Sewa Ram Nagial vs Union of India (UOI) and Others

I.K. Kotwal, J.—By virtue of this writ petition the petitioner challenges an order of a General Court Martial, for short G. C. M., convicting

him u/s 63 of the Army Act and Section 3(i)(c) of the Indian Official Secrets Act, 1923, for short, Official Secrets Act, read with Section 69 of the

Army Act, and cashiering him and sentencing him to seven years' rigorous imprisonment. Briefly stated, the facts leading up to the filing of the writ

petition are as follows:

The petitioner as his case shows, was posted as General Staff Officer, 3(Intelligence) at XVI Corps Head Quarters, when on 14-9-1975, he

was directed to go to Delhi to clear some doubts about him, which had arisen in the mind of the officer, who was interrogating GNR (GD) Aya

Singh of 253 Medium Regiment. He reached Delhi on the following day and reported at Raj Rifles Centre, where he was immediately taken into

custody. Later on, he was according to him, charged u/s 63 of the Army Act and Section 3(i)(c) of the Official Secrets Act read with Section 69

of the Army Act, and was punished by the G. 0. C, Northern Command, respondent No. 3 herein, and demoted to the rank of Lieutenant, by his

order dt. 18-3-1976. The higher officers not being satisfied with the quantum of punishment, a fresh charge-sheet under the aforesaid sections,

which was based upon the same facts, was served upon him. After recording the summary of evidence, he was arraigned before a G. C. M. to

stand his trial for the aforesaid offences. He objected to the constitution of the G. C. M., but his objection was not recorded by it. He also

objected to its jurisdiction to try him for the aforesaid offences, but this objection too was overruled by the G. C. M., which eventually found him

guilty and convicted and sentenced him as already indicated. In the premises, he has attacked the order of the Court Martial on the grounds: firstly,

that in the absence of a complaint by a competent person, the trial was contrary to the provisions of Section 13(3) of the Official Secrets Act;

secondly, that the offence with which he was charged not being a civil offence as defined by Section 3(ii) of the Army Act, the G. C. M. had no

jurisdiction to try him; thirdly, that he having been already punished by respondent No. 3 and demoted to the rank of a Lieutenant, his subsequent

trial by the G. CM. was contrary to the provisions of Article 20(2) of the Constitution; fourthly, that the finding of the G. C. M. was based upon no

evidence, as the only evidence relied upon by it was the uncorroborated testimony of the two accomplices, namely, GNRs Aya Singh and Sarwan

Dass of 253 Medium Regiment, and his own confessional statement which was procured by torturing him; fifthly, that he was neither allowed to

prepare his defence nor allowed to extamine as a defence witness one Bachno Devi, nor was he allowed to engage a defence counsel of his choice

duririg the course of his trial which constituted infraction of Article 22(1) of the Constitution and Rules 33 and 34 of the Army Rules; sixthly, that

the Staff Officer of the G. O. C. 39 Inf. Division had no power to convene its G. C. M., which was constituted in clear violation of Section 109 of

the Army Act and Rules 37, 39 (e), 40 and 197-A of the Army Rules and an objection taken by him in that behalf was wrongly overruled by the

G. C. M.; seventhly, that the summary of evidence was recorded in clear violation of Rule 23 of the Army Rules, in that, it was recorded at his

back without affording him any opportunity to cross-examine the witnesses; eighthly, that his trial was conducted without observing the rules of

natural justice; and ninthly, that the two accomplices Aya Singh and Sarwan Dass and other superior and Staff Officers of G. O. C. 39 Inf.

Division, including the members of the G. C. M, bore enmity towards him and an objection taken by him in that behalf was not even recorded by

the G. C. M.

The stand taken by the respondents, however, is that Section 13(3) of the Official Secrets Act has no application to trials by Courts Martial. It

applies to trials by ordinary criminal courts only Offence u/s 3(1)(c) of the Official Secrets Act, with which the petitioner was charged, is a civil

offence within the meaning of Section 3(i) of the Army Act. The question of double jeopardy did not arise, because the petitioner was not reduced

to his substantive rank of Lieutenant by way of any punishment at the conclusion of his trial for any offence, but as a consequence of Army

Instruction SAI l/S/74, which requires an Army Officer to vacate his acting rank, who fails to perform the duties of his appointment for twenty-one

days due to his arrest. It was not a case of ""no evidence"". There was ample evidence to sustained the finding of guilty recorded by the G. C. M.

GNRs Aya Singh and Sarwan Dass could not, be said to be either approvers or accomplices and their evidence was amply corroborated by other

evidence, including the petitioner's confessional statement, which was made by him voluntarily without any torture, inducement, threat or promise.

Both before and after the commencement of his trial, the petitioner was afforded an opportunity to engage a counsel of his choice to defend him.

