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PETITIONER: MAJOR GENERAL INDER JIT KUMAR

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       20/03/1997

BENCH: A.M. AHMADI, SUJATA V, MANOHAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Mrs. Sujata V. Manohar. J.      Leave granted.      The appellant,  at all material times, held the rank of Acting Major  General in  the Indian  Army. He  filed a writ Petition in the High Court of Madhya Pradesh challenging the inquiry proceedings  held against  him and  his trial  by  a general Court  Martial under  the Army  Act, 1950. This writ Petition has  been dismissed  by the  impugned judgment  and order of  the High  court of  Madhya Pradesh.  Hence he  has preferred the present appeal.      During the  pendency of these proceedings and after the vacation of  stay on holding of a General Court Martial, the trial of  the appellant  has proceeded to a conclusion and a sentence has  been passed that the be cashiered from service which is  subject to  confirmation as  per the provisions of the Army  Act, 1950.  The  appellant  has  filed  additional grounds of  appeal before  us challenging these findings. An earlier writ petition being Misc. Petition 717 of 1991 which was filed  before the  madhya Pradesh High Court in the same connection   has already  been dismissed  on 8th of October, 1991. However,  the present  writ petition has been examined on merits  by the  High Court  and dismissed. We, therefore, propose  to   examine  the  various  grounds  urged  by  the appellant in  support of  his case. The appellant has argued his appeal in person at his insistence.      The  appellant   who  held   the  substantive  rank  of Brigadier at the material time was posted was posted in Agra from February  1988 to  April 1989  as Commandant, Parachute Regimental Training  Centre. In  April 1989 he was given the acting rank  of major  General and  was  posted  as  General Officer Commanding,  Vth Mountain  Division in  the  Eastern Command. In  July 1989 the appellant was called to Agra as a witness in  a Court  Martial going  on against  on  e  Major Mahapatra. He  was asked  to stay  on for a Court of Inquiry being   held    in   connection   with   certain   financial irregularities which  has occured  while the  appellant  had been posted at Agra. The proceedings of the Court of Inquiry commenced on  26.7.1989. On   13.10.1989,  the appellant was attached   to    Military   college   of   Telecommunication

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Engineering,  Mhow,   under  Army  Instruction  30/86  until finalisation of  disciplinary proceedings  against him.  The appellant  was   directed  to   report  for  duty  at  Mhow. Thereafter the  hearing on  charges  against  the  appellant commenced under  Rule 22  of  the  Army  Rules  on  28th  of October, 1989. After examination of witnesses and documents, the Court  of Inquiry  submitted its  report  as  result  of which, on  23rd of  January, 1991, orders were issued by the G.O.C. -  in-C Central  Command fro  assembly of  a  General Court Martial for trial of the appellant.      The appellant  objected to the Presiding Officer of the Court n the ground that he was biased against the appellant. Therefore, the Presiding Officer retired from the  Court and Lt. General  Y.A.  Mande  was  appointed  as  the  Presiding Officer. Lt.  General Mande  was, however,  withdrawn on the directions  of   the  convening  authority  as  he  was  not available due  to another  engagement. The  next senior most officer was  appointed as  the Presiding  Officer. After the court  was   constituted  the  trial  began  and  has  since concluded.      The appellant  has alleged  that the proceedings of the General Court  Martial are  vitiated because  of bias on the part of the court against him. He was further challenged the entire proceedings  of the  court  of  Inquiry  and  of  the General Court  Martial on  the ground that the principles of natural justice  have been  violated. he  was not  given  an adequate opportunity  of defending  himself. He  has alleged that he  was denied  the assistance  of a suitable defending officer and/or  a defending  counsel of  his choice.  He has also alleged that he was not given the relevant documents or a copy  of the  report of  the Court, of Inquiry in order to enable him  to put  up his  defence. There  are also various other  technical   objections  raised   by  him.  All  these objections  have  been  examined  and  found  to  be  of  no substance by the High Court.      Under Rule  177 of Army Rules, 1954, 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. The  Court of Inquiry is in the nature of a fact-finding inquiry committee.  Army Rule 180 provides, inter alia, that whenever any  inquiry  affects  the  character  of  military reputation of  a  person  subject  to  the  Army  Act,  full opportunity must  be afforded  to such  a  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 or  cross-examining  any  witness  whose  evidence,  in  his opinion, affects  his character  of military  reputation and producing any  witnesses in  defence  of  his  character  of military reputation.  The presiding  officer of the Court of Inquiry is  required to  take such steps as may be necessary to ensure  that any  such person so affected receives notice of and  fully understands  his rights  under this  rule. The appellant  was  accordingly  present  before  the  Court  of Inquiry. Witnesses  were examined by the Court of Inquiry in the presence  of the  appellant. He,  however,  declined  to cross-examine the witnesses. Instead, the appellant moved an application for an adjournment for preparing his defence. He also applied  that the  evidence adduced before the Court of Inquiry should  be reduced  to writing. The Court of Inquiry noticed  that  sufficient  time  had  been  granted  to  the appellant for  preparation of  his defence  after receipt of the  Court   of  Inquiry   proceedings  by  him.  Hence  his application for  adjournment was  refused.  The  hearing  on charges took  place in the presence of the appellant. At the conclusion of  the hearing  on charges,  an order was passed

