Ram Sarup vs The Union Of India And Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Petition No. 166 of 1963

Decision Date: 12 December 1963

Coram: Raghubar Dayal, Bhuvneshwar P. Sinha, K.N. Wanchoo, N. Rajagopala Ayyangar, J.R. Mudholkar

In the matter of Ram Sarup versus the Union of India and another, decided on 12 December 1963, the Supreme Court of India rendered its judgment. The case appeared in the reports 1965 AIR 247 and 1964 SCR (5) 931, among other citations. The bench that heard the case consisted of Justices Raghubar Dayal, Bhuvneshwar P. Sinha, K. N. Wanchoo, N. Rajagopala Ayyangar, and J. R. Mudholkar. The petitioner, Ram Sarup, who was a sepoy, had been tried by a General Court Martial and sentenced to death under section 69 of the Army Act read with section 302 of the Indian Penal Code for allegedly shooting dead two sepoys and a Havildar. The death sentence was confirmed by the Central Government. After the confirmation, the petitioner filed writs of habeas corpus and certiorari seeking to set aside both the Court Martial’s order and the Government’s confirmation and to secure his release. The Court considered several points. First, it noted that the petitioner had never requested representation at the Court Martial by counsel of his own choice; therefore no such request was refused and no violation of his right to choose counsel occurred. Second, the Court held that the provisions of section 132(2) of the Army Act had been complied with, and that the petitioner’s allegation that the death sentence was voted for by an inadequate majority could not be substantiated, because the voting procedure under rule 61 of the Army Rules 1954 did not reveal any defect. Third, the Court explained that section 164 of the Army Act did not mandate that every order or sentence of a Court Martial be reviewed by two higher authorities; it merely provided two tiers of remedy, and when no authority existed above the confirming authority, no further remedy could arise. Fourth, the Court emphasized that each provision of the Army Act is a law made by Parliament, and even if a provision affects fundamental rights under Part III of the Constitution, it does not become void because Parliament, under article 33, may validly modify those rights. Fifth, the Court concluded that the provisions of section 125 of the Act are not discriminatory and do not infringe article 14 of the Constitution.

The Court observed that the provisions contained in section 125 of the Army Act did not create a class‑based distinction and therefore did not offend the equality guarantee embodied in article 14 of the Constitution. It further held that the discretionary power granted to the Military Officer under that section with respect to deciding whether an accused should be tried by a Court Martial or by an ordinary criminal court was not exercised in a vacuum. The Court explained that a variety of factual circumstances could legitimately influence the choice of forum, and that it was appropriate to leave the ultimate decision to responsible military officers who commanded the accused. Those officers were required to consider the exigencies of service, the need to maintain discipline in the army, the advantage of a speedier trial, the nature of the offence and the identity of the victim. The Court stressed that this discretion was not unfettered; it was subject to supervisory control by the Central Government, which could intervene if necessary.

The Court also noted that, under section 549 of the Code of Criminal Procedure and the rules made thereunder, the final determination of the appropriate forum for trying a person accused of a civil offence rested with the Central Government whenever a difference of opinion arose between a criminal court and the military authorities. The Court pointed out that the same principle applied to sections 125 and 126 of the Army Act, making the position of the military statutes consistent with the procedural framework of the criminal code. Turning to the matter before it, the Court recorded that the petition was filed under article 32 of the Constitution for the enforcement of fundamental rights. The petitioner, Ram Sarup, was a sepoy in 131 Platoon DSC, attached to the Ordnance Depot at Shakurbasti, and was therefore governed by the Army Act, 1950. On 13 June 1962 he allegedly shot dead two sepoys, Sheotaj Singh and Ad Ram, and one havildar, Pala Ram. He was charged on three counts under section 69 of the Act read with section 302 of the Indian Penal Code and was tried before a General Court Martial. On 12 January 1963 the General Court Martial found him guilty on all three charges and sentenced him to death. The Central Government confirmed both the findings and the death sentence. The petitioner subsequently filed this writ petition seeking a writ of habeas corpus and a writ of certiorari to set aside the January 12 1963 order of the General Court Martial and the confirming order of the Central Government, and to obtain his release from Central Jail, Tehar, New Delhi, where he was detained pending execution of the sentence. The petitioner’s contentions were that the trial and sentencing process violated his constitutional rights.

