No. 760060897 HC/GD Jai Pal Guleria and Another vs The Central Govt. and Others

Ranjit Singh, J.—An important question of law relating to holding of re-trial of a person serving in Indo Tibetan Border Police Force (for short, "ITBPF") after setting-aside an earlier trial, is raised in the present petition. In the absence of any provision permitting retrial, the question raised would deserve serious consideration. HC/GD Jai Pal Guleria has filed this writ petition for quashing Summary Security Court Force ("SFC" for short) proceedings and the sentence of dismissal imposed on him on the ground that the proceedings are without jurisdiction. The sentence has been imposed by a Court after dissolving the earlier Summary Court Force Proceedings on the ground that those were illegal. Whether this course is a legally permissible one, thus, is an issue which arises in the present writ petition.

The factual background of the case is noted hereinafter.

Having been enrolled in the year 1976 and 1986, the petitioners were posted to serve in 11th Battalion ITBPF in the year 1997. The Battalion was stationed at Ludhiana. In the year 1999, the petitioners were deputed to perform duties in Srinagar. Both the petitioners claim that they had unblemished service record of 25 and 15 years respectively.

In 1st week of May, 2000, the petitioners were detailed to perform duties at Marbal Post. On 3.5.2000, the petitioners had performed night patrolling duty from 2000 hours to 2200 hours. At 2200 hours, they were relieved by soldier deputed to perform duties at the post. On the next day, a report was lodged by one Ms. Rubina Bano, who came accompanied by villagers that she had been subjected to rape by two men wearing black uniforms. It was alleged that two men had gone to the house of the complainant lady at 10 P.M. and had committed the alleged act.

On receipt of this report, investigation by way of Court of Inquiry was ordered. The petitioners were examined as prosecution witnesses. Before even finalization of Court of Inquiry proceedings, the petitioners were placed under suspension w.e.f. 12.5.2000 on the ground that disciplinary proceedings were under contemplation against them. It is stated that the charges could not be established against the petitioners in the proceedings of Court of Inquiry. Finding of the Court of Inquiry was that it was not possible to say at that stage as to who were the Jawans of the Camp Marble, who were involved in the alleged rape of Smt. Rubina Bano. The Court of Inquiry found that there was no eye witness to this incident and Rubina Bano was not in position to recognize the person who had committed her rape. The Court of Inquiry further found that Rubina Bano and her husband had made contradictory statements in regard to the clothes worn by the persons who committed rape. As per the lady, the persons committing rape had worn black uniforms whereas her husband stated that they were in Army Uniform, which is of green colour camouflage. The finding is that the petitioners were in Khaki uniforms on the day they performed their duties.

The Court of Inquiry otherwise found that the petitioners had gone outside the Camp on the said night, when detailed for patrolling and their arms and luggage in someway matched the identification given by few witnesses and, thus, there was a strong suspicion against them for their involvement. The petitioners, still would maintain that these circumstances or other telltale events would not show that they were responsible for the act alleged. The petitioners would state that they had returned back from duty at 9.45 P.M. and had entered the premises of ITBPF by 10 P.M. and, thus, they could no way be involved in this incident. The petitioners accordingly plead that they have been made the scape goats in this case.

The petitioners have even challenged the proceedings of the Court of Inquiry on the ground that the same were held in violation of various mandatory provisions. Since the character and reputation of the petitioners was an issue before the Court of Inquiry, the inquiry was required to associate the petitioners throughout in the proceedings in terms of Rule 174 (8) of ITBPF Rules, 1994 (for short, "the Rules"). Even the petitioners were entitled to the copies of Court of Inquiry proceedings, which were not supplied to them, which in itself is pleaded as a ground to set-aside the entire proceedings.

Plea also is that the police had investigated the case as formal FIR was registered but did not find any merit in the allegations made against the petitioners. The police had then dropped the proceedings without filing any challan. However, the ITBPF authorities ignored all these aspects and assumed jurisdiction even without following the procedure for taking over this case for trial by Forums under the ITBPF Act and issued directions for preparing the record of evidence. The petitioners would impugn this action on the ground that this case was not claimed for trial in terms of Rule 41 of the Rules and direction to prepare the record of evidence was also issued without following the procedure for hearing the charge as provided under Rules 44 and 45 of the Rules. The petitioners would allege that the provisions of Rules 44 and 45 of the Rules, providing for hearing of the charge, are mandatory in nature and noncompliance thereof would go to the root of the matter and would effect the jurisdiction of the trial held subsequently.

