Full Judgment Text
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PETITIONER:
UNION OF INDIA AND OTHERS
Vs.
RESPONDENT:
MAJOR A. HUSSAIN, IC- 14827
DATE OF JUDGMENT: 08/12/1997
BENCH:
SUJATA V. MANOHAR, D.P. WADHWA
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
D.P. Wadhwa. J.
Appellants are aggrieved by the judgment dated February
21, 1994 of the Division Bench of the High Court of
Judicature: Andhra Pradesh dismissing their appeal against
judgment date April 25, 1991 of the learned single Judge of
that High Court whereby the learned single Judge allowed
writ petition filed by the respondent and quashed the court
martial proceedings held against him including the
confirmation of sentence passed upon him by the court
martial.
A General Court Marital (GCM) under the Army Act, 1950
(for short ’the Act’) was convened to try the respondent
holding the rank of Major in the army on the following
charge:
"Charge Sheet"
The accused IC-14827F Major Arshad Hussain, 225
Ground Liaison Section Type ’C’ attached to AOC
Centare, an officer holding a permanent commission in
the Regular Army, is charged with :-
Army Act AN ACT PREJUDICIAL TO GOOD ORDER AND MILITARY
Section 63’ DISCIPLINE,
in that he,
at Field, between 17 Sep 84 Ground Liaison Section Type
’C’, lost by neglect twelve (12) pages of the
Commander’s Operational Brief taken on charge at Serial
115 on the Incoming TOP SECRET Register of HW 150 Inf
Bde which were entrusted to in for safe custody.
Place: Secunderabad Sd/-
Date: 14 Aug 87 (Gautam Mitra )
Brig
Commandant
AOC Center
To be tried by General Court Martial.
Station: Madras - 9 Sd/-
Dated: 25 Aug 87 (Deepak Sehdev)
Colonel
Colonel A
For General Officer Commanding
Andhra Tamil Nadu Karnataka
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and Kerala Area."
Section 63 of the Act reads as under;
"63. Any person subject to that Act who is guilty of
any or omission which, though not specified in this
act, is prejudicial to good order and military
discipline shall, on conviction by court-martial, be
liable to suffer imprisonment for a term which may
extend to seven years or such less punishment as is in
this Act mentioned."
After conclusion of the GCM proceedings the respondent
was held guilty of the charge and was sentenced to be
dismissed from service by order dated December 26, 1987 of
the General Court Martial. The sentence passed against the
respondent was confirmed by the confirming authority as
required under the Act.
The respondent challenged his conviction and sentence
in a writ petition filed by him in the High Court which, as
noted above, allowed the same and quashed the court martial
proceedings and confirmation of sentence against the
respondent. The ground which appealed to the High Court in
setting aside the court martial proceedings and subsequent
confirmation of sentence may be stated from the judgment of
the of the single Judge which is as under:
" The Petitioner has been denied a
reasonable opportunity to defend
himself by not communicating the
conclusion reached in Rule 22
Inquiry as contemplated by Army
Order 70/84. In the proceedings
under Section 22 by not supplying
the copies of statements in earlier
court of Inquiry: (i) during
General Court Martial by not giving
assistance of a defending officer
of his choice; (ii) not providing
him load which was already
sanctioned to manage a new counsel
as the earlier counsel engaged by
him had retired for no fault of the
petitioner; (iii) by not providing
him the documents for which he had
made a request to the convening
authority long before assembly of
the Court Martial and for which his
counsel had also made a request."
Now to understand if the High Court rightly exercised
its power of judicial review of the court martial
proceedings, we may refer to a few relevant facts and
briefly to the court martial proceedings.
In the year 1984 respondent was serving as Ground
liaison Officer in a Brigade which was situated somewhere in
Rajasthan in close proximity of international border with
Pakistan. One Major P.C.Bakshi was also posted a Brigade
Major in that Brigade. brig. A.S. Bains was the commander of
the Brigade. Major Bakshi was on annual leave with effect
from 17.9.84 to 16.11.84 but before proceeding on leave he
handed over certain classified documents to the respondent.
