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P. Chandra Mouli Etc. and ors. Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantP. Chandra Mouli Etc. and ors.
RespondentUnion of India (Uoi)
Excerpt:
.....be prejudicial to good order and discipline. even if this rule were to apply to the gref, submits shri khatri, first charge under section 63 has to fail, as the demonstration was not of the kind mentioned in r. as section 63 is directed against action prejudicial to 'good order and discipline',there can reasonably be two views whether earticipation in black flag demonstration by members of the gref during the visit or its highest official, director general border roads, could be regarded as pre-judicial to good order and discipline. as to the rest it is hoped that the confirming authority would first come to a decision whether remaining charges be regarded at all as prejudicial to good order and discipline, keeping in view that the offence has been committed by a member of the force who..........common arguments were addressed and both the petitions are being disposed of by one judgment.2. shri khatri who has appeared for the petitioners has contended that, it is open to this court to order release of the petitioners if the court martial has or had no jurisdiction in regard to the petitioners and the offences alleged against them. in support of this broad submission, i have been referred to the decision of a division bench of the delhi high court in s. p.n. sharma v. union of india air 1968 delhi 156 : 1968 cri lj 1059. this legal proposition has not been challenged before me by shri laskar appearing for the respondents.3. the petitioners are members of general reserve engineering force (gref), a civilian road construction force 'under the ministry of shipping and transport......
Judgment:

B.L. Hansaria, J.

1.The Petitioners in these two cases have approached this Court to quash general Court Martial proceedings against them and to order for their release. As the;points of law involved are same, common arguments were addressed and both the petitions are being disposed of by one judgment.

2. Shri Khatri who has appeared for the petitioners has contended that, it is open to this Court to order release of the petitioners if the Court Martial has or had no jurisdiction in regard to the petitioners and the offences alleged against them. In support of this broad submission, I have been referred to the decision of a Division Bench of the Delhi High Court in S. P.N. Sharma v. Union of India AIR 1968 Delhi 156 : 1968 Cri LJ 1059. This legal proposition has not been challenged before me by Shri Laskar appearing for the respondents.

3. The Petitioners are members of General Reserve Engineering Force (GREF), a civilian road construction force 'under the Ministry of Shipping and Transport. By Notification No. SRO-329, Dt 23-9-60 issued in exercise of powers conferred by Section 4(I) of the Army Act, 1950 (the Act for short), the Central Government applied provisions of the Act with the exceptions shown in Schedule 'A' and subject to modifications mentioned in 'Sch. 'B' of the Notification, to the GREF. The applicability of the Act to the GREF by the aforesaid notification is not being contested by Shri Khatri in view of the decision of the Supreme Court in the case of Devi Prasad Misra v. Union of India. In that case, the petitioner had first approached this Court who had dismissed is application for a writ of habeas corpus. Being aggrieved the petitioner agitated the matter before the Supreme Court and in dismissing the Special Leave Petition (No. 1020/78-Criminal) the Supreme Court upheld the applicability of the Army Act to the GREF. The order of the Supreme Court is at Annexure 'D' to the affidavit-in-opposition. filed by the respondents on 13-3-80.

4. In view of this, Shri Khatri admits the application of Act but contends that the general Court Martial having been convened by the Chief Engineer the same could not acquire any jurisdiction over the petitioners as the Chief Engineer has no such authority in law. The case of the respondents is that the Chief Engineer had convened the Court-Martial having been empowered in this behalf by warrant of the Chief of the Army Staff'(COAS), who is authorised to do so by Section 109 of the Act. that there is such an empowerment is not disputed. Really Sri Laskar has produced the original warrant for my perusal. The contention however is that the empowerment visualised by Section 109 in favour of the COAS does not apply so far as the GREF personnel are concerned. According to Shri Khatri, if Section 109 is read reddendo singula singulis that part of the Section which deals with empowerment by COAS has to be confined to the personnel of regular army, and not to the GREF. Reference has also been made to Section 4(4) of the Act which is in these terms:

(4) While any of the provisions of this Act apply to the said force the Central Government may by notification, direct by what authority and jurisdiction, powers or duties incident to the operation of these provisions shall be exercised or performed in respect of the said force.

My attention is then invited to the aforesaid Notification Clause (2) of which states that the Officers mentioned in the first column of Sch. C shall exercise or perform in respect of members of the GREF the jurisdiction, powers and duties incident to the operation of the Act as is specified in the Second column thereof. A reference to Sch. 'C shows that the Director General Border Roads has been given the jurisdiction, power and duties of 'an Officer commanding an Army'. Relying on these provisions Shri Khatri strenuously urges that the COAS could not have empowered Chief Engineer to convene the Court Martial.

