No 118 of 1968
Petition under article 32 of the Constitution of India for enforcement of the fundamental rights
B Datta for the petitioner
CK Daphtary Attorney General BD Sharma and RH Dhebar for respondents Nos 1 to 5
The Judgment of the Court was delivered by Ramaswami J
In this case the petitioner has obtained a rule from tiffs Court asking the respondents to show cause why a writ in the nature of certiorari should not be issued under Art 32 of the Constitution for calling up and quashing the proceedings before the General Court Martial No JAG 2666 67AA of 1965 from the Judge Advocate General Army branch Army Headquarters whereby the petitioner was found guilty of charges under section 304 and section 149 of the Indian Penal Code and sentenced to a period of 6 years rigorous imprisonment and cashiering
Cause has been shown by the Attorney General on behalf of the Union of India and other respondents to whom notice of the rule was ordered to be given
The petitioner was commissioned in the Indian Army in February 1964 and was posted as Second Lt
EC 55461 and was attached to 397 Engineering Construction Equipment Company in December 1964
In August 1965 the petitioner was posted as a Quarter Master and was transferred to Madras along with the Company
It appears that Wednesday September 1 1965 was to be celebrated as the Raising Day of the Unit when Games and Sports entertainment and Bara Khana evening dinner were to be arranged
In this celebration all officers and other ranks of the Unit had to take some part and a number of other Army officers were to be received and entertained on behalf of the Unit
At the variety entertainment Punjabis and Garhwalis took part and each party was given free one bottle of rum
But it is alleged that the Purbias were not given an opportunity to put up their show and were not given free a bottle of rum
They were consequently aggrieved for this reason
The variety entertainment concluded at about 1900 hours at the end of which rum was issued to the jawans
The bara khana was to commence at 2000 hours
As there was a delay in the assembly of the men at the dining hall Maj
Agarwal sent the petitioner to the lines to find out the cause for the delay and to get the men quickly
The petitioner went to the lines and it is alleged that the accused used filthy language while addressing the men
Some of the Purbias including the deceased Spr
Bishwanath Singh protested 180 against the use of such language
Though the petitioner expressed regret the men were not satisfied
A few of the Sikh jawans including some of the accused sided with the petitioner and there was a heated argument between the two groups on their way to the dining hall
The bara khana was served in two sittings
The petitioner did not join the first sitting but joined the second sitting which consisted of about 30 to 40 men
The quarrel which started between the two groups earlier was continued in the dining hall
The lights went off for a few minutes and when the lights came on it was observed that a scuffle was going on in the middle of the hall between the petitioner and other Sikh jawans and the deceased
As the scuffle progressed the deceased was surrounded by petitioner No 1 and the other accused persons and the group moved towards the service counter
The lights went off for a second time
In the darkness tables benches and plates were hurled about
Most of the men ran out of the dining hall
It is alleged that accused No 6 was seen stabbing with a knife Spr
Bishwanath Singh and the latter slumped to the ground
Accused No 3 hit him with a soot rake
When the lights came on after a few minutes the petitioner and the other accused were found standing near the place where Spr
Bishwanath Singh had fallen
Consequently Maj Agarwal arrived at the scene and took Spr
Bishwanath Singh to
the MI room where he was found dead by Maj
Koley the Medical Officer
It appears that on September 2 1965 at about 0400 hours the matter was reported to the Civil Police by Second Lt FDA Jesudian
A case under section 302 Indian Penal Code was registered as crime No 7261965 at Pallavaran Police Station Madras
Sri Bashyam Inspector of Police reached the place of occurrence at 0430 hours on the same date
He inspected the dining hall and seized certain exhibits produced by Maj Agarwal
He also held inquest on the deadbody of Spr
Bishwanath Singh and sent the dead body for postmortem examination to
the mortuary Madras General Hospital through Police Constable No 1407 Ratnam
He sent the exhibits seized to the State Forensic Science Laboratory Madras for chemical examination
At 1330 hours on the same date Sri Bashyam stopped further investigations as Lt Col Bajpai wanted the case to be handled by the Military authorities
On September 2 1965 a Court of Enquiry_ under the provisions of Ch
of the Army Rules was ordered by the Commander Mysore and Kerala Sub Area
After the Court of Inquiry had concluded the proceedings a Court Martial was constituted by an order dated August 11 1966 by Major General
SJ Sathe General Officer Commanding Madras Mysore and Kerala area to try the petitioner and other accused persons
The Court Martial assembled on August 18 1966 and conducted its proceedings on several subsequent dates
In support of the case of the prosecu 181 tion 30 witnesses were examined
At the Court Martial the defended by an Advocate of the Madras High Court petitioner was Sri Natarajan and he was also as by assisted a friend of the accused Major TB Narayanan
