2015 (1) TMI 1250 - SC - Indian Laws

Incorporation of the doctrine of double jeopardy - order of the Summary Court Martial - Held that - Section 162 requires transmission of proceedings without delay to be forwarded to the competent officer, commanding the division or brigade in which the trial was held, or to the prescribed officer; and such officer, or the Chief of Army Staff, or any other empowered in this behalf by the Chief of Army Staff, may for reasons based on the merits of the case, but not merely technical grounds, set aside the proceedings or reduce the sentence to any other sentence which the court (martial) might have passed. This being a transmission of proceedings under Section 162, the Reviewing Authority s basis for insistence that a plea of not guilty ought to have been recorded after the summary of evidence, based upon the statement of evidence given by the Respondent therein, and subsequent setting aside of the consequences of the Court Martial presided by the Officer Commanding, cannot stand. On a demurrer, at the Summary of Evidence, the Respondent had only contested the Charge of his having extorted the coal hammer, stating in reply thereto that he had requested for one hammer which was to be returned at the end of winter, and that upon opening the bag, found two therein. There are no averments in his defence to be found in the Summary of Evidence, as to the charge of extorting high speed diesel. Furthermore, the Respondent did not make any Statement of Defence at the Summary Court Martial hearing itself, and neither produced any defence witnesses on his behalf nor cross examined either of the two prosecution witnesses therein. Faced with these inescapable facts, the Reviewing Authority could not have set aside the proceedings on such a technical ground - which Section 162 expressly prohibits - that a plea of not guilty should have been recorded under Army Rule 116(4) in respect of both charges of extortion, as the effect of the Respondent s plea of guilty was not fully understood by him. The Court Martial finding and sentence ought to have been left undisturbed by the Reviewing Authority, self-sufficiently valid as it was under Section 161 (1). The Army Act and the Rules framed thereunder specifically contemplate that any person other than an officer subject to the Act may be dismissed or removed from service under Section 20 of the Act; and any such person may be dismissed, removed or reduced in rank under Section 20 read with Rule 17. The High Court has not failed to appreciate this dichotomy inasmuch as it has not precluded the taking of departmental action. The difference is that the departmental action is exactly what was taken and additionally what has now been permitted by the Impugned Judgment to be initiated. It is with the above clarifications that we dispose of the Appeal by restoring the order of the Summary Court Martial, yet not prohibiting the Appellants to proceed in accordance with law.

Issues Involved:
1. Legality of issuing a Show Cause Notice (SCN) and discharging the Respondent for misconduct and indiscipline after acquittal by Summary Court Martial (SCM).
2. Application of the principle of double jeopardy under Article 20(2) of the Indian Constitution.
3. Validity of the Deputy Judge-Advocate General's intervention in setting aside SCM proceedings.
4. Interpretation of Section 121 of the Army Act regarding prohibition of second trials.
5. Validity of discharge under Rule 13 of the Army Rules based on the same charges addressed in SCM.

Detailed Analysis:

1. Legality of Issuing SCN and Discharging the Respondent:
The primary issue is whether the Appellants could legally issue a SCN and discharge the Respondent for misconduct and indiscipline when the same acts had been previously addressed in SCM proceedings. The High Court quashed the discharge order, stating that the SCN relied on the same charges that had been addressed in the SCM, resulting in the Respondent's acquittal. The Supreme Court, however, found that the High Court erred in quashing the discharge order because departmental or disciplinary proceedings are not precluded by an acquittal in SCM proceedings.

2. Application of Double Jeopardy:
The Supreme Court analyzed the concept of double jeopardy as enshrined in Article 20(2) of the Indian Constitution, which states, "No person shall be prosecuted and punished for the same offence more than once." The Court noted that this protection applies only to prosecution and punishment in criminal proceedings and does not extend to departmental or disciplinary actions. The Court referred to various international and domestic legal precedents, emphasizing that Article 20(2) does not include the principle of autrefois acquit (previous acquittal).

3. Deputy Judge-Advocate General's Intervention:
The Court found that the Deputy Judge-Advocate General exceeded his statutory authority by setting aside the SCM proceedings and relieving the Respondent of all consequences of the trial. The Deputy Judge-Advocate General's role is limited to forwarding SCM proceedings to the authorized officer and appending his opinion. The Court held that the Deputy Judge-Advocate General's intervention was a usurpation of power, as there was no order from a competent officer under Section 162 of the Army Act setting aside the proceedings.

4. Interpretation of Section 121 of the Army Act:
Section 121 of the Army Act prohibits a second trial for the same offence by a court-martial or criminal court. The Supreme Court clarified that this prohibition applies only to a second court-martial or dealing under specific sections of the Army Act and does not preclude departmental or disciplinary proceedings. The Court emphasized that the Respondent's acquittal in SCM did not amount to an "honourable acquittal," and therefore, departmental proceedings were not barred.

5. Validity of Discharge under Rule 13:
The discharge of the Respondent under Rule 13 of the Army Rules was based on the same charges addressed in the SCM. The Supreme Court found that the discharge proceedings were circuitously exercised under a residual entry and in supersession of the Army Act's dismissal powers. The Court noted the incongruity in the discharge certificate, which described the Respondent's character as "exemplary" despite findings of misconduct. The Court held that the discharge proceedings were unsustainable and restored the order of the SCM.

Conclusion:
The Supreme Court restored the SCM order and clarified that departmental or disciplinary proceedings are not precluded by an acquittal in SCM proceedings. The Court emphasized that the principle of double jeopardy under Article 20(2) does not extend to departmental actions and that the Deputy Judge-Advocate General's intervention in setting aside SCM proceedings was unauthorized. The discharge of the Respondent under Rule 13 was found to be unsustainable. The Appellants were permitted to proceed with departmental action in accordance with the law.

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