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MINISTRY OF DEFENCE v. ARUN ROY

ARGUMENTS ADVANCE (RESPONDENT)

1. WHETHER THERE WAS VIOLATION OF NATURAL JUSTICE ON THE

PART OF MINISTRY OF DEFENCE ?

1.1 “AUDI ALTREM PALTREM”, It means to ‘listen to the other side’ or ‘let the other side be
heard as well’.

 Rule 129 of the Army Rules, 1954- Friend of the accused.

“In any case of Summary Court Martial, an accused person may have a person to assist
him during the trial, whether a legal advisor or any other person. A person so assisting
him may advise him on all points and suggest the questions to be put to witness, but
shall not examine or cross examine witness or address the court.”

In the celebrated case of Maneka Gandhi v. Union Of India it has been held that the law and
procedure must be of a fair, just and reasonable kind. The principle of natural justice comes
into force when no prejudice is caused to anyone in any administrative action. The principle
of Audi Alteram Partem is the basic concept of the principle of natural justice. This doctrine
states the no one shall be condemned unheard. This ensures a fair hearing and fair justice to
both the parties. Under this doctrine, both the parties have the right to speak. No decision
can be declared without hearing both the parties. The aim of this principle is to give an
opportunity to both the parties to defend themselves.
“Col. Arun Roy was not allowed to defend himself against these charges on purpose”.

In the case of Jaswant Singh v. Union Of India it was held that, the appellant who had
rendered seven years of service and was pitted against his commanding officer. He was
denied the benefit of legal advice which according to the army rule 129, there was no
reason to deny him the benefit of legal representation which he desired at his own
expense. For these reasons, we are of the view that there was a clear violation of the
principles of natural justice.
In this case, it is contented that prejudice too is evident. The respondent was convicted
and sentenced with a fine of 54000 Rs. And to serve 18 months of rigorous
imprisonment. He was also dismissed from service, with added disqualification of
being declared unfit for any future civil employment.

 Rule 22
22. Hearing of charge.
(1) Every charge against a person subject to the Act shall be heard by the Commanding Officer
in the presence of the accused. The accused shall have full liberty to cross-examine any

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witness against him, and to call such witness and make such statement as may be necessary
for his defence;
Provided that where the charge against the accused arises as a result of investigation by a
court of inquiry, wherein the provisions of rule 180 have been complied with in respect of
that accused, the commanding officer may dispense with the procedure in sub-rule (1).

1.2 BIASED DECISION

“NEMO JUDEX IN PARTE SUA”, it means that ‘no person can judge a case in which he or she is party
or in which he/she has an interest’.

 In this case Brigadier Kamal Thapar was accused by Colonel Arun Roy, as Col. Roy
was pin pointed by the authorities that Brigadier Kamal Thapar was on charge during
the time of incidences of discrimination. In order to avoid these allegations and to divert
the attention of authorities, Brig. Thapar Court martialed Col. Roy for leaking
confidential information for which he was found not guilty earlier.
In, Ranjit Thakur v. UOI, the Supreme Court came to the conclusion that the participation
of the commanding officer rendered the proceedings Coram non-judices. The court also
found the punishment awarded to be strikingly disproportionate to the offence committed,
as a result, the appeal was allowed and the proceedings of the court martial and the
subsequent orders were quashed.

It is the essence of a judgment that it is made after due observance of the judicial
process; that the Court or Tribunal passing it observes, at least the minimal
requirements of natural justice, is composed of impartial persons acting fairly and
without bias and in good faith. A judgment which is the result of bias or want of
impartiality is a nullity and the trial "coram non-judice".
 The succinct meaning of the expression 'natural justice' has been summarised
by David Robertson in the Penguin Dictionary of Politics, New edition, at page
337 as follows:

"By natural justice is meant the ideas that there are some qualities and values
inherent in the very concept of law, as opposed to arbitrary decision-making, and
that individuals should be able to claim certain basic protections in the legal system
regardless of whether they are specifically given those protections by statute. The
two most common tenets of natural justice in the British legal system are audi alter
am partem (that each party has a right to be heard in any dispute) and Nemo judex
in parte sua (that the Judge of a case should have no personal interest in its
outcome). In the United Kingdom in the 1960 these quite specific principles of
natural justice were applied to a large number of administrative as well as judicial
decision-making situations, and as a result the British judiciary both expanded its
own jurisdiction and developed something which it had previously lacked-a
coherent corpus of administrative law."

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Bandarupalli Venkateswarlu vs. Government of A.P. and Ors.

 The Hon'ble Supreme Court in M.S. Gill vs. The Chief Election Commission
MANU/SC/0209/1977 : 1978 AIR SC 851 held "The dichotomy between
administrative and quasi-judicial function vis-à-vis the doctrine of natural justice is
presumably obsolescent after Kraipak (A.K. Kraipak vs. UOI MANU/SC/0427/1969 :
AIR 1970 SC 150) which makes the water-shed in the application of natural justice to
administrative proceedings. The rules of natural justice are rooted in all legal systems
and are not any new theology. They are manifested in the twin principles of nemo judex
in parte sua (no person shall be a judge in his own case) and audi alteram partem (the
right to be heard). It has been pointed out that the aim of natural justice is to secure
justice or to put it negatively to prevent miscarriage of justice.

