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S.P.N. Sharma Vs. the Union of India - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberCriminal Writ Appeal No. 84 of 1967
Reported inAIR1968Delhi158; 1968CriLJ1059; ILR1968Delhi263
ActsConstitution of India; Air Force Act, 1950 - Sections 161(1)
AppellantS.P.N. Sharma
RespondentThe Union of India
Advocates: K. Dayal, amices curiae and; P. Narain, Adv
Cases Referred and Ghulam Sarwar v. Union of India
constitution of india - writ of habeas corpus- applicability and scope of--expression 'hebeas corpus'--meaning of--nature and purpose of such a writ--jurisdiction of writ court confined to consideration of constitutionality of commitment and the jurisdiction of trial court--such jurisdiction does nto entitle the court to go into irregularities in procedure of the trial court or review procedural errors generally--air force act--(1950), section 161 (1)--wordd 'orer' in--does nto cover findings and sentences contemplated by section 161 (2)--rule 112 a of rules framed under indian air force act--held valid and intended to apply to pending cases as well and does nto offend section 219 of the act--doctrine of rest judicata--applicability of, to proceedings for writ of habeas corpus. ; the..........supreme court petition under article 32 of the constitution praying for a writ in the nature of habeas corpus in which, broadly speaking, except for the challenge to the virus of rule 112-a, the grounds were substantially similar to those taken in this court. the supreme court, on that petition, after hearing the petitioner in person and shri r. h. dhebar for the respondents dismissed the same on 30/10/1967. the petition forwarded to this court is dated 29/11/1967.(4) shri keshav dayal, the learned counsel, who has addressed us in support of the writ petition has, to begin with, submitted that the proceedings before the court-martial and the procedure adopted for securing the confirmation of the finding and the sentence are vitiated by illegalities and violations of the rules of.....

I.D. Dua, C.J.

(1) This petition was received in this Court through Central Jail, Jabalpur (Madhya Pradesh). The prayer contained in this petition covers a fairly wide field including a declaration that Rules 88, 89 and 112-A of the Air Force Act Rules, 1950, are ultra vires, being vocative of Articles 14 and 22 of the Constitution. The petitioner's trial by General Court-Martial and the finding and sentence by the said Court as also the confirmation of the said sentence are challenged as ultra vires, being vocative of Articles 14, 21 and 22 and (2) of the Constitution as also contrary to the provisions of the Air Force Act and the Rules framed there under. Founded on these main challenges is the prayer that the petitioner be set at liberty. Ntoice of this petition was given to the respondents and since the petitioner was nto represented by a counsel and the petition had also presumbly been drafted by him apparently without legal advice, we requested Shri Keshav Dayal, an Advocate of this Court, to help us as amices curiae and he was. good enough to agree to assist us. Ntoice was given on 13/12/1967. On 9/1/1968, Shri Keshav Dayal requested for time to go through the return filed by the respondents which was stated to be a very lengthy documents. The petitioner was present in Court and Shri Keshav Dayal's request to interview him was granted. Indeed, Shri Parkash Narain, the learned counsel for the respondents did nto object to this prayer. On 15/1/1968, Shri Keshav Dayal filed a rejoinder affidavit after consultation with the petitioner and Shri Parkash Narain rightly wanted some time to study the rejoinder. Very elaborate arguments were addressed to us at the bar on 18/1/1968 and we are grateful to Shri Keshav Dayal, who has, after great research and industry, assisted us in this matter as amices curiae. We are equally grateful to Shri Parkash Narain for the assistance rendered by him to us in this case.

