Madhya Pradesh High Court
Kulwant Singh (Nk.) S/O Sardar Sadhu ... vs Union Of India (Uoi) And Ors. on 24 June, 1991
Equivalent citations: 1991(0)MPLJ985
Author: D.M. Dharmadhikari
Bench: D.M. Dharmadhikari
ORDER D.M. Dharmadhkari, J.
1. The order passed in this petition shall also govern the disposal of following Misc. Petitions which were heard together :-
(1) M. P. No. 2320 of 1987 (Hav. Kashmir Singh 3362069 and Ors. v. Union of India and Ors.) (2) M. P. No. 170 of 1990 (3369816 Hav. Harisingh and Anr. v. Union of India and Ors.) (3) M. P. No. 171 of 1990 (3368252 Sep. Balwinder Singh v. Union of India and Ors.) (4) M. P. No. 172 of 1990 (3363144 Nk. Baldev Singh and Ors. v. Union of India and Ors.) (5) M.P. No. 173 of 1990 (No. 3370117 Nk. Kuldeep Singh and Ors. v. Union of India and Ors.).
2. We have taken up the present petition for decision first because the points common in all the above petitions were argued by the learned counsel for the petitioners on the basis of contentions and grounds raised in this petition.
3. The petition is filed challenging conviction and sentences of the petitioners in Court Martial proceedings for alleged offences said to have been committed by them Under Sections 37(c), 38(1) and 63 of the Army Act, 1950 (hereinafter referred to as 'the Act').
4. In the Sikh Regiment Centre at Ramgarh on 10-6-1984 soldiers waged a mutiny and looted the arms in battalion kotes. The cause of mutiny in the Sikh Regiment was said to be the entry of the Indian Army in the precinct of the Golden Temple, Amritsar in its action called 'Operation Blue Star' and the blood shed in course of it. The above action of the Army is said to have grievously hurt the religious sentiments of the Sikhs throughout India including those in the Army. The petitioners four in number in this case were tried in General Court Martial for the charges contained in the charge sheet as under :-
"Charge Sheet The accused (1) No. 3368610 Nk. Kulwant, (2) No. 3381849 Sepoy Balraj Singh, (3) No. 3382130 Seopy Gurmeet Singh, (4) No. 3381905 Sepoy Hakum Singh all of the Sikh Regimental Centre, attached with Adm. Bn. The Jammu and Kashmir Rifles Regimental Centre are charged with :
First Charge Army Act, Section 37(c) against all accused persons BEING PRESENT AT A MUTINY IN THE MILITARY FORCES OF INDIA, NOT USING THEIR UTMOST ENDEAVOURS TO SUPPRESS THE SAME, in that they together at Ramgarh, on 10 June 84, while on guard duty at training battalion kotes of SIKH Regimental Centre and when soldiers of the said centre advanced towards the training battalion kotes in a mutinous spirit to loot the said kotes, failed to use their utmost endeavours to supress the said mutiny. Second Charge Army Act Section 63 (against all accused persons) AN OMISSION PREJUDICAL TO GOOD ORDER AND MILITARY DISCIPLINE IN THAT THEY together at RAMGARH, on 10 June 84, while on guard duty at training battalion kote of the SIKH Regimental Centre improperly omitted to protect the said battalion kote, which resulted in the loss of following arms:
(a) Rifles 7.62 mm Al - 1330 (b) Carbine Machine 9 mm - 111 (c) Gun machine 7.62 mm IB - 96 (d) Gun machine 7.62 mm IC - 06
Third Charge Army Act, Section 38(1) against accused No. 3 only DESERTING THE SERVICE, in that he, at Ramgarh on 10 June 1984, absented himself from Sikh Reginmental Centre until apprehended by personnel of 4 para on Agra Udla Road on 11 June 1984 Fourth Charge Army Act, Section 38(1) against accused No. 4 only DESERTING THE SERVICES in that he, at RAMGARH on 10 June 84 absented himself from SIKH Regimental Centre until apprehended by personel of Bihar Regimental Centre at Fatua on 11 June 84. Sd/-
(M.S. batt) Place:- Jabalpur Lt. Col.
Dated:- 19th March, 85 Commanding Officer, Adm. Bn. The JAK Rif.
Regt. Centre.
To be tried by General Court Martial.
Place : Jabalpur Dated : - 30 March, 85 Sd/-
(A.T. Marath,) Lt. Col.
Asstant Adjutant General for General Officer Commanding, Madhya Pradesh, Bihar And Orissa Area."
5. The General Court Martial after holding trial under the Act and the Army Rules recorded findings of the petitioners being 'not guilty' for some of the charges and 'guilty' for the remaining charges. The Confirming Authority in revision sent back the case to the General Court Martial to re-consider their findings and thereafter the Court Martial recorded a finding of the petitioners being 'guilty' of all the charges levelled against them. The Confirming Authority confirmed the findings and imposed sentences on the petitioners of rigorous imprisonment and dismissal from Army services.
6. The defence of the petitioners in Court Martial proceedings, in the written statement filed by one of the accused Kulwant Singh is as under:-
"3. At about 11.30 a.m. a large number of Administration Batallion personnel advanced at the Kote from the Nala Company. They were firing towards the Kote. All JCOs and NCOs present in the Kote area ran away at the commencement of the firing.
4. When the firing commenced Lt. Col. K. K. Verma I took shelter in the Sentry post. About 50 men took up the lying down position about 40 yards from the front of the Kote and started firing towards the Kote. I raised my rifle to the firing position but Lt. Col. K. K. Verma told me not to fire as it would lead to the firing being concentrated on us. He said he would reason with the men. However, despite his entreaties the firing continued. Lt. Col. K. K. Verma also took away my rifle and I took it back from him as I felt that Mutineers would misconstrue the act and would fire on my C.O.
5. After about 5 minutes, the firing became more intense. Lt. Col. K. K. Verma ran for shelter towards the Kote verandah. Seeing his retreat, the Mutineers started coming forward. I therefore, fired a few shots in their direction. Howevet, this led to the firing being concentrated on me and I also ran to the Kote verandah
6. From the verandah Lt. Col. K. K. Verma left the Kote through the Perecoster fencing. Seeing him leave, about 100 to 130 Mutineers rushed into the Kote area through the front opening. They pointed their rifles at me and ordered me to leave immediately else they would kill me. Being heavily outnumbered and surrounded from all sides, I had no option but to leave. I went to my Company Lines and stayed with my Company."
