UNION OF INDIA & ANR.versusPURUSHOTTAM

                       [2015) 1 S.C.R. 849 .


                                                                  A
                     UNION OF INDIA & ANR.
                                 v.
                         PURUSHOTTAM
                 (Civil Appeal No. 7133 of 2008)
                       JANUARY 05, 2015                           B
       [VIKRAMAJIT SEN AND SHIVA KIRTI SINGH, JJ.]

          SerVice Law - Departmental enquiry - Permissibility -
    Summary Court Martial (SCM) proceedings ulr. 133 of Army C
    Rules - Holding the delinquent guilty for the offences charged
    - Reviewing authority acting uls. 162 of Army Act set aside
    the SCM proceedings on the ground of incorrect framing of
    charges and lackadaisical recording of evidence - Thereafter
    army authorities issued Show Cause Notice to the delinquent
    alleging the same charges for which SCM proceedings were 0
    initiated and later set aside - Termination of the services of
    the delinquent - Writ petition challenging termination - High
    Court allowed the petition setting aside Show Cause Notice
    - However, the court did not preclude the delinquent from
    initiation of departmental action - On appeal, held: Acquittal E
    of an employee by a criminal court would not automatically
    and conclusively impact Departmental proceedings - Unless
    the delinquent earns honourable acquittal departmental
    proceedings cannot be precluded - The delinquent in the
    present case having not earned honourable acquittal, not F
    precluded from departmental proceedings - Army Act, 1950
    - s. 162 Army Rules - r. 133.

         Army Rules, 1950 - r. 133 - Summary Court Martial
    proceedings ulr. 133 - Review of - Held: r. 133 does not G
    empower Deputy Judge-Advocate General as the reviewing
    authority, but merely confers on it forwarding function - The

•   finding and sentence of Summary Court Martial ought to be

                                849                               H
    850       SUPREME COURT REPORTS                [2015) 1 S.C.R.


A left undisturbed by the reviewing authority- Army Act, 1950 -
    s. 161(1).

         Army Act, 1950 - s. 121 - Applicability - Scope of -
    Held: s. 121 postulates the autrefois acquit and autrefois
8   convict as distinct from Art. 20(2) of the Constitution which
    postulates only autreifois convict - However, the insulation u/
    s. 121 is only restricted only to second court martial or
    dealings u/ss. 80, 83, 84 and 85 of the Act - Constitution of
    India, 1950 - Article 20(2).

         Constitution of India, 1950 - Art. 20(2) - Principle of
    Double Jeopardy - Applicability of - Summary Court Martial
    proceedings set aside - Subsequent Show Cause notice to
    the delinquent on the same set of charges - Held: Art. 20(2)
    does not within it, imbibe the principle of autrefois acquit -
D   Therefore, the subsequent "departmental or disciplinary .
    proceedings, even if punitive in amplitude, would not be
    outlawed by Art. 20(2) - In the present case delinquent not
    precluded from departmental proceedings.

E        Interpretation of Statutes - Interpretation of rules - Held:
    Rules should be interpreted in a manner which would repose
    them in harmony with the parent statute - If the rules ordain
    an action not contemplated by the statute, it would suffer from
    the vice of excessive delegation and thus would be ultra vires.
F         Disposing of the appeal, the Court

       HELD: 1. The framers of the Constitution were fully
  alive to the differing and disparate concepts of autrefois
  acquit and autrefois convict and consciously chose to
G circumscribe the doctrine of double jeopardy only to
  prosecution culminating in a conviction. Article 20(2) of
  the Constitution does not within it imbibe the principle of
  autrefois acquit. A fortiori Article 20(2), which
  contemplates "prosecuted and punished" thus evincing
H the conscious exclusion of autrefois acquit, palpably
    UNION OF INDIA & ANR. v. PURUSHOTTAM               851


postulates that the prescribed successive punishment A
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). [Paras
10 and 12] (862-H; 863-A; 865-F-H]
                                                              8
     Maqbool Hussain vs. State of Bombay 1953 SCR 730 -
followed.

