TaxTMI 
TaxTMI 
2001 (10) TMI 1163
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....tial had been properly conducted and that there was no breach of principles of natural justice. It was further held that the four charges had been established in the General Court Martial and that the Respondent was liable for punishment. It was however held that having regard to the nature and degree of the offences established the extreme and severe punishment of dismissal from service was violative of the provisions of Section 72 of the Army Act, 1950. The order of dismissal was set aside and the matter was sent back to the General Court Martial, for awarding any lesser punishment than dismissal from service. It was directed that the Respondent would not receive any salary and allowances for the period when he was out of service. Both the Appellant and the Respondent filed Appeals. The Appellate Court refused to grant any stay to the Appellants herein. The Appellants, therefore, approached this Court. This Court by an Order dated 7th August, 2000 granted an interim stay. This was then confirmed by an Order dated 16th October, 2000. By the Order dated 16th October, 2000 the High Court was requested to dispose of the Appeals expeditiously. The Division Bench has, in the impu....
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....bsp; GOOD ORDER AND MILITARY Section 63 DISCIPLINE In that he, at field, on 31 Oct. 84 while being the Officer Commanding 'A' Coy, 11 Assam Rifles on receipt of signal No. O 2140 dated 31 Oct. 84 from Tac HQ 11 Assam Rifles directing Coy Cdrs to visit fwd posts immediately to check alterness and report all OK did not himself visit the fwd post but improperly detailed JC-111310 Sub GS Panthi, the Senior JCO of the Coy for the task. Second Charge BEING AN OFFICER Army Act BEHAVING IN A MANNER Section 45 ....
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....hment. The second charge is under Section 45. It is in respect of unbecoming conduct. The punishment is dismissal or such lesser punishment as is mentioned in the Act. The third and fourth charges are under Section 57. They relate to falsifying official documents and making false declarations. On conviction the punishment could be for a term which may extend to 14 years or any other lesser punishment. Section 72 of the Army Act, 1950, reads as follows : "72. Alternative punishments awardable by court-martial.-Subject to the provisions of this Act, a court-martial may, on convicting a person subject to this Act of any of the offences specified in Secs. 34 to 68 inclusive, award either the particular punishment with which the offence is stated in the said sections to be punishable, or in lieu thereof, any one of the punishments lower in the scale set out in Sec. 71, regard being had to the nature and degree of the offence." Under Section 71 various punishments are prescribed according to scale. One of them, at item (e) is dismissal from service. Above this at items (a) to (d) are : (a) death; (b) transportation for life or for any period not less than seven years; (c) imp....
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....ions of the Army, it is manifestly clear that the procedure prescribed is perhaps equally fair if not more than a criminal trial provides to the accused. When there is sufficient evidence to sustain conviction, it is unnecessary to examine if pre-trial investigation was adequate or not. Requirement of proper and adequate investigation is not jurisdictional and any violation thereof does not invalidate the court-martial unless it is shown that the accused has been prejudiced or a mandatory provision has been violated. One may usefully refer to Rule 149 quoted above. The High Court should not allow the challenge to the validity of conviction and sentence of the accused when evidence is sufficient, court-martial has jurisdiction over the subject-matter and has followed the prescribed procedure and is within its powers to award punishment." As stated above, both the single Judge as well as the Divison Bench have held that the four charges set out have been proved and that the Respondent was guilty of those charges. Having so held it was not open to the Court to have interfered in the sentence. The awarding of sentence is within the powers of the Court Martial. These are not matters ....
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....he scale in Section 71. Section 72 does not set out that in all cases, a lesser punishment must be awarded. In other words, merely because a lower punishment is not granted, it would not mean that the punishment was violative of Section 72. In any case, in this case, under Section 63 there could have been a punishment of imprisonment for a term which may extend to 7 years. Under Section 57 there could have been a punishment for imprisonment for a term which may extend to 14 years. The charges under Sections 57 and 63 had been held to be proved. The General Court Martial could have imposed a punishment of imprisonment. The General Court Martial has chosen to give a lower punishment of dismissal from service. The Court below should not have interfered on the erroneous assumption that provisions of Section 72 of the Army Act, 1950 had been violated. Even otherwise, in our view, both the Courts below have erred in coming to the conclusion that the sentence awarded was too harsh considering the nature and degree of the offence established. The first charge, as set out hereinabove, indicates that the Respondent, who was the Commanding Officer of 'A' Company 11 Assam Rifles, ha....
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....se that the Respondent was required to stay back because a VIP was to visit the 'A' Company is also of no substance. The VIP was to visit only on 5th November. By that time the JCO, who had been improperly deputed by the Respondent, had already visited the forward posts and come back. Thus the Respondent could also have visited the post and returned well in time to receive the VIP. It is also not possible to accept the case that the Respondent had already visited two of the forward posts a few days earlier. It is to be seen that the third Charge is in respect of making a false entry in the tour diary to show that the Respondent had gone to the forward posts. That charge was proved. This showed that a false entry had been made to show that the Respondent had gone to those posts when in fact he had not gone there. Not only did the Respondent not obey the command from the Headquarter but he falsified records in order to make out a case that he had already gone to two of the forward posts. These are very serious offences. These are offences for which the General Court Martial would have been justified in awarding imprisonment. The General Court Martial took a lenient view by me....