Patna High Court
No. Ic 2789 Op Col. Ranjit Kumar Sarmah vs Union Of India (Uoi) And Ors. on 18 December, 1995
Equivalent citations: 1996(1)BLJR306
Author: P.K. Sarin
Bench: P.K. Sarin
JUDGMENT P.K. Sarin, J.
1. By this petition under Article 226 of the Constitution of India the petitioner prays for issuing a writ restraining the respondents from proceeding with the Court Martial proceedings against the petitioner. By amendment petition it has been further prayed that the order dated 9th. December, 1995 remanding the petitioner for trial by Court Martial on a charge (Annexure 6) be also quashed.
2. The petitioner holds the rank of Colonel under the Indian Army. He has been ordered to face trial by Court Martial in respect of a civil offence regarding an incident which took place in the intervening night of 17-18th November, 1994 at Ranchi. Allegations are that on that date and time the petitioner used criminal force to out-rage the modesty of the wife of Major Rahul Dev which amounts to an offence under Section 354 of the Indian Penal Code. According to the petitioner Major Rahul Deu had lodged a complaint regarding the said incident with respondent No. 2, the General Officer Commanding who is disciplinary authority of the petitioner. It is alleged that the respondent No. 2 inflicted a punishment of warning/Rebuke orally in presence of Colonel A.K. Bhanot and also ordered the petitioner to write a letter of apology to Major Rahul Dev which the petitioner duly complied although the allegations levelled against him were not true. It is alleged that the aforesaid warning given to the petitioner by respondent No. 2 has also been entered in the confidential report of the petitioner. According to the petitioner he cannot be tried by the Court Martial for the same offence for which he has already been punished by way of verbal warning/Rebuke by the respondent No. 2. As such his trial by Court Martial for the same offence is unauthorised and without jurisdiction and is mala fide and arbitrary.
3. The learned Counsel for the petitioner has contended that the Army Regulations provide for verbal punishment also. He has placed reliance on Regulations 327 which provides that reproof may be verbal or in writing or in both and that warning, a minor censure may take the form of reproof and be administered verbally or in writing to the service personnel by the Officer Commanding or by an authority superior in command to the Officer Commanding. Clause (D) of Regulation 327 provides as follows:
It should be ensured that before administering reproof by way of a warning or otherwise the competent authority applies its mind to the case and comes to a conclusion that ends of justice would be met by closing the case with reproof. Once a decision has been arrived at and the case closed by administration of a reproof by a competent authority, no superior authority can reopen the case.
4. Relying heavily on the said clause, the learned Counsel for the petitioner has contended that as the case were closed by the General Officer Commanding after giving warning/rebuke to the petitioner, no superior authority can reopen the case as such the reopening of the case at the instance of any higher authority or the decision to initiate Court Martial proceeding and the service of charge sheet on the petitioner for the same offence is without jurisdiction. The learned Counsel for the petitioner has further contended that the Army Regulations are statutory regulations and have a binding force. He has placed reliance for this proposition on a decision of the Allahabad High Court in the case of R.K. Pathik v. M.S. Pawar, 1986 Lab I.C 6920 wherein it has been held that the Regulations as framed under the provisions of the Army Act have statutory force, their non-publication may not be any avail as the provisions of the Act, the Rules and the Regulations are co-extensive.
5. As regards the submission made by the learned Counsel for the petitioner that the Army Regulations are statutory in character that is not borne out by the Regulations themselves. The power to frame regulations has been provided under Section 192 of the Army Act. The present Army Regulations do not appear to have been framed under Section 192 of the Army Act not they appear to have been published in the Official Gazette as required by Section 193 of the Army Act. Section 193 of the Act makes mandatory provisions of publication of Rules and Regulations. It provides that all Rules and Regulations made under this Act shall be published in the Official Gazette and on such publication shall have effect as if enacted in the Act. Section 193. A further provides that every rule and every regulation made by the Central Government under this Act shall be laid as soon as may be after it is made, before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions. Both the houses of Parliament have been empowered to make any modification in the Rule or Regulation or both the Houses may agree that the rule or regulation should not be made and it that case the Rule or Regulation shall have effect only in such modified form or be no effect, as the case may be. Sections 193 and 193. A make it quite clear that before a regulation may be effected it must be published in the Official Gazette and further Rules or Regulations as framed have to be put before the Parliament which may modify the same or may take decision that such rule and regulation shall not be made. None of the said procedure appears to have been followed in respect of the Army Regulations on which the learned Counsel for the petitioner has placed reliance. The preface of. the book of Regulation relied upon by the learned Counsel for the petitioner itself contains the recital that these regulations are non-statutory and are supplemental to the relevant statutory provisions, where ever they exist and do not supplant them. This perfect is by the Secretary to the Government of India, Ministry of Defence and is dated 5th. December, 1986. In view of the said preface Army Regulations relied upon by the learned Counsel for the petitioner cannot be held to be statutory in character when the Central Government which is empowered to frame regulations by virtue of Section 192 of the Act itself has expressed through its Defence Secretary that the Regulations are non-statutory in character.