(2) The writ petition drafted by a layman, as it is, consists of more than 35 paragraphs extending over 20 pages. It is unnecessary to refer to it in detail. We may however, briefly state the circumstances in which this petition has been presented. The petitioner, who was a Pilto Officer in the Indian Air Force and was posted at Kanpur, was arrested by the Civil police, Delhi, on 1/9/1963 on the allegation of passing military secrets to nationals of a foreign power. He was found guilty in respect of three charges under sections 71 and 42 of the Air Force Act, 1950, and was cashiered on 28/11/1963 to serve rigorous imprisonment for fourteen years. The finding and the sentence of the General Court-Martial were confirmed by the Chief of the Air Staff on 13/12/1963 and on the following day, this was promulgated to him and he was committed to civil prison. According to the averments in the petition, by means of letters dated 24/2/1964 and 7/10/1964, the Air Headquarters and the Government of India informed the petitioner that the Government of India had decided nto to furnish to the petitioner with a copy of the General Court-Martial proceedings in. accordance with Rule 112-A framed under the Indian Air Force Act. The petitioner was, however, permitted to inspect the proceedings of the General Court-Martial in accordance with the said rule.

(3) The petitioner in July, 1967 submitted to the Supreme Court petition under Article 32 of the Constitution praying for a writ in the nature of habeas corpus in which, broadly speaking, except for the challenge to the virus of Rule 112-A, the grounds were substantially similar to those taken in this Court. The Supreme Court, on that petition, after hearing the petitioner in person and Shri R. H. Dhebar for the respondents dismissed the same on 30/10/1967. The petition forwarded to this Court is dated 29/11/1967.

(4) Shri Keshav Dayal, the learned counsel, who has addressed us in support of the writ petition has, to begin with, submitted that the proceedings before the Court-Martial and the procedure adopted for securing the confirmation of the finding and the sentence are vitiated by illegalities and violations of the rules of natural justice. According to him, as soon as the Court-Martial gave a finding against the petitioner and imposed on him the sentence of imprisonment, he was entitled as of right under section 141 of the Air Force Act to present a petition to the Confirming Authority, but this opportunity was denied to him. He has further submitted that under section 161 of the said Act, after the finding and sentence was confirmed by the Confirming Authority, he was entitled to present a petition to the Central Government but this right was hampered because he was nto supplied with the copies of the proceedings. Connected with this submission is the submission that Rule 112-A is inapplicable to the present case because this rule was inserted on 9/10/1963 which was after the petitioner's arrest, though before the commencement of his. trial. According to Shri Keshav Dayal's argument, the petitioner had a vested right to be tried in accordance with the rules as they existed when he was arrested. The next challenge directed by Shri Keshav Dayal against the petitioner's detention is that the Chief of the Air Staff has nto been proved to have been properly appointed as a Confirming Authority, with the result that the confirmation is ultra vires. In regard to the effect of the order of the Supreme Court dated 30/10/1967, Shri Keshav Dayal has submitted that the order produced does nto give any reasons for the conclusions, with the result that it cannto be considered to be a speaking order and, thereforee, it cannto operate as a bar to this Court considering all the points which were contained in the writ petition submitted to the Supreme Court under Article 32 of the Constitution. In any event, so argues the counsel, the points nto taken in that petition are open to him in the present proceedings. According to him, the question of the virus of Rule 112-A and the question of non-compliance with section 161 of the Air Force Act were nto raised in the writ petition in the Supreme Court. The petitioner Shri Sharma has also addressed us personally, but he has confined his submission to two points. In the first instance, he has submitted that he had nto addressed the Supreme Court on all the points contained in his application in that Court and secondly that he was nto permitted to engage a civil lawyer before the Court-Martial and, thereforee, he has been prejudiced. In so far as the first point is concerned, we do nto think it makes much difference because merely declining to press some points before the Supreme Court would nto affect the force of the order of the Supreme Court. In so far as the second point is concerned, though Shri Parkash Narain has submitted that according to the respondents' affidavit, the' petitioner had, during the course of trial, nto made any grievance on this score, in our view, this circumstance, by itself, would nto vitiate the finding and the sentence of the Court-Martial in question.

(5) Shri Parkash Narain has, in answer to these submissions, submitted that section 161 of the Air Force Act does nto confer a right to approach the Confirming Authority with any grievance against the finding and the sentence, but is only confined to toher orders made during the course of the trial and it is only section 161 which confers a right to present a petition against the finding and the sentence. This right, according to Shri Parkash Narain, was admittedly exercised by the petitioner, who was given full facility to inspect the record. Indeed, according to the learned counsel, the record was inspected by the petitioner for nearly 15 days. Copies, according to Shri Parkash Narain, were nto supplied for reasons relevant under Rule 112-A which is fully attracted in this case because it was in force when the petitioner's trial before the Court-Martial began.

