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• [2015) 1 S.C.R. 849 . UNIONOF INDIA & ANR. v. PURUSHOTTAM (CivilAppeal No. 7133 of 2008) JANUARY 05, 2015 [VIKRAMAJITSEN AND SHIVA KIRTI SINGH, JJ.] A B SerVice Law -Departmentalenquiry -Permissibility- Summary Court Martial (SCM) proceedings ulr. 133 of Army C Rules -Holdingthe delinquentguilty for theoffencescharged - Reviewingauthority acting uls. 162 of Army Act set aside the SCM proceedingson theground of incorrectframing of charges and lackadaisicalrecording of evidence -Thereafter armyauthoritiesissued Show Cause Notice to the delinquent 0 allegingthe samechargesfor which SCM proceedingswere initiatedand laterset aside-Termination of theservices of the delinquent-Writpetitionchallengingtermination -High Courtallowedthe petitionsetting aside Show Cause Notice - However,the courtdid not precludethe delinquentfrom initiation of departmentalaction - On appeal,held: Acquittal E of an employee by a criminalcourt wouldnot automatically andconclusivelyimpact Departmentalproceedings -Unless thedelinquentearns honourableacquittal departmental proceedingscannot be precluded- The delinquentin the presentcase havingnot earnedhonourableacquittal, not F precludedfrom departmentalproceedings -ArmyAct, 1950 - s. 162 ArmyRules- r. 133. ArmyRules,1950 - r. 133 -SummaryCourt Martial proceedingsulr. 133 -Review of -Held: r. 133doesnot G empowerDeputy Judge-AdvocateGeneral as thereviewing authority,but merelyconfers on it forwardingfunction - The finding and sentence of SummaryCourt Martialought to be 849 H 850 SUPREMECOURT REPORTS[2015) 1 S.C.R. A left undisturbed by thereviewing authority- Army Act, 1950 - s. 161(1). Army Act, 1950 - s. 121-Applicability- Scope of - Held: s. 121 postulates the autrefois acquit and autrefois 8 convict as distinctfrom Art. 20(2) of the Constitutionwhich postulates only autreifoisconvict -However,the insulation u/ s. 121 is only restricted only to second court martial or dealingsu/ss. 80, 83, 84 and 85 of the Act -Constitution of India, 1950 -Article 20(2). Constitution of India, 1950 - Art. 20(2) -Principle of DoubleJeopardy-Applicability of - SummaryCourt Martial proceedings set aside-Subsequent Show Causenotice to the delinquenton thesameset of charges-Held:Art. 20(2) does not within it, imbibethe principle of autrefoisacquit - D Therefore, the subsequent "departmental or disciplinary . proceedings, even if punitive in amplitude, would not be outlawed by Art. 20(2) - In the presentcase delinquent not precludedfrom departmentalproceedings. E F Interpretation of Statutes - Interpretation of rules-Held: Rulesshouldbe interpretedin a manner which would repose them in harmonywith the parentstatute- If the rulesordain anaction not contemplated by thestatute, it wouldsuffer from thevice of excessive delegation and thuswouldbe ultravires. Disposing of the appeal, the Court HELD:1. Theframers of the Constitutionwere fully alive to thedifferingand disparateconcepts of autrefois acquit and autrefois convict and consciously chose to G circumscribe the doctrine of double jeopardy only to prosecution culminating in a conviction.Article 20(2) of the Constitutiondoes not within it imbibe the principle of autrefois acquit. A fortiori Article 20(2), which contemplates "prosecuted andpunished"thusevincing Hthe conscious exclusion of autrefois acquit, palpably UNION OF INDIA & ANR. v. PURUSHOTTAM 851 postulates that the prescribed successive punishment A must be of acriminalcharacter. It irresistibly follows that departmental or disciplinaryproceedings,even if punitive inamplitude, would not beoutlawedby Article20(2). [Paras 10 and 12] (862-H;863-A; 865-F-H] MaqboolHussain vs. State of Bombay 1953 SCR 730 -8 followed. R. P. Kapur vs. Union of India AIR 1964 SC 787:1964 SCR 431 -heldinapplicable. c R.S. Nayak vs. A.R. Antulay(1984) 2 SCC 183:1984(2) SCR 495; HaldiramBhujiawala vs. Anand Kumar Deepak Kumar (2000) 3 SCC 250: 2000 (1) SCR 1247;Samatha vs. State of AndhraPradesh(1997) 8 SCC 191: 1997 (2) Suppl. SCR305 ; State of Bihar vs. MuradAli Khan(1988)4 SCC D 655:1988(3) Suppl.SCR 455 -referredto. JohnHudsonv UnitedStates 522 U.S. 93 (1997);United States v. Halper 490U.S. 436 (1989);United States v. Ward 448 U.S. 242(1980)-referredto. 2. Acquittal of an employeeby a Criminal Court would not automaticallyand conclusively impact Departmental proceedings. Firstly, this is because of the disparate degrees of proof in thetwo, viz. beyondreasonable doubt E in criminalprosecutioncontrasted by preponderant proof F in. civil or departmental enquiries. Secondly, criminal prosecution is not within the control of the concerned department and acquittal could be the consequence of shoddy investigation or slovenlyassimilation of evidence, or lackadaisical if not collusive conduct of the Trialetc.G Thirdly, an acquittal in a criminal prosecution may precludea contrary conclusionin a departmentalenquiry if. the former is a positivedecisionin contradistinction to a passive verdict which maybe predicated on technical infirmities. In other words, the Criminal Court must H A B c 852 SUPREME COURT REPORTS [2015] 1 S.C.R. conclude that the accused is innocent and not merely conclude thathe hasnot beenprovedto be guilty beyond reasonable doubt. [Para 13] [866-D-G] DeputyGeneral of Police vs. S. Samuthiram (2013) 1 sec 598: 2012 (11) SCR 174 - relied on. 3. In the present case, it cannot be said that the respondent had earned an honourable acquittal. Consequently, whether on reliance of the Double Jeopardy principle or on the setting aside of his punishment, Departmental or Disciplinary proceedings ought not to be viewedas precluded. [Para 14] [8&7-F-G] 4.Section 121 of Army Act is distinct from Article 20(2) of theConstitution,since it palpably postulates both 0 autrefois acquit and autrefois convict to a court-martial or a trial bycriminalcourts, but thenrestrictsthe insulation only to a second court-martial or a dealing u/ss. 80, 83, 84 and85 of the ArmyAct. [Para16] [868-D] 5. Thepower to do a particular act must be located Ein thestatute,and if the rules framed under the statute ordainan actionnot contemplated by thestatute, it would suffer fromthe vice of excessive delegation and would on this platform be held ultravires. Rules must,therefore, be