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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 7133 OF 2008   

UNION OF INDIA & ANR.                                          .…..APPELLANTS

Versus

PURUSHOTTAM                                                 …..RESPONDENT

J  U  D  G  M  E  N  T

VIKRAMAJIT SEN,J.

1 The  Respondent  herein,  No.  7773409X  Havildar  (Military  Police)  

Purushottam, was enrolled in the Corps of Military Police, on 7th June 1983.  

On 27th November 2001, while the Respondent was posted to 916  Provost  

Unit  (General  Reserve  Engineer  Force,  or  GREF),  he  was  detailed  as  a  

member of Mobile Squad and was tasked to carry out checks of various Gref  

detachments located on the Udhampur-Srinagar highway. On completion of  

duty,  the  Squad  Commander  reported  the  following  activities  of  the  

Respondent: a) He had demanded Rs. 15000 from the Commander 367 RM  

Platoon (Kanbal) against surplus construction stores held with the platoon;  

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b)  he  had taken 100 litres  of  HSD (high speed diesel)  with  barrel  from  

Superintendent  BR-I  HL  Meena  of  367  Platoon,  Gund  Detachment  and  

thereafter had sold it along with the barrel to a civilian for Rs.1800/-, and  

this allegation was levelled by the driver of the vehicle in which he was  

traveling; c) He had extorted Rs.6000/- from Superintendent BR-II Sanjay  

Kumar, 385 RM Platoon, for not reporting surplus construction material held  

by  the  platoon;  d)  He  had  taken  one  coat/parkha  along  with  two  steel  

hammers from QM, at 118 RCC (GREF).

2 Based on these reports, the Chief Engineer, Project Beacon, ordered a  

Court of Inquiry which investigated these allegations and concluded that the  

Respondent was blameworthy for two of the four aforesaid acts committed  

without authority: firstly, demanding and taking 100 litres of HSD from BR-

I  HL  Meena  on  30th November,  2001  and  selling  it  to  a  civilian,  and  

secondly, on 5th December, 2001 demanding and taking a coat/parkha and  

two stone breaking steel hammers. The  Chief  Engineer  partially  agreed  

with the findings of the Court of Inquiry and directed disciplinary action  

against  the Respondent for the aforementioned two acts.  The Respondent  

was arraigned on two counts for the two respective acts and charged with  

committing extortion, under Section 53(a) of the Army Act, 1950.  Summary  

of Evidence was recorded under Rule 23, Army Rules and the Respondent  

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was tried by Summary Court Martial (SCM), headed by Lt. Col CM Kumar,  

Officer Commanding, (OC) on 11.04.2002. The Respondent pleaded guilty  

to both charges.  At the hearing of the SCM, two prosecution witnesses were  

examined,  both of  whom the Respondent  declined to cross-examine.  The  

Respondent neither made any statement in his defence, nor did he produce  

any  defence  witnesses.   He  was  ultimately  awarded  the  sentence  of  a  

reduction in rank to that of “Naik”.   Thereafter, for reasons recondite, the  

‘reviewing authority’ purportedly acting under Section 162 of the Act, while  

‘reviewing’ the SCM, set aside the same, “due to incorrect framing of charge  

and lackadaisical recording of evidence at the summary of evidence”.  This  

intervention is in the teeth of the Certification in consonance with Rule 115.  

Inasmuch as it is the Deputy Judge-Advocate General who has made these  

observations  and  the  records  do  not  bear  out  and  authenticate  that  his  

opinion/observation,  was  subscribed  to  or  approved  by  the  ‘reviewing  

authority’ who statutorily has to be the senior ranking officials enumerated  

in Section 162, there appears to us that a ‘review’ did not actually take place.  

This  is  essentially  a  usurpation  of  power  by  Deputy  Judge-Advocate  

General.   Rule 133 no doubt mentions this officer, but his role is restricted  

to forwarding the proceedings of the Summary Court Martial to the officer  

authorised to deal with them in pursuance of Section 162.   At the most the  

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Deputy  Judge-Advocate  General  may  append  his  own  opinion  to  the  

proceedings of the Summary Court Martial while forwarding them to the  

authorised officer.   This is amply clear from the fact that the records made  

available to the High Court as well as to this Court do not contain any Order  

of the “prescribed officer” setting aside the proceedings or reducing sentence  

to any other sentence which the SCM had imposed.   It also seems to us to  

be plain that instead of setting aside or reducing the sting of the sentence the  

Deputy Judge-Advocate General has opined, without any statutory authority,  

that  the  Summary  Court  Martial  itself  should  be  set  aside  and  the  

Accused/Respondent  be  relieved  of  all  consequences  of  trial.   Wholly  

contrary to his own opinion, the Deputy Judge-Advocate General has gone  

on to return a finding of misappropriation and a sentence that the conduct of  

the Accused/Respondent renders his retention in the service as undesirable.  

