UNION OF INDIA AND ORS.versusJ.S. BRAR

A                       UNION OF INDIA AND ORS.
                                    v.
                               J.S. BRAR

                               OCTOBER 9, 1992

B               [Dr. T.K. THOMMEN, V. RAMASWAMI AND
                            S.P. BHARUCHA, JJ.)

          Anny Ac~ 1950/Anny Rules 1954: Sections 69, 160, 164/Ru/es 68,
    7o-<:ourt Martiaf-Findings recorded and sentence awarde~onfinning
C   Authority ordering Revision-Retracted confession of co-accused-Additional
    evidence taken-Reasonable opportunity for Cross-examination of witnesses--
    Finding of guilt and award of sentence-<:onfinnation by Competent Autho-
    rity-Whether suffers from jurisdictional error-Revision proceedings--
    Whether vitiated.

D         The Respondent-accused who was a Major in the Indian Army was
    charged with the offence punishable under Section 69 of the Army Act, 1950
    read with S.379 IPC. Of the two charges of allegedly stealing articles from
    the Department of Salvage he was found guilty of one charge and was
    cashiered and sentenced to one year rigorous Imprisonment. In respect of
E   the other charge he was acquitted. However, the Confirming Authority
    ordered revision of the findings of the General Court Martial (GCM) for
    recording fresh evidence and reconsideration; Consequently the GCM was
    again constituted and proceedings commenced against the accused. Addi-
    tional evidence was taken and the accused was found guilty of both the
    charges. He was cashiered and sentenced to one year rigorous imprison-
F   ment which was confirmed by the Competent Authority.

          The accused filed a petition before the Government which was
    rejected. Thereafter, be challenged the order by way of a Writ Petition
    before the High Court and the High Court set aside the revised findings
G   of the GCM and the sentence imposed. Against the High Court's order,
    the Union of ludia preferred the present appeal.

          On behalf or the appellant it was contended that sufficient oppor-
    tunity was given to the accused to cross-examine the witnesses and to let
    in fresh evidence; and that there was ample independent evidence to fully
H   support the findings reached by the GCM.
                                       916
                           U.0.1. v. J.S. BRAR                          917

      On behalf of the Respondent, it was contended that apart from the A
evidence of accomplices and co-accused or the retracted confession of a
co-accused which was obtained by inducement and threat, there was no
evidence which rationally led to the conclusion that the Respondent was
gnilty of the charges brought against him; and-that the finding of gnilt
against the accused was not confirmed by the Competent Anthority lead-
ing to jurisdictional error which vitiated the entire proceedings.       B

      Allowing the appeal, this Court,

      HELD: 1. The High Conrt was not justified in interfering with the
findings and sentences rendered by the GCM and confirmed by the Chief
of the Army Staff. [923-G]                                                     C
      2. Even assuming that the evidence of PWs.1, 2, 3 and 19 was tainted
by reason of their being accomplices or co-accused, as they are sought to
be characterised by the respondent, and it was not taken into account, all
the other witnesses unmistakably support the prosecution case. They            D
speak to the presence of the accused at the time and place of the offence
and his active participation In the commission of the crime as well as the
attempt made by him to suppress evidence by threatening the concerned
witnesses or tampering with the relevant documents. These witnesses
having deposed on behalf of the prosecution, and the defence having been
afforded reasonable opportnnity to cross- examine them, their evidence as      E
snch is not inadmissible, for It Is at worst the evidence of accomplices,
which can be safely taken Into account, if corroborated in material par-
ticulars by other Independent evidence. [921 A-DI

      3. As regards the retracted confession attribnted to the 4th accused,
the confession as such is of no value, particularly because It Is retracted,   F
except as a reassurance when reliable evidence has already been adduced
on behalf of the prosecution. [921-GJ

      Capt. Harish Uppal v. Union of India & .Ors., [1973) 3 SCC 319; Ram
Narain v. State of Rajasthan, [19731 3 SCC 805; Chonampara Chellappan v. G
State of Kera/a, [1979) 4 SCC 312; Bhuboni Sahu v. The King, AIR 36 (1949)
Privy Council 257; Shrishail Nageshi Pare v. State of Maharashtra, [1985) 2
SCC 341; Brij Bhushan Singh v. Emperor, AIR 33 (1946) Privy Council 38;
Abdul Sattar v. Union Territory, Chandigarh, [1985) supp. SCC 599 and
Mohd. Hussain Umar Kochra Etc. v. KS. Dalipsinghji & Anr. etc,, [1979) 1
SCR 130, relied on.                                                            H
    918                    SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.

