LexCAPTAIN HARISH UPPAL versus UNION OF INDIA AND OTHERS
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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CAPTAIN HARISH UPPAL
v.
UNION OF INDIA AND OTHERS
November 27, 1972
[A. ALAGIRISWAMI AND C. A.
YAlDIALINGAM, JJ.]
1025
Arniy Act, 1950, Sec1io11s 158 and 160-Upward r£•1•isio11 of sentcnce-
Wltether violative of 1u1tura/ justice principle in the circunutances nf the
casc.
Arniy Act, Sectio1: 160--Whe1Jr,·r oppurt1111i1y to he liearcl nece.'i,\'tll)'
u·hen Co11firn1ing Officer decides· to send /luck tire
1n~TtC'r to the Court
Martial for considering upward rtl!ision of the se111e11ce.
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Anny Act, Sections 112 and 151-IVht•ther the u·ords 'autliorif)" and
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'Officer·· denote different authorities.
Anny Act, Section 164-Whether oppor1u11ity to he heard lll!CL'ssary
he/ore confinnation of upu·ard re\·isio1f of S£'11ten<.·e hy the Anny Chief of
the Staff. '
The petitioner was found guilty by the Court Martial (acting under the
Army Act) under section 392 IPC of committing robberies of a bank pro·
perty and the private property of the Manager and peons of the Bank
during the period of the liberation of Bangladesh, in Bangla Dcsh.
The
Court Martial sentenced the petitioner 'to be cashiered'. \Vhl!n the matter
went to the Officer Commanding under \\'horn the petitioner \~·as working
as an Officer, for confirmation of the sentence u/s 153 of the Act, he
returned the same 10 the Court Martial for re~considering whether the
upward revision of sentence was necessary in the light of the observ'ations
made by the Confirming Officer. The Confirming Officer had pointed out
in his report that the robberies were committed during the liherl)tion of
Bangladesh where the Indian Forces had gone as libfrators antl as guar·
dians and custodians of the life and properly of the people -0f Bangladesh.
Considering the nature a.id gravity and maintenance of high standard of
discipline in the Armed Forces, the sentcn..::e awarded was net commcn·
surate. The Confirming Officer further directed that the delinquent officer
should be given opportunity to. address the Court, if he so desired, if the
Court decides to enhance the sentence.
In the fresh proceedings before
the Court Martial, the Officer .did not prc'°nt himself. The Court Martial
revoked the ea:-lier sentence· and scntenc~d him to be cashiered and to
suffer rigorous imprisonment for two ye•rs.
The s•id sentence was duly
confirmed by the Chief of the Army Staff. Jn the petition challenging the
legality of the order under Art.. 32 of the Constitution, the petitioner con·
tended that the impugned order was bz,d for the violation of the principle
of natural justice inasmuch as that the Court Martial white re-considering
the sentence did not act as a free agent, that no opportunity of being heard
was given lo the Officer at the time of remand and 1\t the time of the
final confirmation by the Army Chief of the Staff and th•t the revision
was recommended by an officer subordinate in rank to the officer who con·
vened the Court Martial.
Jn dismissing the I- ~titian,
HELD : (i) Sec. 158 of the Army Act describes the procedure regard·
ing the re-consideration df the sentence by the Court Martial.
In conM
sidering a petition filed under Art. 32 of the Coristitution, the orily relevant
Article is Art. 21, and the procedure established by law has been com-
1026
SUPREME COURT REPORTS
[1973] 2 S.C.R.
pletely followed in this case. The circumstanc~ requiring the reconsidera-
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tion pointed out by the Officer Commanding were unexceptionable and
there was no violation of the principle of natural justice. The petitioner
failed to appear before the Court Martial in the fresh hearing. [1031 C-D]
A. K. Kraipak & Ors. Etc. v. Union of India and Ors. (1970] (1) SCR
457 ancJ Purtabpore Co. Ltd. v. Cari<! Commissioner of Bihar & Ors."
{1909J (2) SCR 807, distinguished.
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(ii) No opportunity to be heard was necessary before the Confirming
Officer formed the opinion to send the case back to the Court Martial for
re-consideration of sentence. fl 032 CJ
(ii) The words 'authority' and 'Officer' in Sec. 112. of the Army Act
have one and the same meaning. The Officer recommending the reconsi-
deration or the sentence was also an Officer ccmmanding the ·Division
though he was only officiating and wu a Brigadier. The actual confirma-
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tion of the enhanced sentence was made by the Chie'f of Army Staff who
was higher in rank than the convening Officer. [1033 C)
(iv) In the face of the very clear indication in the ConstitutionExcerpt shown. Read the full judgment & AI analysis in Lexace.