1999 JTR(SC) 565
1999 3 AICLR 190 ; 1999 AIR(SC) 1940 ; 1999 AIR(SCW) 1619 ; 1999 2 CLR 20 ; 1999 3 Crimes(SC) 17 ; 1999 CrLJ 2877 ; 1999 1 JCC 252 ; 1999 3 JT 322 ; 1999 3 JT 324 ; 1999 2 LLJ 1213 ; 1999 3 LLN 395 ; 1999 2 PLJR(SC) 42 ; 1999 3 Scale 79 ; 1999 4 SCC 575 ; 1999 SCC(Cri) 607 ; 1999 SCC(L&S) 877 ; 1999 2 SCT 727 ; 1999 4 SLR 364 ; 1999 3 UPLBEC 2020 ; 1999 KHC 1189 ; 1999 4 Supreme 397
1999(4) Supreme 397
Supreme Court of India
(From Delhi High Court)
G.B. Pattanaik, M. Srinivasan & N. Santosh Hegde, JJ.
Union of India & Ors. -Appellants
versus
Harish Chandra Goswami -Respondent
Criminal Appeal No. 102 of 1994
Decided on 28-4-1999
Counsel for the Parties :
For the Appellant : Ashok Bhan, Praveen Swarup and A.K. Sharma, Advocates.
For the Respondent : Ms. Shyamla Pappu, Sr. Advocate, M.R. Krishnamurthi, K.T. Anantharaman, Advocates.
Important Point
Where there was nothing on record to show that personnel of Court Martial were appointed by or nominated by the Commanding Officer nor order for assembly of General Court Martial contained signature or initial of Commanding Officer Constitution of Court Martial being not in conformity with Rule 37 of Army Rules, Court Martial had no jurisdiction to proceed with trial.
Act Referred :ARMY RULES : R.37
(A) The Army Rules, specifically Rule 37, govern the constitution and procedure of courts-martial in the armed forces, requiring the convening officer to personally satisfy that charges are maintainable and that the evidence justifies a trial, and to formally appoint or detail the court members in writing. In this appeal, the absence of any written order signed by the Lieutenant General commanding, or any record demonstrating that the General Court Martial was constituted by him as required by Rule 37, formed the basis of the High Courts conclusion that the court was improperly constituted and lacked jurisdiction. The purported appointment through a form signed merely by a Colonel, without the commanding officers signature or initials, was held insufficient to validate the trial.
(B) The core legal principles are that the validity of a court-martial depends on strict compliance with procedural rules, the appointing authority must apply his mind and maintain a record of such satisfaction, and a court-martial is void if the statutory requirements regarding constitution are not met. The absence of a contemporaneous written order defeats jurisdiction irrespective of subsequent contentions.
Facts of the case:
The respondent was commissioned in 1963, promoted to Lieutenant Colonel and later Colonel, and served as a Commanding Officer. He faced charges of irregularities in local purchases, was tried by a General Court Martial, convicted on four charges, sentenced to be cashiered and two years rigorous imprisonment, with the sentence confirmed. The High Court quashed the proceedings on the ground that the court-martial was not properly constituted under Rule 37, as no written order by the Lieutenant General appointing the court members was on record.
Findings of Court:
The High Court correctly held that the appointment of the court members was not effected in accordance with Rule 37 due to the lack of a written order signed by the commanding officer. The appeal court acknowledged that the original records were not produced and that no file entry reflected the Lieutenant Generals satisfaction or any written appointment, rendering the trial void.
Issues:
Whether the General Court Martial was validly constituted in the absence of a written order appointing its members by the Lieutenant General; whether sub-Rule 3(1) of Rule 37 permits appointment without a written record; and whether the High Court erred in quashing the proceedings.
Ratio Decidendi:
Compliance with Rule 37 of the Army Rules is mandatory and jurisdictional; the absence of any written order or record showing that the court members were appointed by the commanding officer nullifies the court-martial, and no mere oral assertion or subsequent affidavit can cure the defect.
Result:
The appeal is dismissed with no order as to costs.
(A) The Army Rules, specifically Rule 37, govern the constitution and procedure of courts-martial in the armed forces, requiring the convening officer to personally satisfy that charges are maintainable and that the evidence justifies a trial, and to formally appoint or detail the court members in writing. In this appeal, the absence of any written order signed by the Lieutenant General commanding, or any record demonstrating that the General Court Martial was constituted by him as required by Rule 37, formed the basis of the High Courts conclusion that the court was improperly constituted and lacked jurisdiction. The purported appointment through a form signed merely by a Colonel, without the commanding officers signature or initials, was held insufficient to validate the trial.
