PETITIONER: MAJOR GENERAL INDER JIT KUMAR Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT: 20/03/1997 BENCH: A.M. AHMADI, SUJATA V, MANOHAR ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
Mrs. Sujata V. Manohar. J.
Leave granted.
The appellant, at all material times, held the rank of
Acting Major General in the Indian Army. He filed a writ
Petition in the High Court of Madhya Pradesh challenging the
inquiry proceedings held against him and his trial by a
general Court Martial under the Army Act, 1950. This writ
Petition has been dismissed by the impugned judgment and
order of the High court of Madhya Pradesh. Hence he has
preferred the present appeal.
During the pendency of these proceedings and after the
vacation of stay on holding of a General Court Martial, the
trial of the appellant has proceeded to a conclusion and a
sentence has been passed that the be cashiered from service
which is subject to confirmation as per the provisions of
the Army Act, 1950. The appellant has filed additional
grounds of appeal before us challenging these findings. An
earlier writ petition being Misc. Petition 717 of 1991 which
was filed before the madhya Pradesh High Court in the same
connection has already been dismissed on 8th of October,
1991. However, the present writ petition has been examined
on merits by the High Court and dismissed. We, therefore,
propose to examine the various grounds urged by the
appellant in support of his case. The appellant has argued
his appeal in person at his insistence.
The appellant who held the substantive rank of
Brigadier at the material time was posted was posted in Agra
from February 1988 to April 1989 as Commandant, Parachute
Regimental Training Centre. In April 1989 he was given the
acting rank of major General and was posted as General
Officer Commanding, Vth Mountain Division in the Eastern
Command. In July 1989 the appellant was called to Agra as a
witness in a Court Martial going on against on e Major
Mahapatra. He was asked to stay on for a Court of Inquiry
being held in connection with certain financial
irregularities which has occured while the appellant had
been posted at Agra. The proceedings of the Court of Inquiry
commenced on 26.7.1989. On 13.10.1989, the appellant was
attached to Military college of Telecommunication
Engineering, Mhow, under Army Instruction 30/86 until
finalisation of disciplinary proceedings against him. The
appellant was directed to report for duty at Mhow.
Thereafter the hearing on charges against the appellant
commenced under Rule 22 of the Army Rules on 28th of
October, 1989. After examination of witnesses and documents,
the Court of Inquiry submitted its report as result of
which, on 23rd of January, 1991, orders were issued by the
G.O.C. – in-C Central Command fro assembly of a General
Court Martial for trial of the appellant.
The appellant objected to the Presiding Officer of the
Court n the ground that he was biased against the appellant.
Therefore, the Presiding Officer retired from the Court and
Lt. General Y.A. Mande was appointed as the Presiding
Officer. Lt. General Mande was, however, withdrawn on the
directions of the convening authority as he was not
available due to another engagement. The next senior most
officer was appointed as the Presiding Officer. After the
court was constituted the trial began and has since
concluded.
The appellant has alleged that the proceedings of the
General Court Martial are vitiated because of bias on the
part of the court against him. He was further challenged the
entire proceedings of the court of Inquiry and of the
General Court Martial on the ground that the principles of
natural justice have been violated. he was not given an
adequate opportunity of defending himself. He has alleged
that he was denied the assistance of a suitable defending
officer and/or a defending counsel of his choice. He has
also alleged that he was not given the relevant documents or
a copy of the report of the Court, of Inquiry in order to
enable him to put up his defence. There are also various
other technical objections raised by him. All these
objections have been examined and found to be of no
substance by the High Court.
