Union of India & Ors Vs. Major A. Hussain
 INSC 905 (8 December 1997)
V. MANOHAR, D.P. WADHWA
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.
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
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 :-
Act AN ACT PREJUDICIAL TO GOOD ORDER AND MILITARY
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.
Secunderabad Sd/- Date: 14 Aug
87 (Gautam Mitra )
Brig Commandant AOC Center To be tried by General Court Martial.
Madras - 9 Sd/- Dated: 25 Aug 87 (Deepak Sehdev) Colonel Colonel A For General
Officer Commanding Andhra Tamil Nadu Karnataka and Kerala Area." Section
63 of the Act reads as under;
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.
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
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.
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 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.
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.
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.
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.
was thus attached to AOC Center at Secunderbad.
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 to note that Court Martial proceeding was
interrupted though ultimately the stay granted by the High Court was vacated.
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.
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.
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
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.
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.
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.
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
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.
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.
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.
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 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 :
70/84 Discipline: Hearing of a Charge by the commanding Officer.
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.
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).
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).
After the procedure laid down in Army Rule 22 has been duly followed, other
steps as provided in Army rules 23 to 25, shall be followed both in letter and
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 :
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.
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.
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 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:
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.
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:
Powers and duties of judge- advocate.- The powers and duties of judge-advocate
are as follows:- (1) The prosecutor and the accused, 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.
a Court-martial, he represents the Judge-Advocate General.
is responsible for informing the Court of any informality or irregularity in
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.
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.
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
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.
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.
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, 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.
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.
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.
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:
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 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.
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.
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 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.
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
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;
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.
is allowed with costs.