(B) The core legal principles are that the validity of a court-martial depends on strict compliance with procedural rules, the appointing authority must apply his mind and maintain a record of such satisfaction, and a court-martial is void if the statutory requirements regarding constitution are not met. The absence of a contemporaneous written order defeats jurisdiction irrespective of subsequent contentions.
Facts of the case:
The respondent was commissioned in 1963, promoted to Lieutenant Colonel and later Colonel, and served as a Commanding Officer. He faced charges of irregularities in local purchases, was tried by a General Court Martial, convicted on four charges, sentenced to be cashiered and two years rigorous imprisonment, with the sentence confirmed. The High Court quashed the proceedings on the ground that the court-martial was not properly constituted under Rule 37, as no written order by the Lieutenant General appointing the court members was on record.
Findings of Court:
The High Court correctly held that the appointment of the court members was not effected in accordance with Rule 37 due to the lack of a written order signed by the commanding officer. The appeal court acknowledged that the original records were not produced and that no file entry reflected the Lieutenant Generals satisfaction or any written appointment, rendering the trial void.
Issues:
Whether the General Court Martial was validly constituted in the absence of a written order appointing its members by the Lieutenant General; whether sub-Rule 3(1) of Rule 37 permits appointment without a written record; and whether the High Court erred in quashing the proceedings.
Ratio Decidendi:
Compliance with Rule 37 of the Army Rules is mandatory and jurisdictional; the absence of any written order or record showing that the court members were appointed by the commanding officer nullifies the court-martial, and no mere oral assertion or subsequent affidavit can cure the defect.
Result:
The appeal is dismissed with no order as to costs.
Judgment
The respondent herein was commissioned in the Indian Army in 1963 and in due course, was promoted on selection basis as Lieutenant Colonel and worked as Colonel till 7th October, 1989. He was a Commanding Officer in 316 Station Workshop (Maintenance) from 18th December, 1982 to 23rd February, 1986. Certain complaints were sent to the Chief of Army Staff alleging irregularities on the part of the respondent in the local purchase of material for repair. A charge sheet was framed against the respondent setting out as many as eight charges. The details thereof are wholly unnecessary for the purpose of this appeal.
2. The General Court Martial was convened and after trial, the respondent was found guilty on 2nd, 3rd, 5th and 7th charges and not guilty on 1st, 4th, 6th and 8th charges. He was awarded the sentence “to be cashiered” and to suffer RI for two years. The said sentence was confirmed by the concerned authority on 26.9.89.
3. The respondent filed Writ Petition before the Delhi High Court challenging the entire Court Martial proceedings as well as the order of punishment. By its judgment dated 28/5/92, the Delhi High Court upheld one of the contentions of the respondent while rejecting the other contentions. The only contention which was upheld was that the constitution of the Court Martial was not done by the Commanding Officer and thus Rule 37(3) of the Army Rules was violated. Consequently, it was held that the Court Martial has no jurisdiction to proceed with the trial and the entire proceedings was, therefore, vitiated. In the result, the High Court quashed the proceedings as well as the order of punishment.
4. Aggrieved by the said order of the High Court, the Union of India and the concerned officials of the Army have preferred this Appeal by Special Leave. Learned Counsel for the appellants has contended that the view taken by the High Court, that there was no written order by the Commanding Officer nominating the personnel of the Court Martial and that there was no valid constitution of the Court Martial as per the rules was erroneous. According to him, the order for the Assembly of a General Court Martial, a copy of which had been furnished to the respondent before the trial, was the relevant order convening the Court Martial. The said order was signed by the Colonel Offg. Brig. A for General Officer Commanding 1 Corps. The same was the order appointing personnel of the Court Martial and it was made only by the Commanding Officer namely Lt. Gen. R.N. Mahajan. According to the Learned Counsel, the said order was in the appropriate form prescribed under the Rules namely form IAFD-916 and it could be signed by the convening Officer personally or for him by the Staff Officer authorised by the custom of service to sign his orders. Learned Counsel contended that in this case, the order was signed by the Colonel who was authorised by the Lt. General to sign his orders. Thus, according to the learned counsel, the requirement of Rule 37 of the Army Rules has been fully satisfied in the present case. It is also his contention that the respondent did not raise this plea in the Writ Petition and for the first time, the argument was advanced by the counsel in the High Court in the course of arguments and when the appellants sought to file an affidavit to prove the existence of the order by the Commanding Officer, the High Court did not permit them to do so on an erroneous understanding of the provisions in the rules.
