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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL      APPEAL     NO.     1961       OF     2010   

Union of India & Ors. …. Appellants

Versus

Dinesh Prasad                                                  ….Respondent

JUDGMENT

R.M.     Lodha,     J.      

This appeal raises the question of the competence of the  

commanding officer of the accused, who signed and issued  the charge  

sheet, to convene and conduct the summary court-martial against that very  

accused.  

2. The above question arises in this way. The respondent, Dinesh  

Prasad, joined the 11th Assam Rifles as washerman/rifleman in 1995. For  

the period between 26.07.1998 and 11.10.2000 (FN), he absented himself  

from unit unauthorisedly while in active service. On 03.08.2001, Col. A.S.  

Sehrawat, Commandant, under his signature served a charge sheet under  

Section 39(a) of the Army Act, 1950 (for short, ‘Army Act’) on the  

respondent for the absence without leave for 808 days. The Commandant  

constituted summary court-martial to try the respondent for the above

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charge.  The respondent pleaded guilty to the charge before the summary  

court-martial.  The summary court- martial, after taking into consideration  

the facts and circumstances of the case, passed an order on 04.08.2001  

dismissing the respondent from service.  The Reviewing Officer has  

confirmed the punishment of dismissal from the service awarded to the  

respondent.  

3. The respondent challenged the punishment awarded to him by the  

summary court-martial  in a writ petition before the Gauhati High Court. The  

respondent (petitioner therein) explained in the writ petition the reason for  

his absence. According to him, he lost his mental balance while in service  

and was suffering from mental depression.  At the time of arguments before  

the Single Judge, it was submitted on his behalf that the very Commandant  

of the Battalion, who signed and issued  the charge sheet to him, convened  

and presided over the summary court-martial and on conclusion of which  

the punishment of dismissal from service was imposed which vitiated the  

court-martial proceedings  as he was denied a fair trial.   

4. The learned Single Judge held that while issuing a charge sheet  

the Commandant tentatively made up his mind that there was some  

material against the delinquent and accordingly, after having issued charge  

sheet, Col. A.S. Sehrawat, who was Commandant of the Battalion, ought  

not to have convened the court-martial and in any event ought not to have  

conducted the proceedings of the court-martial leading to the punishment of  

dismissal from the service.   The Single Judge held that in the facts of the  

case, the proceedings of the summary court-martial held against the  

delinquent were vitiated on account of likelihood of bias.  By the judgment

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and order dated 07.09.2006, the Single Judge allowed the writ petition and  

set aside the respondent’s dismissal from service.  It was observed,  

however, that it would be open for the concerned authority to proceed in the  

matter afresh in accordance with law, if it so desired.    

5. Being not satisfied with the judgment and order dated 07.09.2006,  

the present appellants preferred writ appeal.  The Division Bench of the  

Gauhati High Court found  that under Section 116 of the Army Act, the  

summary court-martial proceedings could be held by the commanding  

officer of any corps, department or detachment of the regular Army and it  

need not necessarily be the commanding officer of the Battalion in which  

the accused was serving.   The Division Bench thus in its order of  

28.08.2008 was of the view that there was no justification to interfere with  

the view taken and the conclusion reached by the Single Judge in the  

impugned judgment.  It is from this order that the present appeal by special  

leave has arisen.  

6. It is necessary to refer to the relevant statutory provisions in the  

Army Act and the Army Rules, 1954 (for short, ‘Army Rules’)  for  

consideration of the question raised before us.  Section 3(v) defines  

‘commanding officer’ as under:  

“S.3(v)- "commanding officer", when used in any provision  of this Act, with reference to any separate portion of the  regular army or to any department thereof, means the  officer whose duty it is under the regulations of the regular  Army, or in the absence of any such regulations, by the  custom of the service, to discharge with respect to that  portion of the regular Army or that department, as the case  may be, the functions of a commanding officer in regard to  matters of the description referred to in that provision”.

7. Section 4 of the Army Act makes applicable its provisions to

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certain forces under the Central Government. In exercise of the powers  

conferred by sub-section (1) of Section 4 of the Army Act, the Central  

Government has issued SRO 117 dated 28.03.1960 and SRO 318 dated  

6.12.1962. SRO 318 has been subsequently amended by SRO 325 dated  

31.8.1977. SRO 318 dated 6.12.1962 (as amended by SRO 325 dated  

31.8.1977) reads as follows:

“S.R.O. 318 dated 6th December, 1962 (as amended by  S.R.O. No. 325 dated 31st August, 1977). - In exercise of  the powers conferred by sub-section (1) of Section 4 of  the Army Act, 1950  and in supersession of the notification  of the Government of India in the late Affair Department  No. 93-X dated 25th June 1942, as subsequently  amended, the Central Government hereby – (i) Applies  to every unit of the Assam Rifles, (and to  recruits and personnel or the said Assam Rifles when  undergoing training in any army training establishments)  being a force raised and maintained in India under  authority  of the Central Government, all the provisions of  the said Act, except those specified in Part A of the  Schedule annexed hereto, subject to the modifications set  forth in Part B of the that (sic) Schedule, when attached  to or acting with any  body of the regular army; and  (ii) suspends, while this notification remains in  force the operation of sections 6,7,8 and 9 of the Assam  Rifles Act, 1941 (5 of 1941)”.  

