OA/151/09 and OA/148/10. Case: 1. M. Sep Jagjit Singh S/o. Ex Hav Romi Singh, 2. Sepoy Krishh Pal Singh Vs 1. Union of India (UOI) and Ors., [Alongwith OA/21/10 and OA/25/10], 2. Secretary, Govt. of India and Ors.. Armed Forces Tribunal
| Case Number | OA/151/09 and OA/148/10 |
| Judges | S.S. Kulshrestha, S.S. Dhillon, Members |
| Issue | Armed Forces Tribunal Act, 2007 - Sections 3, 4, 5, 15 and 20; Army Act, 1950 - Section 164(2); Navy Act, 1957; Air Force Act, 1950; Armed Forces Tribunal (Procedure) Rules, 2008 - Rule 6; Constitution of India - Article 323A; Indian Penal Code, 1860 - Sections 175, 178, 179, 180, 193, 195, 196 and 228; Criminal Procedure Code (CrPC), 1973 |
| Judgement Date | April 23, 2010 |
| Court | Armed Forces Tribunal |
Judgment:
S.S. Kulshrestha, S.S. Dhillon, Members, (Principal Bench, New Delhi)
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In all these applications, the question of jurisdiction of this bench has been challenged from the side of the Union of India as the impugned order passed by Court Martial (CM)/General Court Martial (GCM)/ Summary Court Martial (SCM)/District Court Martial (DCM) pertained to the area which falls within the jurisdiction of different Benches established under Section 4 of the Armed Forces Tribunal Act, 2007 (which is hereinafter referred as "The Act?). It is also said that the orders passed on non statutory complaint, statutory complaint or petition made to Govt. of India against the findings and the conviction recorded by any Court Martial or pendency of representation would not confer any cause of action or a part of cause of action for the purposes of hearing of appeal against conviction under Section 15 of the Act. However, in view of provisions as contained under Rule 6 of the Armed Forces Tribunal (Procedure) Rules, 2008 for the convenience of the appellant past, present posting and ordinary place of residence makes him entitled to resort the jurisdiction of a particular Bench but here the cases of these appellants do not fall in that category. To the contrary from the side of Learned Counsel for appellants and the learned members of Bar namely, Sh.O.P.Singh, Sh.D.S.Kauntae, Sh. G.K.Sharma, Sh. N.L.Bareja and Sh.S.M.Dalal arguments were advanced that the cause of action or part of cause of action is also the decisive factor which will arise from the passing of orders on the statutory complaint or petition by the Chief of the Army/Air/Naval Staff or Government of India in New Delhi as being the principle seat of their office. Moreover this is the essential requirement for filing appeal under the Act i.e. to exhaust the alternative remedy by way of filing statutory complaint under Section 164 (2) of the Army Act or other corresponding Sections of the Navy and Air Force Acts.
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The Learned Amicus Curiae has also assisted this Bench by furnishing synopsis specifying the scope of Section 14, 7, 15, 20 and 21 of the Act. As regards Section 15 pertaining to appeal it was emphasized that this Tribunal shall exercise the powers in respect of the decisions given by the Court Martial which are peri-meteria with that of the Sessions Court, as per the jurisdiction vested with them. Further the synopsis furnished by him reads as under:
Thus in relation to any order, decision, finding or sentence passed by a court-martial or any matter connected therewith or incidental thereto the Tribunal exercises appellate jurisdiction.
A court martial (except Summary Court Martial) has powers WEtLyEcD4I4ETLiDECIEBy EDEH 6I4411n4 E SAYLW The powers vested in a Court martial (except Summary Court Martial) are akin to powers vested in a Sessions Court.
It is the High Court in the territorial jurisdiction of which the Session Court is situated that exercises appellate jurisdiction in relation to any order, decision, finding or sentence passed by that Session Court or any matter connected therewith or incidental thereto.
Thus a fiction is created whereby the Court martial I4EHV4IIILIdETIEbIEDEH 6I4411V4ESoYLFV DQdEEKIENIiHEDEH + HIESAYLW Just as in the case of the Session Court, the High Court in the territorial jurisdiction of which the Session Court is situated exercises appellate jurisdiction in relation to any order, decision, finding or sentence passed by the Session Court or any matter connected therewith or incidental thereto, it is the Bench (Fictional High Court) in the territorial jurisdiction of which the Court Martial (Fictional Session Court) is situated that shall exercise appellate jurisdiction in relation to any order, decision, finding or sentence passed by that court martial or any matter connected therewith or incidental thereto.
As submitted hereinabove, Section 15 clearly states that the A.F. T. exercises appellate jurisdiction in relation to Court Martial matters. Appellate Jurisdiction in the case of Sessions Courts is exercised by the High Court within the territorial jurisdiction of which the Sessions Court is situated. As submitted before if the Court Martial is considered to be a fictional Sessions Court then the fictional High Court would be the one located in the State where the Court martial is held. Thus if the Court Martial is held say somewhere in Rajasthan, then the Jaipur Bench shall alone have the jurisdiction.
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Since the challenge in all these four appeals pertains to the conviction and sentence passed by any Court Martial and so the question regarding jurisdiction of the Tribunal under Section 15 of the Act is taken for determination. In the context of the submissions made by the learned Counsel for the parties and learned Amicus Curiae it would be appropriate if a brief history of creation of Tribunal is referred.
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Article 323A of the Constitution stipulates that Parliament may by law provide for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government. Parliament enacted "Armed Forces Tribunal Act? for...
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