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R. Chatterjee Vs. Sub Area Commander H.Q. Madras - Court Judgment

LegalCrystal Citation
CourtChennai High Court
Decided On
Case NumberCriminal Misc. Petn. Nos. 2478, 2479 and 2633 of 1950
Reported inAIR1951Mad777; (1951)1MLJ258
ActsIndian Army Act, 1911 - Sections 2 and 2(2); Constitution of India - Articles 33, 35 and 372
AppellantR. Chatterjee
RespondentSub Area Commander H.Q. Madras
Appellant AdvocateE.C. Padmanabhan, Adv. for Short Bewes & Co.;Public Prosecutor
Respondent AdvocateVepa P. Sarathy, Adv. for John & Row
DispositionPetition dismissed
Cases ReferredR. v. Wormwood Scrubbs Prison
criminal - fundamental rights - sections 2 and 2 (2) of indian army act, 1911 and articles 33, 35 and 372 of constitution of india - once army officer relieved from his duties and does not receive any pay from crown he is no longer subject to military law and cannot be tried by court martial for offences committed while he was on active list and serving - until and unless such persons are released by military authorities they continue to be in their service - pay and rules and regulations of military would be applicable - in case such person detained for purpose of bringing him to trial before court martial such detention cannot held to be illegal. - - he tries to jusbify his action in availing himself of leave without the permission of the headquarters, madras sub-area, aa well as.....govinda menon, j. 1. during the second world 'war, the petnr. was an emergency commissioned officer holding the rank of a captain in the indian army between the years 1943 to 1946. in september 1946, he was released from service & reverted to civilian occupation; but in pursuance to the policy later on adopted by the govt. of india of instituting short service commissions to fill up vacancies caused in the army by the retirement of british army officers, applna. were called for from ex-army men & the petnr. was one of the appcts. who was entertained on short service commission. he was appointed to the rank of a lieutenant. on 6-7-1948 & the condition of his service was that he was bound to serve for one year in the first instance, which period may be extended for a specific period at the.....

Govinda Menon, J.

1. During the Second World 'War, the petnr. was an emergency commissioned officer holding the rank of a Captain in the Indian Army between the years 1943 to 1946. In September 1946, he was released from service & reverted to civilian occupation; but in pursuance to the policy later on adopted by the Govt. of India of instituting short service commissions to fill up vacancies caused in the Army by the retirement of British Army officers, applna. were called for from ex-army men & the petnr. was one of the appcts. who was entertained on short service commission. He was appointed to the rank of a lieutenant. on 6-7-1948 & the condition of his service was that he was bound to serve for one year in the first instance, which period may be extended for a specific period at the discretion of the Govt. of India with the consent of the officer concerned. Before the expiry of the period of one year, in pursuance to the direction from the Army Headquarters to the Headquarters of the Southern Command, the petnr's. term of service was extended for a further period of one year from 6-7-1949 to 5-7-1950. He was informed of this extension which he accepted. This is evident from the memorandum dated 7-7-1949 submitted by the petnr. which is as follows :

'Ref. Your No. 04069/M.S. I. C. of 1-7-1949. Lieut. R. Chatterjee (SS. 9880) Madras R. accepts the grant of extension of SSRC for a farther period of one year as stated in your A/q ref.'

On 1-6-1950 the petnr. was arrested & was intimated that he had committed various offences for which he would have to take up his trial before a Court Martial. The petnr's contention is that since the extended period of his service expired on 5-7-1950, his detention thereafter by the Military Authorities is illegal & he therefore invokes the jurisdiction of this Ct. for an order directing that he should be forthwith released.