7. Learned counsel appearing for the petitioners assailed the proceedings of the General Court Martial on various grounds. The legal grounds which are common to all the petitioners are being taken up by us first for consideration, leaving the special features and contentions raised in respect of individual petitions, which we propose to take thereafter.
8. Before coming to the common legal contentions raised on behalf of the petitioners, it would be appropriate to delineate the contour or limits of judicial review by the Courts in proceedings under Article 226 of the Constitution of India. Article 33 of the Constitution of India empowers the Parliament, by law, to determine to what extent any of the rights conferred by Part-Ill of the Constitution containing fundamental rights, shall, in their application to the members of the Armed Forces, be restricted or abrogated so as to ensure proper discharge of their duties and the maintenance of discipline amongst them. The Army Act and the Army Rules to the extent to which they restrict or abrogate the fundamental rights of the members of the Armed Forces have been held constitutionally valid by the Supreme Court in the case of Lt. Col. Prithipal Singh Bedi v. Union of India and Ors., AIR 1982 SC 1413 and R. Viswan and Ors. v. Union of India and Ors., AIR 1983 SC 658. In the case R. Viswan (supra) the provisions of Section 21 of the Army Act were upheld and the following observations were made :-
"It is elementary that a highly disciplined and efficient armed force is absolutely essential for the defence of the country. Defence preparedness is in fact the only sure guarantee against aggression. Morale and discipline are indeed the very soul of an army and no other consideration, howsoever important, can outweigh the need to strengthen the morale of the Armed Forces and to maintain discipline amongst them. The Constitution makers therefore placed the need for discipline above the fundamental rights so far as the members of the Armed Forces and the Forces charged with the maintenance of public order are concerned".
In the case of Lt. Col. Prithipal Singh (supra) the Supreme Court, however, sounded a note of caution so that the provisions of Article 33 of the Constitution may not be misconstrued as taking away all fundamental rights of the members of the Armed Forces and place them apart as a class of citizens. See the following observations therein : -
"Reluctance of the Apex Court more concerned with civil law to interfere with the internal affairs of the Army is likely to create a distorted picture in the minds of the military personal that persons subject to Army Act are not citizens of India. It is one of the cardinal features of our Constitution that a person by enlisting in or entering Armed Forces does not cease to be a citizen so as to wholly deprive him of his rights under the Constitution. More so when this Court held in Sunil Batra v. Delhi Administration, (1979). I SCR 392 at p. 495 = AIR 1978 SC 1675 at p. 1727, that even prisoners deprived of personal liberty are not wholly denuded of their fundamental rights. In the larger interest of national security and military discipline Parliament in its wisdom may restrict or abrogate such rights in their application to the Armed Forces but this process should not be carried so far as to create a class of citizens not entitled to the benefits of the liberal spirit of the Constitution. Persons subject to Army Act are citizens of this ancient land having a feeling of belonging to the civilised community governed by the liberty oriented constitution. Personal liberty makes for the worth of human being and is a cherished and prized right. Deprivation thereof must be preceded by an inquiry ensuring fair, just and reasonable procedure and trial by a judge of unquestioned integrity and wholly unbiased".
9. With the same object for which Article 33 of the Constitution provides abridgement and restriction on fundamental rights of members of the Army for maintaining discipline in the Army and for security of the Nation, the power of superintendence under Article 227 of the High Court, does not extend over any Court or Tribunal constituted by or under any law relating to the Armed Forces. The provisions in the Constitution of India, curtailing the fundamental rights by Article 33 and depriving remedy of redress through the High Court by Article 227(4), however have been held as not taking away the right of the members of the Armed Forces to invoke the writ jurisdiction of the Court under Article 226 of the Constitution of India on the ground that the provisions of the Act and the Rules have not been followed in taking adverse actions against the members of the Armed Forces or on grounds based on apparent error of law in the proceedings of such Tribunals or Courts functioning under any law relating to Armed Forces. See Ranjit Thakur v. Union of India, AIR 1987 SC 2386, wherein the Supreme Court held that a judicial review can be directed not only against a decision of Court Martial, but also against the decision making process. It was observed as under :-
"The procedural safeguards contemplated in- the Act must be considered in the context of and corresponding to the plenitude of the summary jurisdiction of the Court Martial and the severity of the consequences that visit the person subject to that jurisdiction. The procedural safeguards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the Statute."
10. In the case of S. N. Mukherjee v. Union of India, AIR 1990 SC 1984, the Court upheld the provisions of the Army Act and the Rules which did not require the Court Martial, the Confirming Authority or the Central Government in post-confirmation proceedings to record any reasons as a requirement of a part of principle of natural justice. It was, however, clarified that the Supreme Court under Article 32 and the High Court under Article 226 of the Constitution have ample powers of judicial review to scrutinize the validity of the orders and proceedings of the Courts and Authorities acting under a law relating to Armed Forces. The observations in case of S. N. Mukherjee (supra) may be quoted as under : -
"48. But it is not the end of the matter because even though there is no requirement to record reasons by the confirming authority while passing the order confirming the findings and sentence of the Court Martial or by the Central Government while passing its order on the post-confirmation petition, it is open to the person aggrieved by such an order to challenge the validity of the same before this Court under Article 32 of the Constitution or before the High Court under Article 226 of the Constitution and he can obtain appropriate relief in those proceedings."
11. This Court examined the ambit of powers of the High Court under Article 226 of the Constitution in relation to the members of the Armed Forces in the case of Subhash Chandra Sarkar v. Union of India and Ors., 1972 MPU 449 = AIR 1973 MP 191 and although there was difference of opinion between two Judges on one of the questions arising which was resolved by the third Judge, but the unanimous opinion was that the High Court is empowered under Article 226 of the Constitution of India to examine' whether the provisions of the Act and the Rules have been duly followed or not and whether there existed any apparent error of law on record.
12. From the above resume of the case law on the subject including that of the Apex Court, it is clear that the procedural safeguards have to be given utmost importance in proceedings held against a member of the Armed Force, because he is denuded of other basic fundamental rights available to ordinary citizens. In the light of the above legal position, the various contentions raised, in common, for all the cases, on behalf of the petitioners, have to be considered.
