Supreme Court of India
EX. NAIK SARDAR SINGHversusUNION OF INDIA AND OTHERS
- Citation
- 1991 INSC 128
- Decided
- 3 May 1991
- Disposal
- Disposed off
- Bench
- S RATNAVEL PANDIAN
Holding
The Supreme Court held that while the trial was not vitiated, the imposed punishment was excessive and contrary to Section 72 of the Army Act, and therefore remanded the case for award of a lesser punishment.
Summary
Sardar Singh, a Jawan with ten years of service, was convicted by a summary court‑martial for carrying twelve bottles of liquor, seven of which exceeded his permitted allowance, while on leave. The court‑martial sentenced him to three months' rigorous imprisonment and dismissal from service. Singh appealed, alleging procedural irregularities in the trial and that the punishment was grossly disproportionate to the offence. The Supreme Court held that the trial was not vitiated as evidence was properly recorded, but the sentence violated the spirit of Section 72 of the Army Act because it was excessive. Applying the doctrine of proportionality, the Court set aside the punishment and remanded the matter to the court‑martial to award a lesser punishment under Section 71.
Issues considered
- The trial before the summary court‑martial was vitiated by procedural irregularities.
- The punishment of three months' rigorous imprisonment and dismissal was disproportionate and violative of Section 72 of the Army Act, 1950.
- Whether a lesser punishment under Section 71 may be awarded in lieu of the prescribed punishment.
- The applicability of the doctrine of proportionality and judicial review to military sentencing.
Legislation cited
- Army Act, 1950s. 63, s. 71, s. 72
Subjects
Army Actsummary court‑martialproportionalitypunishmentdismissal from servicerigorous imprisonmentSection 63Section 71Section 72judicial reviewmilitary law
Judgment
A EX. NAIK SARDAR SINGH
v.
UNION OF INDIA AND OTHERS
I
MAY 3, 1991
B
[S. RATNAVEL PANDIAJ'! AND K. JAYACHANDRA
REDDY, JJ.]
Army Act, 1950: Sections 63, 71 and 72-Summary Court-
Martial-Punishment-Award of-To be commensurate with nature and
degree of offence-Army Jawan carrying extra liquor bottles without
C permit while proceeding on leave-Award of punishment of 3 months' • j
R. l. and dismissal from service-Whether arbitrary and excessive.
The appellant, who had put in 10 years of service as Jawan in the
Army, was sentenced to 3 months' R.I. and dismissed from service by
D the Summary Court-Martial, on the charge that his action in carrying
12 bottles of liquor while proceeding on leave to his home town was
contrary to the orders on the subject. The appeal preferred by the
appellant, pointing out the irregularities committed in the summary
trial, and pleading that he had unblemished record of service, was also . -'<
rejected by the higher authority. The Writ Petition filed by the appel-
lant was also summarily rejected by the High Court.
E
In the appeal before this Court, on behalf of the appellant it was
contended that the summary trial was vitiated on account of several
irregularities committed in conducting the trial, and that the sentence
awarded to him was wholly disproportionate to the offence committed
by him.
F
Disposing of the appeal, and remanding the case to the Summary
Court Martial on the question of sentence, this Court
HELD I. The trial is not vitiated and no prejudice has been
caused to the appellant, inasmuch as from the records it is found that
G the evidence has been duly recorded and, admittedly, the appellant was
carrying extra seven bottles of liquor without the necessary permit.