interpretedin a mannerwhich would repose them in Fharmony withthe parentstatute.The Show Cause Notice impugnedbefore the HighCourtwas predicatedon Rule 13 of Army Rules, by obviously circuitously taking recourse to the residuary clause 13(3)(111)(V) of the . relevant Table.The Appellants could have resorted to G Section 20 of the ArmyAct. The Army Authorities are often consumed by the Army Rules without fully comprehendingthe scope of theArmyAct itself .. [Para 19][870-E-G] H 6. Rule 133 of Army Rules doesnot empowerDeputy UNION OF INDIA & ANR. v. PURUSHOTIAM 853 Judge-Advocate General as thereviewingauthority, but A merely confers on it a forwarding function, the Rule stating that the proceedings of the Summary Court Martial (SCM) on promulgationrequire to be forwarded to thecompetent officer under Section162 of the ArmyAct, but only parenthetically provides that this will occur B "through" DeputyJudge-Advocate General. This cannot be interpreted substitutively, as enshrining in Deputy Judge-Advocate General the statutory remit of the reviewingauthority under Section 162. [Para23] [872-G- H; 873-A] C 7. A Summary CourtMartialdoes not require for its efficacy, finality and validity, the confirmation of the ConfirmingAuthority, as hasbeenmandated for the other three classes of Court Martial, enumerated in Section 153. 0 Section 161 (1) expressly states that the finding and sentence of a Summary Court Martialshall not require to be confirmed, but may be carried out forthwith. The presentone, beinga transmission of proceedingsunder Section 162, the Reviewing Authority's basis for insistence that a plea of "not guilty" ought to havebeenE recorded and subsequent setting aside of the consequences of the Court Martial presided by the OfficerCommanding,cannot stand. [Para 24] (873-C-F] 8.TheRespondent did not makeany Statement of F Defence at the Summary Court Martial hearing itself, and neither produced anydefence witnesses on his behalf nor cross-examined either of the two prosecution witnesses therein.Faced with these inescapable facts, the Reviewing Authority could not have set aside the G proceedings on such a technical ground. The Court Martial finding and sentence ought to have been left undisturbedby theReviewingAuthority, self-sufficiently valid as it was under Section 161 (1).The Summary Court Martial order is restored.[Paras 24 and26] (874-A-C, F] H 854 SUPREME COURT REPORTS[2015] 1 S.C.R. A Chief of Army Staff vs. Major DharamPal Kukrety 1985 B c D E(2) SCC 412: 1985(3) SCR 415 Union of India vs. Harjeet SinghSandhu 2001 (5) SCC 593:2001 (2) SCR 1127 - relied on. Case law reference: 1984(2) SCR 495 referred to Para 10 2000 (1) SCR 1247referred to Para 10 • 1997 (2) Suppl. SCR 305 referred to Para 10 1953 SCR730 followed Para 10 1988(3) Suppl. SCR455 referred to Para 11 1964 SCR 431 held Para 13 inapplicable 2012 (11) SCR 174 referred to Para 13 1985 (3) SCR 415 relied onPara 18 2001 (2) SCR 1127 relied on Para 20 CIVILAPPELLATEJURISDICTION : Civil Appeal No. 7133of 2008. From the Judgment& Orderdated 21.4.2008 of the High FCourtof Delhi at New Delhi in CWP4254 of 2003. K. Radhakrishnan,R.K. Rathore, R. Bala, N.K. Jha, B.V. BairamDass, B. KrishnaPrasad for theAppellants. ArunBhardwaj, Shekhar Kumar, Dr. Kailash Chandfor the GRespondent. . H TheJudgmentof theCourtwas delivered by VIKRAMAJIT SEN, J.1. TheRespondentherein, No. 7773409XHavildar (Military Police) Purushottam, was enrolled UNION OF INDIA & ANR. v. PURUSHOTIAM 855 [VIKRAMAJITSEN, J.] in the Corps of MilitaryPolice, on 7thJune1983. On 27thA November 2001,while the Respondentwas postedto 916 Provost Unit(General ReserveEngineerForce, or GREF).he was detailed asa member of MobileSquad and wastasked tocarryout checks of variousGref detachments located on the Udhampur-Srinagar highway. On completion of duty,the Squad B Commanderreported the following activities of the Respondent: a) He had demanded Rs. 15000from the Commander367 RM Platoon (Kanbal) against surplus constructionstores held with the platoon; b) hehadtaken 100 litres of HSD (highspeed diesel) with barrel from Superintendent BR-I HL Meena of 367 c Platoon, GundDetachmentand thereafterhad sold it along with the barrel toa civilian for Rs.1800/-, andthis allegation was levelled by the driver of the vehicle in whichhe was traveling; c) He had extorted Rs.6000/- fromSuperintendent BR-II Sanjay Kumar,385 RM Platoon, for notreporting surplus construction 0 materiatheld by'the platoon; d) He hadtakenone coat/parkha along withtwo steel hammersfrom QM, at 118RCC(GREF). 2. Basedon thesereports,the ChiefEngineer,Project Beacon,ordered a Court of Inquiry whichinvestigatedthese allegations and concluded that. the Respondent was E blameworthy for two of thefouraforesaidacts committed withoutauthority: firstly, demandingand taking 100 litres of HSD from BR-I HL Meena on 30th November, 2001 and selling it to a civilian, and secondly, on5th December, 2001 demandingand takinga coat/parkhaand two stonebreakingF steel hammers. The ChiefEngineer partially agreedwith the findingsof theCourt of Inquiry anddirected disciplinary action againstthe Respondentfor theaforementionedtwo acts.The Respondentwas arraigned on two countsfor thetworespective acts and chargedwith committingextortion, under Section 53(a) G of the ArmyAct, 1950. Summaryof Evidencewas recorded under Rule 23,Army Rules andthe Respondentwas triedby SummaryCourt Martial (SCM), headedby Lt. Col CM Kumar, OfficerCommanding, (OC) on 11.04.2002. The Respondent pleadedguilty to bothcharges.At thehearing of the SCM, twoH 856 SUPREME COURT REPORTS[2015) 1 S,C.R.. A prosecutionwitnesses were examined,both of whom the Respondent declined tocross-examine.The Respondent neithermade any statement in his defence,nor did he produce any defence witnesses.He was ultimately awardedthe sentenceof a reduction in rankto thatof "Naik". Thereafter,for Breasonsrecondite,the 'reviewingauthority' purportedly acting underSection162 of theAct, while 'reviewing'the SCM, set asidethe same, "due to incorrectframing of charge and lackadaisical recording of evidenceat thesummary of evidence".This intervention is in the teethof theCertification c in consonancewith Rule 115. Inasmuch as it is the Deputy Judge-Advocate General whohas madethese