Supreme Court of India
UNION OF INDIA AND ORS.versusNAIK SUBEDAR CLK(S) BALESHWAR RAM AND ORS.
- Citation
- 1989 INSC 332
- Decided
- 27 October 1989
- Disposal
- Appeal(s) allowed
- Bench
- RANGANATH MISRA
Holding
A General Court Martial is valid only when a prior inquiry under Rule 22 has been held on the same facts; where no such inquiry exists, the Court Martial and dismissal are invalid.
Summary
Three army personnel were tried by a General Court Martial for theft, convicted, sentenced and dismissed from service. They challenged the conviction and dismissal before the Guwahati High Court, which set aside both on the ground that the trial violated Rule 22 of the Army Rules, 1954, which requires a prior inquiry. The Supreme Court examined whether a prior inquiry under Rule 22 was necessary for each respondent. It held that respondents 2 and 3, for whom no Rule 22 inquiry was held, could not be tried by the Court Martial and the High Court's order setting aside their conviction and dismissal was upheld. For respondent 1, a Rule 22 inquiry had been conducted on the same facts, and the charge of theft overlapped with the alleged conduct prejudicial to discipline, so the Court Martial was valid and the High Court's order was reversed, restoring the conviction and dismissal. The appeal was allowed in part, with no order for costs, and respondent 1 was not required to serve the balance of his sentence.
Issues considered
- Whether a General Court Martial can lawfully try an accused for theft without a prior inquiry under Rule 22 of the Army Rules, 1954.
- Whether the absence of a Rule 22 inquiry for respondents 2 and 3 invalidates the General Court Martial proceedings and the consequent dismissal.
- Whether the High Court was correct in setting aside the conviction and dismissal of respondent 1 despite a Rule 22 inquiry having been held.
- The effect of non‑compliance with Rule 22 on the validity of a General Court Martial and the dismissal order.
Legislation cited
- Army Act, 1950s. 52, s. 63
- Army Rules, 1954s. Rule 22
Subjects
Army ActGeneral Court MartialRule 22TheftDismissal from serviceMilitary disciplineProcedural complianceMilitary law
Judgment
UNION OF INDIA AND ORS. A
v.
NAIK SUBEDAR CLK(S) BALESHWAR RAM AND ORS.
OCTOBER 27, 1989
B
[RANGANATH MISRA. P.B. SAWANT AND
K. RAMASWAMY, JJ.]
Army Act, 1950: Sections 52, 63.
Army Rules 1954: Rule 22.
Dismissal pursuant to General Court Martial-Validity of.
c
Non-compliance with Rule-Effect of.
The respondents faced trial for the charge of theft. After a
General Court Martial, they were found guilty, convicted and senten-
ced. All the three respondents were dismissed from service.
The respondents filed a writ petition in the High Court challeng- D
ing the decision of the Court martial, and the order of the dismissal.
The High Court set aside the order of conviction and pnnishment of
imprisonment as also the order of dismissal from service by holding that
the trial before the Conrt Martial General was in contravention of Rule
22 of the Army Rules, 1954. Hence this appeal by the Union oflndia.
E
Allowing the appeal in part, this Court.
HELD: I. It is a fact that the allegation at the stage of inquiry
under Rule 22 was described as prejudicial to good order and military
discipline but the basic facts said to constitute that allegation were
nothing else than removal of the foodstuff which constituted the charge F
of theft. It is, therefore, clear that no prejudice has been caused to
respondent I and the enquiry under Rule 22 and the trial before
General Court Martial were over the self same facts. [21 H; llA J
2. It is a fact that as against respondents 2 and 3 there was no
inquiry under Rule 22. It is not disputed that the Commanding Officer G
of the Unit had stated before the General Court Martial that he did not
find any case against respondents 2 and 3. The conclusion reached by'
the Commanding Officer was reasonable. Therefore there is no justifi-
cation to set aside the order of the High Court so far as respondents 2
and 3 are concerned. [2ID-E]
H
19
20 SUPREME COURTREPORTS [1989] Supp. 2 S.C.R.
Lt. Col. Prithi Pal Singh Bedi v. Union of India & Ors., [1982] 3
A sec 140, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 778
of 1988.
B From the Judgment and Order dated 5.8.1987 of the Assam High
Court in Civil Rule No. 372 of 1982.
Anil Dev Singh and P. Parmeshwaran for the Appellants.
A.K. Ganguli, I.A. Ansari and Ms. Mridula Ray for the
Respondents.
c
The Judgment of the Court was delivered by
RANGANATH MISRA, J. This appeal is by special leave and. is
directed against the judgment of the Division Bench of the High Court
D of Guwahati setting aside the order of conviction and the punishment of
imprisonment as also the order of dismissal from service inflicted on
the three respondents following a finding of guilt by the General Court
Martial.
