Case: Union Of India  Vs. Vishav Priya Singh

2. In CWP 2511/1992 the Petitioner, Ex. L Nk Vishav Priya Singh, has alleged that he had made complaint against the CO, 19th Batallion Mahar Regiment of prejudicial treatment meted out by him to the Petitioner. It has been asseverated in the Writ Petition that initially the Brigade Commander had nominated the CO, 17th Kumaon to investigate into the Petitioners complaint. The CO of 19th Mahar through manipulation got his close friend, the CO of 18th Batallion, Punjab Regiment, detailed to investigate these complaints. The Petitioner was ordered to proceed to 18th Punjab Regiment. Eventually, the CO, 18th Punjab Regiment tried the Petitioner by SCM and convicted/sentenced him to suffer Rigorous Imprisonment of six months in the Civil Jail and dismissal from service. The argument is that since the Petitioner belonged to the 19th Mahar, but was tried by SCM held by CO of 18th Punjab Regiment, the Trial was rendered coram non judice. ........................................................................................It is important to mention that the Petitioner had made complaints against his CO on 26.3.1990; he was interviewed by the Brigade Commander on 30.5.1990; was asked to appear before the CO, 18th Punjab Regiment on 15.7.1990; was charged under Section 41(2) of the Army Act for disobeying a lawful command given by a superior officer in that he, when asked to accept a letter dated 16.7.1990, requiring his presence in COs Office for investigation in Unit refused to do so and disobeyed verbal orders2. Ex. NK Prem Singh has filed CWP 3519/1998 pleading that he belonged to 15 INF DIV ORD Unit which assertion stands admitted. On 17.4.1998 he was charged under Section 40(a) of the Army Act for using criminal force to his superior officer in that he, at Amritsar on 20.10.1997 struck with an iron implement on the head and legs of Company Hav. Major Clerk. The Petitioner was sentenced to (a) reduced to ranks, (b) dismissed from service and (c) Rigorous Imprisonment for six months in the Civil Jail. ..................... ......................... ............................................................................The CO, 194 Field Regiment, convened the SCM which concluded on 21.4.1998. The Respondents have pleaded that the Petitioner was attached for disciplinary purposes with 194 Field Regiment vide letter dated 21.10.1997. In paragraph 3 of the Counter Affidavit it has been asseverated that the occurrence for which the petitioner was taken into custody took place on the evening of 20.10.1997. He was taken into custody by the CO of his Unit and since his Unit had no quarter guard, the petitioner was shifted to the quarter guard towards of 194 Field Regiment for safe custody. It has further been pleaded that by letter dated 24.10.1997 the Petitioner was attached with the Unit for disciplinary purposes, to remain attached till finalisation of the investigation against him. In other words, six months had elapsed between the incident which is the subject matter of the SCM and the holding of the SCM4. CWP 6185/2002 has been filed by Ex. NK Dwarka Prasad stating that he belonged to 24th Rajput Regiment. In the year 2000 he was temporarily attached to 61st Infantry Brigade to perform the duties as a Sahayak. By Charge-sheet dated 29.10.2001 under Section 69 of the Army Act he was accused of committing a civil offence on 25.10.2001, that is to say, using criminal force to a woman with an intent to outrage her modesty and on that very date the Commander, 65th Infantry Brigade ordered that he be tried by an SCM. The Petitioner was tried by the SCM between 3.11.2001 and 5.11.2001 and was convicted/sentenced (1) to be reduced to ranks (ii) to be dismissed from service, (iii) to suffer imprisonment in civil jail for one year5. CWP 2433/2003 has been filed by Ex. Hav Dharambir Kanker who had been promoted to the rank of Havaldar in the Corps of the Military Police. After sixteen years he was posted to 4th Corps Provost Unit at Tezpur in Assam. By Charge-sheet dated 9.6.2000 the Petitioner was accused of making sundry accusations against a person subject to the Army Act. On 22.6.2000 the SCM sentenced the Petitioner (a) to be reduced to -the ranks and (b) to be dismissed from service6. CWP 20233/2005 has been filed by Sepoy U.S. Mishra stating that he was enrolled in the Indian Army in March, 1987 and that on 18.3.1999 he was posted to 38 defence Medical Store Depot. By letter dated 27.3.2002 the Petitioner was attached, for disciplinary purposes, to 38 AMSD Blocks. The Petitioner was, along with 15 Army personnel, tried by SCM between 20.12.2004 and 4.1.2005 by CO 118 Field Regiment where the Petitioner was attached for disciplinary purposes. The first charge under Section 52(f) of the Army Act was that the Petitioner between 4.8.1999 to 6.6.2001, with intent to defraud, improperly altered several entries in the Issue Vouchers. The Petitioner was found guilty and sentenced to be reduced to ranks on 4.1.2005. The contention is that the CO of 118 Field Regiment could not try the Petitioner by SCM since he was only attached with the Unit. Delay in convening the SCM would also obviously come in for consideration7. The facts in CWP 17622/2004 filed by Sep/Clerk S.K. Nair and CWP 18185/2004 filed by Sep/Clerk Balwinder Singh are similar. In September 1998 a Court of Inquiry was ordered to investigate into the irregular enrollment during a recruitment rally held at Pathankot in March 1995. The Petitioners assert that since they were posted to 14th Sikh Regiment, only the CO of that Unit was competent to try them by an SCM. Accordingly, SCM by the CO of 1 TB ASC Centre, Gaya was legally incompetent and non-est. Delay in convening the SCM would also obviously come in for consideration3. Writ Petitions before the High Court of Delhi raised two common questions of law pertaining to Summary Courts Martial (hereinafter referred to as SCM):-(a) whether an SCM can be convened, constituted and completed by the Commanding Officer (CO for short) of a Unit to which the accused did not belong and(b) the circumstances in which the SCM can be convened rather than a General Courts Martial (GCM for short), a District Courts Martial (DCM for short) or Summary General Courts