Case: Chief Of Army Staff And Ors Vs. Major S.P. Chadha

the case may be, such Magistrate shall not proceed to try such person or to commit the case to the Court of Sessions, unless he is moved to do so by a competent military, naval, air force or coast guard authority or he is of the opinion as set out in clauses (b) of Rules 3 of the said Rules. Rule 4, in brief, provides that when such a person as aforestated is brought before the Magistrate for trial, before proceeding to frame the charge, the Magistrate shall give a notice to the Commanding Officer or the competent military authority or, as the case may be, of the accused and till the expiry of the period of 15 days from the date of service of such notice, the Magistrate concerned will not proceed to do any of the things set out in clauses (a) to (d) of Rule 4 of the said Rules. 13. Army Instruction No. 31 of 1986, inter alia provided that an officer who ceases to carry out the duties of his appointment by being attached to another unit for disciplinary purposes will vacate his appointment or relinquish any acting rank after 21 days. There is a further provision in the said instruction that if such an officer is subsequently acquitted or for any purpose not brought to trial or his character is vindicated to the satisfaction of the appropriate authorities at Army Head-quarters vide such inquiry as is made under para 346 of the Regulations for the Army, such officer will be reappointed to the post vacated by him and the acting rank of the officer will be deemed to have been held by him continuously with effect from the date he relinquished it.14. The first question which arises for consideration is whether, after having opted for trial of the respondent by a court martial under the Army Act, he could have been sent back by the army authorities to the ordinary criminal court for standing trial of the same offence. It was submitted by learned counsel for the respondent that as the offence alleged to have been committed by the respondent was a civil offence under the Act, the army authorities had the option of allowing the ordinary criminal court, namely, the Magistrates court, to try the respondent for the offence, or claim the respondent for trial by a court martial. After having exercised that option in favour of a trial by court martial, it was not longer open to the army authorities to send the respondent back for trial by the Magistrates court. 15. In our opinion, Section 121 of the Act, which deals with the prohibition of second trial, has no application to the present case before us as the respondent was neither acquitted nor convicted by the court martial or by a criminal court nor has he been dealt with under Section 80, 83, 84 or 85 of the Act. Section 127 of the Act deals with successive trials by a criminal court and court martial and sub-section (1) of Section 127 thereof specifically provides that a person convicted or acquitted by a court martial may, with the previous sanction of the Central Government, be tried again by a criminal court for the same offence or on the same facts. A perusal of the provisions of this section clearly shows that there is no general bar as such prohibiting successive trials by a court martial and by a criminal court and that even where a person has been convicted or acquitted by a court martial of the offence in question, he can be tried for the same offence by a criminal court, with the previous sanction of the Central Government. In the case before us, the question of sanction of the Central Government never arose because, as we have already pointed out, the respondent was neither convicted nor acquitted by the court martial or dealt with under any of the sections set out earlier. In our opinion, therefore, the aforesaid submission of learned counsel for the respondent must be rejected. 16. It was submitted by learned counsel for the respondent that, as far as the attachment of the respondent to HQ 15 Artillery Brigade is concerned, he was attached to the said unit for purposes of completing the disciplinary proceedings under the Army Act. As he was sent to a regular criminal court for standing trial, the attachment can no longer survive. In our view, this argument deserves acceptance. The only purpose of attachment of any army officer to a different unit is that the disciplinary proceedings against him could be speedily and satisfactorily completed without any interference by him. In view of the respondent being sent to the ordinary criminal court for trial, there was no question of his interfering thereafter with the disciplinary proceedings and in view of that, the order of attachment against him must be set aside and the respondent must be reattached to the IInd Sikh Light Infantry which was his original unit. The correctness of this argument was not disputed by learned counsel for the appellants. 17. As far as the question of suspension is concerned, we find that the respondent was suspended pending proceedings contemplated against him, as set out earlier. Under Army Instruction No. 31 of 1986 to which we referred to in some detail earlier, he vacated his appointment and acting rank 21 days after the attachment to a different regiment for purposes of completing the proceeding against him. As he has not yet been acquitted nor has his character been vindicated to the satisfaction of the appropriate authorities at Army Headquarters and he is to be tried by the criminal court, till the trial is completed or given up or till he is acquitted or his character vindicated to the satisfaction of the appropriate authorities, there is no case for revocation of the order of his suspension or restoration of his acting rank. That claim made by the respondent must, therefore, fail.

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

Explanation:
1[ds]15. In our opinion, Section 121 of the Act, which deals with the prohibition of second trial, has no application to the present case before us as the respondent was neither acquitted nor convicted by the court martial or by a criminal court nor has he been dealt with under Section 80, 83, 84 or 85 of the Act. Section 127 of the Act deals with successive trials by a criminal court and court martial and sub-section (1) of Section 127 thereof specifically provides that a person convicted or acquitted by a court martial may, with the previous sanction of the Central Government, be tried again by a criminal court for the same offence or on the same facts. A perusal of the provisions of this section clearly shows that there is no general bar as such prohibiting successive trials by a court martial and by a criminal court and that even where a person has been convicted or acquitted by a court martial of the offence in question, he can be tried for the same offence by a criminal court, with the previous sanction of the Central Government. In the case before us, the question of sanction of the Central Government never arose because, as we have already pointed out, the respondent was neither convicted nor acquitted by the court martial or dealt with under any of the sections set out earlier. In our opinion, therefore, the aforesaid submission of learned counsel for the respondent must beIt was submitted by learned counsel for the respondent that, as far as the attachment of the respondent to HQ 15 Artillery Brigade is concerned, he was attached to the said unit for purposes of completing the disciplinary proceedings under the Army Act. As he was sent to a regular criminal court for standing trial, the attachment can no longer survive. In our view, this argument deserves acceptance. The only purpose of attachment of any army officer to a different unit is that the disciplinary proceedings against him could be speedily and satisfactorily completed without any interference by him. In view of the respondent being sent to the ordinary criminal court for trial, there was no question of his interfering thereafter with the disciplinary proceedings and in view of that, the order of attachment against him must be set aside and the respondent must be reattached to the IInd Sikh Light Infantry which was his original unit. The correctness of this argument was not disputed by learned counsel for theAs far as the question of suspension is concerned, we find that the respondent was suspended pending proceedings contemplated against him, as set out earlier. Under Army Instruction No. 31 of 1986 to which we referred to in some detail earlier, he vacated his appointment and acting rank 21 days after the attachment to a different regiment for purposes of completing the proceeding against him. As he has not yet been acquitted nor has his character been vindicated to the satisfaction of the appropriate authorities at Army Headquarters and he is to be tried by the criminal court, till the trial is completed or given up or till he is acquitted or his character vindicated to the satisfaction of the appropriate authorities, there is no case for revocation of the order of his suspension or restoration of his acting rank. That claim made by the respondent must, therefore, fail