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Reference may now be made to the provisions of the Act and the Rules which have a bearing on the requirement to record reasons for the findings and sentence of the court- martial. Section 108 of the Act makes provision for four kinds of courts-martial, namely, (a) general courts-martial;

(b) district courts-martial; (c) summary general courtsmar- tial and (d) summary courts-martial. The procedure of court- martial is prescribed in Chapter XI (Sections 128 to 152) of the Act. Section 129 prescribes that every general court- martial shall, and every district or summary general court- martial, may be attended by a judge-advocate, who shall be either an officer belonging to the department of the Judge- Advocate General, or if no such officer is available, an officer approved of by the Judge-Advocate General or any of his deputies. In sub-section (1) of Section 131 it is pro- vided that subject to the provisions of sub-sections (2) and (3) every decision of a courtmartial shall be passed by an absolute majority of votes, and where there is an equality of votes on either the finding or the sentence, the decision shall be in favour of the accused. In sub-section (2) it is laid down that no sentence of death shall be passed by a general courtmartial without the concurrence of at least two-thirds of the members of the court and sub-section (3) provides that no sentence of death shall be passed by a summary general court-martial without the concurrence of all the members. With regard to the procedure at trial before the General and District courts-martial further provisions are made in Rules 37 to 105 of the Rules. In Rule 60 it is provided that the judge-advocate (if any) shall sum up in open court the evidence and advise the court upon the law relating to the case and that after the summing up of the judge-advocate no other address shall be allowed. Rule 61 prescribes that the Court shall deliberate on its findings in closed court in the presence of the judge-advocate and the opinion of each member of the court as to the finding shall be given by word of mouth on each charge separately. Rule 62 prescribes the form, record and announcement of finding and in sub-rule (1) it is provided that the finding on every charge upon which the accused is arraigned shall be recorded and, except as provided in these rules, shall be recorded simply as a finding of "Guilty" or of "Not guilty". Sub-rule (10) of Rule 62 lays down that the finding on charge shall be announced forthwith in open court as subject to confirmation. Rule 64 lays down that in cases where the finding on any charge is guilty, the court, before deliberating on its sentence, shall, whenever possible take evidence in the matters specified in sub-rule (1) and thereafter the accused has a right to address the court thereon and in mitigation of punishment. Rule 65 makes provision for sentence and provides that the court shall award a single sentence in respect of all the offences of which the accused is found guilty, and such sentence shall be deemed to be awarded in respect of the offence in each charge and in respect of which it can be legally given, and not to be awarded in respect of any offence in a charge in respect of which it cannot be legally given. Rule 66 makes provisions for recommendation to mercy and sub-rule (1) prescribes that if the court makes a recommendation to mercy, it shall give its reasons for its recommendation. Sub-rule (1) of Rule 67 lays down that the sentence together with any recommendation to mercy and the reasons for any such recommendation will be announced forthwith in open court. The powers and duties of judge-advocate are pre- scribed in Rule 105 which, among other things, lays down that at the conclusion of the case he shall sum up the evidence and give his opinion upon the legal bearing of the case before the court proceeds to deliberate upon its find- ing and the court, in following the opinion of the judge- advocate on a legal point may record that it has decided in consequences of that opinion. The said rule also prescribes that the judge-advocate has, equally with the presiding officer, the duty of taking care that the accused does not suffer any disadvantage in consequences of his position as such, or of his ignorance or incapacity to examine or cross-examine witnesses or otherwise, and may, for that purpose, with the permission of the court, call witnesses and put questions to witnesses, which appear to him neces- sary or desirable to elicit the truth. It is further laid down that in fulfilling his duties, the judgeadvocate must be careful to maintain an entirely impartial position. From the provisions referred to above it is evident that the judge-advocate plays an important role during the courts of trial at a general court-martial and he is enjoined to maintain an impartial position. The court-martial records its findings after the judge-advocate has summed up the evidence and has given his opinion upon the legal bearing of the case. The members of the court have to express their opinion as to the finding by word of mouth on each charge separately and the finding on each charge is to be recorded simply as a finding of "guilty" or of "not guilty". It is also required that the sentence should be announced forth- with in open court. Moreover Rule 66(1) requires reasons to be recorded for its recommendation in cases where the court makes a recommendation to mercy. There is no such require-