It  determined  that  although  the  officer  conducting  the  Court  Martial  

recorded a plea of guilty under Rule 116(4), a perusal of the Respondent’s  

statement in the Summary of Evidence belied this recording; that therein,  

qua the second charge, the Respondent had contested the charge stating that  

he had requested for supply of only one hammer which was to be returned at  

the  end  of  winter.  Upon  later  inspecting  the  hammer,  the  Respondent  

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discovered that there were two hammers packed inside, instead of the one  

that he had requested.

3 Deputy Judge-Advocate General purporting to act as the Reviewing  

Authority, considering this discrepancy, opined that the “officer holding the  

trial should have, under AR 116 (4), altered the record and entered a plea of  

‘not  guilty’  in  respect  of  both  charges,  and  proceeded  with  the  trial  

accordingly. Non-compliance of the aforesaid provision, in the instant case,  

being a serious legal infirmity, makes the SCM proceedings liable to be set  

aside.   Therefore, notwithstanding the pleas of guilty by the accused, the  

findings,  conviction  on  both  charges  are  not  sustainable.  In  view of  the  

above,  I  am of  the  considered opinion that,  the  Summary Court  Martial  

proceedings are liable to be set aside, and I advise you accordingly. If you  

agree, following will be a suitable minute for you to record on page “J” of  

the proceedings:- ‘I set aside the proceedings. I direct that the accused be  

relieved of all consequences of the trial’.”  The records do not reveal that  

this advice was acted upon.  

4 It was in this impasse that a Show Cause Notice (SCN) was issued  

shortly afterwards to the Respondent, stating that the Respondent had during  

his tenure been found to have engaged in illegal activities. The Respondent  

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was charged with acts of indiscipline for the same set of alleged acts that had  

erstwhile been the subject of the Court Martial proceedings against him for  

two offences of extortion. It was made known to the Respondent that his  

continued  presence  in  the  Army  would  possibly  be  detrimental  to  

maintaining discipline  and hence  his  retention  in  service  was  considered  

undesirable.   The Respondent  was required to show cause as to why his  

service should not  be terminated under the provisions  of  Army Rule 13.  

The Respondent has submitted that he replied to this notice but it is not on  

record.  The Respondent was allegedly orally told that his services had been  

terminated  and  a  Discharge  Certificate  under  Rule  13  was  issued  on  

05.02.2003.   

5 The Respondent filed a CWP against this Discharge repudiating the  

legality of its issuance against the same alleged acts that had already been  

subjected to a Court Martial proceeding.  The Respondent relied on Articles  

14, 16, 21 and 311 of the Constitution, and declaimed against the “illegal  

procedure and short cut method” taken by the Army authorities to get rid of  

him.    The  Appellants  stated  in  their  reply  before  the  High Court,  as  a  

preliminary point, that no right of the Respondent, let alone a fundamental  

right,  had been  violated.  The jurisdiction  of  the  High  Courts  thus  being  

unwarranted, the Appellants prayed for a preliminary dismissal on that point.  

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The  Appellants  denied  that  the  Respondent  had  been  Discharged  for  

offences  of  extortion;  rather,  the Respondent’s  misconduct,  amounting to  

moral turpitude and gross indiscipline, meant that his continued service in  

the Army was no longer considered desirable.  The Appellants canvassed  

that  the  Respondent,  not  being  a  “civil  servant”,  could  not  claim  the  

protection  of  Article  311.    Finally,  they  submitted  that  the  Discharge  

procedure had been strictly followed in this case. The High Court allowed  

the  Respondent’s  writ  petition,  and  quashed  Show  Cause  Notice  as  

unsustainable.  The Court so concluded on the basis that the Show Cause  

Notice relied on exactly the same set of charges as had run their course in  

the Court Martial, resulting in the Respondent’s acquittal. The Court did not  

accept the distinction articulated by the Appellants, between extortion being  

the subject of the Court Martial, and misconduct and indiscipline being the  

subject of the Show Cause Notice and Discharge.  Nevertheless, the High  

Court  did  not  preclude  the  Respondent  before  it  from  “taking  any  

departmental action against  the petitioner in respect  of the allegations,  in  

accordance with law.”   This is the Judgment which is before us for our  

scrutation.

6 The  factual  tapestry  having  been  threaded,  we  are  confronted  

primarily as to whether the Appellants could have legally issued the notice  

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and discharged the Respondent  for  misconduct and indiscipline when the  

same set of alleged acts had been earlier charged as offences and put through  

a Court Martial, in which the Respondent was ultimately acquitted.  In other  

words, the legal nodus that we have to cogitate upon is the propriety of the  

initiation of a Discharge Enquiry of a member of the Army subsequent to  

Summary Court  Martial  proceedings  against  him on the  same or  similar  

charges  having  been  set  aside.   In  terms  of  the  impugned  Judgment,  

Discharge  Order  passed  by  the  Army/Union  of  India  (UOI),  Appellants  

before us, has been quashed.  However the commencement of Departmental  

action  in  respect  of  the  same  allegations  has  not  been  interdicted  or  

precluded.  The Appellants vehemently contend that the High Court erred in  

quashing the assailed Discharge Order.    Conspicuously,  the Respondent  

has not  assailed the grant to the UOI of  leave to initiate a Departmental  

Enquiry.   However,  it  has been vehemently contended before us that the  

SCN  dated  31.10.2002  suffers  from  the  vice  of  double  jeopardy  and,  

therefore, has been correctly quashed by the Division Bench.  The rubicon  

cleaving  the  commencement  or  continuance  of  Departmental  proceeding  

when  criminal  charges  have  also  been  levelled  is  always  difficult  to  

discover.  But there is a watershed which can be discerned albeit with a fair  

share of arduousness.   