(6) Before dealing with the points canvassed and the decisions cited at the bar, I should like to state the position in regard to petitions for habeas corpus in this Court in cases where persons have been tried and convicted by competent Courts, and particularly by Court-Martial. The expression 'Habeas Corpus' is in a sense generic, being applicable to each of several different writs. As generally used and popularly known in this country, it refers to a writ issued pursuant to a petition or application directed to the officer or person detaining antoher and requiring him to produce the detainee and to justify to the Court's satisfaction the regality of his detention. It is a high prerogative writ of ancient origin in the common law of England, the vital purpose of which is to obtain on summary proceedings the immediate relief from illegal confinement, or to release those imprisoned without legal justification or sanction. It is essentially a writ of enquiry and is designed to test the legality of the right under which the person concerned is detained. The office of the writ is nto to determine the guilt or innocence of a prisoner, but only to ascertain if he is deprived of his liberty in accordance with the established law. It is thus a right to an order requiring the person in whose custody antoher person is detained to produce the latter before the Court in order to let the Court know on what grounds he has been confined and to set him free if there is no legal justification for the imprisonment. Where the detention of an individual is under process for criminal causes, the jurisdiction of the Court may be enquired into and, in certain cases, also the regularity of the commitment. In our Constitution, Article 19 guarantees to all citizens, inter aha, the right to move freely throughout the territory of India and Article 21 specifically prtoects all persons against deprivation of their life and personal liberty except according to the procedure established by law. Article 227 of the Constitution, which confers the power of superintendence over all Courts by the High Court, expressly excludes from the operation of this Article Courts and Tribunals constituted by or under any law relating to the Armed Forces. Now, the constitution of the Court-Martial which tried the petitioner, has nto been challenged before us, nor is it toherwise complained that the Court-Martial had no jurisdiction to try the petitioner for the offences for which he was charged. The question, thereforee, arises as to how far it is open to this Court to go into the complaints in regard to the matters of procedure nto affecting the jurisdiction of the Court-Martial. One of us sitting singly as a Judge of the Punjab High Court had occasion to deal with an application for a writ of habeas corpus in regard to a Captain in the Indian Army who had been found guilty by a General Court-Martial and sentenced to 10 years rigorous imprisonment in December, 1958 in Mrs. Saroj Prasad v. Union of India, Cri. W. I-D of 1963 decided on 13/5/1963. It was observed there as follows :-

'Awrit of habeas corpus is a prerogative process for securing the liberty of a citizen by affording effective means of immediate release from unlawful or unjustifiable detention, whether in prison or private custody. This right has been guaranteed by our Constitution and is one of the main bulwarks of individual liberty in this Republic. . . . . . .. Now, this right having been guaranteed in the constitution itself, it is of the highest constitutional importance and the High Court has nto only a right but also an obligation to enquire into the causes for which any citizen has been deprived of his liberty. This process is a 'remedy in all cases of wrongful deprivation of personal liberty and is apparently a writ of right provided the illegality of the detention is made out. When, however, detention is under a process of criminal causes, the jurisdiction of this Court is usually confined to consideration of the constitutionality of the commitment and the jurisdiction of the Court. Writ of habeas corpus accordingly cannto issue to question the correctness of the decision of a Court of competent jurisdiction, for, it is nto a writ of error; nor does this Court in habeas corpus proceedings, strictly speaking, sit as a Court of Appeal or of general superintendence to review the order of conviction on the merits. Illegal detention of a citizen, or when the detention is incapable of legal justification, is, broadly put, the real basis of jurisdiction in habeas corpus proceedings, and the object of issuing this writ is to ascertain whether there is legal justification for the detention of the person in custody. If, thereforee, a warrant on the face of it is valid and free from constitutional vice or some material legal infirmity going to the roto of the cause, the detention is liable to be upheld, though if absence of jurisdiction in the authority is made out in accordance with law, this Court would 'perhaps be entitled to go behind the warrant.'