Under provisions of Handing of Classified documents, the
secret/top secret documents are to be in safe custody of an
officer not below the rank of Major. Accordingly, Brig.
Bains ordered the respondent to take charge of classified
documents from Major Bakshi which classified documents from
Major Bakshi which classified documents the respondent took
over charge and duly signed the handing/taking over of these
documents by signing a certificate to that effect. When
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Major Bakshi rejoined from his annual leave, he was required
to take back the charge of classified documents from the
respondent. When handing/taking over was commenced it. was
discovered that 12 pages of "Top Secret" documents were
missing. A detailed search was carried out but the documents
could not be traced and a report of this fact was
communicated to all concerned in accordance with laid
procedure. Major Bakshi declined to take charge and under
orders of brig. Bains the charge of the documents was
ordered to be handed over to one Major D.K. Sharma, Deputy
Assistant and Quarter Master General in the Brigade, which
he did. it is stated that these "Top Secret" documents
contained vital information adversely affecting the security
of the country as these documents reflected deployment of
troops along the international border with Pakistan. In
accordance with Army Rules, 1954 framed under Section 191 of
the Act "staff court of inquiry’ was ordered under Rule 177
to investigate the loss, apportion blame and to suggest
remedial measures to prevent such loss occurring in future
but the court of injury, however, failed to give any
definite findings. Additional court of inquiry was ordered
which examined additional witness. Appellants submitted that
respondent was afforded full opportunity to be present
throughout the proceedings in the court of inquiry in
accordance with Army Rule 180 and for submitting anything in
his defence. The Court of Inquiry apportioned blame on the
respondent and it was recommended to initiate disciplinary
proceedings against him.
In accordance with Rule 22(1) of the Army Rules read
with Army Order No. 70/84 respondent was brought before the
Commanding Officer on April 8, 1985 and hearing of the
charge was conducted in the presence of Major. D.K. Sharma.
Summary of Evidence was recorded by Lt. Col. B. P. Singh
from April 15, 1985 onwards in which the respondent
participated. He cross-examined witnesses during the
recording of Summary of Evidence. The respondent did not
complain about the non-supply of the Court of Inquiry
proceedings which were provided to him before the
commencement of the Central Court Martial in accordance with
Army Rule 184.
The Commanding Officer of the respondent requested the
trial of the respondent by General Court Martial which was
approved by the convening authority. The respondent was
informed that he would be tried by General Court Martial and
was advised to submit a list of defence witnesses as well as
his choice for a defending officer. The respondent instead
proceeded on leave for sixty days with effect from 10.6.85
to 8.8.85 which was granted. He did not rejoin his duty and
instead got himself admitted in Military Hospital in
Secunderabad which the appellants contend was to avoid the
trial by General Court Martial. The appellants complain that
the respondent adopted tactics to delay the commencement of
the General Court Martial . He filed a writ petition (No.
17828/86) in the Andhra Pradesh High Court at Hyderabad. The
High Court by order dated August 3,1987 directed the
appellants to post the respondent at Secunderabad.
Respondent was thus attached to AOC Center at Secunderbad.
He was supplied with copy of the chargesheet, copy of the
Court of Inquiry proceeding and summary of evidence. He was
also informed that General Court martial was likely to be
convened by August 28, 1987. The respondent again moved the
High Court by filing another writ petition (No. 12561/87)
and obtained an order staying the General Court martial
proceeding. It is not necessary to refer to proceedings in
the High Court in that writ petition in any detail, except
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to note that Court Martial proceeding was interrupted though
ultimately the stay granted by the High Court was vacated.
The General Court Martial assembled on September 14, 1987
and on being arraigned the respondent pleaded "not guilty"
to the charge. Thereafter General Court Martial was
adjourned.
For the purpose of recording of evidence. General Court
Martial resembled on November 30, 1987. In the absence of
the Judge-advocate, it was adjourned to the following day.
On December 1, 1987, the record shows that defending
officer stated that full facilities in accordance with the
Army Act, Army Rules and Regulations for the Army had been
afforded to the respondent in the preparation of his defence
and that the respondent had also been given full opportunity
to consult and confer with him as also his defence counsel.