   R. P. Kapur vs. Union of India AIR 1964 SC 787: 1964
SCR 431 - held inapplicable.
                                                              c
     R.S. Nayak vs. A.R. Antulay (1984) 2 SCC 183:1984 (2)
SCR 495; Haldiram Bhujiawala vs. Anand Kumar Deepak
Kumar (2000) 3 SCC 250: 2000 (1) SCR 1247; Samatha vs.
State of Andhra Pradesh (1997) 8 SCC 191: 1997 (2) Suppl.
 SCR 305 ; State of Bihar vs. Murad Ali Khan (1988) 4 SCC D
655: 1988 (3) Suppl. SCR 455 - referred to.

    John Hudson v United States 522 U.S. 93 (1997); United
States v. Halper 490 U.S. 436 (1989); United States v. Ward
448 U.S. 242 (1980) - referred to.
                                                              E
      2. 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 F
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 Trial etc. G
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
                                                              H
    852       SUPREME COURT REPORTS             [2015] 1 S.C.R.


A   conclude that the accused is innocent and not merely
    conclude that he has not been proved to be guilty beyond
    reasonable doubt. [Para 13] [866-D-G]

          Deputy General of Police vs. S. Samuthiram (2013) 1
    sec 598: 2012 (11) SCR 174 - relied on.
B
        3. In the present case, it cannot be said that the
    respondent had earned an honourable acquittal.
    Consequently, whether on reliance of the Double
    Jeopardy principle or on the setting aside of his
c   punishment, Departmental or Disciplinary proceedings
    ought not to be viewed as precluded. [Para 14] [8&7-F-G]

         4. Section 121 of Army Act is distinct from Article
    20(2) of the Constitution, since it palpably postulates both
    autrefois acquit and autrefois convict to a court-martial or
0
    a trial by criminal courts, but then restricts the insulation
    only to a second court-martial or a dealing u/ss. 80, 83,
    84 and 85 of the Army Act. [Para 16] [868-D]

         5. The power to do a particular act must be located
E 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 must, therefore,
    be interpreted in a manner which would repose them in
F harmony with the parent statute. The Show Cause Notice
    impugned before the High Court was predicated on Rule
    13 of Army Rules, by obviously circuitously taking
    recourse to the residuary clause 13(3)(111)(V) of the
  . relevant Table. The Appellants could have resorted to
G Section 20 of the Army Act. The Army Authorities are
    often consumed by the Army Rules without fully
    comprehending the scope of the Army Act itself.. [Para
    19] [870-E-G]

          6. Rule 133 of Army Rules does not empower Deputy
H
    UNION OF INDIA & ANR. v. PURUSHOTIAM             853


Judge-Advocate General as the reviewing authority, but       A
merely confers on it a forwarding function, the Rule
stating that the proceedings of the Summary Court
Martial (SCM) on promulgation require to be forwarded to
the competent officer under Section 162 of the Army Act,
but only parenthetically provides that this will occur       B
"through" Deputy Judge-Advocate General. This cannot
be interpreted substitutively, as enshrining in Deputy
Judge-Advocate General the statutory remit of the
reviewing authority under Section 162. [Para 23] [872-G-
H; 873-A]                                                    C

     7. 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 of Court Martial, enumerated in Section 153.
Section 161 (1) expressly states that the finding and        0
sentence of a Summary Court Martial shall not require to
be confirmed, but may be carried out forthwith. The
present one, 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    E
recorded and subsequent setting aside of the
consequences of the Court Martial presided by the
Officer Commanding, cannot stand. [Para 24] (873-C-F]

     8. The Respondent did not make any Statement of         F
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         G
proceedings on such a technical ground. 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). The Summary Court
Martial order is restored. [Paras 24 and 26] (874-A-C, F]
                                                             H
    854       SUPREME COURT REPORTS              [2015] 1 S.C.R.


A        Chief of Army Staff vs. Major Dharam Pal Kukrety 1985
    (2) SCC 412: 1985 (3) SCR 415 Union of India vs. Harjeet
    Singh Sandhu 2001 (5) SCC 593:2001 (2) SCR 1127 -
    relied on.

B                         Case law reference:
          1984 (2) SCR 495           referred to       Para 10
          2000 (1) SCR 1247          referred to       Para 10
                                                             •
          1997 (2) Suppl. SCR 305    referred to       Para 10
c
          1953 SCR 730               followed          Para 10
          1988 (3) Suppl. SCR455 referred to           Para 11
          1964 SCR 431               held              Para 13
D                                    inapplicable
          2012 (11) SCR 174          referred to       Para 13
          1985 (3) SCR 415           relied on         Para 18
          2001 (2) SCR 1127          relied on         Para 20
E
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    7133 of 2008.