However, there is an element of arbitrariness in awarding severe
punishments and, therefore, an interference is called for and the matter
has to be remanded on the question of awarding any of the lesser
punishments provided in the Army Act. [679E. 683G-H]
H
676
SARDAR SINGH v. UNION OF INDIA 677
2.1 Section 72 of the Army Act, 1950 provides that the court-
A
martial may, on convicting a person subject to the Act, of any offences
.... specified in Sections 34 to 68 inclusive, award either the particular
punishment with which the offence is stated in the said sections to be
punishable, or, in lieu thereof, any one of the punishments lower in the
· scale set out in Section 71, regard being had to the nature and degree of
offence. [680C-D) B
2.2 In the instant case, in the charge sheet it is merely stated that
the action of the appellant in carrying 12 bottles of liquor when he was
proceeding to home town was against the orders on the subject. But in
the counter affidavit it is stated that such an act of the appellant came
within the meaning of Section 63 of the Act. This Section may cover
various types of misconducts committed by way of an act or omission. It c
also provides for awarding any other lesser punishment mentioned in the
Act. Therefore, much depends on the nature of the act or omission of
which the person is found guilty. [680B, E)
2.3 Admittedly, the appellant was granted leave_ w_hen he was D
~· proceeding to bis home town. Enroute be had to pass through a place
where prohibition was in force. He had a valid permit to carry 5 bottles
of liquor and the extra 7 bottles were purchased from the Army Can-
teen itself. Unless be bad some permits or chits given by some higher
authorities, he could not have purchased these extra bottles from the
Canteen. He was taking this liqour to bis home town to celebrate his E
brother-in-law's marriage, but the local Civil Police checked his bag-
gage and conf"iscated the bottles as he had no valid permit to carry the
extra bottles. [679G-H, 680A)
2.4 Assuming that the offence committed by the appellant is
covered by the residuary Section 63, but in awarding the punishment, f
court-martial has to keep in view the spirit behind Section 72 and it has
to give due regard to the nature and degree of the offence. Section 63
provides for awarding of any of the lesser punishments enumerated in
Section 71. In view of tllese provisions· oflaw and having regard to the
nature and degree of the offence, the punishments awarded to the
appellant, namely, three months' R.I. and dismissal from service are G
severe and are also violative of Section 72. Ends of justice will be suffi-
ciently met if a lesser punishment as provided under Section ·71(f) is
awarded to the appellant. [682E-F, 684F]
2.5 Accordingly, the punishments are set aside and the matter
remanded to the court-martial which shall award any of the lesser H
678 SUPREME COURT REPORTS I1991] 2 S.C.R.
A punishments having due regard to the nature and circumstances of the
case. Any detention suffered by the appellant after the orders of the
court-martial will not be treated as a disqualification for being rein-
stated into service. [648B]
Ranjit Thakur v. Union of India and Others, [1987] 4 SCC 611
B and Bhagat Ram v. State of Himachal Pradesh, [1983] 2 SCC 442,
relied on.
Council of Civil Service Unions v. Minister for the Civil Service,
I1984] 3 All ER 935, 950, referred to. .~
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
c No. 67 of 1991.
From the Judgment and Order dated 27 .11.1987 of the Delhi
High Court in Crl. W. No. 527 of 1987.
D N.N. Gupta and Rajiv Dutta for the Appellant.
....
J.D. Jain, Maninder Singh and Ms. Sushma Suri for the
Respondents.
The Judgment of the Court was delivered by
E
K. JAYACHANDRA REDDY, J. This appeal, pursuant to the
special leave granted, is directed against the order of the High Court of
Delhi dismissing the writ petition filed by the appellant summarily.
The appellant was serving as a Jawan in the Indian Army. On
F 17th September, 1985, he applied for leave and it was granted. He was
going to his home town, a village in Rajasthan. He purchased 11
bottles of sealed rum and one bottle of brandy from his Unit Canteen
as he required the same to celebrate the marriage of one of his close
relations at his home town. Admittedly, the appellant was entitled to
carry 4 bottles of rum and one bottle of brandy as per the Unit
G Regulations/leave certificate when he was proceeding on leave.
According to the appellant, the remaining 7 bottles of rum he was able
to purchase from the Unit Canteen over and above his ·entitlement on
the orders of its Company Commander and Commanding Officer on
compassionate grounds and that there was a written 9rder to that
effect which was retained by the Salesman of the Unit Canteen at the
H time of delivery of the extra 7 bottles of rum. Enroute to his home
SARDAR SINGH v. UNION OF INDIA [REDDY, J.l 679
town he had to pass through Surendra Nagar which was under prohibi-
A
tion. The local Civil Police at Surendra Nagar intercepted him and
confiscated the bottles of liquor and handed over the appellant along-
with the liquor bottles to the City Police Station, Surendra Nagar. The
City Police in turn handed over him to his Unit authorities for action.
The 6th respondent, the Officer Commanding, 98 Field Regiment,
ordered a summary court-martial during which the witnesses including B
the Civil Police Officer of Surendra Nagar were examined. Ultimately
the summary court-martial sentenced the appellant to three months'
R.I. and dismissed him from service with effect from •9th October,
1985 by which time the appellant had already put in 10 years of service.
His plea throughout has been that he had purchased the liquor for the
marriage of his brother-in-law on the basis of the permit issued to him
and the chits issued by his superiors enabling him to draw the extra 7 c
bottles of rum and that he had no other bad intention in carrying the
liquor bottles. He preferred an appeal to the Army Commander men-
tioning several irregularities in the summary trial. He also pleaded that
he was having unblemished record of service in the Army, but his
appeal was rejected. Thereafter he filed a writ petition in the Delhi D
High Court which was summarily rejected.
