{"id":165465,"date":"1997-03-20T00:00:00","date_gmt":"1997-03-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/major-general-inder-jit-kumar-vs-union-of-india-ors-on-20-march-1997"},"modified":"2016-06-27T06:48:23","modified_gmt":"2016-06-27T01:18:23","slug":"major-general-inder-jit-kumar-vs-union-of-india-ors-on-20-march-1997","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/major-general-inder-jit-kumar-vs-union-of-india-ors-on-20-march-1997","title":{"rendered":"Major General Inder Jit Kumar vs Union Of India & Ors on 20 March, 1997"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Major General Inder Jit Kumar vs Union Of India & Ors on 20 March, 1997<\/div>\n
Author: M S Manohar.<\/div>\n
Bench: A.M. Ahmadi, Sujata V, Manohar<\/div>\n
           PETITIONER:\nMAJOR GENERAL INDER JIT KUMAR\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA & ORS.\n\nDATE OF JUDGMENT:\t20\/03\/1997\n\nBENCH:\nA.M. AHMADI, SUJATA V, MANOHAR\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nMrs. Sujata V. Manohar. J.\n<\/p>\n
     Leave granted.\n<\/p>\n
     The appellant,  at all material times, held the rank of
\nActing Major  General in  the Indian  Army. He\tfiled a writ
\nPetition in the High Court of Madhya Pradesh challenging the
\ninquiry proceedings  held against  him and  his trial  by  a
\ngeneral Court  Martial under  the Army\tAct, 1950. This writ
\nPetition has  been dismissed  by the  impugned judgment\t and
\norder of  the High  court of  Madhya Pradesh.  Hence he\t has
\npreferred the present appeal.\n<\/p>\n
     During the\t pendency of these proceedings and after the
\nvacation of  stay on holding of a General Court Martial, the
\ntrial of  the appellant\t has proceeded to a conclusion and a
\nsentence has  been passed that the be cashiered from service
\nwhich is  subject to  confirmation as  per the provisions of
\nthe Army  Act, 1950.  The  appellant  has  filed  additional
\ngrounds of  appeal before  us challenging these findings. An
\nearlier writ petition being Misc. Petition 717 of 1991 which
\nwas filed  before the  madhya Pradesh High Court in the same
\nconnection   has already  been dismissed  on 8th of October,
\n1991. However,\tthe present  writ petition has been examined
\non merits  by the  High Court  and dismissed. We, therefore,
\npropose\t to   examine  the  various  grounds  urged  by\t the
\nappellant in  support of  his case. The appellant has argued
\nhis appeal in person at his insistence.\n<\/p>\n
     The  appellant   who  held\t  the  substantive  rank  of
\nBrigadier at the material time was posted was posted in Agra
\nfrom February  1988 to\tApril 1989  as Commandant, Parachute
\nRegimental Training  Centre. In\t April 1989 he was given the
\nacting rank  of major  General and  was\t posted\t as  General
\nOfficer Commanding,  Vth Mountain  Division in\tthe  Eastern
\nCommand. In  July 1989 the appellant was called to Agra as a
\nwitness in  a Court  Martial going  on against\ton  e  Major
\nMahapatra. He  was asked  to stay  on for a Court of Inquiry
\nbeing\theld\tin   connection\t  with\t certain   financial
\nirregularities which  has occured  while the  appellant\t had
\nbeen posted at Agra. The proceedings of the Court of Inquiry
\ncommenced on  26.7.1989. On   13.10.1989,  the appellant was
\nattached   to\t Military   college   of   Telecommunication
\nEngineering,  Mhow,   under  Army  Instruction\t30\/86  until
\nfinalisation of\t disciplinary proceedings  against him.\t The
\nappellant  was\t directed  to\treport\tfor  duty  at  Mhow.
\nThereafter the\thearing on  charges  against  the  appellant
\ncommenced under\t Rule 22  of  the  Army\t Rules\ton  28th  of
\nOctober, 1989. After examination of witnesses and documents,
\nthe Court  of Inquiry  submitted its  report  as  result  of
\nwhich, on  23rd of  January, 1991, orders were issued by the
\nG.O.C. –  in-C Central\tCommand fro  assembly of  a  General
\nCourt Martial for trial of the appellant.\n<\/p>\n
     The appellant  objected to the Presiding Officer of the
\nCourt n the ground that he was biased against the appellant.
