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TMI Blog2015 (1) TMI 1250X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vember, 2001 and selling it to a civilian, and secondly, on 5th December, 2001 demanding and taking a coat/parkha and two stone breaking steel hammers. The Chief Engineer partially agreed with the findings of the Court of Inquiry and directed disciplinary action against the Respondent for the aforementioned two acts. The Respondent was arraigned on two counts for the two respective acts and charged with committing extortion, under Section 53(a) of the Army Act, 1950. Summary of Evidence was recorded under Rule 23, Army Rules and the Respondent was tried by Summary Court Martial (SCM), headed by Lt. Col CM Kumar, Officer Commanding, (OC) on 11.04.2002. The Respondent pleaded guilty to both charges. At the hearing of the SCM, two prosecution witnesses were examined, both of whom the Respondent declined to cross-examine. The Respondent neither made any statement in his defence, nor did he produce any defence witnesses. He was ultimately awarded the sentence of a reduction in rank to that of Naik . Thereafter, for reasons recondite, the 'reviewing authority' purportedly acting under Section 162 of the Act, while 'reviewing' the SCM, set aside the same, due to incorrec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Reviewing Authority, considering this discrepancy, opined that the officer holding the trial should have, under AR 116 (4), altered the record and entered a plea of 'not guilty' in respect of both charges, and proceeded with the trial accordingly. Non-compliance of the aforesaid provision, in the instant case, being a serious legal infirmity, makes the SCM proceedings liable to be set aside. Therefore, notwithstanding the pleas of guilty by the accused, the findings, conviction on both charges are not sustainable. In view of the above, I am of the considered opinion that, the Summary Court Martial proceedings are liable to be set aside, and I advise you accordingly. If you agree, following will be a suitable minute for you to record on page J of the proceedings:- 'I set aside the proceedings. I direct that the accused be relieved of all consequences of the trial'. The records do not reveal that this advice was acted upon. 4 It was in this impasse that a Show Cause Notice (SCN) was issued shortly afterwards to the Respondent, stating that the Respondent had during his tenure been found to have engaged in illegal activities. The Respondent was charged with ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less, the High Court did not preclude the Respondent before it from taking any departmental action against the petitioner in respect of the allegations, in accordance with law. This is the Judgment which is before us for our scrutation. 6 The factual tapestry having been threaded, we are confronted primarily as to whether the Appellants could have legally issued the notice and discharged the Respondent for misconduct and indiscipline when the same set of alleged acts had been earlier charged as offences and put through a Court Martial, in which the Respondent was ultimately acquitted. In other words, the legal nodus that we have to cogitate upon is the propriety of the initiation of a Discharge Enquiry of a member of the Army subsequent to Summary Court Martial proceedings against him on the same or similar charges having been set aside. In terms of the impugned Judgment, Discharge Order passed by the Army/Union of India (UOI), Appellants before us, has been quashed. However the commencement of Departmental action in respect of the same allegations has not been interdicted or precluded. The Appellants vehemently contend that the High Court erred in quashing the assailed Discha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country . Fifth, Article 13 of the Constitution of Pakistan, 1973, reads thus - Protection against double punishment and self incrimination - No person- (a) shall be prosecuted or punished for the same offence more than once; or (b) shall, when accused of an offence, be compelled to be a witness against himself. 8 Venturing a divergent path, the UK Criminal Justice Act, 2003, has modified the operation of autrefois convict, in that Part 10 thereof allows for retrial in the cases of serious offences scheduled therein, in the event of 'new and compelling' evidence against the acquitted person in relation to the qualifying offence. This statute has been emulated by legislations in New Zealand and in the Australian States of Queensland, New South Wales, Tasmania, South Australia and Victoria. 9 The Constitution of India charters a contrasting course in the context of incorporation of the doctrine of double jeopardy in that Article 20(2) postulates that - No person shall be prosecuted and punished for the same offence more than once. This variance from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... like to do is to word the clause thus: `No person shall be prosecuted and punished for the same offence more than once. If my Honourable Friend Dr. Ambedkar will accept the addition of the words `prosecuted and' before the word 'punished' and if you, Sir, and the House will give him permission to do so, it will not merely be a wise thing to do but it will save a lot of trouble for the Governments of the future. That is the suggestion I venture to place before the House. It is for the House to deal with it in whatever manner it deems fit. 10 It would be relevant to mention that modern jurisprudence is presently partial to the perusal of Parliamentary Debates in the context of interpreting statutory provisions, although earlier this exercise was looked upon askance. Suffice it to mention the analysis of the Constitution Bench in R.S. Nayak vs. A.R. Antulay (1984) 2 SCC 183 and in Haldiram Bhujiawala vs. Anand Kumar Deepak Kumar (2000) 3 SCC 250; and particularly Samatha vs. State of Andhra Pradesh (1997) 8 SCC 191, where Parliamentary Debates were studied by this Court. It appears to be beyond debate that the framers of our Constitution were fully alive to the differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty , commission of the offence , prosecuted, and punished, accused of any offence, would indicate that the proceedings therein contemplated are of the nature of criminal proceedings before a court of law or a judicial tribunal and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. 11 Keeping in perspective this exposition of double jeopardy as postulated in our Constitution, the obiter dicta in State of Bihar vs. Murad Ali Khan (1988) 4 SCC 655, expressed en passant by the two Judge Bench does not correctly clarify the law, as this view is contrary to the dictum of the Constitution Bench, which was not brought to the notice of the Bench. 