LexUNION OF INDIA & ORS. versus A K. PANDEY
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~ [2009) 14 (ADDL.} S.C.R. 528 · A UNION OF INDIA & ORS. v. AK. PANDEY (Civil Appeal No. 6181 of 2002) B SEPTEMBER 16, 2009 .·, [B.N. AGRAWAL, AFTAB ALAM AND R.M. LODHA, JJ.] · Army Rules, 1954 - Ri.Jle · 34 -·Provision regarding ii>. interval of ninety-six hours from the service of the charge for ~ c which accused is to be tried and his arraignment - Na.ture of - Held: Is absolute and mandatory - Time frame has definite : ' purp·ose and object - It must be strictly observed - Non- . observance would vitiate the entire proceedings - On facts, time interval of ninety-six hours as provided in Rule 34 not . + D complied with - Accused having pleaded guilty of charges; is immaterial - Thus, order of courts below quashing and setting aside the General Court Martial proceedings, upheld. Interpretation of statutes - Nature of statute .- E Determination of - Held: Prohibitive or negative words are ordinarily indicative of the mandatory nature of provision, though not conclusive - Court has to examine carefully -¥ purpose of such provision and consequences that may follow from its non-observance. F The question which arose for consideration ih this appeal is whether the provision in Rule 34 of the Army Rules, 1954 that the interval between the accused being informed of charge for which he is to be tried and his arraignment shall not be less than ninety-six hours, is G mandatory or directory. J. Dismis;;ing the appeal, the Court HELD: 1.1. The prohibitive or negative words are H 52P ~ UNION OF INDIA & ORS. v. A.K. PANDEY 529 ordinarily indicative of mandatory nature of the provision, A although not conclusive. The Court has to examine carefully the purpose of such provision and the consequences that may follow from non-observance thereof. If the context does not show nor demands otherwise, the text of a statutory provision couched in a B negative form ordinarily has to be read in the form of command. When the word "shall" is followed by ~ prohibitive or negative words, the legislative intention of making the provision absolute, peremptory and imperative becomes, loud and clear and ordinarily has to c be inferred as such. [Para 22] [541-F-H; 542-A] 1.2. The key words used in Rule 34 of the Army Rules, 1954 from which the intendment is to be found are ~ "shall not be less than ninety-six hours". There being nothing in the context otherwise, there has to be clear D ninety six hours interval between the accused being charged for which he is to be tried and his arraignment and interval time in Rule 34 must be read absolute. There is a purpose behind this provision: that before the accused is called upon for trial, he must be given E adequate time to give a cool thought to the charge or .,. charges for which he is to be tried, decide about his defence and ask the authorities, if necessary, to take reasonable steps in procuring the attendance of his witnesses. He may even decide not to defend the F charge(s) but before he decides his line of action, he must be given clear ninety-six hours. A trial before General Court Martial entails grave consequences. The accused may be sentenced to suffer imprisonment. He may be :.. dismissed from service. The consequences that may G follow from non-observance of the· time interval provided in Rule 34 being grave and severe, said provision is absolute and mandatory. If the interval period provided in Rule 34 is held to be directory and its strict observance H 530 SUPREME COURT REPORTS [2009) 14 (ADDL.} S.C.R. A is not insisted upon, in a given case, an accused may be called upon for trial befor~ General Court Martial no sooner charge/charges for which he is to be tried are served. Surely, that is not the intention; the timeframe provided in Rule 34 has definite purpose and object and B must be strictly observed. Its non-observance vitiates the entire proceedings. [Paras 13 and 22] [534-E; 542-A-F] 1.3. The respondent was informed of the charges for _.. which he was to be tried by General Court Martial on C ~ovember 2, 1995 at 1800 hours. Although the respondent was informed that he would be tried by General Court Martial on November 6, 1995 at 1130 hours but the proceedings of the General Court Martial clearly shows that the trial commenced at 1010 hours. The interval between the respondent having been informed ~ D of the charges for which he was to be tried and his arraignment was less th
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