\nTherefore, the Presiding Officer retired from the  Court and
\nLt. General  Y.A.  Mande  was  appointed  as  the  Presiding
\nOfficer. Lt.  General Mande  was, however,  withdrawn on the
\ndirections  of\t the  convening\t authority  as\the  was\t not
\navailable due  to another  engagement. The  next senior most
\nofficer was  appointed as  the Presiding  Officer. After the
\ncourt  was   constituted  the  trial  began  and  has  since
\nconcluded.\n<\/p>\n
     The appellant  has alleged\t that the proceedings of the
\nGeneral Court  Martial are  vitiated because  of bias on the
\npart of the court against him. He was further challenged the
\nentire proceedings  of the  court  of  Inquiry\tand  of\t the
\nGeneral Court  Martial on  the ground that the principles of
\nnatural justice\t have been  violated. he  was not  given  an
\nadequate opportunity  of defending  himself. He\t has alleged
\nthat he\t was denied  the assistance  of a suitable defending
\nofficer and\/or\ta defending  counsel of\t his choice.  He has
\nalso alleged that he was not given the relevant documents or
\na copy\tof the\treport of  the Court, of Inquiry in order to
\nenable him  to put  up his  defence. There  are also various
\nother  technical   objections  raised\tby  him.  All  these
\nobjections  have  been\texamined  and  found  to  be  of  no
\nsubstance by the High Court.\n<\/p>\n
     Under Rule\t 177 of Army Rules, 1954, a Court of Inquiry
\ncan be\tset up\tto collect  evidence and  to report,  if  so
\nrequired, with regard to any matter which may be referred to
\nit. The\t Court of Inquiry is in the nature of a fact-finding
\ninquiry committee.  Army Rule 180 provides, inter alia, that
\nwhenever any  inquiry  affects\tthe  character\tof  military
\nreputation of  a  person  subject  to  the  Army  Act,\tfull
\nopportunity must  be afforded  to such\ta  person  of  being
\npresent throughout  the inquiry and of making any statement,
\nand of\tgiving any evidence he may wish to make or give, and
\nor  cross-examining  any  witness  whose  evidence,  in\t his
\nopinion, affects  his character\t of military  reputation and
\nproducing any  witnesses in  defence  of  his  character  of
\nmilitary reputation.  The presiding  officer of the Court of
\nInquiry is  required to\t take such steps as may be necessary
\nto ensure  that any  such person so affected receives notice
\nof and\tfully understands  his rights  under this  rule. The
\nappellant  was\taccordingly  present  before  the  Court  of
\nInquiry. Witnesses  were examined by the Court of Inquiry in
\nthe presence  of the  appellant. He,  however,\tdeclined  to
\ncross-examine the witnesses. Instead, the appellant moved an
\napplication for an adjournment for preparing his defence. He
\nalso applied  that the\tevidence adduced before the Court of
\nInquiry should\tbe reduced  to writing. The Court of Inquiry
\nnoticed\t that  sufficient  time\t had  been  granted  to\t the
\nappellant for  preparation of  his defence  after receipt of
\nthe  Court   of\t Inquiry   proceedings\tby  him.  Hence\t his
\napplication for\t adjournment was  refused.  The\t hearing  on
\ncharges took  place in the presence of the appellant. At the
\nconclusion of  the hearing  on charges,\t an order was passed
\nthat evidence be reduced to writing and a recommendation was
\nmade to convene a General Court Martial for trial along with
\nrecommendations on  charges to\tbe  framed.  Thereafter\t the
\ncharges\t were  finalised,  charge-sheet\t was  issued  and  a
\nGeneral Court Martial was convened.\n<\/p>\n
     The appellant  has also  contended\t that  copy  of\t the
\nreport of  the Court of Inquiry was not given not to him and
\nthis has  vitiated the\tentire Court  Martial. The appellant
\nhas relied  upon Rule  184 of  the Army Rules, 1954 i n this
\nconnection. Rule  184, however, provides that the person who
\nis tried  by a\tCourt Martial  shall be entitled to copes of
\nsuch statements\t and documents\tcontained in the proceedings
\nof a  court of Inquiry as are relevant to his prosecution or
\ndefence at his trial. There is no provision for suppling the
\naccused with the copy of the report of the court of Inquiry.
\nThe procedure relating to a Court of inquiry and the framing
\nof a charges was examined by this Court in the case of Major
\nG.S. Sodhi  v. Union of India<\/a> [1991 (2) SCC 382]. This Court
\nsaid that  the Court  of Inquiry  and participation  in\t the
\nCourt of  Inquiry is  at a stage prior to the trial by Court
\nmartial. It  is the order of the Court Martial which results
\nin deprivation of liberty and not nay order directing that a
\ncharge be heard or that a summary of evidence be recorded or
\nthat a\tCourt martial  be convented.  Principles of  natural
\njustice are  not attracted  to such  a preliminary  inquiry.
