WA/303/2008 of the Union of India represented by its Defence Secretary, Vs Mr.C.Rajesh Chetty, on 24 December 2008

1. The Union of India, rep. by its Defence Secretary, New Delhi.

2. The General Officer Commanding (GOC)

54 Inf.Div.Sig. Regt., Secunderabad.

3. The Commanding Officer (CO), 54 Inf. Div. Sig. Regt., Secunderabad.

… Appellants

AND

Mr. Rajesh Chetty, S/o. R. Chandrasekhar Chetty,Occ: Sigmn (Dvr/MT) 15665549L HQ Coy, 54 Inf. Div.

–Sig. Regt (AREN) C/o. 56 APO, PIN 917584.

… Respondent

Counsel for appellants: Mr. M. Ratna Reddy, Addl. S.C. for CentralGovt.

Counsel for the respondent: Mr. C.V.R. Rudra Prasad The Court made the following:

Judgment: (Per Hon’ble Sri R. Subhash Reddy, J)

This writ appeal, under clause 15 of the Letters Patent, is filed bythe Union of India, through its Defence Secretary, aggrieved by theorder dated 07-12-2007 passed by the learned single Judge inW.P.No.1046 of 2007.

2. The respondent herein had filed the aforesaid writ petitionseeking directions by way of Mandamus to declare the action of theappellants herein in seeking to prosecute him for the second time in-general courtmarshal for the same charges/offences, pursuant tocommunication in 54 Division Signal Regiment LetterNo.15665549L/01/CRC/180 dated 30-12-2006, issued by the third-respondentCommanding Officer, as illegal, arbitrary and in violation offundamental rights guaranteed under Article 20 of the Constitution ofIndia.The learned single Judge, by the impugned order, allowed thewrit petition holding that the action of the respondents therein, inseeking to prosecute the writ petitioner, i.e. the respondent herein, forthe second time in general -courtmartial, is illegal, runs contrary to Section 121 of the Army Act,1950 and also is in violation of Article 20(2) of the Constitution of India.

3. The respondent herein was enrolled in the Corps of Signals of--Indian Army on 27021997 and during the year 2004, he was workingin the Officers’ Mess of the Unit.During the said time, criminal cases,vide Crime Nos.62, 63 and 64 of 2005 were registered against him forthe alleged offences under Section 379 of the Indian Penal Code, on the file of the Police, Trimulgherry, Secunderabad.Pursuant toregistration of the said crimes, he was produced before the XIAdditional Chief Metropolitan Magistrate, Secunderabad.But,however, the said cases were transferred to the competent authorityunder the Army Act, 1950 as contemplated under Section 125 read-with Rule 197A of the Army Rules, 1954.After transfer of the cases tothe authority under the Army Act, 1950, disciplinary proceedings werecommenced against him and summary of evidence and additionalsummary of evidence was recorded.The respondent was tried for fourcharges under Section 69 of the Army Act, 1950, for committing theftand for violation of the provision under Section 379 of IPC.The-summary courtmartial conducted trial and the respondent wasconvicted and sentenced to be deprived of the appointment of LanceNaik and also to suffer rigorous imprisonment for 2 months and 29days in military custody.Pursuant to the said conviction in the-summary courtmartial, the wife of the respondent was informed about---the same by letter dated 24072006, issued vide proceedings PC15665549/O1/Sigs/CRC.The said letter reads as under:

“INFORMATION TO THE NEXT OF KIN: PUNISHMENTAWARDED

Madam,

Conclusion

“INFORMATION TO THE NEXT OF KIN: PUNISHMENTAWARDED

Madam,

1. Your husband No. 15665549LRankSignalmanTrade Dvr MTNameC Rajesh Chettyhas beentried by Summary Court Martial under Army Act, 1950-Trade Dvr MTNameC Rajesh Chettyhas beentried by Summary Court Martial under Army Act, 1950-Section69 and the punishment awarded is Deprivedof Appointment of Unpaid Lance Naik and Two monthsand twenty nine days Rigorous imprisonment inmilitary custody.of Appointment of Unpaid Lance Naik and Two monthsand twenty nine days Rigorous imprisonment inmilitary custody.

2. This is for your information please.”

4. But, however, after the respondent underwent about 51 days ofrigorous imprisonment, the trial before the summary -courtmartial was rendered void ab initio and he was again sought be-subjected to trial before the general courtmartial.When the saidcommunication was sent to the respondent, he approached this courtand filed the writ petition.Though the appellants herein have pleaded-in support of retrial by the general courtmartial, but, however, thelearned single Judge, while considering in detail various provisions ofthe Army Act, 1950, held that there are no valid reasons for retrial by-the general courtmartial.

