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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.