M R SAINI Vs. UNION OF INDIA
LAWS(DLH)-1985-5-8
HIGH COURT OF DELHI
Decided on May 22,1985

M.R.SAINI Appellant
VERSUS
UNION OF INDIA Respondents


Referred Judgements :-

TAYLOR V. TAYLOR [REFERRED TO]
STATE OF UTTAR PRADESH VS. SINGHARA SINGH [REFERRED TO]
HARISH UPPAL VS. UNION OF INDIA [REFERRED TO]
FLYING OFFICER S SUNDARAJAN VS. UNION OF INDIA [REFERRED TO]
RAM MURTI WADHWA VS. UNION OF INDIA [REFERRED TO]



Cited Judgements :-

R P SINGH VSM VS. U O I [LAWS(DLH)-2004-9-133] [REFERRED TO]
LT COL B K SHARMA VS. UNION OF INDIA [LAWS(DLH)-1998-3-21] [REFERRED]


JUDGEMENT

- (1.)ORDER :- The undisputed facts of the case are that the petitioner was serving as a Captain (substantive) in 17th Sikh Regiment of Indian Army and he was posted at Ferozepur Cantt. He was tried by a General Court-martial (for short the 'GCM') on a charge under S.3(i)(c) of the Official Secrets Act, 1923 (hereinafter referred to as 'the Act') on the allegation that he had committed a civil offence between July 1981 and Aug. 1981 for a purpose prejudicial to the safety or interest of the State by communicating secret information relating to the affairs of the State to one Harinder Singh Walia and the said information might be directly or indirectly useful to the enemy. He was found guilty of the said offence by the GCM and sentenced to rigorous imprisonment for 14 years and dismissal from service on 26th Aug. 1982. However, under orders from the General Officer Commanding XI Corps (for short 'the GOC'), the sentence awarded to him earlier was revised by the GCM on 30th Sept., 1982 to one of cashiering and rigorous imprisonment for 14 years. The finding of the GCM was eventually confirmed by the Chief of the Army Staff on or about 15th March, 1983. However, the Chief of the Army Staff reduced the sentence of rigorous imprisonment from 14 years to 10 years.
(2.)The petitioner has challenged the legality and validity of the sentence awarded to him in this writ petition under Art.226 of the Constitution of India. The principal ground of attack is that the Central Government has issued a Regulation No.471 of Regulations for the Army which provides that the finding and sentence of a General Court Martial which awards a punishment of dismissal or above to an officer can only be confirmed by the Chief of the Army Staff. This regulation, according to him, reserves the power of confirmation in a case like the present only to the Chief of the Army Staff in supersession of the warrant issued by the Central Government under Ss.154 and 156 of the Army Act and as such the GOC was not competent to order revision of the sentence originally awarded by the GCM to him on 26th Aug. 1982. In other words, the revised sentence passed by the GCM (GOC?) pursuant to the said order was bad in law and as such its confirmation subsequently by the Chief of the Army Staff too was illegal and invalid.
(3.)For proper appreciation of the argument advanced on behalf of the petitioner, it would be pertinent to notice certain relevant provisions of the Army Act and the Rules made thereunder. S.153 of the Army Act lays down that no finding or sentence of a general, district or summary general, court-martial shall be valid except so far as it may be confirmed as provided by the said Act. Thus, the finding and sentence awarded by the GCM, to be valid and legal, has to be confirmed by the appropriate authority. S.154 of the Army Act provides that the findings and sentences of general court martial may be confirmed by the Central Government, or by any officer empowered in this behalf by warrant of the Central Government. Section 156 of the Army Act, however, empowers the Central Government to incorporate in the warrant issued under S.154 such instructions, reservations or conditions as the authority issuing it may think fit. It is common ground between the parties that the finding and sentence given by the GCM was referred to the GOC for confirmation pursuant to warrant issued in Form A-3 by the Central Government in this behalf. The said warrant was issued by the Central Government as far back as July, 1950 pursuant to the provisions of the Army Act and it was addressed to "the officer not being under the rank of a Field Officer Commanding XI Corps". The said warrant contains the following restrictions and reservations on the power of the confirming authority :
"Provided always that if by the sentence of any General Court-Martial a person subject to Military Law has been sentenced to suffer death, you shall in such case, and also in the case of any other General Court-Martial in which you shall think fit so to do, withhold confirmation and transmit the proceedings to Superior Authority. And for so doing, this shall be, as well to you as to all others whom it may concern, a sufficient warrant."



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