Holding

It is not imperative that an SCM be convened, constituted and completed by the CO of the unit to which the accused belongs; the CO of the unit to which the accused is attached or sent on attachment may validly do so within the limits of Sections 116 and 120 of the Army Act and the applicable Rules and Regulations.

Summary

The Supreme Court examined several writ petitions filed by army personnel who had been tried by Summary Courts Martial (SCM) convened by Commanding Officers (CO) of units other than the units to which they belonged. The Delhi High Court had held that only the CO of the accused's own unit could convene an SCM, while the Rajasthan High Court dismissed the petitions on merit. The Court clarified that the Army Act, 1950 and the Army Rules do not restrict the competence to the CO of the accused's parent unit; the CO of the unit to which the accused is attached or sent on attachment may validly convene, constitute and complete an SCM, provided statutory conditions, including the requirement of immediate action, are satisfied. It further explained the categories of offences that require reference to a higher authority and emphasized that SCM is an exceptional, not routine, remedy. The Court allowed the Union of India's appeals, remanding the matters to the Delhi High Court for merits, and dismissed the other appeals. The judgment also highlighted the need for fairness, adherence to regulations, and the limited use of SCM in operational contexts.

Issues considered

Whether a Summary Court Martial can be convened, constituted and completed by the Commanding Officer of a unit other than the unit to which the accused belongs.
Whether the offences listed under Sections 34, 37 and 69 of the Army Act, and offences against the officer holding the court, require a reference to a higher authority before an SCM can be held.
Whether the procedural requirements of the Army Rules and Defence Service Regulations permit the CO of an attached unit to try the accused by SCM.

Legislation cited

Armed Forces Tribunal Act, 2007
Army Act, 1950s. 116, s. 120
Army Rules, 1954s. 133, s. 146, s. 22, s. 39, s. 40
Defence Service Regulationss. 381, s. 9

Subjects

Summary Court MartialCommanding OfficerArmy ActSection 116Section 120AttachmentMilitary lawCourts MartialDiscipline

Judgment

[2016] 5 S.C.R. 473

UNION OF INDIA & ORS. A
v.
VISHAY PRIYA SINGH
(Civil Appeal No. 8360 of2010)
JULYOS,2016 B
[T.S. THAKUR, CJI, AND UDAY UMESH LALIT, J.)
Army Act, I950 - ss.116 and I20 - Summary Court Martial
(SCM) - Whether can be convened, constituted and completed by
the Commanding Officer (CO) of the Unit other than the present
Unit of the accused (i.e. the Unit to which the accused is attached)
c
- Delhi High Court dismissed the writ petitions of the accused on
the ground of competence of the CO as the SCM were convened,
constituted and completed by the CO of the Unit other than the
present Unit of the accused - Rajasthan High Court dismissed the
cases of accused deciding the cases on merit - On appeal, held: It D
is not imperative that an SCM can be convened, constituted and
completed by the CO of the Unit to which the accused belonged - It
is competent and permissible for the CO of the Unit to which the
accused was attached or sent on attachment for the purpose of
trial - If the offence is linked to the Unit to which the accused is
E
attached, the CO of the attached Unit is competent to convene,
constitute and complete SCM, being in seisin of the matter - CO of
the parent Unit has nothing to do in such case - The matters arising
out of order of Delhi High Court are remanded to decide the case
on merit - Other matters are liable to be dismissed - Army Rules,
1954 - rr. 39, 133 and 146 - Defence Service Regulations - Regns. F
9 and 38I.
Allowing the appeals arising out of order of Delhi High Court
and remitting them to High Court, and dismissing other appeals,
the Court
HELD: 1. The Army Act has given drastic power to one G
single individual, namely, the Commanding Officer (CO) who alone
is to constitute the Court. No doubt, this power comes with
restrictions insofar as the power to award sentence is concerned
in terms of sub-Sections (4) & (5) of Section 120 of Army Act,
1950. However, even with such restrictions the power is quite H
473
474 SUPREME COURT REPORTS [2016] 5 S.C.R.

A drastic. The reason for conferment of such power is obvious that
in order to maintain discipline among the soldiers and units, the.
CO must have certain special powers, for it is the discipline which
to a great extent binds the unit and makes it a co-hesive force.
The High Court of Delhi was therefore completely correct in
observing that such power must be exercised rarely and when it
B
is absolutely imperative that immediate action is called for. The
satisfaction in that behalf must either be articulated in writing or
be available on record, specially when the matter can be
considered on merits by a tribunal, with the coming into force of
the Armed Forces Tribunals Act, 2007. [Paras 19, 20) [495-G-H;
c 496-A-C]
2. It cannot be said that only offences under Sections 34,
37 and 69 of the 1950 Act could be tried by an SCM. The provision
in Section 120(2) of the 1950 Act requiring a reference to the
superior authority which thought is again echoed in proviso to
D Army Rule 22 (3) of the Rules, is a salutory provision and a check
on the exercise of drastic power conferred upon a CO and must
be scrupulously observed. A case for non-adherence to this
requirement must be made out on record and any deviation or
non observance of statutory requirements must be viewed
seriously. Offences under Sections 34, 37 and 69 of the Act are
E special categories or kinds of offences where a reference to the
officer empowered to convene a DCM or an SGCM is considered
imperative unless there are grave reasons for immediate action.
Similarly, the offences against the officer holding the Court,
where that officer could possibly "be a judge in his own cause",
F are also put at the same level and similar reference under sub-
section (2) ought to be made. The exercise of power in seeking
such reference and consequent consideration in respect thereof
must be in keeping with the seriousness attached in respect of
these offences. [Paras 22, 23) [497-C-F]
G 3.1 As regards the question as to which CO is competent
to convene, constitute and complete the SCM. Is it CO of the
Unit to which the accused belonged or CO of the Unit to which
he was attached or came to be attached. In this connection there
could possibly be three kinds of situations: (a) An accused
committing an act constituting an offence while he was part of his
H
UNION OF INDIA & ORS. v. VISHAY PRIYA SINGH 475

regular Unit is tried by SCM by his own CO i.e., the CO of the A
Unit itself. (b) An accused while being on attachment to a different
Unit commits an act constituting an offence and is therefore tried
by SCM by the CO of such Unit to which he was sent on
attachment. In such cases the offence itself would be committed
while the accused was on attachment. (c) An accused committing
B
an act constituting an offence while being part of his regular Unit
is later sent on attachment to a different Unit and is then tried by
SCM by CO of such Unit i.e., Unit where he was sent on
attachment after the offence was committed. [Para 24) [497-G-
H; 498-A-B)
3.2 There is no embargo on CO of the Unit to which the
c
accused belongs being the Court for the purposes of trying the
accused by SCM. The first of the aforesaid three categories of
offences mentioned above can therefore certainly be tried by the
CO of the Unit to which he belongs. If the act constituting an
offence is linked to the Unit in question when such act was D
committed, in respect of matters falling in the second category,
the offence could logically be tried by the CO of the Unit to which
the accused was attached. The accused cannot insist that the CO
of his parent unit alone must try him by SCM. It cannot be said
that his erstwhile connection with the parent unit must be taken
to be the governing factor of such extent that the normal linkage E
of the Unit and the offence in question must stand displaced. If
requirements of Section 120(2) are otherwise complied with and
satisfied, the CO of such attached Unit is competent to convene,
constitute and complete the SCM. It is in his unit that the offence
in question was committed and in that sense he would be in seisin F
of the matter. The CO of the parent unit wduld have nothing to
do in the matter. [Para 25) [498-C-F]
3.3 In the third category, there could be two sub categories.
In the first, the commission of offence itself may come to
knowledge, though the offence was committed in the parent unit, G
after the accused was sent on attachment. Secondly, an accused
may be sent on attachment to another unit only for being tried by
SCM by the CO of that other unit. The commission of an act
constituting an offence being connected with the erstwhile unit
and having no connection with the unit where he is later sent on
H
476 SUPREME COURT REPORTS [2016] 5 S.C.R.