The petitioner argued that the provisions of section one hundred twenty‑five of the Act were punitive and violated article fourteen of the Constitution because they left the officer identified in that section with unfettered discretion to decide whether the accused should be tried by a Court Martial or by a criminal court. He further maintained that section one hundred twenty‑seven of the Act, which permitted successive trials by a criminal court and a Court Martial, breached article twenty of the Constitution since it allowed a person to be prosecuted and punished for the same offence more than once. The petitioner also claimed that he was denied the right to be defended at the General Court Martial by a legal practitioner of his own choosing, thereby infringing article twenty‑two clause one of the Constitution. In addition, he contended that the procedure prescribed for trials before the General Court Martial was not observed because the death sentence awarded to him was not passed with the concurrence of at least two‑thirds of the members of the Court. The petitioner next pointed to section one hundred sixty‑four of the Act, which provides two successive remedies to a person aggrieved by any order of a Court Martial. Sub‑section one authorises the aggrieved person to present a petition to the officer or authority empowered to confirm any finding or sentence of the Court Martial, while sub‑section two permits a petition to the Central Government or any other authority specified in that sub‑section, empowering that authority to pass an order as it deems fit. The petitioner observed that, because the Central Government had already confirmed the finding and sentence, he could avail himself of only one remedy and therefore could not approach any other authority against the order of the Central Government that aggrieved him. The Court noted that it would be convenient to address the first point later and therefore dealt with the remaining points first. It observed that the petitioner had not been subjected to a second trial for the offence for which he had been convicted by the General Court Martial, and consequently it was not necessary to decide the validity of section one hundred twenty‑seven in the present case. Regarding the third point, the petitioner alleged that he had repeatedly requested permission to engage a practising civil lawyer to represent him at the trial, but that the authorities rejected these requests, stating that military rules did not allow a civilian lawyer and that he must defend himself with counsel appointed by the Military Authorities. The reply to the petition, however, stated that this allegation was inaccurate, that no such request had been made in the petition, and that the claim of denial was not made until after the State filed its counter‑affidavits. The Court concluded that the petitioner had not made a request for representation by a counsel of his choice, that no such request was refused, and therefore he could not be said to have been denied his constitutional right to be defended by a counsel of his choice.

The State submitted counter‑affidavits in which it asserted that the petitioner had never asked for representation by a legal practitioner and that no denial of any fundamental right had occurred. After examining the submissions, the Court held that the petitioner had indeed made no request to be represented at the Court Martial by a counsel of his own choosing; consequently, no such request could have been refused and the petitioner could not be said to have been denied the constitutional right to be defended by a counsel of his choice. The Court observed that paragraph 9 of the petitioner’s petition contains no statement that he had asked for representation by a counsel of his choice. Rather, the petitioner merely alleged that certain relatives who sought an interview with him after his arrest were denied permission to see him, and that this denial prevented him from obtaining a competent civilian lawyer through the assistance of those relatives, thereby infringing his right under Article 22 of the Constitution. The Court reasoned that, had the petitioner made an explicit request for a defence by a counsel of his own selection, he would have set out that request plainly in paragraph 9. The wording used by the petitioner can only be understood to mean that he was unable to contact his relatives to arrange for a civilian lawyer, which negates any inference that he asked the Military Authorities for permission to be represented by a practising lawyer and that such a request was refused. Accordingly, the Court concluded that there was no violation of the petitioner’s fundamental right to be defended by a counsel of his choice as guaranteed by Article 22(1). The Court also said that it was unnecessary to address the questions raised during the hearing concerning the validity of rule 96 of the Army Rules, 1954, nor the power of Parliament to delegate its authority under Article 33 of the Constitution to any other body.