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7 We shall forthwith analyse the concept of double jeopardy, especially  

in the backdrop of Constitutions of countries spanning our globe.   The Fifth  

Amendment of  the U.S.  Constitution promises  that  -  "No person  shall  be  

held  to  answer  for  a  capital,  or  otherwise  infamous  crime,  unless  on  a  

presentment or indictment of a grand jury, except in cases arising in the land  

or naval forces, or in the militia, when in actual service in time of war or  

public danger; nor shall any person be subject for the same offense to be  

twice put in jeopardy of life or limb; nor shall be compelled in any criminal  

case  to  be  a  witness  against  himself,  nor  be  deprived of  life,  liberty,  or  

property, without due process of law; nor shall private property be taken for  

public use, without just compensation."   This protection has been construed  

as  admitting of  three  facets:  i)  Autrefois  Acquit ii)  Autrefois  Convict iii)  

Protection against multiple punishments.   We shall be referring briefly to  

John Hudson vs. United States 522 US 93 (1997) where the U.S. Supreme  

Court has delineated on what the parameters of double jeopardy.  Second,  

Article 35(3)(m) of the Constitution of the Republic of South Africa (1996)  

provides that a person is “not to be tried for an offence in respect of an act or  

omission  for  which  that  person  has  previously  been  either  acquitted  or  

convicted”.   Third, Section 11(h) of the Charter of Rights of the Canadian  

Constitution provides that any person charged with an offence has the right  

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“if finally acquitted of the offence, not to be tried for it again and, if finally  

found guilty and punished for the offence, not to be tried or punished for it  

again”.    Fourth,  Article 14 (7) of the International Covenant on Civil and  

Political Rights (ICCPR, 1966) states: “No one shall be liable to be tried or  

punished  again  for  an  offence  for  which  he  has  already  been  finally  

convicted or acquitted in accordance with the law and penal procedure of  

each country”.   Fifth, Article 13 of the Constitution of Pakistan, 1973, reads  

thus -   Protection against double punishment and self incrimination − No  

person- (a) shall be prosecuted or punished for the same offence more than  

once; or (b) shall, when accused of an offence, be compelled to be a witness  

against himself.

8 Venturing a divergent path, the UK Criminal Justice Act, 2003, has  

modified the operation of autrefois convict, in that Part 10 thereof allows for  

retrial in the cases of serious offences scheduled therein, in the event of ‘new  

and  compelling’  evidence  against  the  acquitted  person  in  relation  to  the  

qualifying offence. This statute has been emulated by legislations in New  

Zealand  and  in  the  Australian  States  of  Queensland,  New South  Wales,  

Tasmania, South Australia and Victoria.

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9 The Constitution of India charters a contrasting course in the context  

of  incorporation  of  the doctrine  of  double  jeopardy in  that  Article  20(2)  

postulates that – “No person shall be prosecuted and punished for the same  

offence  more  than once.”    This  variance from constitutional  protections  

given in other countries has prompted us to sift through the ‘Debates of the  

Constituent  Assembly’  so  as  to  ascertain  whether  autrefois convict  in  

preference  to  the  more  preponderant  autrefois acquit,  was  the  position  

intended to be ordained by the drafters of our Constitution.  These Debates  

bear witness to the fact  that  it  was indeed meditated and intended.  The  

original proposal was – “No person shall be punished for the same offence  

more than once”.  A proposed amendment whereby the words “otherwise  

than as proposed by the Code of Criminal Procedure, 1898,” was sought to  

be  added,  but  was  roundly  rejected.   The  suggestion  made  by  Shri  

Naziruddin Ahmad was that “the principle should be that a man cannot be  

tried  again,  tried  twice,  if  he  is  acquitted  or  convicted  by  a  Court  of  

competent jurisdiction, while the conviction or acquittal stands effective…  

A man acquitted shall also not be liable to be tried again.” (2nd December,  

1948).    On  the  next  day,  the  extracted  intervention  of  Shri  T.T.  

Krishnamachari was accepted, sounding the death knell for ‘autrefois acquit’  

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and  leading  to  Article  20(2)  as  it  stands  today.    Shri  T.T.  

Krishnamachari (Madras: General):

“Mr. Vice-President, Sir, the point I have to place before the  House happens to be a comparatively narrow one. In this article  14, clause (2) reads thus: `No person shall be punished for the  same offence more than once'. It has been pointed out to me by  more Members of this House that  this might probably affect  cases where, as in the case of an official of Government who  has been dealt  with departmentally and punishment has been  inflicted, he cannot again be prosecuted and punished if he had  committed a criminal offence; or, per contra, if a Government  official had been prosecuted and sentenced to imprisonment or  fine by a court, it might preclude the Government from taking  disciplinary action against him. Though the point is a narrow  one and  one  which is  capable  of  interpretation  whether  this  provision in this  particular  clause in the Fundamental  Rights  will affect the discretion of Government acting under the rules  of conduct and discipline in regard to its own officers, I think,  when we are putting a ban on a particular type of action, it is  better to make the point more clear.