observations andthe recordsdo notbearout andauthenticatethat his opinion/observation,was subscribed to or approved by the 'reviewingauthority' who statutorily has to be the seniorranking D officials enumerated in Section162, thereappears to us that a'rev.iew'did not actually take place. Thisis essentially a usurpation of powerby DeputyJudge-Advocate General. Rule 133 no doubtmentionsthis officer,but his role is restricted toforwardingthe proceedings of theSummaryCourt Martial E to theofficerauthorised to deal with them in pursuance of Section162. At themostthe DeputyJudge-Advocate General may appendhis ownopinionto theproceedings of the SummaryCourt Martial while forwardingthem to the authorised officer.This is amply clear from the factthatthe recordsmade availableto theHighCourtas well as to thisCourtdo not Fcontainany Order of the "prescribedofficer" setting aside the proceedingsor reducingsentence to any othersentencewhich the SCM had imposed. It alsoseemsto us to be plain that insteadof settingaside or reducingthe stingof thesentence theDeputyJudge-AdvocateGeneral has opined, without any Gstatutoryauthority,that the Summary Court Martialitself should be setaside and the Accused/Respondent be relieved of all consequencesof trial. Wholly contrary to his own opinion,the DeputyJudge-AdvocateGeneral has gone on to return a finding of misappropriation and asentencethat the conduct of the HAccused/Respondentrenders his retention ir. theservice as UNION OF INDIA & ANR. v. PURUSHOTTAM 857 [VIKRAMAJITSEN, J.] undesirable. It determined that although the officerconducting theCourt Martial recordeda plea of guilty under Rule 116(4), a perusal of theRespondent'sstatement in the Summary of Evidence belied thisrecording;that therein,qua the second charge,the Respondenthad contestedthe chargestating that hehadrequestedfor supply of only one hammerwhich was to bereturnedat theend of winter. Uponlater inspectingthe hammer,the Respondentdiscovered that there were two hammers packed inside,instead of the one that he had requested. 3. DeputyJudge-Advocate General purportingto actas theReviewingAuthority, consideringthis discrepancy,opined thatthe "officer holding the trialshould have,underAR 116(4), altered the recordand entereda plea of 'not guilty' in respect of both charges,and proceededwith the trial accordingly. Non compliance of the aforesaidprovision, in the instantcase, being aserious legal infirmity,makes the SCM proceedings liable to be setaside.Therefore,notwithstandingthe pleas of guilty by theaccused,the findings,convictionon bothchargesare not sustainable.In view of theabove, I am of theconsidered opinionthat, the SummaryCourt Martial proceedingsare liable to besetaside,and I adviseyou accordingly. If you agree, followingwill be a suitable minutefor youto recordon page "J" of theproceedings:- 'I set asidethe proceedings. I direct thatthe accusedbe relieved of all consequences of the trial'." The recordsdo not reveal thatthis advicewas actedupon. 4. It wasin thisimpassethat a Show CauseNotice (SCN) was issued shortly afterwardsto theRespondent,stating that theRespondenthad duringhis tenurebeen foundto have engaged in illegal activities.The Respondentwas chargedwith acts of indiscipline forthesameset of alleged acts that had erstwhilebeen the subject of the Court Martial proceedings againsthim for twooffences of extortion. It wasmadeknown totheRespondentthat his continuedpresence in theArmy wouldpossiblybe detrimentalto maintaining discipline and A B c D E F G H 858 SUPREME COURT REPORTS[2015] 1 S.C.R. A hencehis retention in servicewas considered undesirable. The Respondentwas required to showcauseas to whyhis service should notbe terminatedunder the provisions of Army Rule 13. TheRespondenthas submittedthat he replied to this noticebut itisnoton record.The Respondentwas allegedly orally told B that his services had beenterminatedand a Discharge Certificateunder Rule 13 wasissued on 05.02.2003. 5. TheRespondent filed a CWP againstthis Discharge repudiatingthe legality of its issuanceagainst the same alleged actsthat had already beensubjectedto a CourtMartial C proceeding.The Respondent relied on Articles 14, 16, 21 and 311 of the Constitution,and declaimed against the "illegal procedureand shortcut method" takenby theArmyauthorities togetrid of him.The Appellants stated in their reply beforethe High Court,as a preliminary point, that noright of the DRespondent, let alone a fundamental right,had been violated. The jurisdiction of the HighCourts thusbeing unwarranted,the Appellantsprayed for a preliminarydismissal on that point.The Appellantsdenied that the Respondenthad beenDischarged foroffences of extortion;rather, the Respondent'smisconduct, Eamounting to moral turpitudeand gross indiscipline, meantthat hiscontinuedservice in the Armywas no longer considered desirable.The Appellantscanvassedthat the Respondent,not beinga "civil servant",could not claim the protectionof Article 311. Finally, they submittedthat the Dischargeprocedure had Fbeen strictlyfollowed in this case.The HighCourt allowed the Respondent'swrit petition,and quashed Show CauseNotice asunsustainable.The Court so concluded on the basisthat the Show CauseNotice relied on exactly the sameset of charges ashadrun theircourse in the Court Martial,resulting in the GRespondent's acquittal. The Courtdid not acceptthe distinction articulatedby theAppellants,between extortionbeing the subject of theCourt Martial, andmisconductand indiscipline being the subject of the Show CauseNotice and Discharge. Nevertheless,the HighCourt didnot preclude the Respondent Hbeforeit from "taking anydepartmentalaction againstthe UNION OF INDIA & ANR v. PURUSHOTTAM 859 [VIKRAMAJITSEN, J.] petitioner in respect of theallegations, in accordancewith law."A Thisis theJudgmentwhich is beforeus forourscrutation. 