General Inder JIT Kumar Vs. Union of India
& Ors  INSC 323 (20 March 1997)
AHMADI, SUJATA V, MANOHAR
V. Manohar. J.
appellant, at all material times, held the rank of Acting Major General in the
Indian Army. He filed a writ Petition in the High Court of Madhya Pradesh
challenging the inquiry proceedings held against him and his trial by a general
Court Martial under the Army Act, 1950. This writ Petition has been dismissed
by the impugned judgment and order of the High court of Madhya Pradesh. Hence
he has preferred the present appeal.
the pendency of these proceedings and after the vacation of stay on holding of
a General Court Martial, the trial of the appellant has proceeded to a conclusion
and a sentence has been passed that the be cashiered from service which is
subject to confirmation as per the provisions of the Army Act, 1950. The
appellant has filed additional grounds of appeal before us challenging these
findings. An earlier writ petition being Misc. Petition 717 of 1991 which was
filed before the madhya Pradesh High Court in the same connection has already
been dismissed on 8th of October, 1991. However, the present writ petition has
been examined on merits by the High Court and dismissed. We, therefore, propose
to examine the various grounds urged by the appellant in support of his case.
The appellant has argued his appeal in person at his insistence.
appellant who held the substantive rank of Brigadier at the material time was
posted was posted in Agra from February 1988 to April 1989 as
Commandant, Parachute Regimental Training Centre. In April 1989 he was given
the acting rank of major General and was posted as General Officer Commanding, Vth
Mountain Division in the Eastern Command. In July 1989 the appellant was called
to Agra as a witness in a Court Martial
going on against on e Major Mahapatra. He was asked to stay on for a Court of
Inquiry being held in connection with certain financial irregularities which
has occured while the appellant had been posted at Agra. The proceedings of the Court of Inquiry commenced
on 26.7.1989. On 13.10.1989, the appellant was attached to Military college of Telecommunication Engineering, Mhow, under Army Instruction 30/86
until finalisation of disciplinary proceedings against him. The appellant was
directed to report for duty at Mhow.
the hearing on charges against the appellant commenced under Rule 22 of the
Army Rules on 28th of October, 1989. After examination of witnesses and
documents, the Court of Inquiry submitted its report as result of which, on
23rd of January, 1991, orders were issued by the G.O.C. - in-C Central Command
fro assembly of a General Court Martial for trial of the appellant.
appellant objected to the Presiding Officer of the Court n the ground that he
was biased against the appellant.
the Presiding Officer retired from the Court and Lt. General Y.A. Mande was
appointed as the Presiding Officer. Lt. General Mande was, however, withdrawn
on the directions of the convening authority as he was not available due to
another engagement. The next senior most officer was appointed as the Presiding
Officer. After the court was constituted the trial began and has since
appellant has alleged that the proceedings of the General Court Martial are
vitiated because of bias on the part of the court against him. He was further
challenged the entire proceedings of the court of Inquiry and of the General
Court Martial on the ground that the principles of natural justice have been
violated. he was not given an adequate opportunity of defending himself. He has
alleged that he was denied the assistance of a suitable defending officer
and/or a defending counsel of his choice. He has also alleged that he was not
given the relevant documents or a copy of the report of the Court, of Inquiry
in order to enable him to put up his defence. There are also various other
technical objections raised by him. All these objections have been examined and
found to be of no substance by the High Court.
