Union Of India vs Ex No. 3192684 W Sep. Virendra … on 7 January, 2020


Supreme Court of India

Union Of India vs Ex No. 3192684 W Sep. Virendra … on 7 January, 2020

Author: L. Nageswara Rao

Bench: L. Nageswara Rao, Hemant Gupta

                                                 Non-Reportable


         IN THE SUPREME COURT OF INDIA
          CIVIL APPELLATE JURISDICTION

              Civil Appeal No. 9267 of 2019
               (@ Diary No.10621 of 2018)


Union of India & Ors.
                                           .... Appellant(s)
                            Versus


Ex. No. 3192684 W. Sep. Virendra Kumar
                                   …. Respondent (s)


                     JUDGMENT

L. NAGESWARA RAO, J.

1. The order of dismissal of the Respondent was set

aside by the judgment of the Armed Forces Tribunal,

Regional Bench, Lucknow (hereinafter, ‘the Tribunal’),

aggrieved by which this Appeal is filed.

2. The Respondent was enrolled as a Soldier in 20 Jat

Firing Team which was attached to the Jat Regimental

Centre, Bareilly on 25.02.1999. A firing incident took

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place at around 8.45 a.m. on 02.10.2004, when the team

was practicing firing at the Jat Regimental Centre.

During the incident, Havildar Harpal and the Respondent

sustained gunshot injuries. Havildar Harpal succumbed

to the bullet injuries and the Respondent was admitted at

the hospital due to injuries. A First Information Report

was lodged at the Police Station, Sadar Cantonment,

Bareilly. A preliminary investigation was initiated by the

Staff Court of Inquiry as per the directions of the Station

Headquarters, Bareilly which concluded on 25.11.2004.

The General Officer Commanding 22 Infantry Division

directed:

a) disciplinary action to be initiated against the

Respondent for causing the death of late Havildar

Harpal and for attempting to commit suicide.

b) to counsel Lt. Rajiv Menon for not implementing

the relevant instructions during the conduct of

firing practices at the ranges.

c) Late Havildar Harpal of 20 Jat Regiment was

directed to be treated on bona fide Government

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duty and his death was held attributable to military

service in peace.

3. The Respondent was kept in close arrest w.e.f.

27.11.2004 and was handed over to 7 Kumaon Regiment

under the authority of Headquarters 49 Infantry Brigade.

On 28.12.2004, the Respondent was tentatively charged

with the murder of Havildar Harpal under Section 302 IPC

read with Section 69 of the Army Act, 1950 (for short “the

Act”) and under Section 64(c) of the Act for attempting to

commit suicide. 21 witnesses were examined in the

summary of evidence and the Respondent was given an

opportunity to cross-examine the witnesses, which he

declined. He was given an opportunity to make additional

statement, which was also declined. Further opportunity

given to him to adduce evidence was also not availed by

the Respondent. Summary of evidence concluded on

07.02.2005. Additional summary of evidence was also

recorded, which was completed on 03.06.2005. The

General Court Martial commenced on 28.11.2005, and the

trial was concluded on 16.03.2006. The General Court

Martial convicted the Respondent under Section 302 IPC for

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the murder of Havildar Harpal and for attempting to

commit suicide. The Respondent was sentenced to suffer

imprisonment for life and to be dismissed from service.

The statutory complaint filed by the Respondent was

rejected by the Chief of the Army Staff on 16.03.2007.

The validity of the order of the General Court Martial dated

16.03.2006 and the order of the Chief of the Army Staff

dated 16.03.2007, rejecting the statutory complaint were

assailed before the Tribunal.

4. Though several grounds were taken before the

Tribunal to challenge the order of the General Court Martial,

the principal contention of the Respondent was non-

compliance of Rule 180 of the Rules. The Tribunal decided

the petition by adverting to the contention relating to Rule

180. It was held by the Tribunal that Rule 180 provides

that a person against whom an inquiry is conducted to be

present throughout the inquiry. As there was no doubt that

the Respondent was denied permission to be present when

statements of witnesses were being recorded before the

Court of Inquiry, the Tribunal concluded that the entire trial

against the Respondent is vitiated. The Tribunal set aside

the order of the Court Martial and remitted the matter for

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de novo trial from the stage of Court of Inquiry in exercise

of its power under Section 16 of the Armed Forces Tribunal

Act, 2007.

