persons who shall be officers or junior commissioned officers

Page 16

16

or  one  of  either,  and  who  shall  not  as  such,  be  sworn  or affirmed. 1

118.  Powers  of  general  and  summary  general  courts- martial. -A general  or  summary general  court-  martial  shall have power to try any person subject to this Act for any offence punishable therein and to pass any sentence authorised thereby.  

119.  Powers  of  district  courts-martial. -A  district  court- martial shall have power to try any person subject to this Act other than an officer or a junior commissioned officer for any offence  made  punishable  therein,  and  to  pass  any  sentence authorised  by  this  Act  other  than  a  sentence  of  death, transportation, or imprisonment for a term exceeding two years: Provided  that  a  district  court-martial  shall  not  sentence  a warrant officer to imprisonment.  

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,

1

Below Section 116 following Note 5 appears in the Manual” “Note 5:- See Regs Army para 381 for the circumstances under which a CO of a different unit may hold the trial by SCM of a person subject to AA”.

Page 17

17

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  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.2”

12. Provisos to Sub-Rules 2 and 3 of Rule 22 in Section 1 of Chapter V of the

Army Rules 1954 (hereinafter referred to as the “Rules”) under the sub-heading

“Power  of  Commanding  Officers”  also  deal  with  issues  concerning  trial  by

SCM .  Said Rule 22 is as under:

“22.      Hearing of Charge. —   (1)      Every Charge against a person subject to the Act shall be heard  by  the  Commanding  Officer  in  the  presence  of  the accused. The accused shall have full liberty to cross-examine any witness  against  him,  and to  call  such witness and make such statement as may be necessary for his defence:   Provided that where the charge against the accused arises as a result  of  investigation  by  a  Court  of  inquiry,  wherein  the provisions of rule 180 have been employed with in respect of that  accused,  the commanding officer  may dispense with the procedure in sub-rule (1).

2

Following  Note  5  appearing  below  Section  120  in  the  Manual  was  deleted  by Government Order dated 28.8.2001:-“ A NCO or a sepoy cannot be attached to another unit for the purpose of his trial by SCM except as provided in Regs Army para 381”.

Page 18

18

 (2)      The commanding officer shall dismiss a charge brought before him if, in his opinion the evidence does not show that an offence under the Act has been committed, and may do so if, he is satisfied that the charge ought not to be proceeded with:   Provided  that  the  commanding  officer  shall  not  dismiss  a charge,  which he is debarred,  to try under sub-section (2)  of Sec.  120 without  reference to  superior  authority  as  specified therein.   (3)      After  compliance  of  sub-rule  (1),  if  the  commanding officer is of opinion that the charge ought to be proceeded with, he shall within a reasonable time—   (a)      Dispose of the case under section 80 in accordance with the manner and form in Appendix III; or   (b)      Refer the case to the proper superior military authority; or   (c)      Adjourn the case for the purpose of having the evidence reduced to writing; or   (d)      If the accused is below the rank of warrant officer, order his trial by a summary court-martial:   Provided that the commanding officer shall not order trial by a summary  court-martial  without  a  reference  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 unless—   (a)      The  offence  is  one  which  he  can  try  by  a  summary court-martial without any reference to that officer; or   (b)      He  considers  that  there  is  grave  reason  for  immediate action and such reference cannot be made without detriment to discipline.  

Page 19

19

(4)      Where the evidence taken in  accordance with sub-rule (3) of this rule discloses an offence other than the offence which was the subject  of  the investigation,  the commanding officer may frame suitable charge (s) on the basis of the evidence so taken as well as the investigation of the original charge.”