2. From the counter-affidavit filed by Major K. C. Govindan, BAA & QMG of the Madras Sub-area, it is found that at the time the petnr. was arrested he was alleged to have committed various offences for which he had to stand his trial before a Court Martial. The petnr. in his affidavit in support of the appln. states that the only charge levelled against him was that he absented himself from the station without proper authorisation from 4-5-1950 till 1-6-1950 when he was arrested at Waltair station on his return journey from Calcutta. He tries to jusbify his action in availing himself of leave without the permission of the Headquarters, Madras Sub-area, aa well as the overstaying on leave by reasons of which details are given in various passages in the affidavit. Finally he contends that the Military authorities have no jurisdiction to arrest or keep him in detention because he is not subject to the Military law, but only to the terms & conditions of service set out in the contract of service & the punishment for any non-observance of the conditions of service can be only dismissal & not detention. The counter affidavit filed on behalf of the Sub-Area Commander of Madras sets forth six charges against the petnr. of which the fifth one was absenting without leave from 4-5 to 1-6 1950. The others are, misuse of Govt. transport between 22 & 24-5-1949, misappropriation of Govt. stores between July & October 1949; omission to exercise proper supervision over the operation of bis office thereby incurring loss of military stores between November 1948 to June 1950: & lastly non-maintenance of accounts pertaining to vehicles in the petnr's charge. The counter-affidavit states that though the extension of one year of his service terminated on 5-7-1950, his detention under para. 6, Special Indian Army O. No. 74/1945 is justified. The Special Indian Army Order No. 74/1946, para. 6, reads as follows :

'Personnel due for release who are awaiting trial on serious offences or who are essential witnesses will, with the approval of the G. O. C. in-Chief of the Army Command concerned, be compulsorily deferred on the grounds that maintenance of discipline is a military necessity.'

It is also alleged that the petnr.'s consent is not required for retaining him after 5-7-1950 since his detention is covered under para. 6, Special Indian Army O. No. 74/1945. In his reply affidavit, the petnr. admitted that his earlier contention that he did not give his consent for extension of term till 5-7-1950 was wrong & was the result of a mistake but still he maintained that after 6 7-1950 he was no longer in service for subject to Military law & that he was a free man on 6-7-1950 & should therefore be set free. With regard to the Special Indian Army O. No. 74/1945. the petnr. stated that depart, mental rules have no binding effect or force oflaw & cannot override the provisions of law or the terms of the contract. He stoutly maintains that there is no law by which the Army authorities can detain him after the expiry of his term, on 5-7-1950 & that there is no law which permits the Army authorities to try him for an offence after that period.

3. In this state of conflicting contentions, it is necessary to find out whether the petnr. had expressed his consent for a further extension of aarvice subsequent to 5-7-1950. We have already referred to the acceptance by the petnr. on 7-7-1949 of an extension of service for a further period of one year after the expiry of the initial period of one year, that is upto 5-7-1950. The resp. has filed a certified & true copy of an appln. by the petnr. to the Headquarters, Madras Sub-Area on 19-4-1950 which reads as follows :

'To Headquarters, Madras Sub-area, Subject: Extension of SSRO. Lieut. R. Cbatterjee. Ref: this HQ. No. 1963A dated 4-4 1950. Lieut. R. Chatterjee will be completing his term by 6-6 1950. The officer in question wishes to continue hia servioe for a further period of one year. Hence may this HQ. please be informed if his cast has been recommended for extension.

Sd. R Chatterjee Lieut.

SS0, Vizag & Coconada.'

In addition to this memorandum dated 19-4-1960, the petnr. has applied on 3.7-1950 to the Sub-Area Command, Headquarters Madras, asking for a recommendation that for compassionate grounds he may be posted to Calcutta or to the suburbs of Calcutta so that he may be able to take care of hia family affairs during his spare time & if that request cannot be complied with to release him as early as possible as would be completing hia term of service for which he was engaged for, by 6-7-1950, Both these documents show, that far from intending to leave the Army on the completion of the first extension of service on 5-7-1950, the petnr, was anxious that he should have a further extension from the expiry of the first extension & therefore it cannot be said that he was unwilling tp continue in service after 5-7-1950. The one thing that becomes evident from the corres. pondence & the records filed is that the Army Headquarters, or the Sub-Area Command, did not act upon the petnr'a. request & give him an extension as prayed for.

4. With this background we have to consider the question as to whether the petnr. can be detained by the Military authorities even though they have not agreed to his request for an extension of service from 6-7-1950, because the petnr. was alleged to have committed offences during the period he was in service & was subject to the Military law. On behalf of the appet., it is strenuously contended that in the absence of any positive order of the Military authorities extending the period of his servioe for any term after 3-7-1950, it should be deemed aa if the contractual term expired on 5-7-1850 with the result that the peter, can no longer be held to be subject to any Military law or discipline.

5. Our attention was invited to the notfn. iavitingapplns for the Short Service commission which has been placed before us as annexure A to the petnr's. affidavit. Para. 3 relating to the length of commission, para. 7 relating to applna. & para. 9 relating to the period of probation, especially that which relates to the termination of commissions, were all brought to our notice. Para. 9 of annexure to Special Army Instrament (India) NO, 3/S of 1942 is to the following effect :

'Termination of commission, (a) An officer granted a short service commission will be liable to serve for the full period of his contract, but his commission may be terminated at any time by the Govt. of India.

(i) for misconduct, or if services are found to be unSatisfactory,

(ii) on account of medical unfitness,

(iii) if his services are no longer requited.

(b) An officer may, on giving three months' notice, be permitted to resign his commission on compassionate grounds, of which the Govt. of India will be the sole judge. An officer who is permitted to resign his Commission on compassionate grounds will not be eligible for proportionate terminal gratuitj.'

From this para, we are invited to hold that as soon as the period of short service commission expired, without any kind of release or discharge, it is open to the short service commissioned officer to walk out & to be a free man not subject to any rules of Military discipline. Therefore two cardinal questions arise for consideration : (1) Whether the provisions of the Indian Army Act & the Rules made thereunder as well as the Army orders, regulations & directives apply to the petnr. generally or whether he is bound only by what is termed the contract of service & nothing more ; & (2) whether, even if the rules, regulations, directives, etc., under Indian Army Act apply to him, there can be an automatic discharge the moment the term of commission expired.

6. We shall take up the first question & in doing so it need hardly be reiterated that if the petnr's. request contained in the memorandum, dated 19-4-1950 & the appln. dated 8-7-1950 had been accepted, there could be no room whatever for him to contend that during the time he was in detention he was not subject to the Military law & discipline as his service had been extended consequent on a request made by him. But does the non-acceptance of this request make any difference in the matter of his being subject to the Military law & discipline until he is properly released & discharged ?

7. Mt. C. E. Padmanabhan learned counsel for the petnr. relied upon a passage at p. 586 of Halsbury's Laws of England, Edn. 2, Vol. 28, entitled 'Enlistment' where the learned author Bays that 'enlistment is the acceptance of an engagement in the military servioe of the Crown,& is in the nature of a contract between the person enlisted & the Crown. The foot-note says that this need not apply when there is compulsory military service. It is further pointed out that the terms upon which a person enlists cannot be altered without his consent. We have no hesitation in holding that this passage has no relevancy to the facts of the present case. First of all the passage referred to deals with enlistment, i. e.. the recruitment by joining Military personnel as ordinary soldiers & not as commissioned officers of the Crown in England. With regard to Commissioned officers, the Law is very different as will be shown later on. That it is the Indian Army Act, 1911, that is applicable even to short service commissiona & not the terms of contract as alleged by the petnr. is evident from a perusal of various sections of the Army Act. It has also to be noted that the so-called contract as contained in annexure A is only an advertisement calling for ex-Army people to rejoin the army & cannot he called a contract of service in the nature of there being an offer & an acceptance as known to the Indian Contract Act. Section 7(2), Indian Army Act, 1911, defines an Indian Commissioned officer as a person commissioned, gazetted or in pay as an officer holding a commission in the regular Army, & includes, in relation to a person subject to the Act, when serving under such conditions as may be prescribed, a person holding a commission in the Indian Air Force. According to Section 2 (1) (a), Indian Commissioned officers are subject to the provisions of the Act. It is, therefore, clear that even a short service commissioned officer, as soon as he takes up the commission, will become subject to the provisions of the Indian Army Act. Section 2, Sub-section (2) says that every person subject to the Act under Sub-section (1) Clause (a), (Indian Commissioned Officers) shall remain so subject until duly retired, discharged, cashiered, removed, or dismissed from the service. The only meaning that can be given to Sub-section (2) is that after a person has become subject to the provisions of the Act, he will remain so subject until he is duly discharged. It need hardly be stated that the provisions of the Indian Army Act, 1911, are to a very large extent modelled & founded upon the English Army Act & therefore the rules & regulations by which the Army in England are subject to can very well be usefully referred to in considering cases arising out of Indian Army Act of 1911. In parenthesis it may be stated that Act No. XLVI [46] of 1950 designated the Army Act, 1950 which came into force on 22-6-1950, though it has no direct appln. to the present case, can also be usefully looked into for the purpose of elucidation of points that arise. What is law & procedure regarding the dismissal or discharge of an officer or a soldier in England is contained inpara. 5 of chap. VIII of Manual of Military Law, p. 137. Chapter VIII deals with the Courts of Law in relation to officers and Courts-martial, and para. 5 is to the following effect :

'An officer holds his commission at the pleasure of the Sovereign, who can at any time dismiss him without assigning a reason ; no contract to the contrary unless sanctioned by statute has any legal effect.'