A         4. The Act and the Rules do not require reasons to be given for the
    findings and sentences rendered by the Court Martial. In the Instant case,
    in the absence of reasons, It is not possible to say whether the GCM had
    placed any reliance at all on the testimony or the so called accomplices or
    the retracted confession or co-accused, in coming to its findings against
    the accused. As stated earlier, the findings are fully supported by other
B   evidence which Is unimpeachable. [921-H; 922-A]

          S.M. Mukherjee v. Union of India, (1990] 4 SCC 594 and Ram Sarup
    v. The Union of India & Anr., (1964] 5 SCR 931, relied on.

            5. The Act and the Rules specifically provide for additional evidence
C being taken hy the Court upon an order or revision. It cannot be said that
    no reasonable opportunity was given to cross-examine the Brigadier. The
    proceedings show that he was summoned by the Court In terms or section
    160 to depose as a witness consequent upon the order or the Revlslonal
    Authority and was allowed to be cross-examined at length by the defence,
D   although, as permitted by the Rules, questions were required to be put to
    the wrltness through the Court. [922 B·D)

          6. In the instant case, the General Officer Commanding, U.P. Area,
    had been empowered by the Central Government by warrant as the
    Confirming Authority. Under rule 70, he may either 'confirm or refuse
E   confirmation or reserve confirmation for superior authority'. The General
    Officer Commanding, U.P., being so empowered to reserve confirmation
    for the superior authority, did reserve by his Order dated 31.7.1985 the
    findings and sentences for such-confirmation. That authority, being the
    Chief of the Army Statr, confirmed the findings and sentences of the GCM
    vlde his order dated 29.8.1986. The revised findings and sentences of the
F   GCM thus stand confirmed by the competent authority. Hence the ques-
    tion of jurisdictional error does not arise at all. [923 E-FJ

            CIVIL APPELLATE JURISDICTION : Civil Appeal No.1797 of
    1992.

G        From the Judgment and Order dated 14.2.91 of the Allahabad High
    Court in Civil Miscellaneous Writ Petition No. 9319 of 1988.

         V.R. Reddy, Additional Solicitor General, Ms. Sushma Suri, S.N.
    Terdol and Ashok K. Srivastava for the Appellants.

H           J agdev Singh Manhas for the Respondent.
                    U.0.1. v. J.S. BRAR [THOMMEN, J.]                       919

      The Judgment of the Court was delivered by                                   A

      DR. THOMMEN, J. The appellant-the Union of India challenges the
judgment of the Allahabad High Court setting aside the revised findings of
the General Court Martial ('the GCM') and tlie sentences imposed, as
confirmed by the, Order of the competent authority dated 29.8.1986, in
respect of the present respondent- J.S. Brar, who was a Major in the Indian        B
Army until he was cashiered by the aforesaid Order. Allowing the Civil
Misc. Writ Petition No.9319 of 1988, the High Court by the judgment under
appeal found that sufficient opportunity was not given to the respondent
(also referred to as 'the accused') to cross-examine witnesses summoned
after the order of revision or to let in fresh evidence to rebut their evidence.   C
The High Court, however, found that the relevant provisions of the Army
Rules, 1954 ('the Rules') had been.sufficiently complied with and there was
no defect in the investigation of case. So stating, the High Court, without
quashing the proceedings, directed reconstitution of the GCM so as to
afford a fresh opportunity to the accused to cross-examine the witnesses
examined after the order of revision as well as let in fresh evidence on his       D
behalf to rebut their evidence.

      The accused was charged with the offence punishable under section
69 of the Army Act, 1950 (hereinafter referred to as 'the Act') read with
section 379 of the Indian Penal Code. Two charges were framed against
the accused in respect of articles alleged to had been stolen on 27.9.1983         E
and 9.2.1984 from the Department of Salvage. On 14.2.1985, the accused
was found guilty of charge No.2 relating to the incident of 9.2.1984 and was
cashiered and sentenced to one year of rigorous imprisonment. In respect
of charge No.1 relating to the incident of 27.9.1983, the accused was
acquitted. The Confirming Authority, however, ordered, under section 160           F
read with rule 68, revision of the findings of the GCM for recording fresh
evidence and reconsideration.

         Subsequent to the order of the Confirming Authority, the GCM was
again constituted and proceedings commenced against the accused. Addi- G
tional evidence was taken in terms of section 160 read with rule 68 by
examining Brig. S.C. Chatrath, Capt. Raghunandan, Shri Bhojraj and
others. On examination of these witnesses, -the GCM found the accused
gi,iilty of both the charges and sentenced him to be cashiered and to suffer
rigorous imprisonment for one year. The Confirming Authority confirmed
the findings and sentences rendered by the GCM by Order dated 29.8.1986. H
    920                  SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.