The respondent had engaged the services of a civilian
defence counsel the respondent was given an advance of Rs.
10,000/- on his request by the Army authorities. The Court
also recorded submission of the defence counsel that all
papers pertaining to preparation of defence of the
respondent as requested earlier on August 24, 1987 and of
which reminder was also sent on November 26, 1987 be made
available to the defence counsel for proper conduct of the
defence of the case. During the course of the proceedings,
it was submitted by the define counsel that a copy of the
Summary of Evidence recorded against the respondent, a copy
of the court of enquiry proceedings and a copy of the
additional court of enquiry proceedings had been received by
the respondent in due time an that he had no grievance to
that extent. He, however, submitted that there were some
other documents which had not been made available to the
respondent and as a result he was unable conduct the defence
case effectively. Proceedings of the court martial, however,
show that whatever documents the respondent had asked for,
he was given opportunity to inspect the same and in spite of
the documents being made available to the respondent and his
defence counsel, no attempt was made to inspect the same. We
find that most of the documents which the respondent had
asked for were quite irrelevant to the proceedings. During
the course of the proceedings of the Court martial,
respondent had submitted certain applications which were
duly considered by the General Court Martial and orders
passed. We find that full opportunity was granted tot he
respondent to conduct his case and proceedings could not be
more fair. However, request of the defence counsel for a
long adjournment wad declined. His submission that the court
martial proceedings were being conducted with great haste
had no basis. On one day only one witness was being examined
and his cross-examination was being deferred at a request of
the defence counsel himself. Court Martial was convinced for
the trial of the respondent. It was not a regular court in
the sense. that where many cases are fixed and adjournments
granted. Under Army Rule 82, when a court is once assembled
and the accused has been arraigned, the court shall continue
the trial from day-to-day in accordance with Rule 81 unless
it appears to the court that an adjournment was necessary
for the ends of justice or that such continuance is
impracticable. That the defence counsel had other case to
attend to would hardly be a ground to adjourn the court
martial. At one stage in midst of the case, the defence
counsel withdrew. Grievance of the respondent that since
further advance of Rs. 15,000/- was not given to him to
engage another defence counsel, he could not effectively
defend his case found favour with the High Court. The High
Court, however, failed to take notice of the fact that the
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respondent was not entitled to any advance for the purpose
of engaging the defence counsel and earlier as a special
case an advance of Rs.10,000/- had been sanctioned. No Rule
or Army Instruction has been shown under which the
respondent was entitled to an advance. The respondent
refused to cross-examine the witnesses on the specious
ground that services of defence counsel were not made
available to him due to paucity of funds. We noted that
during the curse of enquiry proceedings, the respondent
himself extensively cross-examined the witnesses. It is not
therefore possible to accept the submission of the
respondent that due to lack of funds he could not engage the
services of a defence counsel particularly when during the
course of court martial proceedings, he knocked the doors of
the High Court thrice.
On being asked by the convening officer respondent had
given names of three officers one of whim he wanted to be
his defending officer. A defending officer is to be provided
to the respondent in terms of the Army Rule 95. The services
of none of the named officers could be provided to the
respondent due to exigency of services and particularly when
the officers belonged to the Judge Advocate General branch
and were not available. The names of the officers which the
respondent gave were (1) Maj. Gen. A.B. Gorthi, (2) Brig.
Mohinder Krishan and (3) Lt. Col. R.P. Singh. It was
submitted before us that though there is no bar in the Rules
to provide the services of an officer of the JAG Branch as a
defending officer but as a general policy it is not done.
That would appear to be a sound policy considering the
nature of functions and duties of an officer of JAG Branch
when appointed to a court martial as hereinafter mentioned.
Moreover we find that General Court martial was presided
over by an officer of the rank of Colonel. The respondent
was asked to give the name of any other officer to be
appointed as his defending officer but he declined to do so.
The appellants provided the services of three defending
officers one after the other but the respondent declined to
avail of their services and did not give them right of
audience. All the three officers were of the rank of
lieutenant Colonel and two of them were experienced and
were legally qualified. prosecution examined Six witness
including Major. P.C. Bakshi, Lieutenant colonel A.K. Sharma
and Brigadier A.S. Bains and also brought on record various
documents. The respondent was also examined by the Court. In
the absence of any cross-examination by the respondent, the
court itself put several questions to the witnesses in the
nature of cross-examination.
