Holding

Withdrawal of an acting rank for unauthorized absence is not a punishment under Section 80, the officiating Commanding Officer was competent to convene the Summary Court‑Martial, and the proceedings were validly conducted, warranting dismissal of the appeal.

Summary

Pradeep Singh, an acting Naik in the Indian Army, was absent without leave for 21 months. Upon his return, his acting rank was withdrawn and he was tried by a Summary Court‑Martial under Sections 39A and 116 of the Army Act, which sentenced him to dismissal. He challenged the conviction on four grounds: the officiating Commanding Officer’s competence to convene the court‑martial, denial of legal assistance and right to be heard, that withdrawal of rank constituted punishment barring further trial, and the scope of judicial review under Articles 226 and 227 of the Constitution. The Supreme Court held that the withdrawal of an acting rank due to unauthorized absence is a matter of administrative revocation, not punishment, so Section 80 does not apply; the officiating Commanding Officer was duly empowered under Section 3(v); the claim of denial of legal aid was unsubstantiated; and the court‑martial was properly convened and its proceedings are subject only to limited judicial review under Article 226, not superintendence under Article 227. Consequently, the appeal was dismissed and the High Court’s order upheld.

Issues considered

The withdrawal of an acting rank for unauthorized absence is a punishment within the meaning of Section 80 of the Army Act, thereby precluding further court‑martial.
Whether an officiating Commanding Officer has the authority to convene a Summary Court‑Martial under Section 3(v) of the Army Act.
Whether the appellant was denied legal assistance and the right to a fair hearing.
The extent of judicial review of court‑martial proceedings under Articles 226 and 227 of the Constitution.

Legislation cited

Army Act, 1950s. 116, s. 39A, s. 3(v), s. 80
Constitution of Indias. Article 226, s. Article 227
Indian Evidence Act, 1872

Subjects

Army Actsummary court‑martialacting rankwithdrawal of rankdouble jeopardyjudicial reviewArticles 226 and 227military lawlegal assistanceevidence act

Judgment

A PRADEEP SINGH
v.
UNION OF INDIA AND ORS.

APRIL 19, 2007

B [DR. ARinTPASAYAT AND LOKESHWARSINGHPANTA, JJ.]

Army Act, 1950:

ss. 39-A and 116--Dismissal for absence without /eave-Acting Naik
C in Army-Remaining absent without /eave-Withdrawal of rank and Summary
Court-Martial-Punishment of dismissal awarded-Held: on facts, case is
covered by rules relating to acting ranks contained in Army Instruction Nos.
84 and 88-Withdrawal of rank was on account of soldier's absence and was
not punishment in that sense-Punishment of dismissal awarded by Summary
D Court-Martial upheld.

s.3(v)-"Commanding Officer"-Officiating Commanding Officer
convening Summary Court-Martial-Held, High Court was right in holding
that Court-Martial was properly convened-Challenge to its composition
was without any substance.
E
Court-Martial-Nature and function of-Held, Court-Martial discharges
judicial function and to a great extent is a court where provisions of Evidence
Act are applicable-However, proceedings of a Court-Martial are not to be
compared with the proceedings in a criminal court under Code of Criminal
Procedure, 1973-Court-Martial remains up to a significant degree, a
F specialized part of overall mechanism by which military discipline is preserved.

Constitution of India, 1950:

Articles 226 and 227--Court-Martial proceedings-Held: Are subject
to judicial review by High Court under Article 226, but Court-Martial is not
G subject to superintendence of High Court under Article 227-lf Court-Martial
has been properly convened and there is no challenge to its composition antf :J·
proceedings are in accordance with the procedure prescribed, courts would
not interfere-Judicial review.

358
H
•
PRADEEP SINGH v. U.0.1. 359
-!
Appellant, who was holding an acting rank of Naik in the Army, after A
completing the Commando course, absented himself for a period of2Y. months.
Thereafter when he reached his unit, his rank of Naik was withdrawn and he
was directed to appear before Summary Court-Martial, which on concluding
the hearing awarded him the punishment of dismissal. The respondent
challenged the order in a writ petition before the High Court on the grounds
that the officiating Commanding Officer was not competent to convene the B
~-1
Summary Court-Martial and, therefore, the proceedings were without
jurisdiction; that he was not provided any legal assistance and as such, right
-.I
of hearing was denied to him; and that since he had been punished with removal
of rank, he could not again be tried and punished on the same ground. The
High Court having dismissed the writ petition, the soldier filed the present
appeal c
,

Besides reiterating the contentions raised before the High Court,
referring to Section 80 of the Army Act, 1950, it was contended for the
appellant that removal of stripes amounted to punishment and, therefore,
further action was not permissible.
D
Dismissing the appeal, the Court

