Air Force Act | Disciplinary Proceedings Can't Be Initiated Against Officer Discharged In Criminal Trial On Same Charge : Supreme Court

The Supreme Court on Wednesday (April 15) observed that once the defence forces have elected a continuation of criminal proceedings over the disciplinary proceedings, then acquittal in a criminal proceeding would bar the subsequent initiation of the disciplinary proceedings against a defence personnel. Setting aside the Delhi High Court's Division bench judgment, a bench of Justice Dipankar Datta and Justice KV Viswanathan restored the honour of an ex-Air Force personnel, with granting consequential service benefits nearly after three decades, who was subjected to a disciplinary inquiry post-acquittal in a criminal proceeding. “…the Air Force upon electing to have the alleged offence tried by the criminal court, 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.”, observed the court, emphasizing that “once the appellant has been discharged by the criminal court, that should mark the end of the matter.” “Initiation of administrative proceedings for disciplinary action against the appellant, we unhesitatingly hold, was bad in law and non-est.”, the court said, adding that “once an accused has been discharged, he is entitled to avail of all benefits that are otherwise available to an acquitted person and cannot be placed in a less advantageous position.”The Court also noted that in the case Union of India v. Harjeet Singh Sandhu (2001) 5 SCC 593, while examining Sections 19 and 125 of the Army Act and Rule 14 of the Army Rules, which are pari materia Sections 19 and 124 of the AF Act and Rule 6 of the 1969 Rules, respectively, the Supreme Court had observed that where the commanding officer, exercising discretion vested in him to choose between a trial by a criminal court and a court-martial, opts for trial before a criminal court, an acquittal of the accused by such court brings finality to the matter. In such circumstances, the initiation or continuation of disciplinary action would not be sustainable."Though the law laid down in Harjeet Singh Sandhu (supra) is on consideration of the provisions of the Army Act and the Army Rules, there is no reason why it would not squarely apply to a case covered by pari materia provisions of the AF Act and the AF Rules," the Court observed."True though, as per Harjeet Singh Sandhu (supra), initiation of administrative proceedings is barred when an accused is 'acquitted'; however, we find no reason for the ratio of the decision to not apply in a case where the accused is 'discharged' (which stands on a better footing than acquittal, as discussed supra). Once the appellant has been discharged by the criminal court, that should mark the end of the matter."Background The case arose from an incident dated March 29, 1987, when the appellant, then serving as a Senior Operations Officer in a remote Air Force unit in the Thar desert, acted on the instructions of his superior, a Wing Commander. A driver employed with the General Reserve Engineer Force (GREF), allegedly intoxicated and having caused damage to critical equipment, was taken away from the camp by the appellant and others and left at a remote location. The driver later went missing and was found dead a few days later. An FIR was registered, and the Air Force chos to have the matter tried by a criminal court instead of a court-martial, invoking the powers under Section 124 of the Air Force Act.In January 1990, the Sessions Court discharged all accused persons, finding no prima facie case and noting the absence of a sanction under Section 197 CrPC. The discharge order attained finality. IDespite this, the Air Force initiated administrative action and ultimately dismissed the appellant from service in 1993. Notably, the superior officer who issued the instructions was awarded only a minor penalty of “severe displeasure.” The Single Judge of the High Court held the disciplinary proceedings to be bad in law; however, the Division Bench upheld the same, prompting the officer to move to the Supreme Court.Discharged accused stands on a better footingThe Air Force authority initiated the disciplinary proceedings on the reasoning that the discharge of the petitioner will not bar administrative action since the effect of a discharge is that he was neither “acquitted nor convicted”.The Supreme Court termed this understanding as "fallacious", and explained :"Discharge is a pre-trial termination of proceedings for lack of evidence. As and when ordered, discharge signifies and reinforces the position that there is no material against the accused for him to stand trial. Whereas, acquittal is a post- trial outcome declaring the accused either innocent due to lack of credible material or on account of grant of the benefit of doubt. Insufficient evidence to even frame charges for standing trial would lead to a discharge while evidence presented not proving guilt leads to acquittal. In that ...

Air Force Act | Disciplinary Proceedings Can't Be Initiated Against Officer Discharged In Criminal Trial On Same Charge : Supreme Court

Yash Mittal

Setting aside the dismissal of the officer, the Court ordered that a formal farewell be organised for him, to restore his honour.

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