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that evidence be reduced to writing and a recommendation was made to convene a General Court Martial for trial along with recommendations on  charges to  be  framed.  Thereafter  the charges  were  finalised,  charge-sheet  was  issued  and  a General Court Martial was convened.      The appellant  has also  contended  that  copy  of  the report of  the Court of Inquiry was not given not to him and this has  vitiated the  entire Court  Martial. The appellant has relied  upon Rule  184 of  the Army Rules, 1954 i n this connection. Rule  184, however, provides that the person who is tried  by a  Court Martial  shall be entitled to copes 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. There is no provision for suppling the accused with the copy of the report of the court of Inquiry. The procedure relating to a Court of inquiry and the framing of a charges was examined by this Court in the case of Major G.S. Sodhi  v. Union of India [1991 (2) SCC 382]. This Court said that  the Court  of Inquiry  and participation  in  the Court of  Inquiry is  at a stage prior to the trial by Court martial. It  is the order of the Court Martial which results in deprivation of liberty and not nay order directing that a charge be heard or that a summary of evidence be recorded or that a  Court martial  be convented.  Principles of  natural justice are  not attracted  to such  a preliminary  inquiry. Army Rule  180, however,  which is  set  out  earlier  gives adequate protection to the person affected even at the stage of the  Court of Inquiry. In the present case, the appellant was given  that protection.  He was  present at the Court of Inquiry and  evidence was  recorded in  his presence. He was given an  opportunity to  cross-examine  witnesses,  make  a statement or  examine defence  witnesses. The  order of  the Court of  Inquiry directing that a Court Martial be convened and framing of charges, therefore, cannot be faulted on this ground  since  it  was  conducted  in  accordance  with  the relevant Rules.      The appellant has contended that charges framed against him are  in violation  of Army Rules. Hence the entire Court martial is vitiated. Tentative charges were initially framed against him  in the alternative. The tentative charges which were framed  on or  about 28.10.1989  were twelve in number. Each charge  was under Section 52 of the Army Act and in the alternative, under Section 63 of the Army Act. Section 52(b) refers to  the offence  of dishonestly  misappropriating  or converting to one’s own use of any property belonging, inter alia, to  the Government,  or to  any military, naval or air force mess,  band or  institution. section  52(f) refers  to doing, any  other thing  with intent to defraud, or to cause wrongful gain  to one  person or  wrongful loss  to  another person. Section 63 refers to any act or omission prejudicial to good  order and  military  discipline.  Investigation  of these tentative  charges was  carried out  by the Commanding Officer under  Army Rule 22 read with Rule 25. The appellant was given  the opportunity  to cross-examine  witnesses  and produce his witnesses. While recording a summary of evidence under  Army   Rule  23,   he  was  given  again  given  this opportunity.      After preliminary  investigation the commanding officer referred the  matter to the superior authority. According to the appellant, to Commanding Officer had recommended framing of charges  only under  Section 63.  The superior  authority took advice  of the  Deputy Judge  Advocate General  of  the Command who  prepared a draft charge sheet and advised trial of the  appellant by  a General  Court  martial.  The  final charge sheet dated 18.1.1991 as signed by Commanding Officer

