RANDHIR SINGH versus UNION OF INDIA & ORS.

[2019] 9 S.C.R. 925

RANDHIR SINGH

UNION OF INDIA & ORS.

(Criminal Appeal No.210 of 2017)

JULY 08, 2019

[DR DHANANJAYA Y CHANDRACHUD ANDINDIRA BANERJEE, JJ.]

Army Act, 1950 – s.120 – Appellant enrolled in the 43 ArmedBrigade and at the material time was posted as Acting Lance Dafadar– Allegation that in August, 2007 while on duty for cleaning theservice area in the morning, the appellant entered the residence ofa colleague and while his spouse was washing her son, placed hishands on her shoulder – Summary Court Martial (SCM)– Appellantdismissed from service – Armed Forces Tribunal (AFT) while holdingthat the charge was duly established, concluded that the punishmentof dismissal being disproportionate be modified to discharge – Pleaof appellant that convening of an SCM is by way of an exceptionwhere immediate action is necessary– Held: In the exercise of itsappellate jurisdiction, Supreme Court would be circumspect inreassessing the evidence when the AFT duly applied its mind to thefindings of fact – Power to order an SCM is drastic power whichmust be exercised in situation where it is absolutely imperativethat immediate action is necessary, as enunciated by three judgeBench of Supreme Court in Union of India and Others v. Vishav PriyaSingh[2016] 5 SCR 473 while interpreting s.120 – Sub-s.(2) of s.120is prefaced by the words “when there is no grave reason forimmediate action”– In the present case, though the incident tookplace on 11 August 2007, SCM took place on 22 May 2008–Convening of an SCM was contrary to law – Nearly 12 years haveelapsed since the date of the incident – Appellant had nearly twelveyears’ service when he was dismissed from service – Ends of justicewould meet if the discharge of the appellant takes effect from thedate on which he completes fifteen years of service so as to renderhim eligible for the grant of pension – Order of AFT modified –Arrears of pension be paid over to the appellant – Constitution ofIndia – Art.142 – Practice & Procedure.

AAppellant was enrolled in 1996 in the 43 Armed Brigadeand at the material time was posted as Acting Lance Dafadar. Itwas alleged that in August 2007 while on duty for cleaning theservice area in the morning, the appellant entered the residenceof colleague and while his spouse was washing her son, placedhis hands on her shoulder. Summary Court Martial (SCM) wasBconducted and the appellant was dismissed from the service.Armed Forces Tribunal held that the charge was duly established,but concluded that the punishment of dismissal wasdisproportionate and the same be modified to order of discharge.Hence, the present appeal.

CAllowing the appeal, the Court

HELD: 1.1 In the exercise of its appellate jurisdiction,Supreme Court would be circumspect in reassessing the evidencewhen the Armed Forces Tribunal has duly applied its mind to thefindings of fact. The submission of the appellant has also beenDduly assessed that the appellant had lodged complaint in thepast against the spouse of the victim for pilferage of petrol. It isnot necessary for Supreme Court to enter upon the findings offact since there is an independent ground on which thesubmissions of the appellant would be worthy of acceptance.ESection 120 of the Army Act, 1950 was interpreted in the decisionin Ex-Havildar Ratan Singh and subsequently in Vishav PriyaSingh. In review petition filed by the Union of India in VishavPriya Singh, the earlier judgment was clarified on 16 February2017. The clarification indicates that the requirement of recordingreasons for convening Summary Court Martial shall apply fromF5 July 2016. However, the fundamental principle of law whichhas been enunciated is that the power to order an SCM is drasticpower which must be exercised in situation where it is absolutelyimperative that immediate action is necessary. Sub-section (2)of Section 120 is prefaced by the words “when there is no graveGreason for immediate action”. In the present case, though theincident took place on 11 August 2007, the SCM took place on22 May 2008. The convening of an SCM was contrary to law.Ordinarily liberty would have been granted to the respondentsto pursue proceedings against the appellant in accordance withlaw. However, nearly twelve years have elapsed since the date ofHthe incident. The appellant had nearly twelve years’ service when

he was dismissed from service. In this view of the matter, we areof the view that the ends of justice would be met if in the exerciseof our jurisdiction under Article 142 of the Constitution of India,we order and direct that the discharge of the appellant shall takeeffect from the date on which he completes fifteen years of serviceso as to render him eligible for the grant of pension. The learnedcounsel appearing on behalf of the appellant has submitted thatthis would meet the ends of justice. We accordingly allow theappeal and modify the impugned order of the Armed ForcesTribunal in the above terms. The appellant shall stand dischargedfrom service on the completion of the minimum pensionableservice with the result that he would be entitled to the disbursalof his pensionary benefits in accordance with law. The arrears ofpension shall be paid over to the appellant within period ofthree months from the date of receipt of certified copy of thisorder.[Paras 8, 10-15] [929-D-E; 930-C-D; 931-C, E-H;932-A-D]

Union of India and Others v. Vishav Priya Singh(2016) 8 SCC 641 : [2016] 5 SCR 473 – relied on.