A The accused thereupon filed a petition before the Government of India
    under section' 164(2} of the Act. The Government of India rejected the
    petition vide order dated 25.1.1988. These orders confirming the findings
    and· sentences against the accused were challenged by him successfully in
    the High Court in the writ proceedings from which the impugned judgment
    arises.
B
           The Additional Solicitor-General, Mr. V.R. Reddy, appearing for the
    Union of India, submits that the High Court was wrong in stating that
    sufficient opportunity was not given to the accused to cross-examine wit-
    nesses or to let in fresh evidence on his behalf. A number of witnesses, be
C   says, have spoken in clear terms to the guilt to the accused. Additional
    evidence was let in as permitted by the Act and the Rules and as required
    by the order of revision. All such witnesses were allowed to be cross-
    exalnined in terms of relevant provisions of the Act and the Rules. Apart
    from the retracted confession of a co-accused or the testimony of certain
    witnesses, referred to by the defence as accomplices, there was ample
D   independent evidence to fully support the findings reached by the GCM.

          Mr. Jagdev Singh Manhas, appearing for the accused, however,
    submits that the only evidence against the accused was the retracted
    confession of Pradhan, accused No.4, and the evidence of certain ac-
    complices or co-accused, such as PWs.1, 2, 3 and 19. He further submits
E   that Pradhan's confession was obtained by inducement and threat and that
    he had subsequently retracted from it. No reliance should have been placed
    on that confession. Furthermore, Brig. Chatrath, who was directed by the
    Confirming Authority to be examined, was not allowed to be freely cross-
    examined by the defence counsel. Apart from the evidence of accomplices
    and co-accused or the retracted confession of accused No.4 i.e. Pradhan,
F   there was no evidence which rationally let to the conclusion that the
    respondent was guilty of the charges brought against him. In any view, Mr.
    Manhas submits, a jurisdictional error has occurred vitiating the entire
    proceedings in so far as the finding of guilt against the accused was not
    confirmed by the competent authority. The last submission regarding juris-
G   dictional error does not appear to have been urged before the High Court.
    Nevertheless, we shall deal with these submissions.

          We have been taken through the proceedings of the GCM. We find
    that a number of witnesses bad been examined on the side of the prosecu-
    tion. PWs 1 to 10, 12 to 14, 17 to 19, 24, 26 to 28, 34, 37 and 38 deposed
H   on the side of the prosecution in respect of the offences alleged against the
                   U.0.1. v. J.S. BRAR [THOMMEN, J.]                    921

respondent, who is accused No.2. Assuming that the evidence of PWs. 1, A
2, 3 and 19 was tainted by reason of their being accomplices or co-accused,
" they are sought to be characterised by the respondent, and it was not
taken into account, all the other witnesses unmistakably support the
prosecution case. They speak to the presence of the accused at the time
and place of the offence and his active participation in the commission of
the crime as well as the attempt m~de by him to suppress evidence by B
threatening the concerned witnesses or tampering with the relevant docu-
ments.

      We see no substance in the contention that the evidence of PWs. 1,
2, 3 and 19 has in any manner vitiated the proceedings. They had spoken        C
to the incident, although they themselves had been proceeded against
separately in summary proceedings. Having deposed on behalf of the
prosecution, and the defence having been afforded reasonable opportunity
to cross-examine them, their evidence as such is not inadmissible, for it is
at worst the evidence of accomplices, which can be safely taken into
account, if corroborated in material particulars by other independent          D
evidence. As regards the objection concerning the retracted confession
attributed to the 4th accused, Pradhan, it may be stated that the confession
as such is of no value, particularly because it is retracted, except as a
reassurance when reliable evidence has already been adduced on behalf of
the prosecution. See Capt. Harish Uppal v. Union of India & Ors., (1973] 3
sec 319; Ram Narain v. State of Rajasthan, (1973] 3 SCC 805; Chonampara        E
Che//appan v. State of Kera/a, (1979] 4 SCC 312; Bhuboni Sahu v. The ](jng,
AIR 36 (1949) Privy Council 257; Shrishail Nageshi Pare v. State of
Maharashtra, (1985] 2 SCC 341; Brij Bhushan Singh v. Emperor, AIR 33
(1946) Privy Council 38; Abdul Sattar v. Union Territory, Chandigarh, (1985]
Supp. S.C.C. 599 and Mohd. Hussain Umar Kochra Etc. v. K.S. Da/ipsinghji
& Anr. etc., (1970] 1 SCR 130.
                                                                               F

       The criticism against the evidence of PWs. 1, 2, 3 and 19 (assuming
that they are accomplices) and against the retracted confession of Pradhan,
loses importance in the teeth of independent evidence on record. In-
numerable witnesses have spoken to the incident implicating the accused.       G
They fully support the case of the prosecution.

