1996 (3) TMI 472 - SC - Indian Laws

Whether the trial of the respondent commenced within six months from the date of his retirement, viz., August 31, 1986? what is the meaning of the words trial commenced as used in sub-section 2 of Section 123 and as to when it commences? Held that - Appeal allowed. From the narration of the facts it is clear that the respondent was bent upon protracting preliminary investigation. Ultimately, when the GCM was constituted, he had challenged his detention order. When he was unsuccessful and the trial was to begin he escaped the detention to frustrate the commencement of the trial and pleaded bar of limitation on and from March 1, 1987. The respondent having escaped from lawful military custody and prevented the trial from being proceeded with in accordance with law, the maxim nullus commodum capere potest de injuria sua propria squarely applies to the case and he having done the wrong, cannot take advantage of his own wrong and plead bar of limitation to frustrate the lawful trial by a competent GCM. Therefore, even on the narrow interpretation, we hold that continuation of trial from March 2, 1987 which commenced on February 25, 1987 is not a bar and it is a valid trial.

Issues Involved
1. Validity of the trial commencement under Section 123 of the Army Act, 1950.
2. Interpretation of "trial commenced" under Section 123(2) of the Army Act.
3. Applicability of the maxim "nullus commodum capere potest de injuria sua propria."
4. Justiciability of trial after a significant delay.
5. Appropriate venue for the trial.

Detailed Analysis
1. Validity of the Trial Commencement under Section 123 of the Army Act, 1950
The respondent, a Major General, was charged with dereliction of duty during his tenure. Proceedings were initiated under Section 123 of the Army Act, 1950, and he was kept under open arrest from August 30, 1986, and retired on August 31, 1986. The General Court Martial (GCM) was ordered on February 24, 1987, and assembled on February 25, 1987. The respondent escaped custody on February 15-16, 1987, and surrendered on March 1, 1987. The High Court had ruled the trial illegal as it did not commence within six months of his retirement. The Supreme Court had to determine if the trial commenced within the required period.

2. Interpretation of "Trial Commenced" under Section 123(2) of the Army Act
The core issue was the interpretation of "trial commenced" in Section 123(2) of the Army Act, which mandates that a trial must commence within six months after the accused ceases to be subject to the Act. The Court evaluated whether the trial began when the GCM assembled on February 25, 1987, or only after the formal arraignment of the accused. The Court concluded that the trial commences when the GCM assembles and begins examining the charges, not necessarily when the accused is arraigned. This broader interpretation aligns with the procedural steps integral to the trial process.

3. Applicability of the Maxim "Nullus Commodum Capere Potest de Injuria Sua Propria"
The respondent's escape from military custody was a significant factor. The Court applied the maxim "nullus commodum capere potest de injuria sua propria," meaning no one can benefit from their own wrong. The respondent's escape delayed the trial, and he could not claim the bar of limitation due to his own wrongful act. The Court held that his actions estopped him from pleading the limitation defense.

4. Justiciability of Trial after a Significant Delay
The respondent argued that a trial after such a delay would be unjust. The Court referenced the case of Devi Lal & Anr. v. The State of Rajasthan, where a retrial was not ordered due to a significant delay. However, the Court distinguished the present case, noting that the delay was caused by the respondent's own actions. Therefore, the trial was deemed justifiable despite the delay.

5. Appropriate Venue for the Trial
The respondent suggested that the trial be conducted in Delhi after his surrender. The Court found no merit in this request, noting that the witnesses and records were in Pune, where the offense occurred. Thus, the trial should be conducted in Pune for logistical and practical reasons.

Conclusion
The Supreme Court allowed the appeal, setting aside the High Court's judgment. The writ petition was dismissed, and the appellants were authorized to secure the respondent's presence for trial. The trial was to be conducted in Pune, and the respondent was instructed to surrender to military detention for the trial to proceed expeditiously.

← Previous Next →