UNION OF INDIA AND ORS.

A v.

CAPT. A.P. BAJPAI

FEBRUARY 20, 1998

[SUJATA V. MANOHAR AND D.P. WADHWA, JJ.] B

Service Law :

Army Act, 1950 : Sections 39(b), 52(a), 153, 180 and 164(2). c Confirming authority-Revisional jurisdiction under S. 160-Scope- Confirming authority without intending to interfere with the discretion of the court directed General Court-Martial (GClvf): (i} to reconsider the entire evidence relating to the charge of which the GCM acquitted the accused, (ii) to give a further opportunity to the accused to address the Court and (iii) to pass a suitable fresh sentence in case the accused was found guilty- D Accused contended that the mind of GCM was influenced by the observations of the confirming authority, and that the confirming authority ought not to have interfered with the proceedings of the GCM which had arrived at a finding after considering the evidence-Held: Revisional jurisdiction of the confirming authority under S. 160 is not confined only to giving of directions E for recording additional evidence by GCM but extends to analysing the evidence on record for indicating where the Court"Martial has failed to properly appreciate the evidence-In the circumstance of the case, the confirming authority did not exceed its jurisdiction-Contentions of accused rejected-Army Rules, 1954, Rule 68 and Note 6 thereto.

F The respondent, an Anny Officer, was tried by General Court-Martial (GCM) under Section 52(a) and 39(b) of the Anny Act, 1950 (i) for committing theft of Government property and (ii) absenting himself without leave. The GCM held the respondent guilty of the second charge and sentenced him to forfeit three years' service for the purpose of promotion and to be severely G reprimanded. The confirming authority under Section 160 of the Act revised the findings of the GCM on the first change and directed it to reconsider the entire evidence relating to the first charge in the light of the observations made by him in the order without in any way intending to interfere with the discretion of the Court. The confirming authority further directed that a further opportunity should be given to the respondent-accused to address the H

A Court and that in case the respondent-accused was found guilty a suitable I. fresh sentence should be passed. In accordance with the said directions, the GCM reconsidered the matter and held the respondent guilty on both the charges. The respondent thereafter was sentenced to be dismissed from sen'ice. The Chief of the Army Staff confirmed the conviction and sentence.

B The respondent's representation under Section 164(2) of the Act was re.iected. The High Court set aside the conviction and sentence and also the order of the confirming authority on the ground that the confirming authority had analysed the evidence minutely almost returning the finding of guilt against the rcs1iondent and leaving no discretion with the GCM to act otherwise.

C Hence this appeal.

On behalf of the respondent-accused it was contended that the jurisdiction of the confirming authority was confined only to giving of direcions for recording additional evidence; that the GCM concluded its proceedings hurriedly without applying its mind independently of the observations of the D confirming authority; that the mind of the GCM was influenced by the observations of the confirming authority; and that there was no ground for the confirming authority to interfere with the proceedings of the GCM which had considered the evidence and arguments in depth and held the first change not proved against the respondent.

E Allowing the ap11eal, this Court

HELD : 1. In view of Section 160 of the Army Act, 1950 and Rule 68 of the Army Rules, 1954 and Note 6 thereto the finding or sentence of the Court-Martial can be revised once by the confirming authority. If after remand and Court-Martial returns the same finding or sentence, confirming F authority would be bound by the same. As to why the confirming authority would like the Court-Martial to reconsider the matter, it has per force to give its views which it can do only after examining the evidence on record and the proceedings of the Court-Martial. (1048-B)

G Capt. Harish Uppal v. Union of India, (1979) 2 SCR 1025, relied on.

Gian Chand v. Union of India, (1983) Crl. L.J. 1059 (Del), approved.

Naib Subedar Avtar Singh v. Union of India, (1983) Cr. L.J. 1986 (Del), referred to.

