PETITIONER:
CHIEF OF ARMY STAFF AND ORS.
Vs.
RESPONDENT:
MAJOR S.P. CHADHA
DATE OF JUDGMENT21/12/1990
BENCH:
KANIA, M.H.
BENCH:
KANIA, M.H.
MISRA, RANGNATH (CJ)
CITATION:
1991 AIR 460 1990 SCR Supl. (3) 691
1991 SCC (2) 288 JT 1991 (1) 54
1990 SCALE (2)1312
ACT:
Army Act, 1950: Sections 3(ii), (vii), (viii) and
(xvii), 117, 121, 126 and 127. Army Instruction No. 1/6/74
(As amended by Army Instruction No. 2/76) and No. 81 of
1986.
Criminal Courts and Court-Martial (Adjustment of juris-
diction) Rules, 1978: Rules 3 and 4. Army Officer–Civil
offence–Disciplinary proceedings–Attachment–Reduction in
Rank–Suspension–Trial-Choice between criminal court and
Court-Martial–Prohibition of second trial–Accused put on
trial before General Court-Martial-Dissolution of Court-
Martial–Accused whether can be tried by an ordinary crimi-
nal court for the same offence–Validity of attachment,
reduction in rank and suspension–Purpose of
attachment—-Explained.
‘Offence’–’Civil Offence’–’Court-Martial’–’Criminal
Court’ Meaning of.
Code of Criminal Procedure, 1973: Sections 190(1) (a) and
475.
HEADNOTE:
The respondent, a Lt. Colonel, was alleged to have
committed a civil offence. He was attached to another regi-
ment for purposes of completing the disciplinary proceed-
ings, made to relinquish his acting rank of Lt. Colonel, on
the basis of Army Instruction No. 1/6/74 and suspended from
service. The Army authorities opted for his trial by a
General Court-Martial under the Army Act, 1950. He filed a
writ petition in the Supreme Court challenging action of the
Army Authorities. However, the Court-Martial was dissolved
under Section 117 of the Army Act and the respondent was
handed over to civil authorities for trial of the same
offence by a regular criminal court. Consequently, the
Supreme Court dismissed his writ petition.
Pursuant to the handing over of the respondent to the
civil authorities, a complaint was filed against him before
a Magistrate’s court under Section 190(1) (a) of the Crimi-
nal Procedure Code, 1973. The respondent filed a writ peti-
tion in the Punjab and Haryana High Court praying for resto-
ration of his acting rank and for revocation of
692
his suspension. A Single Judge of the High Court ordered
restoration of his acting rank by holding that since the
authorities opted for his trial under the Army Act he could
not be handed back to civil authorities for trial by an
ordinary Criminal Court on the ground that trial by a
Court-Martial was not feasible; and in view of his attach-
ment to other regiment suspension should not have been
resorted to.
The Letters Patent Appeal preferred by the appellants
against the decision of the Single Judge was summarily
dismissed by a Division Bench of the High Court.
In appeal to this Court, against the decision of the
Division Bench of the High Court, it was contended on behalf
of the appellants that (i) since the Court-Martial could not
be completed against the respondent there was no legal bar
to his trial by an ordinary criminal court; (ii) Until the
trial was completed, the respondent was neither entitled to
get back his rank nor have his suspension revoked.
On behalf of the respondent it was inter alia contended
that since he was sent to a regular criminal court for trial
his attachment could no longer survive.
Allowing the appeal, this Court,
HELD: 1. Section 127 of the Army Act, 1950 deals with
successive trials by a criminal court and Court-Martial and
sub-section (1) of section 127 specifically provides that a
person convicted or acquitted by a Court-Martial may, with
the previous sanction of the Central Government, be tried
again by a criminal court for the same offence or on the
same facts. Under this section there is no general bar as
such prohibiting successive trials by a Court-Martial and by
a criminal court and perusal of the section shows that even
where a person has been convicted or acquitted by a Court-
Martial of the offence in question, he can be tried for the
same offence by a criminal court, with the previous sanction
of the Central Government. In the instant case the question
of sanction of the Central Government never arose because
the respondent was neither convicted nor acquitted by the
Court-Martial or dealt with under sections 80, 83, 84 or 85.
[698H, 699A-C]
2. Section 121 of the Army Act, deals with the prohibi-
tion of second trial. It has no application to the instant
case as the respondent was neither acquitted nor convicted
by the Court-martial or by a criminal court nor has he been
dealt with under Sections 80, 83, 84 or 85 of the Act.
[698G]
693
3. Army Instruction No. 31 of 1986, inter alia provides
that an officer who ceases to carry out the duties of his
appointment by being attached to another Unit for discipli-
nary purposes will vacate his appointment or relinquish any
acting rank after 21 days. It further provides that if such
an officer is subsequently acquitted or for any purpose not
brought to trial or his character is vindicated to the
satisfaction of the appropriate authorities at Army Head-
quarters vide such inquiry as is made under para 346 of the
Regulations for the Army, such officer will be reappointed
to the post vacated by him and the acting rank of the offi-
cer will be deemed to have been held by him continuously
with effect from the date he relinquished it. The respondent
vacated his appointment and his acting rank 21 days after
his attachment to a different regiment for purposes of
completing the proceedings against him. As he has not yet
been acquitted nor has his character been vindicated to the
satisfaction of the appropriate authorities at Army Head-
quarters and he is to be tried by the criminal court, till
the trial is completed or given up or till he is acquitted
or his character vindicated to the satisfaction of the
appropriate authorities, there is no case for revocation of
the order of his suspension or restoration of his acting
rank. [698C-D, 699G-H, 700A]
4. The only purpose of attachment of an army officer to
a different unit is that the disciplinary proceedings
against him could be speedily and satisfactorily completed
without any interference by him. In view of the respondent
being sent to the ordinary criminal court for trial, there
was no question of his interfering thereafter with the
disciplinary proceedings and in view of that, the order of
attachment against him is set aside. Accordingly the orders
of the High Court are set aside except to the extent that
the attachment of the respondent to the other Unit will
cease and he will be reverted to his original unit. [699E-F,
700B]
JUDGMENT: