Holding

The Supreme Court held that the General Court Martial was properly constituted, the accused was afforded reasonable opportunity to defend himself, and the conviction and dismissal were valid.

Summary

Major A. Hussain, a serving army officer, was charged with loss of classified documents and was tried before a General Court Martial (GCM). He was provided copies of relevant documents, an advance to engage a civilian defence counsel, and several defending officers were offered, which he declined. The GCM found him guilty and sentenced him to dismissal, which was confirmed. The High Court quashed the conviction, holding that the respondent was denied a reasonable opportunity to defend himself. On appeal, the Supreme Court held that the GCM proceedings were fair, that the respondent had been given sufficient opportunity to defend, and that the High Court should not scrutinise the GCM record as an appellate court. Consequently, the conviction and sentence were upheld and the High Court judgment set aside.

Issues considered

The High Court's jurisdiction to quash a General Court Martial conviction on the ground of denial of reasonable opportunity to defend.
Whether procedural irregularities alleged (absence of defending officer of the accused's choice, lack of further advance for civilian counsel, non‑provision of certain documents) vitiate the GCM proceedings.
Whether Article 226 judicial review permits a detailed re‑examination of GCM records as if on appeal.
Whether inadequacy of pre‑trial investigation can invalidate a conviction where sufficient evidence exists.
Whether the accused is entitled to a copy of the Court of Inquiry report under Army Rules.

Legislation cited

Army Act, 1950s. 63
Army Rules, 1954s. 105, s. 149, s. 180, s. 184, s. 22, s. 23, s. 24, s. 95, s. 96

Subjects

Court MartialJudicial ReviewArticle 226Article 227Military LawRight to DefenceProcedural FairnessArmy RulesDefence CounselDefending OfficerClassified Documents

Judgment

A UNION OF INDIA AND OTHERS
v.
IC-14827 MAJOR A. HUSSAIN

DECEMBER 8, 1997

B [SUJATA V. MANOHAR AND D.P. WADHWA, JJ.]

Constitution of India : Articles 226 and 227-Court ma1tial proceed-
ings-Subject to judicial review under Article 226-But not to superintendence
under Article 227-'"'/llo inte1fere11ce-Court martial properly convened and fair
C procedure followed. :

Anny Rules '1954 : Rules 180 a11d 184-Accused not entitled to
report-Cowt of i11qitity-Nature of proceedings-Not adversmial-Not part
of pre-trial investigation.

D Rules 22, 23, 24 & Anny Order 70/84-f'rovisions relating to recording
of summary evidence--Due compliance-No flagra11t violation of any proce-
dure or provisiort-No prejudice caused to accused-Trial hot vitiated.

Rules 95, 96 and 105 : Cowt ma1tiat---<:hoice of defending Of-
ficer-Non availability--Accused refusing se1vices of defending officers
-
E provided by convening officer-Not entitled to advance for engaging civilian.
defence counsel-No denial of assistance of defe11di11g office1-Cowt martial
11ot vitiated.

Rules 81 & 82 : T1ial by GCM----Day to day-No sufficient ground for
F granting adjoumment----Request denied-Proceedings cannot be said to be
conducted with undue haste.

Rule 149 : Sufficient evidence agai11st the accused-Court martial

G
havi11g jurisdiction over subject matter-Prescribed procedure fol-
lowed--Pu11ishme11t awarded withi11 the powers of the GCM----Validity of
co11viction and sellte11ce cannot be challenged.
..
While serving as Ground Liaison Officer, Respondent by neglect lost
certain classified documents. The Court of Inquiry fixed responsibility for
the loss of documents on him and recommended initiation of disciplinary
proceedings. The bearing of the charge was conducted before the Com-
H mantling Officer and the summary of evidence was recorded in the presence
218

t
U.O.I. v. IC-14827MAJORA HUSSAIN 219

of the respondent who fully participated in the proceedings and cross A
examined the witnesses produced against him. The Commanding Officer of
the Respondent recommended his trial by General Court Martial (GCM).

The commencement of the GCM proceedings were delayed as the
respondent proceeded on leave, and were interrupted because of stay B
orders passed in various writ petitions filed by him. The GCM was finally
convened on 14.9.1987. The respondent was provided with copies of all
relevant documents and given opportunity to inspect whatever other docu-
ments he requested for. He was given full facilities for defending himself,
in accordance with army rules and regulations. He engaged the services of
a civilian defence counsel for the purpose of which an advance of Rs. 10,000 C
was given to him as a special case by the Army authorities. The trial
proceedings were conducted on a day-to- day basis in accordance with the
rules. In the midst of the proceedings, the respondent's defence counsel
withdrew from the case. On being asked by the Convening Officer about
his choice of Defending Officer, the respondent named three officers, D
belonging to the Judge Advocate General Branch who were not available
due to exigencies of service. The Convening Officer offered him the services
of three experienced and qualified defending officers one after another, but
he refused to avail the same. The respondent was given full opportunity to
cross examine the witnesses but he refused to do so on the ground that he
had not been provided with the services of a defence counsel, and that he E
was nnable to engage one due to paucity of funds.