In para. 74 at p. 96, Military Forces of the Crown by C. M. Clode, vol. II, it is stated as follows :

'It is clear that no officer has the right to resign, and, therefore, until his resignation is accepted by the Grown, he continues amenable to all the consequences of omitting to discharge the duty of an officer under his commission.'

We find similar observations regarding the liability of members of the regular forces of the Armed Forces of the Crown at p 208 of Ansons Laws and Custom of the Constitution, vol. II, Part II, Bdn. 4. It is stated therein that an officer in the Army or Navy is appointed by the receipt of his commission; he thereupon places himself at the disposal of the Crown; he cannot resign his commission without leave, and he is liable to be discharged at pleasure. Various cases are quoted by the learned author in support of this proposition of which it will be useful to refer to Hearson V. Churchill, (1892) 2 Q. B. 144 : 61 L. J. Q. B. 569 and the Queen v. Cuming; Ex parte Hall, (1887) 19 Q. B. d. 13. In the latter case, a certain Lieutenant Hall, a Lieutenant in the Navy, serving on one of the Queen's ships in commission, having asked leave of the Admiralty to resign his commission & having been refused, left his ship, sent his commission to his captain with an announcement of his intention to retire and took a passage home in a mail steamer. On his arrival in England he was arrested by Captain Cuming, and detained as a prisoner with a view to his being tried before a Court-martial under the Naval Discipline Act. Thereupon, on an application for a writ of habeas corpus before the Court of Queen's Bench Division, Captain Cuming was called on to show cause why a writ of habeas corpus should not issue and Hall be discharged. The Court held that Lieutenant Hall could not resign his commission in the mode which he attempted and that he was rightly in custody. At p. 19 A. L. Smith J. makes the following observation :

'We are clearly of opinion that, where a commissioned officer accepts, an appointment to service in one of Her Majesty's ships in commission, and enters upon the performance of his duties, he subjects himself to the provisions of the Navy Discipline Act, and at his own will & pleasure cannot resign his appointment, and may be tried by court-martial for any of the offences specified in the Act.'

8. The case in Hearson v. Churchil, (1892) 2 Q. B. 144 : 61 L. J. Q. B. 569 is also similar where the Court of Appeal held, confirmingthe judgment of Denman J. that an engineer officer in the Royal Navy who has accepted a commission, and is borne on the books of a ship in commission, cannot resign without consent of the Lords Commissioners of the Admiralty, and that under no circumstances is a naval officer entitled to resign his commission except by permission of Her Majesty. The rule that all engagements between those in the Military Service of the Crown and the Crown are voluntary only on the part of the Crown applies as well to private soldiers as to officers : See Lea-man v. The King, (1920) 3 K. B. 663 :89 L. J. K. B. 1073. An interesting discussion on this subject is found in the Law Quarterly Review, vol. 66, October 1950 Part, in an article under the heading 'the Armed Forces of the Crown' by Zelman Cowen, where he quotes an observation of Lord Esher M. R. in Mitchell v. R., (1896) 1 Q. B. 121 . The law as laid down not only in England but also by the Australian High Court is considered in estenso. For the decision of the question before us, it is not necessary to elaborate more on this aspect except to refer to the judgment of Mc Cardie J. in Heddon v. Evans, (1919) 33 T. L. R. 642, (contains a summarised report) where the entire subject of the Military law and the supremacy of the civil Courts ia exhaustively discussed. See Military law and the supremacy of the Civil Court by O'SulIivan, introduction p. 13. In view of the above discussion, we have no hesitation in coming to the conclusion that what is applicable in England is also in force so far as the Indian Army is concerned under the Indian Army Act, 1911, and therefore the petnr, cannot, for a moment contend that he is governed solely by the terms of an alleged agreement and not by the provisions of the statute and the rules made thereunder.