\nArmy Rule  180, however,  which is  set\t out  earlier  gives
\nadequate protection to the person affected even at the stage
\nof the\tCourt of Inquiry. In the present case, the appellant
\nwas given  that protection.  He was  present at the Court of
\nInquiry and  evidence was  recorded in\this presence. He was
\ngiven an  opportunity to  cross-examine\t witnesses,  make  a
\nstatement or  examine defence  witnesses. The  order of\t the
\nCourt of  Inquiry directing that a Court Martial be convened
\nand framing of charges, therefore, cannot be faulted on this
\nground\tsince  it  was\tconducted  in  accordance  with\t the
\nrelevant Rules.\n<\/p>\n
     The appellant has contended that charges framed against
\nhim are\t in violation  of Army Rules. Hence the entire Court
\nmartial is vitiated. Tentative charges were initially framed
\nagainst him  in the alternative. The tentative charges which
\nwere framed  on or  about 28.10.1989  were twelve in number.
\nEach charge  was under Section 52 of the Army Act and in the
\nalternative, under Section 63 of the Army Act. Section 52(b)
\nrefers to  the offence\tof dishonestly\tmisappropriating  or
\nconverting to one’s own use of any property belonging, inter
\nalia, to  the Government,  or to  any military, naval or air
\nforce mess,  band or  institution. section  52(f) refers  to
\ndoing, any  other thing\t with intent to defraud, or to cause
\nwrongful gain  to one  person or  wrongful loss\t to  another
\nperson. Section 63 refers to any act or omission prejudicial
\nto good\t order and  military  discipline.  Investigation  of
\nthese tentative\t charges was  carried out  by the Commanding
\nOfficer under  Army Rule 22 read with Rule 25. The appellant
\nwas given  the opportunity  to cross-examine  witnesses\t and
\nproduce his witnesses. While recording a summary of evidence
\nunder  Army   Rule  23,\t  he  was  given  again\t given\tthis
\nopportunity.\n<\/p>\n
     After preliminary\tinvestigation the commanding officer
\nreferred the  matter to the superior authority. According to
\nthe appellant, to Commanding Officer had recommended framing
\nof charges  only under\tSection 63.  The superior  authority
\ntook advice  of the  Deputy Judge  Advocate General  of\t the
\nCommand who  prepared a draft charge sheet and advised trial
\nof the\tappellant by  a General\t Court\tmartial.  The  final
\ncharge sheet dated 18.1.1991 as signed by Commanding Officer
\nalong with the order of trial by General Court martial which
\nis counter-signed  by  the  General  Officer  Commanding-in-
\nChief, Central\tCommand contains  nine charges under Section
\n52 and three charges under Section 63.\n<\/p>\n
     The appellant  contends that once charges under Section
\n52 were\t dropped, they\tcould not  have been included in the
\ncharge-sheet. Hence  the charge-sheet  is bad  in  law.\t The
\nrespondent have set out in their affidavit in reply that the
\nCommanding Officer  had merely submitted his recommendations
\nto the\tsuperior authority  regarding charges  to be  framed
\nalong with  his investigation report. After obtaining advice
\nof the\tDeputy Judge  Advocate General of the Command on the
\nmaterial so submitted, the final charge-sheet was issued. We
\nfail to see any irregularity or illegality here.\n<\/p>\n
     The appellant’s contention that the Commanding Officer,
\nCentral Command had no jurisdiction in this regard must also
\nbe rejected since he was attached to the Central Command for
\nthe   purpose of  the disciplinary  inquiry which related to
\nhis conduct during the period when he was posted at Agra.\n<\/p>\n
     The appellant  next contends  that the convening of the
\nGeneral Court Martial in his case is not valid because under
\nSection 109  of the  Army Act a General Court Martial can be
\nconvened only  by any  officer who  has been  appointed by a
\nspecific warrant in that connection by the Chief of the Army
\nStaff. According to him a specific warrant must be issued in
\neach case.  Under Section  109 of  the Army  Act, a  General
\nCourt Martial  may be  convened by the Central Government or
\nthe Chief  of the  Army Staff or by any officer empowered in
\nthis behalf by warrant of the Chief of the Army Staff. There
\nis nothing  in Section\t109 which  required the Chief of the
\nArmy Staff  to issue  a warrant\t for each  specific case.  A
\ngeneral warrant\t issued by the chief of the Army Staff as in
\nthe  present  case  is\tcompetent  under  Section  109.\t The
\nappellant has also contended that since he did not belong to
\nthe Central  Command, General  Officer, Commanding-in-Chief,
\nCentral Command,  could not  convene a General Court Martial
\nin his\tcase even  on the basis of the general warrant. This
\nsubmission is  also without merit. The appellant, under Army
\nInstruction 30\/86  dated  13.10.1989  was  attached  to\t the
\nCentral Command\t until the  finalisation of the disciplinary
\ncase. This  would give jurisdiction to G.O.C. – in-C Central
\nCommand to convene a General Court Martial.\n<\/p>\n
     The appellant  has next  challenged the  composition of
\nthe Court.  Under Army Rule 44 the order convening the Court
\nMartial and  the names\tof the\tPresiding  Officer  and\t the
\nmembers of  the court  shall be read over to the accused and
\nhe shall  be asked,  as required  by Section 130, whether he
\nhas any\t objection to  being tried by any officer sitting on
\nthe court.  Any such  objection\t shall\tbe  disposed  of  in
\naccordance with\t the provisions\t of the\t aforesaid  section.
