Case: Union Of India  Vs. Vishav Priya Singh

CO to effectively exercise powers vested in a CO; or 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 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 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 insist upon the CO of the Unit to which the accused belongs, regardless 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 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, 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 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 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. 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 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 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 of efficacy and force of such Note below a Section in an Act enacted by the Parliament, for the present purposes it is sufficient to notice that this 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 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 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 appear at page 172 of the Ministry of Defence Report of 2015 in following terms:- ...... the Committee recommends that the environment may be sensitized that the provision of SCM should be used sparingly and exceptionally and preferably only in operational areas where resort to a regular trial is not practicable or when 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 such a provision on the statute book may be examined with the suitability of a replacement by amore robust system 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 when other effective tools of enforcing discipline are available. These recommendations sum up the approach that needs to be adopted, quite well.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]20. The High Court of Delhi was therefore completely correct in 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, 200731. 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. 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 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 the SCMwe 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 of efficacy and force of such Note below a Section in an Act enacted by the Parliament, for the present purposes it is sufficient to notice that this Note stood deleted on and with effect from 28.08.200133. 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 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 by well articulated reasons or the record itself must justify such resort