Rule 180 of the Army Rules, 1954

5. The only point considered by the Tribunal is Rule 180

and the effect of non-compliance of the said Rule. It is

relevant to re-produce Rule 180 which is as follows:

“Procedure when character of a person subject

to the Act is involved.—Save in the case of a

prisoner of war who is still absent whenever any

inquiry affects the character or military reputation

of a person subject to the Act, full opportunity

must be afforded to such person of being present

throughout the inquiry and of making any

statement, and of giving any evidence he may

wish to make or give, and of cross-examining any

witness whose evidence in his opinion, affects his

character or military reputation and producing any

witnesses in defence of his character or military

reputation. The presiding officer of the court shall

take such steps as may be necessary to ensure

that any such person so affected and not

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previously notified receives notice of and fully

understands his rights, under this rule.”

6. Chapter VI of the Army Rules, 1954 deals with the

Court of Inquiry. According to Rule 177, a Court of Inquiry

is an assembly of officers or junior commissioned officers

(JCOs) constituted to collect the evidence. The procedure to

be followed by the Court of Inquiry is provided in Rule 179.

Rule 180 deals with the procedure for inquiry where the

character of a person who is subject to the Act is involved.

When an inquiry affects the character or military reputation

of a person who is subject to the Act, full opportunity has to

be provided to the person throughout the inquiry, of

making any statement, of giving any evidence he may wish

to make or give, and of cross-examining any evidence.

According to Rule 182, the proceedings of a Court of

Inquiry, or of any confession, statement, or answer to a

question made or given in a Court of Inquiry, shall not be

admissible in evidence. However, the proviso to Rule 182

provide that nothing in Rule 182 shall prevent the

proceedings from being used by the prosecution or the

defence for the purpose of cross-examining any witness. It

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is also necessary to refer to Rule 22 of the Army Rules,

1954 which relates to the hearing of charge which is as

follows:

“22. Hearing of Charge. —

(1) Every Charge against a person subject to the Act
shall be heard by the Commanding Officer in the
presence of the accused. The accused shall have full
liberty to cross-examine any witness against him, and
to call such witness and make such statement as may
be necessary for his defence: Provided that where the
charge against the accused arises as a result of
investigation by a Court of inquiry, wherein the
provisions of rule 180 have been complied with in
respect of that accused, the commanding officer may
dispense with the procedure in sub-rule (1).
(2) The commanding officer shall dismiss a charge
brought before him if, in his opinion the evidence does
not show that an offence under the Act has been
committed, and may do so if, he is satisfied that the
charge ought not to be proceeded with: Provided that
the commanding officer shall not dismiss a charge
which he is debarred to try under sub-section (2) of Sec.
120 without reference to superior authority as specified
therein.

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(3) After compliance of sub-rule (1), if the commanding
officer is of opinion that the charge ought to be
proceeded with, he shall within a reasonable time—

(a) dispose of the case under section 80 in accordance
with the manner and form in Appendix III; or

(b) refer the case to the proper superior military
authority; or

(c) adjourn the case for the purpose of having the
evidence reduced to writing; or

(d) if the accused is below the rank of warrant officer,
order his trial by a summary court-martial:

Provided that the commanding officer shall not order
trial by a summary court-martial without a reference to
the officer empowered to convene a district court-
martial or on active service a summary general court-
martial for the trial of the alleged offender unless—

(a) the offence is one which he can try by a summary
court-martial without any reference to that officer; or

(b) he considers that there is grave reason for
immediate action and such reference cannot be made
without detriment to discipline.

(4) Where the evidence taken in accordance with sub-
rule (3) of this rule discloses an offence other than the
offence which was the subject of the investigation, the
commanding officer may frame suitable charge (s) on

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the basis of the evidence so taken as well as the
investigation of the original charge.]”

