Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6886 OF 2014
JASWANT SINGH Appellant(s)
VERSUS
UNION OF INDIA & ANR. Respondent(s)
JUDGMENT
Dr. Dhananjaya Y. Chandrachud, J.
The appellant has challenged the decision of the Armed
Forces Tribunal, Regional Bench at Lucknow dated 18 December,
2012 in O.A. No. 48/2010, by which his challenge to the
punishment of dismissal and six months’ rigorous imprisonment
imposed by a Summary Court Martial has been rejected. The
punishment of imprisonment has already been undergone.
The appellant was enrolled as a Sepoy on 1 January, 2003
in the Indian Army. A Summary Court Martial was convened on two
charges; the first being of an assault on a superior officer
while the second was the use of abusive language against a
Subedar who had found the appellant to be not properly dressed
Signature Not Verified
Digitally signed by
SUSHIL KUMAR
RAKHEJA
Date: 2018.12.14
19:42:32 IST
Reason:
for the parade.
The Summary Court Martial acquitted the appellant of the
second charge, but he was found guilty of the first charge of
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misconduct. He was awarded a punishment of dismissal from
service and six months rigorous imprisonment in civil jail.
Aggrieved by the punishment, the appellant moved the
Armed Forces Tribunal, which dismissed the Original
Application.
The submission which has been urged on behalf of the
appellant is that there was a violation of the principles of
natural justice in conducting the Summary Court Martial. The
submission is based on the provisions of Rule 129 of the Army
Rules, 1954. The appellant sought the assistance of a civil
advocate which was denied.
The appellant submits that in a Summary Court Martial,
the Sepoy was pitted against the Commanding Officer. He should
have been given the benefit of legal advise which was denied to
him on the erroneous basis that it was only for an offence
involving a possible sentence of death that such assistance
could be allowed.
Rule 129 of the Army Rules, 1954 provides thus;
“Friend of accused – In any summary court-
martial, an accused person may have a person
to assist him during the trial, whether a
legal advisor or any other person. A person
so assisting him may advise him on all points
and suggest the questions to be put to
witnesses, but shall not examine or cross-
examine witnesses or address the court.”
The above Rule clearly indicates that in a Summary Court
Martial, the accused may have a person to assist him during the
trial, whether a legal adviser or any other person. The
expression ‘may’ must be read to mean that the person who is
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proceeded against has the option on whether or not to engage a
legal advisor or any other person. It represents an
entitlement to be represented.
By his letter dated 7.7.2009, the appellant requested the
Commanding Officer to permit him to hire a civil advocate.
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On 8 July, 2009, this request was turned down on the
ground that under Regulation 479 of the Army Regulations, a
civil advocate is permissible to only those persons who are
subject to trial for an offence which may result in the
imposition of the death penalty.
Regulation 479 deals with a situation where a person who
is subject to the Army Act is to be tried for a court martial
for an offence punishable with death. On the contrary, Rule
129 of the Army Rules which has been extracted above
specifically deals with representation in a Summary Court
Martial.
In view of the specific provision of Rule 129, the
Commanding Officer was evidently in error in declining the
assistance of a lawyer on the ground that legal assitance could
be admissible only where the offence was punishable with death.
Ms. Pinky Anand, learned ASG appearing for the Union of
India submits that no prejudice was caused to the appellant and
hence, the Court may not entertain the appeal. In this
connection, reliance was placed on the decision of this Court
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in Major G.S. Sodhi vs. Union of India .
The judgment in Major Sodhi’s case (supra) dealt with a
1. (1991) 2 SCC 38 2
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case of a General Court Martial. The circumstances of the case
have been adverted to in paragraph 20 of the judgment. This
Court noted that in the letter of the accused, there was a
reference to Rule 95 which dealt only with a ‘defending
officer’ and ‘friend of the accused’ to be provided for on
request.
