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Judgment
Arun Kumar Mitra, J.—Challenging the proceeding of the second court of inquiry this writ petition has been moved by the Petitioner. The Petitioner, herein is an Army Officer in the category of Junior Commissioned Officer under the G.O.C. ln-C, Eastern Command, Calcutta.
The Petitioner has stated in the writ petition that from the very inception of his service the Petitioner had the privilege to receive commendations regarding his exemplary character from Brig Baijal of Officers'' Training School, Lucknow and Commandant CH(CC)LKO and Commandant, Military Hospital Jullunder. The Petitioner was initially enrolled in the Army on February 6, 1978 and since then he had been discharging his duties at various stations, viz., Palanpur, Chandigarh, Secundrabad, Lucknow, Barrackpore, Udhampur, Jullunder etc. and he was transferred and posted to Command Hospital, Eastern Command, Calcutta, since July 2001. The Petitioner has an unblemished service record all throughout his service career spread over last 25 years.
According to the Petitioner during the tenure of service of the Petitioner at the Command Hospital on-August 16, 2002 at about 9.20 hrs., one Mrs. Archana Singh Mistry and 19 other outsiders were apprehended in Ml. Room since the aforesaid persons breached the Hospital security. The culprits so apprehended were brought to Ol/C. Rtg.Cell, whereupon through interrogation was made when they confessed that they had committed breach of hospital security for manipulation of Review Medical Examination. On search conduct on their persons a bunch of papers containing- names and addresses of different persons and cash of Rs. 1,75,800/- were recovered from such Mrs. Archana . Singh Mistry which were seized, under proper seizure list.
Thereafter, on August 17, 2002 Ol/C.Rtg.Cell Lt.Col. Neatu Narang, lodged First Information Report with the Cfficer-in-Charge, Alipore Police Station against the aforementioned culprits and handed over the culprits and the cash and papers seized from them to-the Officer-in-Charge, Alipore Police ''Station through Eastern Command Provost Unit. On the basis of the said F.I.R. dated August 17, 2002, Alipore Police Station started a case being No. 2789 dated August 17, 2002. Surprisingly, as it transpired later, the accused persons were released on payment of Rs. 20/- as fine. However, the fate of the seized cash of Rs. 1,75,800/- handed over together with other seized papers to the Officer-in-charge, Alipore Police station is not known to the Petitioner/The Petitioner annexed copies of the F.I.R., seizure list etc. as annex. ''P-1''.
On August 17, 2002 night, the Petitioner was called to Provost Unit, Eastern Command, where the Petitioner was taken to SI/JCO, who-ordered investigation with Intelligence (INT) unit. There, the Petitioner was manhandled like a petty thief and was just put into an inter-rogation room by covering his eyes with black cloth. The Petitioner stated that during such interrogation, the Petitioner was accused of accepting bribes from the culprits apprehended as aforesaid, and" was not only abused and physically assaulted but was also subjected to all sorts of inhuman behaviour, indignities and insults. According to the Petitioner meanwhile the room of the Petitioner at Command Hospital was searched. Thereupon the Petitioner was wrongfully detained and confined until August 18, 2002 even when the Petitioner was taker? to Hospital Ml Room and medically examined by DMO Maj. Jasbtr Singh. Subsequently the Petitioner was again removed to Eastern Command Laision Unit for interrogation.
According to the Petitioner the aforesaid consequences of events and reprehensible conduct of the Provost Unit staff would, beyond any. shadow of doubt, go to indicate and as is the fact that some staffs/Officers of the Provost Unit, who have vested interest in the matter of recruitment and/or review medical examination, are instrumental in the lapses and/or breaches of security, and those apprehended culprits formed an unholy coterie for their personal gain-and-sensing trouble by and at the instance of those culprits, if interrogated by the Police authorities, managed to allow those culprits apprehended and handed over to the Police, station to go scot free from the police lock up.
The Petitioner stated and submitted that it is wholly unjust and unreasonable that an honest Junior Commissioned Officer, who apprehended the culprits with valuable cash of Rs. 1,75,800/- and other documents, has been subjected to wrongful confinement/detention apart from mental and physical torture whereas the real culprits apprehended and handed over to the police authorities were allowed to go scot free so that said conterie and their malpractices and illegal activities are never unearthed and the real culprits do continue with illegal and wrongful activities even at the cost of safety and security of the Army hospital and the ''officers/staffs and their family members residing inside the hospital compound that too on the face of the ongoing terrorists activities all over the country.