Seventeen witnesses were examined at the record of evidence. Even Rubina Bano appeared as PW7 and stated about her rape by two persons, who were carrying pistol and A.K. 47 rifle as well as one torch. She, however, did not attribute this act on to the petitioners. Still, the authorities directed trial of the petitioners by Summary Force Court, which was held on 9.9.2000 on three counts, two out of which were u/s 43 of the ITBPF Act (for short, "the Act") and one u/s 41 of the Act thereof.

The first charge against petitioner No. 1 was that he did not perform the parameter patrol duty in accordance with the instructions and had not kept communication with the Sentries, which was in violation of good order and discipline of the force. In the second charge, it is alleged that petitioner No. 1 had gone to the house of Mohammad Rubina Bano without any direction or order of the superior authorities. The third charge alleged against him was for making a false statement on oath. The allegations were that he gave a false statement under oath at the Court of Inquiry to the effect that he had attended the identification parade held on 3.5.2000 under the orders of the Company Commander whereas the said statement was false. Identical charges were preferred against petitioner No. 2 as well.

During the trial, the petitioners pleaded guilty to first and third charges and they were imposed the punishment of reduction to the rank of Constables from that of Head Constables. In fact, both the petitioners had offered a plea of guilty, which was so recorded on their behalf. They were found so guilty and were sentenced to be reduced to rank. Their suspension was revoked. Copy of this order is on record as Annexure P-4.

The petitioners would allege that copies of the SFC proceedings were never supplied to them. However, they were surprised to receive another order dated 31.10.2000, vide which SFC proceedings held on 9.9.2000 were set-aside, on being annulled on the ground that these are illegal and de novo trial of the petitioners was ordered. The order in this regard dated 31.10.2000 is annexed with the petition as Annexure P-5. Since the re-trial of the petitioners has been ordered vide Annexure P-5 after annulling the proceedings of earlier SFC validly held, it would be appropriate to note the exact reason for which this action was taken and re-trial of the petitioners was ordered. The operative part of the order, Annexure P-5, reads as under:-

In terms of Dte. General, ITR Police Order No. I-45011/197/2K/JAG- 330 dated 26.9.2000 the proceedings held at Tac HQ 11 Bn on 9.9.2000 against No. 760060897 HC/GC (U/S) Jaipal Guleria and No. 867030422 HC/GD (U/S) Jag-dish Meena of 11th Bn have been declared annulled being illegal.

Consequent upon annulment of SFC proceedings held on 9.9.2000 at Tac HQ, 11th Bn against No. 760060897 HC/GC (U/S) Jaipal Guleria and No. 867030422 HC/GD (U/S) Jagdish Meena of 11th Bn de-novo SFC trial will be held.

Since the de-novo trial against above individuals is being contemplated, 11th Bn office order No. 11th Bn/ITBP/ECII/Suspension/2000-172- 79 dated 21.9.2k is cancelled. Suspension of both the Uos No. No. 760060897 HC/GC (U/S) Jaipal Guleria and No. 867030422 HC/GD (U/S) Jagdish Meena is hereby revoked w.e.f. 9.9.2000 i.e. date of earlier revoking and suspension period of both the persons w.e.f. 12.5.2K to 8.89.2K is treated as duty for all purposes.

Sd/- Commandant Xith Bn. ITB. Police

Consequent to passing of order, Annexure P-5, the petitioners were once again subjected to trial by SFC, which was held on 3.11.2000. They were found guilty on 4.11.2000 and this time, were imposed the sentence of dismissal from service. Copy of the order in this regard is at Annexure P-6. This order clearly recites that a de novo SFC trial held at 11th Battalion to try the petitioners for two charges under Sections 43 and one u/s 41 of the Act had found them guilty of the charges and sentenced them to suffer punishment for dismissal from service. The petitioners have impugned this action of the respondents in the present writ petition. Plea is that these SFC proceedings are illegal and without any authority of law. It is also stated that plea of guilty on behalf of the petitioners was recorded by the Commandant on his own whereas they had never pleaded guilty. The petitioners would even urge that if it is assumed that they offered a plea of guilty, it was incumbent upon the Court to change the said plea to that of not guilty in view of the provisions contained in the Act and the Rules governing the procedure. Reference in this regard is made to Rules 143 and 144 of the Rules, which provide that where accused person pleads guilty, then before recording said plea as a finding of the Court, the Court has to ascertain that the accused understands the nature of charges and to advice him to withdraw the plea, if it appears from the record or otherwise that the accused ought to plead not guilty.

