Gita Mital, J.
1. In this writ petition the pertinent issue that falls for consideration is the authority and jurisdiction of the GOC 11 Corps, arrayed as respondent no.4 before us, to issue the order of dated 15th December, 2003 whereby he ordered reassembly of the General Court Martial and revision of the sentence awarded to the petitioner. We have not been called upon to adjudicate upon the merits of findings and sentence of the General Court Martial. thereforee, we are confining ourselves to the examination of the questions of law raised before us without in any manner opining or deciding any aspect relating to pleas on the merits of the charges, evidence, findings or sentence, both originally and upon revision, as were passed by the General Court Martial.
2. The petitioner before us was commissioned into the Indian Army as a 2nd Lieutenant on 12th January, 1969 and rose to the rank of Brigadier. The petitioner was commanding the 35 Infantry Brigade in Delhi from 9th March, 1998 to 19th October, 2000 and claims that he is the recipient of several awards. The respondents directed a court of inquiry into a complaint against the petitioner which conducted its proceedings at Delhi from June, 2001 to August, 2001. Based on the findings and opinion of the court of inquiry, disciplinary action was directed against the petitioner and two other officers. The petitioner was attached to Headquarter, 7 Infantry Division on 14th February, 2002 for the purposes of disciplinary action. This re-attachment was challenged by the petitioner in a proceeding under Article 226 of the Constitution of India. His Civil Writ Petition no.1248/2002 was dismissed on 28th May, 2002.
3. Upon hearing of charges under Army Rule 22, three charges against the petitioner were dropped and summary of evidence was directed to be recorded on the remaining 15 charges. Based on the summary of evidence, the respondent no.4 directed the petitioner to be tried by General Court Martial for 13 charges set out in the charge sheet dated 10th March, 2003. The respondent no.4 issued the direction of trial by a General Court martial vide order dated 13th March, 2003. The General Court Martial assembled at Ferozpur Cantonment on 21st march, 2003 and subsequent days till 10th July, 2003. The petitioner was acquitted of six charges but found guilty on seven counts and was awarded a sentence of forfeiture of 12 years of past service for the purpose of pension and severe reprimand vide its findings and sentence dated 10th July, 2003. The proceedings of the General Court Martial were thereafter transmitted to respondent no.4 for confirmation.
4. The petitioner had submitted a pre-confirmation petition addressed to the Chief of Army Staff. It is stated that the respondent no.4 issued the directions contained in the order dated 15th December, 2003 directing the General Court Martial to re-assemble in open court on 29th December, 2003 for reconsidering the sentence awarded by it. In so doing the respondent no.4 made the following observations which weighed with him for passing the order:-
'2. while in no way intending to interfere with the discretion vested in the Court to award a just and appropriate sentence, I, as the confirming Officer, am of the considered view that the sentence as awarded is palpably lenient and is not commensurate with the gravity of the offences of which the accused has been found guilty.
3. In the instant case, the accused was found guilty by the Court on seven charges falling under Army Act Sections 45, 52(f), 57(a), 60 and Section 63, which essentially involve moral turpitude. The Court no doubt is not obliged to award the maximum punishment in each and every case and is empowered to modulate it in consonance with the gravity and nature of the offences committed. In laying down the punishment for a particular offence, the Statute gives a wide margin to the Court to exercise this discretion judiciously. Merits of each case should be carefully considered and the gravity of the offence of which the accused is convicted should not be lost sight of.
4. The twin object of awarding punishment is to maintain a high standard of discipline by making it deterrent to others and at the same time to ensure that the accused is awarded a punishment which is commensurate with the gravity of the offence of which he has been found guilty. While passing sentence, the paramountcy of discipline and good name of the service must, at all times, be kept in view. As such, though the proper amount of punishment to be inflicted is the least amount by which discipline can effectively be maintained, it should also not be so lenient as to make the offence for which it is awarded look venial. Inadequate punishments are bound to shake the very fibre of discipline, which in the larger interests of the service has to be kept in violate.
5. If upon deliberate and careful consideration of the above matters, the Court decides that the sentence awarded to the accused is lenient and not commensurate with the gravity of the offences which he has been found guilty, it should revoke the same and award an appropriate and adequate sentence afresh as provided by law.'
5. Pursuant to the said directive the General Court Martial re-assembled on 29th December, 2003. Both the prosecution and the defense made submissions before the General Court Martial. After deliberation on the submissions and consideration of the advice rendered by the judge advocate, the General Court Martial revoked the sentence earlier passed and enhanced the sentence of the accused to (i) to be cashiered and (ii) to suffer rigorous imprisonment for 9 months.