The Petitioner reported, in entire- facts and misconduct of the Provost Unit staff to the Commandant, Command Hospital by an appeal dated September 29, 2002. A copy whereof has been made annex. P-2.
According to the Petitioner he was made a scapegoat. As a matter of fact the Petitioner was on sanctioned leave of 30 days and was recalled from leave on or about November 21, 2002 and was attached to C/O 2/9 GR Fort William on war-footing for no visible administrative or operational reason, but for malafide intent and wrongful purpose to safeguard the vested interests.
Thereafter, a Court of inquiry was, ordered on and from December 2, 2002 at 945 TPT COY with Maj. Sanjeev Rastogi as the Presiding Officer and Capt. V. Sashi Kumar as member. In the Court of inquiry the Petitioner was not disclosed regarding., the accusation of charge whatsoever against him in respect whereof such Court of inquiry was held. No document whatsoever proposed to be relied upon- by the Court of inquiry was furnished to the. Petitioner: In such manner the Court of inquiry was concluded. No .report showing-the result of the said first Court of inquiry was supplied to the Petitioner.
The Petitioner was once again ordered to be attached to the Ordnance Depot., Kolkata on February 22, 2003 while the purported first Court of inquiry commenced from February 11, 2003 at Command Hospital premises. The second Court of inquiry is comprised of Col. S.K. Anand as the Presiding Officer, Col. B, Mukherjee and Ltd. Col. Jarnail Singh as members thereof.
The second Court of inquiry continued day to day hearing with under haste and without affording any opportunity of defence to the Petitioner. The Petitioner was not furnished with any statement of witnesses or documents relied upon in the inquiry. The Petitioner was never asked at the outset of such inquiry to* answer to any charge of accusation.
According to the Petitioner the entire process of the inquiry being a mockery and the cross-examination and statements of witnesses being not faithfully recorded, the Petitioner took the objections.
According to the Petitioner the Court of inquiry which is a quasi judicial body dealing with matters involving the civil rights of the Army staffs, has to act reasonably and judiciously and not capriciously and/or with biased mind. However, the Petitioner demanded justice through his advocate.
The aforesaid legal notice sent under registered post with acknowledgment due was duly received by the Respondent Nos. 1 to 4.
The Petitioner in the writ petition submitted that the Respondent authorities being the ''state'' within the meaning of Article 12 of the Constitution of India are still proceeding with such inquiry in contravention of the Army Act, 1990 and Army Rules, 1954. On such background the Petitioner prayed for writ of Mandamus commanding the. Respondents to cancel and rescind the proceeding of second Court of inquiry.
The Respondents filed affidavit-in-opposition. The said affidavit-in-opposition was affirmed by the Deputy, Assistant Adjutant General. In the opposition the Respondents denied the allegations made by the Petitioner in the writ petition. In para. 4 of the opposition the Respondents stated that the writ petition is misconceived and not maintainable on the following grounds:
(I) On the basis of report of the Military Police and after preliminary inquiry, the Court of inquiry was ordered on November 26, 2002 to inquire into the allegations of wrongdoing against Naib Subedar BPS Nair, Naib Subedar. KC Muduli and Naik Sll Raj. The allegation was that three persons were involved in league with Mrs. Archana Singh Mistry and outsider touts in obtaining false medical examination from Command Hospital on August 16, 2002. The said lady was apprehended with cash amount of Rs. 1,75,800/-along with 19 youths whom she had brought for the said illegal medical examination. The writ Petitioner at the said material time was JCO-in-Charge of Recruiting Cell of Command Hospital, Kolkata.
II) During the first Court of inquiry, from the evidence it appears that some very senior officers of the rank of Lt. Colonel were also likely party to the said wrongful act.
Ill) In the circumstances the Sub Area Commandar (Respondent No. 2) ordered on January 30, 2003 cancellation of the first Court of inquiry and reconvened a fresh Court of inquiry with the Presiding Officer a full colonel and the other two members being of Lt. Col. rank. This was done in view of the Regulation 518:
IV) The second Court of inquiry was established on January 30, 2003 and it examined 20 witnesses. The Petitioner was present during the said examination. While being present he had cross examined Nail Sll Raj, Ltd. Colonel Neetu Narang and four other Witnesses on varous dates during February and March, 2003, whom he thought relevant.
So far as the first Court of inquiry was concerned the same had neither passed any order nor submitted any report as the same was cancelled.
The Petitioner was given full opportunity of being present during the second Court of inquiry and making any statement or cross-examination of any witness or giving any evidence, of producing any witnesses in his'' defence.