At this stage we may refer to the relevant provisions
of law. Section 1 of Chapter V of the Army Rules deals with
investigation of charges. Under Rule 22 every charge against
a person subject to the Act other than an officer shall be
heard in the presence of the accused who shall have the full
liberty to cross-examine any witness against him and to call
any witnesses and make any statement in his defence. The
commanding officer shall dismiss the cargo brought before
him if, in his opinion, the evidence does not show that an
offence under the Act has been committed. However, if he is
of the opinion that the charge ought to be proceeded with,
he has four options, one of which is to adjourn the case for
the purposes of having the evidence reduced to writing.
Under Rule 23 procedure is prescribed for taking down the
summary of evidence and statement taken down in writing
shall either remand the accused for trial by court martial
and in that case apply to the proper military authority to
convene a court martial. Under Rule 25 where an officer is
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charged with an offence under the Act, the investigation
shall, if he requires it, be held, and the evidence, if he
so requires, be taken in his presence in writing, in the
same manner as nearly as circumstances admit, as is required
by Rules 22 and 23 in the case of other persons subject to
the Act . Army Order No. 70/84 which deals with hearing of a
charge by the commanding officer may be set out as under :
"AO 70/84 Discipline: Hearing of a
Charge by the commanding Officer.
1. Discipline process under the
Military law commences with Army
Rule 22 which lays down that every
charge against a person subject to
the Army Act, other than an
officer, shall be heard in the
presence of accused. The accused
shall have full liberty to cross-
examine any witness against him.
this is a mandatory requirement and
its non-observance will vitiate any
subsequent disciplinary
proceedings. In the case of
officers, the rule becomes equally
mandatory if the accused officer
requires its observance under Army
Rule 25.
2. It is, therefore, incumbent on
all Commanding Officers proceeding
to deal with a disciplinary case to
ensue that "Hearing of Charge "
enjoined by Army Rule 22 is
scrupulously held in each and every
case where the accused is a person
other than an officer and also in
case of an officer, if he is so
requires it. In case an accused
officer does not require "Hearing
of the Charge " to be held, the
Commanding Officer may, at his
discretion, proceed as described in
Army Rule 22(2) or Army Rule 22(3).
3. It may be clarified that the
charge at this stage is a
’Tentative’ charge which may be
modified after the hearing or
during the procedure as described
in Army Rule 22 (3) (c) or during
examination after completion of the
procedure under Army Rule 22(3) (c)
, depending on the evidence
adduced. Further, as long as the
Commanding Officer hears sufficient
evidence in support of the charge
(s) to enable him to take action
under sub-rules (2) and (3) of Army
Rule 22, it is not necessary at
this stage to hear all possible
prosecution witnesses. As a matter
of abundant caution it would be
desirable to have one or two
independent witnesses during the
hearing of the charge(s).
4. After the procedure laid down in
Army Rule 22 has been duly
followed, other steps as provided
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in Army rules 23 to 25, shall be
followed both in letter and spirit.
It may be clarified that the
statutory requirements of Army
Rules 22 to 25 cannot dispensed
with simply because the case had
earlier been investigated by a
court of Inquiry where the accused
person (s) might have been afforded
full opportunity under Army Rule
180."
Army Rules 180 and 184 which fall in chapter VI of Army
Rules relating to Courts of Inquiry are as under :
"180. Procedure when character of a
person subject to the Act is
involved.- Save in the case of a
prisoner of war who is still
absent, whenever any inquiry
affects the character or military
reputation of a person subject to
the Act, full opportunity must be
afforded to such person of being
present throughout the inquiry and
of making any statement, and of
giving any evidence he may wish to
make or give, and of cross-
examining any witness whose
evidence, in his opinion, affects
his character or military
reputation and producing any
witnesses in defence of his
character or military reputation.