In this appeal the learned counsel for the appellant submitted that
several irregularities have been committed in conducting the summary
trial. But from the records we find that the evidence has been duly
recorded and further it is an admitted fact that the appellant was E
carrying extra 7 bottles of rum without the necessary permit. There-
.~
fore we are unable to agree with the counsel that the trial is vitiated
and we are of the view that no prejudice has been caused. The main
submission and perhaps the only submission, if we may say so, in this
appeal is that the sentence awarded to the appellant is wholly dispro-
portionate to the offence committed by him. According to the learned F
counsel the extreme punishment of imprisonment for 3 months and
dismissal from the service under the circumstances is uncalled for.
We find considerable force in this submission. Admittedly. the
) appellant was granted leave when he was proceeding to his home town
and unfortunately enroute to his home town he had to pass through G
Surendra Nagar where there was prohibition in force. However, he
had a valid permit to carry'S bottles, the extra 7 bottles of rum, accord-
ing to the appellant, were purchased f;.:im the Army Canteen itself and
there is no dispute about the same. Unless he had some permits or
chits given by some higher authorities permitting him to purchase
these bottles, he could not have purchased the same from the Canteen H
680 SUPREME COURT REPORTS (1991) 2 S.C.R.
A over and above the bottles for which he had a valid permit. He was
taking this liquor to his home town to celebrate his brother-in-law's
marriage, but to his bad luck, the Civil Police of Surendra Nagar
checked his baggage and confiscated the bottles as he had no valid permit
to carry the extra bottles. Under these circumstances the question is
whether such a severe penalty is ca1led for. In the chargesheet it is
B merely stated that the action of the appellant in carrying 11 bottles of
sealed rum and one bottle of sealed brandy when he was proceeding to
his home town is "contrary to the existing orders on the subject". In
the counter-affidavit it is stated that such an act of the appellant comes
within the meaning of Section 63 of Chapter VI of the Army Act, 1950
('Act' for short) which enumerates various types of offences. Section 63
C lays down as under:
"63. Violation of good order and discipline-Any person
subject to this Act who is guilty of any act or omission
which, though not specified in this Act, is prejudicial to
good order and military discipline shall, on conviction by
D court-martial, be liable to suffer imprisonment for a term
which may extend to seven years or such less punishment as
is in this act mentioned."
This Section may cover various types of misconducts committed by a
person by way of an act or omission. This Section also provides for
E awarding any other lesser punishment mentioned in the Act. Thefe-
fore much depends on the nature of the act or omission of which the
person is found guilty. The provisions in Chapter VII enumerate vari-
ous punishments that can be awareded. Section 71 of the Act deals
with punishments awardable by court-martial and reads as under:
F "71. Punishments awardable by courts-martial Punish-
ments may be inflicted in respect of offences committed by
persons subject to this Act and convicted by courts-martial,
according to the scale following, that is to say-
{a) death; (
G
(b) transportation for life or for any period not less than
seven years;
(c) imprisonment, either rigorous or simple, for any period
not exceeding fourteen years;
H
SARDAR SINGH v. UNION OF INDIA [REDDY, J.] 681
(d) cashiering, in case of officers;
A
(e) dismissal from the service;
(f) reduction to the ranks or to a lower rank or grade or
place in. the list of their rank, in the case of warrant offi-
cers.; and reduction to the ranks or to a lower rank or B
grnde, in th_!) case of non-commissioned officers;
Provided that a warrant officer reduced to the ranks srall
not be required to serve in the ranks as a sepoy;
(g) forfeiture of seniority of rank, in the case of officers,
junior commissioned officers, warrant officers and non- c
commissioned officers; and forfeiture of all or any part of
their service for the purpose of promotion, in the case of
any of them whose promotion depends upon length of
service;
D
(h) forfeiture of service for the purpose of increased pay,
.,. pension or any other prescribed purpose;
(i) severe reprimand or reprimand, in the case of officers,
junior commissioned officers, warrant officers and non~
commissioned officers; E
(j) forfeiture of pay and allowances for a period not
exceeding three months for an offence committed on active
service;
(k) forfeiture in the case of a person sentenced to cashier- F
ing or dismissal from the service of all arrears of pay and
allowances and other public money due to him at the time
of such cashiering or dismissal;
( 1) stoppage of pay and. allowances until any proved loss or
damage ·occasioned by the offence of which he is convicted
> is made good."
G
It can be seen that Sections 71(a) to 71(e) and Section 7l(k) provide
for extreme punishments and are severe in nature. Sections 71(f) to
71(j) and Section 71(1) provide for comparatively lesser punishments.
