UNION OF INDIA & ORS. versus VISHAV PRIYA SINGH

Citation: [2016] 5 S.C.R. 473 · Decided: 05-07-2016 · Supreme Court of India · Bench: T.S. THAKUR · Disposal: Disposed off

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Judgment (excerpt)

[2016] 5 S.C.R. 473 
UNION OF INDIA & ORS. 
v. 
VISHAY PRIYA SINGH 
(Civil Appeal No. 8360 of2010) 
JULYOS,2016 
[T.S. THAKUR, CJI, AND UDAY UMESH LALIT, J.) 
Army Act, I950 - ss.116 and I20 - Summary Court Martial 
(SCM) - Whether can be convened, constituted and completed by 
the Commanding Officer (CO) of the Unit other than the present 
Unit of the accused (i.e. the Unit to which the accused is attached) 
- Delhi High Court dismissed the writ petitions of the accused on 
the ground of competence of the CO as the SCM were convened, 
constituted and completed by the CO of the Unit other than the 
present Unit of the accused - Rajasthan High Court dismissed the 
cases of accused deciding the cases on merit - On appeal, held: It 
is not imperative that an SCM can be convened, constituted and 
completed by the CO of the Unit to which the accused belonged - It 
is competent and permissible for the CO of the Unit to which the 
accused was attached or sent on attachment for the purpose of 
trial - If the offence is linked to the Unit to which the accused is 
attached, the CO of the attached Unit is competent to convene, 
constitute and complete SCM, being in seisin of the matter - CO of 
the parent Unit has nothing to do in such case - The matters arising 
out of order of Delhi High Court are remanded to decide the case 
on merit - Other matters are liable to be dismissed - Army Rules, 
1954 - rr. 39, 133 and 146 - Defence Service Regulations - Regns. 
9 and 38I. 
Allowing the appeals arising out of order of Delhi High Court 
and remitting them to High Court, and dismissing other appeals, 
the Court 
HELD: 1. The Army Act has given drastic power to one 
single individual, namely, the Commanding Officer (CO) who alone 
is to constitute the Court. No doubt, this power comes with 
restrictions insofar as the power to award sentence is concerned 
in terms of sub-Sections (4) & (5) of Section 120 of Army Act, 
1950. However, even with such restrictions the power is quite 
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SUPREME COURT REPORTS 
[2016] 5 S.C.R. 
drastic. The reason for conferment of such power is obvious that 
in order to maintain discipline among the soldiers and units, the. 
CO must have certain special powers, for it is the discipline which 
to a great extent binds the unit and makes it a co-hesive force. 
The High Court of Delhi was therefore completely correct in 
observing that such power must be exercised rarely and when it 
is absolutely imperative that immediate action is called for. The 
satisfaction in that behalf must either be articulated in writing or 
be available on record, specially when the matter can be 
considered on merits by a tribunal, with the coming into force of 
the Armed Forces Tribunals Act, 2007. [Paras 19, 20) [495-G-H; 
496-A-C] 
2. It cannot be said that only offences under Sections 34, 
37 and 69 of the 1950 Act could be tried by an SCM. The provision 
in Section 120(2) of the 1950 Act requiring a reference to the 
superior authority which thought is again echoed in proviso to 
Army Rule 22 (3) of the Rules, is a salutory provision and a check 
on the exercise of drastic power conferred upon a CO and must 
be scrupulously observed. A case for non-adherence to this 
requirement must be made out on record and any deviation or 
non observance of statutory requirements must be viewed 
seriously. Offences under Sections 34, 37 and 69 of the Act are 
special categories or kinds of offences where a reference to the 
officer empowered to convene a DCM or an SGCM is considered 
imperative unless there are grave reasons for immediate action. 
Similarly, the offences against the officer holding the Court, 
where that officer could possibly "be a judge in his own cause", 
are also put at the same level and similar reference under sub-
section (2) ought to be made. The exercise of power in seeking 
such reference and consequent consideration in respect thereof 
must be in keeping with the seriousness attached in respect of 
these offences. [Paras 22, 23) [497-C-F] 
3.1 As regards the question as to which CO is competent 
to convene, constitute and complete the SCM. Is it CO of the 
Unit to which the accused belonged or CO of the Unit to which 
he was attached or came to be attached. In this connection there 
could possibly be three kinds of situations: (a) An accused 
committing an act constituting an offence while he was part of his 
UNION OF INDIA & ORS. v. VISHAY PRIYA SINGH 
reg

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