6. The order dated 15th December, 2003, issued by the GOC, 11 Corps c/o 56 APO, arrayed as respondent no.4 and consequent sentence dated 29th December, 2003 by the General Court Martial, has been impugned in the present petition on the following submissions:-
(i) The power to confirm the findings and sentence by the General Court Martial on officers holding the rank of Colonel or above at the time of commission or cognizance of the offence is conferred on the Chief of Army Staff by virtue of defense Service Regulation 472. thereforee, the respondent no.4 was not empowered to pass an order directing revision of sentence of the General Court Martial under Section 160 of the Army Act, 1950 read with Rule 68 of the Army Rules, 1954.
(ii)The statutory authority is bound to take into consideration, a pre-confirmation petition submitted by an officer under Section 164(1) prior to exercise of his power under Section 160 of the Army Act directing revision of the findings or sentence. The impugned order dated 15th December, 2003 is vitiated as it has failed to take into consideration the pre-confirmation petition submitted by the petitioner.
(iii) The respondent no.4 was bound to have passed an order disclosing the basis for his conclusions and the order dated 15th December, 2003 directing the revision of the sentence is rendered illegal as it discloses no reasons for directions made therein.
(iv)The impugned order dated 15th December, 2003 in fact amounts to a dictate by a superior authority to enhance the sentence of the petitioner which is impermissible in law and is hence vitiated.
(v) The order directing revision of the sentence being without jurisdiction, the entire proceedings and order dated 29th December, 2003 passed by the General Court Martial as a result are rendered illegal and of no consequence and effect.
7. In order to appreciate the questions raised before us, it becomes necessary to examine the procedure prescribed by law in respect of findings and sentence of a General Court Martial. Trial having concluded, the findings of the court are announced in open court and thereafter the matter proceeds to the stage of an appropriate sentence to be passed on an accused person. Examination of the provisions of the Army Act, 1950 (hereinafter referred to as 'the Act') and the Army Rules, 1954(hereinafter referred to as 'the Rules') framed there under shows that the legislature in its wisdom has provided for safeguards in order to ensure that no injustice results to an accused person on account of the special procedures which are required to be followed in Court Martial proceedings. As a result, Section 153 of the Act has been incorporated which stipulates that no finding or sentence of a General Court Martial shall be valid except so far as it may be confirmed as provided by the Act. The power to confirm findings and sentence of General Court Martial has been vested in the Central Government under Section 154 of the Act. The Central Government is also authorised to empower any officer in this behalf by a warrant issued by it under Section 154 of the Act. Restrictions, reservations or conditions in the powers to be exercised by the officer can be imposed by the Central Government under the warrant empowering the officer by virtue of the provisions of Section 156 of the Act.
8. It is further necessary to examine the scope of the power of the confirming authority which is seized of the matter by virtue of the findings and sentence of the Court Martial having been transmitted to it. Section 160 of the Act permits the confirming authority to once direct the General Court Martial to revise any finding arrived by it or sentence imposed on an accused person.
9. The procedure to be followed by the General Court Martial which has been directed to revise either finding or sentence has been provided under Rule 68 of the Army Rules, 1954. The Court is required to re-assemble in open court when the order of revision is read out. Fresh evidence can be led only if so directed in the order of revision. Once the revision order has been read in open court and the mandate under Army Rule 68(1),(2) & 3 carried out, the prosecutor and the accused person are required to be given a further opportunity to address the court in the order laid down under Rule 59. The judge advocate is authorised to sum up additional evidence, if any required. After revision, the presiding officer is required to date and sign the decision of the court and the proceedings, upon being signed by the judge advocate, are required to be transmitted for confirmation.
10. An important safeguard has been statutorily given to a person aggrieved by an order passed by the General Court Martial to petition the officer or authority empowered to confirm any finding or sentence of such Court Martial under Section 164(1). The confirming authority is authorised to take all such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceedings to which the order relates.
11. Further opportunity to represent its case is given to a person who may be aggrieved by a finding or sentence of any Court Martial which has been confirmed under Section 164(2) of the Act. Such petition is required to be made to the Central Government, the Chief of the Army Staff or any prescribed officer superior in command to the one who confirms such finding or sentence and such authority may pass such orders thereon as are deemed fit and proper.
12. We may here also refer to the powers of the confirming authority which is empowered under Army Rule 70 to either confirm or refuse confirmation or reserve confirmation for a superior authority. Such confirmation, non-confirmation or reservation is required to be entered in and forms part of the proceedings.