I  recognise  that  I  am  rather  late  now  to  move  an  amendment. What I would like to do is to word the clause thus:  `No  person  shall  be  prosecuted  and  punished  for  the  same  offence  more  than  once."  If  my  Honourable  Friend  Dr.  Ambedkar  will  accept  the  addition  of  the words  `prosecuted  and' before the word 'punished' and if you, Sir, and the House  will give him permission to do so, it will not merely be a wise  thing to do but it will save a lot of trouble for the Governments  of the future. That is the suggestion I venture to place before  the  House.  It  is  for  the  House  to  deal  with  it  in  whatever  manner it deems fit.”

10 It would be relevant to mention that modern jurisprudence is presently  

partial to the perusal of Parliamentary Debates in the context of interpreting  

statutory provisions, although earlier this exercise was looked upon askance.  

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Suffice it to mention the analysis of the Constitution Bench in R.S. Nayak  

vs. A.R. Antulay (1984) 2 SCC 183 and in Haldiram Bhujiawala vs. Anand  

Kumar Deepak Kumar (2000) 3 SCC 250; and particularly Samatha vs. State  

of Andhra Pradesh (1997) 8 SCC 191, where Parliamentary Debates were  

studied by this Court.   It appears to be beyond debate that the framers of our  

Constitution  were  fully  alive  to  the  differing  and  disparate  concepts  of  

autrefois acquit and autrefois convict and consciously chose to circumscribe  

the  doctrine  of  double  jeopardy  only  to  prosecution  culminating  in  a  

conviction.  This facet of the law has already been carefully considered by  

the Constitution Bench in Maqbool Hussain vs. State of Bombay 1953 SCR  

730, and we cannot do better than extract the relevant portions therefrom:

7. The  fundamental  right  which  is  guaranteed  in  Article  20(2) enunciates the principle of “autrefois convict” or “double  jeopardy”. The roots of that principle are to be found in the well  established rule of the common law of England “that where a  person  has  been  convicted  of  an  offence  by  a  court  of  competent  jurisdiction  the  conviction  is  a  bar  to  all  further  criminal proceedings for the same offence”. (Per Charles, J. in  Reg v. Miles). To the same effect is the ancient maxim “Nimo  Bis Debet Puniri pro Uno Delicto”, that is to say that no one  ought to be twice punished for one offence or as it is sometimes  written “Pro Eadem Causa”, that is, for the same cause.

11. These were the materials which formed the background  of the guarantee of fundamental right given in Article 20(2). It  incorporated within its scope the plea of “autrefois convict” as  known  to  the  British  jurisprudence  or  the  plea  of  double  jeopardy  as  known  to  the  American  Constitution  but  circumscribed it by providing that there should be not only a  prosecution but also a punishment in the first instance in order  

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to operate as a bar to a second prosecution and punishment for  the same offence.

12. The words “before a court of law or judicial tribunal” are  not to be found in Article 20(2). But if regard be had to the  whole background indicated above it is clear that in order that  the protection of  Article 20(2) be invoked by a citizen there  must have been a prosecution and punishment in respect of the  same offence before a court of law or a tribunal, required by  law to decide the matters in controversy judicially on evidence  on oath which it must be authorised by law to administer and  not  before  a  tribunal  which  entertains  a  departmental  or  an  administrative enquiry even though set up by a statute but not  required to proceed on legal evidence given on oath. The very  wording  of  Article  20  and  the  words  used  therein:—  “convicted”,  “commission of  the act  charged as an offence”,  “be  subjected  to  a  penalty”,  “commission  of  the  offence”,  “prosecuted,  and  punished,  accused  of  any  offence,  would  indicate  that  the proceedings  therein contemplated are  of  the  nature  of  criminal  proceedings  before  a  court  of  law  or  a  judicial tribunal and the prosecution in this context would mean  an  initiation  or  starting  of  proceedings  of  a  criminal  nature  before a court of law or a judicial tribunal in accordance with  the procedure prescribed in the statute which creates the offence  and regulates the procedure.

11 Keeping  in  perspective  this  exposition  of  double  jeopardy  as  

postulated in our Constitution, the obiter dicta in State of Bihar vs. Murad  

Ali Khan (1988) 4 SCC 655, expressed en passant by the two Judge Bench  

does not correctly clarify the law, as this view is contrary to the dictum of  

the Constitution Bench, which was not brought to the notice of the Bench.  