\nSub-rule (e)  of Rule  44 of  the Army\tRules provides\tthat
\nwhere an  officer so  retires or  is not  available to serve
\nowing  to  any\tcause,\twhich  the  court  may\tdeem  to  be
\nsufficient, and\t there are  any officers in waiting detailed
\nas such,  the Presiding\t Officer shall\tappoint one  of such
\nofficers to  fill the  vacancy. If  there is  no officer  in
\nwaiting available,  the court  shall proceed  as required by
\nRule 38.  Rule 38  deals with  adjournment for\tinsufficient
\nnumber of officer and it provides that where the full number
\nof officers detailed are not available to serve, for reasons
\nwhich are  set out there, the court shall ordinarily adjourn
\nfor the purpose of fresh members being appointed. We are not
\nconcerned with\tthe rest  of the  provisions. In the present
\ncase prior  to his arraignment, the appellant challenged Lt.
\nGeneral Vijay Madan, VSM, the Presiding Officer of the court
\non the\tground of  strained relations  between him  and\t the
\nPresiding Officer. The appellant’s plea was accepted and Lt.
\nGeneral Y.A. Mande, AVSM, a waiting member, took over as the
\nPresiding Officer.  However,  Lt.  General  Y.A.  Mande\t was
\nwithdrawn on the direction of the convening authority before
\nswearing in.  Thereafter, Major General B.S. Malik being the
\nnext senior  person became presiding officer. To fill up the
\nquorum of  seven  members  Major  General  Surjit  Singh,  a
\nwaiting member\twas appointed as a member. The Court Martial
\nwas, therefore, convened in accordance with the Army Act and
\nthe Army  Rules.  According  to\t the  appellant,  the  Court
\nMartial\t should\t have  been  dissolved\tunder  Section\t117.
\nSection 117  provides that  if a  Court\t Martial  after\t the
\ncommencement to trial is reduced below the minimum number of
\nofficers required  by this  Act, it  shall be  dissolved, It
\nalso provides  for other  contingencies\t in  which  a  Court
\nMartial, after\tcommencement, can be dissolved. This section
\nhas no\tapplication to\tthe present  case. The submission of
\nthe appellant,\ttherefore, regarding  the composition of the
\nCourt has not merit.\n<\/p>\n
     The grievance of the appellant relating to bias against
\nhim also  has no  merit. The first Presiding Officer against
\nwhom the  appellant has\t alleged bias  was removed and a new
\nPresiding Officer appointed. The appellant contends that the
\nentire Court Martial was vitiated because he was not given a
\nproper opportunity  to defend  his case.  He was not given a
\ndefending officer  of his choice and\/or a defence counsel of
\nhis choice  to defend  him. A  major part  of his  arguments
\nbefore us  related to  this proceedings of the General Court
\nMartial from  this point of view. Before the commencement of
\nthe General  Court Martial  on 31st  of\t January,  1991\t the
\nappellant was  asked to\t submit names  officers by  whom  he
\nwould  like  to\t be  defended  at  the\tCourt  Martial.\t The
\nappellant has  given names  of four  officer. When the Court
\nMartial convened  on 31st  of January,\t1991  the  defending
\nofficer\t Major\t M.M.  Khanna  for  the\t appellant  and\t the
\nappellant  himself  were  present.  Major  Khanna  was\tduly
\nqualified as an officer who could  defend the appellant. The
\nappellant accepted  him but  he also  reserved his  right to
\nconduct his  defence in\t person. After\ta few days the Court
\nMartial was  adjourned for nine days to enable the appellant
\nto engage  a defence  counsel or  give details of some other
\ndefending officers.  The appellant  thereafter requested for
\nLt.  Colonel   Hari  Mittar   as  the\tdefending   officer.