13. In support of the principal contention on behalf of the petitioner, reliance is placed upon the provisions of the defense Service Regulation 472. The same reads as under:-
'472. Confirmation of Court martial Proceedings--- The powers of officers to confirm the proceedings of a General Court Martial or Summary General Court Martial are restricted as under:-
(a) The proceedings of a General Court Martial or Summary General Court Martial where any of the sentences specified under column I below, except death sentences, is passed will be reserved for confirmation by the authority specified opposite under column II below:- I II(i)Death sentences...................Central Government(ii)Sentences passed on officers |of dismissal or higher in the scale| of punishments set out in sec 71 |of the Army Act. |(iii)Sentences passed on officers |who hold or held the rank of |Colonel or above at the time of |commission of the offence or | COASat the time of cognizance of |offence. |(iv) All sentences passed on officers |not required to be served for |confirmation by COAS under items |(ii)and (iii) above. | GOC-in-C (v) Sentence passed on JCOs of | Command dismissal or higher in the scale of |punishments set out in Sec 71 |of the Army Act. |xxxxxxxxxxxx'
14. On behalf of the petitioner it is contended that the finding and sentence of a General Court Martial which awards punishment of dismissal or above or an officer to the rank of Colonel or above can be confirmed by the Chief of the Army Staff alone by virtue of regulation 472. The authority of the respondent no.4 to either confirm or order revision of the sentence awarded to the petitioner by the General Court Martial has been challenged on this ground.
15. In the instant case, in exercise of the powers under Section 154 of the Act, the Central Government had issued a warrant in Form A-3 dated 22nd July, 1950 which was addressed to 'the officer not being under the rank of a Field Officer Commanding 11 Corps'. The same reads as hereunder:-
'A-3
Warrant for confirming findings and sentences of General Courts-Martial under the Army Act.
To
The OFFICER, not being under the rank of a Field Officer, Commanding the XI CORPS
In pursuance of the provisions of the Army Act, 1950(XLVI of 1950), the Central Government is hereby pleased to empower you, or the officer on whom your command may devolve during your absence, not under the rank of Field Officer, to receive the proceedings of General Courts-Martial held for the trial, in accordance with the said Act and the Rules made there under, of any person under your command who is subject to Military Law,and confirm the findings and sentences thereof, and to exercise, as respects these Courts and the persons tried by them, the powers created by the said Act in the confirming officer, in such manner as may be best for the good of the Regular Army:
Provided always that if by the sentence of any General Court-Martial a person subject to Military Law has been sentenced to suffer death, you shall in such case and also in the case of any other General Court-Martial in which you shall think fit so to do, withhold confirmation and transmit the proceedings to Superior Authority.
And for so doing, this shall be, as well to you as to all others whom it may concern, a sufficient warrant.
Given at NEW DELHI this 22nd day of July, 1950.
By order of the Central Government
Sd/-
Joint Secretary, Ministry of defense'
16. In answer to a query made by us, we have been informed that 'Field Officer' includes an officer not being a general officer of any rank (including brevet rank) above the rank of Captain [Army Rule 2(c)] and that the warrant has been issued in such form so as to provide a hierarchy to meet unforseen exigencies as large scale causalities in war time/army operation.
17. The restriction and reservation on the power of the confirming authority in respect of a person subject to military law who has been sentenced to suffer death as also in the case of any other General Court Martial in which it was deemed fit and proper by the confirming authority, has been specified in the warrant itself. In such cases, the confirming authority was required to withhold confirmation and transmit the proceedings to superior authority.
18. We have set out here-in-above the relevant provisions of law. It is not disputed by the petitioner that the warrant in Form A-3 which was issued on 22nd July, 1950 by the Central Government authorised and empowered the Officer Commanding 11 Corps to receive proceedings of the General Court Martial, to confirm the findings and sentence thereof and to exercise in respect of the General Court Martial powers created by the Army Act in the confirming officer, in such manner as may be best for the good of the regular army. This warrant was issued under the mandate of Section 154 and 156 of the Army Act, 1950 which provisions have to be read conjointly inasmuch as Section 156 qualifies Section 154. The only mode of carrying out the spirit, intendment and purpose of Section 154 and 156 is to incorporate any restriction, limitation, condition or reservation of power conferred on an officer in the warrant itself while conferring such authority. It is not open to the Central Government to super-impose in any other manner any further condition or limitation on the power conferred on the concerned officer under the warrant. To do otherwise would be contrary to law inasmuch as it is settled law that where a power is given to do a certain thing in a certain way it must be done in that way or not at all and all other methods of performance are necessarily prohibited.
19. In this behalf we may refer to the law laid down in : [1993]3SCR522 Shiv Kumar Chadha Vs . MCD ; Nazir Ahmad Vs . King Emperor; : [1964]4SCR485 State of UP v. Singhara Singh; 1875(1) Ch D 426 Taylor vs. Taylor; 1985 Crl.L.J. 1263 M.R.Saini v. UOI.
20. thereforee, in our view, the Central Government has no authority, power or jurisdiction in law to either delegate power to confirm finding and sentence of a Court Martial or to lay down any condition or restriction or reservation on the power of such confirming authority otherwise than by virtue of issuance of a warrant under Section 154 of the Army Act, 1950.
21. There is no dispute that respondent no.4 was functioning as GOC, 11 Corps. Since the sentence awarded to the petitioner in the instant case was less than the sentence of death, the respondent no.4 was competent to exercise the power of confirmation with regard to the same by virtue of the warrant dated 22nd July, 1950. The respondent no.4 as confirming authority could order revision of the finding or sentence given by the General Court Martial and on such direction being made the General Court Martial was bound to re-consider the same.