The GCM held the respondent to be guilty of the charge, and he was
sentenced to be dismissed from service vide order dated 26.12.1987. This
sentence was also confirmed by the confirming authority as required under F
the Army Act.

The respondent challenged his conviction and confirmation of sen-
tence by way of a writ petition in the High Court of Andhra Pradesh. Single

- Judge examined minutely the record of the GCM and quashed the GCM
proceedings and the confirmation of sentence on the ground that the
respondent had been denied reasonable opportunity to defend himself. The
G

grounds that found favonr with the Single Judge were that the conclusion
in Rule 22 Inquiry was not communicated to the respondent; copies of
statement in earlier Court of Inquiry were not supplied to him in proceed-
ings under Section 22; the respondent was not given defending officer of
his choice during the GCM; loan for engaging new counsel was not H
220 SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.

A provided to him; documents requested for long before assembly of the
GCM were not provided to him.

The appeal filed by the Union of India against the judgment of the
Single Judge was dismissed by the Division Bench against which the Union
preferred the present appeal.
B
Allowing the appeal and setting aside the judgment of the High
Court, this court

HELD : 1.1. The Higb Court acted wrongly in setting aside the
conviction and sentence of the accused. There was no irregularity or
C illegality in the GCM proceedings which were fair and the respondent was
given reasonable opportunity to defend himself. [236-C]

1.2. In judicial review lllnder Article 226, it was not necessary for the
High Court to minutely examine tire record of the General Court Martial
D as if sitting in appeal. No interference is called for where the proceedings
of a properly constituted and convened court martial have been conducted
in accordance with the prescribed rules and regulations. [234-F-G; 235-A]

2. GCM proceedings cannot be invalidated for want of proper or
adequate pre-trial investigation unless prejudice is shown to have been
E caused to the accused or any mandatory provision is violated. The validity
of the conviction and sentence cannot be challenged where there is suffi-
cient evidence against the accused. [235-D-F]

3. The respondent duly participated in recording summary of
evidence without raising any objection. There was no flagrant violation of
F any procedure or provision causing prejudice to the accused.
[232-F-G; 236-A]
Lt. Col. Prithi Pal Singh Bedi v. Union of India and Others, [1982) 3
SCC 140; Major G.S. Sodhi v. Union of India, [1991) 2 SCC 382, relied on.

G 3.1. There is n~:ovision for supply of report of court of inquiry to
the accused. The court of inquiry is in the nature of preliminary inquiry
and rules of l'atural justice are not applicable during its proceedings.
[232-G-H; 233-B-C]
Major General Inder fit Kumar v. Union of India and Others, [1997)
H 9 sec 1, relied on.

-
U.O.L v. IC-14827 MAJOR A HUSSAIN [D.P. WADHWA, J.) 221
4. There is no basis for coming to the conclusion that the respondent A
was denied reasonable opportunity to defend himself. He. was given all
relevant documents and opportunity to. inspect whatever record he
wanted, he was given an advance to engage a civilian counsel as a
special case, as no army rule or instruction entitled him for the same.
He refused to avail services of defending officers provided to him. At B
his request cross-examination of important witnesses were deferred.
Thus there has been due compliance with all the provisions relating to
court martial prescribed in the Army Act, Army rules, Defence Service
Regulation· and other instructions. [234-C-F; 235-F-H; 236-A-C]

4.1. In view of the nature of functions and duties of a defending C
officer, it is a sound policy not to provide services of officers of the JAG
Branch as defending officers even in the absence of any legal bar.[227-D-E]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6257 of
1995. I)

From the Judgment and Order dated 21.2.94 of the Andhra Pradesh
High Court in W.A. No. 934 of 1991.

N.N. Goswami, Mrs. Anil Katiyar and Wasim Qadri for the
Appellants. E

P.S. Narasimha for V.G. Pragasam for the Respondent.

The Judgment of the Court was delivered by
F
D.P. WADHWA, J. Appellants are aggrieved by the judgment dated
February 21, 1994 of the Division Bench of the High Court of Judicature;
Andhra Pradesh dismissing their appeal against judgment dated April 25,
1991 of the learned single Judge of that High Court whereby the learned
single Judge allowed writ petition filed by the respondent and quashed the
court martial proceedings held against him including the confirmation of G
sentence passed upon him by the court martial.

A General Court Martial (GCM) under the Army Act, 1950 (for
~

short 'the Act') was convened to try the respondent holding the rank of
Major in the army on the following charge : H
222 SUPREME COURT REPORTS [1997] SUPP. 6 S.C.R.

A "Charge Sheet

The accused IC-14s27F Major Arshad Hussain, 225 Ground
Liaison Section Type 'C' attached to AOC Centre, an officer
holding a permanent commission in the Regular Army, is charged
with:
B
Anny Act AN ACT PREJUDICIAL TO GOOD ORDER
Section 63, AND MILITARY DISCIPLINE,

in that he,

c at Field, between 17 Sep 84 and 17 Nov. 84, when serving with 225
Ground Liaison Section Type 'C', lost by neglect twelve (12) pages
of the Commander's Operational Brief taken on charge at Serial
115 on the Incoming TOP SECRET Register of HQ 150 Inf Bde
which were entrusted to him for safe custody.
D
Place : Secunderabad Sci/
Date : 14 Aug 87 (Gautam Mitra)
Brig
Commandant
AOC Centre
E
To be tried by General Court Martial.

Station : Madras -9 Sd/
Date : 25 Aug 87 (Deepak Sehdev)
Colonel
F Colonel A
For General Officer Commanding
Andhra Tamil Nadu Karnataka
and Kerala Area."

G Section 63 of the Act reads as under :

"63. Any person subject to this Act who is guilty of any act or
omission which, though not specified in this Act, is prejudicial to
good order and military discipline shall, on conviction by court-
martial, be liable to suffer imprisonment for a term which may
H extend to seven years or such less punishment as is in this Act

t
U.O.I. v. IC-14827 MAJOR A. HUSSAIN [D.P. WADHWA, J.) 223
mentioned." A
After conclusion of the GCM proceedings the respondent was held
guilty of the charge and was sentenced to be dismissed from service by
order dated December 26, 1987 of the General Court Martial. The sen-
tence passed against the respondent was confirmed by the confirming
authority as required under the Act. B

The respondent challenged his conviction and sentence in a writ
petition filed by him in ihe High Court which, as noted above, allowed the
same and quashed the court-martial proceedings and confirmation of
sentence against the respondent. The ground which appealed to the High C
Court in setting aside the court martial proceedings and subsequent con-
firmation of sentence may be stated from the judgment of the single Judge
which is as under :

"The petitioner has been denied a reasonable opportunity to
defend himself by not communicating the conclusion reached in D
Rule 22 Inquiry as contemplated by Army Order 70/84. In the
proceedings under Section 22 by not supplying the copies of
,... statements in earlier Court of Inquiry : (i) during General Court
Martial by not giving assistance of a defending Officer of his
choice; (ii) not providing1iis loan which was already sanctioned to
engage a new counsel as the earlier counsel engaged by him had E
retired for no fault of the petitioner; (iii) by not providing him the
documents for which he had made a request to the convening
authority long before assembly of the Court Martial and for which
his counsel had also made a request."

Now to understand if the High Court rightly exercised its power of F
judicial review of the court martial proceedings, we may refer to a few
relevant facts and briefly to the court martial proceedings.

In the year 1984 respondent was serving as Ground Liaison Officer
in a Brigade which was situated somewhere in Rajasthan in close proximity G
of international border with Pakistan. One Major P.C. Bakshi was also
posted as Brigade Major in that Brigade. Brig. A.S. · Bains was the com-
mander of the Brigade. Major Bakshi was on annual leave with effect from
17.9.84 to 16.11.84 but before proceeding on leave he handed over certain
classified documents to the respondent. Under provisions of Handing of
Classified documents, the secret/top secret documents are to be in safe H
224 SUPREME COURT REPORTS [1997] SUPP. 6 S.C.R.

A custody of an officer not below the rank of Major. Accordingly, Brig. Bains
ordered the respondent to take charge of classified documents from Major
Bakshi which classified documents the respondent took over charge and
duly signed the handing/taking over of these documents by signing a
certificate to that effect. When Major Bakshi rejoined from his annual
leave, he was required to take back the charge of classified documents from
B the respondent. When handing/taking over was commenced it was dis-
covered that 12 pages of "Top Secret" documents were missing. A detailed
search was carried out but the documents could not be traced and a report
of this fact was communicated to all concerned in accordance with laid
procedure. Major Bakshi declined to take charge and under orders of Brig.
C Bains the charge of the documents was ordered to be handed over to one ·
Major D.K. Sharma, Deputy Assistant and Quarter Master General in the
Brigade, which he did. It is stated that these "Top Secret" documents
cont~ined vital information adversely affecting the security of the country
as these documents reflected deployment of troops along the international
border with Pakistan. In accordance with Army Rules, 1954 framed under
D Section 191 of the Act "staff court of inquiry" was ordered under Rule 177
to investigate the loss, apportion blame and to suggest remedial measures
to prevent such loss occurring in future but the court of inquiry, however, -~

failed to give any definite findings. Additional court of inquiry was ordered
which examined additional witnesses. Appellants submitted that respon-
dent was afforded full opportunity to be present throughout the proceed- ...
E ings in the court of inquiry in accordance with Army Rule 180 and for '
submitting anything in his defence. The Court of Inquiry apportioned
blame on the respondent and it was recommended to initiate disciplinary
.i
proceedings against him.