Besides, he was also defended by an Army Officer, who had practised as an Advocate before joining the army. In the beginning, the petitioner

was defended by a team of lawyers from Delhi, who for reasons not known to the respondents, had abandoned his defence at a later stage of the

trial. Thereafter also, the petitioner was given a number of opportunities to engage another counsel of his choice, but he failed to do so.

Nevertheless, he was defended by a defending officer throughout his trial. He had cross examined at length all the witnesses examined by the

prosecution and was also afforded adequate opportunity to produce his defence. He never wanted to examine Bachno Devi as a defence witness,

but wanted her to be examined as a court witness, which the G. C. M. did not permit. The G. C. M. was convened by the G. O. C. 39 Inf.

Division, who was fully competent to do so. It was not convened by his Staff Officer, as alleged by the petitioner. The Staff Officer had merely

signed the order convening the G. C. M. on behalf of the G. O. C. Neither GNRs Aya Singh and Sarwan Dass, nor for that matter, any other

officer or member of the G. C. M. bore any ill will towards the petitioner. No member of the G. C. M. was disqualified from acting as such, nor

was any such objection taken by the petitioner, despite an opportunity being given to him. Neither the rules of natural justice, nor those framed

under the Army Act were in any manner violated nor was there any infraction of the Army Act.

The first two grounds raised in the Writ petition are indeed inter-related and may be taken up for consideration together. Precisely speaking the

contention raised is threefold. Firstly, it was urged that filing of a complaint in terms of Sub-section (3) of Section 13 of the Official Secrets Act

being a part of the offence itself, no offence could be said to have been committed without such a complaint. Secondly, it was argued that before

an offence may be said to be a civil offence as defined by Section 3(ii) of the Army Act, it should be triable by an ordinary criminal court in terms

of Clause (viii), and not by a court specially empowered to try it. Thirdly, it was contended that even if a proper complaint under Sub-section (3) is

not required to constitute an offence u/s 3(1)(c) of the Official Secrets Act, still a Court Martial too shall have no jurisdiction to try the offence in

the absence of such a complaint. A court competent to try an offence under the Official Secrets Act requiring a special authorisation in that behalf

in terms of Sub-section (1) of Section 13 of the said Act, could not be said to be an ordinary criminal court. No complaint in terms of Sub-section

(3) of Section 13 having been made before the G. C. M. it had no jurisdiction to try him for the said offence, and nor could the petitioner be said

to have committed a civil offence as meant by Section 69 of the Army Act.

Section 69 of the Army Act provides that any person who is subject to the Army Act and who is charged with an offence, shall be tried by a

Court Martial. This jurisdiction is vested in the Court Martial by virtue of the legal fiction created by Section 69 itself that such a person committing

even a civil offence shall be deemed to be guilty of an offence against the Army Act itself. Once, therefore, it is shown that a person subject to the

Army Act has committed a civil offence, the Court Martial shall at once acquire jurisdiction to try him for that offence also, as if he had committed

an offence created by the Army Act itself, which in the absence of Section 69, the Court Martial could not have possibly tried. The emphasis in

Section 69 is thus clearly an ""offence"" and not. on the mode of its trial. ""Civil Offence"" is defined by Section 3(ii) to mean as offence which is triable

by a criminal court, and ""criminal court"" is defined by Clause (viii) to mean a court of ordinary criminal justice in any part of India. That a complaint

by a person authorised to do so under any provision of law is not a necessary ingredient of the substantive offence, but it clearly lies in the realm of

procedure prescribed for the trial of the offence, is no more res Integra: In Kapur Chand Pokhraj Vs. The State of Bombay, the law on the point

was laid down by their Lordships in these words ""....There is an essential distinction between an offence and the prosecution for an offence. The

former forms part of the substantive law and the latter of procedural law. An offence is an aggregate of acts or omissions punishable by law while

prosecution signifies the procedure for obtaining an adjudication of Court in respect of such acts or omissions. Sanction or prior approval of an

authority is made a condition precedent to prosecute in regard to specified offences. Prosecution without the requisite sanction makes the entire

proceeding ab initio void. It is intended to be a safeguard against frivolous prosecutions and also to give an opportunity to the authority concerned

to decide in the circumstances of a particular case whether prosecution is necessary. Sanction to prosecute for an offence is not, therefore, an

ingredient of the offence, but it really pertains to procedure....