The presiding officer of the Court
shall take such steps as may be
necessary to ensure that any such
person so affected and not
previously notified, receives
notice of and fully understands his
rights, under this rule
184. Right of certain persons to
copies of statements an documents.-
(1) any person subject to the Act
who is tried by a court-martial
shall be entitled to copies of such
statements and documents contained
in the proceedings of a court of
Inquiry, as are relevant to his
prosecution or defence at his
trial.
(2) Any person subject to the Act
whose character or military
reputation is affected by the
evidence before a court of Inquiry
shall be entitled to copies of such
statements and documents as have a
bearing on his character or
military reputation as aforesaid,
unless the Chief of the Army Staff
for reasons recorded by him
writing, orders otherwise."
Present Rule 184 was substituted by SRO 44 dated
January 24, 1985 and prior to its substitution Rule 184
reads as under:
" 184. Right of certain persons to
copies of proceedings.- The
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following persons shall be entitled
to a copy of the proceedings of a
court o inquiry including any
report made by the court on payment
for the same of a sum not exceeding
eight annas for every two hundred
words:-
(a) any person subject to the Act,
who is tried by a court-martial in
respect of any matter or thing
which has been reported on by a
court of inquiry, or
(b) any person subject to the Act,
whose character or military
reputation is, in the opinion of
the Chief of Army Staff affected by
anything in the evidence before, or
in the report of a court of
inquiry, unless the Chief of the
Any Staff sees reason to order
otherwise."
Under Rule 95 in any General Court Martial an accused
person may be represented by any officer subject to the Act
who shall be called "the defending officer". Sub-rule (2) of
Rule 95 Casts duty on the convening officer to ascertain
whether the accused person desires to have a defending
officer assigned to represent him and if he does so desire,
the convening officer shall use his best endeavors to ensure
that the accused shall be so represented by a suitable
officer. This sub-rule (2) is as under:
"(2) It shall be 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 endeavors to ensure that the
accused shall be so represented by
a suitable officer. If owning to
military exigencies, or for any
other reason, there shall in the
opinion of the convening officer be
no such officer available for the
purpose, the convening officer
shall give a written notice to the
presiding officer of the Court-
martial, and such notice shall be
attached to the proceedings."
Under Rule 96 a civil counsel can also be allowed in
General Court Martial to represent the accused subject to
his being allowed but he convening officer which in the
present case was done and the accused was represented by a
counsel of his choice.
Judge Advocate administers path to the members of t he
court-martial (Rule 47) and he himself be sworn as per the
forms prescribed (Rule 46). It is he who sums up in an open
court the evidence and advise the court upon the law
relating to the case. If we refer to Rule 105 we fine the
powers and duties of the judge-advocate. This rule is as
under:
"105. Powers and duties of judge-
advocate.- The powers and duties of
judge-advocate are as follows:-
(1) The prosecutor and the accused,
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respectively, are at all times
after the judge-advocate is named
to act on the Court, entitled to
his opinion on any question of law
relative to the charge or trial
whether he is in or out of Court,
subject, when he is in Court to the
permission of the Court.
(2) At a Court-martial, he
represents the Judge-Advocate
General.
(3) He is responsible for informing
the Court of any informality or
irregularity in the proceedings.
Whether consulted or not, he shall
inform the convening officer and
the court of any informality or
defect in charge, or in the
constitution of the Court, and
shall give his advice on any matter
before the Court.
(4) Any information or advice given
to the Court, on any matter before
the Court shall, if he or the Court
desires it, be entered in the
proceedings.
(5) At the conclusion of the case,
he shall sum up the evidence and
give his opinion upon the legal
bearing of the case, before the
Court proceeds to deliberate upon
its finding.
(6) The Court, n following the
opinion of the judge-advocate on a
legal point, may record that it has
decided in consequence of that
opinion.
(7) The judge-advocate has, equally
with the presiding officer, the
duty of taking care that the
accused does not suffer any
disadvantage in consequence of his
position as such, or if his
ignorance or incapacity to examine
or cross-examine witnesses or
otherwise and may, for that
purpose, with the permission of the
Court, Call witnesses and put
questions to witnesses which appear
to him necessary or desirable to
elicit the truth.