13. The first challenge to the Court Martial Proceedings which has been very vehemently urged by the learned counsel appearing for the petitioners is that there did not exist a valid convening order for holding General Court Martial proceedings against the petitioners. It is urged that non-existence of a valid convening order rendered the entire court martial proceedings without jurisdiction, void and liable to be set aside on this short ground alone. In support of the principle submission, made on behalf of the petitioners, reliance is placed on the provisions of Section 109 of the Army Act, which may be reproduced as under for its proper interpretation : -
"109. Power to convene a general court martial - A general court martial may be convened by the Central Government or the (Chief of the Army Staff) or by any officer empowered in this behalf by warrant of the (Chief of the Army Staff)."
14. Along with the return the warrant order convening the Court martial was not annexed. The warrant has been filed along with a separate application which reads as under : -
"Warrant for convening General Court Martial under the Army Act.
To, The Officer, not being under the rank of a Field Officer, Commanding the Madhya Pradesh, Bihar and Orissa Area.
In pursuance of the provisions of the Army Act, 1959 (XLVI of 1950), I do hereby empower you, or the officer on whom your command may devolve during your absence, not under the rank of Field Officer, from time to time as occasion may require to convene General Court Martial for the trial, in accordance with the said Act and the Rules made thereunder, of any person under your command who is subject to Military Law and is charged with any offence mentioned in the said Act, and is liable to be tried by a General Court Martial.
And for so doing, this shall be, as well to you as to all others whom it may concern, a sufficient warrant.
Given under my hand at NEW DELHI this TWENTIETH day of JULY 19.
Sd/- Illegible GENERAL CHIEF OF THE ARMY STAFF Sd/-
LT. GEN.
ADJUTANT GENERAL
15. In the record of the Court Martial proceedings which has been placed before us there is a convening order dated 23-3-1985 (Annexure-K) signed by Lt. Col. A. T. Marath, Assistant Adjutant General for General Officer Commanding, M. P., Bihar and Orissa Area of assembly of a General Court Martial. It mentions the names of the members, waiting members, Judge Advocate and the Prosecutor. The contention on behalf of the petitioners is that the power to convene being a statutory function could be exercised by the General Officer Commanding alone who was empowered by the warrant for the purpose and the convening order could not have been issued by any other authority for and on his behalf. The counsel for the petitioners referred to Rules 17, 41, 56 and '88 of the Rules in support of his contention that it is the authority empowered to convene the court martial which has to apply his own mind to the matter in question before taking a decision to convene a court martial and this power could not have been delegated to any other authority. The counsel for the petitioners submitted that there was a clear violation of the provisions of Section 109 of the Act and the Rules mentioned above on the subject of convening the court martial. Reliance is placed on behalf of the petitioners on the following decisions : -
(1) Guru Villi Bhima Rao v. Union of India and Ors., 1987 Cri.LJ. 504.
(2) Budhoolal Vishwakarma and Anr. v. Registrar, Public Trusts and Ors., 1964 MPLJ 887.
(3) State of U. P. and Ors. v. Babu Ram Upadhya, AIR 1961 SC 751.
(4) Major Jagjit Singh Dhillon v. Union of India and Ors., AIR 1970 Pun. and Har. 346.
16. Leanrned counsel appearing on behalf of the respondent/ authorities, in reply, has supported the validity of the convening order. In paragraph 3 of the return it has been stated that the convening order was signed by Lt. Col. A. T. Marath, Assistant Adjutant General for and on behalf of the General Officer Commanding, with his approval as is the practice followed in the Army. It was urged on behalf of the respondents that there was no delegation of power by the General Officer Commanding in favour of any other officer. It was stated that there was due application of mind before convening the Court Martial by the General Officer Commanding which is apparent from Annexures R-1 to R-7 containing the pre-trial advice to the Deputy Judge Advocate General. The Annexures R-2 to R-7 show that before convening the Court Martial, the General Officer Commanding, himself duly applied his mind to the matter. The learned counsel for the respondents submitted that mere signing of a convening order by the Assistant Adjutant General for and on behalf of the G. O. C. did not in any manner contravene the provisions of either Section 109 of the Act or any of the provisions of the Army Rules. It was stated that the convening order is in conformity with the rules and the forms prescribed thereunder. Attention of the court was invited to note 5 mentioned below Rule 41 of the Army Rules, which is as under :
"5. In the case of a GCM or DCM, the convening order must be signed by the convening officer or "for" him by a staff officer or by a staff officer as such. The absence of a properly signed convening order is a fatal flaw although an order for trial is endorsed on the charge sheet. Apart from the specific requirements of this rule, the Court must be satisfied that it is constituted strictly in accordance with the convening order."
17. Placing interpretation on Section 109 of the Act, it was urged by the learned counsel for the respondants that the word 'convening' is not to be misunderstood with the word 'signing' of the convening order. It was submitted that the convening order may be signed by any one for and on behalf of the officer convening it. It was pointed out that in this particular case, there is ample material on record to show that it was the General Officer Commanding himself who had convened the General Court Martial, may be, the convening order was signed 'for and on his behalf by the Assistant Adjutant General. The learned counsel for the respondents also submitted that soon after the court assembled, the order convening the court was read out, marked and exhibited in the course of proceedings. (See page 2 of the Court Martial Proceedings). In accordance with the provisions of the Army Rule 37, read with Rules 41, 56 and 88 of the Rules, specific question was put to the petitioners whether they had any objection to the procedure including that of the convening of the court martial and the petitioners, did not at the proper stage, that is, at the very commencement of the proceedings, raise any objection, oral or in writing to the validity of the convening order. The learned counsel for the respondents, therefore, submits that formal defect, if any, did neither vitiate the proceedings nor resulted in any prejudice to the petitioners. Reference in this respect has been made also to the Rule 4 of the Rules providing that formal omission in respect of various rules and provisions would not render any act or thing invalid. Rule 4 of the Rules may be seen as under: -
"4. Forms in Appendices. - (1) The forms set forth in the appendices to these rules, with such variations as the circumstances of each case may require, may be used for the respective purpose therein mentioned, and if used, shall be sufficient, but a deviation from such forms shall not, by reason only of such deviation, render invalid any charge, warrant, order, proceedings or any other document relevant to these rules.