6. Thefactualtapestryhaving been threaded,we are confrontedprimarily as to whetherthe Appellantscould have legally issuedthe noticeand dischargedthe Respondentfor 8 misconduct and indisciplinewhen the sameset of alleged acts hadbeen earlier chargedas offences and putthrougha Court Martial, in which the Respondentwas ultimatelyacquitted. In other words,the legal nodus that we haveto cogitateupon is thepropriety of theinitiationof a DischargeEnquiry of a C member of theArmysubsequentto Summary CourtMartial proceedingsagainst him on the sameor similar chargeshaving beel) set aside. In termsof theimpugnedJudgment,Discharge Order passed by the Army/Union of India(UOI), Appellants before us, hasbeenquashed.However the commencementof Departmentalaction in respect of thesameallegationshas notD beeninterdictedor precluded. The Appellantsvehemently contend that the High Court erred in quashingthe assailed Discharge Order. Conspicuously, the Respondenthas not assailed the grantto the UOI of leave toinitiatea Departmental Enquiry.However,it hasbeenvehementlycontended before us E thatthe SCN dated 31.10.2002 suffersfrom the viceof double jeopardyand, therefore,has been correctly quashedby the DivisionBench. The rubicon cleaving the commencementor continuance of Departmentalproceeding when criminal charges have also been levelled is always difficult to discover.F Butthere is a watershedwhich can be discerned albeit witha fairshareof arduousness. 7. We shall forthwith analyse theconcept of double jeopardy,especiallyin thebackdrop of Constitutions of G countriesspanning our globe. The FifthAmendmentof the U.S. Constitutionpromises that - "No person shall be heldto answer for a capital; or otherwiseinfamous crime, unlesson a presentmentor indictment of a grandjury, except in cases; arising in the land or naval forces,or in the militia,when in actual H 860 SUPREME COURT REPORTS [2015] 1 S.C.R. A service in time of waror public danger;nor shall ar.y person besubjectfor thesameoffense to be twiceput in jeopardy of life or limb; nor shall be compelled in any criminal case to bea witnessagainst himself, nor be deprived of life,liberty, or property,without due process of law; nor shall privateproperty s be takenfor public use, without just compensation."This protectionhas beenconstruedas admitting of threefacets: i) AutrefoisAcquit ii) Autrefois Convict iii) Protection against multiple punishments. We shall be referring briefly to John Hudson vs. UnitedStates 522 US 93 (1997)where the U.S. c Supreme Court has delineated on what the parameters of double jeopardy. Second,Article 35(3)(m) of the Constitution of the Republic of South Africa(1996)providesthat a person is "not to betriedfor an offence in respect of an act or omission forwhichthat personhas previously been eitheracquittedor 0 convicted". Third, Section 11 (h) of the Charter of Rights of the CanadianConstitutionprovides that any personchargedwith an offence has the right "if finally acquitted of theoffence,not tobetriedfor it againand, if finally found guilty and punished fortheoffence,not to betriedor punishedfor it again". Fourth, E Article 14 (7) ofthe International Covenant on Civil and Political Rights (ICCPR, 1966)states: "No one shall be liable to be tried orpunishedagain for an offencefor which he has already been finally convictedor acquitted in accordancewith the law and penal procedure of each country". Fifth, Article 13 of the Constitution of Pakistan,1973, reads thus -Protectionagainst F double punishmentand self incrimination ? No person- (a) shall be prosecutedor punishedfor thesameoffencemore than once;or (b) shall, whenaccused of an offence,be compelled tobea witnessagainst himself. G 8. Venturinga divergentpath, the UK CriminalJustice Act, 2003, has modifiedthe operation of autrefoisconvict, in that Part 10 thereof allows for retrial in thecasesof seriousoffences scheduledtherein, in the eventof 'newand compelling'evidence againstthe acquittedperson in relation to the qualifying offence. HThisstatutehas been emulated by legislations in New Zealand UNION OF INDIA & ANR. v. PURUSHOTTAM 861 [VIKRAMAJIT SEN,J.] and in the Australian States of Queensland, NewSouthWales,A Tasmania,South Australia and Victoria. 9. TheConstitution of India charters a contrastingcourse inthecontext of incorporation of the doctrine of double jeopardy inthat Article 20(2) postulates that- "No person shall be 8 prosecutedand punishedfor thesameoffencemore than once."This variancefrom constitutionalprotections given in othercountrieshas promptedus to siftthroughthe 'Debates of theConstituent Assembly' so asto ascertainwhether autrefois convict in preferenceto themorepreponderant autrefois acquit,was the positionintendedto beordainedby C the drafters of ourConstitution.These Debatesbear witness tothefactthatit wasindeedmeditatedand intended.The original proposal was - "No person 'shall be punishedfor the same offence more thanonce".A proposed amendment wherebythe words "otherwise thanas proposedby the Code· D of Criminal Procedure,1898," was soughtto beadded,but was roundly rejected.The suggestionmade by ShriNaziruddin Ahmadwas that "the principle should be thata mancannotbe triedagain,tried twice,if heis acquittedor convictedby a Court of competentjurisdiction, while the conviction or acquittalE standseffective... A manacquitted shallalso not be liable to betriedagain."(2nd December,1948). On the nextday, the extracted intervention of ShriT.T. Krishnamachari was accepted,sounding the death knell for 'autrefois acquit'and leading to Article 20(2) as it stands today. Shri T.T. F Krishnamachari(Madras: General): "Mr. Vice-President,Sir, the point I haveto place before theHousehappensto bea comparativelynarrow one. In this article 14, clause (2) readsthus: 'No person shall be G punishedfor thesameoffencemore than once'. It has been pointedout to meby moreMembers of this Housethat this mightprobablyaffect caseswhere,as in thecase of an official of Government who has been dealt with departmentallyand punishmenthas beeninflicted,he H A B c D E 862 SUPREME COURT REPORTS[2015] 1 S.C.R. cannot again be prosecutedand punished if he had committed a criminal offence; or, per contra, if a Government official hadbeenprosecutedand sentenced toimprisonmentor fineby a court,it mightprecludethe Governmentfrom taking disciplinary actionagainsthim. Thoughthe point is a narrowone andone which is capable of interpretationwhether this provision in this particular clause inthe Fundamental Rights will affectthe discretion of Governmentacting under the rules of conductand discipline in regard to its own officers, I think, when we are puttinga ban on a particular type of action,it isbetterto makethe pointmore clear. I