IN THE HIGH COURT OF UTTARKHAND AT NAINITAL (Chapter VIII, Rule 32 (2) (b) Description of Case Special Appeal No. 139 of 2007 Date of decision : 31st March, 2008 A.F.R. (Approved for Reporting) ___________________________ Not approved for reporting Date: 30.03.2008 Initial of Judge Note: Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signatures. IN THE HIGH COURT OF UTTARKHAND AT NAINITAL Special Appeal No. 139 of 2007 1. Chief of Army Staff, Army Headquarters, New Delhi. 2. Commanding Officer, 3rd Battalion, Prachute Regiment, C/o 56 APO. 3. Commandant, GOC-in-C, Central Commandant, Lucknow. ……………. Appellants Versus Naik Padam Bahadur Gurang, S/o Sri Durga Singh Gurang, 2 No. Military Dairy Farm, P.O. Garhi Cantt, Dehradun. …………. Respondent Mr. Vikas Pande, Standing Counsel (Central Govt.) for the appellants. Mr. Anil Kumar Joshi, Advocate for the respondent. JUDGMENT Coram: Hon’ble V.K. Gupta, C.J. Hon’ble J.C.S. Rawat, J. V.K. GUPTA, C.J. (Oral) Mr. Vikas Pande, Standing Counsel (Central Govt.) for the appellants. Mr. Anil Kumar Joshi, Advocate for the respondent. 2. The respondent was charged with committing an offence punishable under Section 39 (a) of the Army Act, 1950 for absenting himself without leave. He was tried by Summary Court Martial (SCM, for short) under the provisions of the Army Act, 1950 and the Army Rules, 1954 and upon conviction, vide an order and judgment passed on 18-01-1992 by the said SCM was sentenced to undergo six month rigorous imprisonment in a civil jail, reduced to the rank of Naik and dismissed from service. The respondent, feeling aggrieved of the aforesaid order dated 18th January, 1992 passed by the SCM, approached the competent authority, namely General Officer Commanding-in-Chief, Central Command by way of an appeal petition in terms of Sec. 164 of the Army Act which, however, was rejected by the said authority vide its order dated 27th July, 1992. 3. Both the aforesaid orders, namely the order dated 18th January, 1992 passed by the SCM convicting and sentencing the respondent and the order dated 27th July, 1992 rejecting his appeal were challenged by the respondent in a petition filed in this court under Article 226 of the Constitution of India. By the impugned judgment, the learned Single Judge set aside both the orders and directed the appellants herein to pay 25% of the amount of the salary, etc. considering and treating as if the respondent was in service. A further direction also issued to pay pensionary and other benefits to the respondent. 4. Even though, a very careful perusal of the judgment under challenge in this appeal doesn’t specifically reveal the grounds and the reasons which led the learned Single Judge in coming to the aforesaid conclusion and in setting aside the aforesaid two impugned orders in the writ petition, apparently the learned Single Judge perhaps was influenced by the interpretation that he put upon Sections 71 and 72 of the Army Act, 1950. 5. As far as the trials and offences by the SCM are concerned, it is the undisputed case of the parties before us that the offence punishable under Section 39 (a) was exclusively triable by a Court Martial, in the present case by a SCM. There is no doubt that Section 39 being in the nature of a substantive provision of law, it itself prescribes the punishment which may be inflicted upon a person convicted thereunder. The relevant extracts of Section 39 reads as: “39. Absence without leave: Any person subject to this Act who commits any of the following offences, that is to say,- (a) absents himself without leave; or (b) ………………………………… (c) ………………………………… (d) ………………………………… (e) ………………………………… (f) ………………………………… (g) ………………………………… shall, on conviction by Court Martial, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is this Act mentioned.” Had Sections 71, 72 and 73 not being there in the Army Act, undoubtedly the punishment prescribed under Section 39 alone would hold the field and govern all the proceedings of the Court Martial substantially in the matter of awarding of the sentences. However, Sections 71, 72 and 73 finding their places in Chapter VIII of the Act specifically create a scheme, again in the nature of substantive law, whereby guidelines have been formulated about the manner and the extent under which the Courts Martial may award sentences to persons convicted of the offences tried by the Courts Martial. Whereas Section 71 lays down and stipulates as well as provides that punishment may be inflicted according to the scale mentioned therein, Section 72 lays down that upon conviction, a Court Martial may award to an accused either the sentence mentioned in the substantive offences mentioned under Sections 34 to 68 for committing the offences mentioned in those sections or in lieu thereof anyone of the punishments lower in the scale set out in Section 71. The emphasis is on the expression ‘lower in scale’ used in Section 72. A combined reading of Sections 71 and 72 readwith any of the Sections between Sections 34 and 68, as for example in the present case Section 39, suggests the following proposition of law: An accused upon conviction of an offence under Section 39 may be sentenced to suffer imprisonment for a term extending upto three years. It is entirely upto the Court Martial to either sentence him to an imprisonment term of upto three years or without sentencing him to any imprisoment at all, even for a day, to inflict upon him anyone of the punishments provided in Clauses(d) to (1) of Section 71 because the punishments provided in these clauses are lower in scale as compared to the punishment of imprisonment upto three years. This discretion is vested in the Court Martial by the force of Section 72 of the Act. Let us now turn to Section 73 which is a special provision. It reads thus: “73. Combination of punishments: A sentence of a Court Martial may award in addition to, or without any one other punishment, the punishment specified in clause (d) or clause (e) of section 71 and any one or more of the punishments specified in clauses (f) to (1) of that section.” Section 73 as a special provisions has to be read alongwith Section 39, for that matter all the Sections between Section 34 and Section 68. It says that a Court Martial after convicting an accused may in addition to a punishment specified in the substantive section which creates the offence also award anyone or more of the punishments specified in Clauses (d) to (1) of Section 71. In other words, what Section 73 lays down is that a Court Martial after convicting an accused under Section 39 (a) may award to him an imprisonment sentence upto a term of three years, (in the present case the imprisonment sentence of six months has been awarded) and in addition thereto, any sentence specified in Clauses(d) to (1) of Section 71 or anyone or more of such sentences. It is in exercise of this special power conferred by the said special provision that the respondent in addition to being awarded the sentence of six moths’ imprisonment was awarded the sentence of being reduced to the rant of Naik as well as dismissed from service. Whereas the sentence of dismissal from service finds a mention in Clause (e), the sentence of reduction to the ranks is placed in Clause (f) of Section 71. We have no doubt in our minds that on its plain reading, Section 73 does vest in the Court Martial, in its discretion, the power and jurisdiction to award additional, more and further sentences, apart from what is contained in the substantive provision, Section 39 in our case. The learned Single Judge even though made a passing reference and took notice of Section 73 in the course of the judgment, did not actually dwell upon its scope and ambit. 6. For the foregoing reasons, we do find that the impugned judgment suffers from the aforesaid illegality and is liable to be set aside on this ground. 7. The appeal is accordingly allowed. The impugned judgment is set aside. The two orders dated 18th January, 1992 and 27th July, 1992 impugned in the writ petition are affirmed and upheld. No order as to costs. (J.C.S. Rawat, J.) (V.K. Gupta, C.J.) 31.03.2008 31.03.2008 V.K.