(7) After staling this general proposition, the judgment proceeded to observe that the Court convicting the detainee in that case the General Court Martial in respect of which, unlike toher Tribunals, this Court could nto exercise the power of superintendence under Article 227 of the Constitution. Unless the order of detention could be shown to be non-est, this Court could nto interfere with the detention.

(8) Our attention has nto been drawn to any decision in which a High Court in habeas Corpus proceedings was held entitled to go into the alleged irregularities in procedure adopted by a Court-Martial when trying a person brought before it in accordance with law to stand trial on charges within its competence and jurisdiction. Broadly speaking, the remedy of habeas corpus is nto available to one who is properly detained under military arrest or is serving out a legal sentence of a Court-Martial, except that the jurisdiction of the Court- Martial concerned may be enquired into and the prisoner set at liberty if he was nto amenable to such jurisdiction. A habeas corpus proceeding is nto admissible so as to enable a civil Court to exercise a supervisory control over or review procedural errors generally in the pro- ceedings of the Court-Martial. The single enquiry open in habeas corpus proceedings to secure release from imprisonment ordered by a Court-Martial is as to its jurisdiction in regard to the person, the offence and the sentence. We are, thereforee, only confined to see if the finding and sentence, as confirmed by the Confirming Authority, can be considered to be wholly devoid of jurisdiction and, thereforee, ultra virus in the sense of being non-est. It is in this background that we have to consider the position. Now, section 161 of the Air Force Act reads as under :-

'161.Remedy against order, finding or sentence of court- martial.-(1) Any person subject to this Act who considers himself aggrieved by any order passed by a court-martial may present a petition to the officer or authority empowered to confirm any finding or sentence of such court-martial, and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legahty or propriety of the order passed or as to the regularity of any proceeding to which the order relates.'

(9) Quite clearly, this provision is confined to cases where a person con- giders himself aggrieved by an order passed by a court-martial. It is dear beyond doubt that relevant provisions of the statute use three words 'order', 'finding' and 'sentence'. Sub section (1) deals with the word 'order' whereas sub-section (2) with words 'finding' and 'sentence'. The scheme of the Act appears to us to support Shri Parkash Narain's contention that the word 'order', as used in section 161, does nto cover findings and sentences within the contemplation of section 161. The various sections in Chapter Xii dealing with 'Confirmation and Revision' amply justify our view. The submission by Shri Keshav Dayal that there are no orders contemplated by the Act in regard to which section 161 may be held to operate is unacceptable because we find various provisions of the Act dealing with orders against which an aggrieved person might well, during the course of trial, take the matter to the Confirming Authority for redress. By way of illustration, there are orders contemplated by section 150 of the Air Force Act. But this apart, the very fact that a finding or sentence is nto to be operative before its confirmation, would seem to impose an obligation on the trying Court-Martial to secure confirmation. If a specific right had been conferred on the person concerned to represent to the Confirming Authority against a proposed confirmation, then one would have expected such a right to be clearly conferred against the finding and the sentence and nto left to be spelled out from the use of word 'order' in section 161.

(10) Coming next to the virus of Rule 112-A, it may be pointed out that this provision has been inserted in the interest of the security of the State and of friendly relation with foreign States. A provision of this type, in our opinion, must beconstrued to be intended to apply to all pending cases to which it may be attracted after its insertion in the statutory rules. It must nto be forgtoten that it is merely a rule of procedure and was admittedly in force even before the petitioner's trial started. And then, there can scarcely be any vested right in procedure, particularly so long as an adequate remedy exists. No statutory provision has been cited and no principle or precedent brought to our ntoice which would persuade us to hold that a provision of this type affects any vested right of a, person tried for an offence under the Air Force Act. Indeed, this rule does nto appear to us to be hit by any recognised canon of interpretation against respectivity for, application of this rule to the present case may well, quite appropriately, be held to be prospective and nto retrospective. That this rule is nto arbitrary so as to expose it to the challenge of violation of the essential rules of natural justice, is clear from the proviso which, in fairness to all concerned, lays down that the person demanding copies is to be permitted inspection of the proceedings if he wants to submit a petition in accordance with the Act or to institute any action in a Court of law in relation to a finding or sentence. It is nto denied that the record was inspected by the petitioner without any let of hinderance and he did exercise his right or representation under section 161.

(11) An argument has been advanced in support of the invalidity of the rule by reference to section 21 of the Air Force Act. This section gives power to the Central Government by ntoification to make rules restricting the right of persons subject to the Act to be members of some associations or to attend or address meetings or to communicate with the press or public, books, letters or toher documents. This section, in our view, has ntohing to do with the validity of Rule 112-A, for, among toher provisions, section 189 of the Air Force Act specifically confers power on the Central Government to make rules for the purpose of carrying into effect the statutory provisions. The procedure to be observed in trials by Courts-Martial and the confirmation, revision and annulment of, and petitions against the findings and sentences of court martial are specifically mentioned in clauses (g) and (h) of section 189 which, without prejudice to the generality of sub-section (1), illustrates the subjects on which rules can be made. Section 191 also specifically provides that all rules made under this Act and published in the Official Gazette are, on such publication, to have effect as if enacted in this Act. In view of these provisions, in our opinion, it is futile to urge that Rule 112 is ultra vires. On the view that we have taken, it is unnecessary to refer to Ram Sarup v. Union of India (1) to which reference has been made by Shri Keshav Daval.

(12) In so far as the challenge to the authority of the Chief of the Air Staff to confirm the finding and the sentence is concerned, we may point out that Shri Parkash Narain has drawn our attention to a warrant issued by the Government of India, Ministry of defense on 7/5/1955 conferrig upon the Chief of the Air Staff the requisit power to confirm the finding and sentence of a General Court-Martial. Indeed, in the affidavit sworn by Shri D.S. lyer. Under Secretary to the Government of India, Ministry of defense, it has also been expressly affirmed that the Chief of the Air Staff has been empowered by a warrant of the Central Government to be a Confirming Authority as required by section 153 of the Air Force Act. We have no reason to disbelieve this affidavit.

(13) Considerable argument has also been addressed at the bar on the question of the effect of the decision of the Supreme Court in the previous habeas corpus application under Article 32 of the Constitution. Shri Keshav Dayal has very forcefully argued that principles of rest judicata are inapplicable in this case because the order made by the Supreme Court was nto a speaking order in the sense that it did nto give all the reasons for repelling the various points raised in the writ petition. He has in support of this submission referred us to Cooverjee v. The Excise Commissioner etc., (2) Daryao v. State of U.P., (3) Amalgamated Coalfields v. Japanada Sabha (4) Joseph Ptohen v. The State of Kerala, (5) and Ghulam Sarwar v. Union of India, (6) Some of the observations in the case of Daryobave, it may be pointed out, been relied upon by Shri Parkash Narain in favor of his submission that the previous decision of the Supreme Court concludes the points contained in the writ petition in that Court and they cannto be re-agitated in this Court. In the case of Ghulam Sarwar, it was observed as follows :-

'BUTcoming to India, so far as the High Courts are concerned, the same principle accepted by the English Court will equally apply as the High Court functions in Divisions nto in benches. When it functions as a Division, it speaks for the entire Court, and thereforee, it cannto set aside the order made in a writ of habeas corpus earlier by antoher Division Bench. But this principle will nto apply to different Court. The High Courts of Allahabad, Bombay, Madras, Nagpur and Patna and East Punjab have accepted this view, though the Calcutta High Court took the view that successive applications of habeas corpus could be filed. But unlike in England, in India the person detained can file original petition for enforcement of his fundamental right to liberty before a Court toher than the High Court, namely, this Court. The order of the High Court in the said writ is nto rest judicatq as held by the English and the American Courts either because it is nto a judgment or because the principle of rest judicata is nto applicable to a fundamentally lawless order. If the doctrine of rest judicata is attracted to an application for a writ of habeas corpus there is no reason why the principle of constructive rest judicata cannto also govern the said application, for the rule of constructive rest judicata is only a part of the general principles of the law of rest judicata, and if that be applied the scope of the liberty of an individual will be considerably narrowed.'

