IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. :: O R D E R :: 1. D.B. CIVIL WRIT PETITION NO.2490/1987 (Roop Singh Vs. The Union of India & Ors.) 2. D.B. CIVIL WRIT PETITION NO.5506/1994 (Dilip Singh Vs. The Union of India & Ors.) 3. D.B. CIVIL WRIT PETITION NO.2272/1996 (Devendra Singh Vs. The Union of India & Ors.) 4. D.B. CIVIL WRIT PETITION NO.2223/1996 (Pradeep Kumar Vs. The Union of India & Ors.) 5. D.B. CIVIL WRIT PETITION NO.6145/1994 (Harman Singh Vs. The Union of India & Ors.) 6. D.B. CIVIL WRIT PETITION NO.6134/1994 (Chatar Singh Vs. The Union of India & Ors.) 7. D.B. CIVIL WRIT PETITION NO.5689/1994 (Bhagwan Sahai Meena Vs. The Union of India & Ors.) Date of Order :: 31ST August, 2006 P R E S E N T HON’BLE THE CHIEF JUSTICE SHRI S.N. JHA HON’BLE SHRI JUSTICE AJAY RASTOGI :: Reportable Shri Rajendra Prasad for petitioners. Shri K.K. Sharma for respondents. ***** BY THE COURT (PER HON’BLE THE CHIEF JUSTICE) In these seven writ petitions, the 1 petitioners, ex-army personnel, are aggrieved by the punishment awarded to them in Court Martial proceeding. They also seek to challenge the validity of the provisions relating to summary court martial under the Army Act, 1950 and the Army Rules, 1954. As vires has been challenged in all the petitions, they were heard together. In Writ Petition no.2490/1987 petitioner Roop Singh was found by the Duty Officer running from the direction of out-of-bound area at about 0030 hours in the night of 17/18 May, 1987 when he was supposed to be on sentry duty for which he was tried by 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 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 reply of the respondents it appears that the incident had taken place when the 2 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 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 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. In Writ Petition no.5506/1994, petitioner Dilip Singh was enrolled in the Army in 1986 as Sepoy (Nursing Assistant). He 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 H.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 3 declined to cross-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 dismissed from service on 7.8.1993. He preferred appeal without any success. In Writ Petition no.5689/1994, petitioner Bhagwan Sahai was enrolled 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 of his request for extension of leave. 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. Instead, he admitted his guilt. Summary Court Martial was thereafter held. Charge was explained and papers were supplied, and he was provided with ‘friend of accused’ and informed of 4 the consequences of pleading guilty. After going through the papers supplied to him, he admitted his guilt which was recorded. He was declared deserter and held guilty of the charge under Section 38(1) 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, petitioner Chatar Singh was enrolled in the Army on 28.9.1976. He proved to be the habitual absentee. 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 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 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 5 of the summary court marital proceeding he pleaded guilty. He had been told about nature of the charge and consequences of 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. In Writ Petition no.6145/1994, petitioner Harman Singh was enrolled in the Army on 2.10.1978. While he was posted as Gunner (L/Nk) on Guard Duty on 3.11.1991, he alongwith others allegedly took a woman, one Smt. Geeta Devi, inside the bunker and cohabitated contrary to discipline. Smt. Geeta Devi later lodged an FIR at P.S. Ranbir Singh Pura on 20.12.1991 alleging that she had been raped by the petitioner. She identified the petitioner in the test identification parade. Challan was filed against the petitioner for offence under Sections 376/341 IPC and the case was committed to the Court of Session. The case was later taken over for trial under the Army Act. The Army Headquarters ordered a Court of Inquiry and summary of evidence was recorded which disclosed commission of offence under Section 63 of the Army Act and a charge- sheet was issued to the petitioner. At the stage of recording of summary of evidence he was given 6 opportunity to cross-examine the witnesses and produce evidence in defence; but he declined to cross-examine the witnesses. He was later tried by summary court martial in course of which he was again informed of the charges, supplied copies of the documents and provided the service of ‘friend of accused’. In course of the proceedings, he pleaded guilty. He was made aware of the consequences of pleading guilty. After completion of the proceedings, petitioner was sentenced to four months’ rigorous imprisoment and dismissed from service on 31.8.1992. In Writ Petition no.2223/1996, petitioner Pradeep Kumar was enrolled in the Army on 28.12.1989. In course of his