Ex Havildar Ratan Singh v. Union of India & Ors.AIR 1992 SC 415 : [1991] 2 Suppl. SCR 370– referred to.

Case Law Reference

[1991] 2 Suppl. SCR 370referred toPara 10

[2016] 5 SCR 473 relied onPara 10

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 210 of 2017

From the Judgment and Orders dated 07.12.2015 and 08.07.2016of the Armed Forces Tribunal, Chandigarh Regional Bench atChandimandir in O.A. No. 154 of 2011 and in M.A. Nos. 1906 & 1907of 2016 in O.A. No. 154 of 2011 respectively

Naresh Ghai, Naresh Kumar, Advs. for the Appellant.

Sanjay Jain, ASG, Anish Kumar Gupta, VVV Pattabhiram, ArvindKumar Sharma, Chandra Shekhar Suman, Puneet Sheoran, Ms. RimiBasu, Advs. for the Respondents.

928SUPREME COURT REPORTS

AThe Judgment of the Court was delivered byDR DHANANJAYA Y CHANDRACHUD, J.

1 Admit.

2. This appeal arises from judgment of the Armed ForcesBTribunal at its Chandigarh Regional Bench dated 7 December 2015.The appellant was enrolled on 29 October 1996 in the 43 Armed Brigadeand was at the material time posted as Acting Lance Dafadar[1]. It isalleged that on 11 August 2007 while on duty for cleaning the servicearea in the morning, the appellant entered the residence of colleagueand while his spouse was washing her son, placed his hands on herCshoulder.

3 Summary Court Martial[2] took place on 22 May 2008 duringthe course of which evidence was recorded. The appellant was heldguilty and was dismissed from service. Among those who deposed duringthe SCM were the victim and her husband.

4 The Armed Forces Tribunal, while holding that the charge hadbeen duly established, came to the conclusion that the punishment ofdismissal was disproportionate and should be modified to an order ofdischarge.

5 Mr. Naresh Ghai, learned counsel appearing on behalf of theEappellant has submitted that during the course of the evidence it emergedthat in the month of June or July 2007, the appellant had reported thespouse of the victim for unauthorisedly removing petrol from MarutiGypsy for which the latter was awarded punishment. This wasspecifically brought out in the course of the examination of the spouse ofFthe victim in the SCM. Hence, it was urged that the entire incident isfabricated and is only reprisal for the appellant having reported themisconduct on the part of the spouse of the victim.

6 On the question of law, it was urged that having due regard tothe provisions of Section 120 of the Army Act 1950 and the decision ofGthis Court in Ex Havildar Ratan Singh vs Union of India & Ors[3]and in Union of India and Others vs Vishav Priya Singh[4], the

1 “ALD”2 “SCM”3 AIR 1992 SC 4154 (2016) 8 SCC 641H

convening of an SCM is by way of an exception where immediate actionis necessary. Hence, it was urged on behalf of the appellant that therewas no reason or justification to hold an SCM in May 2008 in respect ofan incident that took place in August 2007.

7 In response, Mr Sanjay Jain, the learned Additional SolicitorGeneral submitted that on the merits of the charge of misconduct, boththe victim and her spouse deposed in the course of the inquiry by theSCM. Hence, it was submitted that there is no occasion for this Courtto review the pure findings of fact which have been affirmed by theArmed Forces Tribunal. Moreover, it was urged that the judgment inVishav Priya Singh (supra) has since been clarified in the course of areview so as to be applicable on and from 5 July 2016, whereas theincident in question dates back to August 2007.

8 In the exercise of its appellate jurisdiction, this Court would becircumspect in reassessing the evidence when the Armed Forces Tribunalhas duly applied its mind to the findings of fact. We have also duly assessedthe submission of the appellant that in the present case, the appellanthad lodged complaint in the past against the spouse of the victim forpilferage of petrol. Be that as it may, it is not necessary for this Courtto enter upon the findings of fact since there is an independent groundon which the submissions of the appellant would be worthy ofacceptance.

9 Section 120 of the Army Act, 1950 provides as follows:

“120. Powers of summary courts- martial.

(1) Subject to the provisions of sub- section (2), summary court-martial may try any offence punishable under this Act.

(2) When there is no grave reason for immediate action andreference can without detriment to discipline be made to the officerempowered to convene district court- martial or on active servicea summary general court- martial for the trial of the allegedoffender, an officer holding summary court- martial shall not trywithout such reference any offence punishable under any of thesections 34, 37 and 69, or any offence against the officer holdingthe court.