As per the petitioners, the record of the proceedings would show that they did not understand the effect of plea of guilty. The Court in terms of these rules is under obligation to alter the plea of guilty to that of not guilty if it appeared from the record that he ought to have pleaded not guilty.

Various other pleas have also been raised to challenge the proceedings of SFC. It is even alleged that the trial proceedings against the petitioners were actuated by malice and both the petitioners have been wrongly and illegally punished, which would amount to gross abuse and misuse of powers vested in the authorities. They would also plead that the punishment imposed is harsh and strikingly disproportionate to the nature of the offences alleged against them.

The writ petition came up for hearing on 7.2.2001. Notice of motion was issued. The petitioners amended the Criminal Writ Petition and an application in this regard was allowed on 5.12.2001. A reply on behalf of Union of India was filed and taken on record on 23.5.2001. The writ petition finally was admitted on 4.7.2002. In this background, the said writ petition has now come up for hearing.

In its reply, Union of India has strongly opposed the plea raised by the petitioners. As per the reply, the writ petition, as framed, is not maintainable. It is also pleaded that the present writ petition can not be entertained by this Court for want of territorial jurisdiction. The cause of action arose in the State of Jammu and Kashmir, where also SFC was held and, thus, no cause of action had arisen under the territorial jurisdiction of this Court.

While filing replying on merits, the petitioners admit that they had performed duties on 3.5.2000 and the said finding of the Court of Inquiry is not contested. However, the right of the authorities to hold a disciplinary proceedings, even without Court of Inquiry, or even after the finding of Court of Inquiry, is claimed by the respondents as a matter of their statutory right. Otherwise it is conceded that the petitioners have been dismissed, not for committing the offence of rape as no charge of rape was ever framed. Otherwise, the averment that the petitioners had performed their duties properly and strictly in terms of the instructions is disputed. Other averments in violation of the provisions of the Act and the Rules, as pleaded in the writ petition, are seriously contested. As per the reply, the petitioners have not been punished on the basis of finding of Court of Inquiry and they have been imposed this punishment on the basis of their trial by SFC. As per the reply, the copies of the Court of Inquiry proceedings were supplied to the petitioners on 13.6.2000 and the plea of non-supply of copy of court of inquiry proceedings is termed as misleading and misrepresentation on the part of the petitioners. The plea of the petitioners that case was not claimed for trial under the provisions of the Act is disputed and it is urged that the ITBPF authorities had never lodged any FIR against the petitioners and hence, their plea that they were put to trial without claiming the case from the civil authorities is misconceived and misplaced.

The reply filed by the respondents would show that the petitioners had not pleaded guilty to all the three charges framed against them. In fact, the petitioners had pleaded guilty to two charges preferred against them u/s 43 of the Act but not to the charge that they had entered the house of Smt. Rubina Bano As per the reply, however, the petitioners were found guilty of the third charge as well and it was not for committing the act of rape but only of having entered the house without authority. It is otherwise stated that the SFC held on 3rd and 4th November, 2000 had followed the laid down procedure and had accepted the plea of guilty offered by the petitioners on Charge Nos. 1 and 3. The petitioners pleaded not guilty to charge No. 2 and thereafter relevant procedure on plea of not guilty was followed. It is accordingly urged that the SFC proceedings are perfectly legal and valid. Other averments made in the petition are also disputed.

Though the petitioners have challenged the proceedings of SFC on number of counts but, in my view, the main issue, which would require consideration is whether the respondent-authorities were justified in annulling the earlier SFC proceedings and thereafter holding a de novo trial of the petitioners for the same very allegations, whereby the petitioners were imposed the enhanced sentence of dismissal from service earlier sentence being reduction to rank. The issue that would require consideration is whether this course would be permissible under law and even if permissible, would it be possible for the second trial to impose a punishment more than what was awarded to the petitioners by the earlier SFC.

