PRADEEP SINGH versus UNION OF INDIA AND ORS.

Challenge in this appeal is to the judgment rendered by a Division Bench of the Jammu and Kashmir High Court dismissing the Letters Patent Appeal filed by the appellant.

pp. 360–361, margin G

Background facts in a nutshell are as follows: Absence for a period of 2!1, months was treated Summary Court Martial was convened in terms of Section Act, 1950 (hereinafter referred to as the 'Act'). He was charged 39A of the Act by order dated 7.8.1989 for having remained without leave. He was tried and punished by a Summary order dated 16.8.1989. The order of dismissal passed by the challenged in the writ petition primarily on the following (0 that officiating Commanding Officer was convene the Summary Court Martial and therefore, and the sentence awarded by the Summary Court being without jurisdiction; (ii) that the petitioner was neither provided any allowed to cross-examine the witnesses, and of hearing has been denied to him; (iii) that the petitioner having been punished by removal could not be tried and punished on the same

p. 361, margin A

The respondents took the stand that all the submissions foundation. The High Court noticed that the appellant was in Leh and was deputed for Commando course in December, joined in January, 1989. He completed the course on 7.2.1989, reporting at the Transit Camp after completion of the course, on the assumption that he had already applied for annual have been sanctioned by his Commanding Officer. He finally Transit Camp on 21.4.1989 and reached his unit on 19.5.1989. was that immediately after he reached the unit, his rank of Naik Later he was directed to appear before the Summary Court Martial which concluded the hearing and awarded the punishment of High Court found that the stand that Officiating Commanding competent to convene Summary Court Martial was without of the definition of"Commandant Officer" as given in Section So ·far as the denial of legal assistance is concerned, it appellant admitted that Major D.P. Naikavde was named advise him during the course of trial. His plea that he did officer during the court martial was found to be without noted that in case he was not assisting him, he could have made a grievance before the Summary Court Martial. That has not been done. There substance in the plea. The appellant was informed that on completion commandant course he did not immediately join the unit and instead after 2Y. months. He assumed leave may have been granted without foundation. As he was holding acting rank of Naik, he forfeited the right hold the same because of his absence from duty without leave as Headquarter letter No.94930/ AG/PSC (C) dated 21.11.1988. Appellant holding the substantive rank of Naik, the same was withdrawn, because absence without leave. It was in essence withdrawal of a concession The plea relating to dual jeopardy was, therefore, without any substance. Accordingly, writ petition was dismissed. Before the Division Bench taken before the learned Single Judge was reiterated. The Division found that in view of the factual scenario as noted by the learned Judge, the writ petition had been rightly dismissed. It, however, that in case some persons similarly situated were treated with leniency, open to the appellant to make a representation which shall be duly considered by the respondents. With the aforesaid observation the Letters Patent was dismissed.

pp. 361–362, margin D

The learned counsel for the appellant highlighted the same which were urged before the learned Single Judge and the Division According to him, the withdrawal of the rank was a punishment and Court was, therefore, not justified in its view. Learned counsel respondent on the other hand supported the orders. With reference to 80 of the Act, learned counsel for the appellant submitted that removal stripes amounted to punishment and, therefore, further action permissible. In this context, the rules relating to acting ranks need to The same is contained in Army Instructions Nos. 84 and 88. Rule to promotion for Junior Commissioned Officers and other Ranks. According to the instructions, there are two kinds of promotion, i.e. one acting substantive. So far as the acting rank is concerned, they are dealt Part I. The same so far relevant reads as under: "PART I.- ACTING RANKS 2. The following are t.he general provisions governing the promotions:- (a) Acting promotion will be made to fill vacancies in authorized establishment, whether temporary or permanent. Acting remain unpaid until an unbroken period served in that rank when acting rank acting rank; pay will be admissible with the date of the grant of such acting (b) The rank of Nb Ris/Nb Sub is a substantive promotion to that rank will, therefore, may, however, be authorized to perform Nb Sub where necessary. (c) Every Commanding Officer of a Unit where acting promotions are centrally basis, is empowered to make acting the individuals concerned are qualifications prescrib~d for the higher competent to sanction acting promotion order reversion from such acting rank. promotions or reversions will be published will be the authority for issue of appropriate rank. (d) Acting rank will be granted from the provided that the individual has _assumed rank from that day and reversion will the day the individual ceases to appointment for which acting rank ceases to exist except as provided (e) On casual, annual or accumulated annual (i) On casual leave An individual will retain paid acting rank during the period of casual leave and be permissible in his place. Acting relinquished from the date of overstayal when the period of casual leave and against annual leave entitlement for leave is taken and as Special Leave Rules for the Service, Vol. I- Army Cases leave owing to sickness will be dealt (ii) On annual or accumulated annual leave An individual will retain paid acting rank or paid lance appointment during the period of annual or accumulated annual leave and no acting promotion will be permissible in his place. Acting rank will, however, be relinquished from the date of expiry of such leave unless the overstayal is due to natural calamities and the period of overstayal is regularized as Special Leave vide Rule 6(d) (ii) of Leave Rules for the Services, Vol. I.-Army. Part II deals with Substantive Ranks.