A attachment, normally the former of the units in question would
be appropriate. But, when the offence itself may have been
committed against the CO of the former unit or the CO may be
an important witness reflecting on matters in issue or for the
purposes of discipline, the accused may be required to be moved
out of the unit in question. [Paras 26, 27] [498-G-H; 499-A-B]
B
3.4 If the concept of fairness in the procedure demands, as
is expressly set out in the form of Rule 39 of the Rules that CO
of the Unit to which an accused belongs is disentitled to serve on
a GCM or DCM, it would be complete contradiction to insist
upon the CO of the Unit to which the accused belongs, regardless
c of the status and role of such CO in connection with the offence,
to be the only authority entitled to convene an SCM. Sections
116 and 120 do not admit of any such construction and in the
absence of any express provision to the contrary, Regulation 9
can certainly be the guiding factor. The expression "Commanding
D Officer" in Section 116 is not qualified by any explanation that he
must be the CO of .the Unit to which the accused belongs.
Regulation 9 of Defence Service Regulations (DSR), with its width
and amplitutde affords such explanation and is completely
consistent with and subserves the basic ingredients of fairness
and impartiality. [Para 29] (499-G-H; 500-A-B]
E
3.5 The finding of the High Court that in all circumstances,
other than those dealt with by Regulation 381, it is the CO of the
Unit to which the accused belongs, alone is competent to convene,
constitute and complete an SCM, is incorrect. [Para 30] [500-D]
3.6 The expression "to which the accused belongs" finds
F
mention in Rule 39 of the Army Rules in the context of GCM or
DCM, but not with respect to SCM. Under Rule 133 of the Rules
the proceedings of an SCM must immediately on promulgation
be forwarded through the Deputy Judge Advocate General of
the command "in which the trial is held". On the other hand,
G under Rule 146 of the Rules the proceedings of an SCM must be
preserved with the records of the corps or the department "to
which the accused belonged". It is thus possible and well
contemplated that the trial by SCM may be held in a unit other
than the one to which the accused belongs". Rules 39 and 146
further disclose that wherever the statute wanted to specify the
H
UNION OF INDIA & ORS. v. VISHAY PRIYA SINGH 477

unit or department "to which the accused belonged" it has done A
that with great clarity. No such qualification is specified in respect
the CO who is to convene, constitute and complete the SCM.
[Para 31) [500-E-G]
3. 7 It is not imperative that an SCM be convened,
constituted and completed by CO of the Unit to which the accused B
belonged. It is competent and permissible for the CO of the Unit
to which the accused was attached or sent on attachment for the
purposes of trial, to try such accused by convening, constituting
and completing SCM in a manner known to law i.e. strictly within
the confines of Sections 116 and 120 of the Act and other Statutory
provisions. SCM is an exc~ption and it is imperative that a case c
must be made out for immediacy of action. The reasons to convene
an SCM must be followed by well articulated reasons or the record
itself must justify such resort. [Para 33] (501-B-C]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8360
of2010. D
From the Judgment and Order dated 25.01.2008 of the High Court
of Delhi at New Delhi in Civil Writ Petition (C) No. 2511 of 1992
WITH
C. A. No. 8838 and 8830-8835 of2010
C. A. Nos. 254 7, 2548, 2549, 2550 and I 0 I 04of2011 E
C.A. No. 6679 of2015
C. A. D. Nos. 13803 and 18038 of2015.
Arun Mohan (AC), Ms. Jyoti Singh (AC), Ms. Rekha Palli, Sr.
Advs., Rajbhushan, R. Balasubramanian, Santosh Kumar, B. Krishna
Prasad, Ms. Meenakshi Grover, Ajay Sharma, Prabhas Bajaj, Pranav F
Kumar, B. V. Balaram Das., Mrs. Anil Katiyar, M. G Kapoor, Devendra
Kumar Singh, C. P. Singh, Rameshwar Prasad Goyal, Santosh Mishra,
Surya Kant, Binay K. Das, Ranjit Sharma, Ms. Priyanka Das, Ravi
Shankar Ravi, RD. Upadhyay, Sudhanshu S. Padey, Sridhar Potaraju,
Gaichangpou Gangnei, Abhishek R. Shukla, Mukunda Rao, Arjun Singh, G
Maj. K. Ramesh, V. Sushant Gupta, Dr. Kai lash Chand, Nikhil Palli, Ms.
Punam Singh, Ms. Ankita Patnaik, Deepak Goel, N. L. Bareja, Akash
Kaushik, Chander Shekhar Ashri, R. C. Kaushik, S. M. Dalal,
Rameshwar Prasad Goyal, Ms. Aishwarya Bhati, Dillip Kumar Nayak,
T. Gopal, Ms. Eshita Kapur, Anshul Shanna, Logmitra Chanden, Advs.
for the appearing parties. H
478 SUPREME COURT REPORTS [2016] 5 S.C.R.

A Respondent-in-Person.

The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
l.Civil Appeal Nos.8360 of 2010 and 8830-8835 of2010, at the
B instance of Union oflndia challenge correctness of the common judgment
and order of the High Court of Delhi dated 25.01.2008 in Writ Petition
(Civil) Nos.2511 of 1992, 3519 of 1998, 6185 of2002, 2433 of 2003,
17622 of2004, 18185 of2004 and 20233 of2005. Civil Appeal No.8838
of 20 JO seeks to assail the decision of the High Court of Delhi dated
02.05.2008 in Writ Petition No.4341 of 1999 which relied upon the earlier
c decision dated 25.01 .2008.
2. For the sake of facility we may reproduce Paragraph Nos.2 to
7 of the judgment of the High Court of Delhi dated 25.01.2008 which
cull out the factual matrix in each ofthe petitions before it. Said Paragraph
Nos.2 to 7 are as under:-
D
"2. In CWP 2511/1992 the Petitioner, Ex. L Nk Vishav Priya Singh,
has alleged that he had made complaint against the CO, 19th
Batallion Mahar Regiment of prejudicial treatment meted out by
him to the Petitioner. It has been asseverated in the Writ Petition
that initially the Brigade Commander had nominated the CO, 17th
E
Kumaon to investigate into the Petitioner's complaint. The CO of
19th Mahar through manipulation got his close friend, the CO of
18th Batallion, Punjab Regiment, detailed to investigate these
complaints. The Petitioner was ordered to proceed to 18th Punjab
Regiment. Eventually, the CO, 18th Punjab Regiment tried the
F Petitioner by SCM and convicted/sentenced him to suffer Rigorous
. Imprisonment of six months in the Civil Jail and dismissal from
service. The argument is that since the Petitioner belonged to the
19th Mahar, but was tried by SCM held by CO of 18th Punjab
Regiment, the Trial was rendered coram non judice .
... . .................................................................. It is important
G
to mention that the Petitioner had made complaints against his
·CO on 26.3 .1990; he was interviewed by the Brigade Commander
on 30.5. 1990; was asked to appear before the CO, 18th Punjab
Regiment on 15. 7.1990; was charged under Section 41(2) of the
Army Act for disobeying a lawful command given by a superior
H
UNION OF INDIA & ORS. v. VISHAY PRIYA SINGH 479
[UDAY UMESH LALIT, J.)

officer in that he, when asked to accept a letter dated 16. 7 .1990, A
requiring his presence in CO's Office for investigation in Unit
refused to do so and disobeyed verbal orders.