The petitioner further contended that the death sentence imposed by the Court Martial was contrary to the provisions of Section 132(2) of the governing Act because the sentence had been passed without the required two‑thirds majority. The respondent produced a certificate, annexure A to its counter‑affidavit, bearing the signatures of the presiding officer of the Court Martial and the Judge‑Advocate. The certificate stated: “Certified that the sentence of death is passed with the concurrence of at least two‑thirds of the members of the Court as provided by Section 132(2).” The petitioner alleged that this certificate was not genuine and had been prepared after the filing of his writ petition. The Court found no basis to accept the petitioner’s allegation. It noted that the petitioner could not have known how the members of the General Court Martial had voted. Rule 45 prescribes the form of oath or affirmation administered to every member of a Court Martial, and that form enjoins each member to refrain from disclosing the vote or opinion of any particular member unless required to do so by a court of law. The Court therefore rejected the claim that the certificate was fabricated and upheld the validity of the death sentence as having been passed in accordance with the statutory requirement of a two‑thirds majority.

In the oath administered to each member of a Court Martial, the individual swore that he would never disclose or reveal the vote or opinion of any specific member of the Court Martial unless a court of justice or a Court Martial required him to give evidence in accordance with law. A similar oath provision applied to the Judge‑Advocate under rule forty‑six. Rule sixty‑one stipulated that the Court must discuss its findings in a closed session attended by the Judge‑Advocate, making it clear that only the Court members and the Judge‑Advocate could know how the members cast their votes. The votes were not placed in writing and no written record of them was kept. Sub‑rule two of rule sixty‑one required that each member express his opinion on the finding orally, charge by charge. Rule sixty‑two required that the finding on every charge for which the accused was arraigned be recorded, and, except as otherwise provided, that the record simply state “guilty” or “not guilty.” Because of these procedural rules, the petitioner’s statement could be regarded only as an unsubstantiated allegation, since it could not be based on any definite knowledge of how the voting proceeded under rule sixty‑one. Moreover, there was no reason to doubt the certificate, which the counter‑affidavit explained was not created under any rule governing Court Martial proceedings and therefore did not form part of those proceedings; it was prepared solely for the satisfaction of the confirming authority. The certificate bore the date 12 January 1963, the same day on which the petitioner was convicted. An affidavit filed by Colonel N S Bains, Deputy Judge‑Advocate General of the Army Headquarters in New Delhi, denied the petitioner’s claim that the certificate was a fabricated document prepared after the writ petition was filed. The Court found no basis to prefer the petitioner’s allegations over Colonel Bains’s sworn statement, which was supported by Exhibit A signed by the presiding officer of the Court Martial and the Judge‑Advocate, who had no apparent motive to issue a false certificate. Consequently, the Court concluded that there was no breach of the provisions of section 132(2) of the Act.

The Court then turned to the petitioner’s fifth point concerning section 164 of the Act. Section 164 provides two methods of remedy for a person aggrieved by an order, finding, or sentence of a Court Martial. The first remedy is a petition to the authority empowered to confirm that order, finding, or sentence. The second remedy is a petition to the Central Government or to another officer specified in sub‑section two of section 164, but only after the order or sentence has been confirmed by the first authority. The Court noted that these two remedies are the only avenues expressly provided by the statute.