8. Chapter VI of the Army Act deals with the offences. Sections 34 to  

70 fall under Chapter VI.  Section 39, to the extent it is relevant, reads as  

under:-  

“39. Absence without leave.- Any person subject to this  Act who commits any of the following offences, that is to  say, -

(a) absents himself without  leave; or  (b) to (g)  ……………….

shall on conviction by court-martial, be liable to suffer  imprisonment   for a term which may extend to three years  or such less punishment as is in this Act mentioned”.  

9. Section 108 describes the kinds of courts-martial.  The said

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provision reads as under:

“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”.  

10. Section 116 provides that the 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.  As per sub-section  

(2) of Section 116, the proceedings shall be attended throughout by two  

other persons who shall be officers or junior commissioned officers or one  

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

11. Section 71 provides for punishments awardable by courts-martial.  

One of the punishments that is awardable by the courts-martial is dismissal  

of the delinquent from service.  

12. The Army Rules have been framed by the Central Government in  

exercise of its powers under Section 191 for the purposes of carrying into  

effect the provisions of the Army Act.  The powers of the commanding  

officers in relation to investigation of charges and trial by court-martial are  

provided in Chapter V of the Army Rules.  Rule 31 provides that the charge  

sheet shall be signed by the commanding officer of the accused and shall  

contain the place and date of such signature.   

13. Rule 39 deals with ineligibility and disqualification of officers for  

court-martial.  It reads as under:  

“39 Ineligibility  and    disqualification  of officers  for  court-martial;

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(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

(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.”

14. Rules 106 to 133 of the Army Rules provide for the proceedings  

for conduct of summary court-martial.  The summary court-martial has to  

follow the procedure provided in these Rules. Arraignment of the accused  

is provided in Rule 111. Rule 115 deals with general plea of ‘guilty’ or ‘not  

guilty’.  Rule 116 deals with the procedure after plea of ‘guilty’.  Rule 116  

provides as follows:  

“116 Procedure after plea of "Guilty":-

(1) Upon the record of the plea of "Guilty", if there are  other charges in the same charge-sheet to which the plea  is "Not Guilty", the trial shall first proceed with respect to  the latter charges, and, after the finding of these charges,  shall proceed with the charges on which a plea of "Guilty"  has been entered; but if they are alternative charges, the  Court may either proceed with respect to all the charges

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as if the accused had not pleaded "Guilty" to any charge,  or may, instead of trying him, record a finding upon any  one of the alternative charges to which he has pleaded  "Guilty" and a finding of "Not Guilty" upon all the other  alternative charges.

(2) After the record of the plea of "Guilty" on a charge (if  the trial does not proceed on any other charges), the  Court shall read the summary of evidence, and annex it to  the proceedings or if there is no such summary, shall take  and record sufficient evidence to enable it to determine  the sentence, and the reviewing officer to know all the  circumstances connected with the offence. The evidence  shall be taken in like manner as is directed by these rules  in case of a plea of "Not Guilty".

(3) After such evidence has been taken, or the summary  of evidence has been read, as the case may be, the  accused may address the Court in reference to the charge  and in mitigation of punishment and may call witnesses as  to his character.

(4) If from the statement of the accused, or from the  summary of evidence, or otherwise, it appears to the Court  that the accused did not understand the effect of his plea  of "Guilty",  the court shall alter the record and enter a  plea of “Not Guilty”, and proceed with the trial  accordingly.”

(5)  If a plea of "Guilty" is recorded and the trial proceeds  with respect to other charges in the same charge-sheet,  the proceedings under sub-rules (2) and (3) shall take  place when the findings on the other charges in the same  charge-sheet are recorded.

(6) When the accused states anything in mitigation of  punishment which in the opinion of the Court requires to  be proved, and would, if proved, effect the amount of  punishment, the court may permit the accused to call  witnesses to prove the same.