It was in this background that this Court observed as
follows:-
“20. The next submission is that the
proper defence as requested by the petitioner
has not been provided for. In this regard it
is submitted that on December 8, 1988 the
petitioner made a request for a defence
counsel and on December 18, 1988 he gave
consent to dispense with the defending
officer. However on May 8, 1989 Lt. Col.
S.K. Maini asked the petitioner for three
names of defending officers in order of
preference. On May 9, 1989 he gave the list
of three names but according to the
petitioner on May 17, 1989 Lt. Col. S.K.
Maini detailed Lt. Col. R.S. Bhatt who is of
his own choice. It is also pointed out that
on May 18, 1989 the petitioner during the
court-martial requested for adjournment of
the court for 10 days in order to engage a
defence counsel. This request was turned down
on the wrong advice of the Judge-Advocate.
The further submission is that the petitioner
on May 19, 1989 wrote a communication to the
convening officer and apprised them with the
prejudice caused to his defence. Considerable
reliance is placed on this letter. We have
perused the same. In that there is a
reference to Rule 95 which deals only with
the 'defending officer' and 'friend of the
accused’ to be provided for on request. The
complaint made in the letter is about not
providing the defending officer of his choice
at the trial. There are some of the
circumstances which according to the learned
Counsel should be taken into account in
appreciating the prejudice caused to the
petitioner's defence. Rules 95 to 101 deal
with the appointment of defending officers
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and providing defence to the accused. Rule 95
lays down that at any general or district
court-martial the accused person should be
represented by any person who shall be called
the defending officer. It is the duty of the
convening officer to ascertain whether an
accused person desires to have a defending
officer assigned to represent him at his
trial and if he does so desire, the convening
officer shall use his best endeavours to
ensure that the accused shall be so
represented by a suitable officer. This rule
also provides that accused person should be
assisted by any person whose services he may
be able to procure and who shall be called
"friend of the accused" to give advice to the
accused on all points and suggest the
questions to be put to the witnesses. Under
Rule 96 in certain general and district
court- martials the counsel is allowed if the
convening officer declares that it is
expedient to allow the appearance of the
counsel. Rule 97 prescribes the requirements
for appearance of counsel. From a combined
reading of these rules it appears that
generally it is the defending officer
selected by the convening officer who defends
the accused and the accused is allowed in
special cases if the convening officer
declares that it is expedient to allow the
appearance of the counsel which is
exceptional. However, in this case we need
not make a roving investigation on this
aspect because we do not find any illegality
or irregularity that vitiate the trial nor we
find any prejudice having been caused to the
accused. As noted above under the rules the
defending officer so selected is authorised
to represent the accused and examine and
cross-examine the witnesses. All that has
been done duly in this case. Therefore we are
unable to agree that prejudice has been
caused to the petitioner's defence.”
(emphasis supplied)
The above factual basis on which it was held that no prejudice
had been caused to the defence of the appellant was evidently
the foundation of the ultimate decision of this Court.
In the present cae, the appellant had rendered seven
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years of service. He was pitted against his Commanding
Officer. In the face of Army Rule 129, there was no reason to
deny him the benefit of legal representation which he desired
at his own expense.
For these reasons, we are of the view that there was a
clear violation of the principles of natural justice. The
prejudice too is evident. The appellant was dismissed from
service and sentenced to six months’ imprisonment. Both his
livelihood and liberty were taken away.
In the circumstances, we allow the appeal and set aside
the judgment of the Armed Forces Tribunal and the decision
which has been taken on the basis of the Summary Court Martial.
It is clarified that we have interfered with the order
only on the ground of a violation of the principles of natural
justice. It would be open to the Respondents to take further
steps as may be permissible in accordance with law.
The appeal is, accordingly, allowed. There shall be no
order as to costs.
…...……………...…................J.
(DR. DHANANJAYA Y. CHANDRACHUD)
......….........……………………….....J.
(M.R. SHAH)
NEW DELHI,
December 10,2018