In this case the Court explained that the authority to which a person aggrieved by a Court‑Martial order may apply is the authority referred to in sub‑section (2) of section 164 of the Act. The Court observed that when that authority happens also to be the authority that confirms the Court‑Martial order, it is evident that the aggrieved party cannot make another petition to any higher body against the confirming order, because there is no higher body above the confirming authority. The Court further stated that a further petition may be addressed only to an authority that is superior to the confirming authority; and if no such superior authority exists, the question of a remedy against the confirming order does not arise. Section 164, the Court clarified, does not prescribe that the correctness of a Court‑Martial order or sentence must always be examined by two higher authorities; it merely provides for two separate remedies. The Court then turned to section 153, which provides, inter alia, that a finding or sentence of a General Court‑Martial is valid only to the extent that it is confirmed as laid down in the Act. Section 154 authorises the Central Government, or any officer empowered by a warrant of the Central Government, to confirm such findings and sentences. The Court found that, in the present matter, the Central Government itself exercised the power of confirmation over the sentence awarded to the petitioner by the General Court‑Martial. Because the Central Government is the highest authority mentioned in sub‑section (2) of section 164, there could be no occasion for a subsequent appeal to any other body, and consequently the petitioner could not be justified in complaining that he was denied a second petition that might have been available if the confirming authority were subordinate to the Central Government. The Court emphasised that the Act itself designates the Central Government as the confirming authority for General Courts‑Martial and does not envisage a situation where the power of confirmation must be exercised by any other officer appointed by the Central Government. Accordingly, the Court rejected the petitioner's contention as having no force. Finally, the Court noted that counsel for the petitioner had urged that, under the power conferred on Parliament by article 33 of the Constitution to modify fundamental rights in their application to the armed forces, section 21 of the Act empowers the Central Government, by notification, to make rules that restrict certain rights, and that such powers do not affect the fundamental rights guaranteed by articles 14, 20 and 22 of the Constitution. The Court recorded this argument without adopting it.

In this matter, the Attorney‑General contended that the entire Act had been enacted by Parliament and that, should any provision of the Act be inconsistent with any article of Part III of the Constitution, the inconsistency must be understood as a deliberate modification of the corresponding fundamental right in the manner authorised by Article 33. The submission therefore argued that every provision of the Act constitutes law, and that a provision which affects a fundamental right does not become void merely because it impinges upon that right; rather, Parliament, exercising its power under Article 33, would have effected the necessary modification of the right in question. The Court accepted that each provision of the Act is indeed a law made by Parliament and that, if any provision tends to affect the fundamental rights guaranteed under Part III, that provision cannot be declared void on that ground alone, since Parliament would have, by virtue of its constitutional power, altered the scope of the right so as to accommodate the provision.

The Court further held that the provisions of section 125 of the Act are not discriminatory and do not contravene Article 14 of the Constitution. It was not disputed that the persons to whom section 125 applies constitute a distinct class, as these persons are precisely those who are subject to the Act and are defined in section 2. The petitioner argued that members of this class may be tried for civil offences—offences that are triable by a criminal court under section 3(ii) of the Act—either by a Court Martial or by an ordinary criminal court. Section 125, according to the petitioner, confers a discretionary power on certain officers designated in that section to decide whether a particular accused should be tried by a Court Martial or by a criminal court. The petitioner further maintained that the Act provides no guidance to those officers in the exercise of that discretion, thereby creating a risk that two persons accused of the same offence could be dealt with differently: one might be tried by a Court Martial and another by a criminal court, resulting in divergent procedural regimes.

The Court examined the various provisions of the Act and the rules governing the trial of offences by a Court Martial. It observed that the procedure for a Court Martial is quite elaborate and, in many respects, mirrors the procedure laid down in the Code of Criminal Procedure. Nevertheless, there are material differences. All members of a Court Martial are military officers who are not expected to be trained judges, unlike the presiding officers of criminal courts. No formal judgment is recorded in Court Martial proceedings, and there is no provision for an appeal against the order of the Court Martial. Moreover, the authorities before whom a convicted person may seek redress for a conviction by a Court Martial are non‑judicial bodies. These characteristics were noted by the Court in assessing the petitioner's concerns about the potential for unequal treatment arising from the discretionary power under section 125.