        From the Judgment & Order dated 21.4.2008 of the High
F   Court of Delhi at New Delhi in CWP 4254 of 2003.

         K. Radhakrishnan, R.K. Rathore, R. Bala, N.K. Jha, B.V.
    Bairam Dass, B. Krishna Prasad for the Appellants.

       Arun Bhardwaj, Shekhar Kumar, Dr. Kailash Chand for the
G   Respondent. .

          The Judgment of the Court was delivered by

        VIKRAMAJIT SEN, J.1. The Respondent herein, No.
    7773409X Havildar (Military Police) Purushottam, was enrolled
H
     UNION OF INDIA & ANR. v. PURUSHOTIAM                  855
              [VIKRAMAJIT SEN, J.]

in the Corps of Military Police, on 7th June 1983. On 27th          A
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         B
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; b) he had taken 100 litres of HSD (high speed
diesel) with barrel from Superintendent BR-I HL Meena of 367        c
 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      0
 materiatheld 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                  E
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           F
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)     G
of the Army Act, 1950. Summary of Evidence was recorded
under Rule 23, Army Rules and the Respondent 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      H
    856       SUPREME COURT REPORTS                [2015) 1 S,C.R..


A 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
B 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
c 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
D officials enumerated in Section 162, there appears to us that
  a 'rev.iew' 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
E to the officer authorised to deal with them in pursuance of
  Section 162. At the most the 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
F 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
G 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
H Accused/Respondent renders his retention ir. the service as
     UNION OF INDIA & ANR. v. PURUSHOTTAM                     857
              [VIKRAMAJIT SEN, J.]

undesirable. It determined that although the officer conducting      A
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          B
be returned at the end of winter. Upon later inspecting the
hammer, the Respondent discovered that there were two
hammers packed inside, instead of the one that he had
requested.
                                                                     c
      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-
                                                                     D
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       E
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.           F

     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 was charged with       G
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
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    858      SUPREME COURT REPORTS                [2015] 1 S.C.R.


A   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
B   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
C 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
D 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. The
  Appellants denied that the Respondent had been Discharged
  for offences of extortion; rather, the Respondent's misconduct,
E 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
F 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
G 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
H before it from "taking any departmental action against the
     UNION OF INDIA & ANR v. PURUSHOTTAM                      859
              [VIKRAMAJIT SEN, J.]

petitioner in respect of the allegations, in accordance with law."   A
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 and discharged the Respondent for
                                                                     8
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          C
member of the Army subsequent to Summary Court Martial
proceedings against him on the same or similar charges having
beel) 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       D
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          E
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.      F
 But there is a watershed which can be discerned albeit with a
fair share of arduousness.

      7. We shall forthwith analyse the concept of double
jeopardy, especially in the backdrop of Constitutions of G
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
                                                                       H
    860       SUPREME COURT REPORTS                 [2015] 1 S.C.R.


A   service in time of war or public danger; nor shall ar.y 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
s   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.
c   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
0
    Canadian Constitution provides that any person charged with
    an offence has the right "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,
E   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
F   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.

G        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.
H   This statute has been emulated by legislations in New Zealand
     UNION OF INDIA & ANR. v. PURUSHOTTAM                    861
              [VIKRAMAJIT SEN, J.]

and in the Australian States of Queensland, New South Wales,        A
Tasmania, South Australia and Victoria.

      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
                                                                     8
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 C
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 · D
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 E
 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' and
 leading to Article 20(2) as it stands today. Shri T.T. F
 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    G
     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
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    862       SUPREME COURT REPORTS                  [2015] 1 S.C.R.


A         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.
B         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
c         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
D         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
E         for the Governments of the future. That is the suggestion 1.
          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
F   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. Suffice
    it to mention the analysis of the Constitution Bench in R.S.
    Nayak vs. A.R. Antu/ay (1984) 2 SCC 183 and in Haldiram
G   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
H
     UNION OF INDIA & ANR. v. PURUSHOTIAM                   863
              [VIKRAMAJIT SEN, J.]

consciously chose to circumscribe the doctrine of double            A
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:                                        B

           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 ruie of the common law of
    England "that where a person has been convicted of an           C
    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 De/icto", that is to say that no one ought to be twice      D
    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       E
    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       F
    the first instance in order 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      G
    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     H
    864        SUPREME COURT REPORTS                 [2015) 1 S.C.R.