7. On behalf of the Appellant, it was contended that

the Court of Inquiry was initiated to unearth the

circumstances leading to the death of Havildar Harpal

and to find out who was responsible. At that stage, there

was no suspicion about the involvement of the

Respondent. The Respondent was examined as witness

No.18 and not as an accused. Only during the course of

the recording of the statement of the Respondent, a

serious doubt was entertained about his involvement in

the death of Havildar Harpal. It was contended by the

Appellant that full opportunity was given to the

Respondent to cross-examine the witnesses and to

submit an additional statement in his defence which was

declined by the Respondent. It was further contended

that there is no complaint made by the Respondent

about the violation of Rule 180 and the prejudice that

was caused to him at the stage of recording summary of

evidence and during the Court Martial. The submission

made on behalf of the Appellant was that the Court of

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Inquiry is only for collection of evidence and any violation

of the procedure prescribed under Rule 180 does not

vitiate the proceedings of the Court Martial. Moreover,

according to the Appellant, the Respondent failed to

show any prejudice caused to him by the non-

observance of the procedure provided in Rule 180. As

the Respondent was given an opportunity to cross-

examine witnesses as provided in Rule 22 and during the

Court Martial proceedings which he did not utilize, there

is no failure of justice, according to the learned Senior

Counsel for the Appellant.

8. The Respondent defended the order of the Tribunal

by submitting that collection of evidence by the Court of

Inquiry is a crucial stage during which the accused is

entitled to be provided with an opportunity as

contemplated in Rule 180. Violation of the procedure

prescribed in Rule 180 would render the entire

proceedings void. It was contended by the learned

Senior Counsel for the Respondent that even though the

Respondent was initially examined as a witness, there

was a requirement of summoning those witnesses whose

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statements were recorded in his absence and re-

examining them after the status of the Respondent

changed from a witness to that of an accused.

9. This Court had occasion to consider the scope of

Rule 180 and it is necessary to take note of the

judgments of this Court in which Rule 180 was discussed.

The orders by which General Court Martial was convened

were challenged by petitions filed under Article 32 of the

Constitution of India in Lt. Col. Prithi Pal Singh Bedi &

Ors. v. Union of India & Ors.1 One of the contentions

on behalf of the petitioners therein was that it was

obligatory upon the authorities to appoint a Court of

Inquiry whenever an inquiry affects the character or

military reputation of the persons subject to the Act and,

in such an inquiry full opportunity must be afforded to

such person of being present throughout the inquiry and

making any statement or giving any evidence that he

wishes to make and of cross-examining any witnesses.

Interpreting Rule 180, this Court held that it cannot be

construed to mean that whenever or wherever any

1 (1982) 3 SCC 140

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inquiry in respect of any person who is subject to the Act

is conducted and his character or military reputation is

likely to be affected, setting up of a Court of Inquiry is

sine qua non. However, this Court held as follows:

“40. … Rule 180 merely makes it obligatory that
whenever a Court of enquiry is set up and in the
course of enquiry by the Court of enquiry
character or military reputation of a person is
likely to be affected then such a person must be
given a full opportunity to participate in the
proceedings of Court of enquiry. Court of enquiry
by its very nature is likely to examine certain
issues generally concerning a situation or
persons. Where collective fine is desired to be
imposed, a Court of enquiry may generally
examine the shortfall to ascertain how many
persons are responsible. In the course of such an
enquiry there may be a distinct possibility of
character or military reputation of a person
subject to the Act likely to be affected. His
participation cannot be avoided on the specious
plea that no specific enquiry was directed against
the person whose character or military reputation
is involved. To ensure that such a person whose
character or military reputation is likely to be
affected by the proceedings of the Court of

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enquiry should be afforded full opportunity so
that nothing is done at his back and without
opportunity of participation, Rule 180 merely
makes an enabling provision to ensure such
participation.”