12 The US Supreme Court has extensively excogitated over the conundrum as to what constitutes a successive punishment for the purposes of attracting Constitutional protection against Double Jeopardy, under the 5th Amendment. The Court, in John Hudson v United States, 522 U.S. 93 (1997), affirmed the distinction between civil pun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... successive punishment must be of a criminal character. It irresistibly follows that departmental or disciplinary proceedings, even if punitive in amplitude, would not be outlawed by Article 20(2). 13 In R. P. Kapur vs. Union of India AIR 1964 SC 787 the question before the Constitution Bench was that the Petitioner therein had been suspended owing to the pendency of criminal proceedings against him which was challenged on the anvil of Article 314 of the Constitution. Thus, this decision is not of much relevance for the resolution of the legal nodus before us, save for the observations that if criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant is convicted, even in case of acquittal proceedings may follow where the acquittal is other than honourable. However, on this aspect of the law we need go no further than the recent decision in Deputy General of Police vs. S. Samuthiram (2013) 1 SCC 598, since it contains a comprehensive discourse on all the prominent precedents. This Court has concluded, and we respectfully think correctly, that acquittal of an employee by a Criminal Court would not automatically and conclusive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of charge and lackadaisical recording of evidence at the Summary of Evidence, the evidence shows that the accused misused his position as a member of CMP and misappropriated various items. Therefore, in my opinion, his conduct renders his retention in service undesirable. You may accordingly initiate action to progress his case for administrative discharge under the provisions of Army Rule, 13 . It is in this backdrop that we think it to be illogical to hold the opinion that the Respondent had earned an honourable acquittal. Consequently, whether on reliance of the Double Jeopardy principle or on the setting aside of his punishment, Departmental or Disciplinary proceedings ought not to be viewed as precluded. Ironically and paradoxically, we may comment, the Respondent has been made vulnerable to a far more stringent action by setting aside the findings in the Court Martial in that from a comparatively lenient punishment of being lowered in rank he has been discharged from service. 15 Section 121 of the Army Act requires special scrutiny inasmuch as it specifies that: 121. Prohibition of second trial. -- When any person subject to this Act has been acquitted or convicted of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndividual and for this reason has understandably not been assailed on the touchstone of Article 20(2) of the Constitution. We must again advert to the speech of Mr. Naziruddin Ahmad, who had reminded the Constituent Assembly of this very position, namely, of the wider parameters of Double Jeopardy enshrined even in the then extant Cr.P.C., and his pitch for the Constitution to do likewise. 18 This would be the opportune time to consider the Three-Judge Bench decision in Chief of Army Staff vs. Major Dharam Pal Kukrety, 1985 (2) SCC 412, for the reason that in the facts obtaining in that case the finding of the Court Martial was not confirmed which brought into play Section 153 of the Army Act, 1950 which ordains that no finding or sentence of a general, district or summary general, court-martial shall be valid except so far as it may be confirmed. This Court was of the view that there was no express provision in the Army Act which empowers the holding of a fresh court-martial when the finding of a court-martial on a revision is not confirmed . It, thereafter, construed Rule 14 of the Army Rules as unrestrainedly enabling the Chief of Army Staff to: (a) dismiss or (b) remove or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... martial, to either dismiss, remove or compulsory retire the officer or the concerned officer. 21 The impugned Judgment holds that though in the summary Court Martial proceedings initiated against the petitioner on the basis of same charges have been set aside and the petitioner has succeeded, the subsequent show cause notice for discharge relies on the same very charges to discharge the petitioner, which in our view cannot be sustained. The result of the aforesaid is that the impugned order of discharge cannot be sustained and is hereby quashed with all consequential benefits to the petitioner. This will however, not preclude the respondent from taking any departmental action against the petitioner in respect of the allegations in accordance with law . These conclusions we are unable to sustain. In the first place there is no complete ban on a second Court Martial, provided it is within the prescribed period of limitation, etc. Secondly, as has been held in Kukrety and indirectly affirmed in Sandhu, where the decision of the court martial fails to find confirmation, the effect is that it cannot be considered that a court martial has, in fact, been concluded and further, in our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parenthetically provides that this will occur through Deputy Judge-Advocate General. This cannot be interpreted substitutively, as enshrining in Deputy Judge-Advocate General the statutory remit of the reviewing authority under Section 162. This apart, it has already been opined by us heretofore that the setting aside took place technically and therefore impermissibly in terms of Section 162. 24 We also find it apposite to add that though there was incongruity between the Deputy Judge-Advocate General (acting as the Reviewing Authority) and the Summary Court Martial, resulting in a nugatory Court Martial process, a perusal of the Act, as well as the facts on record, will reveal that this need not have been. A Summary Court Martial does not require for its efficacy, finality and validity, the confirmation of the Confirming Authority, as has been mandated for the other three classes (supra) of Court Martial, enumerated in Section 153. Section 161(1) expressly states that the finding and sentence of a Summary Court Martial shall not require to be confirmed, but may be carried out forthwith. However, Section 162 requires transmission of proceedings without delay to be forwarded ..... 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