(2) Any omission of any such form shall not, by reason only of such omission, render any act or thing invalid.
(3) The directions in the notes to, and the instructions in, the forms shall be duly complied with in all cases to which they relate, but any omission to comply with any such directions in the notes or instructions shall not, merely by reason of such omission, render any act or thing invalid."
18. The dictionary meaning of the word 'convene' is "to come or call together (for public purpose)". The one who convenes a meeting is called a convener. Giving the literal meaning to the word 'convene' used in Section 109 of the Act, the requirement of law only appears to be that a General Court Martial has to be called by the Central Government or the Chief of the Army Staff or by any officer empowered in this behalf by warrant. The respondents have produced a warrant in favour of the General Officer Commanding by designation and in his absence on whomsoever the command devolves. The question, therefore, is whether the General Court Martial in the present case can be said to have been duly convened by an officer duly authorised by warrant or it has been convened by some officer not so authorised. If the convening has in fact been done by the authorised officer in terms of the warrant, the mere fact that the order of convening has been signed by some other authority 'for and on his behalf' cannot render the General Court Martial convened as unauthorised. There is ample evidence on record in this case to show that the General Court Martial was convened by the General Officer Commanding. Mere signing of convening order on his behalf and under his authority by his delegate could not be treated as contravention of the provisions. of the Act. The essential function in convening a Court Martial is to take a decision to order General Court Martial on the basis of the inquiry report, if any, or the material available for Court Martial and to select members who will constitute General Court Martial. If the above essential function of convening is proved to have been done by the duly authorised convening officer, no fault can be found with the Court Martial proceedings only on the ground that the order convening the Court Martial was not signed by the convening officer himself. The respondents, along with the return, have annexed copies of some letters marked as Annexures R-1 to R-4 which are communications made by the General Officer Commanding who had the authority under the warrant, to convene a General Court Martial. The above correspondence shows that the duly empowered convening officer himself had taken a decision to hold a General Court Martial, keeping in view the gravity of the offences committed by the petitioners. He appears to have duly applied his mind to the nomination of the members of the Court Martial. On the face of the above correspondence exhibited as Annexures R-1 to R-4, there is no doubt, whatsoever, that the General Officer Commanding had taken a decision to convene General Court Martial and nominated members constituting it. The convening order signed by the Assistant Adjutant General for and on behalf of the General Officer Commanding was merely a communication to the concerned members to assemble for General Court Martial against the petitioners.
19. The argument of the learned counsel for the petitioners does not appear to be sound that the officer duly authorised by warrant has, in this case, sub-delegated his authority to an officer subordinate to him. Mere signing and conveying of the fact of convening does not, in our opinion, amount to delegation of an essential statutory function by competent authority in favour of an authority subordinate to him. The essential statutory function of deciding to hold a General Court Martial and selecting members to it, have been proved in this case to have been performed by the officer competent. Hence the Court Martial Proceedings cannot be termed as unauthorised or illegal. The note 5 below Rule 41 read with appendix-Ill and note 10(1) below it, which has been brought to our notice by the counsel for the respondents permits the course which was adopted in convening the Court Martial.
20. In 'Principles of Administrative Law' by Jain and Jain, Fourth Edition, at page 401, a distinction has been pointed out between cases where an authority delegates powers to some other authority and employs assistance to help in discharging its functions - "Power may not be sub-delegated, but there should be no objection to an authority seeking assistance if the final judgment rests with it.....................If the control and supervision over the subordinate is substantial, if the delegating authority has laid down detailed instruction as to how routine cases should be disposed of by it, and reserves the power to always deal personally with new and important cases itself, then it be a o case not delegation, but of employing assistance to help the authority in discharging its statutory powers.
21. The argument of the learned counsel for the petitioners, therefore, cannot be accepted that the convening order having not been signed by the General Officer Commanding, the Court Martial Proceedings held were totally without jurisdiction.
22. The objection based on the convening order cannot also be considered for another reason that such objection was never raised at the appropriate stage, that is, at the commencement of the proceedings of the General Court Martial. The very aim and purpose of Rule 44 of the Rules is that after the Court Martial is convened, the accused should get an opportunity to object to the constitution of the Court Martial so that if the objection is sustained, necessary procedural amendment may be made. The requirement of Rule 44 is that the order convening the Court Martial and the names of the Presiding Officer and the members of the Court will be read over to the accused and he shall be asked whether he has any objection to being tried by any officer sitting in the Court. The objection contemplated under this rule read with Section 130 of the Act will include an objection that the members of the Court Martial have no authority in the absence of a valid convening order. The purpose of the rule is to grant opportunities to the authorities holding the Court Martial Proceedings to remedy ail defects of procedure including the constitution of the Court Martial, well before the actual trial begins. Had an objection been raised at the appropriate stage, the matter would have been clarified by making a reference to the convening officer himself and by obtaining a fresh order from him under his own signature. For the aforesaid reason, the petitioners' challenge to the convening order cannot be entertained in these proceedings, more so because we have found it as a matter of fact that convening of the Court Martial was done in this case by the General Officer Commanding himself and the Assistant Adjutant General merely signed the convening order on his instructions and under his authority.
23. The second challenge to General Court Martial Proceedings is that the members did not take and prescribe oath before trial as required by Rule 45 of the Rules. The reply on behalf of the respondents is that the members constituting the General Court Martial had taken necessary oath before commencement of the trial and the fact is mentioned in the proceedings of the General Court Martial at page 4 (a copy of which is marked as Annexure R-6 of the return). Learned counsel for the respondents also pointed out that at the very commencement of the proceedings, vide question No. 19, the accused were asked if they wish to apply for adjournment on the ground that any rules relating to procedure before trial have not been complied with resulting in prejudice to them. The argument of the learned counsel for the petitioners is that the oath was not administered to the members of the Court Martial in presence of the accused persons. As has been mentioned above, the record of the Court Martial Proceedings did not bear out the objection raised by the petitioners. There is no requirement of law that the oath should be administered to the members of the Court in the presence of the accused persons. Section 131 of the Act reads as under
"131. Oaths of members, judge advocate and witness. - (1) An oath or affirmation in the prescribed manner shall be administered to every member of every Court Martial and to the judge advocate before the commencement of the trial.
(2) Every person giving evidence before a Court Martial shall be examined after being duly sworn or affirmed in the prescribed form.