22. In this background we may examine the argument made before us based on the defense Service Regulations.
23. According to the petitioners the Chief of the Army Staff is the only person empowered to confirm a finding and sentence against an officer of the rank of Colonel or above under defense Service Regulation 472. The petitioner contends that whereas the requirement of confirmation has been laid down in the statute, the rules have set out the manner in which the power to confirm the finding and sentence of the Court Martial has been laid down under the Act. The army authority has been empowered to revise the finding or sentence by virtue of Section 160 and rule 68 merely prescribes the procedure in which the Court Martial is to carry out the directions of the convening authority in respect of revision of finding or sentence. According to Mr.A.S.Chandhiok, learned senior counsel for the petitioner, neither the Act nor the Rules framed there under prescribe the authority by whom the power to confirm or revise the finding and sentence of a Court Martial is to be exercised. It is contended that the regulation 472 addresses an area of legislative field which is hitherto unoccupied and hence the exclusion by virtue of Section 192 of the Act would not come into operation with regard to regulation 472. According to learned senior counsel, regulation 472, thereforee, is binding upon the respondents and the Chief of the Army Staff alone was the competent authority who could confirm the findings and sentence of the General Court Martial vis-a-vis the petitioner or direct revision of the sentence under Section 160 of the Army Act, if at all.
24. Power to make rules and regulations is vested in the Central Government under Section 191 and 192 of the Act. The Central Government is empowered to make rules for the purpose of carrying into effect the provisions of the Act under Section 191. Section 191(2) sets out various matters which the rules may provide for. The power to make rules in respect of confirmation, revision and annulment has been provided for under Section 191(2)(h) of the Act of 1950.
25. By virtue of Section 192, the Central Government is empowered to make regulations for all or any of the purposes of the Act other than those specified in Section 191. All rules and regulations made under the said Act are mandatorily required by virtue of Section 193 to be published in the official gazette and on such publication shall have effect as if enacted in this Act. Every rule and regulations made by the Central Government under this Act is required to be laid as soon as may be before each House of the Parliament for a period prescribed under Section 193A of the Act. It is a settled principal of law, that in view of the above statutory requirement, the regulation will not come into operation unless the same is published in the official gazette.
26. It is common ground before us in the instant case that the defense Service Regulations have not been published in the official gazette and on account of operation of the statute the same have not attained the force of law. According to the respondents, no regulations have been framed under the provisions of the Army Act, 1950 till date as envisaged under Section 192, 193 and 193A of the Act. The defense Service Regulations are not statutory in nature and it is so indicated in the preface thereto. thereforee, such regulations, in any case, cannot have overriding effect over statutory provisions. The regulations cannot supplant specific statutory provisions but are intended only to supplement existing relevant statutory provisions.
27. We have bestowed careful thought to the submissions on behalf of the petitioner and are unable to agree with the same. Section 154 lays down in no uncertain terms as to the authority which is statutorily empowered to confirm the findings and sentence of a General Court Martial. In the instant case, in exercise of its power under Section 154 of the Act, the Central Government has empowered an officer not being below the rank of Field Officer and Officer Commanding 11 Corps by a warrant dated 22nd July, 1950 to confirm findings and sentence of officers under their command. This warrant, which is set out here-in-above, contains limitation of power of such confirming authority which is in conformity with Section 156. It is nobody's case that there has been any variation or modification by the Central Government of such authority conferred under the warrant dated 22nd July, 1950. For this reason the respondent no.4 was duly authorised and competent to confirm the findings and sentence of the General Court Martial in respect of officers under his command and for the same reason was empowered to direct revision of the sentence by virtue of Section 160 of the Act.
28. Though it was not urged in explicit terms, the purport of the argument made by the petitioner and the issue which falls for determination in the face of such argument is the effect of regulation 472 on the warrant dated 22nd July, 1950.
29. We have already held here-in-above that Section 192 contains a total and absolute prohibition for framing regulations in respect of matters specified in Section 191. Confirmation and revision of findings and sentence by the court martials and petitions against findings and sentences of court martials are specifically set out under Section 191(2)(h) of the Act. In view of the warrant dated 22nd July, 1950 issued by the Central Government in exercise of valid power under Section 154, there does not remain any deficiency with regard to the officers who are competent to act as confirming authorities. Furthermore the manner in which the authority is to be conferred has been explicitly provided under Section 154 of the Act. There is, thereforee, neither any ambiguity nor any area which is not occupied by existing legislation.
30. In support of the petitioner's contention that there are no rules framed for the purpose of Regulation 472 and, thereforee, the regulation is binding on the respondents even if it is considered non-statutory in nature, the learned senior counsel appearing for the petitioner has relied upon the judgments of the Supreme Court reported as : (1975)ILLJ399SC and the judgment reported as 1995 (1) SCC 413.
