W.P.(CRL)/3614/2019 of MAJ GEN S C SHARAN Vs UNION OF INDIA & ORS. on 27 December 2019

1. The petitioner has filed the present petition, inter alia, praying asunder:- “(A)Issue a Writ of Certiorari or any appropriateWrit/Order/Directions, to quash Para 6 of the impugnedInvocation Policy dated 23 March, 2007, dealing with theinvocation of the provisions of Section 123 of the ArmyAct, 1950, being arbitrary, unjust and illegal violating theprovisions of Articles 14 and 21 of the Constitution ofIndia as also the provisions of Section 123 of the ArmyAct itself.”

2. The petitioner is a serving officer of the Indian Army and he willsuperannuate from service on 31.12.2019. Complaints against the petitionerwere received alleging financial impropriety and inappropriate conduct withgirl cadets when he was posted as Additional Director General, National Cadet Corps Directorate, Gujarat. In view of the said complaints,disciplinary proceedings were initiated against the petitioner. And, a Courtof Inquiry was convened to investigate the said complaints.

3. It is stated that the Court of Inquiry has found the petitionerblameworthy for forwarding sexually explicit messages and videos andthereby sexually harassing certain girl cadets.

4. In view of the above, the petitioner apprehends that he would bearrested.

5. The petitioner is aggrieved by Paragraph 6 of the Policy Letter dated23.03.2007 (which is impugned herein), to the extent that it provides that anofficer or JCO would be placed under arrest prior to invoking Section 123 ofthe Army Act, 1950 (hereafter the ‘Army Act’), unless otherwise directed bythe Competent Authority. It is the petitioner’s case that such a policy, whichprovides for blanket provision for arresting all officers unless directedotherwise, is contrary to Articles 14 and 21 of the Constitution of India. It isearnestly contended on behalf of the petitioner that before any order of arrestis passed, the competent authority is required to apply its mind and considerwhether such an order is warranted in the given facts of the case.

6. Paragraph 6 of the Policy Letter dated 23.03.2007, which is impugnedherein, is set out below:- “Arrest

6. Unless otherwise directed by the competent authority atpara 4 above, an officer or JCO or OR will be placedunder arrest prior to invoking Army Act Sect 123 in hisrespect on the orders of his commanding officer andwould remain under arrest until finalisation of the casepara 4 above, an officer or JCO or OR will be placedunder arrest prior to invoking Army Act Sect 123 in hisrespect on the orders of his commanding officer andwould remain under arrest until finalisation of the case against him. The type of arrest (open or close) will be atthe discretion of his commanding officer who will decidewhether, having regard to all the circumstances open orclose arrest will best meet the requirement of the case.He can also exercise his discretion to change the form ofarrest from time to time, if circumstances so warrant.Unless superior authority orders otherwise, the decisionof commanding officer in this regard shall prevail.”

7. Before proceeding further, it is also relevant to refer to Section 123 ofthe Army Act, which reads as under:- “123. Liability of offender who ceases to be subject toAct.

(1) Where an offence under this Act had been committedby any person while subject to this Act, and he has ceasedto be so subject, he may be taken into and kept in militarycustody, and tried and punished for such offence as if hecontinued to be so subject.

(2) No such person shall be tried for an offence,unless his trial commences [within a period of three yearsafter he had ceased to be subject to this Act; and incomputing such period, the time during which suchperson has avoided arrest by absconding or concealinghimself or where the institution of the proceeding inrespect of the offence has been stayed by an injunction ororder, the period of the continuance of the injunction ororder, the day on which it was issued or made, and theday on which it was withdrawn, shall be excluded:]

Provided that nothing contained in this sub- sectionshall apply to the trial of any such person for an offenceof desertion of fraudulent enrolment or for any of theoffences mentioned in section 37 or shall affect thejurisdiction of a criminal court to try any offence triableby such court as well as by a court- martial.

(3) When a person subject to this Act is sentenced by acourt- martial to transportation or imprisonment, this Act shall apply to him during the term of his sentence, thoughhe is cashiered or dismissed from the regular Army, orhas otherwise ceased to be subject to this Act, and he maybe kept, removed, imprisoned and punished as if hecontinued to be subject to this Act.

(4) When a person subject to this Act is sentenced by acourt- martial to death, this Act shall apply to him till thesentence is carried out.”

8. A plain reading of Sub-Section (1) of Section 123 of the Army Actindicates that when an offence is committed under the Army Act by a personwho was subject to the said Act at the material time, he ‘may’ be taken intoand kept in military custody and punished for such offence. Thus, by virtueof Section 123(1) of the Army Act, even though a person has ceased to besubject to the Army Act he would, nonetheless, be within the sweep of theArmy Act for being tried for an offence which is alleged to have beencommitted while he was subject to the said Act.

9. The use of the word ‘may’ in Section 123 of the Army Act alsoclearly indicates that it is not necessary that such a person be taken intomilitary custody. Section 123(1) is only an enabling provision and it isobvious that an alleged offender would be taken into custody only if thereare sufficient reasons for warranting the same. In this view, if Paragraph 6of the policy letter dated 23.03.2007 is read to mean that in all cases officersor JCOs, who are alleged to have committed an offence under the Army Actwould, unless otherwise directed by the Competent Authority, be placedunder arrest; the same would, prima facie, fall foul of Articles 14 and 21 ofthe Constitution of India.

10. At this stage, Mr Mahajan, learned counsel appearing for the respondent states, on instructions, that Paragraph 6 of the policy letter is notimplemented in the manner as read by the petitioner. He states that in allcases, save and except where the exigencies of a given situation requireotherwise, orders of arrest are passed after the Competent Authority hasapplied its mind.

11. In view of the above statement, Paragraph 6 of the impugned policyletter is read down in the aforesaid manner. Although a provision for arresthas been made in the impugned policy letter, the said arrest would not bemade unless the Competent Authority so directs. Mr Mahajan states that inthe facts of the present case, the petitioner would not be arrested unless anorder to the said effect is passed by the Chief of Army Staff. In view of thisstatement, the petitioner’s grievance does not survive.

12. The respondents are bound down to the said statement. No furtherorders are required to be passed in this petition.

13. The petition is, accordingly, disposed of. The pending application isalso disposed of.

VIBHU BAKHRU, J

DECEMBER 27, 2019MK