 13. In Section 2 of the Rules under the heading “General and District Courts

Martial” and under sub-heading “Convening of Court”, Rules 39 and 40 of the

Rules are as under:

“39.      Ineligibility  and  disqualification  of  officers  for court-martial.—   (1)      An officer is not eligible for serving on a court-martial if he is not subject to the Act.   (2)      An  officer  is  disqualified  for  serving  on  a  general  or district court-martial if he—   

(a)      Is an officer who convened the court; or   

(b)      Is the prosecutor or a witness for the prosecution; or

 (c)      Investigated the charges before trial, or took down the summary of evidence, or was a member of a court of inquiry  respecting  the  matters  on  which  the  charges against  the  accused are  founded,  or  was the squadron, battery,  company,  or  other  commander,  who  made preliminary inquiry into the case, or was a member of a previous court-martial which tried the accused in respect of the same offence; or

 (d)      Is the commanding officer of the accused, or of the corps to which the accused belongs; or

Page 20

20

(e)      Has a personal interest in the case.   (3)      The  provost-marshal  or  assistant  provost-marshal  is disqualified from serving on a general court-martial or district court-martial.     40.      Composition of General Court-martial. —   (1)      A  general  court-martial  shall  be  composed,  as  far  as seems  to  the  convening  officer  practicable,  of  officers  of different  corps  or  departments,  and  in  no  case  exclusive  of officers  of  the  corps  or  department  to  which  the  accused belongs.   (2)      The members of a court-martial for the trial of an officer shall be of a rank not lower than that of the officer unless, in the opinion of the convening officer, officers of such rank are not (having  due  regard  to  the  exigencies  of  the  public  service) available.  Such  opinion  shall  be  recorded  in  the  convening order.   (3)      In no case shall an officer below the rank of captain be a member of court-martial for the trial of a field officer.”

14. In Section 3 of  the Rules,  Rule 109 deals  with swearing or  affirming of

Court and interpreter which Rule also sets out the concerned forms of oath and

affirmation. Rule 133 dealing with review of proceedings of an SCM is as under:-

“133.    Review  of  proceedings.  —The  proceedings  of  a summary court-martial shall, immediately on promulgation, be forwarded (through the Deputy Judge-Advocate General of the command in which the trial is held) to the officer authorised to deal  with them in pursuance of section 162. After review by him, they will  be returned to  the  accused person’s corps  for preservation in accordance with sub-rule (2) of rule 146.”

Page 21

21

15. In Section 4 of the Rules dealing with “General Provisions” applicable to all

kinds of Courts Martial,  Rule 146 of the Rules states as under:-

“146.    Preservation of proceedings. —   (1)      The  proceedings  of  a  court-martial  (other  than  a summary court-martial) shall, after promulgation, be forwarded as circumstances require, to the office of the Judge-Advocate General,  and  there  preserved  for  not  less,  in  the  case  of  a general court-martial, than seven years, and in the case of any other court-martial, than three years.   (2)      The  proceedings  of  a  summary  court-martial  shall  be preserved for not less than three years, with the records of the corps or department to which the accused belonged.”

16. Lastly, we may also quote Regulations 9 and 381 of the DSR which are to

the following effect:-

“9.Commanding Officer.-  Except where otherwise expressly provided in these Regulations,  the Commanding Officer  of  a person subject to the  Army Act is either:-

(a) The officer who has been appointed by higher authority to be a commanding officer while able effectively to exercise his power as such, or

(b)Where no appointment has been made,  the officer who is, for the time being, in immediate command of – (i) The unit to which  the person belongs or is attached to

, or  (ii) Any detachment or a distinct sizeable separate portion

of a unit with which the person is for the time being serving.

Page 22

22

     and in respect of which it is the duty of such officer, under these Regulations or by the custom of ;the service, to discharge the functions of a Commanding Officer.”

381- Trial of Deserters - Under normal circumstances trial by summary court martial for desertion will be held by the CO of the  unit  of  the  deserter.   However,   when  a  deserter  or  an absentee from a unit shown in column one of the table below surrenders to, or is taken over by,  the unit shown opposite in column  two  and  is  properly  attached  to  and  taken  on  the strength of the later unit he may, provided evidence, particularly evidence of identification, is available with the latter unit, be tried by summary court-martial by the OC of that unit when the unit shown in column one is serving in high altitude area or overseas or engaged in counter-insurgency operation or active hostilities or Andaman and Nicobar Islands.

In no circumstances  will  a  ;man be  tried  by summary court-martial held by a CO other than the CO of the unit to which the man properly belongs a unit to which the man may be attached subsequent to commission of the offence by him will also be a unit to which the man properly belongs.

