UNION OF INDIA AND ORS. versus MAJOR GENERAL MADAN LAL YADAV (RETD.)

Citation: [1996] 3 S.C.R. 785 · Decided: 22-03-1996 · Supreme Court of India · Bench: K. RAMASWAMY · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

UNION OF INDIA AND ORS. 
v. 
MAJOR GENERAL MADAN LAL YADAV (RETD.) 
MARCH 22, 1996 
[K. RAMASWAMY, S. SAGHIR AHMAD 
AND G.B. PATTANAIK, JJ] 
Anny Act, 1950/Anny Rules, 1954 : 
A 
B 
S.123(2)/Rule 45-Liabi/ity of offender ceased to be subject to C 
Act-Constitution of general Court Martiai-Trial-Commenceme11t 
of-Held, trial commences the ·moment general Court Martial assembles to 
consider the charge-Membe1~ of Court-Martial 011 nomination get jurisdic-
tion to t1y the offender for offence under the Act. 
Legal Maxims: 
'nullus commodum capere potest de injuria sua propriaL..applied. 
'frustra legis auxilium quoerit in le gem committi '-<:ited. 
Words and Phrases : 
'Trial' 'Contmence'--Meaning of-explained. 
Action under s.123 of Army Act, 1950 was initiated against the 
respondent for dereliction of duty in respect of local purchases sanctioned 
D 
E 
by him while he was working as Major General, Army Ordinance Corps, F 
Southern Command, Pone and was incharge of purchases. He was ordered 
to retire. He challenged the order before the High Court by tiling a writ 
petition, which was dismissed. Thereafter the respondent was kept under 
open arrest from 30.8.1986 and retired from service on 31.8.1986. A charge 
sheet was issued to him and recording of evidence commenced. The respon-
dent refused to cross-examine the witnesses examined at preliminary G 
enquiry and sought adjournments. He filed a habeas corpus petition which 
was dismissed. Ultimately, on completion of the preliminary inquiry, 
general Court Marital (GCM) was ordered ou 24.2.1987. The GCM as-
sembled on 25.2.1987 and, on perusal of the record, opined that the 
respondent should be tried for the offence. The respondent was directed H 
785 
786 
SUPREME COURT REPORTS 
[1996] 3 S.C.R. 
A to be produced on 26.2.1987, but it was found that he had escaped military 
custody in the night between February 15 and 16, 1987. Warrant was issued 
for his arrest and the case was adjourned. The respondent surrendered on 
1.3.1987 and the Court Martial again assembled on 2.3.1987. 
B 
Meanwhile the respondent filed a writ petition before the Bombay 
High Court challenging the jurisdiction of the Court Martial to try him. 
The High Court allowed the writ petition holding the trial of the respon· 
dent by the Court Martial as illegal since the trial had not commenced 
within six months of the respondent ceasing to be subject to the Act as 
envisaged by sub-section (2) of s.123 of the Act. Aggrieved, the Union of 
C India filed the present appeal. 
Allowing the appeal, this Court 
HELD : 1.1. TI1e trial of the respondent commenced on 25.2.1987 on 
which date the general Court-Martial assembled, i.e. within six months 
D after the respondent had ceased to be subject to the Army Act, 1950 on his 
retirement on 31.8.1986, as by prescription of six months' limitation under 
sub-section (2) of s.123 of the Act the trial was to commence before 
February 28, 1987. [789-H; 790-H; 791-A) 
1.2. 'Trial' means act of proving or Judi~!,¢! i;xamination or deter-
E mination of the issues including its own jurisdlctien or autl1ority in accord-
ance with law or adjudging guilt or innocence of the accnsed including all 
steps necessary thereto. The trial commences with performance of the first 
act or steps necessary or essential to proceed with trial. [797-FJ 
F 
Om Prablta Jai1t v. Gian Chand & Anr., AIR (1969) SC 837, relied on. 
Collins English Dictionary, Ballentine's Law Dictionary (2nd Edn.) 
Black's Law Dictionary, Webster's Comprehensive Dictio1tary Intemational 
Ed1t. 'Words and Phrases' (Penna1tent Editio1t), Vol. 42A, referred to. 
1.3. Two views would be possible while considering as to when the 
G trial commences. The broader view is that trial commences the moment 
the GCM assembles for proceeding with the trial, consideration of the 
charge and arraignment of the accused to proceed further with the trial 
including all preliminaries like objections to the inclusion of the members 
of the Court Martial, reading out the charge/charges, amendment thereof 
H etc. The narrow view is that trial commences with the actual administra-
I 
t 
U.0.1.v. MAJORGENERALM.L. YADAV 
787 
tion of oath to the members etc. and the prosecution is called upon to A 
examine the witnesses when the accused pleads not guilty. From a conspec-
tus of the scheme of the Act and the Army Rules, 1954, the broader view 
appears to be more conducive to and consistent with the scheme of the Act 
and the Rules

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