F In accordance with Rule 22(1) of the Army Rules read with Army
Order No. 70/84 respondent was brought before the Commanding Officer
on April 8, 1985 and hearing of the charge was conducted in the presence
...
I
of Major D.K. Sharma. Summary of Evidence was recorded by Lt. Col.
B.P. Singh from April 15, 1985 onwards in which the respond_ent par-
ticipated. He cross-examined witnesses during the recording of Summary of
G Evidence The respondent did not complaint about the non-supply of the Court
of Inquiry proceedings which were provided to him before the commencement
of the General Court Martial in accordance with Army Rule 184.

The Commanding Officer of the respondent requested the trial of
H the respondent by General Court Martial which was approved by the
U.0.1. v. IC-14827MATORA HUSSAIN [D.P. WADHWA,J.) 225
convening authority. The respondent was informed that he would be tried A
· by General Court Martial and was advised to submit a list of defence
witnesses as well as his choice for a defending officer. The respondent
instead proceeded on leave for sixty days with effect from 10.6.85 to 8.8.85
which was granted. He did not rejoin his duty and instead got himself
admitted in Military Hospital in Secunderabad which the &ppellants con- B
tend was to avoid the trial by General Court Martial. The appellants
complain that the respondent adopted tactics to delay the commencement
of the General Court Martial. He filed a writ petition (No. 17828/86) in
the Andhra Pradesh High Court at Hyderabad. The High Court by order
dated August 3, 1987 directed the appellants to post the respondent at
Secunderabad. Respondent was thus attached to AOC Centre at C
Secunderabad. He was supplied with copy of the chargesheet, copy of the
Court of Inquiry proceeding and summary of evidence. He was also in-
formed that General Court Martial was likely to be convened by August
28, 1987. The respondent again moved the High Court by filing another
writ petition (No. 12561/87) and obtained an order staying the General D
Court Martial proceeding. It is not necessary to refer to proceedings in the
High Court in that writ petition in any detail, except to note that Court
Martial proceeding was interrupted though ultimately the stay granted by
the High Court was vacated. The General Court Martial assembled on
September 14, 1987 and on being arraigned the respondent pleaded "not
guilty" to the charge. Thereafter General Court Martial was adjourned. E

For the purpose of recording of evidence, General Court Martial
reassembled on November 30, 1987. In the absence of the Judge- advocate,
it was adjourned to the following day. On December 1, 1987, the record
shows that defending officer stated that full facilities in accordance with F
the Army Act, Army Rules and Regulations for the Army had been
afforded to the respondent in the preparation of his defence and that the
respondent had also been given full opportunity to consult and confer with
him as also his defence counsel. The respondent had engaged the services
of a civilian defence counsel who was present. For this purpose to engage G
a defence counsel the respondent was given an advance of Rs. 10,000 on
his request by the Army authorities. The Court also recorded submission
~ of the defence counsel that all papers pertaining to preparation of defence
of the respondent as requested earlier on August 24, 1987 and of which
reminder was also sent on November 26, 1987 be made available to the H
226 SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.

A defence counsel for proper conduct of the defence of the case. During the
course of the proceedings, it was submitted by the defence counsel that a
copy of the Summary of Evidence recorded against the respondent, a copy
of the court of enquiry proceedings and a copy of the additional court of
enquiry proceedings had been received by the respondent in due time and
B that he had no grievance to that extent. He, however, submitted that there
were some other documents which had not been made available to the
respondent and as a result he was unable to conduct the defence case
effectively. Proceedings of the court martial, however, show that whatever
documents the respondent had asked for, he was given opportunity to
C inspect the same and in spite of the documents being made available to the
respondent and his defence counsel, no attempt was made to inspect the
same. We find that most of the documents which the respondent had asked
for were quite irrelevant to the proceedings. During the course of the
proceedings of the court martial, respondent had submitted certain ap-
D plications which were duly considered by the General Court Martial and
orders passed. We find that full opportunity was granted to the respondent
to conduct his case and proceedings could not be more fair. However,
request of the defence counsel for a long adjournment was declined. His
submission that the court martial proceedings were being conducted with
E great haste had no basis. On one day only one witness was being examined
and his cross-examination was being deferred at a request of the defence
counsel himself. Court Martial was convened for the trial of the respon-
dent. It was not a regular court in the sense that where many cases are
fixed and adjournments granted. Under Army Rule 82, when a court is
F once assembled and the accused has been arraigned, the court shall
continue the trial day-to-day in accordance with Rule 81 unless it appears
to the court that an adjournment was necessary for the ends of justice or
that such continuance is impracticable. That the defence counsel had other
case to attend to would hardly be a ground to adjourn the court martial.
G At one stage in midst of the case, the defence counsel withdrew. Grievance
of the respondent that since further advance of Rs. 15,000 was not given
to him to engage another defence counsel, he could not effedively defend
his case, found favour with the High Court. The High Court, however,
failed to take notice of the fact that the respondent was not entitled to any
H advance for the purpose of engaging the defence counsel and earlier as a
U.0.I. v. IC-14827 MAJOR A HUSSAIN (D.P. WADHWA, J.) 227