(8) In fulfilling his duties, he
judge-advocate must be careful to
maintain and entirely impartial
position."
No fault could be found with the recording of summary
evidence. Respondent has been unable to show if there was
any non-compliance with the provisions of Rules 22, 23 and
24 and Army Order No. 70/84. We have been referred to two
decisions of the Supreme Court in Lt. Col. Prithi Pal Singh
Bedi vs. Union of India and Ors. [(1982) 3 SCC 140] and
Major G.S. Sodhi vs. Union of India [ (1991) 2 SCC 382]
laying the scope of the provisions regarding recording of
summary of evidence. In G.S. Sodhi’s case this Court with
reference to Rules 22 to 25 said that procedural defects,
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less those were vital and substantial, would not affect the
trial. The Court, in the case before it, said that the
accused had duly participated in the proceedings regarding
recording of summary of evidence and that there was no
flagrant violation of any procedure or provision causing
prejudice to the accused.
Provisions of Rules 180 and 184 had been complied. Rule
184 does to postulate that an accused is entitled to a copy
of the report of court of inquiry. Proceedings before a
court of inquiry are not adversarial proceedings and is also
not a part of pre-trial investigation. In Major General
Inder Jit Kumar vs. Union of India & Ors. [(1997) 9 SCC 1]
this Court has held that the Court of Inquiry is in the
nature of a fact-finding enquiry committee. The appellant in
that case had contended that a copy of the report of the
Court o Inquiry was not given to him and the had vitiated
the entire court martial. He had relied upon Rule 184 in
this connection. With reference to Rule 184, the Court said
that there was no provision for supplying the accused with a
copy of the report of the Court of Inquiry. This Court
considered the judgment in Major G.S. Sodhi’s case and
observed that supply of a copy of the report of enquiry to
the accused was not necessary because proceedings of the
court of enquiry were in the nature of preliminary enquiry
and further that rules of natural justice were not
applicable during the proceedings of the court of enquiry
though adequate protection was given by Rule 180. This Court
also said that under Rule 177, a court of inquiry can be set
up to collect evidence and to report, if so required, with
regard to any matter which may be referred to it. Rule 177,
therefore, does not mandate that a court of inquiry must
invariably be set up in each and every case prior to
recording of summary of evidence or convening of a court-
martial.
As noted above, when none of the three officers who
were all from JAG Branch could be made available to the
respondent as defending officer he was asked to give the
name of any officer who could be deputed his defending
officer. It is not the case of the respondent that the
convening officer did not use his best endeavor to ensure
that the respondent was represented by a suitable defending
officer. It was the respondent himself who declined to give
any other name. Nevertheless the convening officer did
depute three officers one after the other to represent as
defending officer for the respondent. But the respondent
declined to avail their services.
We may also refer to Rule 149 which lays down that a
Court-martial would not be held to be invalid even if there
was an irregular procedure where no injustice was done. This
Rule is as under:
"Validity of irregular procedure in
certain cases. - Whenever it
appears that a court-martial had
jurisdiction to try any person and
make a finding and that there is
legal evidence or a plea of guilty
to justify such finding, such
finding and any sentence which the
court-martial had jurisdiction to
ass thereon may be confirmed, and
shall, if so confirmed and in the
case of a summary court-martial
where confirmation is not
necessary, be valid,
notwithstanding any deviation from
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these rules or notwithstanding that
the charge-sheet has not been
signed by the commanding officer or
the convening officer, provided
that the charges have, in fact,
before trial been approved by the
commanding officer and the
convening officer or
notwithstanding any defect or
objection, technical or other,
unless it appears that any
injustice has been done to the
offender, and where any finding and
sentence are otherwise valid they
shall not be invalid by reason only
of a failure to administer an path
or affirmation to the interpreter
or shorthand writer; but nothing in
this rule shall relieve an officer
from any responsibility for any
willful or negligent disregard of
any of these rules."