Naik Subedar Baleshwar Ram was a Junior Commissioned
E Officer of Amaribari Supply Point in the far eastern sector and was in
overall charge of the said supply point. Around 5.30 p.m. on June 19,
1980, he directed Driver Rattan Singh to park an army vehicle near the
ration store for loading dry ration. Respondent Ramji with the help of
one labour from civilian side loaded the dry ration in the vehicle,
whereafter Baleshwar Ram directed the truck to be taken towards
F Balipura. Respondent No. 1 sat in the front seat in civil dress while
respondents 2 and 3 sat behind the body of the truck. By the time the
vehicle reached Balipura, it had become dark and respondent No. 1
ordered the driver to take the vehicle towards Tezpur. When the vehi-
cle reached the outskirts of village Eatavari, respondent No. l directed
the driver to slow down and turn the vehicle towards the right and take
G it off on a narrow kutcha track not leading to Tezpur. The driver of the
vehicle was not prepared to take the vehicle on the kutcha road but
upon respondent No. l's insistence the vehicle was so taken and on the
kutcha track the vehicle bogged down mid-way and could not be taken
further. In the meantime, some civilian persons gathered there. The
respondents 2 and 3 got down and started unloading some ration until
H they were prevented by the civilians present there. Respondent No. 2
U.0.1. v. NAIK SUBEDAR B. RAM (MISRA, J.( 21
slipped away from the place. The civilians being suspicious informed
the civil police, who in turn handed over the matter w m11nary police A
for investigation and necessary action. After due inqmry a disciplinary
action was initiated and inquiry under Rule 22 of the Army Rules was
undertaken. A General Court Martial followed where definite charges
were given and ultimately on the basis of summary evidence available
all the three persons were found guilty, convicted and sentenced. B
Order of dismissal from service followed.
The decision of the Court Martial and the order of dismissal were
challenged before the Guwahati High Court in a writ petition. The
High Court found that as against respondents 2 and 3 there was no
inquiry under Rule 22. The High Court relied upon the decision of this
Court in Lt. Col. Prithi Pal Singh Bediv. Union of India & Ors., [1982] c
3 SCC 140 and held that the proceeding before the General Court
Martial was in violation of the mandatory provisions of the Anny
Rules. On that finding the High Court set aside the order of conviction
and punishment of imprisonment as also the order of dismissal from
service. D
It is a fact that as against respondents 2 and 3 there was no
inquiry under Rule 22. It is not disputed that the Commanding Officer
of the Unit had stated before the General Court Martial that he did not
find any case against respondents 2 and 3. The summary of evidence
recorded in the General Court Martial has been made available to us E
and we have read the same. The conclusion reached by the.Command-
ing Officer seems to us to be a reasonable one. We do not think there
is any justification to set aside the order of the High Court so far as
respondents 2 and 3 are concerned.
So far as the case against respondent No. 1 goes there was an F
inquiry under Rule 22. The point raised on behalf of respondent No. 1
in the High Court was different from the case made out by respondents
2 and 3. It had been pleaded that the inquiry under Rule 22 as against
respondent No. 1 related to an offence which came under section 63 of
the Army Act, namely, conduct prejudicial to good order and military
discipline; while the charge he was called upon to face in the General G
Court Martial was one of theft punishable under section 52(a) o(the
Army Act. We have 'een the evidence recorded in the inquiry under
Rule 22. It is a fact that the allegation at the stage of inquiry under
Rule 22 was described as prejudicial to good order and military disci-
- pline but the basic facts said to constitute that allegation were nothing
else than removal of the foodstuff which constituted that charge of H
22 SUPREME COURT REPORTS [1989) Supp. 2 S.C.R.
A theft. It is, therefore, clear that no prejudice has been caused to
respondent 1 and the inquiry under rule 22 and the trial before
General Court Martial were over the self same facts.
In these circumstances, we are inclined to sustain the judgment
of the High Court in regard to respondents 2 and 3 but we would
B reverse the judgment in regard to respondent 1 and restore the order
of the General Court Martial. Respondent No. 1 has already been
dismissed from service. He has undergone more than 9 months of the
punishment out of one year of imprisonment. There has been a gap of
several years since he has been released from jail initially on bail and
later on the basis of the judgment of the High Court. In these circum-
c stances he need not be taken into custody for suffering the balance
period of the sentence. The appeal is partly allowed. There shall be no
order for costs.
T.N.A. Appeal allowed.
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