Later on, while dealing with the scope of Section 195, Cr. P.C. which is in pari materia with Section 13(1) of the Official Secrets Act, a similar

views was taken by the same court in M.L. Sethi Vs. R.P. Kapur and Another, expressly overruling the contrary view expressed by Tyabji,

Additional Judicial Commissioner, in Fakir Mohammed v. Emperor AIR 1927 Sind 10 : 1926 Cri LJ 1105 and it was held (at Pp. 536-37):

...We are unable to agree with the view expressed by the learned Additional Judicial Commissioner that Section 195, Cr. P.C. really lays down

that the offences therein referred to shall not be deemed to be any offences at all except on the complaint of the persons or the Courts therein

specified. An offence is constituted as soon as it is found that the acts which constitute that offence have been committed by the person accused of

the offence. It remains an offence whether it is triable by a Court or not. If a law prescribes punishment for that offence, the fact that the trial of that

offence can only be taken up by Courts after certain specified conditions are fulfilled does not make that offence any the less an offence. The

limitation laid down by Section 195, Cr. P.C. is in fact, a limitation only on the power of Courts to take cognizance of, and try, offences and does

not in any way have the effect of converting an act, which was an offence, into an innocent act. We cannot, therefore, subscribe to the view

expressed in that case ....

The law is thus well settled that neither a proper complaint, nor a proper sanction for prosecution of the accused forms part of the offence for

which he is to be tried, but the same merely pertain to the procedure to be followed in the trial of the accused for the said offence.

This brings us to the second limb of the argument that before an offence may be said to be a civil offence, it must be triable by an ordinary

criminal court.' Offence u/s 3(i)(c) of the Official Secrets Act being triable under Sub-section (I) of Section 13 by a First Class Magistrate,

specially empowered in that behalf, it cannot be said to be triable by a court of ordinary criminal justice, as understood by Clause (viii) of Section 3

of the Army Act. We find no force in this argument as well. Sub-sectior (1) of Section 13 reads as under:--

(1) No Court other than that of a Magistrate of the first class specially empowered in this behalf by the appropriate Government, which is inferior

to that of a District or Presidency Magistrate shall try any offence tinder this Act.

The language of Sub-section (1) is quite clear and unambiguous, which does not support the aforesaid contention at all. What in nutshell is

provided by this sub-section is that not only a District Magistrate, or a Presidency Magistrate shall be competent to try an offence under the said

Act, but even a First Class Magistrate, who is inferior to the District and the Presidency Magistrates shall also try the same, provided he has been

specially empowered in that behalf by the appropriate Government. The words used in Clause (viii) ""a court of ordinary criminal justice"" merely

connote a court which ordinarily tries criminal cases, A First Class Magistrate, for the only reason that he has also been empowered to try an

offence under the Official Secrets Act, cannot be said to have ceased to be an ordinary criminal court. He surely remains a court of ordinary

criminal justice despite these additional powers. The power onf erred on him under Sub-section (i) of Section 13 does not supplant, but merely

supplements his ordinary powers under the Cri. P.C.

Then comes the third argument that a complaint by a proper person in terms of Sub-section (3) of Section 13 was a condition precedent for

the trial of the petitioner even by the G. C. M We fail to find any force in this argument either. We have already held that filing of a proper

complaint is a matter of procedure only. This, in our opinion, would have been necessary in case the petitioner were to be tried either by a District

Magistrate, or by a Presidency Magistrate, or by a First Class Magistrate specially empowered in that behalf, by following the ordinary procedure

laid down in the Criminal P.C. Procedure for trial of a similar offence by a Court Martial having been prescribed by the Army Act and the Rules

made thereunder, no such complaint was necessary to give it jurisdiction to try the offence. A similar view was taken by Delhi High Court in R. S.

Ghalwat v. Union of India 1981 Cri LJ 1646 with which we respectfully agree and in the result reject the first two grounds on behalf of the

petitioner.

The third ground, in our opinion, is also untenable. Before the rule of double jeopardy contained in Clause 2 of Article 20 of the Constitution

may apply, four conditions have to be satisfied. These are: (i) there must have been a previous prosecution of the accused; (ii) that prosecution

must have resulted in his conviction; (iii) there must be a subsequent prosecution and conviction of the accused and (iv) the subsequent prosecution

and conviction must also be for the same offence.

In the instant case, the petitioner was never prosecuted before his impugned trial and conviction. On the other hand, he was, as a consequence

of his detention in custody for more than iwentyone days, reduced to his substantive rank of Lieutenant under Army Instruction SAI l/S/74. His

allegation that he was prosecuted and punished even earlier, is factually false, which has not only been denied on affidavit by the respondents, but is

also not borne out from the record. Consequently the third ground also fails.