Rule 177 of Army Rules, 1954, a Court of Inquiry can be set up to collect
evidence and to report, if so required, with regard to any matter which may be
referred to it. The Court of Inquiry is in the nature of a fact-finding inquiry
committee. Army Rule 180 provides, inter alia, that whenever any inquiry
affects the character of military reputation of a person subject to the Army
Act, full opportunity must be afforded to such a person of being present
throughout the inquiry and of making any statement, and of giving any evidence
he may wish to make or give, and or cross-examining any witness whose evidence,
in his opinion, affects his character of military reputation and producing any
witnesses in defence of his character of military reputation. The presiding
officer of the Court of Inquiry is required to take such steps as may be
necessary to ensure that any such person so affected receives notice of and
fully understands his rights under this rule. The appellant was accordingly
present before the Court of Inquiry. Witnesses were examined by the Court of
Inquiry in the presence of the appellant. He, however, declined to
cross-examine the witnesses. Instead, the appellant moved an application for an
adjournment for preparing his defence. He also applied that the evidence
adduced before the Court of Inquiry should be reduced to writing. The Court of
Inquiry noticed that sufficient time had been granted to the appellant for
preparation of his defence after receipt of the Court of Inquiry proceedings by
him. Hence his application for adjournment was refused. The hearing on charges
took place in the presence of the appellant. At the conclusion of the hearing
on charges, an order was passed that evidence be reduced to writing and a
recommendation was made to convene a General Court Martial for trial along with
recommendations on charges to be framed. Thereafter the charges were finalised,
charge-sheet was issued and a General Court Martial was convened.
appellant has also contended that copy of the report of the Court of Inquiry
was not given not to him and this has vitiated the entire Court Martial. The
appellant has relied upon Rule 184 of the Army Rules, 1954 i n this connection.
Rule 184, however, provides that the person who is tried by a Court Martial
shall be entitled to copes of such statements and documents contained in the
proceedings of a court of Inquiry as are relevant to his prosecution or defence
at his trial. There is no provision for suppling the accused with the copy of
the report of the court of Inquiry.
procedure relating to a Court of inquiry and the framing of a charges was
examined by this Court in the case of Major G.S. Sodhi v. Union of India [1991
(2) SCC 382]. This Court said that the Court of Inquiry and participation in
the Court of Inquiry is at a stage prior to the trial by Court martial. It is
the order of the Court Martial which results in deprivation of liberty and not
nay order directing that a charge be heard or that a summary of evidence be
recorded or that a Court martial be convented. Principles of natural justice
are not attracted to such a preliminary inquiry.
Rule 180, however, which is set out earlier gives adequate protection to the
person affected even at the stage of the Court of Inquiry. In the present case,
the appellant was given that protection. He was present at the Court of Inquiry
and evidence was recorded in his presence. He was given an opportunity to
cross-examine witnesses, make a statement or examine defence witnesses. The
order of the Court of Inquiry directing that a Court Martial be convened and
framing of charges, therefore, cannot be faulted on this ground since it was
conducted in accordance with the relevant Rules.
appellant has contended that charges framed against him are in violation of
Army Rules. Hence the entire Court martial is vitiated. Tentative charges were
initially framed against him in the alternative. The tentative charges which
were framed on or about 28.10.1989 were twelve in number.
charge was under Section 52 of the Army Act and in the alternative, under
Section 63 of the Army Act. Section 52(b) refers to the offence of dishonestly
misappropriating or converting to one's own use of any property belonging,
inter alia, to the Government, or to any military, naval or air force mess,
band or institution. section 52(f) refers to doing, any other thing with intent
to defraud, or to cause wrongful gain to one person or wrongful loss to another
person. Section 63 refers to any act or omission prejudicial to good order and
military discipline. Investigation of these tentative charges was carried out
by the Commanding Officer under Army Rule 22 read with Rule 25. The appellant
was given the opportunity to cross-examine witnesses and produce his witnesses.