2.Ex. NK Prem Singh has filed CWP 3 519/1998 pleading that he
belonged to 15 INF DIV ORD Unit which assertion stands
admitted. On 17.4.1998 he was charged under Section 40(a) of B
the Army Act for using criminal force to his superior officer in
that he, at Amritsar on 20.10.1997 struck with an iron implement
on the head and legs of Company Hav. Major Clerk. The Petitioner
was sentenced to (a) reduced to ranks, (b) dismissed from service
and (c) Rigorous Imprisonment for six months in the Civil Jail. c
............................................................................The
CO, 194 Field Regiment, convened the SCM which concluded on
21.4.1998. The Respondents have pleaded that the Petitioner was
attached for disciplinary purposes with 194 Field Regiment vide
letter dated 21 . I 0.1997. In paragraph 3 of the Counter Affidavit it
has been asseverated that the 'occurrence for which the petitioner D
·was taken into custody took place oh the evening of20.10.1997.
He was taken into custody by the CO of his Unit and since his
Unit had no quarter guard, the petitioner was shifted to the quarter
guard towards of 194 Field Regiment for safe custody'. It has
further been pleaded that by letter dated 24.10.1997 the Petitioner
E
was attached with the Unit for disciplinary purposes, to remain
attached till finalisation of the investigation against him. In other
words, six months had elapsed between the incident which is the
subject matter of the SCM and the holding of the SCM.
4. CWP 6185/2002 has been filed by Ex. NK Dwarka Prasad
F
stating that he belonged to 24th Rajput Regiment. In the year
2000 he was temporarily attached to 6lst Infantry Brigade to
perform the duties as a Sahayak. By Charge-sheet dated
29.10.200 I under Section 69 of the Army Act he was accused of
committing a civil offence on 25.10.2001, that is to say, using
criminal force to a woman with an intent to outrage her modesty G
and on that very date the Commander, 65th Infantry Brigade
ordered that he be tried by an SCM. The Petitioner was tried by
the SCM between 3 .11.200 I and 5 .11 .200 I and was convicted/
sentenced (I) to be reduced to ranks (ii) to be dismissed from

H
480 SUPREME COURT REPORTS [2016) 5 S.C.R.

A service, (iii) to suffer imprisonment in civil jail for one year.
5. CWP 2433/2003 has been filed by Ex. Hav Dharambir Kanker
who had been promoted to the rank of Havaldar in the Corps of
the Military Police. After sixteen years he was posted to 4th Corps
Provost Unit at Tezpur in Assam. By Charge-sheet dated 9.6.2000
B the Petitioner was accused of making sundry accusations against
a person subject to the Army Act. On 22.6.2000 the SCM
sentenced the Petitioner (a) to be reduced to -the ranks and (b) to
be dismissed from service.
6. CWP 20233/2005 has been filed by Sepoy U.S. Mishra stating
that he was enrolled in the Indian Army in March, 1987 and that
c on 18.3.1999 he was posted to 38 defence Medical Store Depot.
By letter dated 27.3.2002 the Petitioner was attached, for
disciplinary purposes, to 38 AMSD Blocks. The Petitioner was,
along with 15 Army personnel, tried by SCM between 20.12.2004
and 4.1.2005 by CO 118 Field Regiment where the Petitioner
D was attached for disciplinary purposes. The first charge
under Section 52(f) of the Army Act was that the Petitioner
between 4.8.1999 to 6.6.200 I, with intent to defraud, improperly
altered several entries in the Issue Vouchers. The Petitioner was
found guilty and sentenced to be reduced to ranks on 4.1.2005.
The contention is that the CO of 118 Field Regiment could not try
E the Petitioner by SCM since he was only 'attached with the Unit'.
Delay in convening the SCM would also obviously come in for
consideration.
7. The facts in CWP 17622/2004 filed by Sep/Clerk S.K. Nair
and CWP 18185/2004 filed by Sep/Clerk Balwinder Singh are
F similar. In September 1998 a Court of Inquiry was ordered to
investigate into the irregular enrollment during a recruitment rally
held at Pathankot in March 1995. The Petitioners' assert that
since they were posted to 14th Sikh Regiment, only the CO of
that Unit was competent to try them by an SCM. Accordingly,
SCM by the CO of I TB ASC Centre, Gaya was legally
G
incompetent and non-est. Delay in convening the SCM would
also obviously come in for consideration."
3. Writ Petitions before the High Court of Delhi raised two
common questions of law pertaining to Summary Courts Martial
(hereinafter referred to as SCM):-
H
UNION OF INDIA & ORS. v. VISHAY PRIYA SINGH 481
[UDAY UMESH LAUT, J.]

(a) whether an SCM can be convened, constituted and completed A
by the Commanding Officer ("CO" for short) of a Unit to which
the accused did not belong and
(b) the circumstances in which the SCM can be convened rather
than a General Courts Martial ("GCM" for short), a District Courts
,Martial ("DCM" for short) or Summary General Courts Martial B
("SGCM" for short) as envisaged in Section 108 of the Army Act
1950 (hereinafter referred to as the Act).
While allowing these Writ Petitions, the High Court in Paragraphs
20, 22, 23 and 24 of its judgment observed as under:
"20. An SCM can legitimately be convened where there is grave c
and compelling cause for taking immediate action which would
be defeated if reference to a District Court Martial or Summary
General Court Martial is made. In other words, holding of an SCM
is the exception and not the rule. From the multitude.of possible
offences it is only those envisaged in Sections 34, 3 7 and 69, that D
can be tried by an SCM, further fortifying the exceptional and
extraordinary character of an SCM. We think it necessary to
underscore that it is not proper to convene an SCM merely because
the offence(s) with which a sepoy of the force is charged finds
mention in the enumeration contained in these three Sections. What
is of pre-eminence in convening an SCM is that it should be found E
imperative that immediate action is manifestly necessary.
Therefore, it is essential that this factor, viz. need to hold a trial
immediately, is articulated and reasoned out in writing in the order
convening the SCM. Failure to do so would create good reason to
quash the SCM itself. Routinely, and certainly far too frequently, F
the sentence passed by SCMs violates the spirit of Regulation
448(c) (supra) thereby taking away the sepoys' livelihood without
affording them the normal procedural protections of law.
21 ........................................................................ .
22. We shall endeavor to discharge this duty by enunciating firstly G
that it is the CO of the Unit to which the accused belongs who is
empowered to convene an SCM. This is not a empty formality or
pointless punctilio. There is an abiding and umbilical connection
between the CO and his regime. The Ranks have always looked
up at their CO as the father figure who will be as concerned with
H
482 SUPREME COURT REPORTS (2016] 5 S.C.R.

A their welfare as with their discipline. This is the only conclusion
that can be arrived at on a holistic reading of the Army Act, Rules
and Regulations.
23. As per our analysis above, the exception to th is Rule is
restricted to the case of Deserters and that too where the CO of
B the Unit to which they belong is not readily and easily available.
Secondly, an SCM must be the exception and not the Rule. It can
only be convened where the exigencies demand an immediate
and swift decision without which the situation will indubitably be
exacerbated with widespread ramifications. Obviously, where the
delinquent or the indisciplined action partakes of an individual
c character or has civil law dimensions, an SCM should not be
resorted to. Delay would thus become fatal to an SCM. Thirdly,
the decision to convene an SCM must be preceded by a reasoned
order which itself will be amenable to Judicial Review. We are
certain that once this formality is complied with, the inevitable
D disregard of the accused rights for a fair trial shall automatically
be restricted to those rare cases where the interests of maintaining
a disciplined military force far outweigh the protection of the minor
civil rights of a citizen of India.
24. In this analysis of the law in the context of the factual matrix
E spelt out in the Petitions, we set aside the verdict of the impugned
SCMs on the short ground that it was not convened, constituted
and completed by the CO of the Unit to which the Petitioner
belonged. We are fully mindful of the fact that in Vishav Priya
Singh's petition the situation is a complex one, inasmuch as the
allegations have been levelled against the CO of the Unit to which
F the Petitioner belongs. If the CO were to himself convene the
SCM it would tantamount to his being a judge in his own cause. It
has so often been quipped in the portals of the Com1 that hard
cases should not make bad law. Therefore, solution may lie in
constituting any other Court Martial, on an emergency footing if
G the circumstances so dictate. None of the Petitioners have been
charged with the most reprehensible offence conceivable in the
Armed Forces, that is of Desertion. Even if so charged it would
have to have been further established, as a pre-condition for the
holding of an SCM by the CO of the Unit to which the Petitioner
was attached, that the CO of the Unit to which the accused
H
UNION OF INDIA & ORS. v. VISHAY PRIYA SINGH 483
[UDAY UMESH LAUT, J.)