(7) In any case where the Court is empowered by section  139 to find the accused guilty of an offence other than that  charged, or guilty of committing an offence in  circumstances involving a less degree of punishment, or  where it could, after hearing the evidence, have made a  special finding of guilty subject to exceptions of variations  in accordance with sub-rule (3) of rule 121, it may, if it is  satisfied of the justice of such course accept and record a  plea of guilty of such other offence, or of the offence as  having been committed in circumstances involving such  less degree of punishment, or of the offence charged  subject to such exceptions or variations”.

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15. Rule 123 provides for  procedure on conviction and Rule 124  

deals with the sentence. Rule 187(3)(a) provides that every battalion is  

‘corps’ for the purpose of summary court-martial.   

16. It may be immediately stated that   by virtue of Section 4 of the  

Army Act read with S.R.O.318 dated 6.12.1962 (as amended by S.R.O.  

325 dated 31.08.1977), the Army  Act has been made applicable to the  

Assam Rifles.  The respondent was thus subject to the provisions of the  

Army Act.  

17. That the Commandant,  Col. A.S. Sehrawat, signed and issued  

the charge sheet to the respondent and  convened and presided over the  

summary court-martial is not in dispute.  It is also not in dispute that the  

summary court-martial presided over by Col. A.S. Sehrawat awarded to the  

respondent  the punishment of dismissal from service. Whether the above  

procedure has vitiated the court-martial proceedings against the  

respondent is the question.  The courts-martial are of four kinds, (a) general  

courts-martial; (b) district courts-martial; (c) summary general courts-

martial; and (d) summary courts-martial as per Section 108.  Rule 39 of the  

Army Rules deals with ineligibility and disqualification of officers for court-

martial.  In terms of this Rule, an officer is disqualified for serving  on  

general court-martial or district court-martial if he is an officer who  

convened the court.  A commanding officer of the accused or of the corps to  

which the accused belongs is also disqualified for serving on general court-

martial or district court-martial.   However, no disqualification is attached to  

the officer who convened the court or the commanding officer of the  

accused or of the corps to which the accused belongs for serving on the

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other two kinds of courts-martial,  namely,  summary general courts-martial  

or    summary courts-martial. There is neither any impediment nor embargo  

in the Army Act or the Army Rules for an  officer who convened the  

summary general courts-martial or summary courts- martial or the  

commanding officer of the accused or of the corps to which the accused  

belongs to serve on such court.  Section 116 of the Army Act rather  

provides that 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 (summary court-martial).   If the provision  

contained in Section 116 of the Army Act is read with Rules 31 and  39 of  

the Army Rules, there remains no manner of doubt that Col. A.S. Sehrawat,  

who was commanding officer of the respondent, did not suffer from any  

disability, ineligibility or disqualification to serve  on the summary court-

martial to try the respondent despite the fact that he signed and issued  the  

charge sheet against the respondent.  

18.  As a matter of fact,  the competence or eligibility of Col. A.S.  

Sehrawat to serve on the summary court-martial for trial of the respondent  

was not at all put in issue by the respondent in the entire writ petition.  The  

petitioner therein set up the following grounds,  namely; (1) the charge  

against the petitioner for absenting himself without leave being an offence  

under Section 39(a) of the Army Act   has to be proved  beyond reasonable  

doubt;  (2) the petitioner’s  absence from Unit  Headquarters was not willful  

and intentional;  it was for the reason beyond his control;  and (3)  the  

punishment  awarded  by the summary court-martial was not rational and  

commensurate with the offence proved; it did not maintain the proportion;

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the punishment was oppressive  and out of tune of the occasion.  It was  

only in the course of arguments before the  learned Single Judge that a  

submission was made on behalf of the petitioner that the very Commandant  

of the Battalion, who signed and issued  the charge sheet to him,  convened  

and presided over the summary court-martial and on  conclusion of which  

the punishment of dismissal from service was imposed which vitiated the  

court-martial proceedings  as he was denied a fair trial.  In our view, the  

learned Single Judge was clearly in error in allowing such argument.  

Firstly, the argument was raised without any foundation in the writ petition.  

No plea of actual or  likelihood of bias was raised in the writ petition.  There  

was also no plea  taken in the writ petition that he was denied fair trial  in  

the course of  summary court-martial.   Secondly, and more importantly, the  

learned Single Judge overlooked and ignored the statutory provisions  

referred to hereinabove.  The Division Bench also failed in considering the  

matter in right perspective and in  light of the provisions  in the Army Act  

and the Army Rules.  

19. Absence without leave is one of the offences under the Army Act.  

On conviction by the court-martial of the said offence,  the offender is liable  

to suffer imprisonment for a term which may extend to three years.  