HELD : 1.1. In the instant case, before respondent's absence from duty,
he was in the acting rank of Naik. Therefore, the case is covered by rules
relating to acting ranks contained in Army Instructions Nos. 84 and 88, and
Section 80 of the Army Act, 1950 has no application in this regard. In this E
view of the matter, withdrawal of ranks of Naik was on account of respondent's

- absence and was not, therefore, punishment in that sense.
[Paras 6, 4 and 7] (362-F; 364-G]

1.2. So far as the denial of legal assistance is concerned, it was noted
that the appellant admitted that a Major was named as his friend to advise F
him during the course of trial. His plea that he did not see the said officer
during the court martial was found to be without substance. It was noted that
in case he was not assisting him, he could have made a grievance before the
Summary Court-Martial. That has been done. There was no substance in the
• plea. [Para 3] (361-G; 362-A]
G
" 2.1. As regards challenge to legality Qf proceedings before the Court-
Martial, though Court Martial proceedings are subject to judicial review by
the High Court under Article 226 of the Constitution, the court-martial is
not subject to the superintendence of the High Court under Article 227 of
the Constitution. If a court-martial has been properly convened and there is
H
•
360 SUPREME COURT REPORTS [2007] 5 S.C.R.
1·
A no challenge to its composition and the proceedings are in accordance with
the procedure prescribed the High Court or for that matter any court must
stay its hands. The High Court has recorded a finding that the Court-Martial
has been properly convened and in view of definition of"Commanding Officer"
as given in Section 3(v) of the Army Act, 1950 the challenge to its composition
was without any substance. [Paras 8 and 9) (365-8, CJ
B
2.2. A court-martial discharges judicial function and, to a great extent, r·
is a court where provisions of the Evidence Act are applicable. Proceedings
;r
of a court-martial are not to be compared with the proceedings in a criminal
court under the Code of Criminal Procedure, 1973. It has been rightly said
c that court martial remains upto a significant degree, a specialized part of
overall mechanism by which the military discipline is preserved. It is for the
special need for the armed forces that a person subject to Army Act is tried
by court-martial for an act which is an offence under the Act. When there is
sufficient evidence to sustain conviction, it is unnecessary to examine if pre-
trial investigation was adequate or not Requirement of proper and adequate
D investigation is non-jurisdictional and any violation thereof does not invalidate
the court-martial unless it is shown that accused has been prejudiced or a
mandatory provision has been violated. The High Court should not allow the
challenge to the validity of conviction and sentence of the accused when
evidence is sufficient, the court-martial has jurisdiction over the subject
matter and has followed the prescribed procedure and it is within its powers
E
to award punishment. (Para 9) (365-D-GJ

Union ofIndia and Ors. v. IC, 14827 and Major A. Hussain AIR (1998)
SC 577, relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5799 of2000.
F
From the Judgment and Order dated 05.07.1999 of the High Court of
Jammu & Kashmir at Jammu in LP.A. No. 196of1999.

P.O. Sharma for the Appellant.
•
G Nagendra Rai, Indra Sawhney, R.C. Kathia and B.V. Balaram Das for the .-'
Respondents.

The Judgment of the Court was delivered by

DR. ARIJIT PASA YAT, J. 1. Challenge in this appeal is to the judgment
H rendered by a Division Bench of the Jammu and Kashmir High Court dismissing
PRADEEPSINGHv. U.0.1.[PASAYAT,J.] 361
the Letters Patent Appeal filed by the appellant. A
-:r
2. Background facts in a nutshell are as follows:

Absence for a period of 2!1, months was treated as misconduct and
Summary Court Martial was convened in terms of Section 116 of the Army
Act, 1950 (hereinafter referred to as the 'Act'). He was charged under Section B
39A of the Act by order dated 7.8.1989 for having remained absent from duty
without leave. He was tried and punished by a Summary Court Martial vide
order dated 16.8.1989. The order of dismissal passed by the Court Martial was
. ., challenged in the writ petition primarily on the following grounds:

(0 that officiating Commanding Officer was not competent to c
convene the Summary Court Martial and therefore, the proceedings
and the sentence awarded by the Summary Court Martial is illegal
being without jurisdiction;
(ii) that the petitioner was neither provided any legal assistance nor
allowed to cross-examine the witnesses, and therefore, the right D
of hearing has been denied to him;
(iii) that the petitioner having been punished by removal of the rank
;:.·
could not be tried and punished on the same ground.