5. I propose to examine the last submission of Shri Khatri in this regard first, because if Sch. 'C' of the Notification were to show that the Director General Border Roads has been clothed with the power of the COAS the latter could not have perhaps exercised his powers so far as the GREF is concerned after the aforesaid Notification. It may be stated that the empowerment by the COAS is dated 10-2-1964 whereas the Notification is dated 23-9-1960. As per Shri Khatri the words in Sch. 'C' of the Notification quoted above can mean COAS only and none else. To support him on this, the learned Counsel refers to the definition of the COAS in Section 3(iv) of the Act meaning 'the officer commanding the regular army'. Shri Laskar on the other hand contends that the aforementioned expression in Sch. 'C does not include the COAS. He refers to Section 179 of the Act which had made a distinction between the COAS and 'the Officer commanding the army, army corps, division or independent brigade, it is submitted that the crucial words in Sch. 'C must therefore take within its (their) ambit the Officer commanding not the whole Army,,as does the COAS, but those who command a part of it namely the Officer in charge of a command like Eastern Command, or a Corps Commander. The use of the word 'an' in the aforesaid expression is emphasised. The Second entry in Sch. 'C is also referred where the powers of 'an officer commanding a division, brigade' have been given to Chief Engineer or Independent Deputv Chief Engineer of the General Reserve Engineering Force. Statement in Para 34 as finding (sic) in Border Roads Regulation (Reprint 1973) is also pressed into service wherein it is stated that the powers to be exercised in the application of the Act by the Officers of the GREF are those contained in Annexure-7. Item (g) of this Annexure states that the powers to convene and confirm general Court Martial belong to Director General Border Roads/Chief Engineer/Independent Deputy Chief Engineering who has been issued with A-l and A-3 warrants. Of these warrants A-l (as at p. 817 of the Manual of Indian Military haw.. 1937 (Reprint 1971) deals with convening of Court Martials. The warrant produced before me authorising the Chief Engineer is in form A-l.

6. A close examination of the above provisions shows that the Director General of Border Roads has not been given the powers of the COAS who has to be distinguished from some other officers commanding in army. Had it been so, the Director General would not have needed any authority to convene General Court-Martial, as Section 109 of the Act itself would have then empowered him to do so. So. I hold that provisions in Sch. C of the Notification have not taken away the power of COAS in this regard.

6-A. Let it be seen whether the authority given to the COAS to empower convening of general Court-Martial has to be read as non-applicable to the GREF because of Section 4(4) of the Act. Shri Khatri's contention in this context is that the Act being a consolidating and amending statute, it is open to this Court while interpreting this section to bear in mind the previous state of law for the purpose of ascertaining the intention of the Legislature. Section 4 of the Act is analogous to Section 5 of the Indian Army Act, 1911. whose provisions were understood by the Defence Ministry itself, submits Shri Khatri, to have laid down that the function of the Commander-in-Chief should be exercised by some Civil Official and that of General Court Martial by some Civil Court or official. This view is said to have been expressed in Para 3 of Chap. II of the aforesaid Manual. Shri Khatri submits if that was the understanding of the Ministry of Defence itself, the Court should endorse this view.

7. This para rends:

Section 5 enables the provisions of the Indian Army Act to be applied to any force (of Military police for instance) raised and maintained in India by the Government of that country but which does not form part of the regular Indian Army. It also enables Government to arrange for such application by providing suitable authorities and tribunal. Such a notification as is contemplated by this Section might for instance provide that, as regards the force in respect of which it is issued function of the Commander-in-Chief or the officer commanding a division should be exercised by some Civil Official and that of a general Court Martial by some Civil Court or Official. A force to which the Indian Army Act is thus applied does not thereby become a part of the regular army, nor subject to its tribunals. It merely adopts as its Code, similar to the Code in force in that Army (Emphasis supplied).

