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TMI Blog1972 (11) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... irecting the revision of the sentence. Thereafter the petitioner was brought before the same Court Martial, as had tried him earlier, and he was asked whether he wanted to address the Court. On receiving a reply in the negative, the Court, after considering the observations of the confirming authority, revoked the earlier sentence which they had imposed on the petitioner and sentenced him to be cashiered and to suffer rigorous imprisonment for two years. Brig. D. P. Bhilla, the Officiating General Officer Commanding 23 Mountain Division, referred the finding and sentence for confirmation to the Chief of the Army Staff, who in due course confirmed the finding and the sentence. The present petition is filed under Article 32 of the Constitution for quashing the order passed by the Chief of the Army Staff, after setting aside the order passed by Maj-Gen. Hira. Shri A. K. Sen appearing on behalf of the petitioner raised four points in support of his contention that the order passed against, the petitioner should be quashed: 1. The authority to confirm the sentence passed by a Court Martial does not confer on the confirming authority the power to enhance the sentence. That authority c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded, the court should fully take into consideration the following observations of the Confirming Officer. 2. The accused was convicted by the Court, under Army Act Section 69 for committing a civil offence, that is to say, Robbery, contrary to section 392 of the Indian Penal Code, the particulars hereby averred that he, at HAJIGANJ (BANGLA DESH) on 11 December 1971, by causing fear of instant hurt to the Custodians committed Robbery in respect of the undermentioned articles, the property belonging to the persons indicated as follows (a) The property of the United Bank Ltd. COMILLA Dist. (i) Cash in Pakistan Currency ₹ 11,222.91 (ii) 28-12 Bore guns Registered Two with s No. 027373 and 342. Two with s cartridges. (iii) Wall clock. One (iv) Telephone Set Auto TIP (Sky Blue) One (v) Telephone CE without hand set (Black) One (vi) Pens (eagle) Two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alt with firmly when a verdict of guilty has been returned by the court. 5. There are certain norms and standards' of behaviour laid down in the Armed Forces for strict adherence by persons who have the honour to belong to the Corps of Officers of the Indian Army. A person of the rank, of an officer, who indulges in such an offence, should, therefore, be awarded suitable punishment. In the course of six years commissioned service he had once been convicted under Army Act Sect-ion 41(2) for disobeying a lawful command given by his superior officer in the execution of his duties for which he was severely reprimanded on 13 June 1970. 6. The accused/or his defending officer/counsel should be given an opportunity to address the court, if so desired. The court should then carefully consider all the above and should they decide to enhance the sentence, then the fresh sentence should be announced in open court as being subject to confirmation. 7. The, attention of the court is drawn to Army Act Section 160, Army Rule 68 and the form of proceedings on revision given on page 370 of N1ML (1961 Reprint), which should be amended to conform to the provisions of Army Rule 67(1). 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considering a petition filed under Article 32 of the Constitution this Court can only consider whether any fundamental right of the petitioner has been violated and the only Article relevant is Article 21 of the Constitution. There is no doubt that the procedure estab- lished by law as required under that Article has been completely followed in this case. It is, however, urged that the decisions of this Court have laid down that the rules of natural- justice operate in areas not covered by any law validly made and that they do not supplant the law of the land but supplement it and, therefore, though the procedure established by law may have been followed as required under Article 21, the principles of natural justice should also be followed. The cases relied on are A. K. Kraipak Ors. etc. v. Union of India Ors. (1) [1970] 1 S.C.R. 457. and Purtabpore Co. Ltd. v. Cane Commissioner of Bihar Ors. [1969] 2 S.C.R. 807. This Court in the first decision had pointed out that what particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the frame work of the law under which the enquiry is held and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents expressed by the confirming authority. We find ourselves unable, therefore, to agree to petitioner's contention that the order of the confirming authority directing revision is in any way vitiated. (2) We have already held above that the confirming authority, when he directed a revision of the sentence passed on the petitioner, was only exercising the powers conferred on him by Section 160 of the Army Act. He also made it clear,. that the court martial was not bound by his opinion by stating that should the court martial decide to enhance the sentence the fresh sentence should be announced in open court as being subject to confirmation. Right in the beginning of his order he had also stated 'Whilst in no way intending the quantum of punishment to be awarded, the court should fully take into consideration the following observations'. To hold in the circumstances that the confirming authority should have, heard the appellant before he directed the revision of the sentence passed on him would not be a requirement of principle of natural justice. In the circumstances and facts of a case like the present one where the petitioner had an opportunity of putting forward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould either have given a hearing to the petitioner or the Chief of Army Staff should have given a hearing to the petitioner before confirming the subsequent sentence by the court martial is not a requirement under the Act. While it can be at least said that there is some semblance of reasonableness in the contention that before he ordered what in effect was an upward revision of the sentence passed on the petitioner, he should have been given a hearing, to insist that the confirming authority should give a hearing to the petitioner before it confirmed the sentence passed by the court martial, is a contention which cannot be accepted. To accept this contention would mean that all the procedure laid down by the Code of Criminal Procedure should be adopted in respect of the court martial, a contention which cannot be accepted in the face of the very clear indications in the Constitution that the provisions which are applicable to all the civil cases are not applicable to cases; of Armed Personnel. It is not a requirement of the principles of natural justice. Indeed when he was informed that the subsequent sentence passed on him had been sent to the Chief of the Army Staff for confirma ..... 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