A         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:-
B         "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
c         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.
D
         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
E   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
F over the conundrum as to what constitutes a successive
  "punishment" for the 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
G 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.
H In the case before the U.S. Supreme Court, John Hudson was
      UNION OF INDIA & ANR. v. PURUSHOTTAM                   865
               [VIKRAMAJIT SEN, J.]

 the Chairman of the First National Bank of Tipton and the First A
  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 B
  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. dverruling United c
  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 distinction established between the
  "civil" and "criminal" nature of the particular successive D
  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 a/ia, the civil nature E
  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, F
  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 G
  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).                                  H
    866       SUPREME COURT REPORTS                [2015) 1 S.C.R.

A        13. In R. P. Kapur ~. 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
B   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
c   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
0
    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
E   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 Trial etc. Thirdly, an acquittal in a criminal
    prosecution may preclude a contrary conclusion in a
F   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
G   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
H   and debatable if not specious opinion of the JAG Branch. A
     UNION OF INDIA & ANR. v. PURUSHOTTAM                  867
              [VIKRAMAJIT SEN, J.]

Summary Court Martial was held on 11th April, 2002 in which A
Lt. Col P. Bhutani was present as the 'friend of the Accused;
aJong 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 B
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 C
statement. It was the opinion of the Reviewing Officer that Army
Ru1e 116(4) required the 'Guilty' plea to be altered to '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 o
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 E
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 F
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 G
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 H
    868       SUPREME COURT REPORTS                [2015) 1 S.C.R.


A   discharged from service.

        15. Section 121 of the Army Act requires special scrutiny
    inasmuch as it specifies that:

          121. Prohibition of second trial. - When any persol)
B         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
c         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,
0 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
E 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
F 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 Central Government
  possessed the power to grant or desist from granting sanction
  for a second/successive trial by a Criminal Court. The erstwhile
G 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
H                 court for the same offence, or on the same facts.
     UNION OF INDIA & ANR. v. PURUSHOTTAM                   869
              [VIKRAMAJIT SEN, J.]

     (2)   If a person sentenced by a court-martial under this      A
           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             B
           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         C
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.    D
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
enshrined even in the then extant Cr.P.C., and his pitch for the
Constitution to do likewise.                                        E

      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) sec 412, for the reason that
in the facts obtaining in that case the finding of the Court        F
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       G
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.
                                                                    H
    870      SUPREME COURT REPORTS                 [2015) 1 S.C.R.


A   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
B   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 concurrence of
    the Central Government whilst the pandect comprising Rules
    11, 12 and 13 deals with discharge etc. of every person
c   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
D Court was predicated on Rule 13 by obviously circuitously
  taking recourse to the residuary clause 13(3)(111)(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
E 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
F 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
G without fully comprehending the scope of the Army Act itself.

        20. Another Three-Judge Bench in Union oflndia 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
H
     UNION OF INDIA & ANR. v. PURUSHOTTAM                     871
              [VIKRAMAJIT SEN, J.]

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

      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           C
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           D
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           E
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         F
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        G
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     H
     872        SUPREME COURT REPORTS                [2015} 1 S.C.R.


A    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,
 B   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.

C         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
.D
     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 p"'roceedings of a
 E         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
 F         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
.G 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-Advocate General. This
   cannot be interpreted substitutively, as enshrining in Deputy
   Judge-Advocate General the statutory remit of the reviewing
 H authority under Section 162. This apart, it has alre:idy been
     UNION OF INDIA & ANR. v. PURUSHOTIAM                   873
              [VIKRAMAJIT SEN, J.]

opined by us heretofore that the setting aside took place           A
"technically" and therefure 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
                                                                    8
(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    C
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        D
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 merely technical grounds, set    E
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            F
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           G
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
                                                                    H
    874        SUPREME COURT REPORTS                 [2015] 1 S.C.R.


A   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
B   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 Respondent's plea of "guilty" was not fully understood by
c   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
D   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
E   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
F   Appeal by restoring the order of the Summary Court Martial, yet
    not prohibiting the Appellants to proceed in accordance with law.

    Kalpana K. Tripathy                              Appeal disposed of.