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along with the order of trial by General Court martial which is counter-signed  by  the  General  Officer  Commanding-in- Chief, Central  Command contains  nine charges under Section 52 and three charges under Section 63.      The appellant  contends that once charges under Section 52 were  dropped, they  could not  have been included in the charge-sheet. Hence  the charge-sheet  is bad  in  law.  The respondent have set out in their affidavit in reply that the Commanding Officer  had merely submitted his recommendations to the  superior authority  regarding charges  to be  framed along with  his investigation report. After obtaining advice of the  Deputy Judge  Advocate General of the Command on the material so submitted, the final charge-sheet was issued. We fail to see any irregularity or illegality here.      The appellant’s contention that the Commanding Officer, Central Command had no jurisdiction in this regard must also be rejected since he was attached to the Central Command for the   purpose of  the disciplinary  inquiry which related to his conduct during the period when he was posted at Agra.      The appellant  next contends  that the convening of the General Court Martial in his case is not valid because under Section 109  of the  Army Act a General Court Martial can be convened only  by any  officer who  has been  appointed by a specific warrant in that connection by the Chief of the Army Staff. According to him a specific warrant must be issued in each case.  Under Section  109 of  the Army  Act, a  General Court Martial  may be  convened by the Central Government or the Chief  of the  Army Staff or by any officer empowered in this behalf by warrant of the Chief of the Army Staff. There is nothing  in Section  109 which  required the Chief of the Army Staff  to issue  a warrant  for each  specific case.  A general warrant  issued by the chief of the Army Staff as in the  present  case  is  competent  under  Section  109.  The appellant has also contended that since he did not belong to the Central  Command, General  Officer, Commanding-in-Chief, Central Command,  could not  convene a General Court Martial in his  case even  on the basis of the general warrant. This submission is  also without merit. The appellant, under Army Instruction 30/86  dated  13.10.1989  was  attached  to  the Central Command  until the  finalisation of the disciplinary case. This  would give jurisdiction to G.O.C. - in-C Central Command to convene a General Court Martial.      The appellant  has next  challenged the  composition of the Court.  Under Army Rule 44 the order convening the Court Martial and  the names  of the  Presiding  Officer  and  the members of  the court  shall be read over to the accused and he shall  be asked,  as required  by Section 130, whether he has any  objection to  being tried by any officer sitting on the court.  Any such  objection  shall  be  disposed  of  in accordance with  the provisions  of the  aforesaid  section. Sub-rule (e)  of Rule  44 of  the Army  Rules provides  that where an  officer so  retires or  is not  available to serve owing  to  any  cause,  which  the  court  may  deem  to  be sufficient, and  there are  any officers in waiting detailed as such,  the Presiding  Officer shall  appoint one  of such officers to  fill the  vacancy. If  there is  no officer  in waiting available,  the court  shall proceed  as required by Rule 38.  Rule 38  deals with  adjournment for  insufficient number of officer and it provides that where the full number of officers detailed are not available to serve, for reasons which are  set out there, the court shall ordinarily adjourn for the purpose of fresh members being appointed. We are not concerned with  the rest  of the  provisions. In the present case prior  to his arraignment, the appellant challenged Lt. General Vijay Madan, VSM, the Presiding Officer of the court