deployment with 820 Fd Wksp Coy from 21.5.1994 to 24.8.1994 for a period of 96 days, he performed his duties on only 22 days, reporting sick six times during the period allegedly to avoid duty. On 8.8.1994 he came for morning parade but fell out of ranks without permission and slapped and kicked Sub. Major T.D. Juneja in front of the whole Company for which he was charged with the offence of using criminal force to superior officer punishable under Section 40 of the Army Act. Summary of evidence was recorded and he was given opportunity to produce evidence in defence but he did not do so, he rather admitted his guilt. In course of 7 summary court martial, the charge was explained to him and was supplied with copies of papers and also made aware of the consequences of his pleading guilty, he again pleaded guilty and requested to be forgiven promising that he would not repeat such act in future. Statement was recorded vide Annexure-8. After completion of the proceedings he was sentenced to six months’ rigorous imprisonment and further dismissed from service on 24.8.1994. He sought review of the punishment which was rejected on 2.11.1994. In Writ Petition no.2272/1996, petitioner Devendra Singh was enrolled in the Army on 16.10.1970. A Court of Inquiry was ordered to investigate into circumstances in which he allegedly entered the house of Nk B.L. Chouhan on 23.9.1987 and his possible intention. Summary of evidence was recorded in his presence and he was given opportunity to participate in the hearing. The evidence collected in course of inquiry disclosed prima facie case, and he was subjected to summary court martial. In course of the court martial proceedings, the charge was read over and explained, and copies of the relevant papers were supplied to him. He was also made aware of the consequences of his pleading guilty. His plea of guilt was thereafter recorded and he was awarded the penalty of reduction to ranks on 23.10.1987. 8 It would thus appear that out of seven cases, except Roop Singh in Writ Petition no.2490/1987, in all other cases the petitioners had pleaded guilty. In those cases, even though the petitioners have challenged the vires of various provisions of the Army Act and the Rules, a limited argument was made at the time of hearing regarding non-compliance of rule 115 of the Army Rules and the punishment being excessive. We shall deal with these six case separately later in this judgment. Coming to the case of Roop Singh, the validity of punishment was challenged both on legal as well as factual grounds. It was also submitted that the Commanding Officer who headed the summary court martial was biased against the petitioner, as he suspected him of having written an anonymous letter containing allegations against him. The thrust of the argument of the counsel however was that summary court martial proceedings are less ‘offender-friendly’ than general court martial or district court martial; persons subjected to summary court martial do not get the same opportunity to defend themselves as in the case of general or district court martial. It was also submitted that the choice of the type of court martial i.e. choice of manner of trial – 9 whether by general court martial or district court martial or summary court martial – depends on rank of the offender rather than nature of offence(s) which is irrational. Trial for the same or similar offence if committed by an officer may be held by a general court martial or district court martial but if it is committed by a ranker, he would be tried by summary court martial. The classification on the basis of rank rather than the offence – in the absence of guidelines either in the Army Act or Rule - according to the counsel is arbitrary and unconstitutional. In support of these submissions, reliance was placed on Ram Krishna Dalmia V. Justice S.R. Tendolkar, AIR 1958 SC 538. Before making comments on the submissions of the counsel, it may be useful to refer to certain provisions of the Army Act. Section 108 of the Act provides for four kinds of Court-martial – general Court-martial, district Court-martial, summary general Court-martial and summary Court- martial. Section 109 provides that general Court- martial may be convened by the Central Government or the Chief of the Army Staff or by an officer empowered in this behalf by warrant of the Chief of the Army Staff. A district Court-martial under Section 110 may be convened by an officer empowered to convene general Court-martial or by an officer empowered in this behalf by warrant of 10 any such officer. Summary general Court-martial may be convened, under Section 112 (a) by an officer empowered in this behalf by an order or the Central Government of the Chief of the Army Staff; (b) by the officer commanding the forces in the field or any officer empowered him in this behalf, on active service; and (c) by an officer commanding any detached portion of the regular army on active service when, in his opinion, it is