31. Reliance was also placed by the petitioner on a judgment by a learned Single Judge of this Court reported in DRJ 1988 (14) 421 entitled K.K. Taneja v. Union of India & Anr. However, we find that in this case, no warrant authorising an officer in terms of Sections 154 and 166 of the Army Act, 1950 was produced before the Court. As such, the ratio of this judgment would have no application to the instant case.
32. The questions raised by the petitioner are not rest integra and have fallen for consideration before the Supreme Court of India as well as before this Hon'ble Court in several cases which are directly on the issues before us.
33. In support of his submissions learned Additional Solicitor General has placed strong reliance on the pronouncement of the Supreme Court of India : AIR1993SC773 entitled Union of India v. S.Brar. We are bound by the dictum of the Supreme Court laying down the position in law. Reliance has also been placed on a judgment of the learned single judge of this court reported at entitled M.R.Saini vs. UOI. We are in respectful agreement with the views expressed by the learned single judge in the said judgment. The warrant dated 22nd July, 1950 relied upon in the instant case had come up for consideration in this case as well.
34. In the instant case warrant has been issued under Section 154 of the Army Act, 1950 by the Central Government which has been placed before us and we have found that no regulation can be framed so as to supersede a warrant issued pursuant to a statutory provision. For this reason the judgments relied upon on behalf of the petitioner would have no bearing on the matter in issue.
35. There has been no dispute before us that the regulations are not statutory and are in the nature of administrative instructions alone. The regulations have not been framed by the Central Government in exercise of the power vesting in it under Section 192 of the Army Act. It is trite that the Central Government cannot amend or supersede statutory provision by administrative instructions. thereforee, the warrant issued under Section 154 of the Army Act is certainly valid authorisation and empowerment of authority and conferment of jurisdiction.
36. We hold that a warrant issued under Section 154 of the Act cannot be superseded by a non-statutory administrative instruction as contained in regulation 472. In view of the above discussion we are unable to agree with the submissions made by the learned senior counsel for the petitioner and hold that the respondent no.4 was empowered to pass the order dated 15th December, 2003 by virtue of the warrant dated 22nd July, 1950.
37. The other limb of the petitioner's argument relates to the challenge to the order dated 15th December, 2003. It has been contended before us that Section 160 of the Act does not permit a new enhanced sentence to be passed on the same facts as brought about at the General Court Martial but the power of revision postulates fresh evidence to be recorded and then reconsideration of the sentence. It has further been contended that inasmuch as Section 160 gives no opportunity to make a representation in case of revision and for this reason, a pre-confirmation petition submitted by an officer is required to be looked at by the conforming authority prior to directing revision of finding or sentence. It is submitted that in the instant case, the petitioner had submitted a pre-confirmation petition dated 5th August, 2003 to the Chief of the Army Staff which was pending and had not been examined by Respondent No.4, resulting in the order dated 15th December, 2003. The petitioner has contended that the action of the Respondent No.4 was wholly illegal for this reason and the order dated 15th December, 2003 passed by Respondent No.4 and the order dated 29th December, 2003 passed by the General Court Martial deserved to be set aside for this reason.
38. We are unable to agree with the learned counsel for the petitioner inasmuch as the issues raised on behalf of the petitioner have been considered by the courts and the matter stands settled by authoritative pronouncements which are binding on us. The Supreme Court in the judgment : [1973]2SCR1025 entitled Capt. Harish Uppal v. UOI had occasion to consider similar directions made by the confirming authority which were impugned on grounds almost identical to those on which the order dated 15th December, 2003 has been challenged before us. It had also been contended that the confirming authority had no power to enhance the sentence and as such, the authority cannot do indirectly what it could not do directly by virtue of its power to cause revision of the sentence. The Supreme Court held as under:-
'4. It was contended that in the face of such strong observations by the General Officer Commanding the Division the officers constituting the court martial would have felt compelled to enhance the sentence and the revised sentence passed on the petitioner was not the free act of the court martial but one forced on them by the Officer Commanding and that this militates against the principle of natural justice. But it should be remembered that under the provisions of the Army Act set out earlier the confirming authority could himself mitigate or remit the punishment awarded by the court martial or commute that punishment for any lower punishment and, thereforee, when a sentence is directed to be revised by the confirming authority it necessarily means that the confirming authority considers that the punishment awarded by the court martial is not commensurate with the offence and it should, thereforee, be revised upwards. To object to this is to object to the provisions of Section 158 itself. A direction by the confirming authority merely showing that the punishment awarded by the court martial is not commensurate with the offence, would be certainly unexceptionable and would be in accordance with the provisions of law. Instead of baldly stating so the confirming authority in this case has given reasons as to why he considers that the punishment awarded to the petitioner was wholly inadequate. We consider that the reasons given by him cannot be taken exception to. It was urged that the confirming authority proceeded on the basis that in respect of the charges against the petitioner the evidence available was as he had set out in his order directing revision and that this was not correct. We must point out that this Court cannot go into the evidence in support of the charge against the petitioner. Indeed the Court martial itself could not have set out the evidence against the petitioner; it should have only given finding and the sentence. Under the provisions of Art.136(2) of the Constitution this Court cannot grant special leave in respect of any judgment, determination or order passed or made by any Court or tribunal constituted by or under law relating to the Armed Forces. In considering a petition filed under Article 32 of the Constitution this Court can only consider whether any fundamental right of the petitioner has been violated and the only Article relevant is Article 21 of the Constitution. There is no doubt that the procedure established by law as required under that Article has been completely followed in this case.'