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on the  ground of  strained relations  between him  and  the Presiding Officer. The appellant’s plea was accepted and Lt. General Y.A. Mande, AVSM, a waiting member, took over as the Presiding Officer.  However,  Lt.  General  Y.A.  Mande  was withdrawn on the direction of the convening authority before swearing in.  Thereafter, Major General B.S. Malik being the next senior  person became presiding officer. To fill up the quorum of  seven  members  Major  General  Surjit  Singh,  a waiting member  was appointed as a member. The Court Martial was, therefore, convened in accordance with the Army Act and the Army  Rules.  According  to  the  appellant,  the  Court Martial  should  have  been  dissolved  under  Section  117. Section 117  provides that  if a  Court  Martial  after  the commencement to trial is reduced below the minimum number of officers required  by this  Act, it  shall be  dissolved, It also provides  for other  contingencies  in  which  a  Court Martial, after  commencement, can be dissolved. This section has no  application to  the present  case. The submission of the appellant,  therefore, regarding  the composition of the Court has not merit.      The grievance of the appellant relating to bias against him also  has no  merit. The first Presiding Officer against whom the  appellant has  alleged bias  was removed and a new Presiding Officer appointed. The appellant contends that the entire Court Martial was vitiated because he was not given a proper opportunity  to defend  his case.  He was not given a defending officer  of his choice and/or a defence counsel of his choice  to defend  him. A  major part  of his  arguments before us  related to  this proceedings of the General Court Martial from  this point of view. Before the commencement of the General  Court Martial  on 31st  of  January,  1991  the appellant was  asked to  submit names  officers by  whom  he would  like  to  be  defended  at  the  Court  Martial.  The appellant has  given names  of four  officer. When the Court Martial convened  on 31st  of January,  1991  the  defending officer  Major   M.M.  Khanna  for  the  appellant  and  the appellant  himself  were  present.  Major  Khanna  was  duly qualified as an officer who could  defend the appellant. The appellant accepted  him but  he also  reserved his  right to conduct his  defence in  person. After  a few days the Court Martial was  adjourned for nine days to enable the appellant to engage  a defence  counsel or  give details of some other defending officers.  The appellant  thereafter requested for Lt.  Colonel   Hari  Mittar   as  the   defending   officer. Accordingly Lt.  Colonel Hari  Mittar was made available. It seems that  the appellant  accepted  him  as  his  defending officer. But  once again  he did  not give  him the right of audience. The  appellant  was  asked  to  engage  a  defence counsel of  his choice.  From 3rd  April, 1991  to  10th  of April, 1991  no witness  could be  examined. Then on 11th of April, 1991 the appellant requested the court to adjourn for seven days  to enable  him to  engage a defence counsel. The court adjourned  for ten days on this request. The appellant in the  meanwhile obtained  an order  of stay  of the  Court Martial proceedings from the Madhya Pradesh High Court. As a result, the Court Martial was adjourned sine die.      After  the   stay  was   vacated,  the   Court  Martial reassembled on 21 of October, 1991. It was adjourned several time as  the defending  officer was  not present. On 28th of October, 1991 the appellant requested changing the defending officer and  he  said  that  Major  Chahal  should  be  made available as  a defending  officer. As  a result Lt. Colonel Hari Mittar was allowed to withdraw. Witnesses were examined thereafter from 29th of October, 1991 onwards. The appellant requested that  the cross-examination  of the  witnesses  be

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deferred. The  request was  granted. We find from the record that sufficient  time was  give to  the appellant  either to engage a  defence  counsel  of  his  choice  or  to  have  a defending  officer.  But  the  appellant  kept  on  changing defending officers or asked for adjournments for the purpose of  engaging  defence  counsel.  He  did  not  cross-examine witness when they were offered for cross-examination. He was given sufficient indulgence in this behalf by the court.      It seems  that Major  Chahal who  was requested  by the appellant as  defending officer  was present in the Court on 5th  of  December,  1991  and  6th  of  December,  1991  but thereafter  when  the  witnesses  were  offered  for  cross- examination he  was not  present and  the appellant  did not avail of  the opportunity  of cross-examining  the witnesses offered for cross-examination. On 23 of December, 1991 after the evidence  was over, the case was adjourned to enable the defence counsel  to prepare  the case of the appellant. Even thereafter, in January 1992 cross-examination of some of the witnesses was  offered but was not availed of. Ultimately on 17th of  January, 1992  addresses  by  the  prosecution  and defence concluded.  On  18th  of  January,  1992  the  trial concluded with  the summing  up by  the  Judge  Advocate.  A sentence of  being cashiered  from service  has been awarded which is subject to confirmation.      Thus, the  appellant repeatedly  sought adjournments on one   pretext or  the other  and was  not satisfied with the various defence  officers who  were made available to him as per his  request. The  appellant who  has argued this appeal before us  is well,  versed with  the Army Law and Army Rule and was  quite capable  of arguing  his  own  case.  He  was throughout present  at the  court  Martial  and  could  have cross-examined the  witnesses had he so desired. He has been given sufficient  indulgence by  court and we do not see how any principles of natural justice have been violated in this case. The Court Martial, therefore, cannot be faulted on the ground of  non-compliance  with  the  principle  of  natural justice. We  are not  sitting in appeal over the findings of the General Court Martial. Therefore, we have refrained from examining the merits of the case.      In our  view, the High Court was right in coming to the conclusion that  there is  no merit in the contentions taken by the appellant. The appeal is, therefore, dismissed. There will, however, be no order as to costs.