In this case the Court observed that under certain circumstances a trial before an ordinary criminal court would better serve the accused than a trial before a Court Martial. The issue then before the Court was whether the officers who decide which forum will try a particular accused exercise a discretion that is completely unfettered, as the appellant alleged. The Court noted that Section 125 of the Act does not itself contain an explicit rule directing how that discretion must be exercised. However, the Act contains sufficient material that reveals the underlying policy intended to guide the exercise of the discretion, and the discretion is expected to be exercised in accordance with that policy. A magistrate may raise a question about the exercise of the discretion, and, in the event of a conflict between the magistrate’s view and the view of the army authorities, the Government is empowered to make the final determination. The Court then turned to Section 69, which prescribes the punishment that may be imposed on a person who is tried for committing any civil offence, whether within India or beyond its borders, when the charge is brought under Section 69 and the person is convicted by a Court Martial. Section 70 was also discussed; that provision lists categories of persons who cannot be tried by a Court Martial except in limited situations. Specifically, those who commit murder, culpable homicide not amounting to murder, or rape against a person who is not subject to military, naval or air‑force law are excluded, unless the offence occurs while the accused is on active service, outside India, or at a frontier post that the Central Government has notified for that purpose. From these provisions the Court concluded that where an offence falls within the jurisdiction of both a Court Martial and an ordinary criminal court, and the offence is committed while the accused is on active service, outside India, or at a designated frontier post, the trial must be by a Court Martial. The Court described this statutory scheme as an indication of the circumstances in which it would be appropriate to favour a Court Martial trial. Those circumstances constitute an index of considerations that should guide the officer tasked with deciding the forum. The considerations may include the need to maintain discipline within the armed forces, the identity of the victims of the offences, and the nature and seriousness of the offences themselves. For the purpose of preserving discipline, the Court observed that it may be preferable that offences of a less serious character be tried by a Court Martial, which, under Section 69, is authorised to impose punishments that are either those provided by ordinary law or the lesser punishments enumerated in the Act. Chapter VII of the Act enumerates the various punishments that a Court Martial may impose, and Section 72 provides that, subject to the provisions of the Act, a Court Martial that convicts a person of any offence listed in Sections 34 to 68 inclusive may award either the specific punishment prescribed for that offence or, taking into account the nature and degree of the offence, a lesser punishment as stipulated in Section 71.

The Court explained that when a provision in the Act specifies a particular punishment for an offence, the sentencing officer may either impose that punishment or, taking into account the nature and degree of the offence, substitute any one of the lower punishments listed in section 71. It observed that the exigencies of military service may also influence the choice of forum for trial. Offences can be committed while soldiers are encamped or while their unit is on the march; in such situations it would cause considerable inconvenience if the accused and any army witnesses had to be detained for trial before an ordinary criminal court. Moreover, trials before civilian courts inevitably take longer because of their procedural requirements and the possibility of subsequent appeals and revisions, whereas Courts Martial can conclude matters more swiftly. The necessities of army service therefore demand a faster adjudication. Sections 102 and 103 of the Act underscore the desirability of conducting Court‑Martial trials with maximum speed. Section 120, subject to the provisions of its subsection (2), authorises a summary Court‑Martial to try any offence punishable under the Act. Subsection (2) further provides that an officer presiding over a summary Court‑Martial must not try certain offences unless a reference is made to the officer empowered to convene a district Court‑Martial, or, on active service, a summary general Court‑Martial, when there is no grave reason for immediate action. Such a reference may be made without prejudice to discipline. This framework indicates that the need for immediate action and the avoidance of disciplinary damage are relevant factors in deciding whether a trial should be before a Court‑Martial or an ordinary criminal court.

The judgment went on to note that the considerations mentioned above gave rise to the provisions of section 124, which state that any person subject to the Act who commits an offence against it may be tried and punished for that offence in any place whatsoever; it is not required that the trial occur within the territorial jurisdiction of the civilian criminal court where the offence was committed. Consequently, a wide range of circumstances may affect the decision to try an offender before a Court‑Martial or an ordinary criminal court. For this reason, the discretion to select the appropriate forum is vested in the responsible military officers under whose command the accused serves. Those officers must guide their decision by weighing the exigencies of service, the need to maintain discipline within the army, the advantage of a speedier trial, the nature of the offence, and the identity of the person against whom the offence was committed. Finally, the Court pointed out that the military officer’s decision is not conclusive. Section 126 empowers a civilian criminal court with jurisdiction over the offender to require the relevant military officer to surrender the accused to the magistrate for proceedings in accordance with law, or to defer the proceedings pending a reference to the Central Government, thereby ensuring that the officer’s discretion remains subject to higher authority.