pp. 362–364, margin D

The withdrawal of ranks of Naik was on account of his unauthorized absence and was not, therefore, punishment in that sense. Section 80 which strong reliance has been placed reads as under: "80. Sitting in closed court-( I) A court-martial shall, where it is directed by these rules, and may in any other case on any deliberation amocgst the members, sit in closed court. (2) No person shall be present in closed court except the members the court, the judge-advocate (if any) and any officers under instruction. (3) For the purpose of giving effect to the foregoing provisions of the rule, the court-martial may either retire or cause the place where they place where they sit to be cleared of all other persons not entitled be present. (4) Except as hereinbefore mentioned all proceedings, including the view of any place, shall be in open court and in the presence of the accused subject to sub-rule (5). ( 5) The court shall have the power to exclude from the ·court any witness who has yet to give evidence or any other person, other than the accused, who interferes with its proceedings."

p. 364, margin C

A bare reading of the provisions along with the Army Instructions make it clear that Section 80 has no application to the facts of the present case.

p. 364, margin G

So far as legality of the Court Martial is concerned, the learned Single Judge has found that the appellant was not holding substantive rank of Naik. The rank which was temporarily given was liable to be withdrawn in case of absence from duty and somebody else had to hold that post. This situation arises when a person who was acting as Naik is not available.

pp. 364–365, margin G

The next ground of challenge relates to legality of proceedings before the Court Martial.

p. 365, margin A

Though Court Martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the court-martial is not subject to the superintendence of the High Court under Article 227 of the Constitution. If a court-martial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed the High Court or for that matter any court must stay its hands. Proceedings of a court-martial are not to be compared with the proceedings in a criminal court under the Code of Criminal Procedure, 1'973 where adjournments have become a matter of routine though that is also against the provisions of law. It has been rightly said that court martial remains to be significant degree, a specialized part of overall mechanism by which the military discipline is preserved. It is for the special need for the armed forces that a person subject to Army Act is tried by court-martial for an act which is an offence under the Act. Court-martial discharges judicial function, and to a great extent, is a court where provisions of the Evidence Act are applicable. A court-martial has also the same responsibility as any court to protect the rights of the accused charged before it and to fo How the procedural safeguards. If one looks at the provisions of law relating to courtmartial in the Army Act, the Army Rules, Defence Service Regulations and other Administrative Instructions of the Army, it is manifestly clear that the procedure prescribed is perhaps equally fair if not more than a criminal trial provides to the accused. When there is sufficient evidence to sustain conviction, it is unnecessary to examine if pre-trial investigation was adequate or not. Requirement of proper and adequate investigation is non-jurisdictional and any violation thereof does not invalidate the court-martial unless it is shown that accused has been prejudiced or a mandatory provision has been violated. One may usefully refer to Rule 149 quoted above. The High Court should not allow the challenge to the validity of conviction and sentence of the accused when evidence is sufficient, court-martial has jurisdiction over the subject matter and has followed the prescribed procedure and it is within its powers to award punishment.

p. 365, margin B

Above position was highlighted in Union of India and Ors. v. JC, A 14827 and Major A. Hussain, AIR (1998) SC 577. The inevitable result is that the appeal is without merit, deserves dismissal which we direct. However, liberty as given to the appellant by the Division Bench, having not been assailed by the respondents, remains unaltered. RP. Appeal dismissed. ·-i-

pp. 365–366, margin H