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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 ..... this allegation was levelled by the driver of the vehicle in which he was traveling; c) He had extorted Rs. 6000/- from Superintendent BR-II Sanjay Kumar, 385 RM Platoon, for not reporting surplus construction material held by the platoon; d) He had taken one coat/parkha along with two steel hammers from QM, at 118 RCC (GREF). 2 Based on these reports, the Chief Engineer, Project Beacon, ordered a Court of Inquiry which investigated these allegations and concluded that the Respondent was blameworthy for two of the four aforesaid acts committed without authority: firstly, demanding and taking 100 litres of HSD from BR- I HL Meena on 30th November, 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... renders his retention in the service as undesirable. It determined that although the officer conducting the Court Martial recorded a plea of guilty under Rule 116(4), a perusal of the Respondent's statement in the Summary of Evidence belied this recording; that therein, qua the second charge, the Respondent had contested the charge stating that he had requested for supply of only one hammer which was to be returned at the end of winter. Upon later inspecting the hammer, the Respondent discovered that there were two hammers packed inside, instead of the one that he had requested. 3 Deputy Judge-Advocate General purporting to act as the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Article 311. Finally, they submitted that the Discharge procedure had been strictly followed in this case. The High Court allowed the Respondent's writ petition, and quashed Show Cause Notice as unsustainable. The Court so concluded on the basis that the Show Cause Notice relied on exactly the same set of charges as had run their course in the Court Martial, resulting in the Respondent's acquittal. The Court did not accept the distinction articulated by the Appellants, between extortion being the subject of the Court Martial, and misconduct and indiscipline being the subject of the Show Cause Notice and Discharge. Nevertheless, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vides that a person is "not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted". Third, Section 11(h) of the Charter of Rights of the Canadian Constitution provides that any person charged with an offence has the right "if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again". Fourth, Article 14 (7) of the International Covenant on Civil and Political Rights (ICCPR, 1966) states: "No one shall be liable to be tried or punished again for an offence 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , if a Government official had been prosecuted and sentenced to imprisonment or fine by a court, it might preclude the Government from taking disciplinary action against him. Though the point is a narrow one and one which is capable of interpretation whether this provision in this particular clause in the Fundamental Rights will affect the discretion of Government acting under the rules of conduct and discipline in regard to its own officers, I think, when we are putting a ban on a particular type of action, it is better to make the point more clear. I recognise that I am rather late now to move an amendment. What I would 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 woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... protection of Article 20(2) be invoked by a citizen there must have been a prosecution and punishment in respect of the same offence before a court of law or a tribunal, required by law to decide the matters in controversy judicially on evidence on oath which it must be authorised by law to administer and not before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute but not required to proceed on legal evidence given on oath. The very wording of Article 20 and the words used therein:- "convicted", "commission of the act charged as an offence", "be subjected to a penalty", "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubitably eases the resolution of the Double Jeopardy question in the present Appeal. As has been detailed earlier, Article 20(2) does not within it imbibe the principle of autrefois acquit. The Fifth Amendment safeguards, inasmuch as it postulates both autrefois acquit and autrefois convict, could have been interpreted to prohibit civil punishment even in the wake of an acquittal in prosecution, but was not found by the U.S. Supreme Court to do so. A fortiori Article 20(2), which contemplates "prosecuted and punished" thus evincing the conscious exclusion of autrefois acquit, palpably postulates that the prescribed 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d statement. It was the opinion of the Reviewing Officer that Army Rule 116(4) required the 'Guilty' plea to be altered to 'Not Guilty' predicated on the unsubstantiated and unsustainable conclusion that the Respondent did not understand the effect of the former. Premised on this conclusion, his recommendation was for setting aside the proceeding and sentence of 'reduction to rank of Naik' and also directing that the accused be relieved of all consequences of the Trial. Curiously enough, the Reviewing Authority also opined: "Notwithstanding the ibid, setting aside due to incorrect framing 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 J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a criminal court for the same offence, or on the same facts, that court shall, in awarding punishment, have regard to the punishment he may already have undergone for the said offence". 17 Although this question also does not arise before us, Section 300 of Criminal Procedure, 1973 may arguably not be in harmony with the Constitution since it contemplates both autrefois acquit and autrefois convict even though a conscious decision had been taken by the Drafters of our Constitution that protection only as regards the latter shall be available. Of course, the Cr.P.C. grants much wider protection to the individual 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties are often consumed by the Army Rules without fully comprehending the scope of the Army Act itself. 20 Another Three-Judge Bench in Union of India vs. Harjeet Singh Sandhu, 2001 (5) SCC 593, considered Kukrety and then concluded that if the decision of the Court Martial is not confirmed, the disciplinary action, whether a dismissal (or, for that matter, a discharge) may be resorted to. Rule 14(2) was construed by this Court to enable the Central Government or the Chief of Army Staff to arrive at a satisfaction that since it is inexpedient or impracticable to have the officer tried by a court 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 peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation, be forwarded (through the Deputy Judge- Advocate General of the command in which the trial is held) to the officer authorized to deal with them in pursuance of section 162, After review by him, they will be returned to the accused person's corps for preservation in accordance with sub-rule (2) of rule 146. Rule 133 does not empower Deputy Judge-Advocate General as the reviewing authority, but merely confers on it a forwarding function, the Rule stating that the proceedings of the SCM on promulgation require to be forwarded to the competent officer under Section 162, but only 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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