Alco Infotech Pvt. Ltd. vs. DCIT, Circle 2(1) (08.06.2018 - ITAT Kolkata) :
MANU/IK/0611/2018

2. WHETHER THE COURT MARTIAL OF COLONEL ARUN ROY WAS BEYOND THE
POWER OF SUMMARY COURT MARTIAL?

 Summary Court Martial cannot be used against an army officer according to Section
120 (3) of Army Act 1950 and even if the Court feels that Summary Court Martial can
be applicable wherein officers are involved.
 According to Section 120(2) there two conditions which are to be satisfied. Firstly,
there should be a grave reason for immediate action under Summary Court Martial and
secondly, it would be detriment to discipline if action isn’t taken immediately.
Case Randhir Singh vs. Union of India (UOI) and Ors.
“12. The above clarification indicates that the requirement of recording reasons for
convening a Summary Court Martial shall apply from 5 July 2016. However, the
fundamental principle of law which has been enunciated is that the power to order an
SCM is a drastic power which must be exercised in a situation where it is absolutely
imperative that immediate action is necessary. Sub-section (2) of Section 120 is
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prefaced by the words "when there is no grave reason for immediate action". In the
present case, though the incident took place on 11 August 2007, the SCM took place
on 22 May 2008. The convening of an SCM was contrary to law.”

Union of India (UOI) and Ors. Vs. Respondent: Vishav Priya Singh
33. In the premises, we hold that it is not imperative that an SCM be convened,
constituted and completed by CO of the Unit to which the accused belonged. It is
competent and permissible for the CO of the Unit to which the accused was attached
or sent on attachment for the purposes of trial, to try such accused by convening,
constituting and completing SCM in a manner known to law i.e. strictly within the
confines of Sections 116 and 120 of the Act and other Statutory provisions. We fully
endorse and affirm the view taken by the High Court that SCM is an exception and it
is imperative that a case must be made out for immediacy of action. The reasons to
convene an SCM must be followed by well articulated reasons or the record itself must
justify such resort.

3. Writ Petitions before the High Court of Delhi raised two common questions of law pertaining
to Summary Courts Martial (hereinafter referred to as SCM):
(a) whether an SCM can be convened, constituted and completed by the Commanding Officer
("CO" for short) of a Unit to which the accused did not belong and
b) the circumstances in which the SCM can be convened rather than a General Courts Martial
("GCM" for short), a District Courts Martial ("DCM" for short) or Summary General Courts
Martial ("SGCM" for short) as envisaged in Section 108 of the Army Act 1950 (hereinafter
referred to as the Act).
While allowing these Writ Petitions, the High Court in Paragraphs 20, 22, 23 and 24 of its judgment
observed as under: 20. An SCM can legitimately be convened where there is grave and compelling
cause for taking immediate action which would be defeated if reference to a District Court Martial
or Summary General Court Martial is made. In other words, holding of an SCM is the exception
and not the rule. From the multitude of possible offences it is only those envisaged in Sections 34,
37 and 69, that can be tried by an SCM, further fortifying the exceptional and extraordinary
character of an SCM. We think it necessary to underscore that it is not proper to convene an SCM
merely because the offence(s) with which a sepoy of the force is charged finds mention in the
enumeration contained in these three Sections. What is of pre-eminence in convening an SCM is
that it should be found imperative that immediate action is manifestly necessary. Therefore, it is
essential that this factor, viz. need to hold a trial immediately, is articulated and reasoned out in
writing in the order convening the SCM. Failure to do so would create good reason to quash the
SCM itself. Routinely, and certainly far too frequently, the sentence passed by SCMs violates the
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spirit of Regulation 448(c) (supra) thereby taking away the sepoys' livelihood without affording
them the normal procedural protections of law.


Justice Vikramjit Sen who was a judge of Delhi High Court in the year 2008, on 25
Th Jan, 2008 said in a case; ‘It should also be noted that paragraph 448(c) of the defence
Services Regulations, Regulations for the Army prescribes valuable safeguards against
abuse of SCMs, but the spirit of all these provisions is far too often ignored so much so
that the vice has become the norm - SCMs invariably pass orders of dismissal from
service.’ He further opined that ‘..Summary Court- martial should be an exception and
not a Rule, only to be applied where there is grave and compelling cause for taking
immediate action. In such instances this immediate need for holding SCM has to be
articulated and reasoned out in the writing in the order convening the SCM. Failure to
do so would create good reasons to quash the SCM itself.’
In the para 448 which deals with Scale of Punishments Awardable by Summary Courts-
martial.--The following general instructions are issued for the guidance of officers
holding summary courts-martial in passing sentence, but nothing contained in them
will be construed as limiting the discretion of the court to pass any legal sentence,
whether in accordance with these instructions or not, if in its opinion, there is good
reason for doing so:...(c) The award of imprisonment in a civil jail coupled with
dismissal from the service must never be used merely as a mean of getting rid of a man
from the service but should be imposed only when the offence by itself, or the offence
and the man's previous record taken together, actually merits such a punishment. In
other cases in which removal is considered desirable in the interest of the service, the
discharge of the individual under the appropriate item of Army Rule 13 should be
applied for by the CO and authorized by the brigade or superior commander.
43 Ex LN Vishav Priya Singh v. Union of India and others, 147 (2008) DLT 202 (DB).