Section 72 of the Act is the next relevant Section which reads as under: H
682 SUPREME COURT REPORTS [1991) 2 S.C.R.
"72. Alternative punishments awardable by court-martial-
A
Subject to the provisions of this Act, a Court-Martial may,
on convicting a person subject to this Act of any of the
offences specified in Sections 34 to 68 inclusive, award
either the particular punishment with which the offence is
stated in the said sections to be punishable, or, in lieu
B thereof, any one of the punishments lower in the scale set
set out in Section 71, regard being had to the nature and
degree of the offence."
(emphasis supplied)
Section 73 of the Act deals with combination of punishments and it
reads as under:
c
"73. Combination of punishments-A sentence of a court-
martial may award in addition to, or withourt any one other
punishment, the punishment specified in clause (d) or
clause (e) of Sectio" 71 and any one or morP. of the punish-
D ments specified in clauses (f) to ( 1) of that section."
It can be seen that under Section 73 of the Act, the court-martial may -
award more than one punishments as mentioned therein. In the instant
case Section 63 also is not mentioned in the chargesheet. Assuming
that the offence committed by the appellant is covered by the resi-
E duary Section 63 but in awarding the punishment the court-martial has
to keep in view the spirit behind Section 72 of the Act and it has to give
due regard to the nature and degree of the offence. It can be seen that
Section 6.3 provides for awarding any of the lesser punishments
enumerated in Section 71 of the Act. In view of these provisions of law
and having regard to the nature and degree of the offence, we are
F firmly of the view that the punishments awarded to the appellant
namely, three months' R.I. and dismissal from service are severe and
are also violative of Section 72.
In Council of Civil Service Unions v. Minister for the Civil
Service, [1984) 3 All ER 935, 950 Lord Diplock said:
G
"Judicial review has I think developed to a stage today
when, without reiterating any analysis of the steps by which
the development has come about, one can conveniently
classify under three heads the grounds on which adminis-
. trative action is subject to control by judicial review. The
H first ground I would call 'illegality', the second 'irrationa-
SARDAR SINGH v. UNION OF INDIA [REDDY, J.] 683
lity' and the third 'procedural impropriety! This is not to
A
say that further development on a case by case basis may
not in course of time add further grounds. I have in mind
particularly the possible adoption in the future of the
principle of 'proportionality' which is recognised in the
administrative law of several of our fellow members of the
European Economic Community, . , ...... " B
This principle was followed in Ranjit Thakur v. Union of India and
Others, [1987] 4 SCC 611 where this Court considered the question of
doctrine of proportionality in the matter of awarding punishment
under the Army Act and it was observed thus:
"The question of the choice and quantum of punishment is c
within the jurisdiction and discretion of the court-martial.
But the sentence has to suit the offence and the offender. It
should not be vindictive or unduly harsh. It should not be
so disproportionate to the offence as to shock the cons-
cience and amount in itself to conclusive evidence of bias. D
The doctrine of proportionality, as part of the concept of
judicial review; would ensure that even on an aspect which
is, otherwise, within the exclusive province of the court-
martial, if the decision of the court even as to sentence is an
outrageous defiance of logic, then the sentence would not
be immune from correction. Irrationality and perversity E
are recognised grounds of judicial review."
In Bhagat Ram v. State of Himachal Pradesh, [1983] 2 SCC 442 this
Court held as under:
"It is equally true that the penalty imposed must be com- F
mensurate with the gravity of the misconduct, and that any
penalty disproportionate to the gravity of the misconduct
would be violative of Article 14 of the Constitution."
Applying these principles to the instant case, we are also constrained
to say that there is an element of arbitrariness in awarding these severe G
punishments to the appellant.
We have heard both the learned counsel on this aspect elabo-
rately and we are satisfied that an interference is called for and the
matter has to be remanded on the question of awarding any of the
lesser punishments. Having given our earnest. consideration to the H
684 SUPREME COURT REPORTS [1991] 2 S.C.R.
A facts and circumstances of this case and in view of the submissions
made by both the counsel, we feel that ends of justice will sufficiently
be met if a lesser punishment as provided under Section 7 l(f) is
awarded to the appellant. Accordingly, we set aside the punishments
of three months' R.I. and dismissal from service and remand the mat-
ter to the court-martial which shall award any of the lesser punish-
B ments having due regard to the nature and circumstances of the case
and in the light of the above observations made by us. Since we are
setting aside the sentence of three months' R.I. any detention suffered
by the appellant after the orders of the court-martial shall not be
treated as a disqualification for being reinstated into service which
shall, however, be subject to any of the minor punishments to be
c awarded by the court-martial. Already much time has lapsed, there-
fore, we hope the court-martial would dispose of the matter as
expeditiously as possible preferably within three months. The appeal is
thus disposed of subject to the above directions.
N.P.V. Appeal disposed of.
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