TaxTMI 
TaxTMI 
1996 (3) TMI 472
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....rt which stood dismissed on August 29, 1986. 2. On August 30, 1986, action was initiated against the respondent under Section 123 of the Army Act, 1950 [for short, the 'Act']. He was kept under open arrest from that date onwards and retired from service on August 31, 1986 as Major General. On September 22, 1986, the respondent was issued a charge sheet and recording of the summary evidence commenced on September 25, 1986. The respondent filed habeas corpus petition in this Court under Article 32 of the Constitution on September 26, 1986 and refused to cross examine witnesses examined at preliminary enquiry between October 20 and 25, 1986. He sought for, and the proceedings were adjourned to November 3, 1986, on the ground that his lawyer from Delhi was to come to Pune for cross-examination of the witnesses. Due to non-availment of the opportunity given to the respondent to cross-examine the witnesses between November 20, 1986 and December 8, 1986, the case was closed for prosecution on November 20, 1986. The respondent sought 14 days' time to prepare his case which was duly allowed. However, the respondent did not give list of his defence witnesses till November 30, 1986. Conseque....
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.... gone with prior permission of the authorities, the same has been denied by the officer concerned. The High Court has recorded, as a fact, that the respondent had absconded himself. Section 123 of the Act fastens culpability of the offender who ceased to be subject to the provisions of the Act. Sub-section(1) postulates that where an offence under the Act had been committed by any person while subject to the Act, and he has ceased to be so subject, he may be taken into and kept in military custody, and tried and punished for such offence as if he continued to be so subject. Sub section (2) which stands amended by Army Act (Amendment) Act, 37 of 1992, prescribed limitation on such action, at the relevant time, that no such person shall be tried for an offence, unless his trial commences within six months after he had ceased to be subject to the Act. The amended subsection (2) is not relevant for our purpose since the offence in question was indisputably committed prior to the Amendment came into existence. The proviso and other subsections are also not relevant for our purpose. 4. The question, therefore, is: on which date did the trial of the respondent commence? In other words, w....
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....he time during which the accused was not available cannot, therefore, be excluded in computation of six months' period prescribed in sub-section(2) of Section 123. 6. It is further contended that the trial commenced only when the Court martial assembled, took oath in terms of Rule 45; applied their mind under Rule 41 to proceed further under Rule 43. The oath envisages thus: ".....I will well and truly try the accused before the Court according to the evidence and that I will duly administer justice according to the Army Act without partiality, favour or affection and if any doubt shall arise, then, according to my conscience, the best of my understanding and the customs of war and....". The scheme would indicate that there is a distinction between inquiry and trial and the trial commences only when the Court-martial arraigns the accused on the charge against him under Rule 48 whereby the accused shall be required to plead separately to each charge. Since the above Procedure had not been followed, the trial did not commence. It is further argued that the accused has a valuable right under Rule 48 to object to the charge. If the objection is sustained, the charge is required to be ....
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....., of any time spent by such person as a prisoner of war, or in enemy territory, or in evading arrest after the commission of the offence. Section 123 deals with liability of offenders who cease to be subject to the provisions of the Act. Sub-section [1] thereof envisages that where an offence under the Act had been committed by any person while subject to the Act, and he has ceased to be so subjects he may be taken into and kept in military custody, and tried and punished for such offence as if he continued to be so subject In other words, though the officer governed by the provisions of Act ceases to be the person governed by the provisions of the Act, no trial for an offence under the Act shall be proceeded with and no such person shall be tried for an offence unless the trial commences within six months of his ceasing to be subject to the Act. 9. Chapter V of the Rules relates to investigation of the charge and trial by court martial. Rule 22 deals with hearing of charge. Sub-rule [1] provides the procedure to deal with the charge in the presence of the accused who shall have full liberty to cross-examine any witness examined against him and he may call any witness and make an....
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.... the number detailed; (c) that each of the officers so assembled is eligible and not disqualified for serving on that court-martial; and (d) that in the case of general court-martial, the offices are of the required rank. (2) The court shall, further, if it is a general or district court martial to which a judge-advocate has been appointed, ascertain that the judge-advocate is duly appointed and is not disqualified for sitting on that court-martial. (3) The court, if not satisfied with regard to the compliance with the aforesaid provisions, shall report its opinion to the convening authority, and may adjourn for that purpose. 11. Rule 43 prescribes procedure of trial - challenge and swearing. if the court has satisfied itself that the provisions of Rule 41 and 42 have been complied with, it shall cause the accused to be brought before the court and the prosecutor, who must be a person subject to the Act, shall take his due place in the court. As seen, under Rule 45, oath is to be administered to the members of the Courtmartial etc. They are required to swear by Almighty God or affirmation to "well and truly try the accused". Similar oath may be administered to Judge-Advoca....
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....e procedure contemplated in Rule 54 is to be followed and if he pleads "not guilty", the procedure contemplated in Rule 56 shall be proceeded with and evidence recorded etc. 13. The words "trial commences" employed in Section 123(2) shall be required to be understood in the light of the scheme of the Act and the Rules. The question is as to when the trial is said to commence? The word 'trial' according to Collins English Dictionary means: "the act or an instance of trying or proving; test or experiment...Law. a. the judicial examination of the issues in a civil or criminal cause by a competent tribunal and the determination of these issues in accordance with the law of the land. b. the determination of an accused person's guilt or innocence after hearing evidence for the prosecution and nor the accused and the judicial examination of the issues involved". 14. According to Ballentine's Law Dictionary [2nd ed.] 'trial' means: "an examination before a competent tribunal according to the law of the land, of the facts or law put in issue in a cause, for the purpose of determining such issue. When a court hears and determines any issue of fact or law for the purpose of determining ....