12 The  US  Supreme  Court  has  extensively  excogitated  over  the  

conundrum  as  to  what  constitutes  a  successive  “punishment”  for  the  

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purposes  of  attracting  Constitutional  protection  against  Double  Jeopardy,  

under the 5th Amendment. The Court, in John Hudson v United States, 522  

U.S.  93  (1997),  affirmed  the  distinction  between  civil  punishment  and  

proceedings  and  criminal  punishment  and  prosecution,  and  held  that  the  

Fifth  Amendment  proscribes  two  (or  more)  successive  punishments  or  

prosecutions  of  a  criminal  nature  only,  and  permits  civil  punishment  or  

proceedings  either  preceding  or  succeeding  a  criminal  prosecution  or  

punishment.  In the case before the U.S. Supreme Court, John Hudson was  

the Chairman of the First National Bank of Tipton and the First National  

Bank of Hammon, and used his position to regain bank stock he had used as  

collateral on defaulted loans through a series of bank loans to other parties.  

Upon investigation the Office of the Comptroller of Currency (OCC) found  

that  the  loans  were  made  in  violation  of  several  banking  statues  and  

regulations. The OCC fined and debarred Hudson for the violations.  Later,  

he faced criminal indictment in the Federal District Court for violations tied  

to  those  same  events.    Hudson objected,  arguing  that  the  indictment  

violated  the  Double  Jeopardy  clause  of  the  5th  Amendment.  Overruling  

United States v. Halper, 490 U.S. 436 (1989), wherein the Court had ruled  

as  unconstitutional  successive  proceedings  taking  place  in  similar  

circumstances  to  Hudson’s case,  the  Court  in  Hudson reaffirmed  the  

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distinction  established  between  the  “civil”  and  “criminal”  nature  of  the  

particular successive punishment, in  United States v. Ward,  448 U.S. 242  

(1980). The U.S. Supreme Court thus held in Hudson’s case that the Double  

Jeopardy  clause  did  not  preclude  his  subsequent  criminal  prosecution,  

because the OCC administrative proceedings were civil, not criminal.   Inter  

alia, the civil nature of the punishment was ascertained with reference to the  

money penalties statutes’ express designation of their sanctions as “civil”.  

This  reference  indubitably  eases  the  resolution  of  the  Double  Jeopardy  

question in the present Appeal.   As has been detailed earlier, Article 20(2)  

does  not  within  it  imbibe  the  principle  of  autrefois  acquit.  The  Fifth  

Amendment safeguards, inasmuch as it postulates both autrefois acquit and  

autrefois convict,  could have been interpreted to prohibit civil punishment  

even in the wake of an acquittal in prosecution, but was not found by the  

U.S. Supreme Court to do so.  A fortiori Article 20(2), which contemplates  

“prosecuted  and  punished”  thus  evincing  the  conscious  exclusion  of  

autrefois  acquit,  palpably  postulates  that  the  prescribed  successive  

punishment  must  be  of  a  criminal  character.   It  irresistibly  follows  that  

departmental  or  disciplinary  proceedings,  even  if  punitive  in  amplitude,  

would not be outlawed by Article 20(2).  

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13 In R. P.  Kapur vs.  Union of  India AIR 1964 SC 787 the question  

before  the  Constitution  Bench  was  that  the  Petitioner  therein  had  been  

suspended owing to the pendency of criminal proceedings against him which  

was challenged on the anvil of Article 314 of the Constitution.   Thus, this  

decision is not of much relevance for the resolution of the legal nodus before  

us, save for the observations that “if criminal charge results in conviction,  

disciplinary proceedings are bound to follow against the public servant is  

convicted,  even  in  case  of  acquittal  proceedings  may  follow  where  the  

acquittal is other than honourable.”   However, on this aspect of the law we  

need go no further than the recent decision in Deputy General of Police vs.  

S.  Samuthiram  (2013)  1  SCC  598,  since  it  contains  a  comprehensive  

discourse on all the prominent precedents.   This Court has concluded, and  

we respectfully think correctly, that acquittal of an employee by a Criminal  

Court  would  not  automatically  and  conclusively  impact  Departmental  

proceedings. Firstly, this is because of the disparate degrees of proof in the  

two,  viz.  beyond  reasonable  doubt  in  criminal  prosecution  contrasted  by  

preponderant  proof in civil  or  departmental  enquiries.  Secondly,  criminal  

prosecution  is  not  within  the  control  of  the  concerned  department  and  

acquittal  could  be  the  consequence  of  shoddy  investigation  or  slovenly  

assimilation  of  evidence,  or  lackadaisical  if  not  collusive  conduct  of  the  

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Trial etc.   Thirdly, an acquittal in a criminal prosecution may preclude a  

contrary conclusion in a departmental  enquiry if  the former is a positive  

decision in contradistinction to a passive verdict which may be predicated on  

technical infirmities.  In other words, the Criminal Court must conclude that  

the accused is innocent and not merely conclude that he has not been proved  

to be guilty beyond reasonable doubt.   