Under Rule 177 of Army Rules, 1954, a Court of Inquiry
can be set up to collect evidence and to report, if so
required, with regard to any matter which may be referred to
it. The Court of Inquiry is in the nature of a fact-finding
inquiry committee. Army Rule 180 provides, inter alia, that
whenever any inquiry affects the character of military
reputation of a person subject to the Army Act, full
opportunity must be afforded to such a person of being
present throughout the inquiry and of making any statement,
and of giving any evidence he may wish to make or give, and
or cross-examining any witness whose evidence, in his
opinion, affects his character of military reputation and
producing any witnesses in defence of his character of
military reputation. The presiding officer of the Court of
Inquiry is required to take such steps as may be necessary
to ensure that any such person so affected receives notice
of and fully understands his rights under this rule. The
appellant was accordingly present before the Court of
Inquiry. Witnesses were examined by the Court of Inquiry in
the presence of the appellant. He, however, declined to
cross-examine the witnesses. Instead, the appellant moved an
application for an adjournment for preparing his defence. He
also applied that the evidence adduced before the Court of
Inquiry should be reduced to writing. The Court of Inquiry
noticed that sufficient time had been granted to the
appellant for preparation of his defence after receipt of
the Court of Inquiry proceedings by him. Hence his
application for adjournment was refused. The hearing on
charges took place in the presence of the appellant. At the
conclusion of the hearing on charges, an order was passed
that evidence be reduced to writing and a recommendation was
made to convene a General Court Martial for trial along with
recommendations on charges to be framed. Thereafter the
charges were finalised, charge-sheet was issued and a
General Court Martial was convened.
The appellant has also contended that copy of the
report of the Court of Inquiry was not given not to him and
this has vitiated the entire Court Martial. The appellant
has relied upon Rule 184 of the Army Rules, 1954 i n this
connection. Rule 184, however, provides that the person who
is tried by a Court Martial shall be entitled to copes of
such statements and documents contained in the proceedings
of a court of Inquiry as are relevant to his prosecution or
defence at his trial. There is no provision for suppling the
accused with the copy of the report of the court of Inquiry.
The procedure relating to a Court of inquiry and the framing
of a charges was examined by this Court in the case of Major
G.S. Sodhi v. Union of India [1991 (2) SCC 382]. This Court
said that the Court of Inquiry and participation in the
Court of Inquiry is at a stage prior to the trial by Court
martial. It is the order of the Court Martial which results
in deprivation of liberty and not nay order directing that a
charge be heard or that a summary of evidence be recorded or
that a Court martial be convented. Principles of natural
justice are not attracted to such a preliminary inquiry.
Army Rule 180, however, which is set out earlier gives
adequate protection to the person affected even at the stage
of the Court of Inquiry. In the present case, the appellant
was given that protection. He was present at the Court of
Inquiry and evidence was recorded in his presence. He was
given an opportunity to cross-examine witnesses, make a
statement or examine defence witnesses. The order of the
Court of Inquiry directing that a Court Martial be convened
and framing of charges, therefore, cannot be faulted on this
ground since it was conducted in accordance with the
relevant Rules.
The appellant has contended that charges framed against
him are in violation of Army Rules. Hence the entire Court
martial is vitiated. Tentative charges were initially framed
against him in the alternative. The tentative charges which
were framed on or about 28.10.1989 were twelve in number.
Each charge was under Section 52 of the Army Act and in the
alternative, under Section 63 of the Army Act. Section 52(b)
refers to the offence of dishonestly misappropriating or
converting to one’s own use of any property belonging, inter
alia, to the Government, or to any military, naval or air
force mess, band or institution. section 52(f) refers to
doing, any other thing with intent to defraud, or to cause
wrongful gain to one person or wrongful loss to another
person. Section 63 refers to any act or omission prejudicial
to good order and military discipline. Investigation of
these tentative charges was carried out by the Commanding
Officer under Army Rule 22 read with Rule 25. The appellant
was given the opportunity to cross-examine witnesses and
produce his witnesses. While recording a summary of evidence
under Army Rule 23, he was given again given this
opportunity.
After preliminary investigation the commanding officer
referred the matter to the superior authority. According to
the appellant, to Commanding Officer had recommended framing
of charges only under Section 63. The superior authority
took advice of the Deputy Judge Advocate General of the
Command who prepared a draft charge sheet and advised trial
of the appellant by a General Court martial. The final
charge sheet dated 18.1.1991 as signed by Commanding Officer
along with the order of trial by General Court martial which
is counter-signed by the General Officer Commanding-in-
Chief, Central Command contains nine charges under Section
52 and three charges under Section 63.
