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

2. The respondent was an officer commissioned in the Indian Army. In 1983 the respondent held the rank of Lt. Colonel and was commanding the support Company for IInd Sikh Light Infantry. On June 12/13, 1983, the loss of the stengun belonging to C company and held in the charge of Sepoy Sital Singh, was reported to the Commanding Officer of 251 KHLI. An investigation was ordered by the Commanding Officer. It was reported at about 12.00 p.m., on June 14, 1983, that Sepoy Sital Singh had expired and Sepoy Bir Singh had sustained several injuries in the course of an investigation by the respondent and some others. A suspicion arose that these injuries were caused on account of torture inflicted on these sepoys. An FIR was filed with the Police Station, Charinda, District Amritsar at about 1.00 a.m., on June 14, 1983, to the effect that the death and injuries mentioned above had occurred as a result of scuffle between the said Sepoy Sital Singh and Sepoy Bir Singh. It seems to have been ascertained that the cause of injury stated in the FIR was baseless. Investigation of the army authorities revealed that the death of Sepoy Sital Singh and injuries to Sepoy Bir Singh had resulted on account of torture by electric shocks, and that the respondent and other army personnel concerned in the inquiry had been instrumental in inflicting the torture. Disciplinary proceedings were contemplated inter alia against the respondent and he was attached to HQ 15 Artillery Brigade. Consequent upon the attachment he was made to relinquish the acting rant of Lt. Colonel on the basis of Army Instruction No. 1/8/74 as amended by Army Instruction No. 2/76. The army authorities opted for a trial of the respondent by a court martial and hence, the respondent was put up for trial before a general court martial along with six other persons on March 6, 1985. Therefore, the respondent filed a Writ petition being Writ Petition No. 11823 of 1985 before this Court, challenging the action of the army authorities in putting him up for trial as aforestated. The respondent was also suspended pending proceedings contemplated against him. The general court martial which assembled on March 15, 1985, for trial could not proceed in view of the fact that one of the members constituting the said court had retired and a fresh court martial was not available to be constituted as a reference thereto was barred by limitation. The court martial was, therefore, dissolved under Section 117 ofthe Army Act, 1950 (referred to hereinafter as the Act) and the respondent was handed over to the civil authorities for being tried by a regular criminal court. In these circumstances, this Court dismissed the aforesaid writ petition filed by the respondent by an order dated May 17, 1987. There was some delay thereafter apparently on account of the hesitation of the police authorities but ultimately, a complaint was filed on September 4, 1987, before a Chief Judicial Magistrate, Amritsar under Section 190(1) (a) of theCode of Criminal Procedure, 1898, against the respondent and others suspected to be involved in the torture which led to the death of Sepoy Sital Singh and severe injuries to Sepoy Bir Singh asAt this stage the respondent filed a Civil Writ Petition No. 5885 of 1988 in the High Court of Punjab and Haryana under Article 226/227 of the Constitution, praying for the issue of a writ or order for restoring to him the rank of Lt. Colonel and for a declaration to the effect that the respondent continued to hold the rank of Lt. Colonel continuously and that bringing him down to the rank of Major was illegal and unconstitutional. The respondent also prayed for a writ or order quashing the order of suspension made against him, on the ground of its being mala fide andA learned Single Judge of the High Court, who disposed of the said writ petition, held that once the respondent was claimed for trial under the provisions of the Act from civil authorities he could not be handed back to the civil authorities for trial on the ground that the trial under the provisions of the Act was not possible or feasible. The learned Judge held that as a consequence of this, the respondent was entitled to be granted his previous rank from the date he was made to lose the same. The learned Judge further held that once the attachment of the respondent to another regiment was made for the purposes of disciplinary proceedings, the suspension of the respondent could not be further resorted to and hence, was liable to be setThe Letters Patent Appeal preferred by the appellants against the decision of the learned Single Judge of the High Court was summarily dismissed. This appeal is directed against the said order of dismissal

Reasoning:
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