special case an advance of Rs. 10,000 had been sanc.;tioned. No Rule or A
Army Instruction has been shown under which the respondertt was entitled
to an advance. The respondent refused to cross- examine the witnesses on
the specious ground that services of defence counsel were not made
available to him due to paucity of funds. We noted that during the course
of enquiry proceedings, the respondent himself extensiNely cross-examined B
the witnesses. It is not, therefore, possible to accept the submission of the
respondent that due to lack of funds, he could not engage the services of
a defence counsel particularly when during the course of court martial
proceedings, he knocked the doors of the High Court thrice.

On being asked by the convening officer respondent had given names
c
of three officers one of whom he wanted to be his defending officer. A
defending officer is to be provided to the respondent in terms of the Army
.. Rule 95. The services of none of the named officers could be provided to
the respondent due to exigency of services and particularly when the
officers belonged to the Judge Advocate General Branch and were not D
available. The names of the officers which the respondent gave were (1)
Maj. Gen. AB. Gorthi, (2) Brig. Mohinder Krishan and (3) Lt. Col. R.P.
Singh. It was submitted before us that though there is no bar in the Rules
to provide the services of an officer of the JAG Branch as a defending
officer but as a general policy it is not done. That would appear to be a E
sound policy considering the nature of functions and duties of an officer
of JAG Branch when appointed to a court martial as hereinafter
mentioned. Moreover we find that General Court Mart.ial was presided
over by an officer of the qmk of Colonel. The responde11t was asked to
give the name of any other officer to be appointed as his defending officer F
but he declined to do so. The appellants provided the services of three
defending officers one after t.he other but the respondent declined to avail
of their services and did not give them right of audience. All the three
officers were of the rank of Lieutenant Colonel and two of them were
experienced and were legally qualified. Prosecution examined six witnesses G
including Major P.C. Bakshi, Lieutenant Colonel A.K. Sharma and
Brigadier AS. Bains and also brought on record various documents. The
respondent was also examined by the Court. In the absenae ·of any
cross-examination by the respondent, the Court itself put several questions
to the witnesses in the nature of cross-examination.
H
228 SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.

A At this stage we may refer to the relevant provisions of law. Section
1 of Chapter V of the Army Rules deals with investigation of charges.
Under Rule 22 every charge against a person subject to the Act other than
an officer shall be heard in the presence of the accused who shall have the
full liberty to cross-examine any witness against him and to;call any witness
B and make any statement in his defence. The commanding officer shall
dismiss. the charge brought before him if, in his opinion, the evidence does
not show that an offence under the Act has been committed. However, if
he is of the opinion that the charge ought to be proceeded with, he has
four options, one of which is to adjourn the case for the purposes of having
the evidence reduced to writing. Under Rule 23 procedure is prescribed
C for taking down the summary of evidence. Rule 24 provides for remand of
the accused. Here again the commanding officer after considering the
evidence and statement taken down in writing shall either remand the
accused for trial by court martial and in that case apply to the proper
military authority to convene a court martial. Under Rule 25 where an
D officer is charged with an offence under the Act, the investigation shall, if
he requires it, be held, and the evidence, if he so requires, be taken in his
presence in writing, in the same manner as nearly as circumstances admit,
as is required by Rules 22 and 23 in the case of other persons subject to
the Act. Army Order No. 70/84 which deals with hearing of the charge by
the commanding officer may be set out as under :
E
"AO 70/84 Discipline : Hearing of a Charge by the Commanding
Officer.

1. Discipline process under the Military law commences with Army
F Rule 22 which lays down that every charge against a person subject
to the Army Act, other than an officer, shall be heard in the
presence of accused. The accused shall have full liberty to cross-
examine any witness against him. This is a mandatory requirement
and its non-observance will vitiate any subsequent disciplinary
proceedings. In the case of officers, the rule becomes equally
G mandatory if the accused officer requires its observance under
Army Rule 25.

