Supreme Court Upholds Dismissal for Cowardice but Sets Aside Imprisonment in Army Act Case: Dalbir Singh vs. Union of India (2019) INSC 650 (02 July 2019)

Date of the Judgment: 02 July 2019
Citation: (2019) INSC 650
Judges: M.R. Shah, J. and A.S. Bopanna, J.
Can a soldier be dismissed for not retaliating against militants and abandoning his post during an attack? The Supreme Court of India addressed this critical question in a case involving a soldier charged with cowardice under the Army Act. This judgment clarifies the standards of conduct expected of soldiers in combat situations and the consequences of failing to meet those standards. The bench consisted of Justice M.R. Shah and Justice A.S. Bopanna, with the judgment authored by Justice A.S. Bopanna.

Case Background

The appellant, Dalbir Singh, was enrolled in the Army on April 6, 1999. In 2006, he was posted to the 3 Rashtriya Rifles (RR) Battalion. On August 13, 2006, while serving with the 3 RR Battalion, an incident occurred during a cordon and search operation in village Darigidiyan, Jammu and Kashmir. The operation involved a brief exchange of fire with militants, who then took cover in a maize field. Two teams were formed for the operation, with the appellant being part of the second team. At approximately 0800 hours, the team was further divided into two groups. While searching a house, the appellant’s group heard firing from the maize field. They exited the house, and a cordon was established around the maize field for the night. A Light Machine Gun (LMG) was positioned and manned by Sapper Gurmail Singh and the appellant. Sapper Bachitar Singh was positioned nearby for support. At around 2300 hours, intense fire came from the maize field towards the LMG position. The charge against the appellant was that he abandoned his post, failed to retaliate, and jumped over a stone wall. As a result, the militants broke the cordon, killed Sapper Gurmail Singh, and took the LMG. The appellant sustained a bullet injury to his leg while jumping over the wall.

Timeline

Course of Proceedings

Following the incident, a Summary General Court Martial (SGCM) was convened. Witnesses were examined, and on March 6, 2008, the SGCM imposed a sentence of six months imprisonment and dismissal from service on the appellant. The appellant then challenged this decision before the Armed Forces Tribunal in OA No. 296 of 2010. The Armed Forces Tribunal reviewed the evidence presented in the SGCM and upheld the sentence, leading to the current appeal before the Supreme Court.

Legal Framework

The appellant was charged under Section 34(c) of the Army Act. This section pertains to the offense of a soldier who, in the presence of the enemy, displays cowardice by abandoning his post. The Army Act is a special law enacted to maintain discipline among the armed forces. The charge against the appellant was that he exhibited cowardice by abandoning his post during an attack by militants.

Arguments

Appellant’s Arguments:

• The appellant’s counsel argued that the findings of the SGCM and the Armed Forces Tribunal were erroneous.
• It was contended that the evidence of the witnesses was not properly appreciated.
• The appellant was injured during the incident, which should be considered.
• The appellant was a good soldier with a history of participating in several operations. Witnesses testified to his bravery.
• The charge of cowardice was not justified given his past record and the fact that he was injured.
• The appellant stated that he jumped over the wall to protect himself and attack the militants.
• He claimed that his AK-47 jammed when he tried to use it.
• He also stated that he was unconscious for about 10 seconds after being shot.

Respondents’ Arguments:

• The respondents’ counsel contended that the SGCM and the Armed Forces Tribunal had correctly appreciated the evidence.
• The Armed Forces Tribunal had re-evaluated the evidence before arriving at its conclusion.
• The concurrent findings of the lower courts did not warrant interference by the Supreme Court.
• The appellant did not use his AK-47 or pistol to retaliate against the militants.
• There was no explanation for why the appellant did not use his weapons.
• The appellant’s actions led to the death of his colleague and loss of the LMG.

Innovativeness of the Argument: The appellant’s argument that he was injured and momentarily unconscious, combined with his past record of bravery, was an attempt to explain his actions as a response to a chaotic situation, rather than cowardice. This was a novel defense in the context of military discipline.

Issues Framed by the Supreme Court

The Supreme Court framed the following issue:

1. Whether the appellant had abandoned his post and exhibited cowardice by not retaliating against the militants, despite being armed, leading to the death of his colleague and loss of the LMG?

Treatment of the Issue by the Court

Authorities

The judgment does not cite any specific cases or books. The court primarily relied on the factual evidence presented and the provisions of the Army Act.

Judgment

How each authority was viewed by the Court?

• The Court used Section 34(c) of the Army Act to determine if the appellant’s actions constituted cowardice. The Court held that the appellant, despite being armed, did not retaliate against the militants and abandoned his post.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• The appellant’s failure to retaliate against the militants despite being armed.
• The appellant’s abandonment of his post during the attack.
• The implausibility of the appellant’s explanation of being unconscious for a short period.
• The fact that the appellant’s actions led to the death of his colleague and the loss of the LMG.
• The need for soldiers to rise to the occasion in every instance to defend the nation’s integrity.
• The importance of maintaining discipline within the armed forces.

Logical Reasoning:

The Court considered the appellant’s defense that he had jumped over the wall to protect himself and attack the militants, but rejected it because he did not use his weapons to retaliate. The Court also rejected the explanation of being unconscious, as it was not consistent with the appellant’s detailed recollection of events. The Court emphasized that a soldier must rise to the occasion and defend the nation’s integrity, and past service is not a substitute for present duty. The Court concluded that the appellant’s actions constituted cowardice, justifying his dismissal from service.