14 Indeed,  it  appears  to  us  that  the  case  in  hand falls  in  the  passive  

category since the Respondent has been let-off incorrectly on technicalities,  

and that too, on a very implausible and debatable if not specious opinion of  

the JAG Branch.  A Summary Court Martial was held on 11th April, 2002 in  

which Lt. Col P. Bhutani was present as the ‘friend of the Accused; along  

with JC M. Sub KC Manocha as the Interpreter.  At the Arraignment the  

Accused/Respondent pleaded guilty of both charges. It has been certified by  

the  Court  that  the  Respondent  had  been  explained  the  meaning  of  the  

charges and that he understood them as also the effect and consequences of  

his having pleaded guilty.  In the Summary of Evidence four witnesses were  

questioned,  one  cross-examined  and  this  opportunity  was  declined  by  

Respondent  for  the  others.  After  advising  due  caution  the  Accused/  

Respondent gave a detailed statement.  It was the opinion of the Reviewing  

Officer that Army Rule 116(4) required the ‘Guilty’ plea to be altered to  

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‘Not Guilty’ predicated on the unsubstantiated and unsustainable conclusion  

that the Respondent did not understand the effect of the former.  Premised  

on this conclusion, his recommendation was for setting aside the proceeding  

and  sentence  of  ‘reduction  to  rank  of  Naik’  and  also  directing  that  the  

accused be relieved of all consequences of the Trial.  Curiously enough, the  

Reviewing Authority also opined: “Notwithstanding the ibid, setting aside  

due to incorrect framing of charge and lackadaisical recording of evidence at  

the Summary of Evidence, the evidence shows that the accused misused his  

position as a member of CMP and misappropriated various items. Therefore,  

in my opinion, his conduct renders his retention in service undesirable.  You  

may  accordingly  initiate  action  to  progress  his  case  for  administrative  

discharge under the provisions of Army Rule, 13”.  It is in this backdrop that  

we think it to be illogical to hold the opinion that the Respondent had earned  

an honourable acquittal.  Consequently, whether on reliance of the Double  

Jeopardy principle or on the setting aside of his punishment, Departmental  

or  Disciplinary  proceedings  ought  not  to  be  viewed  as  precluded.  

Ironically and paradoxically,  we may comment, the Respondent has been  

made vulnerable to a far more stringent action by setting aside the findings  

in  the  Court  Martial  in  that  from a  comparatively  lenient  punishment  of  

being lowered in rank he has been discharged from service.   

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15 Section 121 of the Army Act requires special scrutiny inasmuch as it  

specifies that:

121. Prohibition of  second trial. --  When any person  subject to this Act has been acquitted or convicted of an  offence by a court-martial or by a criminal court, or has  been dealt with under any of the sections 80, 83, 84 and  85, he shall not be liable to be tried again for the same  offence by a court- martial or dealt with under the said  sections.

16 The language immediately distinguishes it from Article 20(2) since it  

palpably postulates both  autrefois acquit  and  autrefois convict  to a court-

martial or a trial by criminal courts, but then restricts the insulation only to a  

second court-martial or a dealing under Sections 80, 83, 84 and 85 of the  

Army Act. A conjoint perusal of Sections 121, 125 and 126 will clarify that  

a  simultaneous  court-martial  and  trial  by  a  Criminal  Court  is  not  

contemplated.   Furthermore,  the  Army  Act  is  rightly  reticent  on  the  

jurisdiction and powers of criminal courts.  Although the question does not  

arise before us, we cannot refrain from ruminating on the  vires  of Section  

126(2)  inasmuch  as  it  postulates  primacy  to  the  Central  Government  

of a determination as to whether the Court Martial or criminal court shall  

have custody of the offender regardless of the decision of the criminal court.  

Although  Section  127  of  the  Army  Act  stands  repealed  by  the  Army  

(Amendment)  Act,  1992 it  did not  suffer  from the same vice in that  the  

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Central Government possessed the power to grant or desist from granting  

sanction for a second/successive trial by a Criminal Court.  The erstwhile  

provision read so:-

127. (1)  A person convicted or acquitted by a court martial  may,  with  the  previous  sanction  of  the  Central  Government, be tried again by a criminal court for  the same offence, or on the same facts.

(2) If a person sentenced by a court-martial under this  Act or punished under any of the sections 80, 83,  84  or  85  is  afterwards  tried  and convicted  by  a  criminal court for the same offence, or on the same  facts,  that  court  shall,  in  awarding  punishment,  have  regard  to  the  punishment  he  may  already  have undergone for the said offence”.

17 Although this question also does not arise before us, Section 300 of  

Criminal  Procedure,  1973  may  arguably  not  be  in  harmony  with  the  

Constitution  since  it  contemplates  both  autrefois  acquit  and autrefois   

convict  even though a conscious decision had been taken by the Drafters of  

our Constitution that protection only as regards the latter shall be available.  

Of course, the Cr.P.C. grants much wider protection to the individual and for  

this reason has understandably not been assailed on the touchstone of Article  

20(2)  of  the  Constitution.   We  must  again  advert  to  the  speech  of  Mr.  

Naziruddin Ahmad,  who had reminded the Constituent  Assembly of  this  

very  position,  namely,  of  the  wider  parameters  of  Double  Jeopardy  

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enshrined even in the then extant Cr.P.C., and his pitch for the Constitution  

to do likewise.   

