Limits on Court Martial after Criminal Court Discharge
Judgment dated 15.4.2026 of the Supreme Court in Criminal Appeal Nos.6929-6930 of 2009 of Ex.Sqn.Ldr. R Sood Vs. Union of India and others
Sections 19, 121 and 124 of the Air Force Act
On 31.3.1987, the complaint of missing driver was filed. FIR was filed against the appellant and others. Court of Inquiry was instituted. Two years later in January 1989 the disciplinary proceedings were filed against the appellant. However, the court of inquiry was abandoned and the Air Force opted for trial of the criminal court.
On 12.1.1990, the Sessions Court discharged the appellant and others for want of prima facie case and sanction. This order had become final.
On 30.10.1990 i.e. after expiry of three years period from the date of incident, the notice invoking section 19 of the AF Act read with Rule 16 of the AF Rules for departmental proceedings was issued.
However, the appellant was dismissed from service on 22.9.1993.
Thus, the Air Force upon electing to have the alleged offence tried by the criminal court20, it is clear (in view of the discussion above) that they then cannot fall back on either a court martial or any disciplinary action. Once the road is chosen, the traveller must walk it to the end. 28. Initiation of administrative proceedings for disciplinary action against the appellant, we unhesitatingly hold, was bad in law and non-est.
Arbitrary Punishment of Dismissal
driver to desolate surroundings; this, he did while acting on the instructions of his superior. Though there is no definite material, we would assume that the corpse found was of the driver who, having been left to fend for himself, did not survive the harsh climate of the Thar; but , at the same time, there is also no definite material to suggest that such relocation was made by the appellant with any motive of harming him. Indeed, it is revealed from the records that to keep the driver away from the next day’s anticipated visit of the AOC-i-C (so that the driver does not create any ruckus) was the real object intended to be achieved. It is also evident that the Wg. Cmdr. had given specific instructions, which later were even viewed as encouraging his subordinates to suppress the truth. Possibly, the appellant had no other option but to obey the orders of his superior. Non-consideration of these circumstances in course of the decision-making process being writ large together with the absence of reasoning in the order punishing the appellant, renders the same arbitrary and unsustainable in law sufficient to vitiate the entire proceedings against the appellant. 37. Before parting, while recounting that the appellant’s superior officer was visited with the penalty of ‘severe displeasure for three years’, whereas the appellant has been ordered to be dismissed from service, we find it imperative to bear in mind that queries were repeatedly raised as to the rationale for imposing such a comparatively lenient punishment upon 22 the senior officer, while punishing the appellant with dismissal. The only explanation forthcoming was that the superior officer had already superannuated and, therefore, no further action could be taken against him. This explanation does little to assuage our concern. Maintaining and carrying forward the high traditions and the standard of discipline in the armed forces cannot be over-emphasized. The punishment of ‘displeasure’ was imposed on the Wg. Cmdr. before he had superannuated. It is not for us to question the Government, in course of these proceedings, why the Wg. Cmdr. was let off leniently; however, the question that certainly looms large is why was the appellant singled out for a harsher punishment despite his discharge from the criminal case? The answer is not far to seek. The understanding of the law relating to discharge, as noted above, was fallacious. We unhesitatingly hold that when a comparatively less penalty has been imposed upon an officer with a more significant role, such disparity ought to have weighed with the authorities while determining the punishment to be inflicted upon the appellant. While we do not for a moment suggest that undue leniency shown to one should also be shown to the other, and are conscious that one mistake cannot justify another, this is a case where the ratio of the decision of this Court in Sengara Singh v. State of Punjab21 would seem to apply. In the absence of distinguishing features, the appellant ought to have been treated on a par with the Wg. Cmdr. The principle of equality would be violated when a subordinate officer is meted out the harshest punishment for complying with a 21 (1983) 4 SCC 225 23 wrongful order of his superior, while the latter who issued it gets a lenient treatment leading to a reprieve of sorts. It could be so that to an extent, the appellant had exceeded in what he was required to do by the Wg. Cmdr., yet, sight cannot be lost that the order of the Wg. Cmdr., which was rooted in wrongdoing, was not demonstrated to be not binding on the appellant. RELIEF 38. Premised on the above, justice demands that the ignominy with which the appellant had to survive the past more than three decades is obliterated, the wrongful termination of his service be revoked and his honour restored