The court did not discuss any alternative interpretations of the facts. It focused on the established facts and the appellant’s failure to act as expected of a soldier in a combat situation. The court’s reasoning was based on the principle that a soldier’s duty is to defend the nation, and failure to do so, especially in the face of the enemy, constitutes cowardice.

The Supreme Court upheld the dismissal of the appellant, stating that his actions amounted to cowardice. However, the court set aside the order for imprisonment, considering the appellant’s injury and the long lapse of time since the incident. The court’s decision was based on the principle that a soldier must always be ready to defend the nation, and failure to do so, especially in the face of the enemy, constitutes cowardice.

“In the matter of the present nature when the task assigned to a soldier is cut out in a definite manner and when the duties are assigned, the only scope in a judicial proceeding is to find out whether the same has been performed by him based on the finding of fact that is recorded.”

“The charge against the appellant is that despite the militants having attacked and killed Sapper Gurmail Singh who was in the group of the appellant and though the LMG was manned by the said deceased Sapper Gurmail Singh and the appellant, the appellant had not retaliated using either the AK­47 gun or the pistol which was in his possession.”

“Though in service matters the past conduct, both positive and negative will be relevant not only while referring to the misconduct but also in deciding the proportionality of the punishment, the Court should be cautious while considering the case of an officer/soldier/employee of a disciplined force and the same yardstick or sympathetic consideration as in other cases cannot be applied.”

There was no dissenting opinion in this case. Both judges concurred on the judgment.

The court’s analysis focused on the facts of the case, the appellant’s conduct, and the legal requirements under the Army Act. The court’s interpretation of the law was that a soldier’s primary duty is to defend the nation and that failure to do so, especially in the face of the enemy, constitutes cowardice. The court applied this interpretation to the facts of the case, concluding that the appellant’s actions warranted his dismissal.

The judgment has significant implications for future cases involving military discipline. It reinforces the principle that soldiers are expected to act bravely in the face of danger and that failure to do so can result in severe consequences. The judgment also highlights the importance of maintaining discipline within the armed forces. The judgment clarifies that a soldier’s past service is not sufficient to excuse present misconduct. The judgment emphasizes that a soldier must rise to the occasion on every occasion to defend the integrity of the nation.

The judgment did not introduce any new doctrines or legal principles. It applied existing legal principles to the specific facts of the case. The court’s decision was based on the established principle that a soldier’s duty is to defend the nation and that failure to do so constitutes cowardice.

Key Takeaways

• Soldiers must always be ready to retaliate and defend their position in the face of enemy attacks.
• Abandoning a post during combat can lead to severe disciplinary actions, including dismissal from service.
• Past service records and bravery are not sufficient to excuse present misconduct.
• The armed forces have a high standard of conduct and discipline, and any deviation can result in serious consequences.
• The courts will not easily interfere with the decisions of military tribunals in matters of discipline.

This judgment reinforces the importance of discipline and courage within the armed forces. It clarifies that soldiers must always be ready to defend the nation, and failure to do so can result in severe consequences. The judgment may lead to stricter enforcement of disciplinary measures in similar cases. It also serves as a reminder to soldiers about the high standards of conduct expected of them.

Directions

The Supreme Court upheld the order of dismissal from service but set aside the order to undergo rigorous imprisonment.

Development of Law

The ratio decidendi of this case is that a soldier who fails to retaliate against the enemy and abandons his post during an attack, despite being armed, exhibits cowardice and is liable to be dismissed from service. This case reinforces the existing legal position regarding the high standards of conduct expected of soldiers in combat situations.

Conclusion

In conclusion, the Supreme Court upheld the dismissal of Dalbir Singh from service for exhibiting cowardice by abandoning his post and failing to retaliate against militants. The court emphasized the high standards of conduct expected of soldiers and the importance of maintaining discipline within the armed forces. While the dismissal was upheld, the court set aside the order for imprisonment considering the injury sustained by the appellant and the lapse of time. This judgment reinforces the principle that soldiers must always be ready to defend the nation, and failure to do so can result in severe consequences.

Category

Parent Category: Army Act, 1950
Child Category: Section 34(c), Army Act, 1950

Parent Category: Military Law
Child Category: Court Martial

Parent Category: Armed Forces Tribunal
Child Category: Disciplinary Proceedings

FAQ

Q: What was the main issue in the Dalbir Singh case?
A: The main issue was whether a soldier could be dismissed for not retaliating against militants and abandoning his post during an attack.

Q: What did the Supreme Court decide in this case?
A: The Supreme Court upheld the dismissal of the soldier, finding that his actions constituted cowardice. However, the court set aside the order for imprisonment.

Q: What is Section 34(c) of the Army Act?
A: Section 34(c) of the Army Act pertains to the offense of a soldier who, in the presence of the enemy, displays cowardice by abandoning his post.

Q: Can a soldier be dismissed for not retaliating during an attack?
A: Yes, according to this judgment, a soldier can be dismissed for not retaliating and abandoning his post during an attack, as it is considered an act of cowardice.

Q: What does this judgment mean for soldiers?
A: This judgment reinforces the importance of courage and discipline within the armed forces. It clarifies that soldiers must always be ready to defend the nation and that failure to do so can result in severe consequences.