At the trial the Counsel for the petitioner cross examined the witnesses for the prosecution and after the prosecution evidence was concluded the petitioner said that he did not intend to call any defence witnesses
The petitioner how ever submitted a written statement
He was also put various questions by the Court Martial to which he replied
After the Counsel for the defence was heard and after the Judge Advocate summed up the case the Court Martial came to the finding that the petitioner was guilty of culpable homicide not amounting to murder and that he was a member of an unlawful assembly and the petitioner was sentenced to cashiering and 6 years rigorous imprisonment
Against the decision of the Court Martial the petitioner field a petition under section 164 of the Army Act but the petition was dismissed by the confirming authority and the finding and sentence by the Court Martial was confirmed so far as the petitioner was concerned
The petitioner thereafter filed an appeal under section 165 of the Army Act to the Central Government but the appeal was dismissed
The first question to be considered in this case is whether the Court Martial had jurisdiction to try and convict the petitioner of the offences under sections 304 and 149 Indian Penal Code
It was contended by Mr Dutta on behalf of the petitioner that the Court Martial had no jurisdiction having regard to the mandatory provisions contained in section 125 of the Army Act and having also regard to the fact that Maj
Agarwal had in the first instance decided to hand over the matter for investigations to the Civil Police
In order to test whether this argument is valid it is necessary to scrutinize the provisions of the Army Act in some detail
Section 2 of the Act 46 of 1950 hereinafter called the   describes the different categories of army personnel who are subject to the 
Section 3 ii defines a civil offence to mean an offence which is triable by a criminal court section 3vii defines a court martial to mean a court to mean a court of ordinary criminal justice in any part of India other that the state of Jammu and Kashmir  section 3xvii defines offence to mean any act or omission punishable under this act and includes a civil offence and section 3 xxv declares that all words and expressions used but not defined in this Act and defined in the Indian Penal Code shall be deemed to have the meanings assigned to them in that code
 chapter is Offences
As we have already noticed the word offence is defined to mean not only any act or omission punishable under the  but also a 182 civil offence
Sections 34 to 68 define the offences against the Act triable by court martial and also indicate the punishments for the said offences
Section 69 states as follows 69
Subject to the provisions of section 70 any person subject to this Act who at any place in or beyond India commits any civil offence shall be deemed to be guilty of an offence against this Act and if charged therewith under this section shall be liable to be tried by a court martial and on conviction be punishable as follows that is to say a if the offence is one which would be punishable under any law in force in India with death or with transportation he shall be liable to suffer any punishment other than whipping assigned for the offence by the aforesaid law and such less punishment as is in this Act mentioned and b in any other case he shall be liable to suffer any punishment other than whipping assigned for the offence by the law in force in India or imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned
 Section 70 provides A person subject to this Act who commits an offence of murder against a person not subject to military naval or air force law or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person shall not be deemed to be guilty of an offence against this Act and shall not be tried by a court martial unless he commits any of the said offences a while on active service or b at any place outside India or c at a frontier post specified by the Central Government by notification in this behalf
Explanation
In this section and in section 69 India does not include the State of Jammu and Kashmir
 Shortly stated  under this Chapter there are three categories of offences namely 1  offences committed by a person subject to the Act triable by a court martial in respect whereof specific punishments have been assigned 2 civil offences committed by the said person at any place in or beyond India but deemed to 183 be offences committed under the Act and if charged under section 69 of the Act triable by a court martial and 3 offences of murder and culpable homicide not amounting to murder or rape committed by a person subject to the Act against a person not subject to the military law
Subject to a few exceptions they are not triable by court martial but are triable only by ordinary criminal courts
The legal position therefore is that when an offence is for the first time created by the  such as those created by sections 34 35 36 37 etc it would be exclusively triable by a court martial but where a civil offence is also an offence under the Act or deemed to be an offence under the Act both an ordinary criminal court as well as a court martial would have jurisdiction to try the person committing the offence
Such a situation is visualized and provision is made for resolving the conflict under sections 125 and 126 of the which state 125