The appellant contends that once charges under Section
52 were dropped, they could not have been included in the
charge-sheet. Hence the charge-sheet is bad in law. The
respondent have set out in their affidavit in reply that the
Commanding Officer had merely submitted his recommendations
to the superior authority regarding charges to be framed
along with his investigation report. After obtaining advice
of the Deputy Judge Advocate General of the Command on the
material so submitted, the final charge-sheet was issued. We
fail to see any irregularity or illegality here.
The appellant’s contention that the Commanding Officer,
Central Command had no jurisdiction in this regard must also
be rejected since he was attached to the Central Command for
the purpose of the disciplinary inquiry which related to
his conduct during the period when he was posted at Agra.
The appellant next contends that the convening of the
General Court Martial in his case is not valid because under
Section 109 of the Army Act a General Court Martial can be
convened only by any officer who has been appointed by a
specific warrant in that connection by the Chief of the Army
Staff. According to him a specific warrant must be issued in
each case. Under Section 109 of the Army Act, a General
Court Martial may be convened by the Central Government or
the Chief of the Army Staff or by any officer empowered in
this behalf by warrant of the Chief of the Army Staff. There
is nothing in Section 109 which required the Chief of the
Army Staff to issue a warrant for each specific case. A
general warrant issued by the chief of the Army Staff as in
the present case is competent under Section 109. The
appellant has also contended that since he did not belong to
the Central Command, General Officer, Commanding-in-Chief,
Central Command, could not convene a General Court Martial
in his case even on the basis of the general warrant. This
submission is also without merit. The appellant, under Army
Instruction 30/86 dated 13.10.1989 was attached to the
Central Command until the finalisation of the disciplinary
case. This would give jurisdiction to G.O.C. – in-C Central
Command to convene a General Court Martial.
The appellant has next challenged the composition of
the Court. Under Army Rule 44 the order convening the Court
Martial and the names of the Presiding Officer and the
members of the court shall be read over to the accused and
he shall be asked, as required by Section 130, whether he
has any objection to being tried by any officer sitting on
the court. Any such objection shall be disposed of in
accordance with the provisions of the aforesaid section.
Sub-rule (e) of Rule 44 of the Army Rules provides that
where an officer so retires or is not available to serve
owing to any cause, which the court may deem to be
sufficient, and there are any officers in waiting detailed
as such, the Presiding Officer shall appoint one of such
officers to fill the vacancy. If there is no officer in
waiting available, the court shall proceed as required by
Rule 38. Rule 38 deals with adjournment for insufficient
number of officer and it provides that where the full number
of officers detailed are not available to serve, for reasons
which are set out there, the court shall ordinarily adjourn
for the purpose of fresh members being appointed. We are not
concerned with the rest of the provisions. In the present
case prior to his arraignment, the appellant challenged Lt.
General Vijay Madan, VSM, the Presiding Officer of the court
on the ground of strained relations between him and the
Presiding Officer. The appellant’s plea was accepted and Lt.
General Y.A. Mande, AVSM, a waiting member, took over as the
Presiding Officer. However, Lt. General Y.A. Mande was
withdrawn on the direction of the convening authority before
swearing in. Thereafter, Major General B.S. Malik being the
next senior person became presiding officer. To fill up the
quorum of seven members Major General Surjit Singh, a
waiting member was appointed as a member. The Court Martial
was, therefore, convened in accordance with the Army Act and
the Army Rules. According to the appellant, the Court
Martial should have been dissolved under Section 117.
Section 117 provides that if a Court Martial after the
commencement to trial is reduced below the minimum number of
officers required by this Act, it shall be dissolved, It
also provides for other contingencies in which a Court
Martial, after commencement, can be dissolved. This section
has no application to the present case. The submission of
the appellant, therefore, regarding the composition of the
Court has not merit.