(3) The provisions of Sub-section (2) shall not apply where the witness is a child under twelve years of age and the Court Martial is of opinion that though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation."
24. The oath could, therefore, be administered and taken even if the accused were not present at the time of oath. (See - Section 45 of the Rules). The accused are in fact arraigned before the Court Martial after the members of the Court Martial assemble consequent upon taking oath. (See Rule 48 of the Rules).
25. On the subject of oath the petitioners admittedly did not raise any" objection in accordance with Rules 37, 41, 56 and 88 of the Army Rules. The objection based on the ground of not taking of oath by the members of the Court, cannot be allowed to be raised for the first time in these proceedings. The very purpose of giving opportunity to the accused at every stage to raise objection is to set right all procedural defaults and defects, if any, which are likely to prejudice a fair trial.
26. Counsel for the petitioners, therefore, took great pains in taking us in details through the relevant portions of the Court Martial Proceedings and the statements of the material witnesses examined. The contention raised on the merits of the proceedings is that the evidence on record, even if fully accepted, does not establish commission of offence of 'mutiny' 'desertion' and 'Military indiscipline'. The counsel made a fervent appeal to us that the petitioners' conduct should not be judged, unmindful of the religious sentiments of the Sikhs and general apprehension or misunderstanding that prevailed in the Sikh Regiment after the Army's 'operation blue star' in the premises of the Golden Temple. It was argued that the Sikh personnel were highly agitated being misinformed through unreliable sources that atrocities were being committed on their kith and kin in Punjab, with the result that their temper rose and emotions were surcharged. It was admitted that in such highly tense and surcharged atmosphere there was mob frenzy and the petitioners fell prey to that mob mentality as helpless victims. The submission was that the petitioners could not be tried and punished as criminals if the background of the whole episode is kept in view. It was further submitted that the petitioners could not also be held guilty of the charge of 'desertion' since they were compelled by circumstances and were virtually forced to board vehicles in which they were forcibly carried to distant places. The submission is that the petitioners had been attacked by a crowd of mutineers and they had no option but to behave in a way demanded of them. If at all they acted in a particular way, that was in their self protection and" protection of their fellow-men. The above aspect of the case placed before us by the learned counsel for the petitioners, on the face of it appears to be plausible, but on a closer scrutiny, we find that the conduct of the petitioners as army men fell much short of expected conduct from them in military law.
27. Before we express our final opinion on the merits of the case, it would be useful to quote from the Court Martial Proceedings to show the manner in which their conduct was viewed by the authorities under the Army Act for holding them guilty and punishing them for offences held proved. In the case of Kulwant Singh and Ors. the Court Martial had held the petitioners not guilty of some of the charges but the Confirming Authority exercised its revisional powers and sent back the case to the Court Martial for reassessment of the evidence and for reconsideration of the question of sentences imposed on them. When the matter finally came to the Court Martial, the opinion expressed by the Confirming Authority was accepted by the Court Martial, which returned findings of 'guilt' against the accused for all the charges. The opinion of the Confirming Authority, therefore, can be said to be final opinion which weighed with the authority in convicting and punishing the accused. The opinion of the Confirming Authority contained in its revisional order may be quoted as under : -
"3. The second charge was laid under AA Section 63 the particulars averring, that they together, at Ramgarh, on 10 June 84, while on guard duty at the Trg Bn Kote of the Sikh Regimental Centre, improperly omitted to protect the said Bn Kote which resulted in the loss of arms as averred in the said charge. There was no dispute between the prosecution and the defence as regards the loss of arms. The only point for adjudication of the Court was whether the accused persons failed in their duty so as to bring their conduct within the ambit of Section 63 of the Army Act. You would appreciate that the accused persons were members of the guard and as such were responsible for the security of Kote. It is in evidence that the accused persons had received advance notice from BHM Gurdial Singh at least an hour before the looting of the Kote. There is no evidence to indicate that any proper preparation was made to safeguard the Kote. No ammunition was either issued to the sentries or demanded by them. You should consider whether there was any plan of action, or preparation or will to protect the arms entrusted to their care. You should also consider whether there was a streak of sympathy for the mutineers. In this connection the conduct of the Guard Commander in retrieving his rifle from Lt. Col. Verma on the ground that there would be 'blood shed' is also relevant. Not only this, when the strength of the mutineers increased manifold, all the accused persons left the place of duty and went to their Coy lines. Does not their conduct show that they had scant regard for their duty? You must also consider whether they offered any resistance to the mob at any time. There was no casualty or injury on either side. Further accused Nos. 3 and 4; in addition to quitting the place of their duty also deserted from the service. It is thus apparent that as members of the guard, they omitted to take any action to safeguard the arms entrusted to their care.
4. The defence contention that they were outnumbered and thus could not take any action should also be given due weightage. The Court must also appreciate that presence of Lt. Col. Verma at the Trg Bn Kote, during the relevant time, is only a mitigating circumstance and does not absolve the accused persons of their duty.
5. In the light of the foregoing.......__circumstances of the case, Accused No. 1 was the Guard Commander and was responsible for the security of the Kote for which he was assisted by three Ors. Ten rounds of ammunition was also issued for that purpose. It would be appreciated that the offence under AA Section 37(c) of which accused No. 1 is convicted carries a maximum sentence of death. As regards accused Nos. 3 and 4, both have been found guilty of desertion from the service. The Court would appreciate that it was not a simple desertion of leaving the unit but quitting the service under the circumstances when the Commandant was killed, arms and ammunition were looted by the mutineers."
28. On the face of the clear opinion of the Confirming Authority, recorded in its revisional order which was accepted by the Court Martial and later on re-confirmed by the Confirming Authority on the verdict of guilt and sentence, it cannot be reasonably contended by the petitioners that even accepting the whole prosecution case their guilt was not proved. The code of conduct expected of an armyman in military law is not comparable to civilians. In the book 'Military Law', Third Edition by Edward M. Byrne the military justice system as obtaining in United States has been compared with civilian criminal justice system in the following words : -
"Civilian criminal law seeks to restrict and regulate behaviour so that people can live together in peace and tranquillity. Military justice has a similar and yet more positive purpose. Military justice must, of necessity, promote good order, high morale and discipline. In this context, discipline means a state of mind in the individual serviceman, so that he will instantly obey a lawful order, no matter how unpleasant or dangerous the task may be. This state of mind could be described as "self discipline". In the military, the role of law in relation to discipline is to provide a frame-work for the encouragement of such self-discipline. In this way, law supports the military mission, which it must do if the nation's freedom is to be protected and preserved. (Of course, positive leadership through rewards and personal example in the best reinforcement of self-discipline). Military justice like civilian law, requires that the rights of the serviceman" be protected and seeks to assure everyone justice under the law. On balance, the present military justice system provides an accused serviceman with many procedural and evidentiary rights that are clearly superior to those in many, if not most, civilian criminal law system."
