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N.C. Jain, C.J.—The present writ appeal has been filed by the Union of India and Ors. s against the judgment of the learned Single Judge, dated 3.3.1993, passed in Civil Rule No. 2200 of 1990. It has been held by the learned Single Judge that the Court Martial could not award more than one sentence, as it is violative of Rule 124 of the Army Rules, 1954.
For appreciating the precise question involved in this case, it would be necessary to have a look at the provisions of the Army Act, 1950 and the rules framed thereunder. Sections 73 and 74 of the Army Act, 1950, need reproduction in the first instance.
Combination of punishments.--
A sentence of a court-martial may award in addition to, or without any one Ors. punishment the punishment specified in Clause (d) or Clause (e) of Section 71 and any one or more of the punishments specified in Clauses (f) to (1) of that section.
Cashiering of Officers.--
An officer shall be sentenced to be cashiered before he is awarded any of the punishments specified in Clauses (a) to (c) of Section 71.
Rules 124 and 168 of the Army Rules, 1954, read as under:
Sentence--
The Court shall award one sentence in respect of all the offences of which the accused is found guilty.
Sentence of Cashiering or Dismissal.--
(1) A sentence of cashiering or dismissal awarded by a Court-martial shall take effect from the date on which the sentence is promulgated to the person under sentence, or except in the case of an officer, from such subsequent date as may be specified by the commanding officer at the time of such promulgation.
(2) When dismissal is combined with imprisonment which is to be carried out in a military prison or in military custody or with field punishment, the dismissal shall not take effect until the date on which the prisoner is released from a military prison or from military custody, or until the completion of the field punishment, unless such field punishment is remitted by a competent authority.
(3) When cashiering or dismissal is combined with imprisonment for life or with imprisonment which is to be carried out in a civil prison, the cashiering or dismissal shall not take effect until the date on which the prisoner is received into a civil prison.
Before determining the precise question of law, a brief look at the facts of the instant case would be necessary. The Respondent, a sepoy Clerk in the Army, was Court-martialled for disobedience of the orders lawfully given by his superior officers. The Ors. charge against the Respondent was that he failed without sufficient cause to attend duty at the appointed place. Yet, the Respondent was charged with using criminal force against his superior officer. After finding him guilty of the offences, he has been awarded two sentences, namely, (1) rigorous imprisonment for seven months and (2) dismissal from service. The legality and validity of the order of Court martial was subject matter of challenge before the learned Single Judge in the writ proceedings. The learned Single Judge has set aside the order of the Court martial on the ground that the same is violative of Rule 124 of the rules reproduced above. Reliance has been placed by the learned Single Judge upon a decision of this Court in Hemanta Kumar Rathor v. Union of India and Ors. reported in 1988 (2) GLJ 235.
Mr. K.K. Mahanta, learned Sr. Standing Counsel for Union of India while attacking the judgment of the learned Single Judge has vehemently argued that neither the learned Single Judge nor the Division Bench while deciding Hemanta Kumar Rathor case (supra), has taken into consideration Section 73 of the Army Act, 1950. According to him, two sentences are permissible in accordance with Section 73 of the Army Act. The learned Counsel has, in support of his argument, heavily relied upon three judgments namely, (1) Ex-Naik Sardar Singh Vs. Union of India (UOI) and Others, (2) Om Prakash v. Union of India and Ors. Civil Appeal No. 2987 of 1991 (Supreme Court of India, D/D August 25, 1993) and (3) Ranjit Singh Chaurasia Vs. The Union of India (UOI) and Others,
We have given due thought to the argument of the learned Counsel for the Appellants and are inclined to accept the same. Section 73 of the Army Act, 1950 envisages in clear terms infliction of two sentences. Rule 124, which has been relied upon by the learned Single Judge cannot run contrary to the spirit of Section 73 of the Act. It is an well settled principle of law that rules cannot travel beyond the main provisions of the Act.
Adverting to the decided cases, the Division Bench judgment of Allahabad High Court in Ranjit Singh Chaurasia case (supra) appears to be nearest to the case in hand. It has been held in Ranjit Singh Chaurasia case (supra) that summary Court-martial is competent to award punishment of dismissal from service in addition to punishment of imprisonment. The Hon''ble Supreme Court in Om Prakash case (supra) has also laid down in clear terms, while interpreting the provisions of Sections 71, 72 and 73 of the Army Act that Court martial can impose two different punishments. As regards Ex-Naik Sardar Singh case (supra), the Apex Court gave lighter punishment in view of the facts and circumstances of that case.
In the light of the discussion made above, it can safely be held by us on the basis of the interpretation of Section 73 of the Army Act, 1950 and the law laid down by the Allahabad High Court and the Supreme Court that two punishments are permissible for the same offence. Section 74 provides that in case of officers, the punishment of cashiering is to be executed first, i.e., before executing any Ors. sentence imposed as provided under the law. Cashiering is a graver form of punishment of removal. Section 74, therefore, necessarily implies that besides cashiering, the Court martial may impose anOrs. sentence/punishment.
Likewise, Clause (2) of Rule 168 provides as to how an order of dismissal combined with imprisonment is to be executed. The inference is clear that more than one punishment can be imposed by the Court-martial.
Further, Rule 124 prohibits imposition of more than one sentence for various ollences for which the person is found guilty. It does not say that more than one punishment cannot be imposed. ''Sentence'' and ''punishment'' do not convey same meaning. In Callaman v. United States 364 US 587 : 81 Sect 321, it was held, "cumulative sentences are not cumulative punishment."
A plain reading of Sections 53 and 71 of the Indian Penal Code will show that for one single offence--two punishments--punishment of imprisonment and punishment of payment of fine, can be imposed. We, therefore, hold that Rule 124 does not prohibit cumulative punishment.
In Hemanta Kumar Rathor (supra), the Court did not consider the provisions of Sections 71, 72, 73 and 74 of the Army Act and the case was decided more on facts. We, therefore, hold that Hemanta Kumar Rathor (supra) did not lay down the correct law while holding that more than one punishment cannot be imposed by the Court-martial. Relying on the said decision, the learned Single Judge also erroneously held likewise.
We answer the reference by stating that Court-martial has power to impose more than one sentence.
In the result, the appeal stands allowed and the impugned judgment and order passed by the learned Single Judge is set aside. The matter is remitted back to the learned Single Judge for fresh decision.