When a criminal court and a court martial have each jurisdiction in respect of an offence it shall be in the discretion of the officer commanding the army army corps division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which court the proceedings shall be instituted and if that officer decides that they should be instituted before a court martial to direct that the accused person shall be detained in military custody
1  When a criminal court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of any alleged offence it may by written notice require the officer referred to in section 125 at his option either to deliver over the offender to the nearest magistrate to be proceeded against according to law or to postpone proceedings pending a reference to the Central Government
2 In every such case the said officer shall either deliver over the offender in compliance with the requisition or shall forthwith refer the question as to the court before which the proceedings are to be instituted for the determination of the Central Government whose order upon such reference shall be final
 Section 125 presupposes that in respect of an offence both a criminal court as well as a court martial have each concurrent jurisdiction
Such a situation can arise in a case of an act or omission punishable both under the aS well as under any law in force in India
It may also arise in the case of an offence deemed to be an offence under the 
Under the scheme of the two sections in the first instance it is left to the 184 discretion of the officer mentioned in section 125 to decide before which court the proceedings shall be instituted and if the officer decides that they should be instituted before a court martial the accused person is to be detained in military custody but if a criminal court is of opinion that the said offence shall be tried before itself it may issue the requisite notice under section 126 either to deliver over the offender to the nearest magistrate or to postpone the proceedings pending a reference to the Central Government
On receipt of the said requisition the officer may either deliver over the offender to the said court or refer the question of proper court for the determination of the Central Government whose order shall be final
These two sections of the provide a satisfactory machinery to resolve the conflict of jurisdiction having regard to the exigencies of the situation in any particular case
In the present case we are unable to accept the contention of the petitioner that merely because Maj Agarwal had directed that the First Information Report should be lodged with the Civil Police through Second Lt Jesudian it means that the competent authority under section 125 of the had exercised its discretion and decided that the proceedings should be instituted before the criminal court
The reason is that Maj Agarwal was not the competent authority under section 125 of the to exercise the choice under that section
The competent authority was the General Officer Commanding Madras Mysore and Kerala Area and that authority had decided on September 2 1965 that the matter should be tried by a Court Martial and not by the Criminal Court
On the same date the General Officer Commanding Madras Mysore  Kerala Area had ordered the constitution of the Court Martial under Ch
VI of the Army Rules to investigate into the case of the petitioner and the other accused persons
There was admittedly No direction by the Commander of that area to hand over the proceedings to the Criminal Court
It is true that Maj
Agarwal had directed a report to be lodged with the Civil Police at 400 am on September 2 1965
It is also true that Sri Bashyam Inspector of Police had inspected the place of occurrence seized certain exhibits and held inquest of the deadbody of Spr
Bishwanath Singh
Sri Bashyam has admitted that he stopped investigations on the same date as directed by the military authorities
Merely because Sri Bashyam conducted the inquest of the dead body of Spr
Bishwanath Singh or because he seized certain exhibits and sent them to the State Forensic Science Laboratory Madras for chemical examination it cannot be reasonably argued that there was a decision of the competent military authority under section 125 of the for handing over the inquiry to the Criminal Court
On the other hand the action of the General Officer Commanding in constituting the Court of 185 Inquiry on September 2 1965 indicates that there was a decision taken under section 125 of the that the proceedings should be instituted before the Court Martial
The second branch of the argument of the petitioner is based upon section 549 of the Criminal Procedure Code which states 1 The Central Government may make rules consistent with this Code and the  the Naval Discipline Act and the Indian Navy Discipline Act 1934 and the Air Force Act and any similar law for the time being in force as to the cases in which persons subject to military naval or air force law shall be tried by a Court to which this Code applies or by Court martial and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court to which this code applies or by a Court martial such Magistrate shall have regard to such rules and shall in proper cases deliver him together with a statement of the offence of which he is accused to the commanding officer of the regiment corps ship or detachment to which he belongs or to the commanding officer of the nearest military naval or air force station as the case may be for the purpose of being tried by Court martial
The Central Government has made rules in exercise of powers conferred on it under this section