Martial (SGCM for short) as envisaged in Section 108 of the Army Act 1950 (hereinafter referred to as the Act)While allowing these Writ Petitions, the High Court in Paragraphs 20, 22, 23 and 24 of its judgment observed as under:20. An SCM can legitimately be convened where there is grave and compelling cause for taking immediate action which would be defeated if reference to a District Court Martial or Summary General Court Martial is made. In other words, holding of an SCM is the exception and not the rule. From the multitude of possible offences it is only those envisaged in Sections 34, 37 and 69, that can be tried by an SCM, further fortifying the exceptional and extraordinary character of an SCM. We think it necessary to underscore that it is not proper to convene an SCM merely because the offence(s) with which a sepoy of the force is charged finds mention in the enumeration contained in these three Sections. What is of pre-eminence in convening an SCM is that it should be found imperative that immediate action is manifestly necessary. Therefore, it is essential that this factor, viz. need to hold a trial immediately, is articulated and reasoned out in writing in the order convening the SCM. Failure to do so would create good reason to quash the SCM itself. Routinely, and certainly far too frequently, the sentence passed by SCMs violates the spirit of Regulation 448(c) (supra) thereby taking away the sepoys livelihood without affording them the normal procedural protections of law22. We shall endeavor to discharge this duty by enunciating firstly that it is the CO of the Unit to which the accused belongs who is empowered to convene an SCM. This is not a empty formality or pointless punctilio. There is an abiding and umbilical connection between the CO and his regime. The Ranks have always looked up at their CO as the father figure who will be as concerned with their welfare as with their discipline. This is the only conclusion that can be arrived at on a holistic reading of the Army Act, Rules and Regulations23. As per our analysis above, the exception to this Rule is restricted to the case of Deserters and that too where the CO of the Unit to which they belong is not readily and easily available. Secondly, an SCM must be the exception and not the Rule. It can only be convened where the exigencies demand an immediate and swift decision without which the situation will indubitably be exacerbated with widespread ramifications. Obviously, where the delinquent or the indisciplined action partakes of an individual character or has civil law dimensions, an SCM should not be resorted to. Delay would thus become fatal to an SCM. Thirdly, the decision to convene an SCM must be preceded by a reasoned order which itself will be amenable to Judicial Review. We are certain that once this formality is complied with, the inevitable disregard of the accused rights for a fair trial shall automatically be restricted to those rare cases where the interests of maintaining a disciplined military force far outweigh the protection of the minor civil rights of a citizen of India24. In this analysis of the law in the context of the factual matrix spelt out in the Petitions, we set aside the verdict of the impugned SCMs on the short ground that it was not convened, constituted and completed by the CO of the Unit to which the Petitioner belonged. We are fully mindful of the fact that in Vishav Priya Singhs petition the situation is a complex one, inasmuch as the allegations have been levelled against the CO of the Unit to which the Petitioner belongs. If the CO were to himself convene the SCM it would tantamount to his being a judge in his own cause. It has so often been quipped in the portals of the Court that hard cases should not make bad law. Therefore, solution may lie in constituting any other Court Martial, on an emergency footing if the circumstances so dictate. None of the Petitioners have been charged with the most reprehensible offence conceivable in the Armed Forces, that is of Desertion. Even if so charged it would have to have been further established, as a pre-condition for the holding of an SCM by the CO of the Unit to which the Petitioner was attached, that the CO of the Unit to which the accused belonged was serving in a high altitude area, or overseas or engaged in counter-insurgency operations or active hostilities or in Andaman and Nicobar Islands. We clarify that since the Trial is non est, the Respondents shall be free to proceed against the Petitioners de novo in accordance with law4. During the course of its judgment, the High Court of Delhi considered Sections 116 and 120 of the Act along with Note 5 below Section 116 and Note 5 below Section 120 as well as Paragraph 381 of the Defence Service Regulations (hereinafter referred to as the DSR). According to the High Court in cases concerning trial of deserters as dealt with in Paragraph 381 of the DSR, a specific exception was carved out enabling CO of a unit other than the one to which the accused belonged to convene, constitute and complete an SCM. Barring such exception, according to the High Court, it is the CO of the unit to which the accused belonged, who alone is empowered to convene, constitute and complete an SCM. The High Court further held that for convening an SCM it was imperative that immediate action was manifestly necessary5. Along with the Appeals arising from the decision of the High Court of Delhi, Civil Appeal Nos.2547-2550 of 2011 at the instance of Original Writ Petitioners, challenging the correctness of the common decision of the High Court of Rajasthan at Jaipur dated 31.08.2006 dismissing their Appeals arising from dismissal of their writ petitions, were also placed before us. Though the question as regards competence of the CO of a Unit other than the one to which the accused belonged to convene, constitute and complete an SCM, was not raised before the High Court of Rajasthan, the other question as to the circumstances in which an SCM could be convened rather than a GCM or DCM or SGCM did arise in the matters dealt with by the High Court of Rajasthan. In any case, we proceed to consider these appeals even with regard to the former question

Reasoning:
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