29. The above observations on the subject of military justice in United States can as well be taken note of for understanding military justice system in India because the military law in India is substantially modelled on the English and American systems. A comparison of the enactments concerning Armed Forces obtaining in the three countries would bear testimony to the same. In view of the above standard of conduct expected from armymen, the evidence on record has to be appreciated to uphold the validity or otherwise of the Court Martial Proceedings.
30. We have quoted above the opinion expressed by the Confirming Authority in exercise of powers of revision which was the basis of returning the verdict of guilt on all offences by the Court Martial. The learned counsel for the petitioners wanted us to take into consideration certain other extenuating circumstances brought on record to hold the petitioners 'not guilty'. By the above attempt and in persuading us to substitute our findings, in place of the findings of guilt recorded by the Court Martial, the learned counsel wants us to enter into an arena of judicial review, totally prohibited to us. No doubt, the armymen have a protection of judicial review under Article 226 of the Constitution of India, but in that respect the scope of interference in judicial review in disciplinary or penal action against armymen is not wider than concerning the other civilian citizens. It is, therefore, pemissible to interfere in a finding of Court Martial only on established principles, that is, where there is found in the record of the proceedings an apparent error or there is violation of the procedure or infraction of the provisions of the Act resulting in substantial injury to the petitioners and denial of natural justice. Under the writ jurisdiction, under Article 226 of the Constitution of India, the Court cannot reappreciate the whole evidence and come to its own findings in substitution of the findings reached by the Court Martial. A note of caution in this respect recorded by the Supreme Court in disciplinary proceedings against civilian officers applies with equal force, to Court Martial Proceedings, the following observations in the case of State of Andhra Pradesh and Ors. v. Chitra Venkata Rao, AIR 1975 SC 2151, may be seen :-
"In considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court need not be applied. Even if that rule is not applied by a domestic tribunal in any inquiry the High Court in a petition under Article 226 is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a Court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal."
31. 'In this case, it cannot be said that either there is complete lack of evidence to support the finding or guilt, or the evidence on record, even if fully accepted, makes out no case against the petitioners. In the situation that was obtaining on the date when the mutineers looted the arms from Kotes, what was the conduct expected of the petitioners on guard duty can be best judged by the members of the Court Martial who had special knowledge and experience in the field. It is not for this Court to re-appreciate the entire evidence in its own perspective and form a different opinion. The very purpose of providing in the Act and the Rules a separate forum for dealing with the cases of indiscipline and offences under the Act, committed by members of the Armed Forces, is that the maintenance of discipline in the Army and dealing with Armymen involved in offences in the course of their services is to be left exclusively to the domestic forum uninhibited by interference by way of superintendence or supervision of ordinary Civil Courts. The extraordinary jurisdiction of the High Court under Article 226 of the Constitution cannot be so exercised as to nullify and defeat the aim and purpose of the Act which has been held to be a valid piece of legislation, sanctioned under Article 33 of the Constitution. The attempt of the learned counsel for the petitioners to assail the Court Martial Proceedings on the merits of the case also fails.
32. Now we propose to deal with the other connected cases of Court Martial arising out of the same incident and in respect of other petitioners. We shall confine ourselves to some special features and additional submissions in respect of such cases.
33. The next ground urged on behalf of the petitioners, on merits, is that on the facts established the offence of 'mutiny' against the petitioners was not made out. The learned counsel for the petitioners relied on the dictionary meaning of the word 'mutiny' which is 'revolt' or 'rebellion' 'casting allegiance'. Relying on the above dictionary definition, the argument was that since the alleged act against the petitioners was only a riotous conduct and there was no intention on their part to 'cast allegiance', they cannot be held guilty of 'mutiny'.. The above argument, is based only on dictionary meaning of 'mutiny' which has several shades of meaning. The offence of 'mutiny' cannot be committed singly or individually and it is an offence committed in concert or collectively by a body of persons. The word 'mutiny' has not been defined Under Section 37 of the Act, but its meaning has to be understood in the context of military law. 'Mutiny' as understood in the Army is "collective insubordination or combination of two or more persons to resist, or to induce others to resist, lawful military authority.'" Learned counsel for the petitioners is not right in submitting that only when a collective action of insubordination is with a view to "cast allegiance", it would constitute the offence of 'mutiny'. The provisions of Section 37 of the Act clearly show that the word 'mutiny' has been used in much larger sense to include within it every concerted action or conduct of insubordination or riotous behaviour subversive to military discipline and revolting to the military authority. A restricted meaning as sought to be placed on the word 'mutiny', by the learned counsel for the petitioners, cannot be accepted. In the Oxford English Dictionary Vol. VI, the word 'mutiny' has been explained as under: -
"To commit the offence of mutiny; to rise in revolt against; to refuse submission to discipline or obedience to the lawful command of a superior, especially in the military and naval services."
It is also explained in the same dictionary as "open revolt against constituted authority; revolt on the part of a disciplined body (especially military or naval) or a section of it against its officers, behaviour subversive of discipline and mutinous conduct. In a particular sense a mutinous revolt a rebellion of a considerable number of soldiers, sailors or other persons in subordinate position against those set in authority over them."
34. These several shades of meaning would clearly go to show that there can be a mutinous conduct constituting an offence even if there was no intention to cast allegiance. We do not find anything in the provisions of Section 37 of the Act to assign a restricted meaning to the word 'mutiny'.