In order to appreciate the legal position, it is considered appropriate to peruse the order, whereby the earlier SFC proceedings were annulled. Even the proceedings of the earlier SFC were summoned to ascertain the cause and reason for which these proceedings were annulled. It then transpired that the earlier SFC proceedings, which had been annulled, were already destroyed. In this regard, the counsel for respondent-Union of India prayed for time to file an affidavit. The affidavit accordingly was filed on 21.1.2012. Subsequently, this petition was dismissed for non-prosecution, when both the counsel failed to appear when the petition was called for hearing. This petition has been restored and is being finally disposed of.

Though the earlier SFC proceedings have been annulled but the reasons for doing so are really not forthcoming. It could be made out during the course of arguments that the earlier proceedings were annulled on the ground that these were illegal. These proceedings were termed illegal on the ground that the petitioners had pleaded guilty to the 1st and the 3rd charges but not guilty to 2nd charge whereby allegations were made that they had entered into the house of Smt. Rubina Bano. The SFC had recorded the finding of guilty on 1st and 3rd charge, but did not record any finding on the 2nd charge and imposed the sentence of reducing the petitioners to ranks of Constables. The plea by counsel for Union of India is that these proceedings were illegal as SFC was first required to hold proceedings on plea of not guilty on the 2nd charge and pend the proceedings on charges 1st and 3rd, to which the petitioners had pleaded guilty. The SFC was required to record evidence on the 2nd charge and bring the proceedings on the said charge to the stage of finding. SFC was thereafter required to take up the proceedings on charges 1st, 2nd and 3rd together and then impose an adequate sentence on to the petitioners. The procedure as adopted by the SFC in not recording any finding on charge 2nd and holding the proceedings on charges 1st and 3rd and sentencing the petitioners is termed as illegal. This is advanced as a reason to annul the said proceedings.

When any accused person pleads guilty to some of the charges and offers a plea of not guilty on one or more charges preferred in the same charge sheet, then Rule 144 of the Rules will regulate the proceedings. This rule is as under:-

Procedure after plea of "Guilty".-(1) Upon the record of the plea of "Guilty" if there are other charges in the same charge-sheet to which the plea is "Not Guilty", the trial shall first proceed with respect to those other charges, and, after the finding on those charges, shall proceed with the charges on which a plea of "Guilty" has been entered, but if there are alternative charges, the Court may either proceed with respect to all the charges as if the accused had not pleaded "Guilty" to any charge, or may, instead of trying him, record a finding of "Guilty" upon any one of the alternative charges to which he had pleaded "Guilty" and finding of "Not Guilty" upon all the other alternative charges which precede such charge.

(2)(a) After the record of the plea of "Guilty" on a charge (if the trial does not proceed on any other charges) the Court shall read the record or abstract of evidence and annex it to the proceedings, or if there is no such record, or abstract shall take and record sufficient evidence to enable it, to determine the sentence, and the reviewing officer to know all the circumstances connected with the offence.

(b) The evidence shall be taken in like manner as is directed by these rules in the case of a plea of "Not Guilty".

(3) The accused may, after such evidence has been taken or as the case may be, the record or abstract of evidence has been read, address the Court with reference to the charge and in mitigation of punishment and may call witnesses as to his character.

(4)(a) If from the statement of the accused or from the record of evidence or otherwise it appears to the Court that the accused did not understand the effect of his plea of "Guilty", the Court shall alter the record and enter a plea of "Not Guilty", and proceed with the trial accordingly.

(b) Any alternative charges withdrawn under sub-rule (1) shall be reinstated in the charge-sheet and the trial shall take place as if they had never been withdrawn.

(5) If a plea of "Guilty" is recorded on some charges and the trial proceeds with respect to other charges in the same charge-sheet, the proceedings under sub-rules (2) and (3) shall take place after the findings on the other charges in the same charge-sheet are recorded.

(6) When the accused states anything in mitigation of punishment which in the opinion of the Court requires to be proved, and would if proved, affect the amount of punishment, the Court may permit the accused to call witnesses to prove the same.