3. The respondents took the stand that all the submissions are without
foundation. The High Court noticed that the appellant was posted somewhere
E
in Leh and was deputed for Commando course in December, 1988 which he
joined in January, 1989. He completed the course on 7.2.1989, but instead of
reporting at the Transit Camp after completion of the course, he went home
on the assumption that he had already applied for annual leave which must
have been sanctioned by his Commanding Officer. He finally reported at 259- F
Transit Camp on 21.4.1989 and reached his unit on 19.5.1989. His grievance
was that immediately after he reached the unit, his rank of Naik was withdrawn.
Later he was directed to appear before the Summary Court Martial on 11.8.1989,
which concluded the hearing and awarded the punishment of dismissal. The
High Court found that the stand that Officiating Commanding Officer was not
competent to convene Summary Court Martial was without substance in view G
of the definition of"Commandant Officer" as given in Section 3(v) of the Act.
\ So ·far as the denial of legal assistance is concerned, it was noted that the
appellant admitted that Major D.P. Naikavde was named as his friend to
advise him during the course of trial. His plea that he did not see the said
officer during the court martial was found to be without substance. It was H
362 SUPREME COURT REPORTS [2007) 5 S.C.R.

A noted that in case he was not assisting him, he could have made a grievance
before the Summary Court Martial. That has not been done. There was no
substance in the plea. The appellant was informed that on completion of the
commandant course he did not immediately join the unit and instead joined
after 2Y. months. He assumed leave may have been granted without any
B foundation. As he was holding acting rank of Naik, he forfeited the right to
hold the same because of his absence from duty without leave as per army
Headquarter letter No.94930/AG/PSC (C) dated 21.11.1988. Appellant was not
holding the substantive rank of Naik, the same was withdrawn, because of ,...
absence without leave. It was in essence withdrawal of a concession given.
The plea relating to dual jeopardy was, therefore, without any substance.
C Accordingly, writ petition was dismissed. Before the Division Bench the stand
taken before the learned Single Judge was reiterated. The Division Bench
found that in view of the factual scenario as noted by the learned Single
Judge, the writ petition had been rightly dismissed. It, however, observed
that in case some persons similarly situated were treated with leniency, it was
open to the appellant to make a representation which shall be duly considered
D by the respondents. With the aforesaid observation the Letters Patent Appeal
was dismissed.

4. The learned counsel for the appellant highlighted the same aspects
which were urged before the learned Single Judge and the Division Bench.
E According to him, the withdrawal of the rank was a punishment and the High
Court was, therefore, not justified in its view. Learned counsel for the
respondent on the other hand supported the orders. With reference to Section
80 of the Act, learned counsel for the appellant submitted that removal of
stripes amounted to punishment and, therefore, further action was not
permissible. In this context, the rules relating to acting ranks need to be noted.
F The same is contained in Army Instructions Nos. 84 and 88. Rule 84 relates
to promotion for Junior Commissioned Officers and other Ranks. According
to the instructions, there are two kinds of promotion, i.e. one acting and other
substantive. So far as the acting rank is concerned, they are dealt with in
Part I. The same so far relevant reads as under:

G "PART I.- ACTING RANKS

2. The following are t.he general provisions governing the above
promotions:-

(a) Acting promotion will be made to fill vacancies in authorized
H establishment, whether temporary or permanent. Acting rank will
PRADEEPSINGHv. U.0.1.(PASAYAT,J.] 363

~
remain unpaid until an unbroken period of 28 days has been A
served in that rank when acting rank will be converted into paid
acting rank; pay will be admissible with retrospective effect from
the date of the grant of such acting rank.
(b) The rank of Nb Ris/Nb Sub is a substantive rank. No acting
promotion to that rank will, therefore, be made. A senior NCO B
may, however, be authorized to perform the duties of a Nb Risi
Nb Sub where necessary.
-;
(c) Every Commanding Officer of a Unit or Officer-in-charge Records,
" where acting promotions are centrally controlled on Corps roster
basis, is empowered to make acting promotions, provided that c
the individuals concerned are in possession of all the
qualifications prescrib~d for the higher rank. The authority
competent to sanction acting promotion is also empowered to
order reversion from such acting rank. Acting and paid acting
promotions or reversions will be published in Part II orders which
will be the authority for issue of pay and allowances of the D
appropriate rank.
(d) Acting rank will be granted from the day the vacancy occurs
provided that the individual has _assumed the duties of the higher
rank from that day and reversion will take place with effect from
the day the individual ceases to perform the duties of the E
appointment for which acting rank is granted or the vacancy
ceases to exist except as provided otherwise.
(e) On casual, annual or accumulated annual leave
(i) On casual leave
F
An individual will retain paid acting rank or paid lance appointment
during the period of casual leave and no acting promotion will
be permissible in his place. Acting rank will, however, be
relinquished from the date of overstayal of casual leave except
when the period of casual leave and its overstayal is regularized
against annual leave entitlement for the year in which casual
G
..., leave is taken and as Special Leave vide Rule 6 (d) (ii) of Leave
Rules for the Service, Vol. I- Army Cases of overstayal of casual

- (ii)
leave owing to sickness will be dealt with as in clause g (ii) below.
On annual or accumulated annual leave
H
364 SUPREME COURT REPORTS [2007] 5 S.C.R.