not practicable, with due regard to discipline and the exigencies of the service, that an offence should be tried by a general Court-martial. A summary Court-martial may be held, under Section 116, by the commanding officer of any corps, department or detachment of the regular Army. Sections 113, 114 and 115 lay down the composition of the general Court-martial, district Court- martial and summary general Court-martial respectively. In the case of summary Court- martial, in terms of Section 116, the commanding officer of any corps, department or detachment, as the case may be, alone constitutes the Court. Sections 118 and 119 lay down the powers of the general and summary general Courts-martial, and district Court-martial respectively. Section 120 lays down the powers of the summary Courts- martial. Depending on the powers conferred on them respectively, they can award punishments specified under Section 71. Section 71 contains list of 12 11 punishments arranged according to scale starting from death to stoppage of pay and allowances. Under Section 72 these punishments are to be inflicted in connection with the offences committed by the persons subject to the Army Act. Offences are specified under chapter VI comprising of Sections 34 to 70. While Sections 34 to 68 are offences special to the persons subjected to the Army Act, Section 69 refers to civil offences. It lays down that subject to the provisions of Section 70 (which refers to certain civil offences not triable by Court-martial), 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 in the manner laid down in clauses (a) and (b). Having regard to the nature of dispute involved in this case, it is not necessary to refer to details of these provisions. The grievance of the petitioner is that while the procedure laid down for trial by general Court- martial or district Court-martial is more detailed and the offender has been provided greater opportunity to defend himself, he is deprived of such opportunity and right when he is tried by 12 summary Court-martial. The point which arises for consideration is whether and to what extent such a grievance which basically is in the nature of the procedure being discriminatory and arbitrary and therefore violative of Article 14 of the Constitution of India, can be entertained in view of the provisions of Article 33 of the Constitution of India. It is to be kept in mind that proceedings and the decision of the Court- martial can be challenged only under Article 226 of the Constitution. The power of superintendence conferred on the High Court under Article 227 does not extend to Court or Tribunal constituted by or under any law relating to the armed forces i.e. court-martial - vide clause (4) of Article 227. Article 33 confers power on the Parliament to restict or abrogate the fundamental rights and the rights of the members of the armed forces to the extent as it may determine by law “to ensure the proper discharge of duties by the Armed Forces and the maintenance of discipline among them”. Article 33 may usefully be quoted verbatim as under “ “33. Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.- Parliament may, by law, determine to what extent any of the rights conferred by this Part, shall in their application to,- (a) the members of the Armed Forces; or 13 (b) the members of the Forces charged with the maintenance of public order; or (c) persons employed in any bureau or other organization established by the State for purposes of intelligence or counter intelligence; or (d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organization referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.” It not in dispute that the Parliament was competent to enact the law relating to armed forces vide entry 2 in list 1 in the Seventh Schedule to the Constitution, and by virtue of Article 33 the Parliament was competent to restrict and abrogate the rights conferred on citizens under Part III i.e. fundamental rights. Dealing with the scope of Article 33 as it then stood (the provision was materially the same as at present, after the fiftieth amendment in the Constitution of India in 1984), a Constitution Bench of the Supreme Court in Ram Sarup V. Union of India, AIR 1965 SC 247, observed as under :- “. . . The learned Attorney General has urged that the entire Act has been enacted by Parliament and if any of the provisions of the Act is not consistent 14 with the provisions of any of the articles in Part III of the Constitution, it must be taken that to the extent of the inconsistency Parliament had modified the fundamental rights under those articles in their application to the person subject to that Act. Any such provisions in the Act is as much law as the entire Act. We agree that each and every provision of the Act is a law made by Parliament and that if any such provision tends to affect the fundamental right under Part III of the Constitution, that provision does not , on that account, become void, as it must be taken that Parliament has thereby, in the exercise of its power under Art. 33 of the Constitution, made the requisite modification to affect the respective fundamental right. . . .” Article 33 again came up for consideration before the Supreme Court in Lt.