2. It is, therefore, incumbent on all Commanding Officers proceed-
ing to deal with a disciplinary case to ensure that "Hearing of
H charge" enjoined by Army Rule 22 is scrupulously held in each and
U.O.I. v. IC-14827MAJORAHUSSAIN [D.P. WADHWA,J.) 229
every case where the accused is a person other than an officer and A
also in case of an officer, if he is so requires it. In case an accused
officer does not require "Hearing of the charge" to be held, the
Commanding Officer may, at his discretion, proceed as described
in Army Rule 22(2) or Army Rule 22(3).

3. It may be clarified that the charge at this stage is a 'Tentative' B
charge which may be modified after the hearing or during the
procedure as described in Army Rule 22(3)(c) or during examina-
tion after completion of the procedure under Army Rule 22(3)(c),
depending on the evidence adduced. Further, as long as the Com-
manding Officer hears sufficient evidence in support of the C
charge(s) to enable him to take action under sub-rules (2) and (3)
of Army Rule 22, it is not necessary at this stage to hear all possible
prosecution witnesses. As a matter of abundant caution it would
be desirable to have one or two independent witnesses during the
hearing of the charge(s).
D
4. After the procedure laid down in Army Rule 22 has been duly
followed, other steps as provided in Army Rules 23 to 25, shall be
followed both in letter and spirit. It may be. clarified that the
statutory requirements of Army Rules 22 to 25 cannot dispense
with simply because the case had earlier been investigated by a E
Court of Inquiry where the accused person(s) might have been
afforded full opporutnity under Army Rule 180."

Army Rules 180 and 184 which fall in Chapter VI of Army Rules
relating to Courts of Inquiry are as under :
F
"180, 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 G
subject to the Act, full opportunity must be afforded to such person
of being present throughout the inquiry and of making any state-
ment, 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 H
230 SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.

A presiding officer of the Court shall take such steps as may be
necessary to ensure that any such person so affected and not
previously notified, receives notice of and fully understands his
rights, under this rule.

184. Right of certain persons to copies of statements and docu-
B ments. - (1) any person subject to the Act who is tried by a
court-martial shall be entitled to copies 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.

(2) Any person subject to the Act whose character or military
c reputation is affected by the evidence before a Court of Inquiry
shall be entitled to copies of such statements and documents as
· have a bearing on his character or military reputation as aforesaid,
unless the Chief of the Army Staff for reasons recorded by him in
writing, orders otherwise."
D
Present Rule 184 was substituted by SRO 44 dated January 24, 1985
and prior to its substitution Rule 184 reads as under :

"184. Right of certain persons to copies of proceedings. - The
following persons shall be entitled to a copy of the proceedings of
E a court of inquiry including any report made by the court on
payment for the same of a sum not exceeding eight annas for every
two hundred words :

(a) any person subject to the Act, who is tried by a court-martial
in respect of any matter or thing which has been reported on by
F a court of inquiry, or

(b) any person subject to the Act, whose character or military
reputation is, in the opinion of the Chief of Army Staff affected by
anything in the evidence, before, or in the report of a court of inquiry,
unless the Chief of the Army Staff sees reason to order otherwise."
G
Under Rule 95 in any General Court Martial an accused person may
be represented by any officer subject to the Act who shall be called "the
defending officer". Sub-rule (2) of Rule 95 casts duty on the convening : .
officer to ascertain whether the accused person desires to have a defending
H officer assigned to represent him and if he does so desire, the convening
U.0.1. v. IC-14827 MAJOR A HUSSAIN [D.P. WADHWA, J.) 231
officer shall use his best endeavours to ensure that the accused shall be so A
represented by a suitable officer. This sub-rule (2) is as under :

"(2) It shall be the duty of the convening officer to ascertain
whether an accused person desires to have a defending officer
assigned to represent him at his trial and, if he does so desire, the
convening officer shall use his best endeavours to ensure that the B
accused shall be so represented by a suitable officer. If owing to
military exigencies, or for any other reason, there shall in the
opinion of the convening officer be no such officer available {pr
the purpose, the convening officer shall give a written notice to the
presiding officer of the court-martial, and such notice shall be C
attached to the proceedings."

Under Rule 96 a civil counsel can also be allowed in General Court
/ Martial to represent the accused subject to his being allowed by the
convening officer which in the present case wa~ done and the accused was
represented by a counsel of his choice. D
Judge Advocate administers oath to the members of the court-
martial (Rule 47) and he himself be sworn as per the forms prescribed
(Rule 46). It is he who sums up in an open court the evide~ce and advise
the court upon the law relating to the case. If we refer to Rule 105 we find
the powers and duties of the judge-advocate. This rule is as under : E
"105. Powers and duties of judge-advocate. - The powers and duties
of .a judge-advocate are as foUows :

(1) The prosecutor and the accused, respectively, are at all times F
after the judge-advocate is named to act on the Court, entitled to
his opinion on any question of law relating to the charge or trial
whether he is in or out of Court, subject, when he is in Court, to
the permission of the Court.