2. It is an indisputable fact that in the conduct of the Court-Martial

U.O.I. v. CAPT. A.P. BAJPAI 1043

proceedings before and at the stage of reconsideration, procedure as A prescribed was followed. It is true that the confirming authority did analyse the evidence on the record of the proceedings of the Cou~-Material but that was so done in the context of indicating where the Court-Martial could have gone wrong in appreciation of evidence and nevertheless caution had been administered to the Court-Martial that what was said in the revision order B was not intended in any way to interfere with the discretion of the Court- Martial that what said in the revision order was not intended in any way to interfere with the discretion of the Court-Martial to arrive at a particular finding or sentence and regarding the value to be attached to the evidence on record and the inference to be deduced therefrom. [1050-E) c

3. The jurisdiction of the confirming authority is not confined only to giving of directions for recording additional evidence by General Court- Martial (GCM). The confirming authority cannot act merely as a rubber stamp. The fact that the finding and sentence of the Court-Martial should be valid only after it is confirmed by the competent authority would show that D it has to examine the whole of the record of the proceedings of the Court- Martial before confirming the finding or sentence. It is the requirement of section 160 of the Act that when the confirming authority wishes that the finding or sentence of a Court-Martial requires revision it should not send back the case as a matter of course but should record reasons as to why the confirming authority though as to where the Court-Martial has failed in its E duty to properly examine the facts and in application of correct law. When the matter is.remitted back to the Court-Martial under Section 160 of the Act the Court-Martial may take additional evidences if so directed by the confirming authority. In the present case no such direction was given by the confirming authority and there was no occasion for the GCM to record F additional evidence. Full opportunity was given to the respondent to make submission before the GCM after it had reassembled and as the record would show a copy of the revisional order was also supplied to the respondent and he made his submission in writing. The Court thereafter closed for reconsideration and it was thereafter that it revoked its earlier finding and sentence and held the respondent guilty of the first and second charges. It G cannot be said that the finding and sentence after reconsideration was arrived at in a hurried fashion. It was the Chief of the Army Staff who confirmed the finding and sentence and when he did so it could not be said that the whole of the record was not before him. Therefore, it cannot be said that the confirming authority exceeded its jurisdiction in analysing the evidence H

A recorded during the Court-Martial proceedings. (1051-G-H; 1052-A-D]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9190 of 1995.

From the Judgm::nt and Order dated 22.12.92 of the Allahabad High B Court in 0. A. No. 8113of1981.

P.P. Malhotra, N.N. Goswami, A.K. Srivastava, Hemant Shanna and Ms.

Anil Katiyar for tl1e Appellants.

J.S. Sinha, Rajiv Dutta and Randhir Singh for the Respondent.

The Judgment of the Court was delivered by

D.P. WADHW A, J. The respondent, au officer in tlle anuy, was tried by General Court Martial on the following two charges:

"(i) Under Anny Act Section 52(a) for committing tlleft of property belonging to the Government in that he, at Pitlloragarh on 08 Sep 77 committed tlleft of tlle following property belonging to tlle Govt :-

(aa) Jam td Kissan 4 tins ( 450 gms each)

- 1.800 Kgs

(bb) Pine apple td 6 tins (850 gms each)

- 5.100 Kgs.

(cc) Sausage td 9 tins (400 gms each)

- 3.600 Kgs.

(dd) Coffee 1 tins (500 g111s)

- 0.500 Kgs.

(ee) Milk td 54 tins (397 gms each)

- 21. 438 Kgs.

(ii) Under Army Act Section 39 {b) for absenting himselfwitllout leave in tllat he, at Pitlloragarh, on 03 Jun 78, while attached to Station Headquarters Pithoragarh, absented himself without leave until voluntarily rejoined on 07 Jun 78."

G After tlle conclusion of tlle trial by order dated January 21, 1979 General Court Martial held the respondent not guilty of tlle first charge of tlleft, but found him guilty of tlle second charge and sentenced him to forfeit three years' service for tlle purpose of promotion and to be severely reprimanded.