39. The confirming authority is empowered by the Army Rule 70 to confirm or refuse to confirm or reserve confirmation for superior authority. thereforee, to the extent that a confirming authority was of the view that a lesser sentence should be awarded or that the sentence awarded should be confirmed, the statute had conferred the power to do so on the confirming authority itself. It is apparent from the scheme of the statute that when an authority was of the view that the sentence was not commensurate with the offence and deserved to be revised, then the power of revision was to be exercised. thereforee, we are unable to agree with the learned counsel for the petitioner that the confirming authority did not have any power to direct enhancement of the sentence.
40. So far as the submission with regard to the consideration of the pre-confirmation petition of the petitioner is concerned, we find force in the respondents submission which is based on the right of an officer under Section 164 of the Army Act. It has been contended before us by Learned Additional Solicitor General that, upon consideration of the matter, the confirming authority did not agree with the order of sentence awarded by the General Court Martial. Accordingly, the confirming authority had directed the General Court Martial to reassemble on the question of sentence. A person aggrieved by any order passed by a General Court martial has a right under Section 164(1) to present a petition against such order to an officer or an authority empowered to confirm any finding or sentence of the Court Martial prior to its confirmation. The confirming authority is required to take all necessary steps to satisfy itself to the correctness, legality or the propriety of the order passed or as to the legality of any proceedings to which the order relates. thereforee, upon the directions for revision being made in the order dated 15th December, 2003, the original sentence of the General Court Martial ceased to exist and as such the pre-confirmation petition which was filed by the petitioner on 5th August, 2003 was of no consequence.
41. The nature of the petitions under Section 164(1) and 164(2) of the Act and scope of the jurisdiction to be exercised by the concerned authorities fell for consideration before the Supreme Court of India in case entitled Shri S.N.Mukerjee Vs . Union of India : 1990CriLJ2148a . The Court held as under:-
'51. Section 164 of the Act provides as under:-
(1) Any person subject to this Act who considers himself aggrieved by any order passed by any court- martial may present a petition to the officer or authority empowered to confirm any finding or sentence of such court-martial and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates.
(2)Any person subject to this Act who considers himself aggrieved by a finding or sentence of any court-martial which has been confirmed may present a petition to the Central Government, the Chief of the Army Staff or any prescribed officer superior in command to the one who confirmed such finding or sentence and the Central Government, the Chief of the Army Staff or other officer, as the case may be, may pass such orders thereon as it or he thinks fit.'
52. In sub-section (1) reference is made to orders passed by a court-martial and enables a person aggrieved by an order to present a petition against the same. The said petition has to be presented to the officer or the authority empowered to confirm any finding or sentence ;of such court-martial and the said authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order or as to the regularity of any proceedings to which the order relates. Sub-section (2), on the other hand, makes specific reference to finding or sentence of a court-martial and confers a right on any person feeling aggrieved by a finding or sentence of any court-martial which has been confirmed, to present a petition tot he Central Government, Chief of the Army Staff or any prescribed officer. The use of the expression 'order' in sub-section (1) and the expression 'finding or sentence in sub-section (2) indicates that the scope of sub-section (1) and sub-section (2) is not the same and expression 'order' in sub-section (1) cannot be construed to include a 'finding or sentence'. In other words in so far as the finding and sentence of the court-martial is concerned the only remedy that is available to a person aggrieved by the same is under sub-section(2) and the same remedy can be invoked only after the finding or sentence has been confirmed by the confirming authority and not before the confirmation of the same. Rule 147 of the Rules also lends support to this view. In the said Rule it is laid down that every person tried by a court-martial shall be entitled on demand, at any time after the confirmation of the finding and sentence, when such confirmation is required, and before the proceedings are destroyed, to obtain from the officer or person having the custody of the proceeding a copy thereof, including the proceedings upon revision, if any. This Rule envisages that the copies of proceedings of a court-martial are to be supplied only after confirmation of the finding and sentence and that there is no right to obtain the copies of the proceedings till the finding and sentence have been confirmed. This means that the appellant cannot make a grievance about non-supply of the copies of the proceedings of the court-martial and consequent denial of his right to make a representation to the confirming authority against the findings and sentence of the court-martial before the confirmation of the said finding and sentences. Though a person aggrieved by the finding or sentence of a court-martial has no right to make a representation before the confirmation of the same by the confirming authority, but in case such a representation is made by a person aggrieved by the finding or sentence of a court-martial it is expected that the confirming authority shall give due consideration to the same while confirming the finding and sentence of the court-martial.