belonged was serving in a high altitude area, or overseas or engaged A
in counter-insurgency operations oractive hostilities or in Andaman
and Nicobar Islands. We clarify that since the Trial is non est, the
Respondents shall be free to proceed against the Petitioners de
novo in accordance with law."
4. During the course of its judgment, the High Court of Delhi B
considered Sections 116 and 120 of the Act a!Ong with.Note 5 below
Section 116 and Note 5 below Section 120 as well as Paragraph 381 of
the Defence Service Regulations (hereinafter referred to as the "DSR'~).
According to the High Court in cases concerning trial of deserters as
dealt with in. Paragraph 381 of the DSR, a specific exception was
carved out enabling CO of a unit other than the one to which the
c
accused belonged to convene, constitute and complete an SCM. Barring
such exception, according to the High Court, it is the CO of the unit to
which the accused belonged, who alone is empowered to convene,
constitute and complete an SCM. The High Court further held that for
convening an SCM it was imperative that immediate action was D
manifestly necessary.
5. Along with the Appeals arising from the decision of the High
Court of Delhi, Civil Appeal Nos.2547c2550 of2011 at the instance of
Original Writ Petitioners, challenging the correctness of the common
decision of the High Court of Rajasthan. at Jaipur dated 31.08.2006 · . E
dismissing their Appeals arising from dismissal of their writ petitions,
were also placed before us. Though the question as regards competence
·of the CO of a Unit other than the one to which the accused belonged to
convene, eonstitute and complete an SCM, was not raised before the
High Court of Rajasthan, the other question as to the circumstances in ·
which an SCM could be convened rather than a GCM or DCM or SGCM F
•
did arise in the matters dealt with by the High Court of Rajasthan. In
any case, we proceed.Jo consider these appeals even with regard to the
former question.
6. The factual aspects of the matters which were dealt with by the
High Court ofRajasthan, as found in its judgment relating to the present G
appellants, were as und~r:-
"In Writ Petition no.2490/1987 petitioner Roop Singh was found
by the Duty Officer running from the direction. of out-of-bound
areaatabout0030 hours in the night of 17/18 May, 1987 when he
was supposed to be on sentry duty for which he was tried by H
484 SUPREME COURT REPORTS [2016] 5 S.C.R.

A summary court martial for committing an act prejudicial to good
order and military discipline under Section 63 of the Army Act.
Before being subjected to court-martial, summary of evidence
was recorded in presence of an independent witness, the charge
and names of witness were made known to him. The petitioner
refused to accept copy of the charge-sheet and the summary of
B
evidence. During summary court-martial proceedings, in the
circumstances, charge was read over to him in presence of two
witnesses. On completion of the proceedings, he was sentenced
to one year's rigorous imprisonment which was later reduced to
six months' and dismissed from service on 14.6.1987. From the
c reply of the respondents it appears that the incident had taken
place when the unit was posted 1.5 kms. from the border during
'Operation Trident'. An incident had occurred in the neighbourhood
in which a woman had been reportedly raped by some army
personnel and in the circumstances, instructions had been issued
declaring the adjoining villages as 'out-of-bound' area. In violation
D
of the instructions, the petitioner went to the said area, he was
seen in the midnight running from that direction. He took the plea
that he had gone to that side to know the password. The reply
states that earlier two red ink entries had been made against the
petitioner.(i) for absence without leave under Section 39(a) of
E the Army Act; and (ii) for committing act prejudicial to good order
and military discipline (consuming liquor) under Section 63 of the
Army Act. At the relevant time, he had four years and ten months
service to his credit including one year as a recruit.
Jn Writ Petition No.5506/1994, petitioner Di lip Singh was enrolled
F in the Army in 1986 as Sepoy (Nursing Assistant). I-le was charged
with absence without leave from the unit lines from 1600 to 2200
hours on 1.8.1993 and using criminal force to his superior officers
namely Sub./NA 1-1.N.Gautam and Hav/NA Shawale Babasahab
Shrimuri whom he allegedly assaulted by hands on their face and
chest. Summary of evidence was recorded. He declined to cross-
G examine and accepted his guilt. He was supplied copy of charge-
sheet, summary of evidence. At the stage of summary court-
martial, he was again apprised of the charges and consequences
of his pleading guilty. The petitioner again admitted his guilt. He
was punished with three months' rigorous imprisonment and
H dismissed from service on 7.8.1993. He preferred appeal without
UNION OF INDIA & ORS. v. VISHAY PRIYA SINGH 485
[UDAY UMESH LAUT, J.]

any success. A
In Writ Petition No.5689/1994, petitioner Bhagwan Sahai was
enrolled as Sepoy in the Army on 8.1979. While he was posted
with Det.515 ASC Bn attached with 5011 ASC Bn(MT), he was
sanctioned 42 days annual leave from 16.3.1992 to 26.4.1992. He
failed to report on 27.4.1992. He had been informed about refusal B
of his request for extension ofleave. He ultimately submitted joining
on 2.2.1993 after remaining wilfully absent from duty for 302 days.
Charge-sheet was served and summary of evidence was recorded
in course of which he was afforded opportunity to cross-examine
witness and examine his own in defence. He declined to cross-
examine the witnesses and make any statement in his defence.
c
Instead, he admitted his guilt. Summary Court Martial was
thereafter held. Charge was explain~d and papers were supplied,
and he was provided with 'friend of accused' and informed of the
consequences of pleading guilty. After going through the papers
supplied to him, he admitted his guilt which was recorded. He D
was declared deserter and held guilty of the charge under Section
38( I) of the Army Act and dismissed from service on 8.4.1993.
He preferred appeal which was rejected on 26. 7 .1994.
In Writ Petition No.6134/1994, petitionerChatar Singh was enrolled
in the Army on 28.9.1976. He proved to be the habitual absentee. E
He remained absent from duty without leave for 12 days from
1.1.1982 to 2.11.1982 for which he was awarded punishment of
21 days rigorous imprisonment in military custody on 6.12.1982.
He overstayed leave without sufficient cause for 05 days from
8.10.1991 to 13.10.1991 for which he was awarded penalty of
reduction in rank after Summary Court Martial. The punishment ·F-
was set aside on technical ground and the authority was advised
to hold de novo proceeding. After fresh proceeding, the same
punishment of reduction in rank was awarded on 24.10.1992. He
again remained absent without leave for 16 days from 28.10.1992
i.e. within four days of the above order of punishment. Earlier G
too, he had overstayed leave for 02 days from 13. 7 .1992 to
14.7.1992, and remained absent without leave from 19.8.1992 to
01.09 .1992 for which he was subjected to court martial. In course
of the summary court marital proceeding he pleaded guilty. He
had been told about nature of the charge and consequences of
H
486 SUPREME COURT REPORTS [2016] 5 S.C.R.