The grievance of the appellant relating to bias against
him also has no merit. The first Presiding Officer against
whom the appellant has alleged bias was removed and a new
Presiding Officer appointed. The appellant contends that the
entire Court Martial was vitiated because he was not given a
proper opportunity to defend his case. He was not given a
defending officer of his choice and/or a defence counsel of
his choice to defend him. A major part of his arguments
before us related to this proceedings of the General Court
Martial from this point of view. Before the commencement of
the General Court Martial on 31st of January, 1991 the
appellant was asked to submit names officers by whom he
would like to be defended at the Court Martial. The
appellant has given names of four officer. When the Court
Martial convened on 31st of January, 1991 the defending
officer Major M.M. Khanna for the appellant and the
appellant himself were present. Major Khanna was duly
qualified as an officer who could defend the appellant. The
appellant accepted him but he also reserved his right to
conduct his defence in person. After a few days the Court
Martial was adjourned for nine days to enable the appellant
to engage a defence counsel or give details of some other
defending officers. The appellant thereafter requested for
Lt. Colonel Hari Mittar as the defending officer.
Accordingly Lt. Colonel Hari Mittar was made available. It
seems that the appellant accepted him as his defending
officer. But once again he did not give him the right of
audience. The appellant was asked to engage a defence
counsel of his choice. From 3rd April, 1991 to 10th of
April, 1991 no witness could be examined. Then on 11th of
April, 1991 the appellant requested the court to adjourn for
seven days to enable him to engage a defence counsel. The
court adjourned for ten days on this request. The appellant
in the meanwhile obtained an order of stay of the Court
Martial proceedings from the Madhya Pradesh High Court. As a
result, the Court Martial was adjourned sine die.
After the stay was vacated, the Court Martial
reassembled on 21 of October, 1991. It was adjourned several
time as the defending officer was not present. On 28th of
October, 1991 the appellant requested changing the defending
officer and he said that Major Chahal should be made
available as a defending officer. As a result Lt. Colonel
Hari Mittar was allowed to withdraw. Witnesses were examined
thereafter from 29th of October, 1991 onwards. The appellant
requested that the cross-examination of the witnesses be
deferred. The request was granted. We find from the record
that sufficient time was give to the appellant either to
engage a defence counsel of his choice or to have a
defending officer. But the appellant kept on changing
defending officers or asked for adjournments for the purpose
of engaging defence counsel. He did not cross-examine
witness when they were offered for cross-examination. He was
given sufficient indulgence in this behalf by the court.
It seems that Major Chahal who was requested by the
appellant as defending officer was present in the Court on
5th of December, 1991 and 6th of December, 1991 but
thereafter when the witnesses were offered for cross-
examination he was not present and the appellant did not
avail of the opportunity of cross-examining the witnesses
offered for cross-examination. On 23 of December, 1991 after
the evidence was over, the case was adjourned to enable the
defence counsel to prepare the case of the appellant. Even
thereafter, in January 1992 cross-examination of some of the
witnesses was offered but was not availed of. Ultimately on
17th of January, 1992 addresses by the prosecution and
defence concluded. On 18th of January, 1992 the trial
concluded with the summing up by the Judge Advocate. A
sentence of being cashiered from service has been awarded
which is subject to confirmation.
Thus, the appellant repeatedly sought adjournments on
one pretext or the other and was not satisfied with the
various defence officers who were made available to him as
per his request. The appellant who has argued this appeal
before us is well, versed with the Army Law and Army Rule
and was quite capable of arguing his own case. He was
throughout present at the court Martial and could have
cross-examined the witnesses had he so desired. He has been
given sufficient indulgence by court and we do not see how
any principles of natural justice have been violated in this
case. The Court Martial, therefore, cannot be faulted on the
ground of non-compliance with the principle of natural
justice. We are not sitting in appeal over the findings of
the General Court Martial. Therefore, we have refrained from
examining the merits of the case.
In our view, the High Court was right in coming to the
conclusion that there is no merit in the contentions taken
by the appellant. The appeal is, therefore, dismissed. There
will, however, be no order as to costs.