18 This would be the opportune time to consider the Three-Judge Bench  

decision in Chief of Army Staff vs. Major Dharam Pal  Kukrety, 1985 (2)  

SCC 412, for the reason that in the facts obtaining in that case the finding of  

the Court Martial was not confirmed which brought into play Section 153 of  

the Army Act, 1950 which ordains that no finding or sentence of a general,  

district or summary general, court-martial shall be valid except so far as it  

may be confirmed.   This Court was of the view that there was “no express  

provision in the Army Act which empowers the holding of a fresh court-

martial when the finding of a court-martial on a revision is not confirmed”.  

It,  thereafter,  construed  Rule  14  of  the  Army  Rules  as  unrestrainedly  

enabling  the  Chief  of  Army  Staff  to:  (a)  dismiss  or  (b)  remove  or  (c)  

compulsory retire from service any officer.     Even though the aspect  of  

honourable acquittal was not pressed into service in Kukrety, this element  

would also have been relevant in holding it legally permissible to take action  

under the Army Rules.    Furthermore, Article 20(2) is not a restraint on even  

the initiation of a fresh Court Martial, as the case may be.  Kukrety was a  

commissioned officer unlike the case with which we are presently dealing.  

Rule  14  permits  the  afore-mentioned  actions  being  taken  with  the  

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concurrence of the Central Government whilst the pandect comprising Rules  

11, 12 and 13 deals with discharge etc. of every person enrolled under the  

Army Act.  We must immediately hark back to Section 20 of the Army Act  

which  empowers  the  dismissal  or  removal  from  service  of  any  person  

subject to this Act, other than a commissioned officer.

19 The  Show  Cause  Notice  impugned  before  the  High  Court  was  

predicated  on  Rule  13  by  obviously  circuitously  taking  recourse  to  the  

residuary clause 13(3)(III)(V) of the relevant Table,  We have consciously  

used the word ‘circuitously’ for the reason that the Appellants could have  

resorted to Section 20 of the Army Act.  We may add a word of caution here  

– the power to do a particular act must be located in the statute, and if the  

rules  framed under  the  statute  ordain  an  action  not  contemplated  by the  

statute, it would suffer from the vice of excessive delegation and would on  

this platform be held ultra vires.   Rules are framed for dealing in detail with  

myriad  situations  that  may  manifest  themselves,  for  the  guidance  of  the  

concerned  Authority.   Rules  must,  therefore,  be  interpreted  in  a  manner  

which would repose them in harmony with the parent statute.   Based on our  

experience, it seems to us that the Army Authorities are often consumed by  

the Army Rules without fully comprehending the scope of the Army Act  

itself.

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20 Another  Three-Judge  Bench  in  Union  of  India  vs.  Harjeet  Singh  

Sandhu, 2001 (5) SCC 593, considered Kukrety and then concluded that if  

the decision of the Court Martial is not confirmed, the disciplinary action,  

whether a dismissal  (or,  for that matter,  a discharge) may be resorted to.  

Rule 14(2) was construed by this Court to enable the Central Government or  

the Chief of Army Staff to arrive at a satisfaction that since it is inexpedient  

or impracticable to have the officer tried by a court martial, to either dismiss,  

remove or compulsory retire the officer or the concerned officer.

21 The impugned Judgment holds that  “though in the summary Court  

Martial  proceedings  initiated  against  the  petitioner  on  the  basis  of  same  

charges have been set aside and the petitioner has succeeded, the subsequent  

show cause notice for discharge relies on the same very charges to discharge  

the petitioner, which in our view cannot be sustained.   The result of the  

aforesaid is that the impugned order of discharge cannot be sustained and is  

hereby quashed with all consequential benefits to the petitioner.   This will  

however, not preclude the respondent from taking any departmental action  

against the petitioner in respect of the allegations in accordance with law”.  

These conclusions we are unable to sustain.   In the first place there is no  

complete ban on a second Court Martial, provided it is within the prescribed  

period  of  limitation,  etc.    Secondly,  as  has  been  held  in  Kukrety and  

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indirectly  affirmed in Sandhu, where the decision of the court martial fails  

to find confirmation, the effect is that it cannot  be considered that a court  

martial has,  in fact,  been concluded and further,  in our opinion,  so as to  

debar a fresh one.  The Double Jeopardy principle contained in Section 121  

has only premised the prohibition of a second trial in case the first one leads  

to punishment/conviction.  

22 The Discharge Certificate issued against the Respondent under Rule  

13 interestingly describes his character at the time of Discharge as being  

“exemplary”. This recording is eminently irreconcilable with the findings in  

the  order  of  setting  aside,  illegal  as  it  was,  by  Deputy  Judge-Advocate  

General, which concluded that the Respondent was liable to be discharged  

for  misconduct,  being  unfit  for  further  service  in  the  Army,  having  

misappropriated various items. This dissonance further discredits and makes  

unsustainable  the  discharge  proceedings  under  Rule  13,  which  we  have  

already described as circuitously having been exercised on the basis of a  

residual  entry,  and in  supersession  of  the  Army Act’s  dismissal  powers,  

which  are  appositely  exercisable  as  a  sequel  to  failed  Court  Martial  

proceedings. The Discharge Certificate, issued under Section 23 read with  

Rule  12,  being the  conclusive  step  of  the  discharge  proceedings,  cannot  

therefore stand.