A pleading guilty and difference in procedure in case of pleading
guilty. He was found guilty of the charge under Section 39 (a) and
(b), and dismissed from service on 5.1.1993. He preferred appeal
which was rejected on 28.6.1994."
7. The submissions advanced before the High Court ofRajasthan
B were rejected by the High Court after considering the relevant statutory
provisions. It was observed that the rules in question not only contained
sufficient safeguards but also ensured fair degree of transparency in the
proceedings. It was observed:-
"lf the decision of the commanding officer under Rule 22 to try
c an accused by summary Court-martial depends on the nature of
the charge, evidence collected at the stage of hearing on the point
of charge, it is clear that trial by summary Court-martial depends
on facts of the particular case, and ifthat is so, the sub-mission of
the counsel that the choice of trial by summary Court-martial
depends on status of the offender and not on nature of the offence
D must be rejected. This was the thrust of the case of the petitioner.
We find no substance therein"
8. Civil Appeal CAD Nos.13803 and 18038 of2015, atthe instimce
of Union of India seek to challenge common judgment and order dated
13.12.2015 passed by the Armed Forces Tribunal, Kolkata in TA Nos.6
E and 8 of 2011. Though one of the questions raised was relating to the
competence of the CO of the Unit where the accused were later sent
on attachment, to convene, constitute and complete the SCM, the Tribunal
found on facts that the offence in respect of a major charge was not
proved. It however found that the charge in respect of a minor offence
F stood proved and thus awarded punishment of seven days' detention
with consequential directions protecting their retiral benefits.
9. In Civil Appeal No.6679of2015 decision of the High Court of
Rajasthan dated 24.01.2014 dismissing Civil Writ Petition No.401 of2014
affirming the decision of the Armed Forces Tribunal, Jaipur in dismissing/
G rejecting the challenge to the sentence of dismissal from service and
rigorous imprisonment awarded by an SCM, is under challenge before
this Court. In this case the challenge was negated on facts though one
of the questions raised pertained to the competence of the co of the
attached Unit, to convene, constitute and complete the SCM.
I 0. In these appeals, by order of this Cou.rt dated 12.11.2014, Mr.
H
UNION OF INDIA & ORS. v. VISHAY PRIYA SINGH 487
[UDAY UMESH LAUT, J.]

Arun Mohan and Ms. Jyoti Singh, learned Senior Advocates were A
appointed amicus curiae to assist this Court. We are deeply grateful
for the assistance rendered by them. It was submitted by Mr. Arun
Mohan, learned Amicus Curiae that absence of an appeal from the
decision of an SCM did weigh with the High Court of Delhi but that
factor would stand modified with the enactment of the Armed Forces
B
Tribunal Act, 2007 which came into force on and with effect from
16.02.2008. He further submitted that Note 5 below Section 120
considered by the High Court was already deleted vide Government
Order dated 28.01.200 I. In his submission, the sentence appearing in
Paragraph 20 of the judgment of the High Court, "From the multitude of
possible offences it is only those envisaged in Sections 34, 37 and 69, c
that can be tried by an SCM, further fortifying the exceptional and
extraordinary character of an SCM" was not correct. Ms. Jyoti Singh,
learned Amicus Curiae submitted that SCM was available only in the
Army Act and not in the Air Force Act or in the Navy Act, that in
SCMs there was less observance of due process of law even though
D
the procedure contained in the Statute was in tune with concept of fair
trial, that the quantum of punishment awarded in SCMs was hugely
disproportionate to the offences and that the provisions enabling convening
of an SCM ought to be used in rarest of the rare cases. In her
submission an accused should be tried by CO of the parent unit of the
accused. Mr. R. Balasubramanian appearing for the Union of India E
submitted that there was nothing in the Act to suggest that it is only the
CO of a Unit to which the accused belonged, who alone could validly
convene, constitute and complete an SCM and according to him even a
CO of a Unit to which the accused was attached or later sent on
attachment would have requisite competence. Learned Counsel appearing
F
for the respondents led by Mrs. Rekha Patti, learned Senior Advocate
supported the view taken by the High Court of Delhi. In matters arising
from the High Court of Rajasthan, learned counsel appearing for the
appellants led by Ms. Aishwarya Bhati, learned Advocate submitted that
.the view taken by the High Court of Rajasthan was not correct.
11 . Chapter X of the Act deals with "Courts Martial" and the G
relevant Sections are:-
"108. Kinds of courts- martial. -For the purposes of this Act
there shall be four kinds of courts- martial, that is to say,-
(a) general courts- martial;
H
488 SUPREME COURT REPORTS [2016) 5 S.C.R.

A (b) district courts- martial;
(c) summary general courts- martial; and
(d) summary courts- martial.
109. Power to convene a general court- martial.- A general
court- martial may be convened by the Central Government or
B the Chief of the Army Staff or by any officer empowered in this
behalf by warrant of the Chief of the Army Staff.
110; Power to convene a district court- martial. -A district
court- martial may be convened by an officer having power to
convene a general court- martial or by any officer empowered in
c this behalf by warrant of any such officer.
112. Power to convene a summary general court- martial. -
The following authorities shall have power to convene a summary
general court- martial, namely,-
(a) an officer empowered in this behalf by an order of the
D Central Government or of the Chief of the Army Staff;
(b) on active service, the officer commanding the forces in the
field, or any officer empowered by him in this behalf;
(c) an officer commanding any detached portion of the regular
Army on active service when, in his opinion, it is not practicable,
E with due regard to discipline and the exigencies of the service,
that an offence should be tried by a general court- martial.
113. Composition of general court- martial.- A general court-
martial shall consist of not less than five officers, each of whom
has held a commission for not less than three whole years and of
whom not less than four are of a rank not below that of captain.
F
114. Composition of district court-martial. -A district court-
martial shall consist ofnot less than three officers, each of whom
has held a commission for not less than two whole years.
115. Composition of summary general court-martial. -A
summary general court- martial shall consist of not less than three
G officers.
116. Summary court-martial. -(I) A summary court- martial
may be held by the commanding officer of any corps, department
or detachment of the regular Army, and he shall alone constitute
the court.
H
UNION OF INDIA & ORS. v. VISHAY PRIYA SINGH 489
[UDAY UMESH LAUT, J.]

(2) The proceedings shall be attended throughout by two other A
persons who shall be officers or junior commissioned officers or
one of either, and who shall not as such, be sworn or affirmed.'
118. Powers of general and summary general courts-
martial. -A general or summary general court- martial shall have
power to try any person subject to this Act for any offence B
punishable therein and to pass any sentence authorised thereby.
119. Powers of district courts-martial. -A district court- martial
shall have power to try any person subject to this Act other than
an officer or a junior commissioned officer for any offence made
punishable therein, and to pass any sentence authorised by this
Act other than a sentence of death, transportation, or imprisonment
c
for a term exceeding two years: Provided that a district court-
martial shall not sentence a warrant officer to imprisonment.
120. Powers of summary courts-martial.-(!) Subject to the
provisions of sub- section (2), a summary court- martial may try
any offence punishable under this Act. D
(2) When there is no grave reason for immediate action and
reference can without detriment to discipline be made to the officer
empowered to convene a district court- martial or on active service
a summary general court- martial for the trial of the alleged
offender, an officer holding a summary court- martial shall not try E
withoufsuch reference any offence punishable under any of the
sections 34, 37 and 69, or any offence against the officer holding
the court.
(3) A summary court-martial may try any person subject to this
Act and under the command of the officer holding the court, except
F
an officer, junior commissioned officer or warrant officer.
(4) A summary court-martial may pass any sentence which may
be passed under this Act, except a sentence of death or
transportation, or of imprisonment for a term exceeding the limit
specified in sub-section(5).
G
(5) The limit referred to in sub-section (4) shall be one year ifthe
officer holding the summary court-martial is of the rank of
lieutenant colonel and upwards, and three months if such officer
1 Below Section 116 following Note 5 appears in the Manual" "Note 5:- See Regs

Army para 381 for the circumstances under which a CO of a different unit may hold
the trial by SCM of a person subject to AA". H
490 SUPREME COURT REPORTS [2016] 5 S.C.R.