Alternatively, for such offence any of the punishments provided in Section  

71 may be awarded by the court-martial. Clause (e) of Section 71 provides  

dismissal from the service as one of  the punishments awardable by the  

court-martial for such an offence.  The respondent was served with the  

charge sheet which was in conformity with Rule 31 of the Army Rules and  

Sections 39 and 116 of the Army Act.   The respondent admittedly

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absented himself from unit line for 808 days.  He did not obtain any leave.  

He pleaded guilty before the summary court-martial.  The summary court-

martial followed the procedure provided under Rule 116 of the Army Rules  

and awarded punishment  of his  dismissal  from service.   Neither  

constitution of the summary court-martial nor the procedure followed by that  

court can be said to suffer from any illegality.   The facts are eloquent  

inasmuch as respondent remained absent without leave for more than two  

years in the service of about five years.  The order of dismissal, in the facts  

and circumstances of the case, by no stretch of imagination, can be said to  

be disproportionate or oppressive or founded on extraneous consideration.  

20. The decision of this Court in Vidya Parkash v. Union of India and  

Ors1. squarely applies to the present situation.  Unfortunately, the judgment  

in Vidya Parkash1 was not brought to the notice of the Single Judge and the  

Division Bench.  The facts in Vidya Parkash1 were these:  the appellant was  

posted as Jawan in Panagarh. He left Panagarh with his wife and children  

for Kanpur without taking any leave.  According to  Vidya Parkash, he  

became  unwell and he was under treatment of a doctor.  When he reported  

to Panagarh unit with his  fitness certificate,  he was   served   with a  

charge sheet wherein it was ordered by Major P.S. Mahant that he would  

be tried by summary court-martial.  The summary court-martial which was  

presided over by Major P.S. Mahant ordered his dismissal from service.  

Vidya Parkash challenged that order in a writ petition before Delhi High  

Court.  Inter alia,  a  plea was set up  that the commanding officer Major  

P.S. Mahant was not  legally competent to preside over a summary court-

martial.  The Division Bench of the Delhi High Court dismissed the writ  1  (1988) 2 SCC 459

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petition.  It was held that no objection was taken as to the competence of  

Major P.S. Mahant to act as a Judge in summary court-martial.  It was from  

the order of the  Delhi High Court that the matter reached this Court.  This  

Court   considered  Sections 108 and 116 of the Army Act,   Rule 39(2) of  

the Army Rules and held that the summary court martial held  by the  

commanding officer Major P.S. Mahant was in accordance with the  

provisions of Section 116 of the Army Act.  This Court further observed :  

“13  -  The Commanding Officer of the Corps, Department  or Detachment of the Regular Army to which the appellant  belongs, is quite competent in accordance with the  provisions of Section 116 of the said Act and as such the  constitution of the summary court martial by the  Commanding Officer of the Corps cannot be questioned  as illegal or incompetent. It is neither a general court  martial nor a district court martial where the appellant's  case was tried and decided. In case of general court  martial or district court martial Rule 39(2) of the Army  Rules, 1954 is applicable and the Commanding Officer is  not competent to convene general or district court martial.  The summary court martial was held by the Commanding  Officer of the corps, Major P.S. Mahant and there are two  other officers including Capt. K.J. Singh and another  officer to attend the proceedings. In such circumstances,  the summary court martial having been convened by the  Commanding Officer of the corps according to the  provisions of the Army Act, 1950, the first submission  made on behalf of the appellant fails.”

21. The legal position exposited by this Court in Vidya Parkash1  

renders the impugned judgments unsustainable.   

22. Learned counsel for the respondent placed heavy reliance upon  

the decisions  of this Court in Punjab National Bank  and Ors. v. Kunj  

Behari Misra2, Maneka Gandhi v. Union of India & Anr.3  and Roop Singh  

Negi v. Punjab National Bank & Ors.4 , in support of his submission that the  

order of dismissal from service by the summary court-martial was in  2  (1998) 7 SCC 84 3  AIR 1978 SC 597 4  (2009) 2 SCC 570

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violation  of principles of natural justice.  We are afraid none of these  

decisions has any application to the facts of the present case.  There is no  

violation of principles of natural justice. No illegality has been committed in  

convening the summary court-martial by the commanding officer nor there  

is any illegality in the conduct of the summary court- martial.  The  

respondent pleaded guilty to the charge before the summary court-martial  

and the summary court-martial found  him guilty.  It was only then that the  

order of dismissing the respondent from service was passed.  It is now  

settled that no reasons are required to be  recorded  by the court-martial.    

23. Civil appeal is allowed.   The judgment and order of the  Single  

Judge dated 7.09.2006 and the order of the Division Bench dated  

28.08.2008 are set aside.  No order as to costs.   

………………………J.  (R.M. Lodha)

     .....……………………J.               (Anil R. Dave)  

NEW DELHI OCTOBER 30, 2012.