We now turn to the fourth and the ninth grounds that the conviction is not based upon any evidence, as the only evidence relied upon by the

prosecution is that of the two accomplices, namely, Aya Singh and Sarwan Dass, who were inimical towards him as also his confessional

statement, which too was procured by torture, inducement, threat, and promise. These grounds are also without any force. A case of ""no

evidence"" is surely different from a case of ""insufficient evidence"". Whereas in the former case, the court exercising its extraordinary writ jurisdiction

is competent to quash an order which is based upon no evidence at all, in the latter case, it has certainly no power to interfere with it, even if it on

its own appraisal of the evidence comes to a contrary conclusion. So long as there is some legal evidence to justify the impugned finding, it will be

powerless to interfere with it in its writ jurisdiction. The present case is admittedly not a case of ""no evidence"" for, on the petitioner's own showing

there is not only the evidence of the two accomplices, but there is also his own confessional statement to support his conviction. An accomplice in

terms of Section 133 of the Evidence Act is a competent witness against an accused, whose conviction can be based upon his uncorroborated

testimony. Section 133 of the Army Act makes the provisions of the Evidence Act applicable to proceedings before Courts Martial, unless there is

any provision in the Army Act which is inconsistent with the provisions of the Evidence Act. In case of any such inconsistency, the Evidence Act

has to yield to the Army Act. There is nothing in the Army Act which renders the testimony of an accomplice wholly inadmissible or even

unreliable. Corroboration of the testimony of an accomplice is, however, sought by courts under illustration (b) to Section 114 of the Evidence

Act, which says that the court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. The

Legislature, it will be seen, has advisedly used the word ""may"" instead of the word ""shall"" to manifest its intention that the court is not bound to raise

such a presumption. What Section 114, therefore, provides is that as a matter of prudence the court may in some cases look for corroboration of

the accomplice's evidence. If that be so, as in fact it is, then clearly it will be a question that will precisely relate to weight of evidence, and the

jurisdiction of this Court to interfere with the order of the G. C. M. will be clearly ousted.

Rightly or wrongly, the Court Martial believed the statements of Aya Singh and Sarwan Dass. Its appreciation of their evidence cannot be

questioned in the writ petition. That apart, the G. C. M. also found corroboration of their evidence in the confessional statement of the petitioner,

made by him before Major B. K, Bhandari one of the witnesses examined by the prosecution. This witness deposed to the voluntary character of

the confession and his statement was believed by the G. C. M. He has ruled out any torture of the petitioner, or even obtaining his confession by

any inducement, threat, or promise to attract the mischief of Section 24 of the Evidence Act. Furthermore, Maj. B. K. Bhandari cannot be said to

be a Police Officer, so as to attract the provisions of Section 25 of the Evidence Act either. The plea that GNRs Aya Singh and Sarwan Dass and

other superior and Staff Officers of G. O. C. 39 Inf. Division including the members of the G. C. M., were inimical towards the petitioner is totally

baseless. Nothing has been stated in the petition as to what was the enmity, how it had originated and who those officers were. Such a vague and

cryptic plea hardly merits any notice. Even the record of the G.C.M. does not reveal that a plea was taken by the petitioner before it that its

members were disqualified on the ground of enmity and bias against him. The above discussion thus clearly exposes the hollowness of ""the fourth

and the ninth grounds as well.

The same is true of ground No. 5 also. Reply affidavit of the respondents apart even the record of the G. C. M. clearly reveals that the

petitioner was not only given full opportunity to prepare and produce his defence, but he was also afforded adequate opportunity to engage a

counsel of his choice. Bachno Devi, it is borne out from the record, he had never wanted to be examined as a defence witness but only as a court

witness. The G, C. M. only exercised its discretion against him by rejecting his prayer. He has unnecessarily increased the bulk of the petition by

making in it false and frivolous statements time and again.

Order dated 16-6-1976 by virtue whereof the G. C. M. to try the petitioner was convened, was no doubt signed by one Maj. Tej Partap

Singh, Deputy Assistant Adjutant General, but it was signed by him for and on behalf of Major General Gouri Shanker, the then G. O. C 39 Inf.

Division. This is borne out from the order itself. It is common ground that' the Major General was competent to convene it. The reply affidavit of

the respondents shows that Major T. P. Singh had authority to sign it on behalf of G. O. C 39 Inf. Division. The sixth ground, therefore, also fails.

Even the seventh and eighth grounds are also without any substance. As is borne out from the reply affidavit as well as the record of the G. C.

M., the petitioner was given full opportunity to cross-examine the prosecution witnesses, not only during the course of recording of the summary of

the evidence, but also during the course of his trial. He had also cross-examined them. At both the occasions, he was also given opportunity to

examine witnesses in his defence. During the course of his trial, he was represented by counsel of his choice up to a certain stage, whereafter the

counsel had abandoned his defence. He was again given opportunities to engage another counsel of his choice; which of course, he failed to do.

Besides, he was throughout defended by an Army Officer, who was a practising lawyer before joining army service. The closing address given by

this defending officer was exhaustive enough which consisted of as many as eigty-four pages. In this background, it is idle to contend that there was

violation of principles of natural justice, or for that matter of Article 22(1) of -the Constitution or of any rule relating to recording of summary of

evidence. Therefore these grounds also fail.

All the grounds urged in support of the writ petition having failed, the writ petition also fails, which is dismissed accordingly.

G.M. Mir, J.

I agree.