No doubt, the procedure which the SFC was required to follow, when the petitioners had offered a plea of not guilty to 2nd charge was to hold their trial on this charge on the plea of not guilty, record evidence and then record a finding on charge on the basis of evidence etc. Thereafter all the three charges were required to be taken together as plea of guilty offered on charges 1st and 3rd was required to be recorded as finding of the Court in terms of the Rule position reproduced above. Then the petitioners could be imposed the sentence. The procedure, which was followed, in not recording any finding on the second charge was in violation of Rule 144 of the Rules.

It appears that one aspect the authorities have completed missed is that that finding of the SFC on charges 1st and 3rd could validly be recorded as guilty on the said plea having been so offered by the petitioners on these charges. If there was any defect in the proceedings, it was qua charge No. 2 and the sentence imposed in this case was also for charges 1st and 3rd. Apparently there was no finding recorded on second charge. The violation of the procedure, if any, was by the Court. Should the petitioners suffer for fault of the Court. If the authorities find those proceedings to be illegal, obviously those could be set-aside or annulled. Indeed, the proceedings of said S.F.C. were annulled. The authorities did not consider if the proceedings were to be annulled on 2nd charge alone. This charge could be taken to have dropped by the S.F.C. In any case, this is not the issue now before this Court. No one has challenged the order of annulment of first SFC.

Be that as it may, if the entire proceedings have been annulled, the question would arise whether the petitioners could be put to de novo trial. The respondents would plead that on annulment of the proceedings, earlier proceedings were no proceedings in the eyes of law and hence, another proceedings by SFC could be so held against the petitioners. The counsel for the petitioners, however, would strongly contest this position and would urge that even after annulment of the earlier proceedings, it would not be legally permissible for the respondents to hold de novo trial of the petitioners, which would be nothing but then re-trial. Plea is that there is no provision made in the Act permitting re-trial of a person subject to the Act.

Let us now examine if retrial or de novo trial by S.F.C. is permissible after annulment of the earlier proceedings. Power to annul the proceedings is provided u/s 132 of the Act, which is as under:-

Annulment of proceedings. - The Central Government, the Director-General, or any prescribed officer may annul the proceedings of any Force Court on the ground that they are illegal or unjust.

(emphasis mine).

Thus, there are two grounds given in Section 132, on which the proceedings of Force Courts can be annulled and these are when they are found to be illegal or unjust. Lack or want of jurisdiction clearly is not the ground provided for annulment of the proceedings. Illegality as urged in this case to annul the proceedings is on the ground that these were held and conducted in violation of the procedure prescribed in the Rules. Thus, it is not for want of any jurisdiction that these proceedings were annulled. The question, thus, would arise if having done so, the respondents were justified in directing de novo trial of the petitioners for the same allegations and then to impose sentence of dismissal, which was not even imposed by the earlier SFC. The course adopted by the respondents apparently is in violation of the provisions of the Act and the Rules. Rather, there is a specific bar for holding a re- trial of a person subject to the Act and in this regard, reference can be made to the provisions of Section 87 of the Act, which prohibits second trial. Section 87 read as under:-

Prohibition of second trial. -

(1) When any person, subject to this Act has been acquitted or convicted of an offence by a Force Court or by a criminal court or has been dealt with u/s 56 of u/s 58, he shall not be liable to be tried again for the same offence by a Force Court or dealt with under the said sections.

(2) When any person, subject to this Act, has been acquitted or convicted of an offence by a Force Court or has been dealt with u/s 56 of section 58, he shall not be liable to be tried again by a criminal court for the same offence or on the same facts.

It may be of relevance to notice here that the provisions of the Act are almost borrowed from the Army Act, 1950 and almost all the provisions are copied verbatim with necessary variation due to change in nomenclature relevant for the Force. Like S.F.C. under the Act is known as Summary Court Martial (SCM) under the Army Act. Similar provisions are made even in the Boarder Security Force Act, where also the person subject to the said Act could be tried by the Forums like Security Force Court. The provisions to annul the proceedings and the prohibition of the trial is also made under the provisions of Army Act as well as the BSF Act. Army Act is the oldest legislation in the field and the provisions in the BSF Act or the ITBPF Act have basically been taken from the provisions of the Army Act. In this background, the interpretation of such provisions under the Army Act or the BSF Act may act as a relevant guide in the present case as well.