The Rules were published at p 690 in section 3 of Part H of the Gazette of India dated April 26 1962 under Ministry of Home Affairs SRO 709 dated April 17 1962
Rules 3 4 5 and 8 are to the following effect 3
Where a person subject to military naval or Air Force law is brought before a Magistrate and charged with an offence for which he is liable to be tried by a court martial such Magistrate shall not proceed to try such person or to issue orders for his case to be referred to a Bench or to inquire with a view to his commitment for trial by the Court of Sessions or the High Court for any offence friable by such Court unless a he is of opinion for reasons to be recorded that he should so proceed without being moved thereto by competent military naval or Air Force authority or b he is moved thereto by such authority
Before proceeding under clause a of rule 3 the Magistrate shall give written notice to the Com Sup C169 13 186 manding Officer of the accused and until the expiry of a period of seven days from the date of the service of such notice he shall not a convict or acquit the accused under sections 243 245 247 or 248 of the Code of Criminal Procedure 1898 V of 1898 or hear him in his defence under section 244 of the said Code or b frame in writing a charge against the accused under section 254 of the said Code or c make an order committing the accused for trial by the High Court or the Court of Sessions under section 213 of the said Code 5
Where within the period of seven days mentioned in rule 4 or at any time thereafter before the Magistrate has done any act or issued any order referred to in that rule the Commanding Officer of the accused or competent military naval or Air Force authority as the case may be gives notice to the Magistrate that in the opinion of such authority the accused should be tried by a court martial the Magistrate shall stay proceedings and if the accused is in his power or under his control shall deliver him with the statement prescribed in sub section 1 of section 549 of the said Code to the authority specified in the said sub section 8
Notwithstanding anything in the foregoing rules where it comes to the notice of a Magistrate that a person subject to military naval or Air Force law has committed an offence proceedings in respect of which ought to be instituted before him and that the presence of such person cannot be procured unless through military naval or Air Force authorities the Magistrate may by a written notice require the Commanding Officer of such person either to deliver such person to a Magistrate to be named in the said notice for being proceeded against according to law or to stay the proceedings against such person before the court martial if since instituted and to make a reference to the Central Government for determination as to the Court before which proceedings should be instituted
 It was argued on behalf of the petitioner that there was no notice given by the Commanding Officer to the Magistrate under Rule 5 that the petitioner should be tried by a Court Martial and hence the criminal court alone had jurisdiction under Rule 3 to conduct proceedings against the petitioner for the offences charged
In our opinion the argument on behalf of the petitioner 187 is mis conceived
The rules framed by the Central Government under section 549 of the Criminal Procedure Code apply to a case where the proceedings against the petitioner have already been instituted in an ordinary criminal court having jurisdiction to try the matter and not at a stage where such proceedings have not been instituted
it is clear from the affidavits filed in the present case that the petitioner was not brought before the Magistrate and charged with the offences for which he was liable to be tried by the Court Martial within the meaning of Rule 3 and so the situation contemplated by Rule 5 has not arisen and the requirements of that rule are therefore not attracted
It was pointed out by Mr Dutta that after the First Information Report was lodged at Pallavaran police station a copy thereof should have been sent to the Magistrate
But that does not mean that the petitioner was brought before the Magistrate and charged with the offences within the meaning of Rule 3
It is manifest that Rule 3 only applies to a case where the police had completed investigation and the accused is brought before the Magistrate after submission of a charge sheet
The provisions of this rule cannot be invoked in a case where the police had merely started investigation against a person subject to
military naval or air force law
With regard to the holding of the inquest of the dead body of Spr
Bishwanath Singh it was pointed out by the Attorney General that Regulation 527 of the Defence Services Regulations has itself provided that in cases of unnatural death that is death due to suicide violence or under suspicious circumstances information should be given under section 174 Criminal Procedure Code to the Civil authorities and the conduct of Maj Agarwal in sending information to the Civil Police was merely in accordance with the provisions of this particular regulation
For these reasons we hold that Counsel for the petitioner is unable to make good his argument on this aspect of the case
We proceed to consider the next argument presented on behalf of the petitioner namely that even if the Military Court Martial had jurisdiction it could not give a finding of guilt against the petitioner with regard to culpable homicide not amounting to murder unless the charge was altered and amended in accordance with sub rule 2 of Rule 50 of the Army Rules 1954