9. The nest question is also interlinked with the previous one and in the earlier discussion reference has already been made to this circumstance that in England, a commissioned officer cannot leave the force without being discharged or released or his resignation accepted, even though he has tendered his resignation. Section 16, Indian Army Act, deals with discharges and is in the following terms :

'The prescribed authority may, in conformity with any rules prescribed in this behalf, discharge from the service any person subject to this Act.'

The prescribed authority is the authority prescribed by the rules under the Act. Note 2 contained at p. 148 Manual of Indian Military Law, issued by the Defence Department of the Government of India lays down the procedure for discharge :

'For authorities competent to authorise discharge see B. 13 and table annexed thereto ; the discharge of a person who is under the conditions of his enrolment, entitled to be discharged must be authorised and com-pleted with all convenient speed (B. 10) by the proper authorities (Rules 12 and 13). Until it has been so completed, the person remains subject to Military law. Any unnecessary delay in competing his discharge would, however, give him good ground for complaint.'

The Indian Army Act rules also envisage the same thing as is seen at p. 237 of the same book where B. 10 and the notes thereunder are informative. Note 2 says that until a person's discharge is completed, he remains, subject to Military law. At p. 238 in Note 5 to Rule 12 we find that when a person has been duly dismissed or discharged in the manner prescribed by the Indian Army Act and rules, he ceases to be subject to the Act and the dismissal or discharge cannot be cancelled, except with the consent of the person concerned. We have already referred to the release regulations o the Indian Army when dealing with the contents of the counter affidavit. Rule 68, Sub-clause (c) of Release Regulations, Indian Army and Women's Services, India, is to the effect that a person awaiting trial or investigation of a serious charge against him will not be released from service until the investigation and/or trial has been completed. .... .Onee asoldier has completed the terms of his engagement his discharge will not be delayed unless a serious charge is pending against him.

10. We may also refer to a judgment of Munroe J. in Alfred Beedham, In the matter of, A. I. R. 1934 Lah. 845 : 36 Cr. L. J. 737 relating to discharge. The learned Judge observes as follows :

'It remains now only to consider what was the true position on and after 10-8-1933. He (the petnr.) had clearly become entitled to his discharge, in the absence of any lawful order to the contrary and there was no such order. But, in my opinion, there was no obligation on the Military Authorities to press his discharge on him. He did not ask for it till the end of January 1934, well within three months from the commencement of his trial and if the Military authorities had discharged him without any request from him, it would have appeared that they were giving an indication of the result of the trial. It must be remembered that it was conductor Beedham's intention if permitted to do so, to remain in the service after his then current year of employment; and I can see no reason why, if his trial had resulted in his acquittal, his services should not have been obtained with his consent.'

In this case, serious charges are pending against the petnr. and therefore he cannot be released.

11. But it is argued before us that in pursuance to paras. 3 and 4 the engagement rules get forth in annexure A on 6-7-1950 the petnr. occupies the position of a reserve officer not subject to any of the rules and regulations. This argument can be summarily disposed of because in our view, unless an Army officer who is due to be discharged is released by the Army authorities, he cannot be considered as not subject to the Military law and discipline Any other decision will result in a piquantsituation; for example, if a temporary commissioned officer, the moment the term of hia service expires, runs away with the equipment that is given to him, according to the petnr. he cannot be subject to 6he Military law and discipline and cannot be arrested and produced before a court martial but the Military authorities should avail themselves of the ordinary remedies before the criminal Courts of the land. We need only refer to the situation so created to show the untenability of the contention. We had, at the outset, some doubt as to whether the judgment of Lord Goddard 0. J. reported in R. v. Wormwood Scrubbs Prison (Governor), 1948 1 ALL. E. R. 438 can be of some use to the petnr.'s contention. In that case, the King's Bench Division consisting of Lord Goddard C. J., Humphreys and Denning JJ. held that once a person is released from the Array, he cannot later on be arrested and tried by a court martial for an offence committed by him while he was in the Army and at p. 442 Lord Goddard C. J. says that the test whether an officer of the regular forces is on the active list is whether he receives pay or whether he does not. We have carefully perused the judgment of Lord Goddard C. J. and are of opinion that if at all the observations therein are helpful to the contentions on behalf of the state and do not lend any assistance to the argument put forward on behalf of the petnr. There are observations in that judgment which go to show that once the officer is relieved of his duties from the Army and does not receive any pay from the Crown, he is no longer subject to the Military law and cannot be tried by Courts Martial for offerees committed while he was on the active list and serving. If in the present case, the petnr. had been relieved of his duties on 6-7-1950, we would have no hesitation in following the authoritative pronouncement of the learned Lord Chief Justice and holding that he cannot later on be arrested and put up for trial before a Court Martial. The judgment of the learned Lord Chief Justice is interesting & instructive & is entitled to the greatest respect from us, but the point that arose for decision there is not similar to the one before us.