The said inquiry is primarily for the purpose to ascertain that whether any of the Military personnel''s involved in the said illegal act.
In the writ petition the Petitioner had suppressed the fact that he had examined six witnesses including Ltd, Col. Neetu Narang,
The charges of the Court of inquiry or anyone colluding against the Petitioner are without any particulars, . vague and recklessly made with regard to the truth and the sam are denied and disputed each and all.
In the opposition the Respondents denied in specific each and every allegation made by the Petitioner and narrated the incident in their own way. It was stated in the opposition that the previous Court of inquiry had to be superseeded as during the proceedings of that Court of inquiry the Petitioner had given statements which affect the character and military reputation of officers senior in rank and status to the Presiding Officer of that Court of inquiry."
It was further submitted by the Respondents that as per Defence Service Regulation (D''SR) 518, when the character and military reputation of any person is involved, the Presiding Officer of the- Court of inquiry has to be senior in rank than the rank of the persons, affected. Therefore, the second Court of inquiry is perfectly in order as per law and the proceedings of the previous inquiry has been rightly cancelled.
It has been also submitted that the Court of inquiry has yet to be finalised and at the stage of trial for any offence against the Petitioner has not yet been reached and therefore, supplying copies of Court of inquiry proceedings or any report at this stage to the Petitioner is neither necessary nor warranted.
The Respondents submitted that the writ petition should be dismissed and the Respondents should be permitted to proceed with the inquiry.
The writ Petitioner submitted affidavit-in-reply reiterating his stand taken in the writ petition. Each and every allegation made by the Petitioner, in the writ Petition was again affirmed. The Petitioner submitted that the proceeding of the second. Court of inquiry should be set aside.
It is relevant to mention in this context that initially the matter was moved before Hon''ble Justice Bhaskar Bhattacharjee and his Lordship granted an interim order of injunction. Subsequently, the matter appeared before this Court and this Court extended the interim order. On behalf Of the Respondents, application for vacating was filed for vacating the said interim order. The said application for vacating the interim order was heard along with the main writ petition by this Court. At the time of hearing the learned Counsel on behalf of both the parties submitted written notes on argument.
The Petitioner submitted that there was total noncompliance with the mandatory requirements of Rule 180 and 184(2) of the Army Rules, 1954 as the matter of the conduct of proceedings of the Court of inquiry had in fact is a disciplinary proceeding as against the Petitioner.
On behalf of the Petitioner it was submitted that the Petitioner is legally entitled to have the copies of all relevant documents including the charge/accusation made against him, the copies of documents! relied upon by the prosecution in support of the same including the statement of witnesses recorded, preliminary inquiry report, proceedings of first Court of inquiry and statements of all witnesses. In this connection conjoint reading of the provisions of Rule 22, 23 and 15 read with Rule 180 of Army Rules, 1954 which makes it mandatory that an officer subject to a Court of inquiry which involves his character and military reputation must be afforded full opportunity for his effective participation and therefore copies of relevant documents were to be served so that he would be able to cross-examine them as per Rule 184(2) of the said Rules. It is evident therefrom that in the absence of due compliance with the mandatory provisions of the said Rules enacted by Parliament in its wisdom there cannot be effective participation.
On behalf of the Petitioner it has been further stated that the rules provide for Court of inquiry, The relevant Rules are Rule 22, 23, 24, 25, 26, 28, 29, 30, 33 and 34. The aforesaid Rules, according to the Petitioner was considered in extensor in the judgment reported in 1987 Lab. lC 283. The Hon''ble Division Bench in the said judgment came to the positive finding that when a Court of inquiry is established it goes totouch the character of the official concerned, Rule 25 read with Rule 180 of the Army Rules must be strictly followed.
It has also been submitted on behalf of the Petitioner that the Special Army Order issued by the Ghief of Army Staff state that an Officer will considered to be subject to a disciplinary case with effect from the date on which the Court of inquiry is ordered involving his character and or military reputation Reliance was also placed on behalf of the Petitioner in the judgment of the Hon''ble Apex Court reported in AIR 1982 S.C. p.1431 . The Petitioner relied on the observations made in paras. 41 and 45 of this judgment of the Hon''ble Apex Court.