(2) At a court-martial, he represents the Judge- Advocate General. G
(3) He is responsible for informing the Court of any informality or
irregularity in the proceedings. Whether consulted or not, he shall
inform the convening officer and the 'Court of any informality or
defect in charge, or in the constitution of the Court, and shaU give
his advice on any matter before the Court. H
232 SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.

A (4) Any information or advice given to the Court, on any matter
before the Court shall, if he or the Court desires it, be entered in
the proceedings.

(5) At the conclusion of the case, he shall sum up the evidence
and give his opinion upon the legal bearing of the case, before the
B Court proceeds to deliberate upon its finding.

(6) The Court, in following the opinion of the judge-advocate
on a legal point, may record that it has decided in consequence of
that opinion.
c (7) The judge-advocate has, equally with the presiding officer,
the duty of taking care that the accused does not suffer any
disadvantage in consequence of his position as such, or if his
ignorance or incapacity to examine or cross- examine witnesses or
otherwise and may, for that purpose, with the permission of the
D Court, call witnesses and put questions to witnesses which appear
to him necessary or desirable to elicit the truth.

(8) In fulfilling his duties, the judge-advocate must be careful
to maintain an entirely impartial position."
E No fault could be found with the recording of summary evidence.
Respondent has been unable to show if there was any non- compliance with
the provisions of Rules 22, 23 and 24 and Army Order No. 70/84. We have
been referred to two decisions of the Supreme Court in Lt. Col. P1ithi Pal
Singh Bedi v. Union of India and Ors., [1982) 3 SCC 140 and Major G.S.
F Sodhi v. Union of India, [1991) 2 SCC 382 laying the scope of the
provisions regarding recording of summary of evidence. In G.S. Sodhi's
case this Court with reference to Rules 22 to 25 said that procedural
defects, unless those were vital and substantial, would not affect the trial.
The Court, in the case before it, said that the accused had duly participated
G in the proceedings regarding recording of summary of evidence and that
there was no flagrant violation of any procedure or provision causing
prejudice to the accused.

Provisions of Rules 180 and 184 had been complied. Rule 184 does
not postulate that an accused is entitled to a copy of the report of court of
H inquiry. Proceedings before a court of inquiry are not adversarial proceed-
U.O.I. v. IC-14827 MAJOR A. HUSSAIN [D.P. WADHWA, J.] 233
ings and is also not a part of pre-trial investigation. In Major General lnder A"
lit Kumar v. Union of India & Ors., [1997] 9 SCC 1, this Court has held that
the Court of Inquiry is in the nature of a fact-finding enquiry committee.
The appellant in that case had contended that a copy of the report of the
Court of Inquiry was not given to him and that had vitiated the entire court
martial. He had relied upon Rule 184 in this connection. With reference B
to Rule 184, the Court said that there was no provision for supplying the
accused with a copy of the report of the Court of Inquiry. This Court
considered the judgment in Major G.S. Sodhi's case and observed that
supply of a copy of the report of enquiry to the accused was not necessary
because proceedings of the court of enquiry were in the nature of prelimi-
nary. enquiry and further that rules of natural justice were not applicable C
during the proceedings of the court of enquiry though adequate protection
was given by Rule 180. This Court also said that under Rule 177, 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. Rule 177, therefore,
does not mandate that a court of inquiry must invariably be set up in each D
and every case prior to recording of summary of evidence or convening of
a court-martial.

As noted above, when none of the three officers who were all from
JAG Branch could be made available to the respondent as defending
officer he was asked to give the name of any officer who could be deputed E
his defending officer. It is not the case of the respondent that the convening
officer did not use his best endeavour to ensure that the respondent was
represented by a suitable defending officer. It was the respondent himself
who declined to give any other name. Nevertheless the convening officer
did depute three officers one after the other to represent as defending F
officer for the respondent. But the respondent declined to avail their
services.

We may also refer to Rule 149 which lays down that a court-martial
would not be held to be invalid even if there was an irregular procedure
where no injustice was done. This Rule is as under : G

"Validity of irregular procedure in certain cases. · Whenever it
appears that a court-martial had jurisdiction to try any person and
make a finding and that there is legal evidence or a plea of guilty
to justify such finding, such finding and any sentence which the H
234 SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R ..

A court-martial had jurisdiction to pass thereon may be confirmed,
and shall, if so confirmed and in the case of a summary court-mar-
tial where confirmation is not necessary, be valid, notwithstanding
any deviation from these rules or notwithstanding that the charge-
sheet has not b'een signed by the commanding officer or the
convening officer, provided that the charges have, in fact, before
B trial been approved by the commanding officer and the convening
officer or notwithstanding any defect or objection, technical or
..
other, unless it appears that any injustice has been clone to the
offender, and where any finding and sentence are otherwise valid
they shall not be invalid by reason only of a failure to administer
c an oath or affirmation to the interpreter or shorthand writer; but
nothing in this rule shall relieve an officer from any responsibility
for any wilful or negligent disregard of any of these rules."