      The Act and the Rukfi do not require reasons to be given for the
findings and sentences rendered by the Court Martial. See S .N. Mukherjee
v. Union of India, (1990] 4 SCC 594, 617; Ram Sarup v. Tfie Union of India H
    922                   SUPREME COURT REPORTS (1992] SUPP. 1 S.C.R.

A & Anr., [1964] 5 SCR 931. In the absence of reasons, it is not possible to
    say whether the GCM had placed any reliance at all on the testimony of
    the so called accomplices or the retracted confession of Pradhan in coming
    to its findings against the accused. As stated earlier, the findings are fully
    supported by other evidence which is unimpeachable.
B
           We see no merit in the contention that additional evidence ought not
    to have been allowed, for the Act and the Rules specifically provide for
    such additional evidence being taken by the Court upon an order of
    revision (see section 160 read with rule 68). Nor do we see merit in the
    contention that no reasonable opportunity was given to cross-examine Brig.
C   Chatrath. The proceedings of the GCM show that Brig. Chatrath, who was
    summoned by the Court in terms of section 160 to depose as a witness
    consequent upon the order of the Revisional Authority, was allowed to be
    cross-examined at length by the defence, although, as permitted by the
    Rules, questions were required to be put to the witness through the Court.
    However, towards the end of the cross-examination, the Court stated:-
D
                 "Conside<ing the trend of defence counsel in suggest-
             ing a number of questions, the court decide to ask him to
             give a list of all questions at one time so that the trial may
             be speedy''.

E This shows that questions were required to be given in writing and the
    record indicates that questions were in fact given in writing and they were
    put to the witness and were answered. It may also be noted that this order
    was made by the court after a number of questions had been orally put to
    the witness by the defence counsel through the Court and answered by the
F   witness. Significantly, the evidence of Brig. Chatrath shows that be was not
    in a positio'I to speak to the confession made by Pradhan on 15.2.1984, for
    no such statement was recorded in the presence of the witness on 15.2.1984
    and .it does not form part of the record considered by the GCM. The
    evidence• of Brig. Cbatrath bad, therefore, no value in regard to the
G   confession alleged to have been made by the 4th accu,ed Pradhan. In any
    view of the matter, the defence cannot legitimately complain that due
    opportunity was not given to cross-examine either Brig. Cbatrath or any
    other witness, There was no failure of natur<tl justice in any respect.

          We see no substance in the contention regarding jurisdiction. Section
H 154 of the Act says:-
                    U.0.1. v. J.S. BRAR [TIIOMMEN, J.]                 923

         "S. 154. Power to confirm finding and sentence of general            A
         court-martial. - The· findings and sentences of general
         courts-martial may be confirmed by the Central Govern-
         ment, or by any officer empowered in this behalf by
         warrant of the Central Government."

       Rule 70 of the Rules says:- .                                          B
         "Rule 70. Confirmation. - Upon receiving the proceedings
         of a general or district court-martial, the confirming
         authority may confirm or refuse confirmation, or reserve
         confirmation for superior authority, and the confirmation,
         non-confirmation, or reservation shall be entered in and             c
         form part of the proceedings."

     We see no merit in the respondent's submission on the basis of
Paragraph 472 of the Regulations for the Army which is not statutory in
character and whic'1 has to be read in harmony with the Act and the Rules.    D
We see no conflict arising by reason of the Regulations.

      Io the present case, the General Officer Commanding, U .P. Area,
had been empowered by the Central Government by warrant as the Con-
firming A11thority. Under rule 70, he may either "confirm or refuse confit-
mation or reserve confirmation for superior aathority". Th~ General           E
Officer Commanding, U .P, being so empowered to reserve confirmation
for the superior authority, did reserve by his Order dated 31.7.1985 the
findings and sentences for such confirmation. That authority, being the
Chief of the Army Staff, confirmed the findings and sentences of the GCM
vide his Order dated 29.8.1986. The revised findings and sentences of the
GCM thus stand confirmed by the competent authority. These orders were        F
made in compliance with the relevant provisions of the Act and the Rules
and are reasonably based on evidence.

      In the circumstances, the High Court Was not justified in interfering
with the fmdings and sentences rendered by the GCM and confirmed by
the Chief of the Army Staff. Accordingly we allow the appeal and set aside    G
the judgment of the High Court, However, in the circumstances of the case,
we do not make any order as to costs.

G.N.                                                       Appeal allowed.