Madhya Pradesh High Court in the case of Surinder Singh Vs. The Union of India (UOI) and Others, had dealt with somewhat similar issue, when it was considered the power of the authorities to order trial by General Court Martial, after Setting-aside the trial of that petitioner held by Summary Court Martial (which is akin to SFC). It is observed that re-trial by General Court Martial, when the person has been held guilty by Summary Court Martial for the same offence after setting-aside the said proceedings of Summary Court Martial on technical grounds would be illegal in terms of the provisions of Section 121 of the Army Act and Article 20(2) of the Constitution of India. In Surinder Singh''s case (supra), the trial by Summary Court Martial of the petitioner therein was held and the petitioner pleaded guilty to the charge, who was convicted and sentenced to undergo rigorous imprisonment for six months. While reviewing the Summary Court Martial proceedings, the competent authority set-aside the proceedings and the communication was sent to the petitioner therein for holding his trial by General Court Martial. The Division Bench of Madhya Pradesh High Court in the facts of the said case, held as under:-

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 by 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:-

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.

Article 20(2) of the Constitution of India is one of the prized and pious fundamental right. It lays down that no person can be prosecuted and punished for the same offence more than once. This guarantee provided by Constitution as fundamental right is based on principle of ''autre fois convict'' or principle of double jeopardy. The roots of this principle are to be found on the well established rule of Common Law of England where once a person has been convicted for an offence by a Court of competent jurisdiction, then the conviction is a bar to all further criminal proceedings for the same offence. The Court has also held that the second trial of the petitioner would be prohibited u/s 121 of the Army Act and under Article 20(2) of the Constitution of India. Similar is the provision under the Act, which bars second trial of the person subject to the Act. In this regard, reference may be made to Section 87 of the Act (already reproduced), which is exactly parametria to the provisions of Section 121 of the Army Act.

Again a Division Bench of the Delhi High Court had the occasion to deal with the provisions of re-trial in respect of a person subject to the jurisdiction of Border Security Force Act. In the case of Nirmal Lakra Vs. Union of India (UOI) and Others, the Division Bench has held that the earlier trial whereby the petitioner therein was punished was set-aside and the same punishment awarded under the second trial would be vitiated in law as in the absence of any provision for re-trial, the same could not be sustained. Section 75 of the BSF Act, (which is parametria to Section 121 of the Army Act and Section 87 of the Act) was considered by the Division Bench of Delhi High Court in this case and it is held that the said provision read with Article 20 of the Constitution would bar the second trial. In this case, the earlier trial of the petitioners was set-aside on the ground that Rule 45 of the BSF Rules, which related to preliminary hearing of the charge against an enrolled person was not complied with. The High Court of Delhi relied upon the ratio of law laid down by Madhya Pradesh High Court in Surinder Singh''s case (supra) and has held that the plea that the second trial in the afore- mentioned situation was not barred can not be accepted.

It can be noticed that in both these cases the second trial or re-trial was held after setting-aside of the earlier trial primarily on the ground that the earlier proceedings were illegal on one count or the other. In both the cases, the earlier proceedings have not been annulled. Would this fact make any difference, is a question, which may require consideration. In my view, this in itself may not make any difference. Holding a re-trial is an issue which can not be taken lightly and retrial can be held only when there is an express provision made in this regard in the statute. Concededly, no provision is made in any of these enactments, which would authorize the authorities to hold retrial or second trial. Rather, a second trial is clearly prohibited by a specific provision made in this regard in all these enactments, be it an Army Act, BSF Act, ITBPF Act or some such similar enactments which have made provision for trial by such like Forums.