The section was thus understood as an enabling provision, recourse to which could be taken if the Government so desired. It does not mean that the army authorities would cease to have their powers which they have under the Act the moment it is applied to any force in exercise of powers under Section 4(1) of the Act. I do not therefore think that the COAS had lost its authority to empower the Chief Engineer to convene the General Court Martial because of anything provided in Section 4(4) of the Act

8. The last submission of Shri Khatri in this regard is the invocation of the principle 'reddendo singula singulis'. This rule has been explained in Sutherland's 'Statutory Construction', 3rd Edition Page 423 thus:

Where a sentence contains several antecedents and several consequents they are to be read distributively. that is, the words are to be applied to the subject to which they appeal by context most properly to relate and to which they are most applicable. This method of limiting the effect of expression which are obviously too wide to be construed literally is most frequently applied when the opening words of a Section are general and the succeeding parts regulate particular instances. Thus, where several words importing power, authority and obligation are found at the commencement of a clause, it is not necessary that each of the words apply to the several branches of the clause. It may be constructed reddendo singula singulis and the words giving power and authority limited to particular subject and those of obligations applied to others. Likewise, where the words under consideration appear in different sections or are widely dispersed throughout an Act the same principle will be applied. The difficult problems of interpretation involved in the rule of reddendo singula singulis may be almost entirely eliminated by careful drafting. If sentence are short and contain but a single subject and a single object this problem will be resolved.

9. The applicability of this rule came up for examination in Bishop v. Deakin (1936) 1 All ER 255. The Court was seized with the interpretation of Section 59(1) of the Local Government Act, 1933 which read:

A person shall be disqualified for being elected or being a member of a local authority, if he has within five years before the day of election or since election been convicted of any offence and ordered to be imprisoned for a period of not less then three months without the option of a fine.

The Court held that the period of five-years for a person who has already been elected refers to that which is 'since election' and not 'before the day of election'. The reason given was that if it was to be otherwise, the effect would be that a member would be disqualified, when he acts as a councillor, but he would be eligible at once for re-election to the vacant office, the period of five years have expired before the new election.

10. This shows that the rule reddendo singula singulis is to be invoked while interpreting a section or a statute when different words of the section or statute have reference to different situation, or person, which problem may almost entirely be eliminated if short sentences with a single subject and single object are used J The case at hand does not raise any problem of constructio.n of Section 4(4) of the Act requiring it to be resolved by applying the aforesaid rule. Had any person or authority been mentioned in the.Sub-section the matter would have been different. So also, if different sections of the Act would have contained such provisions by referring to different categories of persons, it could have perhaps required the application of this rule. But this is not so. Section 4(4) to which alone my attention has been drawn in this context says that the Central Government may by notification direct what authority shall exercise which powers in respect of the force to which the Act was being applied. As it has, already been seen, the power of the COAS has not been conferred on the Director General Border Roads by the Notification I am of the opinion that the rule of reddendo singula singulis does not assist the petitioners in contending that the general Court Martials, convened by the Chief Engineer on the authority of the COAS had no jurisdiction over them. The first submission of Sri.Khatri is therefore rejected.

11. The next question relating to jurisdiction urged is that the general Court-Martial had no jurisdiction over the offences for which petitioner in Criminal Misc. Case 12/80 was tried. This part of the submission is related to the charge under Section 63 of the Act which was on four counts:

(1) participation in a black flag demonstration on the occasion of the visit of Director General Border Roads;

(2) writing and forwarding of a letter directly to the Secretary Border Roads Development board violating the channel of correspondence;

(3) improper shouting and attempt to obstruct the reading out of message by the Camp-Commandant to the persons present at the weekly parade; and

(4) association with an illegal and unauthorised organisation named All India Border Roads Employees' Association.

12. These matters have been regarded as an offence under Section 63 of the Act, which as applied to the GREF can be so, if the acts be prejudicial to good order and discipline. The submission of Shri Khatri is that some of those matters would not at all attract the mischief of Sections. 64-63 unless Section 21 of the Act and Rules 19 to 21 of the Army Rules 1954 (hereinafter the Rules) applied to the GREF personnel. 'S. 21 deals with modification of certain fundamental rights and aforesaid rules have been framed dealing with restriction on fundamental rights. According to the learned Counsel for the petitioners these provisions could not have been made applicable to the GREF personnel inasmuch as Artcle 33 of the Constitution permits the Parliament to modify fundamental rights in their application to the 'members of the Armed Forces or the Forces charged with the maintenance of Public Order'. It is urged that the GREF is not such a force and so the fundamental rights of the members of the GREF could not have been restricted by applying Section 21 of the Act. Shri Laskar would not agree with this contention. He seeks to place reliance on two Supreme Court decisions in Ram Samp v. Union of India AIR 1965 SC 347 : 1965 (1) Cri LJ 236 and O. K. A. Nair v. Union of India : [1976]2SCR769 . The first decision is not relevant to decide the controversy at hand because what has been stated in Para 16 which has been read out by Shri Laskar is that each and every provision of the Act is a Law made by the Parliament and if any such provision (and not only Section 21) tends to affect the fundamental rights, that provision would not be void, as it must be taken that Parliament has thereby in the exercise of its powers under Artcle 33 of the Constitution, made the requisite modification. The second decision however is to the point. In that case the Supreme Court was called upon to decide whether fundamental rights of the employees of the Defence Establishment such as cooks, chowkidars, barbers, carpenters, mechanics, boot makers, tailors etc. could be taken away by the Central Government. It was held that these persons were subject to the Act as they were covered by Section 2(1)(i) as their duty was to follow or accompany the Armed personnel on active service, or in camp, or on the march. They were therefore regarded as the 'members of the Armed Forces' within the contemplation of the Artcle 33. But it is not the case of respondent that GREF personnel are covered by Section 2(1)(i) of the Act, Had it been so there would have been no necessity to invoke powers under Section 4(1) of the Act. Nothing has also been brought to my notice to satisfy that they can be regarded as either 'members of the Armed Forces' or of 'the Forces charged with maintenance of Public Order'. The averment of this petitioner in para I of the application filed on 14-3-1980 that GREF is a civilian road construction force under the Ministry of Shipping and Transport has been admitted by the respondents which would show that it is not Armed Force as such, nor a force charged with maintenance of public Order.