It has also been submitted by the Petitioner that the mandate of Rule 180 for full participation cannot be avoided merely by saying that no charge has been framed against the officer concerned since the Court of inquiry proceedings directly affects his character and military reputation and an officer subject to Court of inquiry is legally entitled to such protection enshrined under Rule 180 of the Army Rules. The Petitioner also relied on a judgment of Andhra Pradesh Division Bench reported in 1994(1) W.R. 347. The Petitioner pointed about another vital infirmity in the impugned proceedings as well. The personal bias of the member Colonel B. Mukherjee, one of the members of the Court of inquiry has stated in oath, in the writ petition and the legal notice has not been controverted by Respondents or by member against whom the allegation was-made.
The affidavit-in-opposition by Respondents did not contain any specific denial on that point.
Reliance was also placed by the Petitioner in the Apex Court decision reported in Rattan Lal Sharma Vs. Managing Committee, Dr. Hari Ram (Co-education) Higher Secondary School and others, and Ranjit Thakur Vs. Union of India (UOI) and Others,
The Petitioner alleged violation of the principle of natural justice. The Petitioner further alleged that in the light of the principles of law laid down, the contentions of the Respondents that the Petitioner has been called merely as a witness and no specific charge has been framed .against him and the application is prematured and cannot stand in the way of quashing the impugned proceedings for non-compliance of the rules.
On behalf of the Petitioner it was further submitted that the Court of inquiry comprising persons having personal bias and partiality has no jurisdiptionand/or competence to proceed with the same.
The Petitioner also submitted that Court of inquiry was initiated against three persons, J.C 69 2905 PNB. SUB/NAKC Muduli, No. 1396661141 NK/NA SH Raj and the Petitioner.
The Petitioner alleged that as would appear from the order convening the Court of inquiry Mr. KC Muduli had filed the writ petition being W.P. No. 4703 (W) of 2003 which happened to appear along with the present application, which was adjourned and separated since he could not get an order of stay of the impugned proceedings, Mr. Muduli has since been transferred and promoted to the higher post. The submission has been made on behalf of the Petitioner that his promotion has been vindictively withheld and the authority is determined to give him punishment in violation of Army Rules.
The Petitioner submitted that the second Court of inquiry should be quashed.
On behalf of the Respondents, Union of India and Ors. both oral and written submission has been made.
In their submission the Respondents spelt out that the case before the Respondents is to find out whether the writ Petitioner and two other persons were involved in the wrong doing wherein one .Mrs. Archana Singh Mistry was arrested with Rs. 1,75,800/- cash-in-hand and along with 19 other civilian young boys within the premises of Command Hospital near the Recruitment Cell.
On behalf of the Respondents Rule 177 has been relied upon Regulation 518 of the Army Regulations have also been ''relied upon, the first Court of inquiry was cancelled and not proceeded with and. second Court of inquiry was ordered with appointment of Col.S.K. Anand as Presiding Officer and Lt.Col. B, Mukherjee and Lt.Col. Jarnal Singh as members.
It has further been submitted that the writ Petitioner had cross-examined six witnesses viz. 1) Naik S II Raj 2) CHM Hycinth OC 3) Hav., Yogendra Singh 4) Lt. Col. Neetu Narang-5) NB SUB K.C. Muduli 6) Ltd. Col. P. Sarkar.
The inquiry has been completed and its report has yet been submitted. The Respondents further submitted that the writ Petitioner''s case as submitted in the Court is that the said inquiry is not an inquiry proceeding but it is departmental/disciplinary proceeding and as the Respondents have not given the report of the first inquiry and the copies of documents and statements to the writ Petitioner the whole proceeding is vitiated and should be quashed.
It has also been submitted by the Respondents that Mr. M.A. Bidyadharan, the learned Counsel for the Petitioner has relied upon, some citations or propositions of law along with certain rules and regulations.
On behalf of the learned Counsel it has been submitted that the military Court has been conducting its proceedings strictly in accordance with the provisions of Army Act, 1950 and Army Rules, framed thereunder wherein equal, fair and unbiased opportunity-has been afforded to all the witnesses without any prejudice.
It has been submitted on behalf of the Respondents that the writ application is misconceived, baseless and not maintainable and should be rejected.
Heard the learned Counsel for the parties, considered their oral and written submissions made before this Court and also considered the claims, and counter claims as has been made out in the writ petition, the affidavit-in-opposition and the affidavit-in reply as well as the application for vacating the interim order filed by the Respondents.
Let us now discuss the proposition of law on the factual matrix as sought to be argued and made out by the Petitioner and the Respondents.
The case of the Petitioner basically is that the first Court of inquiry has been dropped and the second Court of inquiry has been started. In the second Court of inquiry he has not been given opportunity of hearing and the second Court of inquiry is a result of bias and documents which are necessary for relevance have not been supplied to the Petitioner and the writ petition should be allowed and the second Court of inquiry is to be set aside.