Under Section 153 of tlle Army Act, 1953 (for short 'tlle Act'), the finding or sentence shall be valid except so far as it may be confirmed as provided by H the' Act. Under Section 154 tlle finding and sentence of General Court Martial

U.0.1. v. CAPT. A.P. BAJPAI [D.P. WADHWA, J.) 1045

may be confirmed by the Central Government, or by any officer empowered A in this behalf by warrant of the Central Government. When the matter was placed before the General Officer Commanding U.P. Area, the competent confirming authority, he in the exercise of his power under Section 160 of the Act revised the findings of the General Court Martial on the first charge and directed it to reconsider the entire evidence relating to the first charge in the B light of the observations made by him in the order. He gave the following directions for the General Court Martial to observe:

"If the Court, on revision, revokes its earlier finding on the first charge and find the accused guilty of the first charge, it shall revoke its earlier sentence and pass a suitable fresh sentence.

After this revision order is read in open Court; the accused shall be given a further opportunity to address the Court. Therefore, if it becomes necessary to clear any points raised by the accused, the Judge Advocate may give a further Summing up.

The attention of the Court is invited to Army Act Section 160 and D Army Rule 68 and the form of proceedings on revision on page 370 of the MIML 1961 reprint, which should be modified to conform to Army Rule 62(10)."

In pursuance to the aforesaid order of the confirming authority, General E Court Martial assembled on March I 0, 1979 and on the request of the respondent was adjourned to the following day. The respondent made written submissions which were taken on record. After reconsideration the court held the respondent guilty of both first and the second charges. Respondent was thereafter sentenced to be dismissed from service by order dated March 11,

1979. The conviction and sentence so passed on the respondent was confirmed F by the Chiefofthe Army Staff by order dated September 14, 1979 which was promulgated on September 24,. 1979.

The respondent under Section 164 (2) of the Act preferred a post confirmation petition before the Central Government which was rejected. The G respondent thereafter filed the writ petition in the High Court of Judicature at Allahabad challenging his conviction and sentence. A Division Bench of the High Court by impugned judgment dated December 22. 1992 set aside the conviction and sentence passed on the respondent on the first charge and held that punishment on the second charge was yet to be confirmed by the confirming authority so as to make the same operative. On leave being H

A granted, the appellants have filed this appeal.

The stage from which the High Court thought it necessary to interfere in the proceedings was when the confirming authority passed order under Section 160 of the Act revising the order of the General Court Martial holding the respondent not guilty of the first charge. High Court was of the view that B the confirming authority had analysed the evidence minutely almost returning

the finding of guilt against the respondent and leaving no discretion with the General Court Martial to act otherwise. High Court termed the observations of the confirming authority unwarranted and said that even the subsequent confirming authority being the Chief of the Army Staff overlooked the abuse C of the power committed by the first confirming authority under Section 160

of the Act in reappreciating the whole evidence on record in respect of the quilt of the respondent and further that the authorities did not care to read the revisional order of the confirming authority properly and rejected the statutory representation of the respondent. High Court did notice the following observations of the confirming authority in its order of revision but said it D was a very ingenious method adopted by the confirming authority to influence the Court Martial and said that the whole thing was a mere camouflage:

"While in no way wishing to interfere with the discretion of the court to arrive at a particular finding or sentence, and regarding the value to be attached to the evidence on record and the inference to be E deducted therefrom, I, as the confirming officer, am of the view that the finding of not guilty' on the first charge arrived at by the court is pervese being against the weight of overwhelming evidence .. "

High Court was thus of the view that the first confirming authority overstepped its jurisdiction and that. its order was invalid. High Court relied on F a decision of the Delhi High Court in Naib Subedar Avtar v. Union of India,

(1989) Crl.L.J. 1986 rendered by a single Judge where that Court took the view that the confirming authority could not appreciate evidence as its jurisdiction was limited and that where the confirming authority had given directions to the Court Martial to reverse the findings of "not guilty" into "guilty", the G order of the confirming authority was held to be bad and liable to be quashed.