recognisethat I am ratherlate now to move an amendment.What I would liketo dois to wordthe clause thus:'No person shall be prosecutedand punishedfor the sameoffencemore than once." If my Honourable Friend Dr. Ambedkar will acceptthe addition of the words 'prosecutedand' beforethe word'punished'and if you, Sir, and the House will give him permissionto doso,it will not merelybe a wisething to do butit will savea lot of trouble for theGovernments of the future.That is thesuggestion 1. venture to place beforethe House. It is for theHouseto deal with it in whatevermanner it deems fit." 10. It would be relevant to mention that modern Fjurisprudenceis presently partial to the perusal of Parliamentary Debates in thecontext of interpretingstatutory provisions, although earlier this exercisewas lookedupon askance. Suffice it tomentionthe analysisof theConstitutionBench in R.S. Nayak vs. A.R. Antu/ay (1984)2 SCC 183 and in Haldiram G Bhujiawala vs. AnandKumarDeepakKumar (2000) 3 SCC 250; and particularly Samatha vs. State of AndhraPradesh (1997) 8 SCC 191, where Parliamentary Debateswere studied bythisCourt. It appears to be beyonddebate that the framers of ourConstitutionwere fully alive to the differingand disparate concepts of autrefois acquit and autrefois convict and H UNION OF INDIA & ANR. v. PURUSHOTIAM 863 [VIKRAMAJIT SEN, J.] consciously chose to circumscribethe doctrine of double A jeopardy only toprosecution culminating in a conviction.This facet of the law has already been carefully consideredby the ConstitutionBench in Maqbool Hussain vs. State of Bombay 1953 SCR 730, and we cannotdo betterthan extractthe relevant portionstherefrom:B 7. The fundamental right whichis guaranteed in Article20(2) enunciatesthe principle of "autrefois convict" or "double jeopardy".The rootsof that principle areto be found in the wellestablished ruie of thecommon law of England "thatwherea personhas beenconvictedof an C offence by a courtof competentjurisdictionthe conviction isa barto all further criminal proceedingsfor thesame offence".(Per Charles, J. in Reg v. Miles). To the same effectis theancientmaxim "Nimo Bis DebetPuniri pro Uno De/icto", that is to say that no oneoughtto betwiceD punishedfor oneoffenceor asit is sometimeswritten "Pro Eadem Causa", that is, for thesamecause. 11.Thesewere the materials whichformedthe background of theguaranteeof fundamental right given in E Article20(2). It incorporatedwithin its scopethe plea of "autrefoisconvict" as knownto theBritishjurisprudenceor the plea of double jeopardyas knownto theAmerican Constitutionbut circumscribedit by providing that there should be not only a prosecutionbut also a punishment in F thefirstinstance in orderto operateas a barto a second prosecutionand punishmentfor thesameoffence. 12.Thewords "before a court of law or judicial tribunal" arenot to be found in Article20(2). But if regard be had tothe whole backgroundindicated above it is clear G that in orderthat the protection of Article20(2) be invoked bya citizenthere must havebeena prosecutionand punishment in respect of thesameoffencebefore a court of law ora tribunal, requiredby law to decide the matters in controversyjudicially on evidence on oath whichit mustH A B c D 864 SUPREME COURT REPORTS [2015) 1 S.C.R. be authorised by law to administer and not beforea tribunal whichentertainsa departmentalor anadministrative enquiryeven thoughset up by a statutebut not required toproceedon legal evidencegiven on oath.The very wording of Article20 and the wordsused therein:- "convicted", "commission of the act chargedas an offence", "be subjected to a penalty", "commission of the offence","prosecuted,and punished,accused of any offence, would indicatethat the proceedingstherein contemplatedare of the nature of criminal proceedings before a court of law or a judicial tribunal and the prosecutionin thiscontext would mean an initiationor starting of proceedings of a criminal naturebeforea court of law or a judicial tribunal inaccordancewith the procedureprescribed in the statutewhich createsthe offenceand regulates the procedure. 11.Keepingin perspectivethis exposition of double jeopardyas postulated in ourConstitution,the obiter dicta in State of Bihar vs. Murad Ali Khan (1988)4 SCC 655, expressed enpassant by thetwoJudgeBenchdoes not E correctlyclarify the law, as this viewis contrary to thedictum of theConstitutionBench, which was not broughtto thenotice of theBench. 12.The US SupremeCourt has extensivelyexcogitated Foverthe conundrumas to whatconstitutesa successive "punishment" forthepurposes of attractingConstitutional protectionagainst Double Jeopardy, under the 5th Amendment. TheCourt, in John Hudsonv UnitedStates, 522 U.S. 93 (1997),affirmedthe distinctionbetween civil punishmentand Gproceedingsand criminal punishment and prosecution,and held that the FifthAmendmentproscribes two (or more) successivepunishmentsor prosecutions of a criminal nature only, andpermits civil punishment or proceedings either precedingor succeedinga criminal prosecutionor punishment. H In thecasebeforethe U.S. SupremeCourt, John Hudsonwas UNION OF INDIA & ANR. v. PURUSHOTTAM 865 [VIKRAMAJITSEN, J.] theChairmanof theFirst National Bank of Tiptonand the FirstA National Bank of Hammon, and used his positionto regainbank stock he had usedas collateral on defaultedloans through a seriesof bank loans tootherparties.Upon investigationthe Office of the Comptroller ofCurrency (OCC) foundthat the loans weremadein violation of several bankingstatues and B regulations.The OCC fined and debarred Hudson for the violations. Later,he facedcriminalindictment in the Federal District Court for violations tied to those sameevents.Hudson objected,arguing that the indictment violated the Double Jeopardy clause of the 5th Amendment. dverruling United c States v. Halper, 490U.S. 436(1989),whereinthe Court had ruled as unconstitutionalsuccessiveproceedings taking place in similar circumstancesto Hudson's case, the Courtin Hudsonreaffirmedthe distinction established betweenthe "civil" and "criminal" nature of the particular successiveD punishment, in United States v. Ward, 448 U.S. 242 (1980). The U.S. Supreme Court thusheld in Hudson's casethat the DoubleJeopardyclausedid notprecludehis subsequent criminal prosecution,because