We find t he proceedings of the General Court Martial
to be quite immaculate where trial was fair and every
possible opportunity was afforded to the respondent to
defend his case. Rather it would appear that the respondent
made all efforts to delay the proceedings of the court
martial. Thrice he sought the intervention of the High
Court. Withdrawal of the defence counsel in the midst of the
proceedings was perhaps also a part of plan to delay the
proceedings and to make that a ground if the respondent was
ultimately convicted and sentenced. Services of qualified
defending officer was made available to the respondent to
defend his case, but he had rejected their services without
valid reasons. He was repeatedly asked to give the names of
the defending officers of his choice but he declined to do
so. The court martial had been conducted in accordance with
the Act and Rules and it is difficult to find any fault in
the proceedings. The Division Bench said that the learned
single Judge minutely examined the record of the court
martial proceedings and after that came to the conclusion
that the respondent was denied reasonable opportunity to
defend himself. We think this was fundamental mistake
committed by the High Court. It was not necessary for the
High Court to minutely examining the record of the General
Court martial as if it was sitting in appeal. We find that
on merit, the High Court has not said that there was no case
against the respondent to hold him guilty of the offence
charged.
Though Court-martial proceedings are subject to
judicial review buy the High Court under Article 226 of t he
Constitution, the Court-martial is not subject to the
superintendency of the High Court under Article 227 of the
Constitution. If a court-martial has been properly convened
and there is no challenge to its composition and the
proceedings are in accordance with the procedure prescribed,
the High Court or for that matter and court must stay its
hands. Proceedings of a court-martial are not to be compared
with the proceedings in a criminal court under the Code of
Criminal Procedure where adjournment have become a matter of
routine though that is also against the provisions of law.
It has been rightly said that Court-martial remains to a
significant degree, a specialised part of overall mechanism
by which the military discipline is preserved. it is for the
especial need for the armed forces that a person subject to
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Army Act is tried by court-martial for an act which is an
offence under the Act. Court-martial discharges judicial
function and to a great extent is a court where provisions
of Evidence Act are applicable. A court-martial has also the
same responsibility as any court to protect the rights of
the accused charged before it and to follow the procedural
safeguards. If one looks at the processions of law relating
to Court-martial in the Army Act, the Army Rules, Defence
Service Regulations and other Administrative Instructions of
the Army, it is manifestly clear that the procedure
prescribed is perhaps equally fair if not more than a
criminal trial provides to the accused. When there is
sufficient evidence to sustain conviction, it is unnecessary
to examine if pre-trial investigation was adequate or not.
Requirement of proper and adequate investigation is not
jurisdictional and any violation thereof does not invalidate
the court martial unless it is shown that accused has been
prejudiced or a mandatory provisions has been violated. One
may usefully refer to Rule 149 quoted above. The High Court
should not allow the Challenge to the validity of conviction
and sentence of the accused when evidence is sufficient,
court-martial has jurisdiction over the subject matter and
has followed the prescribed procedure and is within its
powers to award punishment.
After ourselves examining the record of the court-
martial, we find that the high Court completely misdirected
itself in coming to the conclusion that the respondent was
denied reasonable opportunity to defend himself. He was
given copies of all the relevant papers and also given
opportunity to inspect whatever record he wanted; allowed
services of a civilian counsel; special advance was given to
engage the services of civil counsel as requested by the
respondent; there was no rule to give further advance to
engage yet another civil counsel when first one withdrew;
respondent was not hampered by paucity of funds as made out
by him; no fault could be found with the covening officer
if the respondent himself did not avail the services of a
defending officer when provided; cross-examination of
important witnesses was deferred at the request of the
respondent; and he had participated in the recording of
Summary of Evidence without raising any objection. The
General Court Martial took into consideration all the
evidence and other materials produced before it; found the
respondent guilty of the charge and sentenced him to be
dismissed from service. Pre-confirmation petition submitted
by the respondent was rejected by the Chief of the Army
Staff and finding and sentence of the General Court Martial
were confirmed by him. Thus, examining the case of the
respondent from all angles which led the High court to set
aside his conviction and sentence, we are satisfied that
there was no irregularity or illegality and respondent was
provided with reasonable opportunity to defend himself and
the proceedings were fair. We, therefore, set aside the
impugned judgment of the High Court and dismiss the writ
petition filed by the respondent.
The appeal is allowed with costs.