TABLE __________________________________________________

Column one Column two

Armoured Corps Regiment    ..Armoured Corps Centre and School

A unit of Artillery ..Regimental Centre Concerned

A Unit of Engineers ..Headquarters Engineers Group, concerned

A unit of Signals .. Signal Training Centre, Jabalpur

Infantry battalion ..Regimental Centre concerned

Gorkha Rifle battalion ..Gorkha Regimental Centre concerned

ASC unit .. ASC  Centre concerned

Page 23

23

RV Crops .. RVC Centre

This rule is not intended to limit the power of any convening officer,  who  at  his  discretion  may  order  trial  by  General, Summary General,  or  District Court  Martial at  any place,  if such a course appears desirable in the interest of discipline.”

17. Chapter X of the Act after setting out four kinds of Courts Martial, deals

with issues like who is empowered to convene such Courts-Martial, composition

of  such Courts  Martial  and the powers  of  such Courts-Martial.   According to

Section 118, a GCM has power to try any person subject to the Act for any offence

punishable therein and to pass any sentence authorized by the Act.  Reading of

Section 112 shows that while on active service an SGCM can be convened if

having  due  regard  to  discipline  and  exigencies  of  the  service,  satisfaction  is

arrived at that it would not be practicable to try the offence by a GCM.  According

to Section 118, such SGCM is again empowered to try any person subject to the

act for any offence punishable therein and to pass any sentence authorized thereby.

Section 119 of the Act states that in respect of any person other than an officer,

Junior Officer, a DCM can also be convened but Section 119 limits the power of

punishment,  in that  a DCM cannot  pass a sentence of  death,  transportation or

imprisonment for a term exceeding two years.  Further, a DCM cannot sentence a

Warrant  Officer to imprisonment.  Sections 109, 112 and 119 confer power to

Page 24

24

convene  such  GCM,  SGCM  and  DCM  respectively  upon  the  Authorities

mentioned in the respective sections.    The composition of  GCM, SGCM and

DCM are again set out in Sections 113, 115 and 114 respectively.    

18. As regards SCM, Section 120 stipulates that an SCM may try any offence

punishable under the Act but sub-Sections (4) and (5) limit the award of sentence.

According  to  sub-Section  (4),  an  SCM  can  pass  any  sentence  which  may  be

prescribed  under  the  Act,  except  a  sentence  of  death  or  transportation  or  of

imprisonment  of  a  term  exceeding  the  limit  specified  in  sub-Section  (5).

Sub-Section (5) of Section 120,  then prescribes the limit to the level of one year, if

the officer holding the SCM is of the rank of Lieutenant Colonel  and upwards and

at the level of  three months if the officer holding the SCM is below the rank of

Lieutenant Colonel.

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  concerned  Court-Martial  is

prescribed to consist of atleast three officers, it is the CO alone who constitutes the

Page 25

25

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 co-hesive 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.

Page 26

26

21.  We now deal with the question as to what kind of offences can be tried by

an SCM. An SCM can  try  any offence  punishable  under  the  Act  by  virtue  of

sub-Section (1) of Section 120 but this general principle is subject to the provisions

appearing in sub-Section (2) of Section 120.   Sub-Section (2) of Section 120 deals

with  some offences  in respect of which certain restrictions are applicable. The

offences so stipulated are those punishable under Sections 34, 37 and 69 of the Act

or those against the Officer holding the Court.  Apart from Sections 34, 37 and 69

of the Act, there are various other provisions where different kinds of offences are

spelt out and dealt with.  For example in Chapter VI of the Act, Section 38 deals

with offence of desertion,  Section 39 deals with offence of absence without leave,

Section 40 deals with striking or threatening a Superior Officer, Section  41 deals

with disobedience to the Superior Officer, Section 42 deals with insubordination

and so on.  Out of multitude of such offences, only Sections 34, 37 and 69 are

mentioned  in  sub-Section  (2)  in  respect  of  which  restrictions  stipulated  in

sub-Section (2)  apply.   Additionally, one more  category, namely  “any offence

against the officer holding a Court” is also specified.  Such of the offences as are

directed against the officer holding the Court, may include those under Sections 40,

41, 42 and so on, depending upon facts of the case.  