the OCC administrative proceedingswere civil, not criminal. Intera/ia, the civilnatureE ofthepunishmentwas ascertainedwith reference to the money penaltiesstatutes' express designationof theirsanctions as "civil". This referenceindubitablyeases the resolution of the DoubleJeopardyquestion in the presentAppeal.As has been detailedearlier, Article 20(2) does not. within it imbibethe principle of autrefoisacquit. The FifthAmendmentsafeguards,F inasmuch as itpostulatesboth autrefois acquit and autrefois convict, could have been interpreted to prohibit civil punishment even in thewakeof an acquittal in prosecution,but wasnot foundby the U.S. SupremeCourt to do so. A fortiori Article 20(2), whichcontemplates "prosecuted and punished"thus G evincingthe consciousexclusion of autrefois acquit, palpably · postulatesthat the prescribedsuccessivepunishmentmust be of a criminalcharacter. It irresistiblyfollows that departmental ordisciplinaryproceedings, even if punitive in amplitude, would not be outlawedby Article 20(2). H 866 SUPREME COURT REPORTS [2015) 1 S.C.R. A 13. In R. P. Kapur ~. Union of India AIR 1964 SC 787 the questionbefore the ConstitutionBench was that the Petitionertherein had been suspendedowing to thependency of criminal proceedingsagainst him which was challenged on the anvil of Article 314 of theConstitution.Thus, this decision Bis not of much relevance forthe resolution of the legal nodus beforeus, savefor theobservationsthat "if criminal charge results in conviction, disciplinary proceedingsare boundto follow againstthe public servant is convicted,even in case of acquittal proceedingsmay follow where the acquittal is other c than honourable." However, on this aspectof the law weneed go no furtherthan the recentdecision in DeputyGeneral of Police vs. S. Samuthiram (2013) 1 SCC 598, since it contains acomprehensivediscourse on all the prominentprecedents. This Court has concluded, andwe respectfully think correctly, 0 that acquittal of an employee by a Criminal Court would not automatically and conclusively impact Departmental proceedings. Firstly, this is becauseof thedisparatedegrees of proof in the two, viz. beyond reasonable doubt in criminal prosecutioncontrasted by preponderantproof in civil or E departmental enquiries. Secondly, criminal prosecution is not withinthe control of theconcerneddepartmentand acquittal could be theconsequence of shoddyinvestigationor slovenly assimilation of evidence,or lackadaisical if not collusive conduct of the Trial etc. Thirdly, an acquittal in a criminal prosecution may preclude a contrary conclusion in a F departmental enquiry if theformer is a positivedecision in contradistinctionto a passiveverdict which may be predicated on technicalinfirmities. In other words,the Criminal Court must concludethat the accused is innocentand not merelyconclude that he hasnot beenproved to be guiltybeyondreasonable Gdoubt. 14. Indeed, it appearsto us that the case in hand falls in thepassivecategorysince the Respondent has beenlet-off incorrectly on technicalities,and that too, on a veryimplausible Hand debatable if not speciousopinion of the JAG Branch.A UNION OF INDIA & ANR. v. PURUSHOTTAM 867 [VIKRAMAJIT SEN, J.] Summary Court Martial was held on 11th April, 2002 in whichA Lt. Col P. Bhutaniwas present as the'friend of the Accused; aJong with JC M. Sub KC Manochaas the Interpreter. At the Arraignment theAccused/Respondent pleaded guiltyof both charges. It hasbeencertifiedby theCourtthat the Respondent hadbeen explained the meaning of the chargesand that he B understoodthem as also the effectand consequencesof his having pleadedguilty. In the Summary of Evidencefour witnesseswere questioned,one cross-examinedand this opportunitywas declined by Respondentfor the. others. After advisingdue cautionthe Accused/Respondentgave a detailed C statement. It was the opinionof theReviewingOfficer that Army Ru1e 116(4)required the 'Guilty' plea to be altered to'Not Guilty' predicated onthe unsubstantiated and unsustainable conclusion thatthe Respondentdid notunderstandthe effect oftheformer.Premised on this conclusion, his recommendation o wasfor settingaside the proceeding and sentenceof 'reduction torankof Naik' and also directingthat the accusedbe relieved of all consequences of the Trial. Curiously enough,the ReviewingAuthority also opined: "Notwithstanding the ibid, setting aside due to incorrect framing of charge andE lackadaisical recording of evidence at the Summary of Evidence,the evidenceshows that the accusedmisusedhis positionas a memberof CMPand misappropriatedvarious items.Therefore, in my opinion,his conductrenders his retention in service undesirable. You may accordingly initiateF actionto progresshis casefor administrativedischarge under theprovisions of Army Rule, 13". It is in thisbackdropthat we think it tobe illogical to hold theopinionthat the Respondent hadearned an honourableacquittal. Consequently, whether on reliance of the Double Jeopardy principle or on the setting aside of his punishment, Departmental or Disciplinary G proceedingsought not to be viewedas precluded.Ironically and paradoxically, we maycomment,the Respondenthas been made vulnerable to afarmorestringentaction by settingaside thefindings in the Court Martial in thatfroma comparatively lenient punishment of being lowered in rank he hasbeenH 868 SUPREME COURT REPORTS [2015) 1 S.C.R. Adischargedfrom service. B c 15.Section 121 of theArmyAct requiresspecial scrutiny inasmuchas it specifiesthat: 121.Prohibition of second trial. - When any persol) subjectto thisAct hasbeenacquittedor convicted of an offence by a court-martialor by a criminalcourt, or has beendealt with underany of the sections 80, 83, 84 and 85, he shall not be liable to be triedagainfor thesame offenceby a court- martialor dealtwith underthe said sections. 