As a principle of law, re-trial of a person may be possible where earlier trial held is without jurisdiction and is set-aside on that count. It is, thus, possible to say that earlier trial was no trial in the eyes of law and hence, the 2nd trial or re-trial may be permissible under such, circumstances. That would not be the position when the earlier trial is either set-aside or annulled on the ground of any illegality in procedure or on the ground that it is unjust in any manner. It will be rather unfair to say that the earlier trial, as held, in respect of any accused person is unjust to him and, therefore, is being set aside but still he is to be subjected to a re-trial. Can a person be made to suffer the effect of unjustness in this manner. It will certainly be highly unfair and unreasonable, besides being unjust. That is why these legislations have made a provision for prohibiting the second trial. Above all, there is a Constitutional mandate in the form of Article 20(2) of the Constitution, which prohibits the second trial or retrial etc.

The issue in the case of Surinder Singh (supra) and Nirmal Lakra (supra) was also relating to the illegality of the earlier trial and it has been viewed that the re-trial or second trial would be impermissible if the earlier trial had been set-aside on the ground of illegality. In the present case also, the plea is that the earlier proceedings of SFC were annulled on the ground of it being illegal and this is advanced as a justification to hold the re-trial of the petitioner. Whether the proceedings are set-aside on the ground of these being illegal or such proceedings are annulled on that count, in my view, would not make any difference. The effect would remain the same that the earlier proceedings are being set-aside on the ground of these were illegal and that being the position, re-trial would be impermissible.

Let us view this position from another angle. Even the petitioners could have challenge the proceedings of SFC on the ground that these are illegal or unjust as having been held in violation of the procedure laid down in the rules. Could the respondents then annul these proceedings and direct retrial of the petitioners. If not, then suo-motu exercise of these powers by the respondents may not make any different so far as the effect of such order of annulment is concerned.

The counsel appearing for Union of India did make a desperate attempt to save the proceedings and in support of his case, made reference to the case of Manipur Administration Vs. Thokchom, Bira Singh, . The issue in this case was not regarding retrial for the same offences. In this case, one Bir Singh was prosecuted for offences under Sections 114/149/332/342 and Section 307 IPC etc. He was convicted for the said offences. Prior thereto, he was acquitted of offence u/s 188 IPC in connection with his participation as member of the same crowd for which he was charged and convicted for offences under Sections 307 IPC etc. His plea in prosecution u/s 188 IPC was that he was not present at the scene. During his trial for these offences, for which he was convicted under Sections 307 IPC etc., Bir Singh pleaded that his trial was barred u/s 403 Cr.P.C. (now 300 Cr.P.C.). The Session Court held that terms of the Sections were not satisfied and convicted Bir Singh for offences under Sections 337, 323 and 440 IPC. In this background, the issue was raised in the judgment under consideration. While considering this plea, the Court has considered the rule of estoppel, which does not prevent trial of an offence as does principle of autre fois acquit. It is held that it only preclude the evidence being led to prove fact as regard which evidence has already been led and specific finding recorded at an earlier criminal trial. The rule of issue estoppel is not the same as the plea of double jeopardy or autre fois acquit. It is further observed that Section 403 Cr.P.C. (now 300 Cr.P.C.) does not preclude the applicability of this Rule of issue estoppel. The rule being one, which is in accord with sound principle and supported by authority in the case of Pritam Singh and Another Vs. The State of Punjab, was adopted in this case. This being the issue of law considered in this case, one would wonder how this case will have any applicability to the facts of the case in hand. Bir Singh''s case (supra) was not a case of retrial for same offence. Incidentally Bir Singh was acquitted on this count, which was upheld in the judgment relied upon and referred to by the counsel for the respondents.

Section 87 of the Act which is parametria to Section 121 of the Army Act makes identical provisions, specifically prohibiting second trial. Section 121 provides that when any person subject to the Act has been acquitted or convicted of an offence by Court Martial or by criminal Court or has been dealt with under any of the Sections 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. Similar are the provisions u/s 87 (already reproduced above). Rule 76 of the Rules, which though is worded differently than Rule 53 of the Army Rules but makes an enabling provision for the accused person to raise a plea in bar of trial on the ground that the trial is barred under Sections 87 and 88 of the Act. Section 87 prohibits second trial whereas Section 88 lays down limitation for trial. Thus, where a person subject to the Act is previously convicted or acquitted or is dealt with u/s 56 or 58, then he can raise a plea of bar of trial under Rule 76 of the Rules. Besides, there are other grounds also on which the plea of bar of the trial can be raised.