While recording a summary of evidence under Army Rule 23, he was given again
given this opportunity.
preliminary investigation the commanding officer referred the matter to the
superior authority. According to the appellant, to Commanding Officer had
recommended framing of charges only under Section 63. The superior authority
took advice of the Deputy Judge Advocate General of the Command who prepared a
draft charge sheet and advised trial of the appellant by a General Court
martial. The final charge sheet dated 18.1.1991 as signed by Commanding Officer
along with the order of trial by General Court martial which is counter-signed
by the General Officer Commanding-in- Chief, Central Command contains nine
charges under Section 52 and three charges under Section 63.
appellant contends that once charges under Section 52 were dropped, they could
not have been included in the charge-sheet. Hence the charge-sheet is bad in
law. The respondent have set out in their affidavit in reply that the Commanding
Officer had merely submitted his recommendations to the superior authority
regarding charges to be framed along with his investigation report. After
obtaining advice of the Deputy Judge Advocate General of the Command on the
material so submitted, the final charge-sheet was issued. We fail to see any
irregularity or illegality here.
appellant's contention that the Commanding Officer, Central Command had no
jurisdiction in this regard must also be rejected since he was attached to the
Central Command for the purpose of the disciplinary inquiry which related to
his conduct during the period when he was posted at Agra.
appellant next contends that the convening of the General Court Martial in his
case is not valid because under Section 109 of the Army Act a General Court
Martial can be convened only by any officer who has been appointed by a
specific warrant in that connection by the Chief of the Army Staff. According
to him a specific warrant must be issued in each case. Under Section 109 of the
Army Act, a General Court Martial may be convened by the Central Government or
the Chief of the Army Staff or by any officer empowered in this behalf by
warrant of the Chief of the Army Staff. There is nothing in Section 109 which
required the Chief of the Army Staff to issue a warrant for each specific case.
A general warrant issued by the chief of the Army Staff as in the present case
is competent under Section 109. The appellant has also contended that since he
did not belong to the Central Command, General Officer, Commanding-in-Chief,
Central Command, could not convene a General Court Martial in his case even on
the basis of the general warrant. This submission is also without merit. The
appellant, under Army Instruction 30/86 dated 13.10.1989 was attached to the
Central Command until the finalisation of the disciplinary case. This would
give jurisdiction to G.O.C. - in-C Central Command to convene a General Court
appellant has next challenged the composition of the Court. Under Army Rule 44
the order convening the Court Martial and the names of the Presiding Officer
and the members of the court shall be read over to the accused and he shall be
asked, as required by Section 130, whether he has any objection to being tried
by any officer sitting on the court. Any such objection shall be disposed of in
accordance with the provisions of the aforesaid section.
(e) of Rule 44 of the Army Rules provides that where an officer so retires or
is not available to serve owing to any cause, which the court may deem to be
sufficient, and there are any officers in waiting detailed as such, the
Presiding Officer shall appoint one of such officers to fill the vacancy. If
there is no officer in waiting available, the court shall proceed as required
by Rule 38. Rule 38 deals with adjournment for insufficient number of officer
and it provides that where the full number of officers detailed are not
available to serve, for reasons which are set out there, the court shall
ordinarily adjourn for the purpose of fresh members being appointed. We are not
concerned with the rest of the provisions. In the present case prior to his
arraignment, the appellant challenged Lt.
Vijay Madan, VSM, the Presiding Officer of the court on the ground of strained
relations between him and the Presiding Officer. The appellant's plea was
accepted and Lt.
Y.A. Mande, AVSM, a waiting member, took over as the Presiding Officer.
However, Lt. General Y.A. Mande was withdrawn on the direction of the convening
authority before swearing in. Thereafter, Major General B.S. Malik being the
next senior person became presiding officer. To fill up the quorum of seven
members Major General Surjit Singh, a waiting member was appointed as a member.
The Court Martial was, therefore, convened in accordance with the Army Act and
the Army Rules. According to the appellant, the Court Martial should have been
dissolved under Section 117.
