Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6181 OF 2002

Union of India & Ors.         …Appellants

Versus   A.K. Pandey     …Respondent

JUDGEMENT

R.M. Lodha, J.

The  question  which  falls  to  be  determined  in  this  

appeal by special leave is : is the provision in Rule 34 of the Army  

Rules, 1954 that the interval between the accused being informed  

of charge for which he is to be tried and his arraignment shall not  

be less than ninety-six hours mandatory?

2. Mr. A.K. Pandey – respondent – was enrolled in Army  

on September 18, 1987. Subsequently, he was posted to 12 Corps  

Signal Regiment (AREN) unit on August 21, 1994 at Jodhpur. The  

respondent  remained  on  casual  leave  for  thirteen  days  from  

September 5, 1995 to September 17, 1995.  When he resumed his  

duty  on  September  23,  1995  he  brought  with  him  one  country

made pistol and one round of small ammunition to the unit which  

he  sold  to  signalman  J.N.  Narasimlu  of  the  same  unit.  J.N.  

Narasimlu  while  leaving  the  unit  was  caught  by  the  regimental  

police  carrying  the  above  weapon  and  one  round  of  small  

ammunition in one bag. On being questioned, J.N. Narasimlu told  

that  he  had  purchased  the  weapon  and  one  round  of  small  

ammunition  from  the  respondent.  The  respondent  and  J.N.  

Narasimlu were placed in closed arrest with effect from September  

23, 1995. Summary of evidence against both the persons is said to  

have been recorded by Major Sudhir Handa of 12 Corps Signal  

Regiment.  

3. The respondent was charged vide charge-sheet dated  

October 26,  1995 which was served upon him on November 2,  

1995 at 1800 hours. He was informed that he would be tried by  

General Court Martial on November 6, 1995 at 1130 hrs.  

4. On  November  6,  1995,  General  Court  Martial  

commenced its proceedings at 1010 hours wherein the respondent  

is said to have pleaded guilty of both the charges. Based on that,  

the respondent  was awarded punishments;  (i)  to suffer  rigorous  

imprisonment for three years and (ii) dismissal from service.    

2

5. The respondent aggrieved thereby  submitted a petition  

under Section 164(2) of the Army Act, 1950 before the Chief of the  

Army  staff  for  setting  aside  the  findings  and  sentence  of  the  

General Court Martial held on November 6, 1995.

6. The Chief of Army Staff rejected the petition submitted  

by the respondent on December 23, 1996 and the respondent was  

informed of the said decision on December 31, 1996.

7. The  respondent  then  approached  the  High  Court  of  

Judicature for Rajasthan at Jodhpur praying therein for issuance of  

appropriate  writ,  order  or  direction  to  quash  the  General  Court  

Martial proceedings dated November 6, 1995 and the punishments  

awarded to him and to reinstate him in service with  effect  from  

November 6, 1995 with all consequential benefits.

8. The present  appellants contested the writ  petition by  

filing a counter in opposition before the High Court.

9. The Learned Single Judge allowed the writ petition on  

December  3,  1999  and  quashed  and  set  aside  General  Court  

Martial  proceedings  held  on  November  6,  1995  as  well  as  the  

order of punishment.

3

10. The  present  appellants  preferred  intra  court  appeal  

which was found devoid of any merit and came to be dismissed on  

April 11, 2001. Hence, the present appeal by special leave.

11. Mr. Mohan Jain, Learned Additional Solicitor General  

strenuously urged that the interval of ninety-six hours provided in  

Rule  34  is  directory  and,  in  any  case,  the  respondent  having  

pleaded guilty of both the charges, no prejudice can be said to  

have been caused to him by                         non-compliance of the  

time provided therein.  In support  of  his submissions,  he heavily  

relied upon a decision of this Court in the case of  State Bank of  

Patiala and Others v. S.K. Sharma1.   

12. Rule 34 of the Army Rules, 1954 with which we are  

concerned reads as follows :

“34.  Warning of accused for trial.—(1) The accused before he is  arraigned shall be informed by an officer of every charge for which he is to be  tried and also that, on his giving the names of witnesses or whom he desired  to  call  in  his  defence,  reasonable  steps  will  be  taken  for  procuring  their  attendance, and those steps shall be taken accordingly.

The interval between his being so informed and his arraignment shall  not be less than ninety-six hours or where the accused person is on active  service less than twenty-four hours.

(2)  The officer at the time of so informing the accused shall give him a  copy of the charge-sheet and shall if necessary, read and explain to him the  charges brought against him. If the accused desires to have it in a language  which he understands, a translation thereof shall also be given to him.

1 (1996) 3 SCC 364

4

(3)  The officer shall also deliver to the accused a list of the names,  rank and corps (if any), of the officers who are to form the court, and where  officers in  waiting are named, also of  those officers in courts-martial  other  than summary courts-martial.

(4)  If it appears to the court that the accused is liable to be prejudiced  at his trial by any non-compliance with this rule, the court shall take steps and,  if necessary, adjourn to avoid the accused being so prejudiced.”  

13. The  key  words  used  in  Rule  34  from  which  the  

intendment  is to be found are “shall  not  be less than ninety-six  

hours”. As the respondent was not in active service at the relevant  

time, we are not concerned with the later part of that rule which  

provides for interval of twenty-four hours for the accused in active  

service.

14. In  his  classic  work,  “Principles  of  Statutory  

Interpretation”  (seventh  edition),  Justice  G.P.  Singh  has  quoted  

passage of  Lord Campbell in Liverpool Borough Bank v.  Turner2  

that  read  :  “no  universal  rule  can  be  laid  down as  to  whether   

mandatory  enactments  shall  be  considered  directory  only  or   

obligatory whether implied nullification for disobedience. It  is the  

duty  of  Courts  of  justice  to  try  to  get  at  the  real  intention  of   

Legislature by carefully attending to the whole scope of the statute   

to be considered.”  

2 1861 30 LJ Ch 379

5

15. In Crawford’s Statutory Construction (1989 reprint), the  

following excerpt from People v. Sutcliffe3  is quoted :

“It is a rule of statutory construction that where a statute is framed in terms of  command, and there is no indication from the nature or wording of the act or  the surrounding circumstances that it is to receive a permissive interpretation,  it will be construed as pre-emptory.”

16. In  his  discussion  on  the  subject,  “Mandatory  and  

Directory  or  Permissive  Words”  Crawford  in  the  afore-noticed  

treatise says:  

“Ordinarily the words “shall” and “must” are mandatory, and the work “may” is  directory, although they are often used inter-changeably in legislation.  This  use without regard to their literal meaning generally makes it necessary for  the courts to resort to construction in order to discover the real intention of the  legislature.  Nevertheless,  it  will  always  be presumed by the court  that  the  legislature intended to use the words in their usual and natural meaning. If  such a meaning, however, leads to absurdity, or great inconvenience, or for  some  other  reason  is  clearly  contrary  to  the  obvious  intention  of  the  legislature, then words which ordinarily are mandatory in their nature will be  construed as directory, or vice versa. In other words, if the language of the  statute, considered as a whole and with due regard to its nature and object,  reveals  that  the  legislature  intended  the  words  “shall”  and  “must”  to  be  directory,  they  should  be  given  that  meaning.  Similarly,  under  the  same  circumstances, the word “may” should be given a mandatory meaning, and  especially where the statute concerns the rights and interests of the public, or  where third persons have a claim de jure that a power shall be exercised, or  whenever something is directed to be done for the sake of justice or the public  good, or is necessary to sustain the statute’s constitutionality.

Yet the construction of mandatory words as directory and directory words as  mandatory should not be lightly adopted. The opposite meaning should be  unequivocally evidenced before it is accepted as the true meaning; otherwise,  there  is  considerable  danger  that  the  legislative  intent  will  be  wholly  or  partially defeated.”    

3 7 N.Y.S. (2) 431

6

17. Crawford further says in his treatise that prohibitive or  

negative words can rarely, if ever, be directory………….. Negative,  

prohibitory  and  exclusive  words  or  terms  are  indicative  of  the  

legislative intent that the statute is to be mandatory.

18. In  Thomson vs.  Stimpson4, Lord Parker C.J. (Queen’s  

Bench Division) while dealing with the wording of Section 16 of the  

Rent Act, 1957 which provided that no notice by a landlord or a  

tenant  to  quit  any  premises  let  (whether  before  or  after  the  

commencement of the Act) as a dwelling shall be valid unless it is  

given not less than four weeks before the date of which it is to take  

effect  held  that  four  weeks’  notice  contemplated  in  Section  16  

should be construed as four clear weeks. This is what Lord Parker,  

C.J. observed :

“………………Parliament here, however, has gone further and used the words  which have been interpreted in the past as providing for four clear weeks. Like  Bennett, J., in  Re Hector Whaling, Ltd. (1935) All E.R.303, I think that there  ought to be certainty on this matter, and I prefer the view that the word should  be construed as four clear weeks.”

19. A Constitution Bench of this Court in  M. Pentiah and  

Others  v.  Muddala  Veeramallappa  and  Others5 construed the  

expression,  “not  less  than  two-third  of  the  whole  number  of  

4 (1960) 3 All E.R 500 5  AIR 1961 SC 1107  

7

members” in Section 77 of Hyderabad District Municipalities Act,  

1956 as follows :

“This  section  confers  on  the  Committee  an  express  power  couched  in  a  negative form. Negative words are clearly prohibitory and are ordinarily used  as a legislative device to make a statute imperative. If the section is recast in  an affirmative form, it reads to the effect that the Committee shall have power  to  transfer  any immovable  property,  if  the  conditions  laid  down under  the  section are complied with.”

20. In  Lachmi  Narain  and  Others v.  Union  of  India  and  

Others6,  this Court construed the expression, “not less than three  

months’ notice” in Section 6(2) of Delhi Laws Act and held:

“68.  Section 6(2), as it stood immediately before the impugned notification,  requires the State Government to give by notification in the Official Gazette  “not  less than 3 months’  notice”  of  its  intention  to  add to or  omit  from or  otherwise  amend  the  Second  Schedule.  The  primary  key  to  the  problem  whether a statutory provision is mandatory or directory, is the intention of the  law-maker as expressed in the law, itself.  The reason behind the provision  may be a further aid to the ascertainment of that intention. If the legislative  intent is expressed clearly and strongly in imperative words, such as the use  of “must” instead of “shall”, that will itself be sufficient to hold the provision to  be mandatory, and it will not be necessary to pursue the enquiry further. If the  provision  is  couched  in  prohibitive  or  negative  language,  it  can  rarely  be  directory,  the  use  of  peremptory  language  in  a  negative  form  is  per  se  indicative of the intent that the provision is to be mandatory. (Crawford,  The  Construction of Statutes, pp. 523-24). Here the language of sub-section (2) of  Section  6  is  emphatically  prohibitive,  it  commands  the  Government  in  unambiguous negative terms that the period of the requisite notice must not  be less than three months.

69.  In fixing this period of notice in mandatory terms, the legislature had, it  seems taken into consideration several factors. According to the scheme of  the Bengal Act, the tax is quantified and assessed on the quarterly turnover.  The period of not less than three months’ notice conforms to that scheme and  is intended to ensure that imposition of a new burden or exemption from tax  causes least dislocation and inconvenience to the dealer in collecting the tax  for the Government, keeping accounts and filing a proper return, and to the  Revenue  in  assessing  and  collecting  the  same.  Another  object  of  this  

6 (1976) 2 SCC 953

8

provision is that the public at large and the purchasers on whom the incidence  of the tax really falls, should have adequate notice of taxable items. The third  object seems to be that the dealers and others likely to be affected by an  amendment of the Second Schedule may get sufficient time and opportunity  for  making  representations,  objections  or  suggestions  in  respect  of  the  intended amendment. The dealers have also been ensured adequate time to  arrange their sales, adjust their affairs and to get themselves registered or get  their  licenses  amended  and brought  in  accord  with  the  new imposition  or  exemption.

70.  Taking  into  consideration  all  these  matters,  the  legislature  has,  in  its  judgment solemnly incorporated in the statute, fixed the period of the requisite  notice  as  “not  less  than  three  months”  and  willed  this  obligation  to  be  absolute. The span of notice was thus the essence of the legislative mandate.  The necessity of notice and the span of notice both are integral to the scheme  of the provision. The sub-section cannot therefore be split  up into essential  and non-essential components, the whole of it being mandatory. The rule in  Raza Buland Sugar Co.’s case (supra) has therefore no application.”

21. In Mannalal Khetan and Others v.  Kedar Nath Khetan  

and Others7 while dealing with Section 108 of the Companies Act,  

1956 a three Judge Bench of this Court held :

“17. In  Raza Buland Sugar Co. Ltd. v.  Municipal Board, Rampur [(1965) 1   SCR 970] this Court referred to various tests for finding out when a provision  is  mandatory  or  directory.  The  purpose  for  which  the  provision  has  been  made, its nature, the intention of the legislature in making the provision, the  general  inconvenience  or  injustice  which  may  result  to  the  person  from  reading  the  provision  one  way  or  the  other,  the  relation  of  the  particular  provision to other provisions dealing with the same subject and the language  of the provision are all to be considered. Prohibition and negative words can  rarely be directory. It has been aptly stated that there is one way to obey the  command  and  that  is  completely  to  refrain  from doing  the  forbidden  act.  Therefore,  negative,  prohibitory  and  exclusive  words  are  indicative  of  the  legislative  intent  when  the  statute  is  mandatory.  (See  Maxwell  on  Interpretation  of  Statutes, 11th  Edn.,  p.  362  seq.;  Crawford:  Statutory  Construction, Interpretation of Laws, p. 523 and Seth Bikhraj Jaipuria v. Union  of India [(1962) 2 SCR 880, 893-894].

18. The High Court said that the provisions contained in Section 108 of the  Act are directory because non-compliance with Section 108 of the Act is not  7 (1977) 2 SCC 424

9

declared an offence. The reason given by the High Court is that when the law  does not prescribe the consequences or does not lay down penalty for non- compliance  with  the  provision  contained  in  Section  108  of  the  Act  the  provision is to be considered as directory. The High Court failed to consider  the provision contained in Section 629(A) of the Act. Section 629(A) of the Act  prescribes the penalty where no specific penalty is provided elsewhere in the  Act.  It  is  a  question  of  construction  in  each  case  whether  the  legislature  intended to prohibit  the doing of the act altogether,  or merely to make the  person who did it liable to pay the penalty.

19. Where  a  contract,  express  or  implied,  is  expressly  or  by  implication  forbidden by statute, no court will  lend its assistance to give it effect. (See  Mellis v. Shirley L.B.[(1885) 16 QBD 446)] A contract is void if prohibited by a  statute under a penalty, even without express declaration that the contract is  void,  because  such  a  penalty  implies  a  prohibition.  The  penalty  may  be  imposed with intent merely to deter persons from entering into the contract or  for the purposes of revenue or that the contract shall not be entered into so as  to be valid at law. A distinction is sometimes made between contracts entered  into with the object  of committing an illegal  act  and contracts expressly or  impliedly prohibited by statute. The distinction is that in the former class one  has only to look and see what acts the statute prohibits; it does not matter  whether or not it prohibits a contract; if a contract is made to do a prohibited  act, that contract will be unenforceable. In the latter class, one has to consider  not what act the statute prohibits, but what contracts it prohibits. One is not  concerned  at  all  with  the  intent  of  the  parties,  if  the  parties  enter  into  a  prohibited contract,  that  contract  is  unenforceable.  (See  St.  John Shipping  Corporation v. Joseph Rank [(1957) 1 QB 267) (See also Halsbury’s Laws of   England, Third Edn., Vol. 8, p. 141.)

20. It  is well  established that a contract which involves in its fulfilment the  doing  of  an  act  prohibited  by  statute  is  void.  The  legal  maxim  A  pactis   privatorum publico juri non derogatur means that private agreements cannot  alter the general law. Where a contract, express or implied, is expressly or by  implication forbidden by statute,  no court  can lend its assistance to give it  effect.  (See  Mellis v.  Shirley  L.B.)  What  is  done  in  contravention  of  the  provisions  of  an  Act  of  the  legislature  cannot  be  made  the  subject  of  an  action.

21. If anything is against law though it is not prohibited in the statute but only  a penalty is annexed the agreement is void. In every case where a statute  inflicts a penalty for doing an act, though the act be not prohibited, yet the  thing  is  unlawful,  because  it  is  not  intended  that  a  statute  would  inflict  a  penalty for a lawful act.

22. Penalties are imposed by statute for two distinct purposes:

1

(1) for the protection of the public against fraud, or for some other object of  public policy; (2) for the purpose of securing certain sources of revenue either  to the State or to certain public bodies. If it is clear that a penalty is imposed  by statute for the purpose of preventing something from being done on some  ground of public policy, the thing prohibited, if done, will be treated as void,  even though the penalty if imposed is not enforceable.

23. The provisions contained in Section 108 of the Act are for the reasons  indicated  earlier  mandatory.  The  High  Court  erred  in  holding  that  the  provisions are directory.”

22. The  principle  seems  to  be  fairly  well  settled  that  

prohibitive or negative words are ordinarily indicative of mandatory  

nature of the provision; although not conclusive. The Court has to  

examine  carefully  the  purpose  of  such  provision  and  the  

consequences that may follow from non-observance thereof.  If the  

context  does  not  show  nor  demands  otherwise,  the  text  of  a  

statutory provision couched in a negative form ordinarily has to be  

read in the form of command. When the word “shall” is followed by  

prohibitive or negative words, the legislative intention of making the  

provision absolute, peremptory and imperative becomes loud and  

clear  and  ordinarily  has  to  be  inferred  as  such.   There  being  

nothing  in the context  otherwise, in our judgment, there has to be  

clear ninety-six hours interval between the accused being charged  

for which he is to be tried and his arraignment and interval time  in  

Rule 34 must be read absolute.  There is a purpose behind this  

1

provision: that purpose is that before the accused is called upon  

for trial, he must be given adequate time to give a cool thought to  

the charge or charges for which he is to be tried, decide about his  

defence and ask the authorities, if necessary, to take  reasonable  

steps in  procuring   the attendance of  his  witnesses.  He   may  

even   decide   not  to    defend         the      charge(s) but before  

he decides his  line of  action,  he must  be given clear  ninety-six  

hours.  A  trial  before  General  Court  Martial  entails  grave  

consequences.    The  accused  may  be  sentenced  to  suffer  

imprisonment.  He  may  be  dismissed  from  service.  The  

consequences that  may follow from non-observance of  the time  

interval provided in Rule 34 being grave and severe, we hold, as it  

must be, that the said provision is absolute and mandatory. If the  

interval period provided in Rule 34 is held to be directory and its  

strict observance is not insisted upon, in a given case, an accused  

may be called upon for trial before General Court Martial no sooner  

charge/charges for which he is to be tried are served.  Surely, that  

is not the intention; the timeframe provided in Rule 34 has definite  

purpose and object  and must  be  strictly   observed.    Its  non-

observance vitiates the entire proceedings.          

1

23. The Learned Additional Solicitor General heavily relied  

upon a decision of this Court in State Bank of Patiala wherein this  

Court  summarised  the  legal  position  relating  to  disciplinary  

proceedings and orders of punishment thus :

“33. We may summarise the principles emerging from the above discussion.  (These are by no means intended to be exhaustive and are evolved keeping  in view the context of disciplinary enquiries and orders of punishment imposed  by an employer upon the employee):

(1)  An order  passed  imposing  a punishment  on  an  employee consequent  upon  a  disciplinary/departmental  enquiry  in  violation  of  the  rules/regulations/statutory provisions governing such enquiries should not be  set aside automatically. The Court or the Tribunal should enquire whether (a)  the provision violated is of a substantive nature or (b) whether it is procedural  in character.

(2)  A substantive provision has  normally to be complied with as explained  hereinbefore and the theory of substantial compliance or the test of prejudice  would not be applicable in such a case.

(3)  In  the  case  of  violation  of  a  procedural  provision,  the  position  is  this:  procedural  provisions  are  generally  meant  for  affording  a  reasonable  and  adequate opportunity to the delinquent officer/employee. They are, generally  speaking,  conceived  in  his  interest.  Violation  of  any and every  procedural  provision cannot  be  said  to  automatically  vitiate  the  enquiry  held  or  order  passed. Except cases falling under — “no notice”, “no opportunity” and “no  hearing” categories, the complaint of violation of procedural provision should  be examined from the point of view of prejudice, viz., whether such violation  has prejudiced the delinquent officer/employee in defending himself properly  and  effectively.  If  it  is  found  that  he  has  been  so  prejudiced,  appropriate  orders have to be made to repair and remedy the prejudice including setting  aside  the  enquiry  and/or  the  order  of  punishment.  If  no  prejudice  is  established to have resulted therefrom, it is obvious, no interference is called  for.  In  this  connection,  it  may  be  remembered  that  there  may  be  certain  procedural provisions which are of a fundamental character, whose violation  is by itself proof of prejudice. The Court may not insist on proof of prejudice in  such cases. As explained in the body of the judgment,  take a case where  there  is  a  provision  expressly  providing  that  after  the  evidence  of  the  employer/government is over, the employee shall be given an opportunity to  lead defence in his evidence, and in a given case, the enquiry officer does not  give that opportunity in spite of the delinquent officer/employee asking for it.  

1

The prejudice is self-evident. No proof of prejudice as such need be called for  in such a case. To repeat, the test is one of prejudice, i.e., whether the person  has received a fair hearing considering all things. Now, this very aspect can  also be looked at from the point of view of directory and mandatory provisions,  if one is so inclined. The principle stated under (4) hereinbelow is only another  way of looking at the same aspect as is dealt with herein and not a different or  distinct principle.

(4)  (a) In the case of a procedural provision which is not of a mandatory  character, the complaint of violation has to be examined from the standpoint  of substantial compliance. Be that as it may, the order passed in violation of  such a provision can be set aside only where such violation has occasioned  prejudice to the delinquent employee.

(b) In the case of violation of a procedural provision, which is of a mandatory  character, it has to be ascertained whether the provision is conceived in the  interest of the person proceeded against or in public interest. If it is found to  be the former, then it must be seen whether the delinquent officer has waived  the said requirement, either expressly or by his conduct. If he is found to have  waived it, then the order of punishment cannot be set aside on the ground of  the  said  violation.  If,  on  the  other  hand,  it  is  found  that  the  delinquent  officer/employee has not waived it or that the provision could not be waived by  him, then the Court or Tribunal should make appropriate directions (include  the setting aside of the order of punishment), keeping in mind the approach  adopted by the Constitution Bench in B. Karunakar [(1993) 4 SCC 727]. The  ultimate  test  is  always the  same,  viz.,  test  of  prejudice  or  the  test  of  fair  hearing, as it may be called.

(5)  Where  the  enquiry  is  not  governed  by  any  rules/regulations/  statutory  provisions and the only obligation is to observe the principles of natural justice  — or, for that matter, wherever such principles are held to be implied by the  very nature and impact of the order/action — the Court or the Tribunal should  make a distinction between a total  violation of  natural  justice (rule of  audi  alteram partem) and violation of a facet of the said rule, as explained in the  body of the judgment. In other words, a distinction must be made between “no  opportunity”  and  no  adequate opportunity,  i.e.,  between  “no  notice”/“no  hearing” and “no fair hearing”.  (a)  In the case of former, the order passed  would undoubtedly be invalid (one may call it ‘void’ or a nullity if one chooses  to). In such cases, normally, liberty will be reserved for the Authority to take  proceedings afresh according to law,  i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter  case, the effect of violation (of a facet of the rule of audi alteram partem) has  to be examined from the standpoint  of  prejudice;  in other words, what the  Court or Tribunal has to see is whether in the totality of the circumstances, the  delinquent officer/employee did or did not have a fair hearing and the orders  to be made shall depend upon the answer to the said query. [It is made clear  

1

that this principle (No. 5) does not apply in the case of rule against bias, the  test in which behalf are laid down elsewhere.]

(6) While applying the rule of audi alteram partem (the primary principle of  natural  justice)  the  Court/Tribunal/Authority  must  always  bear  in  mind  the  ultimate and overriding objective underlying the said rule, viz., to ensure a fair  hearing and to ensure that  there is no failure of justice.  It  is this objective  which should guide them in applying the rule to varying situations that arise  before them.

(7) There may be situations where the interests of State or public interest may  call for a curtailing of the rule of audi alteram partem. In such situations, the  Court  may  have  to  balance  public/State  interest  with  the  requirement  of  natural justice and arrive at an appropriate decision.”

24. The judgment  of  this  Court  in  State  Bank of  Patiala  

hardly  helps  the  appellants.  We  have  already  held  that  the  

provision  contained  in  Rule  34  regarding  interval  of  ninety-six  

hours from the service of the charge/charges for which an accused  

is  to  be  tried  and  his  arraignment  is  mandatory.  This  situation  

would be covered by sub-para 4(b) of para 33 as aforequoted.  

25. That the respondent was informed of the charges for  

which he was to be tried by General Court Martial on November 2,  

1995 at 1800 hours is not in dispute.  Although the respondent was  

informed  that  he  would  be  tried  by  General  Court  Martial  on  

November  6,  1995  at  1130  hours  but  the  proceedings  of  the  

General  Court  Martial  clearly  show that  the  trial  commenced at  

1010 hours.  That  interval  between the  respondent  having been  

1

informed  of  the  charges  for  which  he  was  to  be  tried  and  his  

arraignment was less than ninety-six hours is an admitted position.  

Merely because the respondent pleaded guilty is immaterial. The  

mandatory provision contained in Rule 34 having been breached,  

the Division Bench cannot be said to have erred in affirming the  

order  of  the  Single  Judge setting  aside  the  proceedings  of  the  

General Court Martial.

26. In the result, the appeal must fail and is dismissed with  

no order as to costs.  

……………………J (B.N. Agrawal)

……………………J (Aftab Alam)

…….……………..J         (R. M. Lodha)

New Delhi September 16 , 2009

1