In some of the cases, it was viewed that finding of a General Court Martial or any form of Court Martials, which requires confirmation, if not confirmed is of no validity. It was viewed in such cases, where proceedings are not confirmed that the accused has neither been acquitted nor convicted and may legally be tried again. This was being viewed on the basis of notes under the Sections of the Army Act. In the notes, it is clearly provided that re-trial should rarely be resorted to and only when the needs of discipline and justice demand that an offender shall not escape punishment on account of legal technicalities. Re-trial is not to be ordered, unless the Deputy JAG of the Command has been consulted and the sanction of the superior authority is obtained. Otherwise, it is viewed that it is a general principle of law that it does not permit a man to be tried twice in respect of the same offence. The application of this rule may not always be easy. Where same incident or set of incidents give rise to two trials, the test of whether the offence is the same would appear to be like this - could the accused have been lawfully convicted at the first trial upon the charge sheet then before the Court of the offence charged at the second trial. If so, the second trial is illegal and void. Finally, it is also noticed that where even retrial on the same charge is allowed legally, it is not usual to impose more severe punishment than that awarded on the first trial. Where it is so done, the confirming authority should exercise its power of mitigation if the grater punishment has been awarded in the second trial.

Reference here can be made to the case of Subedar Surat Singh Vs. The Chief Engineer Projects (Beacon), where the Court has held that superior authority can not order retrial by another General Court Martial. While referring to the powers of the confirming authority under the Army Act and after making reference to Section 121, which prohibits second trial, the Court in this case has observed as under:-

The powers of the confirming authority being limited, as stated above, it cannot go beyond that and direct retrial of the accused specially in the absence of a provision for retrial like the one contained in Sees. 423(1)(A) and 376(b) of the Code of Criminal Procedure. It is true that in India unlike in England where the acquittal by the Court martial is conclusive and requires no confirmation, every finding of a general Court martial whether of acquittal or of guilty cannot be regarded as valid unless it is confirmed by the competent authority but the legislature could not have reasonably intended that an officer convening a general Court martial can go on dissolving such Courts and reconstituting them ad infinitum until he obtains a verdict or a finding of his own liking. That would not only be against public policy and the ancient maxim "nemo debet bis vexari pro una et eadem causa" (no person should be twice disturbed for the same cause) but would also reduce the provisions of the Act to a mockery and given an appearance of mala fides.

That being the parameters, obviously, in the present case second trial held of the petitioners would be without jurisdiction and can not be sustained. There are precedents in this regard, which would clearly support the finding that the second trial or retrial of the petitioners in the facts and circumstances of the case after annulling the previous trial would be without jurisdiction. I need not therefore, go into the other submissions advanced before me and would set-aside the re-trial proceedings on the ground that the said second trial as held is without jurisdiction.

The proceedings as well as the punishment imposed on the petitioners are accordingly set-aside.

The question now requiring consideration is as to the effect of setting- aside of these proceedings. The earlier proceedings, which have been annulled by the respondents on the ground of being illegal would also not get revived by setting-aside of the proceedings held on re-trial. The necessary consequence of this would be that the petitioners may have to be relieved of the consequences of the punishment.

The petitioners, who have pleaded guilty to two charges levelled against them out of total three and were found guilty on that count, thus, would escape without any punishment. The petitioners have remained out of service ever since they were dismissed in the year 2000. Taking them back in service at this stage, would not be conducive to the service as they have remained away from the disciplined Force for number of years. Accordingly, while Setting-aside the proceedings, I am not inclined to allow the consequential benefits of reinstatement and other consequences that may follow on account of setting-aside of the proceedings. It would be appropriate to direct that both the petitioners be deemed to have been discharged from the date they were dismissed from service and that seems to be the fair manner in dealing with the delinquents who have committed a serious misconduct. Incidentally, there was a strong suspicion against the petitioners for having committed an offence of rape, for which they could not be tried due to lack of sufficient evidence. They, however, were charged for having entered the house of a lady but the proceedings are being set-aside on the ground that second trial is without jurisdiction. The petition is accordingly allowed. The trial proceedings and the punishment imposed on the petitioners are set-aside. However, the petitioners shall be deemed to have been discharged from service w.e.f. the date of their dismissal i.e. 4.11.2000. There shall, however, be no order as to costs.