53. In the present case the representation dated December 18, 1978 submitted by the appellant to the confirming authority was not considered by the confirming authority when it passed the order of confirmation dated May 11, 1979. According to the counter affidavit filed on behalf of Union of India this was due to the reason that the said representation had not been received by the confirming authority till the passing of the order of confirmation. It appears that due to some communication gap within the department the representation submitted by the appellant did not reach the confirming authority till the passing of the order of confirmation. Since we have held that the appellant had no legal right to make a representation at that stage the non-consideration of the same by the confirming authority before the passing of the order of confirmation would not vitiate the said order.'
42. The order dated 15th December, 2003 was not an order made by the Court Martial and as held by the Supreme Court of India, the petitioner had no right to petition the respondents against the same at this stage.
43. The confirming authority had directed reassembly of the General Court Martial for revision of sentence. The General Court Martial, when it is reconsidering the matter in pursuance of a direction having been issued under Section 160, has to apply its mind to the case independently, unfettered and uninfluenced by any observation which may have been made in the directions given by the confirming authority. It was open for the General Court Martial to make any order as it may deem fit and proper.
44. In this behalf, we may also appropriately refer to the judgment of a Division Bench of this Court reported at entitled Gian Chander v. UOI & Others. The Division Bench held as under:-
'29. xxxxxxxxxx The power under Section 160 is to be exercised before the confirmation of the sentence. This can only be exercised by the confirming authority asking for revision of the finding and/or sentence to the gone into by the General Court-Martial before the pre-confirmation petition is considered and decided upon. The occasion for considering the pre-confirmation petition will arise only after the General Court-Martial has forwarded its report on reconsideration of the matter. If the pre-confirmation petition has first to be decided, as has been contended by the petitioner, there would never be any occasion for the confirming authority to exercise its powers under Section 160.'
45. We would, thereforee, agree with the submissions made on behalf of the respondents that in view of the order passed on 15th December, 2003, the stage of confirmation of the sentence had yet to come.
46. Our attention has also been drawn to the procedure to be followed by the General Court Martial when its finding or sentence is sent back for revision. Army Rule 68 in this behalf mandates reading of the revision order in open court. It is incumbent upon the General Court Martial to give to the prosecutor and the accused further opportunity to address the court in the order as laid down in Rule 59.
47. We find from the proceedings held by the General Court Martial on 29th December, 2003 that submissions were made by the petitioner as well as the prosecutor. The petitioner was represented by counsel and written submissions were also made on his behalf. thereforee, the rights of the petitioner to be heard prior to making of an order for enhancement or maintaining an earlier order passed by General Court Martial which is conducting proceedings pursuant to an order of revision as statutorily provided, were adequately preserved and safeguarded.
48. Coming to the submission of the petitioner that it was incumbent upon the Court Martial to record evidence before passing a fresh order, it is necessary to point out at this stage that under Army Rule 160, a confirming authority is empowered to direct revision of finding or sentence. The confirming authority is also empowered to direct the General Court Martial to take fresh evidence. The General Court Martial can record fresh evidence only where it is so specifically directed to do so by the order of revision in accordance with Army Rule 68 (2).
49. In the instant case, the revisional order had directed merely revision of the sentence. There was no direction by the respondent no.4 to record evidence. For this reason, the General Court martial had no power to take fresh evidence. The submission on behalf of the petitioner that reconsideration of the sentence could be undertaken only upon fresh evidence, is contrary to statute and is being noticed only for the purposes of rejection.
50. In this behalf, we may also examine the scope of the permissible submissions which are available to an officer before the General Court Martial at the stage of revision. The Supreme Court of India has repeatedly held that, inter alia, challenge to the exercise of power to direct revision, and objections in relation to the errors in the observations of the confirming authority while directing revision and how they were not borne out from the evidence on record as well as errors relating to its jurisdiction can appropriately be pointed out by an officer before a General Court Martial reassembling pursuant to exercise of revisional jurisdiction under Section 160 of the Act.
51. We may notice that a person accused of an offence gets an opportunity to object to both the order directing the revision as well as the proposed enhancement of sentence before the General Court Martial by virtue of Army Rule 68(4) and thereby another opportunity to address the General Court Martial has been provided for by the legislature.
52. In this behalf, regard may be had to the judgment of the Supreme Court in Captain Harish Uppal (Supra) (para 5). This aspect was also considered in the judgment of the learned Single Judge entitled M.R. Saini Vs . Union of India & Another . It is also settled law that the General Court Martial while sitting in revision, could very well reconfirm its original order despite any direction given by the confirming authority.