6. No doubt even non-statutory regulations which part take the character of Executive/Administrative direction have binding force on the subordinates in so far as they supplement the statutory provisions. That is to say those regulations operate in the field net covered by the statutory provisions provided they are not inconsistent with the statutory provisions.
7. However, the question of regulation being statutory or non-statutory is not decisive 'actor for the disposal of the present writ petition. Section 69 of the Act lays down that subject to the provisions of Section 70 any person subject to this Act commits any civil ;offences shall be deemed to be guilty of an offence against this Act and if charged therewith under this Section shall be liable to be tried by a Court-Martial. Civil offence has been defined under Section 3(ii) of the Act to mean an offence which is triable by a criminal court. Exhibit-6 which contains the charge against the petitioner shows that the petitioner has been charged with an offence of Section 354 of the Indian Penal Code. The offered under Section 354 of the Indian Penal Code is triable, by a criminal court as such in view of Section 69 of the Act the petitioner shall be deemed to be guilty of an offence against the Act. If that be son his trial by a court-martial cannot be said to be without jurisdiction when Section 69 itself lays down that a person charged of such civil offence shall be tried by a court-martial.
8. Army Rules 1954 (Hereinafter referred to as "the Rules" have been framed under Section 191 of the Act. The learned Counsel for the petitioner has contended that Sub-rule (2) of Rule 22 empowers the Commanding Officer to dismiss a charge lodged before him if, in his opinion the evidence does not show that an offence under the Act has been committed and may do so if, in his discretion he is satisfied that the charge ought not to be proceeded with. It is contended that it shall be deemed that the Commanding Officer had dismissed the charge when he did not proceed further and administered only verbal warning/rebuke to the petitioner and it should be deemed that the Commanding Officer was satisfied that the charge ought not to be proceeded with. Clause (1) of Rule 22 shows that the Same is applicable in respect of charge against a person other than an officer. In view of the said provision the Sub-rule of Section 22 which relates to the charge referred to is Sub-rule (1) of Section 22 does not appear applicable to the petitioner as he is an officer. The learned Counsel for the petitioner has submitted that there has been amendment in the said rule and the Rule 22 has been made applicable in respect of Officers also. No such amendment has been brought to my notice. However, even if, we assume that such an amendment has taken place and the provisions of Rule 22 are applicable in respect of officers also, that does not make any difference-.
9. Rule 53 deals about the plea in bar which the accused may raise at the time of his general plea of guilty or not guilty. The Rule 53 reads as follows:
Plea in bar:
(1) The accused, at the time of his general plea of "Guilty" or "Not Guilty" to a charge for an offence, may offer a plea in bar of trial on the ground that:
(a) he has been previously convicted or acquitted of the offence by a competent criminal court or by a court-martial., or has been dealt with summarily under Section 80,83 and 85, as the case may be, for the offence, or that a charge in respect of the offence has been dismissed as provided in Sub-rule (2) of Rule 22 or
(b) the offence has been pardoned or condoned by competent military authority:
or
(c) the time which has elapsed between the commission of the offence and the commencement of the trial is more than three years, and the limit of time for trial is not extended under Section 122 (2) If he offers such plea in bar, the court shall record it as well as his general plea, and it" it considers that any fact or facts stated by him are sufficient to support the plea in bar, it shall receive any evidence offered, and hear any address made by or on behalf of the accused and the prosecutor in reference to the plea.
(3) If the court finds that the plea in bar is proved, it shall record its finding, and notify it to the confirming authority, and shall either adjourn, or if there is any other charge against the accused, whether in the same or in a different charge sheet., which is not affected by the plea in bar, may proceed to the trial of the accused on that charge.
(4) If the finding that the plea in bar is proved, is not confirmed, the court may be re-assembled by the confirming authority, and proceed as if the plea had been found not proved.
(5) If the court finds that the plea in bar is not proved, it shall proceed with the trial and the said findings shall be subject to confirmations like any other finding of the court.
10. In view of the provisions of Rule 53 the petitioner will have an opportunity raising such plea at the time of his general plea of guilty or not guilty to the charge in the court martial proceedings and the concerned court shall consider the same in accordance with Rule 53. In this view it will not be proper for this Court to make any observation or comment in respect of the plea regarding the charge having been dismissed under Rule 22(2). That is a matter to be decided on facts and the petitioner shall have full opportunity to establish his plea at the Court-martial proceedings in view of Rule 53 of the Rules. This Court should not assume the role of authority of Court-martial and decide the plea which has to be decided by the Court-martial. The charge sheet has already been served on the petitioner and the proceedings are pending before the Court-martial.
11. The Supreme Court in the case of Union of India v. Upendra Singh, has observed that the Tribunal (Administrative Tribunal) has no jurisdiction to go into the correctness or truth of the charges and it cannot take over the functions of the disciplinary authority. The same principles would be applicable in the present case. This Court cannot assume the functions of the Court-martial to decide a plea which may be raised by the petitioner under Rule 53 of the Rules. Such plea has to be decided by the Court-martial where the proceedings are pending.
12. In the circumstances it does not appear to be a fit case to exercise the jurisdiction of the court under Article 226 of the Constitution of India. The petition is dismissed accordingly. However, the Court-martial shall not be prejudiced by any observation made in this order.