16. The language immediatelydistinguishesit fromArticle 20(2) sinceit palpably postulatesboth autrefois acquit and autrefois convict to a court-martialor a trial by criminal courts, 0 butthenrestrictsthe insulation only to a secondcourt-martial ora dealingunder Sections 80, 83, 84 and 85 of theArmyAct. A conjoint perusal ofSections 121, 125and 126 will clarify that asimultaneous court-martial and trial by a Criminal Court is not contemplated.Furthermore, the ArmyAct is rightlyreticent on E thejurisdictionand powersof criminal courts. Although the questiondoes not arisebefore us, we cannotrefrain from ruminatingon the vires of Section126(2) inasmuchas it postulates primacy to the Central Government of a determinationas to whetherthe CourtMartialor criminalcourt F shall havecustody of the offender regardless of thedecision ofthecriminalcourt. Although Section 127 of theArmyAct stands repealed by theArmy(Amendment)Act, 1992it did not sufferfrom the samevice in that the Central Government possessedthe powerto grantor desistfrom grantingsanction fora second/successive trial by aCriminalCourt. The erstwhile Gprovisionread so:- 127. (1) Apersonconvictedor acquitted by a court martial may,with the previoussanction of the . CentralGovernment, be tried againby a criminal Hcourt for thesameoffence,or on the samefacts. UNION OF INDIA & ANR. v. PURUSHOTTAM 869 [VIKRAMAJIT SEN,J.] (2) If apersonsentencedby a court-martial underthis A Actor punishedunder any of thesections 80, 83, 84or 85is afterwardstried and convictedby a criminal courtfor thesameoffence,or on the same facts,that court shall, in awardingpunishment,have regardto thepunishmenthe mayalreadyhave B undergonefor thesaid offence". 17. Although thisquestionalso doesnot arisebeforeus, Section 300 ofCriminalProcedure,1973 may arguably not be inharmonywith the Constitutionsince it contemplates both C autrefoisacquit and autrefoisconvict even thougha conscious decision had beentakenby theDraftersof ourConstitutionthat protection only asregardsthe latter shall be available. Of course,the Cr.P.C.grants much widerprotectionto the individualand for thisreasonhas understandablynot been assailed on the touchstone of Article 20(2) of theConstitution.D We must againadvertto thespeechof Mr. NaziruddinAhmad, whohad remindedthe ConstituentAssembly of thisvery position,namely, of thewiderparametersof Double Jeopardy enshrinedeven in the thenextantCr.P.C., and his pitchfor the Constitution to dolikewise.E 18.This would be theopportunetime to considerthe Three-JudgeBench decision in Chief of Army Staff vs. Major DharamPal Kukrety, 1985(2) sec 412, for thereasonthat inthefactsobtainingin thatcasethe findingof theCourt Martial wasnot confirmedwhich broughtinto play Section 153 of the ArmyAct, 1950 which ordains that no findingor sentence ofa general,district or summarygeneral, court-martial shall be valid except so far as it may be confirmed.This Courtwas of F the viewthat therewas "no expressprovisionin theArmyAct G whichempowersthe holding of a freshcourt-martialwhen the findingof a court-martialon a revisionis not confirmed". It, thereafter, construed Rule 14 of the Army Rules as unrestrainedly enabling theChiefof Army Staff to: (a) dismiss or(b)removeor (c)compulsoryretire from serviceany officer. H 870 SUPREME COURT REPORTS[2015) 1 S.C.R. A Eventhough the aspect of honourableacquittal was not pressed into service in Kukrety,this element wouldalso have beenrelevant in holdingit legally permissibleto takeaction underthe ArmyRules.Furthermore, Article 20(2) is nota restrainton eventhe initiation of a fresh CourtMartial, as the Bcasemay be. Kukrety was a commissionedofficer unlike the casewith whichwe are presentlydealing. Rule 14 permitsthe afore-mentionedactions being takenwith the concurrence of the Central Government whilst the pandectcomprising Rules 11, 12 and13 deals withdischargeetc. of every person c enrolledunder the ArmyAct. We mustimmediatelyhark back toSection 20 of theArmyAct whichempowersthe dismissal or removal fromservice of any personsubject-tothis Act,other than a commissionedofficer. 19.The ShowCause Noticeimpugnedbefore the High D Court waspredicated on Rule 13 by obviously circuitously takingrecourseto theresiduary clause 13(3)(111)(V) of the relevant Table, We have consciously usedthe word'circuitously' for the reasonthat the Appellantscould have resortedto Section 20 of the ArmyAct. We mayadd a word of caution Ehere-thepowerto doa particular actmustbe located in the statute,and if the rules framed under the statuteordain an action not contemplated by thestatute,it would suffer from the vice of excessive delegation and would on this platform be held ultra vires. Rules areframed for dealing in detail withmyriad Fsituations that maymanifest themselves, for theguidance of the concernedAuthority. Rules must, therefore,be interpreted in a mannerwhich wouldreposethem in harmonywith the parentstatute.Based on our experience,it seemsto usthat theArmyAuthoritiesare oftenconsumedby theArmy Rules G without fully comprehendingthe scopeof theArmyAct itself. H 20. AnotherThree-JudgeBench in Union oflndia vs. Harjeet Singh Sandhu, 2001 (5) SCC 593, considered Kukrety and then concluded that if the decision of the Court Martial isnotconfirmed,the disciplinaryaction, whethera UNION OF INDIA & ANR. v. PURUSHOTTAM 871 [VIKRAMAJITSEN, J.] dismissal (or, for thatmatter,a discharge)may be resortedto. A Rule 14(2)was construedby thisCourtto enable the Central Governmentor theChiefof Army Staff toarriveat a satisfaction thatsinceit isinexpedientor impracticable to havethe officer triedby a court martial, to eitherdismiss,remove or compulsory retire the officeror theconcernedofficer.B 21.TheimpugnedJudgment holds that "though in the summaryCourt Martial proceedingsinitiated against the petitioner on thebasisof samechargeshave beenset aside andthe petitionerhas succeeded,the subsequentshow cause C notice for discharge relies on thesame very chargesto dischargethe petitioner,which in our viewcannotbe sustained. The result of theaforesaidis thatthe impugnedorder of dischargecannot be sustained and is herebyquashedwith all consequential benefitsto thepetitioner.This will however, not preclude the respondentfrom takingany departmental actionD against the petitioner in respect of the allegations in accordancewith law". These conclusions we are unable to sustain. In the firstplace thereis no complete ban on a second Court Martial, providedit iswithinthe prescribedperiod of limitation, etc. Secondly, as hasbeen .held in Kukrety andE indirectly affirmed in Sandhu,where the decision of thecourt martialfails to findconfirmation,the effectis thatit cannot be consideredthat a court martial has, in fact,been concluded and further, in our opinion, so as to debara freshone. The Double Jeopardy principle contained in Section 121 has only premisedF theprohibition of a second trial in casethe firstone leads to punishment/conviction. 