-Col. Prithi Pal Singh Bedi V. Union of India, (1982) 3 SCC 140. It may be apposite to extract the relevant observations therefrom as under :- “. . . Therefore, every provision of the Army Act enacted by the Parliament, if in conflict with the fundamental rights conferred by Part III, shall have to be read subject to Article 33 as being enacted with a view to either restricting or abrogating other fundamental rights to the extent of inconsistency or repugnancy between Part III of the Constitution and the Army Act. This is no more res integra in view of the decision of the Constitution Bench in Ram Sarup v. Union of India, in which repelling the contention that the restriction or abrogation of the fundamental rights in exercise of the power conferred by Article 33 is limited to one set out in Section 21 of the Act. . . .” It would thus appear, having regard to the constitutional mandate of Article 33 as 15 explained in the aforementioned decisions of the Apex Court, that the grievance as to the provisions relating to summary Court-martial being discriminatory and therefore violative of Article 14 cannot be entertained. On behalf of the petitioners, it was submitted that what Article 33 saves is law enacted by the Parliament and not subordinate legislation. Thus while provisions of the Act may not be challenged as infringing fundamental rights, the provisions of the Army Rules do not enjoy that immunity. On behalf of the respondents our attention was drawn to Section 193 of the Army Act which provides that all rules and regulations made under the Act “shall have effect as if enacted in this Act”. Similar question arose though in a different context viz effect of repeal of a statute in Chief Inspector of Mines V. Lala Karam Chand Thapar, AIR 1961 SC 838. After noticing various foreign decisions, the Constitution Bench did not record a clear finding but observed as follows :- “The true position appears to be that the Rules and Regulations do not lose their character as rules and regulations, even though they are to be of the same effect as if contained in the Act. They continue to be rules subordinate to the Act, and though for certain purposes, including the purpose of construction, they are to be treated as if contained in the Act, their true nature as 16 subordinate rule is not lost. Therefore, with regard to the effect of a repeal of the Act, they continue to be subject to the operation of S. 24 of the General Clauses Act.” The question also arose in Lt. Col. Prithi Pal Singh Bedi V. Union of India (supra). The Supreme Court noticed the afore-quoted observations in Lala Karam Chand Thapar (supra) and the foreign decisions on the point and observed – “. . . . It would, however, appear that this ancient formula often resorted to, to clothe subordinate legislation with the force of the provisions of the statute would require further consideration. It is, however, not necessary to conclude this point because the primary contention was about the non- compliance with rules rather than with their validity.” The question is indeed ticklish. We may however mention that though certain provisions of the Rules were particularly referred to, and commented upon, what the petitioners basic seek to challenge is trial by summary Court-martial which is creature of the Act and not the Rules. Rules have been framed only to carry into effect the provisions of the Act. Therefore, we are inclined to think that challenge to any particular rule apart – which we shall notice later in this judgment – trial by summary Court-martial can not be challenged as being discriminatory. 17 Indeed, having gone through the various provisions of the Act and the Rules with respect to the trial of offences by summary Court-martial we are firmly of the view that the provisions are not discriminatory and they do not infringe Article 14 of the Constitution. The Army Act and the Rules, in our opinion, contain sufficient safeguards and the offender need have no apprehension about any arbitrary decision at the hands of the officers constituting the summary Court-martial. Before referring to the various provisions which, in our opinion, contain safeguards against any arbitrary decision by summary Court-martial we may mention that the procedure of trial by Courts-martial was approved by the Supreme Court in Ram Sarup V. Union of India (supra) as being “elaborate and generally follows the pattern of the procedure under the Code of Criminal Procedure”. The dispute therein had arisen in the context of Section 125 of the Act which confers discretion on the commanding officer etc. to decide as to whether the offence shall be tried by ordinary criminal court or the Court-martial, the Supreme Court observed that the