22. Sub-Section (2) of Section 120 prescribes   that in respect of such stipulated

offences,  in  normal  circumstances,  an  SCM shall  not  try  the  accused  without

Page 27

27

making a reference to the officer who is otherwise empowered to convene a DCM

in regular course or an SGCM while on active service.   It further states that if

there is no grave reason for immediate action, such reference to the concerned

officer  must  be made and no person should be tried without such reference in

respect of any offence so stipulated i.e. those under Sections 34, 37 and 69 of the

Act or those against the officer holding the Court.   However no such restriction

applies in cases other than Sections 34, 37, and 69 of the Act or offences against

the officer holding the Court.  This provision thus categorizes the offences in two

compartments i.e. those which require a reference and those which do not. This

distinction is also noticeable from sub Rule 2 of the Rule 22 which mandates that

CO shall not dismiss a charge in respect of offences which require a reference to

superior authority in terms of Section 120 (2) of the Act.    We  must therefore

accept  the  submission  that  the  sentence  appearing  in  Paragraph No.20  of  the

judgment of the High Court to the effect  that only offences under Sections 34,37

and 69 of the Act could be tried by an SCM is not correct.  

23. The  aforesaid  provision  in  Section  120(2)  requiring  a  reference  to  the

superior authority which thought is again echoed in proviso to Rule 22 (3) of the

Rules,  is  a  salutory  provision  and  a  check  on  the  exercise  of  drastic  power

conferred upon a CO and must be scrupulously observed. A case for non-adherence

to  this  requirement  must  be  made  out  on  record  and  any  deviation  or  non

Page 28

28

observance of  statutory requirements must  be viewed seriously. Offences under

Sections 34, 37 and 69 of the Act are special categories or kinds of offences where

a reference to the officer empowered to convene a DCM or an SGCM is considered

imperative unless there are grave reasons for immediate action.  Similarly,  the

offences  against the officer  holding the Court,  where that officer could possibly

“be a  judge in his own cause”, are also put at the same level and  similar reference

under sub-Section (2)  ought to be made. The exercise of power in seeking such

reference and consequent consideration in respect thereof must be in keeping with

the seriousness attached in respect of these offences.  

24. We now turn to the core question namely as to which CO is competent to

convene,  constitute and complete the SCM.  Is it  CO of the Unit to which the

accused belonged or  CO of  the Unit  to  which he was attached or  came to be

attached. In this connection there could possibly be three kinds of situations.

a. An accused committing an act constituting an offence while he

was part of his regular Unit is tried by SCM by his own CO i.e., the

CO of the Unit  itself.

b. An  accused  while  being  on  attachment  to  a  different  Unit

commits an act constituting an offence and is therefore tried by SCM

by the CO of such Unit to which he was sent on attachment. In such

Page 29

29

cases the offence itself would be committed while the accused was on

attachment.

c. An  accused committing an act constituting an offence while

being part of his regular Unit is later sent on attachment to a different

Unit and is then tried by SCM by CO of such Unit i.e., Unit where he

was sent on attachment after the offence was committed.

25. Unlike Rule 39 which specially disqualifies CO of the accused or  of the

Corps to which the accused belongs from serving on a GCM or DCM, there is no

embargo on CO of the Unit to which the accused belongs being the Court for the

purposes of trying the accused by SCM. The first of the aforesaid three categories

of offences mentioned above can therefore certainly be tried by the CO of the Unit

to which he belongs.  If the act constituting an offence is linked to the Unit in

question when such act was committed, in respect of matters falling in the second

category, the offence could logically be tried by the CO of the Unit to which the

accused was attached. Could the accused then insist that the CO of his parent unit

alone must  try him by SCM. Can it  be said,  his erstwhile connection with the

parent unit must be taken to be the governing factor of such extent that the normal

linkage of the Unit and the offence in question must stand displaced. Our answer is

no. If requirements of Section 120(2) are otherwise complied with and satisfied,

the CO of such attached Unit is competent to convene, constitute and complete the

Page 30

30

SCM. It is in his unit that the offence in question was committed and in that sense

he would be in seisin of the matter. The CO of the parent unit would have nothing

to do in the matter.  