35. The other argument on behalf of the petitioners is that they should not be held guilty of the offence of 'desertion' within the meaning of Section 38 of the Act because their disappearance from the place of their duity was not with an intent to abandon or foresake for even their services. The contention is that after the mutiny they were compelled by circumstances to disappear from the scene of occurrence either because there was imminent danger to their lives or because they were forced by the mutinous crowd to accompany the mutineers. This argument also does not commend to us because the Court Martial authority after taking overall circumstances and evidence on record came to the conclusion that the petitioners were active participants or mute spectators in the mutiny and their running away from the scene of occurrence cannot but be inferred as acts with intent to evade their apprehension and arrest. Their arrests at different places outside the military premises have been viewed by the Court Martial authorities as acts of desertion and it is not for us to come to any different conclusion. It is true that the offence of desertion will not include mere absence from duty. The absence of the soldiers or armymen held captive, abducted or kidnapped by others will also not constitute desertion. Such is, however, not the position in these cases as found by the Court Martial on the basis of evidence on record. Here the disappearance from the military arena or boundaries of the petitioners was with an intent to ward their arrest after the mutiny and looting of kotes. The meaning of the word 'desertion' Under Section 38 of the Act came up for consideration before the Supreme Court in the case of Virendra Kumar v. The Chief of the Army Staff New Delhi, AIR 1986 SC 1060, wherein the note appended to Section 38 of the Army Act in the Manual of Armed Forces was relied on to understand the meaning of the word 'desertion' constituting an offence. The relevant part from the judgment of the Supreme Court contained in paragraph 13 may be quoted : -
"4. Intention to desert may be inferred from a long absence, wearing of disguise, distance from the duty station and the manner of termination of absence e.g., apprehension but such facts though relevant are only prima facie, and not conclusive, evidence of such intention. Similarly the fact that an accused has been declared an absentee under AA. Section 106 is not by itself a deciding factor if other evidence suggests the contrary."
In Black's Law Dictionary the meaning of the expression 'desertion' in Military Law is stated as follows : -
"Any member of the armed force who - (1) Without authority goes or remains absent from his unit, organization or place of duty with intent to remain away therefrom permanently; (2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important serves; or (3) without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or one of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States, is guilty of desertion. Code of Military Justice, 10 USCA 885".
In the above background and the various provisions contained in the Act and the Army Manual we have no hesitation in holding that immediately after the mutiny when the roll call was made and the petitioners were marked as absentees the authorities acted in accordance with law in treating the petitioners as having committed the offence of 'desertion'. The learned counsel for the petitioners is, therefore, not right in contending that there was no animus on the part of the petitioners to desert and no offence of desertion Under Section 38 of the Act was committed.
36. So far as offence alleged Under Section 63 of the Act is concerned, all such acts which are prejudicial to good order and military discipline and not specified as offences under other provisions of the Act are made punishable. The petitioners' conduct as disclosed from the evidence of record was found to be subsersive of good order and military discipline, apart from the offences committed by them of mutiny and desertion. No exception can therefore, be taken to the convictions and sentences of the petitioners also Under Section 63 of the Act.
37. The next case which was argued by the learned counsel for the petitioners is M. P. No. 2320 of 1987, Hav. Kashmir Singh and Ors. v. Union of India and Ors.. The learned counsel for the petitioners invited our attention to the Court Martial Proceedings pages 11, 13, 15 and 17 in support of his contention that the 'friend of the accused' assisting them was one Shri Abadian who did not understand Punjabi language which alone the accused persons could understand. At the initial stage of the trial it was stated that the accused were totally handicapped due to language problem. The grievance is that the legal assistance of counsel of their choice who also understood the Punjabi language, Major Mahendra Singh Bedi, Advocate, was not allowed to be availed of at' all stages and even resonable requests for adjournments to secure his presence were turned down. In the absence of such effective legal assistance, the petitioners could not raise necessary legal objections at the appropriate stage of the proceedings and when Mr. Bedi's assistance was made available, the legal objection raised by him against the appointment of the Presiding Officer was wrongly rejected as belated. The contention, therefore, is that there has been violation of the provisions of the Rules and the principles of natural justice.
38. In the return filed in the ease it has been explained that Mr. Bedi had notified his readiness to appear before the Court Martial, but failed to appear on 18th and 23rd of April 1985. The Convening Authority, therefore, deemed it fit to appoint a defence counsel at State expenses to defend the petitioners and the practising Advocate of Madhya Pradesh High Court Mr. S. K. Agarwal was appointed to defend the accused.
39. It appears to us that the procedure followed by the Court Martial was in accordance with the provisions of Rule 95(2) of the Rules, which is as under:-
"95. Defending Officer and friend of accused. -(1) At any general or....."the friend of the accused".
(2) It shall be the duty of the convening officer to ascertain whether an accused person desires to have a defending officer assigned to represent him at his trial and, if he does so desire, the convening officer shall use his best endeavours to ensure that the accused shall be so represented by a suitable officer. If owing to military exigencies, or for any other reason, there shall in the opinion of the convening officer, be no such officer available for the purpose, the convening officer shall give a written notice to the presiding officer of the court martial, and such notice shall be attached to the proceedings."
40. From the above it is evident that it is for the Convening Officer to detail an officer to whom he considers suitable to defend the accused and the rules did not permit the accused persons to insist that a particular defending officer alone shall defend and the Court Martial ought to have waited till such counsel was made available to the accused. No legitimate grievance can be raised that possible legal objections could not be taken because Mr. Mahendra Singh Bedi, Advocate who was the counsel of the choice of the petitioners was not available at the earlier stage of proceedings of the Court Martial. Having perused the order-sheets of the Court Martial we do not find that there was any illegal procedure followed or any unreasonable attitude was adopted by the members of the Court in refusing to adjourn the proceedings for Mr. Bedi. The objection to the appointment of the Presiding Officer was rightly not entertained as the said objection was not raised at the proper stage of the Court Martial proceedings in accordance with Section 130 of the Act, read with Rule 44 of the Rules.
41. That apart, the objection to the appointment of the Presiding Officer also does not appear to us to have any merit. As it appears from the Court Martial Proceedings at page 18, the appointment of the Presiding Officer was challenged on the ground that he is the Commandant of 1 S.T.C. whereas the-Oficer Commanding of the accused persons also belonged to 1-S.T.C. The Court Martial overruled the objection holding that the Presiding Officer on the above ground cannot be held to be disqualified to be a member of the Court and that the stage of challenge to the constitution of the Court Martial was already over. We do not find any infirmity in the reasoning of the Court Martial. The qualifications of the members of the Court are provided in Rule 39 of the Rules. The objection to the fact of the Presiding Officer being the Commandant of 1-S.T.C. to which the Officer Commanding of the accused persons also belonged is not covered as one of specified disqualifications Under Rule 39(2) of the Rules. Under Rule 39(2)(d) of the Rules the disqualifications provided are as under : -
"39. Ineligibility and disqualification of Officers for Court Martial.