(3) summary court- martial may try any person subject to thisAct and under the command of the officer holding the court, exceptan officer, junior commissioned officer or warrant officer.

(4) summary court- martial may pass any sentence which maybe passed under this Act, except sentence of death ortransportation, or of imprisonment for term exceeding the limitspecified in sub- section (5).

(5) The limit referred to in sub- section (4) shall be one year ifthe officer holding the summary court- martial is of the rank oflieutenant colonel and upwards, and three months if such officeris below that rank.”

10. These provisions were interpreted in the decision inEx-Havildar Ratan Singh (supra).Subsequently in Vishav Priya Singh(supra), three judge Bench of this Court, while interpreting Section120, has observed thus:

“19. Section 116 of the Act empowers the CO of any Corps,Department and Detachment of the regular Army to hold an SCMand specifically states that he alone shall constitute the Court.Sub-Section (2) then prescribes that the proceedings shall,however, be attended through-out by two other persons specifiedtherein. However, such persons are not to be sworn or affirmed.Unlike Sections 113, 115 and 114, where composition of theCourt-Martial concerned is prescribed to consist of at least threeofficers, it is the CO alone who constitutes the Court underSection 116 in respect of SCM. Further, under Rules 39 and 40 ofthe Rules, CO of the accused, or of the Corps to which theaccused belongs is specifically disqualified for serving on GCMor DCM and composition of GCM ought to compose of officersof different corps or departments. However, no such restrictionapplies to SCMs and in fact the CO himself must constitute theCourt. The Act has thus given drastic power to one singleindividual, namely, the CO who alone is to constitute the Court.No doubt, this power comes with restrictions insofar as the powerto award sentence is concerned in terms of sub-Sections (4) &(5)of Section 120. However even with such restrictions the power isquite drastic. The reason for conferment of such power isobvious that in order to maintain discipline among the soldiers and

units, the CO must have certain special powers, for it is thediscipline which to great extent binds the unit and makes it acohesive force.

20. The High Court of Delhi was therefore completely correct inobserving that such power must be exercised rarely and when it isabsolutely imperative that immediate action is called for. The satisfac-tion in that behalf must either be articulated in writing or be available onrecord, specially when the matter can be considered on merits by atribunal, with the coming into force of the Armed Forces Tribunals Act,2007.”

11. In review petition[5] filed by the Union of India, the earlierjudgment was clarified on 16 February 2017 in the following terms:

“…… the requirement, as stipulated in aforesaid paragraphs 20and 33, of recording reasons for convening Summary CourtMartial, shall apply on and with effect from the date of the Judgmentnamely from 05.07.2016. Except for this clarification, we aresatisfied, that no case for review of the judgment dated 05.07.2016has been made out.”

12. The above clarification indicates that the requirement ofrecording reasons for convening Summary Court Martial shall applyfrom 5 July 2016. However, the fundamental principle of law which hasbeen enunciated is that the power to order an SCM is drastic powerwhich must be exercised in situation where it is absolutely imperativethat immediate action is necessary. Sub-section (2) of Section 120 isprefaced by the words “when there is no grave reason for immediateaction”. In the present case, though the incident took place on 11 August2007, the SCM took place on 22 May 2008. The convening of an SCMwas contrary to law.

13. Having come to this conclusion, we would have ordinarilygranted liberty to the respondents to pursue proceedings against theappellant in accordance with law. However, nearly twelve years haveelapsed since the date of the incident. During the course of hissubmissions, the learned Additional Solicitor General submitted beforethe Court that at this point of time, it may be difficult to find witnesses toconclude the inquiry and hence, no useful purpose would be served andit would not be practicable to hold the inquiry.

5Review Petition No 3927 of 2016

A14. The appellant had nearly twelve years’ service when he wasdismissed from service. In this view of the matter, we are of the viewthat the ends of justice would be met if in the exercise of our jurisdictionunder Article 142 of the Constitution of India, we order and direct thatthe discharge of the appellant shall take effect from the date on whichhe completes fifteen years of service so as to render him eligible for theBgrant of pension. The learned counsel appearing on behalf of the appellanthas submitted that this would meet the ends of justice.

15. We accordingly allow the appeal and modify the impugnedorder of the Armed Forces Tribunal in the above terms. The appellantshall stand discharged from service on the completion of the minimumCpensionable service with the result that he would be entitled to the disbursalof his pensionary benefits in accordance with law. The arrears of pensionshall be paid over to the appellant within period of three months fromthe date of receipt of certified copy of this order. No costs.

16. Pending application(s), if any, shall stand disposed of.D

Divya Pandey

Appeal allowed.