(14) Id that case, an order made by Khanna, J. of the Punjab High Court was nto held to operate as rest judicata and the Supreme Court decided on the merits the petition presented in that Court. We may, however, observe that Bachawat, J. in his separate concurring ntoe in that case .added:-

'IT is to be ntoiced that the present petition does nto challenge the validity of an order of imprisonment passed in a criminal trial. It must nto be understood to say that the remedy of a writ of habeas corpus is available to test the propriety or legality of the verdict of a competent Criminal Court.'

(15) There seems to be greater reason for applying the rule suggested by Bachawat, J. to the verdict of a Court-Martial.

(16) The legal position, as we understand it, is that, ordinarily speaking, the doctrine of rest judicata may nto in its technical sense apply to proceedings initiated by a petition for a writ of habeas corpus, for, the deprivation of liberty of a citizen is a continuing wrong and a person is entitled to urge against its continued deprivation in a competent Court of law. An earlier erroneous decision, unless it is binding on the successor Court, may nto legitimately be put forth as an insurmountable obstruction in the way of the aggrieved person to secure his freedom by showing on the subsequent occasion that the deprivation of his liberty is nto according to the procedure established by law. If the points contained in the earlier petition for habeas corpus presented in the Supreme Court are to be deemgd nto to have been by that Court to be cogent enough to successfully challenge the legality of the petitioner's detention, then this Court would perhaps nto be entitled to go into those points over again, by ignoring the proceedings had in the Supreme Court. If those points were nto argued and, thereforee, that order is contended nto to conclude the matter, it may perhaps be more appropriately open to the petitioner to approach the Supreme Court again and claim to argue those points, but, as at present advised, we are inclined to take the view that it would nto be open to him to argue those points, in this Court. The view that an earlier decision by a High Court would nto stand in the way of the Supreme Court in adjudicating on the same points, may nto necessarily enable the petitioner to canvass the converse position and to urge that an earlier decision by the Supreme Court should be ignored by this Court in subsequently entertaining a petition on those very grounds which are alleged nto to have been argued before the Supreme Court.

(17) But be that as it may, in the present case, it is quite clear that the petitioner is a prisoner in detention in execution of a sentence imposed by a properly constituted Court-Martial, which sentence is prima fade perfectly legal, and this, in our view, seems to be a sufficient answer to the application for a writ of habeas corpus. The principle that a writ of habeas corpus is nto grantable in general when the party is convicted in due course of law is attracted with greater strictness to a person convicted by a duly constituted Court-Martial, the finding and the sentence of which have, in due course, been confirmed by a competent authority. Ntohing has been shown which would induce us to hold that the finding and the sentence as confirmed arc tainted with such a serious jurisdictional infirmity that they should be described as non-est and ignored. We may repeat that we are nto entitled to go into the regularity of steps taken by the Court-Martial in the course of trial or by the Confirming Authority in confirming the finding and the sentence which do nto go to their jurisdiction, and if we may say so with respect, we have nto been persuaded to hold that there was any such irregularity or illegality which would go to the jurisdiction of the Court-Martial or the Confirming Authority.

(18) Before finally concluding, we may point out that the jurisdiction of this Court to entertain this petition has nto been questioned on the ground that the petitioner was nto being detained or kept in custody by anyone within the territorial jurisdiction of this Court on the date of the presentation of the petition. However, during the pendency of this petition, the petitioner was brought to Delhi for the purpose of the hearing in this Court and he is now being kept in custody within this Court's jurisdiction. We have accordingly proceeded on the assumption that this Court has jurisdiction to hear this petition without expressing any considered opinion on this point.

(19) For the foregoing reasons, this petition fails and is dismissed. Petition dismissed.

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