2009 (9) TMI 1021 - SC - Indian Laws

Whether the provision in Rule 34 of the Army Rules, 1954 - interval between the accused being informed of charge for which he is to be tried and his arraignment shall not be less than ninety-six hours mandatory? HELD THAT - It is well established that a contract which involves in its fulfilment the doing of an act prohibited by statute is void. The legal maxim A pactis privatorum publico juri non derogatur means that private agreements cannot alter the general law. Where a contract, express or implied, is expressly or by implication forbidden by statute, no court can lend its assistance to give it effect. In our judgment, there has to be clear ninety-six hours interval between the accused being charged for which he is to be tried and his arraignment and interval time in Rule 34 must be read absolute. There is a purpose behind this provision that purpose is that before the accused is called upon for trial, he must be given adequate time to give a cool thought to the charge or charges for which he is to be tried, decide about his defence and ask the authorities, if necessary, to take reasonable steps in procuring the attendance of his witnesses. He may even decide not to defend the charge(s) but before he decides his line of action, he must be given clear ninety-six hours. A trial before General Court Martial entails grave consequences. The accused may be sentenced to suffer imprisonment. He may be dismissed from service. The consequences that may follow from non-observance of the time interval provided in Rule 34 being grave and severe, we hold, as it must be, that the said provision is absolute and mandatory. If the interval period provided in Rule 34 is held to be directory and its strict observance is not insisted upon, in a given case, an accused may be called upon for trial before General Court Martial no sooner charge/charges for which he is to be tried are served. Surely, that is not the intention; the timeframe provided in Rule 34 has definite purpose and object and must be strictly observed. Its non- observance vitiates the entire proceedings. The key words used in Rule 34 from which the intendment is to be found are shall not be less than ninety-six hours . As the respondent was not in active service at the relevant time, we are not concerned with the later part of that rule which provides for interval of twenty-four hours for the accused in active service. Merely because the respondent pleaded guilty is immaterial. The mandatory provision contained in Rule 34 having been breached, the Division Bench cannot be said to have erred in affirming the order of the Single Judge setting aside the proceedings of the General Court Martial. In the result, the appeal must fail and is dismissed with no order as to costs.

Issues Involved:
1. Whether the interval of ninety-six hours provided in Rule 34 of the Army Rules, 1954 is mandatory.
2. The consequences of non-compliance with the ninety-six-hour interval rule.
3. The impact of the accused pleading guilty on the mandatory nature of the rule.
4. The interpretation of statutory provisions as mandatory or directory.

Issue-Wise Detailed Analysis:

1. Whether the interval of ninety-six hours provided in Rule 34 of the Army Rules, 1954 is mandatory:

The core issue in this case is whether the ninety-six-hour interval between informing the accused of the charges and his arraignment, as stipulated in Rule 34 of the Army Rules, 1954, is mandatory. The court examined the language of Rule 34, which states, "The interval between his being so informed and his arraignment shall not be less than ninety-six hours." The court emphasized the use of the term "shall," noting that it typically indicates a mandatory requirement unless the context suggests otherwise. The court referenced several legal principles and precedents, including the works of Justice G.P. Singh and Crawford's Statutory Construction, to support the interpretation that prohibitive or negative words are indicative of a mandatory provision.

2. The consequences of non-compliance with the ninety-six-hour interval rule:

The court highlighted the grave consequences of non-compliance with the ninety-six-hour interval rule, stating that the provision's purpose is to ensure the accused has adequate time to prepare a defense, decide on a course of action, and request the attendance of witnesses if necessary. The court concluded that the provision is absolute and mandatory, and its non-observance vitiates the entire proceedings. The court reasoned that if the interval period were considered directory, it could lead to situations where an accused is tried immediately after being charged, which would defeat the purpose of the rule.

3. The impact of the accused pleading guilty on the mandatory nature of the rule:

The court addressed the argument that the respondent's guilty plea negated any prejudice caused by the non-compliance with the ninety-six-hour interval rule. The court rejected this argument, stating that the mandatory nature of the rule is not diminished by the accused's plea. The court emphasized that the provision's purpose is to provide the accused with a fair opportunity to consider the charges and prepare a defense, regardless of whether they ultimately plead guilty.

4. The interpretation of statutory provisions as mandatory or directory:

The court discussed the principles for interpreting statutory provisions as mandatory or directory, referencing several legal precedents. The court noted that prohibitive or negative words are ordinarily indicative of a mandatory provision, and the context and purpose of the provision must be carefully examined. The court cited cases such as M. Pentiah v. Muddala Veeramallappa and Mannalal Khetan v. Kedar Nath Khetan to illustrate the principle that provisions couched in prohibitive or negative language are typically mandatory. The court concluded that the ninety-six-hour interval rule in Rule 34 is mandatory, as it is framed in prohibitive terms and serves a crucial purpose in ensuring a fair trial.

Conclusion:

The court affirmed the decision of the Division Bench, which upheld the Single Judge's order setting aside the General Court Martial proceedings due to the non-compliance with the mandatory ninety-six-hour interval rule. The appeal was dismissed with no order as to costs.

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