22. The Discharge Certificate issued against the Respondentunder Rule 13 interestingly describes his characterG atthetimeof Dischargeas being "exemplary". Thisrecording is eminentlyirreconcilable with the findingsin theorder of settingaside, illegal as it was,by DeputyJudge-Advocate General, which concluded that the Respondentwas liable to be discharged for misconduct,being unfit for furtherservice in the H 872 SUPREME COURT REPORTS[2015} 1 S.C.R. A Army,havingmisappropriatedvarious items. This dissonance furtherdiscreditsand makesunsustainablethe discharge proceedingsunder Rule 13, whichwe have already described ascircuitouslyhaving been exercised on the basisof a residual entry,and in supersessionof theArmyAct's dismissalpowers, Bwhichare appositelyexercisableas a sequel to failed Court Martial proceedings.The DischargeCertificate,issued under Section23 readwith Rule 12, beingthe conclusivestep of the dischargeproceedings,cannot thereforestand. C 23. Theostensibleorder of settingaside underSection 162 that has been placed on record is DeputyJudge-Advocate General'sorder, but this is not theauthorityconceived of by Section162. Thereis noorder by a competentofficer or authorityunder Section162 indicatingthe settingaside of .D proceedings on merits, in the exerciseof thereviewingfunction underSection162. The Appellants haveendeavoured availing of Rule 133 of theArmyAct in conjunctionwith Section162 thereof to legitimise theorder. Rule 133states: 133.Review of proceedings.- The p"'roceedings of a Esummarycourt-martial shall, immediately on promulgation, beforwarded(through the DeputyJudge-Advocate General of thecommand in whichthe trial is held) to the officerauthorized to deal with them in pursuanceof section 162,Afterreviewby him,they will be returnedto the Faccusedperson'scorps for preservation in accordance with sub-rule (2) of rule 146. · Rule 133doesnot empowerDeputy Judge-Advocate General as thereviewingauthority, but merely confers on it a forwardingfunction, the Rule stating that the proceedingsof the .G SCM on promulgationrequire to be forwarded to thecompetent officerunder Section 162, but only parentheticallyprovides that this will occur "through" DeputyJudge-Advocate General. This cannot be interpretedsubstitutively, as enshrining in Deputy Judge-Advocate General thestatutoryremit of thereviewing Hauthorityunder Section162. Thisapart,it has alre:idy been UNION OF INDIA & ANR. v. PURUSHOTIAM 873 [VIKRAMAJITSEN, J.] opinedby usheretoforethat the settingaside took placeA "technically" and therefureimpermissiblyin terms of Section 162. 24. We also find it appositeto addthat thoughthere was incongruitybetween the DeputyJudge-AdvocateGeneral 8 (actingas theReviewingAuthority) and the Summary Court Martial,resulting in a nugatory Court Martialprocess,a perusal of theAct,as well as thefacts on record, willreveal thatthis neednot havebeen.A SummaryCourt Martial does not require forits efficacy,finality and validity,the confirmation of the C ConfirmingAuthority, as has beenmandatedfor theotherthree classes (supra)of CourtMartial,enumerated in Section 153. Section 161 (1) expresslystates that the findingand sentence of a Summary Court Martialshall not require to be confirmed, butmay be carriedout forthwith.However, Section 162 requires transmissionof proceedingswithout delay to be forwarded to D thecompetentofficer, commandingthe divisionor brigade in whichthe trialwasheld,or totheprescribedofficer; and such officer,or theChiefof Army Staff, oranyotherempowered in this behalfby theChiefof Army Staff, mayfor reasonsbased on the meritsof thecase,but not merelytechnicalgrounds, set E asidethe proceedingsor reducethe sentenceto anyother sentencewhich the court(martial)might have passed.This beinga transmissionof proceedingsunder Section 162, the ReviewingAuthority'sbasis for insistencethat a plea of "not guilty" oughtto havebeenrecordedafter the summary of evidence,based upon the statementof evidencegiven by the Respondenttherein, and subsequentsetting aside of the consequencesof the Court Martialpresidedby the Officer Commanding,cannot stand. On a demurrer,at the Summary F of Evidence,the Respondenthad onlycontestedthe ChargeG of his havingextortedthe coal hammer,stating in reply thereto that he hadrequestedfor onehammerwhich was to be returnedat theendof winter,and thatuponopeningthe bag, foundtwo therein.There are no averments in hisdefenceto be found in the Summary ofEvidence,as to thechargeof extorting H 874 SUPREME COURT REPORTS [2015] 1 S.C.R. A highspeed diesel. Furthermore,the Respondentdid notmake anyStatement of Defenceat the Summary Court Martial hearing itself, andneitherproducedany defencewitnesses on his behalf nor crossexaminedeither of the twoprosecutionwitnesses therein.Faced with these inescapable facts,the Reviewing BAuthority could not haveset asidethe proceedings on sucha technical ground-which Section 162 expressly prohibits-that a plea of "notguilty"should have beenrecordedunder Army Rule 116(4) in respectof bothchargesof extortion, as theeffect of theRespondent's plea of "guilty" wasnot fully understoodby c him. The Court Martial finding and sentenceought to have been left undisturbed by the ReviewingAuthority, self-sufficientlyvalid as it wasunder Section 161 (1). 25.TheArmy Act andthe Rules framedthereunder specifically contemplate thatany personother than an officer Dsubject to the Actmaybe dismissedor removedfrom service under Section 20 of theAct;and any suchpersonmay be dismissed,removed or reduced in rankunder Section 20 read with Rule 17.TheHighCourthas not failed to appreciatethis dichotomyinasmuch as it hasnot precluded the taking of E departmental action.The differenceis thatthe departmental action is exactly whatwas takenand additionallywhat has now beenpermittedby the Impugned Judgment to beinitiated. 26. It is withthe above clarifications that we dispose of the F Appeal byrestoringthe order of the Summary Court Martial, yet notprohibitingthe Appellants to proceed in accordancewith law. Kalpana K. TripathyAppeal disposedof. |
