P CHANDRA MOULY Vs. UNION OF INDIA

JUDGEMENT

(1.) Criminal Appeal Nos, 620 to 622 of 1987 on behalf of three members of the General Reserve Engineers Force, Criminal Appeal Nos. 623-624 by one more such member and Criminal Appeal No. 625 of 1987 by the Union of India are against the common judgment and order dated 31/3/1987 passed by a division bench of the Gauhati High court in Writ Appeal Nos. 1, 2 and 3 of 1980.

(2.) The four appellants, members of the General Reserve Engineers Force (hereinafter referred to as 'the Force') were accused of having committed offences punishable under Section 63 of the Army Act under four counts, as also under S. 39 (a) and 41 of the said Act under one count each. For the six charges framed they were tried by a court-Martial and convicted under all the six counts and awarded sentences of imprisonment. They invoked the jurisdiction of the central government under S. 164 and 165 of the Army Act, 1950 but with no success. They filed two separate writ petitions before the Gauhati High court challenging their convictions and sentences. The writ petitions of the officers were accepted partially to the extent that offence under Section 63 in relation to one count was quashed. The learned Single Judge also took the view that orders of the competent authority under S. 164 and 165 of the Army Act required a speaking order. The learned Single Judge in relation to the other charges suggested to the competent authority whether it would be worthwhile to keep operating the sentences imposed under other charges due to the quashing of one of the charges under Section 63 of the Act. Against the partial acceptance of their writ petitions, the four officers filed their respective letters patent appeals before the division bench of that court as did the Union of India, aggrieved as it was against the quashing of charge under one count under Section 63 of the Act. The division bench on reappraisal of the entirematter came to the conclusion that all the six charges against the officers stood established and that there was no occasion for the learned Single Judge to have quashed one charge. While doing so it agreed with the learned Single Judge that the authority exercising jurisdiction under S. 164 and 165 of the Army Act was required to pass a speaking order. All the same, the convictions and sentences were maintained despite the requirement of the Authority passing a speaking order. Recommendation, however, as made to the Union of India that it was a case where sentences of the officers deserve commuting. We are told that the Union of India accepting the suggestion commuted accordingly the sentences of imprisonment of the four members and they are at large.

(3.) It is the conceded case of the officer-appellants that the provisions of the Army Act, subject to some exceptions are applicable to the Force with effect from 23/9/1960. The offences herein were committed in the year 1971. The plea of the appellants is that the court-Martial set up under a warrant of the Chief of the Army Staff, authorising the Chief Engineer to conduct it, was not legally constituted under the Army Act since there was no parallel officer of an Army rank posted in the Force. It is stated that this objection to jurisdiction was taken before the court-Martial but not ignored. The appellants' learned counsel was unable to support his contention. We do not find any material in support thereof because the proceedings of the court-Martial have not been placed before us as part of the record. The judgment under appeal is also not reflective of the question of jurisdiction having been raised in such manner. Even otherwise it is not available to the appellants because of the settled position in law that the General Reserve Engineers Force is part and parcel of the Armed Forces to which the Army Act is applicable. In this connection R. Viswan v. Union of India and Devi Prasad Mishra v. Union of india may with advantage be seen. Such argument is not open to the appellants. The ancillary question raised that those judgments applied prospectively and did not cover the state of law as existing prior thereto and the instant being a case which arose priorly is to be noted and rejected. This court, in those cases, not only declared the state of law as existing but interpreted it to have always existed from the date of the notification applying the Army Act to the Force.