- (1)..................................
(2) An officer is disqualified for serving on a general or district court-martial if he -
(a)................
(b) ................
(c)................
(d) is the commanding officer of the accused, or of the corps to which the accused belongs, or"
This is not the case where the Commanding Officer of the accused or of the Corps to which the accused belongs was included as member of the Court Martial. There can be no objection, if any other officer of that Corps was appointed to the Court Martial.
42. The next objection on behalf of the petitioners is that the Court Martial wrongly disallowed examination of Lt. Col. Harbux Singh (retired) as an expert witness. It was submitted that the expert evidence of the above high ranking retired military officer who had long experience in the Sikh Regiment was relevant for holding whether the petitioners could be held guilty of offence of military indiscipline Under Section 63 of the Act. It was argued that through the proposed witness, the petitioners wanted to place before the Court Martial, the customs and traditions in Army, particularly the Sikh Regiment.
43. From the record of the Court Martial at pages 266 to 355, the subject has been dealt with and the opinion of the Judge Advocate is also recorded. The above witness (Lt. Col. Harbux Singh) was allowed to be examined, but was not permitted to be examined as an expert witness. The opinion of the Judge Advocate which was accepted by the Court Martial appears to us to be completely sound in law. The experience and the background of the witness did not entitle him to be treated as an expert witness. The witness could not also be treated as an expert only because he had held a high rank in the Army. His opinion as to the extent of rights or customs in the Army had no relevance with regard to the incident and the acts attributed to the petitioners. The witness had retired in the year 1969 and left the Regiment as Colonel in the year 1971. His so-called opinion on customs and traditions of Sikh Regiment after a period of twenty years was hardly of any relevance. The Court Martial, therefore, in our opinion committed no legal error in refusing to record the evidence of the witness as an expert.
44. The next submission on behalf of the petitioners is that at one stage the prosecution examined certain witnesses and reserved its right to examine the remaining essential witnesses at some subsequent stage. On behalf of the defence a reasonable request was made that the Prosecutor should be directed to disclose the names of the essential witnesses so that the accused may be able to decide the nature of their cross-examination. This reasonable request was stated to have been turned down by the Court Martial for no apparent justification. The Court Martial record - pages 195 to 198 were referred to by the counsel for the parties. The Court Martial accepted the advice of the Judge Advocate that it was entirely in the discretion of the prosecution to say what witnesses it will examine and in what order. We find from the relevant part of the proceedings of the Court Martial that only because certain prosecution witnesses were not available on 3-8-1985, a request was made to examine the remaining witnesses who were present. The names of the prosecution witnesses were already known to the defence. There was no right to the accused to insist on the prosecution to disclose the order in which the prosecution witnesses will be examined and how many of them will not be examined. The learned counsel for the petitioners could not point out any provision of the Act or the Rules to substantiate his contention.
45. The next objection on behalf of the petitioners was that ex-Sepoy Surendra Singh who turned hostile during his cross-examination by the defence was allowed to be cross-examined by the prosecution which was a procedure adopted by the Court Martial not supported by any provision of law. The above objection of the petitioners has been considered by the Court Martial in the proceedings at pages 215 to 221. During the cross-examination the above named witness tried to explain his statement at the Court of enquiry and in his statement of inquiry that third degree methods were adopted in obtaining incriminatory statement from him, concerning the part played by the accused. This statement was made during the course of his cross-examination at the instance of the accused and not during examination-in-chief by the prosecution. The objection that the above witness could not be allowed to be cross-examined by the prosecution, was based on Section 154 of the Indian Evidence Act. The advice of the Judge Advocate on the point was accepted by the Court Martial and we find that to be sound in law. According to the opinion of the Judge Advocate, Section 154 of the Indian Evidence Act does not in terms or by implication confine exercise of the discretionary power under it before the examination-in-chief is concluded or to any particular stage of the examination. It is wide in scope and the discretion can be exercised when the circumstances so demand. Such discretion to permit cross-examination can be exercised at die stage of re-examination and in such a case the adverse party must be given further opportunity to cross-examine the witness. The above contention of the Judge Advocate which was accepted by the Court is supported by the decision of the Supreme Court in the case of Dahyabhai Chhanganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563.
46. Now we take up the remaining cases, that is, Miscellaneous Petitions Nos. 170, 171, 172 and 173 of 1990 in which the common arguments advanced in the main case have been adopted. A few additional points argued may be mentioned in the case of Balvinder Singh v. Union of India and Ors., M. P. No. 171 of 1990. It was contended that all the eye-witnesses who stated to have been shot at did not even state his presence. It is only some of the soldiers who were tortured to make statements suiting to the prosecution, alone implicate the accused persons. The above argument again requires us to re-appreciate the evidence before the Court Martial and come to a conclusion of our own. As has been held by us above, this course is not permitted to us. The Court Martial was not convinced that the soldiers who implicated the accused persons made incriminatory statements, as a result of third degree methods used against them.
47. In the case of Baldev Singh and Ors. v. Union of India and Ors., M. P. No. 173. of 1990, it was submitted that none of the witnesses alleged any overt act against the accused persons. The submission is that on being surrounded by the mob and overpowered, their behaviour in that juncture in state of utter helplessness did not render their inaction punishable as an offence under the Act. In our opinion, the attempt again is to persuade us to re-appreciate the evidence before the Court Martial. We have fully discussed in detail that the conduct expected from armymen is much higher in degree than from civilians or ordinary citizens. The Court Martial was impressed by the evidence on record that the accused fell easy prey to the frenzy of the mob, offered no resistance and on the countrary some of them were active and some passive participants in the mutiny and in the concerted indisciplined behaviour.
48. In the result, all the contentions raised on behalf of the petitioners having been found to be without any substance, the petitions fail and are hereby dismissed, but in the circumstances without any order as to costs. The security amount, if deposited, be refunded to the petitioners.