\nAccordingly Lt.\t Colonel Hari  Mittar was made available. It
\nseems that  the appellant  accepted  him  as  his  defending
\nofficer. But  once again  he did  not give  him the right of
\naudience. The  appellant  was  asked  to  engage  a  defence
\ncounsel of  his choice.\t From 3rd  April, 1991\tto  10th  of
\nApril, 1991  no witness\t could be  examined. Then on 11th of
\nApril, 1991 the appellant requested the court to adjourn for
\nseven days  to enable  him to  engage a defence counsel. The
\ncourt adjourned\t for ten days on this request. The appellant
\nin the\tmeanwhile obtained  an order  of stay  of the  Court
\nMartial proceedings from the Madhya Pradesh High Court. As a
\nresult, the Court Martial was adjourned sine die.\n<\/p>\n
     After  the\t  stay\twas   vacated,\tthe   Court  Martial
\nreassembled on 21 of October, 1991. It was adjourned several
\ntime as\t the defending\tofficer was  not present. On 28th of
\nOctober, 1991 the appellant requested changing the defending
\nofficer and  he\t said  that  Major  Chahal  should  be\tmade
\navailable as  a defending  officer. As\ta result Lt. Colonel
\nHari Mittar was allowed to withdraw. Witnesses were examined
\nthereafter from 29th of October, 1991 onwards. The appellant
\nrequested that\tthe cross-examination  of the  witnesses  be
\ndeferred. The  request was  granted. We find from the record
\nthat sufficient\t time was  give to  the appellant  either to
\nengage a  defence  counsel  of\this  choice  or\t to  have  a
\ndefending  officer.  But  the  appellant  kept\ton  changing
\ndefending officers or asked for adjournments for the purpose
\nof  engaging  defence  counsel.\t He  did  not  cross-examine
\nwitness when they were offered for cross-examination. He was
\ngiven sufficient indulgence in this behalf by the court.\n<\/p>\n
     It seems  that Major  Chahal who  was requested  by the
\nappellant as  defending officer\t was present in the Court on
\n5th  of\t December,  1991  and  6th  of\tDecember,  1991\t but
\nthereafter  when  the  witnesses  were\toffered\t for  cross-
\nexamination he\twas not\t present and  the appellant  did not
\navail of  the opportunity  of cross-examining  the witnesses
\noffered for cross-examination. On 23 of December, 1991 after
\nthe evidence  was over, the case was adjourned to enable the
\ndefence counsel\t to prepare  the case of the appellant. Even
\nthereafter, in January 1992 cross-examination of some of the
\nwitnesses was  offered but was not availed of. Ultimately on
\n17th of\t January, 1992\taddresses  by  the  prosecution\t and
\ndefence concluded.  On\t18th  of  January,  1992  the  trial
\nconcluded with\tthe summing  up by  the\t Judge\tAdvocate.  A
\nsentence of  being cashiered  from service  has been awarded
\nwhich is subject to confirmation.\n<\/p>\n
     Thus, the\tappellant repeatedly  sought adjournments on
\none   pretext or  the other  and was  not satisfied with the
\nvarious defence\t officers who  were made available to him as
\nper his\t request. The  appellant who  has argued this appeal
\nbefore us  is well,  versed with  the Army Law and Army Rule
\nand was\t quite capable\tof arguing  his\t own  case.  He\t was
\nthroughout present  at the  court  Martial  and\t could\thave
\ncross-examined the  witnesses had he so desired. He has been
\ngiven sufficient  indulgence by\t court and we do not see how
\nany principles of natural justice have been violated in this
\ncase. The Court Martial, therefore, cannot be faulted on the
\nground of  non-compliance  with\t the  principle\t of  natural
\njustice. We  are not  sitting in appeal over the findings of
\nthe General Court Martial. Therefore, we have refrained from
\nexamining the merits of the case.\n<\/p>\n
     In our  view, the High Court was right in coming to the
\nconclusion that\t there is  no merit in the contentions taken
\nby the appellant. The appeal is, therefore, dismissed. There
\nwill, however, be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Major General Inder Jit Kumar vs Union Of India & Ors on 20 March, 1997 Author: M S Manohar. Bench: A.M. Ahmadi, Sujata V, Manohar 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: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-165465","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMajor General Inder Jit Kumar vs Union Of India & Ors on 20 March, 1997 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/major-general-inder-jit-kumar-vs-union-of-india-ors-on-20-march-1997\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Major General Inder Jit Kumar vs Union Of India & Ors on 20 March, 1997 - 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