In our view, the High Court did not properly appreciate the scope and intent of Section 160 of the Act. Section 160 is as under:

"160. (!) Any finding or sentence of a court-martial which requires H confirmation may be once revised by order of the confirming authority

U.O.I. v. CAPT.A.P. BAJPAI [D.P. WADHWA, J.] 1047

and on such revision, the court, if so directed by the confinning A authority, may take additional evidence.

(2) The court, on revision, shall consist of the same officers as were present when the original decision was passed, unless any of those officers are unavoidably absent.

(3) In case of such unavoidable absence the cause thereof shall be duly certified in the proceedings, and the court shall proceed with the revision provided that, if a general court-martial, it still consists of five officers, or, if a summary general or district court-martial of ~~=" c

Rule 68 of Anny Rules, 1954 deals with confirmation and revision of finding or sentence of a Court Martial. There are Notes under this Rule and Note 6 is relevant. These are:

"68. Revision.- (I) Where the finding is sent back for revision under D Section 160, the court shall reassemble in open court, the revision order shall be read, and if the court is directed to take fresh evidence, such evidence shall also be taken in open court. The court shall then deliberate on its finding in closed court.

(2) Where the finding is sent back for revision and the court does E not adhere to its fonner finding, it shall revoke the finding and sentence and record the new finding, and if such new finding involves a sentence, pass sentence afresh.

(3) Where the sentence alone is sent back for revision, the court F shall not revise the finding.

( 4) After the revision, the presiding officer shall date and sign the decision of the court, and the proceedings, upon being signed by the Judge-Advocate, if any, shall at once be transmitted for confinnation.

NOTES

I to 5 xxx xxx

6. If a court brings in a finding of "not guilty" against the weight of evidence, the court may be re-assembled and the confinning officer H

may give his views on the evidence, directing the attention of the court to any special points which it appears to have failed to appreciate."

The finding sentence of the Court Martial can be revised once by the confirming authority. If after remand the Court Martial returns the same B finding or sentence confirming authority would be bounj by the same. As ,.._.

to why the confirming authority would like the Court Martial to reconsider the matter, it has per force to give its views which it can do only after examining the evidence on record and the proceedings of the Court Martial.

C In Capt. Harish Uppalv. Union of India and Others, [1973) 2 SCR 1025 the petitioner, an officer in the Am1y, was tried before the Summary General Court Martial on the charge of committing robbery on December 11, 1971 at Hajiganj (in Bangladesh) of the properties of the Bank, its Manager as well as of the Chowkidar. The court sentenced him to be cashiered. T11is sentence D was subject to confirmation. The confirming authority passed an order directing the revision of the sentence. Thereafter t11e petitioner was brought before t11e same Court Martial and after considering the observations of the confirming aut11ority revoked t11e earlier sentence and now sentenced him to be cashiered and to suffer rigorous imprisonment for two years. This finding E and sentence were subsequently confirmed. It was challenged in the Supreme

Court in a petition under Article 32 of the Constitution and one of the arguments was that the authority to confirm t11e sentence passed by a Court Martial did not confer on the confirming authority the power to enhance t11e sentence and that authority could not achieve t11at object indirectly by directing the revision of the sentence. It was contended that the Court Martial verdict F should be unfettered. This Court examined the order of revision of the confirming authority. While sending the matter back to the Court Martial the confirming authority gave a caution tliat "whilst in no way intending the quantum of punishment to be awarded, the court should fully take into consideration the following observations of t11e Confirming Officer" and also G that the court should t11en carefully consider all the above and should tlley

decide to enhance the sentence, then fresh sentence should be announced in open court as being subject to confirmation. This Court held that the order of the confirming authority directing revision was in no way vitiated.