5. However, learned counsel for the appellants admitted that the original records were not produced before the High Court, even though the Court had called for the same. It is also admitted by learned counsel that there is no order in the file containing the signature or initial of the Lt. General, who was the Commanding Officer at the relevant time or any other record to show that the members of the Court Martial were appointed by the Lt. General. On the other hand, learned counsel for the respondent has contended that the said contention was raised in the Writ Petition itself in ground (L) and the appellants failed to meet the same in their reply.
6. In our opinion it is not necessary for us in this case to consider in detail, the arguments advanced on both sides. We must also place on record that, besides supporting the conclusion arrived at by the High Court on the question of the validity of the constitution of the Court Martial, learned counsel for the respondent has also challenged the findings which have been rendered by the High Court against the respondent on other questions. In the view, we are taking in this matter it is not necessary for us to consider all the submissions made by the counsel on both sides.
7. Rule 37, Army Rules in so far as it is relevant reads as follows:-
(1) “An officer before convening a general or district court-martial shall first satisfy himself that the charges to be tried by the court are for offences within the meaning of the Act, and that the evidence justifies a trial on those charges, and if not so satisfied, shall order the release of the accused, or refer the case to superior authority.
(2) He shall also satisfy himself that the case is a proper one to be tried by the kind of court-martial which he proposes to convene.
(3) The officer convening a court-martial shall appoint or detail the officers to form the court and, may also appoint or detail such waiting officers as he thinks expedient. He may also, where he considers the services of an interpreter to be necessary, appoint or detail an interpreter to the court."
Admittedly there is no record whatever in the file to show that the personnel of the Court Martial were appointed by or nominated by the Lt. General. The order for the assembly of a General Court Martial did not contain either the signature or the initial of the Lt. General. It was signed only by the Colonel and none else. In the circumstances the said order cannot be considered to be an order evidencing the appointment of personnel of the Court Martial by the Lt. General. There is no dispute before us that under Rule 37, the Commanding Officer has to apply his mind to satisfy himself that the charge to be tried by the Court are for offences within the meaning of the Act and that evidence justifies the trial of those charges. It is also admitted that the Commanding Officer has also to satisfy himself that the case is a proper one to be tried by the kind of Court Martial which he proposes to convene. However, learned counsel for the appellants contends that sub-Rule 3 of 37 is only procedural in nature and there is no need for the application of mind by the Commanding Officer in the matter of appointment of the personnel of Court Martial. That contention loses its relevance in the present case in view of the categorical stand taken by the appellant, that there was an order by the Commanding Officer appointing or detailing the officers to form the Court Martial. According to the learned counsel as stated earlier, the form for Assembly of Court Martial is the only relevant form and when it is signed by an officer on behalf of the Lt. General, that is sufficient proof of the appointment of the personnel of the Court Martial by the Lt. General. We are unable to accept this contention in view of the fact that the said form does not contain either the signature or the initial of the Lt. General. Even assuming that the Lt. General passed an oral order, there is no record of any kind whatever to prove it. The form for Assembly of Court Martial was not contemporaneous to such oral order, if any. In the absence of any record whatever to show that the appointment of the personnel of the Court Martial was by the Lt. General, we are not persuaded to accept the contention of the appellants that the requirements of Rule 37 were fully satisfied. It is unnecessary for us to consider whether sub-Rule 3 of Rule 37 requires an order in writing or not in view of the specific stand taken by the learned counsel for the appellants in this case that there was an order in writing and the said order was nothing else but the form for Assembly of the Court Martial.
8. In the facts and circumstances of the case, we have no hesitation to hold that the view taken by the High Court is unassailable. We agree with the same. There is no merit whatever in the appeal and it is hereby dismissed. There will be, however, no order as to costs.
(C.R.) Appeal dismissed.
**********
Parallel Citations of other Journals :
Union of India & Ors. v. Harish Chandra Goswami, 1999(4) Supreme 397 : (1999) 4 SCC 575 : 1999 SCC (L & S) 877 : 1999 SCC (Cri.) 607 : 1999(1) SCSLJ 544 : 1999(3) Crimes 17 : AIR 1999 SC 1940 : 1999(3) Cr. LR 190 : 1999(3) JT 324 : 1999 Crl. LJ 2877 : 1999(4) SLR 364 : 1999(3) LLN 395 : 1999(2) LLJ 1213
00034