 Under120(4) and 120(5)

A Summary Court Martial may pass any sentence except a sentence of death or
transportation or of imprisonment for a team exceeding the limit of one year if the
officer holding the SCM is of the rank of Lt. Col. And upwards and three months, if
such officer is below that rank.
Punishment should be proportionate
In Bhagat Ram v. State of Himachal Pradesh, A.I.R. 1983 SC 454 this Court held:

"It is equally true that the penalty imposed must be commensurate with the gravity of the
misconduct and that any penalty disproportionate to the gravity of the misconduct would be
violative of Article 14 of the Constitution.

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DOUBLE JEOPARDY
 In the case of Surinder Singh v. Union of India
 [8]petitioner approached the Madhya Pradesh High Court ,Jabalpur for setting aside
the proceedings of the general Court martial which was convened to try him after his
conviction by summary court-martial was set aside. His main contention was that he
had already been tried and punished for the same offence by a summary Court-martial
and retrial was barred under the provisions of Section 121 of the Army Act and Article
Contended that the proceeding of the summary Court-martial by which he was tried
earlier was quashed for non-compliance with the mandatory provisions of Army Rule
22. As the trial by summary Court - martial was after considering the contentions of
the summary Court-martial proceedings could not have been set aside for some
technical flaw in the procedure at pre-trial stage. Even according to Section 162 of the
Army Act. Summary Court-martial proceedings can be set aside only on the merit of
the case and not merely on technical grounds. The Court accordingly quashed the
general Court-martial proceedings as being volatile of Army Act Section 121 and
Article 20(2) of the Constitution.
(http://www.legalserviceindia.com/article/l30-Summary-Court-Marital-And-The-Indian-
Judiciary.html)

10. The main question before us is whether on setting aside of summary court-martial
proceedings, resulting in conviction and imposition of sentence on the petitioner, the petitioner
could be tried again for the same offences in general court-martial. To us, the second trial of
the petitioner for the same offences is clearly barred by the expressed term of Section 121 of
the Act which reads as under : -

"121. Prohibition of second trial - When any person subject to this Act has been acquitted or
convicted of an offence by a court-martial or by a Criminal Court, or has been dealt with under
any of the Sections 80, 83, 84 and 85, he shall not be liable to be tried again for the same
offence by a court-martial or dealt with under the said sections."

We are also of the view that the petitioner has a constitutional protection under Article 20(2) of
the Constitution which enshrines a prohibitory mandate against the course sought to be adopted
by the respondents/authorities in compelling the petitioner to face a re-trial and a risk of fresh
conviction and sentence. Article 20(2) of the Constitution is as under : -

"20(2) No person shall be prosecuted and punished for the same offence more than once."

11. In the decisions of the Supreme Court in Maqbool Hussain v. State of Bombay, AIR 1953
SC 325, S. A. Venkataraman v. Union of India, AIR 1954 SC 375, as reiterated in Mohammad
Safi v. State of West Bengal, AIR 1966 SC 69, it has been held that "the above constitutional
provision contains a fundamental right based on the principle of "autrefois convict" or "double
jeopardy". The roots of that principle are to be found in the well established rule of the common
law of England "that where a person has been convicted of an offence by a Court of competent
jurisdiction the conviction is a bar to all further criminal proceedings for the same offence. To
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the same effect is the ancient maxim "nemo debetbis puniri pro uno delicto", that is to say that
no one ought to be twice punished for one offence or as it is sometimes written "pro eadem
causa" that is for the same cause. This is the principle on which the party pursued has available
to him the plea of "autrefois convict" or "autrefois acquit". The plea of "autrefois convict" or
"autrefois acquit" avers that the defendant has been previously convicted or acquitted on a
charge for the same offence as that in respect of which he is arraigned.....the question for the
jury on the issue is whether the defendant has previously been in jeopardy in respect of the
charge on which he is arraigned, for the rule of law is that a person must not be put in peril
twice for the same offence. The test is whether the former offence and die offence now charged
have the same ingredients in the sense that the facts constituting the one are sufficient to justify
a conviction of the other, not that the facts relied on by the Crown are the same in the two
trials.

12. In the present case the petitioner, on the 'plea of guilty' was convicted, sentenced and has
also suffered part of the sentence. The petitioner's second trial, therefore, is prohibited
by Section 121 of the Act as also Article 20(2) of the Constitution of India.

13. The petition, therefore, succeeds and is hereby allowed. The proceedings of General Court-
Martial commenced with impugned notices (Annexure-P/6 and Annexure-P/11) are hereby
quashed. It is directed that the petitioner shall not be tried or prosecuted for the same offences
in any Court-martial.

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