It was also contended on behalf of the petitioner that the procedure contemplated by Rule 1214 of the Army Rules was not followed by the Court Martial and the finding of the Court Martial must therefore be held to be defective
In our opinion there is no warrant or justification for this argument since rules 502 and 121 4 have no application to the present case
Rules 50 and 121 provide as follows 50
Amendment of charge  1  At any time during the trial if it appears to the court that there is 188 any mistake in the name or description of the accused in the charge sheet the court may amend the chargesheet so as to correct that mistake
2 If on the trial of any charge it appears to the court at any time before it has begun to examine the witnesses that in the interests of justice any addition to commission from or alteration in the charge is required it may report its opinion to the convening authority and may adjourn and the convening authority may either direct the new trial to be commenced or amend the charge and order the trial to proceed with such amended charge after due notice to the accused 121
Form and record of finding 1 The finding on every charge upon which the accused is arraigned shall be recorded and except as mentioned in these rules such finding shall be recorded simply as a finding of Guilty or of Not guilty
2 When the court is of opinion as regards any charge that the facts proved do not disclose the offence charged or any offence of which he might under the Act legally be found guilty on the charge as laid the court shall acquit the accused of that charge
3 When the court is of opinion as regards any charge that the facts found to be proved in evidence differ materially from the facts alleged in the statement of particulars in the charge but are nevertheless sufficient to prove the offence stated in the charge and that the difference is not so material as to have prejudiced the accused in his defence it may instead of a finding of Not guilty record a special finding
4 The special finding may find the accused guilty on a charge subject to the statement of exceptions or variations specified therein
5 The court shall not find the accused guilty on more than one of two or more charges laid down in the alternative even if conviction upon one charge necessarily connotes guilt upon the alternative charge or charges
 In the present ease there was no necessity for amending the charge by the Court Martial under Rule 502 because that subrule only relates to an alteration of charge before the examination of witnesses
The Court Martial has also not contravened the provisions of Rule 121 4 because that sub rule is not attracted to the present ease
On the contrary the finding of the Court 189 Martial is justified in view of the language of section 1396 of the which states  139
6 A person charged before a court martial with an offence punishable under section 69 may be found guilty of any other offence of which he might have been found guilty if the provisions of the Code of Criminal Procedure 1898 were applicable
 We accordingly reject the argument of learned Counsel for the petitioner on this part of the case
Finally it was contended on behalf of the petitioner that the order of the Chief of the Army Staff confirming the proceedings of the Court Martial under section 164 of the was illegal since no reason has been given in support of the order by the Chief of the Army Staff
It was also pointed out that the Central Government has also not given any reasons while dismissing the appeal of the petitioner under section 165 of the and that the order of the Central Government must therefore be held to be illegal and ultra vires and quashed by the grant of a writ in the nature of certiorari
In this context it is necessary to reproduce sections 164 and 165 of the which are to the following effect 164
1 Any person subject to this Act who considers himself aggrieved by any order passed by any court martial may present a petition to the officer or authority empowered to confirm any finding or sentence of such court martial and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates
2 Any person subject to this Act who considers himself aggrieved by a finding or sentence of any court martial which has been confirmed may present a petition to the Central Government the Chief of the Army Staff or any prescribed officer superior in command to the one who confirmed such finding or sentence and the Central Government the Chief of the Army Staff or other officer as the case may be may pass such order thereon as it or he thinks fit 165
The Central Government the Chief of the Army Staff or any prescribed officer may annul the proceedings of any court martial on the ground that they are illegal or unjust
 In contrast to these sections section 162 of the expressly provides that the Chief of the Army Staff for reasons based on 190 the merits of the case set aside the proceedings or reduce the sentence to any other sentence which the court might have passed
Section 162 reads as follows The proceedings of every summary court martial shall without delay be forwarded to the officer commanding the division or brigade within which the trial was held or to the prescribed officer and such officer or the Chief of the Army Staff or any officer empowered in this behalf by the Chief of the Army Staff may for reasons based on the merits of the case but not any merely technical grounds set aside the proceedings or reduce the sentence to any other sentence which the court might have passed