As regards confirmation of the findings and sentence of the court-martial it may be mentioned that Section 153 of the Act lays down that no finding or sentence of a General, District or summary General, Court-Martial shall be valid except so far as it may be confirmed as provided by the Act. Section 158 lays down that the confirming authority may while confirming the sentence of a court-martial mitigate or remit the punishment thereby awarded, or commute that pun- ishment to any punishment lower in the scale laid down in Section 71. Section 160 empowers the confirming authority to revise the finding or sentence of the court-martial and in sub-section (1) of Section 160 it is provided that on such revision, the court, if so directed by the confirming au- thority, may take additional evidence. The confirmation of the finding and sentence is not required in respect of summary court-martial and in Section 162 it is provided that the proceedings of every summary court-martial shall Without delay be forwarded to the officer commanding the division or brigade within which the trial was held or to the prescribed officer; and such officer or the Chief of the Army Staff or any officer empowered in this behalf may, for reasons based on the merits of the case, but not any merely technical grounds, set aside the proceedings or reduce the sentence to any other sentence which the court might have passed. In Rule 69 it is provided that the proceedings of a general court-martial shall be submitted by the judge-advocate at the trial for review to the deputy or assistant judge-advocate general of the command who shall then forward it to the confirming officer and in case of district court- martial it is provided that the proceedings should be sent by the presiding officer, who must, in all cases. where the sentence is dismissal or above, seek advice of the deputy or assistant judge-advocate general of the command before confirmation. Rule 70 lays down that upon receiving the proceedings of a general or district Court-Martial, the confirming authority may confirm or refuse confirmation or reserve confirmation for superior authority, and the confirmation, non-confirmation, or reservation shall be entered in and form part of the proceedings. Rule 71 lays down that the charge, finding and sentence, and any recommendation to mercy shall, together with the confirmation or non-confirmation of the proceed- ings, be promulgated in such manner as the confirming au- thority may direct, and if no direction is given, according to custom of the service and until promulgation has been effected, confirmation is not complete and the finding and sentence shall not be held to have been confirmed until they have been promulgated.

For the reasons aforesaid it must be held that reasons are not required to be recorded for an order passed by the confirming authority confirming the findings and sentence recorded by the court-martial as well as for the order passed by the Central Government dismissing the post-confir- mation petition. Since we have arrived at the same conclu- sion as in Sorn Datt Datta case (Supra) the submission of Shri Ganguli that the said decision needs reconsideration cannot be accepted and is. therefore, rejected. But that 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 CourtMartial 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. We will, therefore, examine the other contentions that have been urged by Shri Ganguli in support of the appeal. The first contention that has been urged by Shri Ganguli in this regard is that under sub-section (1) of Section 164 of the Act the appellant had a right to make a representa- tion to the confirming authority before the confirmation of the findings and sentence recorded by the court-martial and that the said right was denied inasmuch as the appellant was not supplied with the copies of the relevant record of the court-martial to enable him to make a complete representa- tion and further that the representation submitted by the appellant under sub-section (1) of Section 164 was not considered by the confirming authority before it passed the order dated May 11, 1979 confirming the findings and sen- tence of the court-martial. The learned Additional Solicitor General, on the other hand, has urged that under sub-section (1) of Section 164 no right has been conferred on a person aggrieved by the findings or sentence of a court-martial to make a representation to the confirming authority before the confirmation of the said findings or sentence. The submis- sion of learned Additional Solicitor General is that while sub-section (1) of Section 164 refers to an order passed by a court-martial, sub-section (2) of Section 164 deals with the findings or sentence of a court-martial and that the only right that has been conferred on a person aggrieved by the finding or sentence of a court-martial is that under sub-section (2) of Section 164 and the said right is avail- able after the finding and sentence has been confirmed by the confirming authority. We find considerable force in the aforesaid submission of learned Additional Solicitor Gener- al.

In sub-section (1) reference is made to orders passed by a courtmartial and enables a person aggrieved by an order to present a petition against the same. The said petition has to be presented to the officer or the authority empowered to confirm any finding or sentence of such court-martial and the said authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order or as to the regularity of any proceedings to which the order relates. Sub-section (2), on the other hand, makes specific reference to finding or sentence of a court-martial. and confers a right on any person feeling aggrieved by a finding or sentence of any court-martial which has been confirmed, to present a peti- tion to the Central Government, Chief of the Army Staff or any prescribed officer. The use of the expression "order" in sub-section (1) and the expression "finding or sentence" in sub-section (2) indicates that the scope of sub-section (1) and sub-section (2) is not the same and the expression "order" in sub-section (1) cannot be construed to include a "finding or sentence". In other words in so far as the finding and sentence of the court-martial is concerned the only remedy that is available to a person aggrieved by the same is under sub-section (2) and the said remedy can be invoked only after the finding or sentence has been con- firmed by the confirming authority and not before the con- firmation of the same. Rule 147 of the Rules also lends support to this view. In the said Rule it is laid down that every person tried by a court-martial shall be entitled on demand, at any time after the confirmation of the finding and sentence, when such confirmation is required, and before the proceedings are destroyed, to obtain from the officer or person having the custody of the proceeding a copy thereof including the proceedings upon revision, if any. This Rule envisages that the copies of proceedings of a court-martial are to be supplied only after confirmation of the finding and sentence and that there is no right to obtain the copies of the proceedings till the finding and sentence have been confirmed. This means that the appellant cannot make a grievance about non-supply of the copies of the proceedings of the court-martial and consequent denial of his right to make a representation to the confirming authority against the findings and sentence of the court-martial before the confirmation of the said finding and sentence. Though a person aggrieved by the finding or sentence of a courtmar- tial has no right to make a representation before the confi- ramtion Of the same by the confirming authority, but in case such a representation is made by a person aggrieved by the finding or sentence of a court-martial it is expected that the confirming authority shall give due consideration to the same while confirming the finding and sentence of the court-martial.