12. But it is contended that the Indian Army Act & the Rules made thereunder were in force prior to the declaration of India as a Sovereign Republic & that the provisions of the Act & the Rules which are repugnant to the Articles, Constn. Ind., should be deemed to have been automatically repealed by the Constitution with the result that the petnr's. detention cannot be declared to be legal. Eeliance was placed on Articles 20, 21 & 22. It is, therefore, necessary to consider the question as to how far until the enactment of Article XLVI [46] of 1950, subsequent to the inauguration of the Be.public, the provisions of the Indian Army Act & Rules have any validity & force. A brief resume of the Ordinances & rules relating to this subject would be of material help. On 23-1-1950 the Governor promulgated The Armed Forces (Miscellaneous Provisions) Ordinance, 1950. The Ordinance was intended to make additional provisions respecting the Armed Forces for ensuring the proper discharge of their duties & for the maintenance of discipline among them. Section 4, Clause (e) of the Ordinance is relevant & is to the effect that subject to the provisions of any law for the time being in force relating to the Armed Forces or to any branch thereof, the Central Govt. may, by notfn. in the official Gazette make rules prescribing the procedure to be observed at the trial of offences committed by persons belonging to the Armed Forces by any competent military, naval or air force authority. Section 5 reads thus :

'All rules, regulations, orders, directions & instructions relating to members of the Armed Forces or any branch thereof made or issued before the commencement of this Ordinance by or under the authority of the Central Govt. or of any of the Commanders-in-chief of the Army, Navy or Air Force, as the case may be, or by any other competent authority, shall, in ao far as they relate to any of the matters dealt with in this Ordinance, have effect as if they were rules made under this Ordinance.'

Though Article 33 of the Constitution gave power to the Parliament to modify the rights conferred by Part III relating to fundamental rights in their application to the forces of the Crown by making law, still unless the Parliament determines to what extent such rights can be modified, the law which stood before the conferment of the fundamental rights will apply so far as the Armed Personnel are concerned. Therefore on 25-1-1950 when the Republic came into existence, the existing law was in force. See Article 35(b). Article 372 may also be usefully referred to in this connection. It seems to us, therefore, that there is no force in the contention that after the inauguration of the Republic till the passing of Act XLVI (46) of 1960, the Indian Army Act, 1911, & the rules & orders made thereunder have no effective applicability at all. Section 123 of Act XLVI (46) of 1960 relates to the liability of an offender who ceases to be subject to the Act & it is useful to refer to Sub-sections (1) & (2). If those sections are applicable, & they are applicable after the Act has come into force, where an offence has been committed by any person when he was subject to the Act & he ceases to be so subject be may be taken into & kept in military custody & tried & punished for auch offence as if he continued to be so subject; but the period of limitation for the trial of such an offence is six months after he hag ceased to be subject to the Act. Therefore after 22-6-1960, the petnr. would be subject to the provisions of Act XLVI (46) of 1960 & for any offence committed byhim while he was so subject he can be arrested & tried.

13. For the foregoing reasons we are of opinion that until & unless the petnr. ia released by the Military Authorities he continues to be in their service, entitled to receive the pay & subject to the rules & regulations & therefore his detention for the purpose of bringing him to trial before Court Martial cannob be held to be illegal. This petn. is, therefore, dismissed.

14. Cri. Misc. Petn. No. 2479 & 8633 of 1950.--Since we have held that the detention is legal it is not necessary to express any opinion on these pebns.

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