A An individual will retain paid acting rank or paid lance
appointment during the period of annual or accumulated annual
leave and no acting promotion will be permissible in his place.
Acting rank will, however, be relinquished from the date of expiry
of such leave unless the overstayal is due to natural calamities
and the period of overstayal is regularized as Special Leave vide
B Rule 6(d) (ii) of Leave Rules for the Services, Vol. I.-Army.

Part II deals with Substantive Ranks.

C 5. The withdrawal of ranks of Naik was on account of his unauthorized
absence and was not, therefore, punishment in that sense. Section 80 on
which strong reliance has been placed reads as under:

"80. Sitting in closed court-( I) A court-martial shall, where it is so
directed by these rules, and may in any other case on any deliberation
D amocgst the members, sit in closed court.

(2) No person shall be present in closed court except the members of
the court, the judge-advocate (if any) and any officers under
instruction.

(3) For the purpose of giving effect to the foregoing provisions of the
E
rule, the court-martial may either retire or cause the place where they
place where they sit to be cleared of all other persons not entitled to
be present.

(4) Except as hereinbefore mentioned all proceedings, including the
view of any place, shall be in open court and in the presence of the
F
accused subject to sub-rule (5).

(5) The court shall have the power to exclude from the ·court any
witness who has yet to give evidence or any other person, other than
the accused, who interferes with its proceedings."
G 6. A bare reading of the provisions along with the Army Instructions
make it clear that Section 80 has no application to the facts of the present
case.

7. So far as legality of the Court Martial is concerned, the learned Single
H Judge has found that the appellant was not holding substantive rank of Naik.
PRADEEPS!N9Hv. U.0.1. [PASAYAT:"J.] 365
The rank which was temporarily given was liable to be withdrawn in case of A
absence from duty and somebody else had to hold that post. This situation
arises when a person who was acting as Naik is not available.

8. The next ground of challenge relates to legality of proceedings before
the Court Martial.
B
9. Though Court Martial proceedings are subject to judicial review by
the High Court under Article 226 of the Constitution, the court-martial is not
subject to the superintendence of the High Court under Article 227 of the
Constitution. If a court-martial has been properly convened and there is no
challenge to its composition and the proceedings are in accordance with the C
procedure prescribed the High Court or for that matter any court must stay
its hands. Proceedings of a court-martial are not to be compared with the
proceedings in a criminal court under the Code of Criminal Procedure, 1'973
where adjournments have become a matter of routine though that is also
against the provisions of law. It has been rightly said that court martial
remains to be significant degree, a specialized part of overall mechanism by D
which the military discipline is preserved. It is for the special need for the
- } armed forces that a person subject to Army Act is tried by court-martial for
an act which is an offence under the Act. Court-martial discharges judicial
function, and to a great extent, is a court where provisions of the Evidence
Act are applicable. A court-martial has also the same responsibility as any
court to protect the rights of the accused charged before it and to fo How the E
procedural safeguards. If one looks at the provisions of law relating to court-
martial in the Army Act, the Army Rules, Defence Service Regulations and
other Administrative Instructions of the Army, it is manifestly clear that the
procedure prescribed is perhaps equally fair if not more than a criminal trial
provides to the accused. When there is sufficient evidence to sustain p
conviction, it is unnecessary to examine if pre-trial investigation was adequate
or not. Requirement of proper and adequate investigation is non-jurisdictional
and any violation thereof does not invalidate the court-martial unless it is
shown that accused has been prejudiced or a mandatory provision has been
violated. One may usefully refer to Rule 149 quoted above. The High Court
should not allow the challenge to the validity of conviction and sentence of G
the accused when evidence is sufficient, court-martial has jurisdiction over
the subject matter and has followed the prescribed procedure and it is within
its powers to award punishment.

10. Above position was highlighted in Union of India and Ors. v. JC, H
366 SUPREME COURT REPORTS (2007] 5 S.C.R.

A 14827 and Major A. Hussain, AIR (1998) SC 577.
The inevitable result is that the appeal is without merit, deserves
dismissal which we direct. However, liberty as given to the appellant by the
Division Bench, having not been assailed by the respondents, remains
unaltered.
B
RP. Appeal dismissed.

·--

i-