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23 The ostensible order of setting aside under Section 162 that has been  

placed on record is Deputy Judge-Advocate General’s order, but this is not  

the authority conceived of by Section 162. There is no order by a competent  

officer  or  authority  under  Section  162  indicating  the  setting  aside  of  

proceedings  on  merits,  in  the  exercise  of  the  reviewing  function  under  

Section 162. The Appellants have endeavoured availing of Rule 133 of the  

Army Act in conjunction with Section 162 thereof to legitimise the order.  

Rule 133 states:  

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  authorized  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.  

Rule  133  does  not  empower  Deputy  Judge-Advocate  General  as  the  

reviewing authority, but merely confers on it a forwarding function, the Rule  

stating  that  the  proceedings  of  the  SCM on  promulgation  require  to  be  

forwarded  to  the  competent  officer  under  Section  162,  but  only  

parenthetically  provides  that  this  will  occur  “through”  Deputy  Judge-

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Advocate General. This cannot be interpreted substitutively, as enshrining in  

Deputy  Judge-Advocate  General  the  statutory  remit  of  the  reviewing  

authority under Section 162. This apart, it  has already been opined by us  

heretofore  that  the  setting  aside  took  place  “technically”  and  therefore  

impermissibly in terms of Section 162.  

24 We also  find  it  apposite  to  add that  though there  was  incongruity  

between  the  Deputy  Judge-Advocate  General  (acting  as  the  Reviewing  

Authority) and the Summary Court Martial, resulting in a nugatory Court  

Martial process, a perusal of the Act, as well as the facts on record, will  

reveal that this need not have been.   A Summary Court Martial does not  

require  for  its  efficacy,  finality  and  validity,  the  confirmation  of  the  

Confirming  Authority,  as  has  been  mandated  for  the  other  three  classes  

(supra)  of  Court  Martial,  enumerated  in  Section  153.    Section  161(1)  

expressly states that the finding and sentence of a Summary Court Martial  

shall  not  require  to  be  confirmed,  but  may  be  carried  out  forthwith.  

However, Section 162 requires transmission of proceedings without delay to  

be forwarded to the competent officer, commanding the division or brigade  

in which the trial was held, or to the prescribed officer; and such officer, or  

the Chief of Army Staff, or any other empowered in this behalf by the Chief  

of Army Staff,  may for reasons based on the merits of  the case,  but  not  

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merely technical grounds, set aside the proceedings or reduce the sentence to  

any other sentence which the court (martial) might have passed.   This being  

a transmission of proceedings under Section 162, the Reviewing Authority’s  

basis for insistence that a plea of “not guilty” ought to have been recorded  

after the summary of evidence, based upon the statement of evidence given  

by the Respondent therein, and subsequent setting aside of the consequences  

of  the Court  Martial  presided by the Officer  Commanding,  cannot stand.  

On  a  demurrer,  at  the  Summary  of  Evidence,  the  Respondent  had  only  

contested the Charge of his having extorted the coal hammer, stating in reply  

thereto that he had requested for one hammer which was to be returned at  

the end of winter, and that upon opening the bag, found two therein. There  

are no averments in his defence to be found in the Summary of Evidence, as  

to the charge of extorting high speed diesel.  Furthermore, the Respondent  

did  not  make  any  Statement  of  Defence  at  the  Summary  Court  Martial  

hearing itself, and neither produced any defence witnesses on his behalf nor  

cross examined either of the two prosecution witnesses therein. Faced with  

these inescapable facts, the Reviewing Authority could not have set aside the  

proceedings  on  such  a  technical  ground  -  which  Section  162  expressly  

prohibits - that a plea of “not guilty” should have been recorded under Army  

Rule  116(4)  in  respect  of  both charges  of  extortion,  as  the  effect  of  the  

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Respondent’s plea of “guilty” was not fully understood by him. The Court  

Martial  finding and sentence  ought  to  have  been left  undisturbed by the  

Reviewing Authority, self-sufficiently valid as it was under Section 161 (1).

25 The  Army  Act  and  the  Rules  framed  thereunder  specifically  

contemplate  that any person other than an officer subject to the Act may be  

dismissed or removed from service under Section 20 of the Act; and any  

such person may be dismissed, removed or reduced in rank under Section 20  

read  with  Rule  17.    The  High  Court  has  not  failed  to  appreciate  this  

dichotomy  inasmuch  as  it  has  not  precluded  the  taking  of  departmental  

action.   The difference is that the departmental action is exactly what was  

taken  and  additionally  what  has  now  been  permitted  by  the  Impugned  

Judgment to be initiated.    

26 It is with the above clarifications that we dispose of the Appeal by  

restoring the order of the Summary Court Martial, yet not prohibiting the  

Appellants to proceed in accordance with law.

                       ............................................J.              [VIKRAMAJIT SEN]  

                         ............................................J.

            [SHIVA KIRTI SINGH] New Delhi; January 05,   2015.

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