We find the proceedings of the General Court Martial to be quite
D immaculate where trial was fair and every possible opportunity was af-
forded to the respondent to defend his case. Rather it would appear that
the respondent made all efforts to delay the proceedings of the court
martial. Thrice he sought the intervention of the High Court. Withdrawal
of the defence counsel in the midst of the proceedings was perhaps also a
part of plan to delay the proceedings and to make that a ground if the
E respondent was ultimately convicted and sentenced. Services of qualified
defending officer were made available to the respondent to defend his case,
but he had rejected their services without valid reasons. He was repeatedly
asked to give the names of the defending officers of his choice but he
declined to do so. The court martial had been conducted in accordance
F with the Act and Rules and it is difficult to find any fault in the proceed-
ings. The Division Bench said that the learned single Judge minutely
examined the record of the court- martial proceedings and after that came
to the conclusion that the respondent was denied reasonable opportunity
to defend himself. We think this was fundamental mistake committed by ...
the Higi'. Court. It was not necessary for the High Court to minutely
G examine the record of the General Court-Martial as if it was sitting in
appeal. We find that on merit, the High Court has not said that there was
no case against the respondent to hold him guilty of the offence charged.

Though court-martial proceedings are subject to judicial review by
H the High Court under Article 226 of the Constitution, the court-martial is
U.O.I. v. IC-14827 MAJOR A. HUSSAIN [D.P. WADHWA, J.] 235
not subject to the superintendence of the High Court" under Article 227 of A
the Constitution. If a court-martial has been properly convened and there
..,. -· is no challenge to its composition and the proceedings are in accordance
with the procedure prescribed, the High Court or for that matter any court
must stay its hands. Proceedings of a court-martial are not to be compared
with the proceedings in a criminal court under the Code of Criminal
B
Procedure where adjournments have become a matter of routine though
,>-
that is also against the provisions of law. It has been rightly said that
Court-martial remains to a significant degree, a specialised part of overall
mechanism by which the military discipline is preserved. It is for the special
need for the armed forces that a person subject to Army Act is tried by
court-martial for an act which is an offence under the Act. Court-martial c
discharges judicial function and to a great extent is a court where
provisions of Evidence Act are applicable. A court-martial has also the
same responsibility as any court to protect the rights of the accused
charged before it and to follow the procedural safeguards. If one looks at
the provisions of law relating to court-martial in the Army Act, the Army
D
Rules, Defence Service Regulations and other Administrative Instructions
of the Army, it is manifestly clear that the procedure prescribed is perhaps
equally fair. if not more than a criminal trial provides to the accused. When
there is sufficient evidence to sustain conviction, it is unnecessary to
examine if pre-trial investigation was adequate or not. Requirement of
proper and adequate investigation is not jurisdictional and any violation E
thereof does not invalidate the court martial unless it is shown that accused
has been prejudiced or a mandatory provisions has been violated. One may
usefully refer to Rule 149 quoted above. The High Court should not allow
the challenge to the validity of conviction and sentence of the accused when
evidence is sufficient, court-martial has jurisdiction over the subject matter F
and has followed the prescribed procedure and is within its powers to
award punishment.

.- After ourselves examining the record of the court-martial, we find
that the High Court completely misdirected itself in coming to the con-
clusion that the respondent was denied reasonable opportunity to defend G
himself. He was given copies of all the relevant papers and also given
'•-:'
. opportunity to inspect whatever record he wanted; allowed services of a
civilian counsel; special advance was given to engage the services of civil
counsel as requested by the respondent; there was no rule to give further
advance to engage yet another civil counsel when first one withdrew; H
236 SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.
A respondent was not hampered by paucity of funds as made out by him; no
fault could be found with the convening officer if the respondent himself
did not avail the services of a defending officer when provided; cross-ex-
amination of important witnesses was deferred at the request of the respon-
dent; and he had participated in the recording of Summary of Evidence
B without raising any objection. The General Court Martial took into s:on-
sideration all the evidence and other materials produced before it; found
the respondent guilty of the charge and sentenced him to be dismissed from ••
service. Pre-confirmation petition submitted by the respondent was
rejected by the Chief of the Army Staff and findings and sentence of the
General Court- Martial were confirmed by him. Thus, examining the case
C of the respondent from all angles which led the High Court to set aside. his
conviction and sentence, we are satisfied that there was no irregularity or
illegality and respondent was provided with reasonable opportunity to
defend himself and the proceedings were fair. We, therefore, set aside the
impugned judgment of the High Court and dismiss the writ petition filed
D by the respondent.
The appeal is allowed with costs.

R.C. Appeal allowed.

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