A is below that rank.~"
12. Provisos to Sub-Rules 2 and 3 of Rule 22 in Section I of
Chapter V of the Army Rules 1954 (hereinafter referred to as the
"Rules") under the sub-heading "Power of Commanding Officers" also
deal with issues concerning trial by SCM. Said Rule 22 is as under:
B "22. Hearing of Charge. -
(1) Every Charge against a person subject to the Act shall be
heard by the Commanding Officer in the presence of the accused.
The accused shall have full liberty to cross-examine any witness
against him, and to call such witness and make such statement as
C may be necessary for his defence:
Provided that where the charge against the accused arises as a
re~ult of investigation by a Court of inquiry, wherein the provisions
ofrule 180 have been employed with in respect of that accused,
the commanding officer may dispense with the procedure in sub-
D rule(l ).
(2) The commanding officer shall dismiss a charge brought before
him 1f, in his opinion the evidence does not show that an offence
under the Act has been committed, and may do so if, he is satisfied
that the charge ought not to be proceeded with:
E
Provided that the commanding officer shall not dismiss a charge,
which he is debarred, to try under sub-section (2) of Sec. 120
without reference to superior authority as specified therein.
(3) After compliance of sub-rule (I), if the commanding officer
is of opinion that the charge ought to be proceeded with, he shall
F within a reasonable time-
(a) Dispose of the case under section 80 in accordance with the
manner and form in Appendix III; or
(b) Refer the case to the proper superior military authority; or
G (c) Adjourn the case for the purpose of having the evidence
reduced to writing; or
2
Following Note 5 appearing below Section 120 in the Manual was deleted by
Government Order dated 28.8.200 I:-·· A NCO or a sepoy cannot be attached to
another unit for the purpose of his trial by SCM except as provided in Regs Army
H para381''.
UNION OF INDIA & ORS. v. VISHAY PRIYA SINGH 491
[UDAYUMESH LAUT, J.]

(d) If the accused is below the rank of warrant officer, order his A
trial by a summary court-martial:
Provided that the commanding officer shall not order ti:ial by a
summary court-martial without a reference to the officer
empowered to convene a district court-martial or on active service
a summary general court-martial for the trial of the alleged offender B
unless-
(a) The offence is one which he can try by a summary court-
martial without any reference to that officer; or
(b) He considers that there is grave reason for immediate action
and such reference cannot be made without detriment to discipline. c
(4) Where the evidence taken in accordance with sub-rule (3) of
this rule discloses an offence other than the offence which was
the subject of the investigation, the commanding officer may frame
suitable charge (s) on the basis of the evidence so taken as well
as the investigation of the original charge." D
13. In Section 2 of the Rules under the heading "General and
District Courts Martial" and under sub-heading "Convening of Court",
Rules 39 and 40 of the Rules are as under: ·
"39. Ineligibility and disqualification of officers for court-
E
martial.-
( I) An officer is not eligible for serving on a court-martial ifhe is
not subject to the Act.
(2) An officer is disqualified for serving on a general or district
court-martial ifhe-
F
(a) Is an officer who convened the court; or
(b) Is the prosecutor or a witness for the prosecution; or
(c) Investigated the charges before trial, or took down the
summary of evidence, or was a member of a court of inquiry
respecting the matters on which the charges against the accused
G
are founded, or was the squadron, battery, company, or other
commander, who made preliminary inquiry into the case, or
was a member of a previous court-martial which tried the
accused in respect of the same offence; or
(d) ls the commanding officer of the accused, or of the corps
H
492 SUPREME COURT REPORTS [2016] 5 S.C.R.

A to which the accused belongs; or
(e) Has a personal interest in the case.
(3) The provost-marshal or assistant provost-marshal is disqualified
from serving on a general court-martial or district court-martial.
40. Composition of General Court-martial. -
B (I) A general com1-martial shall be composed, as far as seems
to the convening officer practicable, of officers of different corps
or departments, and in no case exclusive of officers of the corps
or department to which the accused belongs.
(2) The members ofa court-martial for the trial ofan officer shall
c be of a rank not lower than that of the officer unless, in the opinion
of the convening officer, officers of such rank are not (having due
regard to the exigencies of the public service) available. Such
opinion shall be recorded in the convening order.
(3) In no case shall an officer below the rank of captain be a
D member of com1-martial for the trial of a field officer."
14. In Section 3 of the Rules, Rule I 09 deals with swearing or
affinning of Court and interpreter which Rule also sets out the concerned
forms of oath and affirmation. Rule 133 dealing with review of
proceedings of an SCM is as under:-
E "133. Review of proceedings. - The proceedings of a
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 authorised to
deal with them in pursuance of section 162. After review by him,
they will be returned to the accused person's corps for preservation
F
in accordance with sub-rule (2) of rule 146."
15. In Section 4 of the Rules dealing with "General Provisions"
applicable to all kinds of Courts Martial, Rule 146 of the Rules states as
under:-
G "146. Preservation of proceedings. -
(1) The proceedings of a court-martial (other than a summary
court-martial) shall, after promulgation, be forwarded as
circumstances require, to the office of the Judge-Advocate
General, and there preserved for not less, in the case of a general
H court-martial, than seven years, and in the case of any other court-
UNION OF INDIA & ORS. v. VISHAY PRIYA SINGH 493
[UDAY UMESH LALIT, J.]

martial, than three years. A
(2) The proceedings of a summary court-martial shall be preserved
for not less than three years, with the records of the corps or
department to which the accused belonged."
16. Lastly, we may also quote Regulations 9 and 381 of the DSR
which are to the following effect:- B

"9.Commanding Officer.- Except where otherwise expressly
provided in these Regulations, the Commanding Officer of a person
subject to the Army Act is either:-
( a) The officer who has been appointed by higher authority to be c
a commanding officer while able effectively to exercise his power
as such, or
(b) Where no appointment has been made, the officer who is, for .
the time being, in immediate command of -
(i) The unit to which the person belongs or is attached to, or D
(ii) Any detachment or a distinct sizeable separate portion ofa
unit with which the person is for the time being serving.
and in respect of which it is the duty of such officer, under
these Regulations or by the custom of ;the service, to discharge
E
the functions of a Commanding Officer."
381- Trial of Deserters - Under normal circumstances trial by
summary court martial for desertion will be held by the CO of the
unit of the deserter. However, when a deserter or an absentee
from a unit shown in column one of the table below surrenders to,
or is taken over by, the unit shown opposite in column two and is F
properly attached to and taken on the strength of the later unit he
may, provided evidence, particularly evidence of identification, is
available with the latter unit, be tried by summary court-martial
by the OC of that unit when the unit shown in column one is
serving in high altitude area or overseas or engaged in counter- G
insurgency operation or active hostilities or Andaman and Nicobar
Islands.
In no circumstances will a ;man be tried by summary court-martial
held by a CO other than the CO of the unit to which the man
properly belongs a unit to which the man may be attached H
494 SUPREME COURT REPORTS [2016] 5 S.C.R.

A subsequent to commission of the offence by him will also be a
unit to which the man properly belongs.
TABLE

Column one Column two
B

Armoured Corps Regiment .. Armoured Corps Centre and School

A unit of Artillery .. Regimental Centre Concerned

c A Unit of Engineers concerned .. Headquarters Engineers Group,

A unitof Signals .. Signal Training Centre, Jabalpur

Infantry battalion .. Regimental Centre concerned

D Gorkha Rifle battalion concerned .. Gorkha Regimental Centre

ASCunit .. ASC Centre concerned

RV Crops .. RVCCentre
E

This rule is not intended to 1imitthe powerofany convening officer,
who at his discretion may order trial by General, Summary General,
or District Court Martial at any place, if such a course appears
desirable in the interest of discipline."
F
17. Chapter X of the Act after setting out four kinds of Courts
Martial, deals with issues like who is empowered to convene such Courts-
Martial, composition of such Courts Martial and the powers of such
Courts-Martial. According to Section 118, a GCM has power to try any
person subject to the Act for any offence punishable therein and to pass
G any sentence authorized by the Act. Reading of Section 112 shows that
while on active service an SGCM can be convened if having due regard
to discipline and exigencies of the service, satisfaction is arrived at that
it would not be practicable to try the offence by a GCM. According to
Section 118, such SGCM is again empowered to try any person subject
H to the act for any offence punishable therein and to pass any sentence
UNION OF INDIA & ORS. v. VISHAY PRIYA SINGH 495
[UDAY UMESH LAUT, J.]