 It is necessary in this context to refer to Rules 61 and 62 of the Army Rules which prescribe the standard form of recording the opinion of the Court Martial on each charge and of announcement of that finding
These rules omit all mention of the evidence or the reasoning by which the finding is reached by the Court Martial
Rules 61 and 62 are to the following effect 61
Consideration of finding 1 The court shall deliberate on its finding in closed court in the presence of the judge advocates
2 The opinion of each member of the court as to the finding shall be given by word of mouth on each charge separately
Form record and announcement of finding 1 The finding on every charge upon which the accused is arraigned shall be recorded and except as provided in these rules shall be recorded simply as a finding of Guilty  or of Not guilty 
10 The finding on each charge shall be announced forthwith in open court as subject to confirmation
 In the present case it is manifest that there is no express obligation imposed by section 164 or by section 165 of the on the confirming authority or upon the Central Government to give reasons in support of its decision to confirm the proceedings of the Court Martial
Mr Dutta has been unable to point out any other section of the Act or any of the rule made therein from which necessary implication can be drawn that such a duty is cast upon the Central Government or upon the confirming authority
Apart from any requirement imposed by the statute or statutory rule either expressly or by necessary implication we are unable to accept the contention of Mr Dutta that there is 191 any general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision
In English law there is no general rule apart from the statutory requirement that the statutory tribunal should give reasons for its decision in every case
In Rex vs Northumberland Compensation Appeal Tribunal1 it was decided forthe first time by the Court of Appeal that if there was a speaking order a writ of certiorari could be granted to quash the decision of an inferior court or a statutory tribunal on the ground of error on the face of record
In that case Denning LJ pointed out that the record must at least contain the document which initiates the proceedings the pleadings if any and the adjudication but not the evidence nor the reasons unless the tribunal chooses to incorporate them in its decision
It was observed that if the tribunal did state its reasons and those reasons were wrong in law a writ of certiorari might be granted by the High Court for quashing the decision
In that case the statutory tribunal under the National Health Service Act 1946 had fortunately given a reasoned decision in other words made a speaking order  and the High Court could hold that there was an error of law on the face of the record and a writ of certiorari may be granted for quashing it
But the decision in this case led to an anomalous result for it meant that the opportunity for certiorari depended on whether or not the statutory tribunal chose to give reasons for its decision in other words to make a speaking order 
Not all tribunals by any means were prepared to do so and a superior court had no power to compel them to give reasons except when the statute required it
This incongruity was remedied by the Tribunals and Inquiries Act 1958 section 12 6  7 Elizabeth 2 c 66 which provides that on request a subordinate authority must supply to a party genuinely interested the reasons for its decision
Section 12 of the Act states that when a tribunal mentioned in the First Schedule of the Act gives a decision it must give a written or oral statement of the reasons for the decision if requested to do so on or before the giving or notification of the decision
The statement may be refused or the specification of reasons restricted on grounds of national security and the tribunal may refuse to give the statement to a person not principally concerned with the decision if it thinks that to give it would be against the interests of any person primarily concerned
Tribunals may also be exempted by the Lord Chancellor from the duty to give reasons but the Council on Tribunals must be consulted on any proposal to do so
As already stated there is no express obligation imposed in the present case either by section 164 or by section 165 of the Indian on the confirming 1  192 authority or on the Central Government to give reasons for its decision
We have also not been shown any other section of the Army
Act or any other statutory rule from which the necessary implication can be drawn that such a duty is cast upon the Central Government or upon the confirming authority
We therefore reject the argument of the petitioner that the order of the Chief of the Army Staff dated May 26 1967 confirming the finding of the Court Martial under section 164 of the or the order of the Central Government dismissing the appeal under section 165 of the are in any way defective in law
For the reasons expressed we hold that the petitioner has made out no case for the grant of a writ under article 32 of the Constitution
The application accordingly fails and is dismissed
RKPS Petition dismissed


Summary:
The petitioner a Second Lieutenant in the army was involved in a quarrel between two groups of soldiers on September 1 1965 which led to an altercation and the stabbing and death of a soldier
On September 2 1965 the matter was reported to the Civil Police at the local police station