53. Inasmuch as the confirming authority can exercise its power by directing revision only once and such power having been exhausted by virtue of issuance of the direction for revision, the matter has to proceed in accordance with the provisions of Army Rule 70. It has been pointed out by the respondents in the counter affidavit that the confirming authority is empowered by virtue of Army Rule 70 to either confirm or revise confirmation of the findings and sentence of the General Court Martial. A further power has been conferred by Rule 70 on the confirming authority to reserve confirmation to a superior authority inasmuch as the findings and sentence in respect of officers holding the rank of brigadier or above may be reserved for confirmation/non-confirmation for superior military authority under the provisions of Army Rule 70 and in accordance with Regulation 472. Such superior military authority in the instant case would be the Chief of he Army Staff.
54. Our attention has been drawn to a judgment of a Division Bench of the High Court of Bombay which has been reported as Mi 1998 L.L.J.153 entitled Charan Jit Lamba v. UOI & Anr. wherein similar questions raised were also answered against the petitioner therein. We concur with the reasoning of the court in this judgment.
55. There is yet another ground of attack to the order dated 15th December, 2003 passed by the confirming authority. It has been contended before us that the respondent No.4 had failed to apply his mind to the available record and the order dated 15th December, 2003 is bad in law for the reason that it discloses no reasons. The petitioners sought to place reliance on the observations of the Supreme Court of India in Captain Harish Uppal (Supra). We have extracted here-in-above the order made by the Respondent No.4 in the instant case. Perusal thereof would show that it was similar to the order recorded by the confirming authority in Captain Harish Uppal's matter. It was held by the Supreme Court that instead of baldly stating that the punishment awarded by the Court martial was not commensurate with the offence, the confirming authority had given reasons as to why the punishment was considered wholly inadequate and it was held that the procedure as established by law and as required had been completely followed.
56. It is necessary also to notice that in the present case, the respondent no.4 had issued the direction for revision of only the sentence imposed upon the petitioner without disturbing the findings of General Court Martial on the offences with which the petitioner had been charged.
57. The respondent No.4 has recorded reasons as to why in his view the order deserved to be revised and observed that the court had found the petitioner guilty of eight out of thirteen charges. No revision of any finding was directed. We would, thereforee, hold that there is no force in the submissions on behalf of the petitioner to the effect that the revision order resulted on account of non-application of mind on the part of respondent no.4 or was devoid of reasoning. In view of our discussion herein, we also do not agree that the order made by Respondent No.4 was in the nature of a dictate to the General Court Martial to necessarily upwards revise the order of punishment awarded by it to the petitioner.
58. We are bound by the law laid down by the Supreme Court of India. It was held in : 1990CriLJ2148a entitled S.N. Mukherjee v. UOI that recording of reasons is serving a salutary purpose, namely excluding the chances of arbitrariness in any decision making and guaranteeing consideration by authority of the matters in issue while, at the same time, introducing clarity in the decision. However, it was held that the confirming authority is not required to record reasons for an order confirming findings and sentence recorded by the court martial as well as for an order passed by the Central Government dismissing the post confirming petition.
59. In the instant case we have already held that Respondent No.4 had recorded reasons in the order dated 15th December, 2003 and, thereforee, the submission on behalf of the petitioner has no force. For this reason reliance by the petitioner on the judgment : [1998]1SCR1041 Union of India v. A.P.Bajpai is misconceived.
60. Before us a submission was made that the order dated 15th December, 2003 was not issued by the respondent no.4 of his own volition. It was contended that respondent no.4 was compelled to issue the order of revision by higher authority. In order to satisfy ourselves with regard to the veracity of the allegations being made by the petitioner, we had required the respondents to produce the original records before us. We have carefully examined the records in order to ensure that no injustice results to the petitioner. We find that the allegations made by the petitioner are not borne out by the record. No directive of the respondent no.3 directing respondent no.4 to issue the order of revision was forthcoming on the record. We were also unable to find any material on record to show that the respondent no.4 had at any point of time been of the view that the original sentence deserved to be confirmed. In this view of the matter we find that the apprehensions of the petitioner are without basis.
61. The sentence awarded by the General Court Martial does not take effect till the same it is promulgated. The authority to whom the proceedings are transmitted for confirmation is empowered to and may exercise its discretion to commute or reduce the sentence or either confirm it by itself or to reserve it for confirmation to superior authority. Even after confirmation the person aggrieved has a right to make further petition under Section 164(2). thereforee,the writ petition to the extent of the challenge to the sentence dated 29th December, 2003 is concerned, is premature and is so dismissed. The petitioner is given liberty to proceed in the matter and to file a writ petition at the appropriate stage if aggrieved by the actions of the respondents. The legality, validity or propriety of the findings and sentence of the General Court Martial were not in issue before us. thereforee, we have refrained from commenting upon the same.
62. In view of the aforesaid discussion the contentions on behalf of the petitioner are rejected. As a result, we find no merit in the petition which is hereby dismissed.
63. There would be no orders as to costs.