10. This Court in Major G.S. Sodhi v. Union of India2

rejected the challenge to the Court Martial proceedings

while dismissing the Writ Petitions filed under Article 32

of the Constitution. The main grievance of the

petitioners in that case was the violation of the

procedure prescribed in Rules 22 and 23 of the Army

Rules. While recording a finding that there has been

substantial compliance of Rules 22 and 23, this Court has

held that recording of evidence is only to find out

whether there is a prima facie case to convene a court-

martial. This Court was of the opinion that the object

and effect of the Rules should be considered in the

context bearing in mind the general principle whether

such an incomplete compliance has caused any prejudice

to the delinquent officer. However, it was held that if

there is any violation of mandatory rules, the benefit of

the same should be given to the delinquent officer. The
2 (1991) 2 SCC 382

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conclusion in that case was that there was no violation of

the Rules and in any event no prejudice was caused to

the petitioners therein. In Union of India & Ors. v.

Major A. Hussain (IC-14827)3, this Court while setting

aside the judgment of the High Court of Andhra Pradesh

upheld the order of conviction of the respondent by the

Court Martial. While dealing with the submissions made

on Rule 180, this Court relying upon Major General

Inder Jit Kumar v. Union of India4 held that

proceedings before a Court of Inquiry are not adversarial

proceedings as the Court of Inquiry is in the nature of a

fact-finding enquiry committee. This Court was of the

view that it is unnecessary to examine if pre-trial

investigation is adequate or not when there is sufficient

evidence to sustain conviction by the Court Martial. It

was further held that the requirement of proper and

adequate investigation is not jurisdictional and any

violation thereof does not invalidate the Court Martial

unless it is shown that the accused has been prejudiced

or a mandatory provision has been violated. As the

3 (1998) 1 SCC 537
4 (1997) 9 SCC 1

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Respondent therein participated in the recording of

summary of evidence without raising any objection, the

submission regarding violation of principles of natural

justice at an earlier stage was rejected by this Court.

11. In Union of India & Ors. v. Sanjay Jethi & Anr.5

the question regarding the bias of members of the Court

of Inquiry was decided in favour of the delinquent officer.

The interpretation by this Court of Rule 180 is as follows:

“53. In a CoI participation of a delinquent
officer whose character or military reputation is
likely to be affected is a categorical imperative.
The participation has to be meaningful,
effective and he has to be afforded adequate
opportunity. It needs no special emphasis to
state that Rule 180 is framed under the Army
Act
and it has the statutory colour and flavour.

It has the binding effect on CoI. The rule
provides for procedural safeguards regard
being had to the fact that a person whose
character and military reputation is likely to be
affected is in a position to offer his explanation
and in the ultimate eventuate may not be
required to face disciplinary action. Thus
understood, the language employed in Rule 180

5 (2013) 16 SCC 116

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lays postulates of a fair, just and reasonable
delineation. It is the duty of the authorities to
ensure that there is proper notice to the person
concerned and he is given opportunity to cross-
examine the witnesses and, most importantly,
nothing should take place behind his back. It is
one thing to say that CoI may not always be
essential or sine qua non for initiation of a court
martial but another spectrum is that once the
authority has exercised the power to hold such
an inquiry and CoI has recommended for
disciplinary action, then the recommendation of
CoI is subject to judicial review. While exercising
the power of judicial review it becomes
obligatory to see whether there has been due
compliance of the stipulates prescribed under
the rule, for the language employed in the said
rule is absolutely clear and unambiguous. We
may not dwell upon the concept of “full
opportunity” in detail. Suffice it to say that one
cannot stretch the said concept at infinitum on
the bedrock of grant of opportunity and fair
play. It has to be tested on the touchstone of
the factual matrix of each case.”

12. A close scrutiny of the above judgments would

indicate that:

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(a) The proceedings of a Court of Inquiry are in the
nature of a fact-finding inquiry conducted at a pre-
investigation stage;

(b) The accused is entitled to full opportunity as
provided in Rule 180;

(c) As a final order of conviction is on the basis of a trial
by the Court Martial, irregularities at the earlier
stages cannot be the basis for setting aside the
order passed by the Court Martial;

(d) If the accused raises a ground of non-compliance of
Rule 180 during the framing of charge or during the
recording of summary of evidence, the authorities
have to rectify the defect as compliance of the
procedure prescribed in Rule 180 is obligatory.