authorized thereby. Section 119 of the Act states that in respect of any A
person other than an officer, Junior Officer, a DCM can also be convened
but Section 119 limits the power of punishment, in that a DCM cannot
pass a sentence of death, transportation or imprisonment for a term
exceeding two years. Further, a DCM, cannot sentence a Warrant Officer
to imprisonment. Sections I 09, 112 'and 119 confer power to convene
B
such GCM, SGCM and DCM respectively upon the Authorities mentioned
in the respective sections. The composition ofGCM, SGCM and DCM
are again set out in Sections 113, 115 and 114 respectively.
18. As regards SCM; Section 120 stipulates that an SCM ~nay try
any offence punishable under the Act but sub-Sections (4) and (5) limit
the award of sentence. According to sub-Section (4 ), an SCM can pass
c
any sentence which may be prescribed under the Act, except a sentence
of death or transportation or of imprisonment of a term exceeding the
limit specified in sub-Section (5). Sub-Section (5) of Section 120, then
prescribes the limit to the level of one year, if the officer holding the
SCM is of the rank.of Lieutenant Colonel and upwards and at the level D
of three months if the officer holding the SCM is below the rank of
Lieutenant Colonel.
19. Section 116 of the Act empowers the CO of any Corps,
Department and Detachment of the regular Army to hold an SCM and
specifically states that he alone shall constitute the Court. Sub-Section E
(2) then prescribes that the proceedings shall, however, be attended
through-out by two other persons specified therein. However, such
persons are not to be sworn or affirmed. Unlike Sections 113, 115 and
114, where composition of the concerned Court-Martial is prescribed
to consist of atleast three officers, it is the CO alone who coll'Stitutes the
Court under Section 116 in respect of SCM. Further, under Rules 39 F
and 40 of the Rules, CO of the accused, or of the Corps to which the
accused belongs is specifically disqualified for serving on a GCM or
DCM and composition of a GCM ought to compose of officers of
different corps or departments. However no such restriction applies to
SC Ms and in fact the CO himself must constitute the Court. The Act G
has thus given drastic power to one single individual, namely, the CO
who alone is to constitute the Court. No doubt, this power comes with
restrictions insofar as the power to award sentence is concerned in
terms of sub-Sections (4) &(5) of Section 120. However even with
such restrictions the power is quite drastic. The reason for conferment
H
496 SUPREME COURT REPORTS [2016] 5 S.C.R.

A of such power is obvious that in order to maintain discipline among the
soldiers and units, the CO must have certain special powers, for it is the
discipline which to a great extent binds the unit and makes it a co-hesive
force.
20. The High Court of Delhi was therefore completely correct in
B observing that such power must be exercised rarely and when it is
absolutely imperative that immediate action is called for. The satisfaction
in that behalf must either be articulated in writing or be available on
record, specially when the matter can be considered on merits by a
tribunal, with the coming into force of the Armed Forces Tribunals Act,
2007.
c
21. We now deal with the question as to what kind of offences
can be tried by an SCM. An SCM can try any offence punishable under
the Act by virtue of sub-Section (I) of Section 120 but this general
principle is subject to the provisions appearing in sub-Section (2) of Section
120. Sub-Section (2) of Section 120 deals with some offences in
D respect of which certain restrictions are applicable. The offences so
stipulat~d are those punishable under Sections 34, 37 and 69 of the Act
or those against the Officer holding the Court. Apart from Sections 34,
37 and 69 of the Act, there are various other provisions where different
kinds of offences are spelt out and dealt with. For example in Chapter
E VI of the Act, Section 38 deals with offence of desertion, Section 39
deals with offence of absence without leave, Section 40 deals with striking
or threatening a Superior Officer, Section 41 deals with disobedience to
the Superior Officer, Section 42 deals with insubordination and so on.
Out of multitude of such offences, only Sections 34, 37 and 69 are
mentioned in sub-Section (2) in respect of which restrictions stipulated
F in sub-Section (2) apply. Additionally, one more category, namely "any
offence against the officer holding aCourt" is also specified. Such of
the offences as are directed against the officer holding the Court, may
include those under Sections 40, 41, 42 and so on, depending upon facts
of the case ..
G 22. Sub-Section (2) of Section 120 prescribes that in respect of
such stipulated .offences, in normal circumstances, an SCM shall not try
the accused without making a reference to the officer who is otherwise
empowered to convene a DCM in regular course or an SGCM while on
active service. It further states that if there is no grave reason for
H immediate action, such reference to the concerned officer must be made
UNION OF INDIA & ORS. v. VISHAY PRIYA SINGH 497
[UDAY UMESH LAUT, J.]

and no person should be tried without such reference in respect of any A
offence so stipulated i.e. those under Sections 34, 37 and 69 of the Act
or those against the officer holding the Court. . However no such
restriction applies in cases other than Sections 34, 37, and 69 oftheAct
or offences against the officer holding the Court. This provision thus
categorizes the offences in two compartments i.e. those which require a
B
reference and those which do not. This distinction is also noticeable
from sub Rule 2 of the Rule 22 which mandates that CO shall not dismiss
a charge in respect of offences which require a reference to superior
authority in terms of Section 120 (2) of the Act. We must therefore
accept the submission that the sentence appearing in Paragraph No.20
of the judgment of the High Court to the effect that only offences under c
Sections 34,37 and 69 of the Act could betried by an SCM is not correct.
23. The aforesaid provision in Section 120(2) requiring a reference
to the superior authority which thought is again echoed iii proviso to ·
Rule 22 (3) of the Rules, is a salutory provision and a check on the
exercise of drastic power conferred upon a CO and must be scrupulously D
observed. A case for non-adherence to this requirement must be made
out on record and any deviation or non observance of statutory
requirements must be viewed seriously. Offences under Sections 34, 3 7
and 69 of the Act are special categories or kinds of offences where a
reference to the officer empowered to convene a DCM or an SGCM is
considered imperative unless there are grave reasons for immediate E
action. Similarly, the offences against the officer holding the Court,
where that officer could possibly "be a judge in his own cause", are also
put at the same level and similar reference under sub-Section (2) ought
to be made. The exercise of power in seeking such reference and
consequent consideration in respect thereof must be in keeping with the F
seriousness attached in respect of these offences.
24. We now turn to the core question namely as to which CO is
competent to convene, constitute and complete the SCM. Is it CO of
the Unit to which the accused belonged or CO of the Unit to which he
was attached or came to be attached. In this connection there could G
possibly be three kinds of situations.
a. An accused committing an act constituting an offence while he
was part of his regular Unit is tried by SCM by his own CO i.e.,
the CO of the Unit itself.
H
498 SUPREME COURT REPORTS (2016] 5 S.C.R.

A b. An accused while being on attachment to a different Unit
commits an act constituting an offence and is therefore tried by
SCM by the CO of such Unit to which he was sent on attachment.
In such cases the offence itself would be committed while the
accused was on attachment.
B c. An accused committing an &ct constituting an offence while
being part of his regular Unit is later sent on attachment to a
different Unit and is then tried by SCM by CO of such Unit i.e.,
Unit where he was sent on attachment after the offence was
committed.

c 25. Unlike Rule 39 which specially disqualifies CO of the accused
or of the Corps to which the accused belongs from serving on a GCM or
DCM, there is no embargo on CO of the Unit to which the accused
belongs being the Court for the purposes of trying the accused by SCM.
The first of the aforesaid three categories of offences mentioned above
can therefore certainly be tried by the CO of the Unitto which he belongs.
D If the act constituting an offence is linked to the Unit in question when
such act was committed, in respect of matters falling in the second
category, the offence could logically be tried by the CO of the Unit to
which the accused was attached. Could the accused then insist that the
CO of his parent unit alone must try him by SCM. Can it be said, his
E erstwhile connection with the parent unit must be taken to be the governing
factor of such extent that the normal linkage of the Unit and the offence
in question must stand displaced. Our answer is no. If requirements of
Section 120(2) are otherwise complied with and satisfied, the CO of
such attached Unit is competent to convene, constitute and complete
the SCM. It is in his unit that the offence in question was committed and
F in that sense he would be in seisin of the matter. The CO of the parent
unit would have nothing to do in the matter.
26. The third category however raises some concern. There could
be two sub categories under this. In the first, the commission of offence
itself may come to knowledge, though the offence was committed in the
G parent unit, after the accused was sent on attachment. Secondly, which
is the normal course adopted in the matters under consideration, an
· accused may be sent on attachment to another unit only for being tried
by SCM by the CO of that other unit. The commission of an act
constituting an offence being connected with the erstwhile unit and
having no connection with the unit where he is later sent on attachment,
H
UNION OF INDIA & ORS. v. VISHAY PRIYA SINGH 499
[UDAY UMESH LAUT, J.]