H In Gian Chand v. Union of India and others, (1983) Cr!. L.J. 1059, a

U.0.1. v. CAPT.A.P.BAJPAI [D.P. WADHWA, J.) 1049

division bench of the Delhi High Court said that a direction given by the A confinning authority to the General Court Martial to reconsider the finding or sentence could not be said to be a fetter on the exercise of powers of the General Court Martial. High Court said that an order under Section 160 was a sort of an application for review which was made by the confirming authority and the statute, thereupon, casts a duty on the General Court Martial to B reconsider its earlier finding or sentence but it was not obliged to change its earlier view. It further said that the Court Martial when it was reconsidering the matter in pursuance of a direction having been issued under Section 160 had to apply its mind to the case independently, uninfluenced by any observations which might have been made in the direction given by the confinning authority. These two decisions, it would appear, were not brought C to the notice of the Judges of the Allahabad High Court while delivering the impugned judgment as there is no reference to the aforesaid two decisions, one of the Supreme Court and the other of the Division Ben ch of the Delhi High Court.

In &. Lieut Jagdish Pal Singh v. Union of India and Ors., [Criminal D Appeal NO. 104 of 1991 decided on May 7, 1997] the appellant was a commissioned officer in the Army and faced trial before a Court Martial on the accusation of taking away large number of bottles of Rum worth about Rs. 5616/- from the military canteen. After trial the Court Martial held the charge not proved against the appellant. When the matter was placed before E the confirming authority as required under Section 153 of the Act, the confirming authority remitted the matter to the Court Martial indicating various aspects of the case which had not been considered properly. It was made clear by the confirming authority at the outset that the observations made by the confirming authority were not made to in any way interfere with the discretion of the members of the Court Martial in basing its finding on reconsideration of the F matter. Thereafter the Court Martial met again and on reconsideration came to the finding that the appellant was held guilty of the offence and sentenced him to be dismissed from service. TI1e finding and sentence were later confinned by the confinning authority. The appellant filed a writ petition in the Delhi High Court challenging his conviction and sentence but the same G was dismissed. In appeal before this Court it was contended that the revisional authority was empowered merely to direct for additional evidence and that no such direction had been given and on the contrary observation on merits of the case was made overstepping the limit of jurisdiction by tlie confirming authority. This Court held that the confirming authority had not made any finding which was likely to cause prejudice against the appellant and that it H

A had at the very outset made it clear that the Court Martial was free to decide by adverting to certain basic features indicated hy the confirming authority. ;.

This Court therefore refused to interfere in the matter.

We are unable to subscribe to the submissions now advanced before us that the jurisdiction of the confim1ing authority is confined only to giving B of directions for recording additional evidence by General Court Martial or that from the order of the confirming authority "inference cannot be escaped that tltls is based not on any independent judgment but influenced by the undisguised opinion expressed by the confirming authority on merits of the

case" or that the revisional order contained such unwarranted observations, C which were tantamount to recording of finding, which was in no way the function of the confirming authority or that there has been "unabashed

excess and misuse of jurisdiction" by confirming authority. It was asserted that tl1e order in revision was liable to be quashed and rightly done so by the High Court. All this, however, appears to us to be ntlstaken view entertained by the High Court both in law and from the facts of the case.

D There is no dispute that in the conduct of the Court Martial proceedings < before and at the stage of reconsideration procedure as prescribed was followed. It is true tl1at tlle confim1ing autllority did analyse the evidence on tlle record of proceedings of the Court Martial but that was so done in tlle

context of indicating where tlle Court Martial could have gone wrong in E appreciation of evidence and nevertheless caution had been administered to the Court Martial that what was said in tlle revision order was not intended in any way to interfere witll the discretion of tlle Court Martial to arrive at a particular finding or sentence and regarding the value to be attached to the evidence on record and tlle inference to be deducted tllerefrom. Confirming F autllority said:

"Consequently, I am also of the view tllat the sentence awarded on finding the accused quality of the second charge is not commensurate with tlle gravity of tlle offence. At the very outset, I wish to impress that where the Court ignores tlle broad features of the prosecution case, and restricts itself to a consideration of ntlnor discrepancies and furtller meticulously ju>.1aposes the evidence of different witnesses on disputed points and discards the evidence in its entirety when discrepancies are found, the method can rightly be criticised as fallacious. It has to consider whether there is any direct/reliable evidence on questions which have to be established by tlle

U.0.1. v. CAPT.A.P. BAJPAI [D.P. WADHWA, J.] 1051

prosecution. Undoubtedly, in considering whether evidence is reliable, A it is justified in directing attention to other evidence which contradicts or is inconsistent with the evidence relied upon by the prosecution.

But to discard all evidence because there are discrepancies without any attempt at evaluation of the inherent quality of the evidence is unwarranted. The court should make an effort to disengage the truth from falsehood. It is an error to take and easy course by holding the B evidence discrepant and the whole case untrue. Even when the prosecution witnesses have not deposed the whole truth and although it may not be possible to get an absolutely true picture of the events from their evidence, it is not proper and justifiable to say that the prosecution case is a complete fabrication. Bearing in mind these C principles the Court should examine the evidence adduced before them in respect of each charge."

It was contended by the respondent that the very use of the expression "perverse" in the revision order would have influenced the mind of the members of the General Court Martial as the officers constituting the General D Court Martial were lower in rank than the confirming authority who was of the rank of Major General and that the confirming authority of its own appreciated whole of the evidence instead of saying as to what evidence was to be considered by the General Court Martial which had the effect of influencing the General Court Martial. An argument was also raised that when E the Court Martial reassembled afte1 the revision order the whole proceeding concluded within half an hour and the General Court Martial returned finding of guilt against the respondent. That according to the respondent would show that the General Court Martial did not apply its mind independently and was swayed by the opinion of the confirming authority. It was lastly submitted • that there was no ground for the confirming authority to interfere in the F proceeding of the General Court Martial which had considered the evidence and argument in depth and held the first charge not proved against the respondent. We are unable to agree to any of the submissions. Confirming authority cannot act merely as a rubber stamp. The fact that the finding and sentence of Court Martial should be valid only after it is confirmed by the G competent authority would show that it has to examine the whole of the record of the proceeding of the Court Martial before confirming the finding or sentence. It is the requirement of Section 160 that when the confirming authority wishes that the finding or sentence of a Court Martial required revision it should not send back the case as a matter of course but record reasons as to why the confirming authority thought so as to where the Court H

A Martial has failed in its duty to properly examine the facts and in application of correct law. When the matter is remitted back to the Court Martial under Section 160 the Court Martial may take additional evidence if so directed by the confirming authority. In the present case no such direction was given by the confim1ing authority and there was no occasion for the General Court B Martial to record additional evidence. Full opportunity was given to the respondent to mal<:e submission before the General Court Martial after it had reassembled and .as the record would show copy of the revisional order was also supplied to respondent and he made his submission in writing. The Court thereafter closed for reconsideration and it was thereafter that it revoked its earlier finding and sentence and held the respondent guilty of the first and C second charge. It cannot be said that the finding and sentence after reconsideration was arrived at in a hurried fashion. We have noted above that now it was the Chief of the Army Staff who confirmed the finding and sentence and when he did so it could not be said that the wl10le of the record was not before him. We do not think that the confirming authority exceeded its jurisdiction in analysing the evidence recorded during Court Martial D proceedings. The revision order was not intended in any way to interfere with the discretion of the Court Martial and the Court Martial was also not bound by any such observation.

We, therefore, allow the appeal, set aside the Judgment of the High E Court and dismiss the writ petition filed by the respondent.

V.S.S.

Appeal allowed.