13. Though there is non-compliance of Rule 180 of the

Army Rules in this case as the Respondent was not

present during the recording of the statements of

witnesses, it is clear from the record that the Respondent

did not raise this ground either at the stage of framing of

the charge, recording summary of evidence or during the

Court Martial proceedings. After a final order was passed

by the Court Martial on the basis of a full-fledged trial, it

is not open to the Respondent to raise the ground of non-

compliance of Rule 180 during the Court of Inquiry

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proceedings. Therefore, the Tribunal ought not to have

remanded the matter back for a de novo inquiry from the

stage of Court of Inquiry on the ground of infraction of

Rule 180 of the Army Rules.

Section 16 of the Army Act, 1950

14. In exercise of the power conferred by Section 16 of

the Armed Forces Tribunal Act, 2007 an order of remand

was made by the Tribunal. Section 16 of the Armed

Forces Tribunal Act, 2007 reads as follows:

“16. Re-trial. — (1) Except as provided by
this Act, where the conviction of a person by
court martial for an offence has been quashed,
he shall not be liable to be tried again for that
offence by a court-martial or by any other Court.

(2) The Tribunal shall have the power of
quashing a conviction, to make an order
authorising the appellant to be retried by court
martial, but shall only exercise this power when
the appeal against conviction is allowed by
reasons only of evidence received or available to
be received by the Tribunal under this Act and it
appears to the Tribunal that the interests of
justice require that an order under this section
should be made:

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Provided that an appellant shall not be retried
under this section for an offence other than—

(a) the offence for which he was convicted by
the original court martial and in respect of which
his appeal is allowed;

(b) any offence for which he could have been
convicted at the original court martial on a
charge of the first-mentioned offence;

(c) any offence charged in the alternative in
respect of which the court martial recorded no
finding in consequence of convicting him of the
first-mentioned offence.

(3) A person who is to be retried under this
section for an offence shall, if the Tribunal or the
Supreme Court so directs, whether or not such
person is being tried or retried on one or more of
the original charges, no fresh investigation or
other action shall be taken under the relevant
provision of the Army Act, 1950 (46 of 1950) or
the Navy Act, 1957 (62 of 1957) or the Air
Force Act
, 1950 (45 of 1950), as the case may
be, or rules and regulations made thereunder, in
relation to the said charge or charges on which
he is to be retried.”

15. The power conferred on the Tribunal to direct re-trial

by the Court Martial is only on the grounds mentioned in

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Section 16(2). The Tribunal is competent to direct re-trial

only in case of evidence made available to the Tribunal

was not produced before the Court Martial and if it

appears to the Tribunal that the interests of justice

requires a re-trial. The re-trial that was ordered by the

Tribunal in this case is on the basis that the procedure

prescribed in Rule 180 of the Army Rules has not been

followed. The Tribunal does not have jurisdiction to

direct re-trial on any other ground except that mentioned

in Section 16(2). Non-compliance of Rule 180 cannot be

a ground for ordering a re-trial. In addition, the Tribunal

has competence only to order re-trial by the Court

Martial. There is no power conferred on the Tribunal to

direct the matter to be remanded to a stage prior to the

Court Martial proceedings. Therefore, we are of the view

that the order passed by the Tribunal directing a de novo

inquiry from the stage of Court of Inquiry requires to be

set aside. As the Tribunal has not adjudicated on the

merits of the Transfer Application, we set aside the order

of the Tribunal and remand the Application back to the

Tribunal to be considered on its own merits, without

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being influenced by any observation made in this

judgment.

16. The Appeal is accordingly allowed.

..…………………………..J.
[L. NAGESWARA RAO]

……………………………J.

[AJAY RASTOGI]
New Delhi,
January 07, 2020.

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