117 provides that if a Court Martial after the commencement to trial is reduced
below the minimum number of officers required by this Act, it shall be
dissolved, It also provides for other contingencies in which a Court Martial,
after commencement, can be dissolved. This section has no application to the
present case. The submission of the appellant, therefore, regarding the
composition of the Court has not merit.
grievance of the appellant relating to bias against him also has no merit. The
first Presiding Officer against whom the appellant has alleged bias was removed
and a new Presiding Officer appointed. The appellant contends that the entire
Court Martial was vitiated because he was not given a proper opportunity to
defend his case. He was not given a defending officer of his choice and/or a defence
counsel of his choice to defend him. A major part of his arguments before us
related to this proceedings of the General Court Martial from this point of
view. Before the commencement of the General Court Martial on 31st of January,
1991 the appellant was asked to submit names officers by whom he would like to
be defended at the Court Martial. The appellant has given names of four officer.
When the Court Martial convened on 31st of January, 1991 the defending officer
Major M.M. Khanna for the appellant and the appellant himself were present.
Major Khanna was duly qualified as an officer who could defend the appellant.
The appellant accepted him but he also reserved his right to conduct his defence
in person. After a few days the Court Martial was adjourned for nine days to
enable the appellant to engage a defence counsel or give details of some other
defending officers. The appellant thereafter requested for Lt. Colonel Hari Mittar
as the defending officer.
Lt. Colonel Hari Mittar was made available. It seems that the appellant
accepted him as his defending officer. But once again he did not give him the
right of audience. The appellant was asked to engage a defence counsel of his
choice. From 3rd April,
1991 to 10th of April,
1991 no witness could be examined. Then on 11th of April, 1991 the appellant
requested the court to adjourn for seven days to enable him to engage a defence
counsel. The court adjourned for ten days on this request. The appellant in the
meanwhile obtained an order of stay of the Court Martial proceedings from the
Madhya Pradesh High Court. As a result, the Court Martial was adjourned sine
the stay was vacated, the Court Martial reassembled on 21 of October, 1991. It
was adjourned several time as the defending officer was not present. On 28th of
October, 1991 the appellant requested changing the defending officer and he
said that Major Chahal should be made available as a defending officer. As a
result Lt. Colonel Hari Mittar was allowed to withdraw. Witnesses were examined
thereafter from 29th of October, 1991 onwards. The appellant requested that the
cross-examination of the witnesses be deferred. The request was granted. We
find from the record that sufficient time was give to the appellant either to
engage a defence counsel of his choice or to have a defending officer. But the
appellant kept on changing defending officers or asked for adjournments for the
purpose of engaging defence counsel. He did not cross-examine witness when they
were offered for cross-examination. He was given sufficient indulgence in this behalf
by the court.
seems that Major Chahal who was requested by the appellant as defending officer
was present in the Court on 5th of December, 1991 and 6th of December, 1991 but
thereafter when the witnesses were offered for cross- examination he was not
present and the appellant did not avail of the opportunity of cross-examining
the witnesses offered for cross-examination. On 23 of December, 1991 after the
evidence was over, the case was adjourned to enable the defence counsel to
prepare the case of the appellant. Even thereafter, in January 1992
cross-examination of some of the witnesses was offered but was not availed of.
Ultimately on 17th of January, 1992 addresses by the prosecution and defence
concluded. On 18th of January, 1992 the trial concluded with the summing up by
the Judge Advocate. A sentence of being cashiered from service has been awarded
which is subject to confirmation.
the appellant repeatedly sought adjournments on one pretext or the other and
was not satisfied with the various defence officers who were made available to
him as per his request. The appellant who has argued this appeal before us is
well, versed with the Army Law and Army Rule and was quite capable of arguing
his own case. He was throughout present at the court Martial and could have
cross-examined the witnesses had he so desired. He has been given sufficient
indulgence by court and we do not see how any principles of natural justice
have been violated in this case. The Court Martial, therefore, cannot be faulted
on the ground of non-compliance with the principle of natural justice. We are
not sitting in appeal over the findings of the General Court Martial.
Therefore, we have refrained from examining the merits of the case.
view, the High Court was right in coming to the conclusion that there is no
merit in the contentions taken by the appellant. The appeal is, therefore,
dismissed. There will, however, be no order as to costs.