13. Because of the above, I would hold that Section 21 of the Act could not have been made applicable to the GREF by Notification No. SRO-329 dated 23-9-1960 as what could not have been done by the Parliament, cannot a fortiori be done by the Central Govt, by exercising power under Section 4(1) of the Act. The Notification in so far as it applies Section 21 of the Act to the GREF is therefore ultra vires.

14. Let it be seen whether the above quoted charges can attract the mischief of Section 63 of the Act without the aid of Section 21 of the Act. It is the submission of Shri Khatri that the fourth charge could have been an offence only if R. 19 of the Rules had applied to the GREF. that Rule prohibits association with unauthorised organisations. If that Rule were not to apply to the GREF, and which would not apply according to me, because Rules 19-21 are related to Section 21 of the Act, the fourth charge under Section 63 as framed cannot stand and I therefore quash the same.

15. It is then urged that every citizen of India has a right to assemble peaceably; and as such holding of black flag demonstration (subject matter of first charge under Section 63) cannot be regarded as an offence. Reference has been made in this connection to Kameshwar Prasad v. State of Bihar : (1962)ILLJ294SC . Rule 20 of the Rules is also read which shows that taking of part in a demonstration held for a party or any political purpose has alone been prohibited. Even if this rule were to apply to the GREF, submits Shri Khatri, first charge under Section 63 has to fail, as the demonstration was not of the kind mentioned in R. 20. But the charge is not related only to the holding of demonstration as such, hut, of participation in a black flag demonstration. Shri Khatri urges that as GREF personnel are not subject to 'military discipline' of which reference has been made in Section 63 of the Act because of the deletion of the word 'military' while applying the Act to GREF, participation in black flag demonstration cannot be regarded as inimical to any form of civil discipline, as distinguished from military discipline. As Section 63 is directed against action prejudicial to 'good order and discipline', there can reasonably be two views whether Earticipation in black flag demonstration by members of the GREF during the visit or its highest official, Director General Border Roads, could be regarded as pre-judicial to good order and discipline. As '. am not entering into the merits of the charges at this stage in view of the submission of Shri Laskar that the matter is being examined 'thread-bare' by a legal cell before confirmation of a finding or sentence awarded by a Court Martial is recorded I do not propose to express my views presently on this charge. The same applies to two other charges covered by Section 63 of the Act.

16. The result is that only the fourth charge under Section 63 relating to the petitioner in Criminal Misc. Case. 12 of 1980 is quashed. As to the rest it is hoped that the confirming authority would first come to a decision whether remaining charges be regarded at all as prejudicial to good order and discipline, keeping in view that the offence has been committed by a member of the force who is not subject to military discipline. The confirming authority would also pass a speaking order as to which of the charges has been established and why. A copy of the order Cassed by the confirming authority would be served on this petitioner. I put on record that Shri Laskar has submitted that the petitioner could approach this Court by invoking its certiorari jurisdiction, if it otherwise lay, after the confirmation proceeding is over. This stand has been taken because the finding or sentence of a general Court Martial is not valid except so far as it may be confirmed as stated in Section 153 of the Act.

17. For the reasons, Criminal Misc. Case No. 20 of 1980 is dismissed and Criminal Misc. Case No. 12 of 1980 is allowed as aforesaid.


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