LexSOM DATT DATTA versus UNION OF INDIA AND ORS.
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A , B v • c - D E F G H SOM DATI DATIA v. UNION OF INDIA AND ORS. September 20, 1968 [M. HIDAYATULLAH, C.J., J. C. SHAH, V. RAMAS\VAMI, G. K. MITTER, AND A. N. GROVER, JJ.] Army Act, 46 of 1950, ss. 125, 126, 164 and !65-First Information Report of offences by Army Officer and others made to civil police- Police inspector taking some preliminary steps then stopping investigation at the request of Army authorities-Area Commander immediately ap- pointing Court of Inquiry to investigate-After trial by Court Martwl accused convicted of offences under ss. 304 and 149 I.P.C.-Whether Court Martial or ordinary criminal court had jurisdiction to try the case.-When Rules 3 and 5 of Rules framed under s. 549 Cr. P.C. applicable.-If reasons required to be given by G.0.C. while deciding petition under s. 164 and b,v the Central Government while deciding appeal urtder s. 165-Army Rules, 1954, ss. 50(2) and !21(4)-When attracted. . The petitioner, a Second Lieutenant in the army, was involved in a quarrel between two groups of soldiers on September 1, 1965 which led to an altercation and tbe stabbing and death of a soldier. On September 2, 1965, the matter was reported to tbe Civil Police at the local police station. The Inspector of Police inspected the place of occurence on the same day, seized certain exhibits produced by an Army Officer, held an inquest on the dead body of the deceased soldier and sent it for post- mortem examination through a police constable. Later on the same day, he stopped further investigation as the Army Officer incharge wanted tbe case to be handled by the Military authorities. On September 2, 1965, a Court of Inquiry under tbe provisions of Ch. VI of th<l Army Rules was ordered by the Commander for the area. After the Court of Inquiry had concluded its proceedings, a Court Martial was constituted by an order dated August 11, 1966, by tbe General Officer Commanding for the area to try the petitioner and other accused persons. The Court-Martial came to the finding that the peti- tioner was guilty of culpable homicide not amounting to murder, and that he was a member of an unlawful assembly; it sentenced him to cashiering and six years rigorous imprisonment. The petitioner filed a petition under section 164 of the Army Act, but this was dismissed by the confirming authority and the finding and sentence of the Court- Material was confirmed. The petitioner's appeal under section 165 of the Army Act to the Central Government was also dismissed. In the present petition under Article 32 of tbe Constitution, the petitioner sought a writ of certiorari to quash the proceedings of tbe Court-Martial. It was contended on his behalf (i) tbat the Court- Martial had no jurisdiction to try and convict him of offences under ss. 304 and 149 I.P.C. having regard to the mandatory provisions of s. 125 Of the Army Act and having also regard to the fact that the Army Officer incharge had in the first instance decided to hand over the matter for in- vestigation to the Civil Police; (ii) that no notice was given by the Com- manding Officer to the Magistrate under Rule 5 of the Rules framed by the Central Government under s. 549 of the Criminal Procedure Code, that the petitioner should be tried by a Court-Martial; the Criminal. Court alone 178 SUPREME COURT REPORTS [1969] 2 S.C.R. therefore bad jurisdiction under Rule 3 to try the petitioner for the offence A charged; (iii) that even if the Court-Martial had jnrisdiction, it could not give a finding of guilt against the petitioner with regard to culpable homicide not amounting to murder unless the charge was altered anµ amended in accordance with sub-rule 2 of Rule 50 of the Army Rules, 1954; the . procedure contemplated by Rule 121 ( 4) of the Army Rules was not followed by the Court-Martial and .its finding must therefore be held to be defective; and (iv) that the orders of the1 Chief of the Army Staff confirming the proceedings of the Court-Martial under s. 164 of the Army B Act and of the Central Government dismissing the petitioners appeal under s. 165 were illegal since no reasons bad been given in support of. the decisions contained in them. HELD : Dismissing the petition : (i) Merely because the First Information Report was lodged with C the civil police on September 2 and the Inspector of Police inspected the place of occurrence, seized certain exhibits and held an inquest on the bod
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