5. In this writ appeal, it is contended by Mr. M. Ratna Reddy,learned counsel for the appellants, that the appellants are conferredwith the power for reviewing the proceedings under Section 162 of the-Army Act, 1950.It is submitted that though summary courtmartial hastried the cases, but when the said proceedings were forwarded to theDeputy Judge Advocate General, Headquarters 21 Corps for review of-–summary courtmartial, in terms of Army Rule 133, during the course-of review, it was ordered to set aside the summary courtmartialproceedings for want of jurisdiction since the charge sheet based onwhich the petitioner was tried did not contain the endorsement for trialby the convening authority.

6. On the other hand, it is contended by Mr. C.V.R. Rudra Prasad,-learned counsel for the respondentwrit petitioner, that as much as the-summary courtmartial is competent to try the charges framed against-the respondent and such courtmartial has already tried and passedfinal orders, in such an event, there is no power conferred, as pleadedunder Section 162 of the Army Act, 1950, on the appellants to reopen-the proceedings again by the general courtmartial.It is submitted thatthere is a clear bar under Section 121 of the Army Act, 1950 for secondtrial.Advancing such argument, he has pleaded that there are nogrounds to interfere with the reasoned order passed by the learned single Judge.

7. In this case, it is not in dispute that after registration of crimes-against the respondentwrit petitioner, an order was passed by thecompetent criminal court transferring the cases for trial by thecompetent authority under the Army Act, 1950.It is also not in disputethat after recording summary of evidence and additional summary ofevidence, the respondent was tried by the summary

-----courtmartial from 22072006 to 24072006 on all the four chargesand was sentenced to undergo rigorous imprisonment for a period of81 days apart from deprivation of his appointment to the post of LanceNaik.The only ground, which is sought to be urged by the learnedcounsel for the appellants, in support of ordering retrial, is that thecharge sheet, based on which the respondent was tried, did notcontain the endorsement for trial, by the convening authority.Exceptsuch technical ground, no other ground is urged for conducting denovo enquiry by the general court-martial in spite of the fact that the-respondent was tried by the summary courtmartial and was convictedand also imprisoned for 51 days.

8. At this juncture, it is apposite to refer to Section 162 of the ArmyAct, 1950, which reads as under:

“-Transmission of proceedings of summary courtsmartial.-

-The proceedings of every summary courtmartial shallwithout delay be forwarded to the officer commanding thedivision or brigade within which the trial was held, or to theprescribed officer; and such officer, or the Chief of the ArmyStaff, or any officer empowered in this behalf by the Chief ofthe Army Staff, may, for reasons based on the merits of thecase, but not any merely technical grounds, set aside theproceedings or reduce the sentence to any other sentencewhich the court might have passed.”

9. A reading of the aforesaid provision makes it abundantly clear -that every proceedings of summary courtmartial, without delay, beforwarded to the officer commanding the division or brigade withinwhich trial was held or to the prescribed officer or to such officer who isempowered by the Chief of the Army Staff.Such authority is alsoempowered to set aside the proceedings or reduce the sentence-imposed by the summary courtmartial, but, however, the same is aconditional one.In this case, it is evident from the pleadings on recordthat the power under Section 162 of the Army Act, 1950 is sought to beexercised merely on the ground that the charge sheet based on whichthe respondent herein was tried and convicted did not contain theendorsement for trial by the convening authority.If there is anomission in taking such endorsement as required under law, the sameis only a technical defect and in such event the appellants cannotinvoke the power as contemplated under Section 162 of the Army Act,1950.The provision under Section 162 of the Army Act, 1950 is veryclear and in view of the very provision, the power of review cannot beinvoked on the aforesaid technical ground.Except the said technicallapse, no other reason is assigned by the appellants to declare the-proceedings before the summary courtmartial as void ab initio and to-order retrial by the general courtmartial.In addition to the same, underSection 121 of the Army Act, 1950 there is a clear prohibition forsecond trial.In this case, it is also to be noted that during the course ofeither summary of evidence, additional summary of evidence or duringtrial, at no point of time such technical lapse was noticed.The--respondentwrit petitioner was tried before the summary courtmartial,convicted for the offences alleged and also underwent about 51 days-of imprisonment as per the conviction recorded by the summary courtmartial.In view of the same, we too share the same view expressedby the learned single Judge.Therefore, we do not find any ground tointerfere with the impugned order.

10. The writ appeal fails and is accordingly dismissed, however, inthe circumstances without any order as to costs.

____________________

ANIL R. DAVE, CJ.

December, 2008MRR

_________________________

R. SUBHASH REDDY, J.