In this case, the Court noted that when a criminal court believes that proceedings should be instituted before itself concerning an offence, it may direct the military officer to either deliver the offender to the magistrate so that the case proceeds according to law, or to postpone the proceedings pending a reference to the Central Government. Whenever such a request is made, the military officer is required either to comply with the direction or to refer the matter to the Central Government, whose order will be final regarding the venue of the trial. Consequently, the discretion exercised by the military officer is subject to the ultimate control of the Central Government. Reference may also be made to section 549 of the Code of Criminal Procedure, which gives the Central Government the power to make rules that are consistent with the Code and with other statutes, including the Army Act, concerning the circumstances in which persons subject to military, naval or air‑force law are to be tried by a civil court applying the Code or by a Court Martial. That provision also provides that when a person accused of an offence that could be tried either by an ordinary criminal court or by a Court Martial is presented before a magistrate, the magistrate must consider the rules made under section 549. In appropriate cases the magistrate is required to deliver the accused, together with a statement of the offence, to the commanding officer of the regiment, corps, ship or detachment to which the accused belongs, or to the commanding officer of the nearest military, naval or air‑force station, for the purpose of trial by Court Martial. Thus the magistrate is given a discretionary power, guided by the rules, to refer the accused to the military authorities for trial by Court Martial. The Central Government exercised this power by promulgating the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952, issued by S.R.O. 709 dated 17 April 1952 under section 549 of the Code of Criminal Procedure. It is unnecessary to reproduce the full text of those rules. It is sufficient to state that when a person charged with an offence that is triable by Court Martial is brought before a magistrate, the magistrate is not to proceed with the case unless he is moved to do so by the appropriate military authority. The magistrate may, however, proceed on his own opinion, provided that he records the reasons for his view that the case should continue without a prior movement by the competent authority. Even when the magistrate proceeds on his own opinion, he must give notice of that opinion to the commanding officer of the accused and is prohibited from passing any conviction or acquittal under sections 243, 245, 247 or 248 of the Code of Criminal Procedure, from hearing the accused in defence under section 244, from framing any charge under section 254, and from ordering committal to the Court of Session or the High Court under section 213, until a period of seven days has elapsed.

In this case the Court explained that after notice is served on the military authorities the Magistrate must act according to any subsequent intimation from those authorities. If, before the Magistrate takes any of the steps previously mentioned, the military authorities inform him that, in their opinion, the accused should be tried by a Court Martial, the Magistrate is required to stay the proceedings and to deliver the accused to the appropriate authority together with the statement prescribed in s. 549 of the Code of Criminal Procedure. The same duty arises even when the Magistrate has already proceeded with the case because the military authority moved him to do so, but later the authority changes its mind and intimates that the accused ought to be tried by a Court Martial. The Court further noted that the Magistrate retains a limited degree of control over what the military authorities do with the accused. If the military authorities fail to commence effective proceedings against the accused within a reasonable time, the Magistrate may report the circumstances to the State Government, which, in consultation with the Central Government, may take appropriate steps to ensure that the accused is dealt with in accordance with law. All of these provisions are embodied in rr. 3 to 7. Rule 8, the Court observed, practically corresponds to s. 126 of the Act, and r. 9 provides for the military authorities to deliver the accused to the ordinary courts when, in their opinion or under an order of the Government, the proceedings against the accused are to be before a Magistrate. According to s. 549 of the Code and the rules framed thereunder, the final choice of the forum for trial of a person accused of a civil offence rests with the Central Government whenever there is a difference of opinion between a criminal court and the military authorities about the proper forum for trial of the particular offence, as reflected in the citation 1/SCI/64-60. The Court held that the discretion exercised by the military officer specified in ss. 125 and 126 of the Act to determine whether the accused shall be tried by a Court Martial or by an ordinary court is guided by the policy laid down in the Act and is not uncontrolled by any other authority. Consequently, s. 125 of the Act cannot be said to infringe the guarantee of equality before law contained in Art. 14 of the Constitution. On this basis the writ petition fails and is dismissed. Petition dismissed.