The Inspector of Police inspected the place of occurrence on the same day seized certain exhibits produced by an Army Officer held an inquest on the dead body of the deceased soldier and sent it for postmortem examination through a police constable
Later on the same day he stopped further investigation as the Army Officer incharge wanted the case to be handled by the Military authorities
On September 2 1965 a Court of Inquiry under the provisions of Ch
VI of the Army Rules was ordered by the Commander for the area
After the Court of Inquiry had concluded its proceedings a Court Martial was constituted by an order dated August 11
1966 by the General Officer Commanding for the area to try the petitioner and other accused persons
The Court Martial came to the finding that the petitioner was guilty of culpable homicide not amounting to murder and that he was a member of an unlawful assembly it sentenced him to cashiering and six years rigorous imprisonment
The petitioner filed a petition under section 164 of the Army Act but this was dismissed by the confirming authority and the finding and sentence of the Court Material was confirmed
The petitioner s appeal under section 165 of the Army Act to the Central Government was also dismissed
In the present petition under Article 32 of the Constitution the petitioner sought a writ of certiorari to quash the proceedings of the Court MartiaL It was contended on his behalf i that the Court Martial had no jurisdiction to try and convict him of offences under sections 304 and 149 IPC having regard to the mandatory provisions of section 125 of the Army Act and having also regard to the fact that the Army Officer incharge had in the first instance decided to hand over the
matter for investigation to the Civil Police ii that no notice was given by the Commanding Officer to the Magistrate under Rule 5 of the Rules framed by the Central Government under section 549 of the Criminal Procedure Code that the petitioner should be tried by a Court Martial the Criminal Court alone 178 therefore had jurisdiction under Rule 3 to try the petitioner for the offence charged iii that even if the Court Martial had jurisdiction it could not give a finding of guilt against the petitioner with regard to culpable homicide not amounting to murder unless the charge was altered and amended in accordance with sub rule 2 of Rule 50 of the Army Rules 1954 the procedure contemplated by Rule 1214 of the Army Rules was not followed by the Court Martial and its finding must therefore be held to be defective and iv that the orders of the Chief of the Army Staff confirming the proceedings of the Court Martial under section 164 of the Army Act and of the Central Government dismissing the petitioners appeal under section 165 were illegal since no reasons had been given in support of the decisions contained in them
HELD Dismissing the petition i Merely because the First Information Report was lodged with the civil police on September 2 and the Inspector of Police inspected the place of occurrence seized certain exhibits and held an inquest on the body of the deceased it could not reasonably be said that there was a decision of the competent military authority under section 125 of the Army Act to hand over the inquiry to the criminal court
On the other hand the action of the General Officer Commanding the area who was the competent authority under section 125 constituting the Court of Inquiry on September 2 1965 indicates that there was a decision taken under section 125 that the proceedings should be instituted before the Court Martial
184 H ii Rule 3 of the Rules framed by the Central Government under section 549 Criminal PC only applies to a case where the police has completed the investigation and the accused is brought before the Magistrate after submission of a charage sheet
The provisions of Rule 3 cannot be invoked in the present case where the police had merely started investigation against a person subject to military law
The situation contemplated by Rule 5 had not arisen and the requirements of that rule were not attracted
Furthermore Regulation 527 of the Defence Services Regulations itself provides that in cases of unnatural death information should be given under section 174 Criminal Procedure Code to the civil authorities
The action of the Army Officer in sending information to the civil police was merely in accordance with the provisions of this particular Regulation
187 D iii There Was no necessity for amending the charge by the Court Martial under Rule 502 because that sub rule only relates to an alteration of charge before the examination of witnesses
The Court Martial had also not contravened the provisions of Rule 1214 because that sub rule was not attracted in the present case
On the contrary the finding of the Court Martial was justified in view of the language of section 1396 of the Army Act
188 H iv There is no express obligation imposed by section 164 or by section 165 of the Army Act on the confirming authority or upon the Central Government to give reasons in support of its decision to confirm the proceedings of the Court Martial
No other Section of the Act or any Rule had been shown from which a necessary implication could be drawn that such a duty is cast upon the Central Government or upon the confirming authority
Furthermore there was no force in the contention that there is any general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision
190 H 192 A B 179 Rex
vs Northumberland Compensation Appeal Tribunal   considered