26. The third category however raises some concern. There could be two sub

categories under this. In the first, the commission of offence itself may come to

knowledge, though the offence was committed in the parent unit, after the accused

was  sent  on  attachment.  Secondly, which  is  the  normal  course  adopted  in  the

matters under consideration, an accused may be sent on attachment to another unit

only for being tried by SCM  by the CO of that other unit. The commission of an

act constituting an offence being connected with the erstwhile  unit and having no

connection with the unit where he is later sent on attachment, normally the former

of  the  units  in  question  would  be  appropriate.  But  the  matter  need  not  be

considered and decided purely from the perspective of such connection or nexus

with the former or the erstwhile unit.

27. In a given case, the offence itself may have been committed against the CO

of the former unit or the CO may be an important witness reflecting on matters in

issue or for the purposes of discipline the accused may be required to be moved out

of the unit in question.  In some cases the presence of the accused even during the

conduct of SCM in the Unit in question may be detrimental to maintenance of

Page 31

31

discipline. The situations could be varying in degree or context and the concept of

propriety and expediency may demand that the accused be sent on attachment to

and tried in a different unit. Paragraph 24 of the judgment of the High Court of

Delhi shows its concern in that behalf and the fact that the High Court was alive to

such complexities. But on a view that the CO of the unit other the one to which the

accused belonged would be incompetent, the High Court was persuaded to accept

the submission advanced on behalf of the accused.

28.  We may gainfully refer to Regulation 9 of the DSR at this stage. Under this

regulation the CO could be either:-  

a)  one  who  has  been  appointed  by  higher  authority  to  be  CO  to

effectively exercise powers vested in a CO; or  

b) one who is in immediate command of the unit to which the person

is belongs; or

c) one who is in immediate command of the unit to which the person

is attached to; or

d) one who is in immediate command of any detachment or distinct

sizeable separate portion of a unit with which the person is for the

time being serving.

Page 32

32

29.    Regulation 9 with its width and amplitude can possibly cover any situation so

that there is no room to express any lament as was done in aforesaid Paragraph 24.

If the concept of fairness in the procedure demands, as is expressly set out in the

form of Rule 39 of the Rules that CO of the Unit to which an accused belongs is

disentitled to serve on a GCM or DCM, it  would be complete contradiction to

insist upon the CO of the Unit to which the accused belongs, regardless of the

status and role of such CO in connection with the offence, to be the only authority

entitled  to  convene  an  SCM.  Sections  116  and  120 do not  admit  of  any such

construction  and  in  the  absence  of  any  express  provision  to  the  contrary,

Regulation 9 can certainly be the guiding factor. The expression “Commanding

Officer” in Section 116 is not qualified by any explanation that he must be the CO

of the Unit to which the accused belongs. Regulation 9, in our view, affords such

explanation and is completely consistent with and subserves the basic ingredients

of fairness and impartiality.

30.  Regulation 381, in the context of trial of Deserters is a special provision. If

the Unit to which the accused belongs is serving in high attitude areas or overseas

or is engaged in counter-insurgency operations or active hostilities,  the accused

could be tried in the manner laid down therein by the CO of the Units specified

therein. But Regulation 381 is not the only exception as found by the High Court

and  the finding that in all circumstances, other than those dealt with by Regulation

Page 33

33

381, it is the CO of the Unit to which the accused belongs who alone is competent

to convene, constitute and complete an SCM,  is incorrect.

31. It  is  noticeable  that  the expression “to which the accused belongs” finds

mention in Rule 39 of the Rules as dealt with herein above in the context of GCM

or  DCM  but  not  with  respect  to  SCM.   Under  Rule  133  of  the  Rules  the

proceedings of an SCM must immediately on promulgation be forwarded through

the Deputy Judge Advocate General of the command “in which the trial is held”.

On the other hand, under Rule 146 of the Rules the proceedings of an SCM must

be preserved with the records of the corps or the department “to which the accused

belonged”.  It is thus possible and well contemplated that the trial by SCM may be

held in a unit other than the one to which the accused belongs”. Rules 39 and 146

further disclose that wherever the statute wanted to specify the unit or department

“to  which  the  accused  belonged”  it  has  done  that  with  great  clarity. No  such

qualification  is  specified  in  respect  the  CO who is  to  convene,  constitute  and

complete the SCM.

