There shall be finality to the findings and sentence of Court Martial subject to their being confirmed and not annulled

Ravikiran Shukre | Manikchand Pahade Law College, Aurangabad | 14th February 2020

Sanjay Marutrao Patil v. Union of India and Ors. (Civil appeal no. 2448 of 2010)

Facts of the case: 

1. The appellant joined Army as Sepoy on 30/08/1990 and in year 1994-95, he was promoted as Naik. Thereafter, he became qualified to the post of Hawaldar. He was served with the charge sheet dated 03/08/1999 levelling him three charges of misconduct under section 63 of the Army Act, 1950. With respect to above charge sheet, the appellant was called upon to face a Summary Court Martial. The appellant pleaded guilty to each of the charges in writing. After considering his defence, the Summary Court Martial proceedings were concluded and the appellant was awarded with the punishment of reduction in rank, vide order dated 07/08/1999.
2. Thereafter, the appellant was served with a show cause notice by which the appellant was called upon to show cause as to why he should not be discharged from Army service under the provisions of the section 20 of the Army Act, r/w Rule 17 of Army Rules, 1954. Appellant denied the allegations therein and hence in consequence, respondent terminated the appellant’s service on 29/04/2002 in exercise of powers of under section 20 of Army Act r/w rule 17 of Army Rules.  
3. Felling aggrieved and dissatisfied with the order of the termination dated 29/04/2002, the appellant preferred an appeal before the High Court and High Court has rejected the same on 22/12/2003
4. Feeling aggrieved and dissatisfied by the impugned judgment and order passed by the High Court appellant preferred this appeal.

Judgment:

1. Learned advocate appearing on behalf of appellant submitted that, High Court has committed an error in dismissing the writ petition and not interfering with the termination order passed by the respondent authority dated 29/04/2002. He further submitted that, dismissing appellant from service was illegal and bad in law and tantamount to double jeopardy. He further submitted that the high court has not properly considered the fact that, appellant was punished for the misconduct due to which he faced reduction in rank and he was terminated accordingly by serving the show cause notice to him amounts to double jeopardy.   
2. Learned senior advocate appearing on behalf of respondents submitted that, order of termination passed by respondent no.3, challenged before the High Court, was an administrative order passed in exercise of powers under section 20 of the Army Act, r/w rule 17 of Army Rules. It is submitted that the powers under section 20 of the Army Act, r/w rule 17 of the Army Rules are independent powers available to respondent no.3 it is submitted that therefore the contention on behalf of appellant that the subsequent administrative order of termination passed under section 20 of Army Act r/w Rule 17 of Army Rules is double jeopardy having no substance. 
3. It was held by the Supreme Court that, there shall be finality to the findings and sentence of Court Martial subject to their being confirmed and not annulled. It is further observed that questions of correctness, legality and propriety of the order passed by any Court Martial and regularity of any proceedings to which the order of Court Martial relates can be raised by way of petition under section 164. 
4. It is further held by Supreme Court that, so long as a final verdict of guilty or not guilty, pronounced by a Court Martial and confirmed by the competent authority so as to be effective is not available, the power to proceed under section 19 r/w Rule 14 (2) exist and remains available to be exercised. 
5. Therefore, in the facts and circumstances of the case and in the absence of any confirmation of the order passed by Summary Court Martial by which the appellant was reduced to rank, the respondent no.3 herein was justified in exercising the power under section 20 r/w Rule 17.  

The Supreme Court come to conclusion that, the justification of the order of dismissal which is the subject matter of the present appeal on the aforesaid ground is not sustainable.