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....rom the scheme of the Act and the Rules that constitution of court-martial for trial of an offence under the Act is a pre-condition for commencement of trial. Members of the court-martial and the presiding officer on nomination get jurisdiction to try the person for offence under the Act. On their assembly, the accused has the right to object to the nomination of any or some of the members of the court-martial or even the presiding officer, On the objection(s) so raised, it is to be dealt with and thereafter the preliminary report recorded after summary trial and the charge trammed would be considered. The charge is required, if need be or asked by the accused to be read over and could be objected by the accused and found tenable, to be amended. Thereafter, the accused would be arraigned and in his presence the trial would begin. The accused may plead guilty or not guilty. If he pleads guilty, the procedure prescribed under Rule 54 should be followed and if he pleads not guilty, procedure prescribed under Rule 56 is to be followed. Before actual trial begins, oath would be administered to the members of the court-martial the Judge-Advocate and the staff. The regular trial begins an....
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....se. Therefore, Rule 45 insists on administration of oath in the prescribed manner. For a judicial officer the act of appointment gives power to try the offender under Criminal Procedure Code; warrant of appointment by the President of India and the oath taken as per the form prescribed in Schedule III of the Constitution empowers the High Court/Supreme Court Judges to hear the petition or appeals. For them, need to take oath on each occasion of trial or hearing is obviated. Therefore, the occasion to take oath as per the procedure for GCM and the right of the member of the GCM arises with their empanelment GCM and they get power to try the accused the moment they assemble and commence examination of the case, i.e., chargesheet and the record. The trial, therefore, must be deemed to have commenced the moment the GCM assembles and examination of the charge is undertaken. 22. Our view gets fortified by two decisions of this Court in Harish Chandra Baijapi & Anr. v Triloki Singh & Anr. [AIR 1957 SC 444] wherein the question was: as to when the trial begins in an election dispute under the provisions of the Representation of the People Act, 1951? The respondents had filed election peti....
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....er the petition is transferred to the Election Tribunal under s.86, various steps have to be taken before the stage can be set for hearing it. The respondent has to file his written statement, issues have to be settled. If 'trial' for the purpose of s.90(2) is to be interpreted as meaning only the hearing, then what is the provision of law under which the Tribunals to call for written statements and settle issues? Section 90(4) enacts that when an election petition does not comply with the provisions s.81, s.83 or s.117, the Tribunal may dismiss it. But if it does not dismiss it, it must necessarily have the powers to order rectification of the defects arising by reason of non-compliance with the requirements of s.81, s.83 or s.117. That not being a power expressly conferred on it under s.92 can only be sought under s. 90(2), and resort to that section can be had only if trial is understood as including proceedings prior to hearing. Section 92 enacts that the Tribunal shall have powers in respect of various matters which are vested in 3 court under the Civil Procedure Code when trying a suit, and among the matters set out therein are discovery and inspection, enforcing attendance o....
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....keep the Comdt, NDA Khadakwasla informed about his whereabouts, they are not yet known. Vigorous efforts are being made to trace him out and produce him before the Court. In view of this he requests that the Court be adjourned till 1100 h 26 February 1987. The Defending Officer, IC-6727F Maj Gen Yadav Yitendra Kumar, who is present in the court submits in reply that he too had had no opportunity to get in touch with the accused and as such has no information regarding whereabouts of the accused". "Advice by the Judge Advocate Gentlemen, you have heard the submission made by the Prosecutor with regard to the absence of the accused as also reply of the learned Defending Officer. The Prosecutor has given the detailed circumstances in which the accused had escaped from military custody. He further submitted before you that vigorous efforts were being made to secure his presence before you to stand the trial and to this effect, prayed for the adjournment of the Court until 1100 h on 26 Feb 87. In view of the foresaid submission made by the Prosecutor, I advise you to consider granting him suitable adjournment to secure the presence of the accused. The Court decide to adjourn until....
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....r to him and he asked for adjournment for 15 days and on advice it was adjourned to March 18, 1987 on which day the respondent informed the court of his filing the writ petition and the assurance given by the counsel appearing for the appellants in the High Court not to proceed with the trial. Accordingly, it was adjourned pending Writ Petition No.301 of 1987, the subject of this appeal. It would thus be clear that the respondent having escaped from the open military detention caused adjournment of the trial beyond February 28, 1987 to secure the presence and arrangement of the respondent at the trial by GCM. 27. Our conclusion further gets fortified by the scheme of the trial of a criminal case under the Code of Criminal Procedure, 1973, viz., Chapter XIV "Conditions requisite for initiation of proceedings" containing Sections 190 to 210, Chapter XVIII containing Sections 225 to 235 and dealing with "trial before a Court of Sessions" pursuant to committal order under Section 209 and in Chapter XIX "trial of warrant-cases by Magistrates" containing Sections 238 to 250 etc. It is settled law that under the said Code trial commences the moment cognizance of the offence is taken and ....
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....ut him in prison, the bond is void. At page 193, it is stated that "it is moreover a sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned". At page 195, it is further stated that "a wrong doer ought not to be permitted to make a profit out of his own wrong". At page 199 it is observed that "the rule applies to the extent of undoing the advantage gained where that can be done and not to the extent of taking away a right previously possessed". 29. The Division Bench of the High Court has recorded the finding that the respondent has absconded from open military detention. From the narration of the facts it is clear that the respondent was bent upon protracting preliminary investigation. Ultimately, when the GCM was constituted, he had challenged his detention order. When he was unsuccessful and the trial was to begin he escaped the detention to frustrate the commencement of the trial and pleaded bar of limitation on and from March 1, 1987. The respondent having escaped from lawful military custody and prevented the trial from being proceeded with in accordance with law, the maxim nullus commodum capere potest de....