32.   Lastly, we must  note that  Note 5 below Section 120 as appearing in the

Manual could possibly point that an NCO or a sepoy could not be attached to

another unit for trial by SCM except as provided in Regulation 381 of the DSR.

Without going into the question of efficacy and force of such Note below a Section

Page 34

34

in an Act enacted by the Parliament, for the present purposes it is sufficient to

notice that this Note stood deleted on and with effect  from 28.08.2001.

33.    In the premises, we hold that it is not imperative that an SCM be convened,

constituted and completed by CO of the Unit to which the accused belonged. It is

competent  and  permissible  for  the  CO of  the  Unit  to  which  the  accused  was

attached or sent on attachment for the purposes of trial, to try such accused by

convening, constituting and completing SCM in a manner known to law i.e. strictly

within  the  confines  of  Sections  116  and  120  of  the  Act  and  other  Statutory

provisions. We fully endorse and affirm the view taken by the High Court that

SCM is  an  exception  and  it  is  imperative  that  a  case  must  be  made  out  for

immediacy of action. The reasons to convene an SCM must be followed by well

articulated reasons or the record itself must justify such resort.

34.  Before  parting,  we  must  mention  recommendations  of  a  Committee  of

Experts appointed  by the Defence Minister to review service and pension matters

including  strengthening  of  institutional  mechanisms  related  to  redressal  of

grievances, which recommendations appear at page 172 of the Ministry of Defence

Report of 2015 in following terms:-

“  …… the Committee recommends that the environment may be sensitized that the provision of SCM should be used sparingly and exceptionally and preferably only in operational

Page 35

35

areas where resort to a regular trial is not practicable or when summary/administrative  action  would  not  meet  the requirements of discipline. It may be emphasized that SCM is an exception and not the rule and was not even originally meant to be a peace-time provision or regular recourse. In the times to come, the desirability of even having such a provision on the statute  book  may  be  examined  with  the  suitability  of  a replacement by amore robust system meeting the aspirations of judiciousness  and  Constitutional  norms.  We  may  however caution  that  we  are  not,  in  any  manner, underestimating the requirement  of  discipline  in  the  uniformed  services  but  are simply  stating  that  SCM  may  not  be  treated  as  a  routine recourse when other effective tools of enforcing discipline are available.”

These recommendations sum up the approach that needs to be adopted,

quite well.  

35. Since the High Court of Delhi had allowed Writ Petitions on the short

ground of competence of a CO of a Unit other than the one to which the

accused belonged,  without  going into  the  merits  of  the  matters  before  it,

while setting aside the view in respect of that point and allowing the appeals

preferred  by  Union  of  India,  namely  Civil  Appeal  Nos.8360  of  2010,

8830-8835 of 2010 and 8838 of 2010, we remit the matters back to the High

Court. The concerned Writ Petitions stand restored on the file of the High

Court for consideration on merits.

36.   The matters coming from the High Court of Rajasthan, namely Civil

Appeal Nos.2547-2550 of 2011 and Civil Appeal No.6679 of 2015 stand on a

Page 36

36

different footing.  In these appeals challenge on merits was negated but one

of the issues raised was regarding competence of CO of a unit other than the

one  to  which  the  accused  belonged,  to  convene  constitute  and  complete

SCM.  Having answered that  question,  nothing further  needs  to  be done,

especially when the challenge stood negated on merits. We therefore affirm

the view taken by the High Court and dismiss these appeals.

37.  Similarly, Civil Appeal CAD Nos.13803 and 18038 of 2015 where the

major offences were held not to have been proved on facts also deserve to be

dismissed.  With  the  issue  regarding  competence  of  the  CO  having  been

answered hereinabove, nothing survives in the matters and these appeals are

dismissed.  

38.  No order as to costs.

……………………………..CJI, (T.S. Thakur)

……………………………..J. (Uday Umesh Lalit)

New Delhi July 05, 2016