normally the former of the units in question would be appropriate. But A
the matter need not be considered and decided purely from the
perspective of such connection or nexus with the former or the erstwhile
unit.
27. In a given case, the offence itself may have been committed
against the CO of the former unit or the CO may be an important witness B
reflecting on matters in issue or for the purposes of discipline the accused
may be required to be moved out of the unit in question. In some cases
the presence of the accused even during the conduct ofSCM in the Unit
in question may be detrimental to maintenance of discipline. The situations
could be varying in degree or context and the concept of propriety and
expediency may demand that the accused be sent on attachment to and
c
tried in a different unit. Paragraph 24 of the judgment of the High Court
of Delhi shows its concern in that behalf and the fact that the High
Court was alive to s°uch complexities. But on a view that the CO of the
unit other the one to which the accused belonged would be incompetent,
the High Court was persuaded to accept the submission advanced on D
behalf of the accused.
28. We may gainfully refer to Regulation 9 of the DSR at this
stage. Under this regulation the CO could be either:-
a) one who has been appointed by higher authority to be CO to
effectively exercise powers vested in a CO; or E
b) one who is in immediate command of the unit to which the
person is belongs; or
c) one who is in immediate command of the unit to which the
person is attached to; or
F
d) one who is in immediate command of any detachment or distinct
sizeable separate portion of a unit with which the person is for the
time being serving.
29. Regulation 9 with its width and amplitude can possibly cover
any situation so that there is no room to express any lament as was done G
in aforesaid Paragraph 24. If the concept of fairness in the procedure
demands, as is expressly set out in the form of Rule 39 of the Rules that
CO of the Unit to which an accused belongs is disentitled to serve on a
GCM or DCM, it would be complete contradiction to insisfupon the CO
of the Unit to which the accused belongs, regardless of the status and
H
500 . SUPREME COURT REPORTS [2016] 5 S.C.R.

A role of such CO in connection with the offence, to be the only authority
entitled to convene an SCM. Sections 116 and·J20 do not admit of any
such construction and in the absence of any express provision to the
contra!)', Regulation 9 can certainly be the guiding factor. The expression
"Commanding Officer" in Section 116 is not qualified by any explanation
that he must be the CO of the Unit to which the accused belongs.
B
RegulatiOn 9, in our view, affords such explanation and is completely
consistent with and subserves the basic ingredients of fairness and
impartiality.
30. Regulation 381, in the context of trial of Deserters is a special
provision. If the Unit to which the accused belongs is serving in high
c attitude areas or overseas or is engaged in counter-insurgency operations
or active hostilities, the accused could be tried in the manner laid down
therein by the CO of the Units specified therein. But Regulation 381 is
not the only exception as found by the High Court and the finding that in
all circumstances, other than those dealt with by Regulation 381, it is the
D CO of the Unit to which the accused belongs who alone is competent to
convene, constitute and complete an SCM, is incorrect.
31. It is noticeable that the expression "to which the accused
belongs" finds mention in Rule 39 of the Rules as dealt with herein
above in the context of GCM or DCM but not with respect to SCM.
E Under Rule 133 of the Rules the proceedings of an SCM must immediately
on promulgation be forwarded through the Deputy Judge Advocate
General of the command "in which the trial is held". On the other hand,
under Rule 146 of the Rules the proceedings of an SCM must be
preserved with the records of the corps or the department "to which the
accused belonged". It is thus possible and well contemplated that the
F trial by SCM may be held in a unit other than the one to which the
accused belongs". Rules 39 and 146 further disclose that wherever the
statute wanted to specify the unit or department "to which the accused
belonged" it has done that with great clarity. No such qualification is
specified in respect the CO who is to convene, constitute and complete
G the SCM.
32. Lastly, we must note that Note 5 below Section 120 as
appearing in the Manual could possibly point that an NCO or a sepoy
could not be attached to another unit for trial by SCM except as provided
in Regulation 381 of the DSR. Without going into the question ofefficacy
H and force of such Note below a Section in an Act enacted by the
UNION OF INDIA & ORS. v. VISHAY PRIYA SINGH 501
[UDAY UMESH LALIT, J.]

Parliament, for the present purposes it is sufficient to notice that this A
Note stood deleted on and with effect from 28.08.2001.
33. In the premises, we hold that it is not imperative that an SCM
be convened, constituted and completed by CO of the Unit to which the
accused belonged. It is competent and permissible for the CO of the
Unit to which the accused was attached or sent on attachment for the B
purposes of trial, to try such accused by convening, constituting and
completing SCM in a manner known to law i.e. strictly within the confines
of Sections 116 and 120 of the Act and other Statutory provisions. We
fully endorse and affirm the view taken by the High Court that SCM is
an exception and it is imperative that a case must be made out for
immediacy of action. The reasons to convene an SCM must be followed
c
by well articulated reasons or the record itself must justify such resort.
34. Before parting, we must mention recommendations of a
Committee of Experts appointed by the Defence Minister to review
service and pension matters including strengthening of institutional
mechanisms related to redressal of grievances, which recommendations D
appear at page 172 of the Ministry of Defence Report of2015 in following
terms:-
" ...... the Committee recommends that the environment may be
sensitized that the provision ofSCM should be used sparingly and
exceptionally and preferably only in ope~ational areas where resort E
to a regular trial is not practicable or wtien summary/administrative
action would not meet the requirements of discipline. It may be
emphasized that SCM is an exception and not the rule and was
not even originally meant to be a peace-time provision or regular
recourse. In the times to come, the desirability of even having F
such a provision on the statute book may be examined with the
suitability of a replacement by amore robust syo;tem meeting the
aspirations of judiciousness and Constitutional norms. We may
however caution that we are not, in any manner, underestimating
the requirement of discipline in the uniformed services but are
simply stating that SCM may not be treated as a routine recourse G
when other effective tools of enforcing discipline are available."
These recommendations sum up the approach that needs to be
adopted, quite well.
35. Since the High Court of Delhi had allowed Writ Petitions on
H.
502 SUPREME COURT REPORTS [2016] 5 S.C.R.

A the short ground of competence of a CO of a Unit other than the one to
which the accused belonged, without going into the merits of the matters
before it, while setting aside the view in respect of that point and allowing
the appeals preferred by Union oflndia, namely Civil Appeal Nos.8360
of 2010, 8830-8835 of 2010 and 8838 of 2010, we remit the matters
back to the High Court. The concerned Writ Petitions stand restored on
B
the file of the High Court for consideration on merits.
36. The matters coining from the High Court ofRajasthan, namely
Civil Appeal Nos.2547-2550 of201 land Civil Appeal No.6679 of2015
stand on a different footing. In these appeals challenge on merits was
negated but one of the issues raised was regarding competence of CO
c of a unit other than the one to which the accused belonged, to convene
constitute and complete SCM. Having answered that question, nothing
further needs to be done, especially when the challenge stood negated
on merits. We therefore affirm the view taken by the High Court and
dismiss these appeals.
D 37. Similarly, Civil Appeal CAD Nos.13803 and 18038 of2015
where the major offences were held not to have been proved on facts
· also deserve to be dismissed. With the issue regarding competence of
the CO having been answered hercinabove, nothing survives in the matters
and these appeals are dismissed.
E 38. No order as to costs.
Kalpana K. Tripalhy Appeals disposed of.