According to the Petitioner this is a departmental proceeding and not a Court of inquiry. The different rules and regulations have been referred to by the learned Counsel for both the parties. Rule 180, 184(2) of the Army Rules have been referred to by the Petitioner which are quoted hereinbelow:
Procedure when character of a person subject to the Act is involved. Save in. the case of prisoner of war who is still absent, whenever any inquiry affects the character of 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 of any statement, and giving any evidence he may wish to make or give, and or cross-examination any witness whose evidence, in his opinion,, affects his character or, military reputation, the presiding office of .the Court shall take such steps as may be necessary to ensure that any such person so affected and no previously notified, receives notice of and dully understand his rights, under this rule.
184(2). Right of certain persons to copies of statements and documents- (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 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 writing, order otherwise.
The Petitioner also relied on the decision reported in 1987 LAB. I.C. 283 (Major Chandkumar v. Union of India and Ors.).
The learned Counsel for the Petitioner relied on paras. 13, 19, 20 and 21 which are quoted hereinbelow:
Chapter VI of the Rules provides for Courts of Inquiry. The relevant rules which we should set out in extenso are Rules 22, 23, 24, 25, 26, 28, 29, 30, 33 and 34. We need not refer to other rules contained in the Rules. These Rule are set out as under:
Hearing of charge-(1) Every charge against a person subject to the Act other than an officer, shall be heard in the presence of the accused. The accused shall have full- liberty to cross-examine any witness against him, and to call any witnesses and make any statement in his defence. (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 in his discretion he is satisfied that the charge ought not be proceeded with.
(3) At the conclusion of the hearing of a charge, if the commanding officer is of opinion that the charge ought to be proceeded with, he shall without unnecessary delay:
(a) dispose of the case summarily u/s 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 convince a district court martial or on active service a summary general court martial for the trial of the alleged offender unless either:
(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.
Procedure for taking down the summary of evidence:
(1) Where the case is adjourned for the purpose of having the evidence reduced to writing, at the adjourned hearing evidence of the witnesses who were present and gave evidence before the commanding officer, whether against or for the accused, and of any other person whose evidence appears to be relevant, shall be taken down in writing in the presence and hearing of the accused before the commanding officer or such officer as hedirects.
(2) The accused may put in cross-examination such questions as he thinks fit to any witness., and the questions together with the answers thereto shall be added to the-evidence recorded,
(3) The evidence of each witness after it has been recorded as provided in the rule when taken down, shall be read over to him, and shall be signed by him, or if he cannot write his name shall be attested by his mark and witnessed as a token of the correctness of the evidence recorded. After all the evidence against ''the accused has bean recorded, the accused will be asked Do you wish to make any statement ? You are not obliged to say anything -unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence''. Any statement thereupon made by the accused shall be taken down and read over to him but he will not be cross-examined upon it. The accused may then call his witnesses including if he so desires any witnesses as to character.
(4) The evidence of the witnesses and the statement (if any) of the accused shall be recorded in the English language. If the witness or accused as the case may be, does not understand the English language, the evidence or statement/as recorded, shall be interpreted to him in a language which he understands;
(5) If a person cannot be compelled to attend as a witness, or if owing to the exigencies of service or any other grounds (including the expense and loss of time involved), the attendance of any witness cannot in the opinion of the officer taking the summary (to be certified-by him in writing) be readily procured, a written statement of his evidence purporting to be signed by him may be read to the accused and included in the summary of evidence.
(6) Any witness who is not subject to military law may be summoned to attend by order under the hand of the commanding officer of the accused. The summons shall be in the form provided in Appen. III.
Remand of Accused-''(1) The evidence and statement (if any) taken down in writing in pursuance of Rule 23.(hereinafter referred to as the ''summary of evidence'') shall be considered-by the. commanding officer, who thereupon shall either:
(a) remand the accused for trial by a court martial; or
(b) rejer the case to the'' proper superior military authority; or
(c) if he thinks it desirable, rehear the case and either dismiss the charge or dispose of it summarily. (2) If the accused is remanded for trial by court martial, the commanding officer shall without unnecessary delay either assemble a summary court martial (after referring to the officer empowered to convence a district court martial or on active service a summary general court martial when such reference- is necessary) or apply to the proper military authority to convence a court martial, as the case may require.
Procedure, on charge against officer- (1) Where an 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 Rule 22 and Rule 23 in the code of other persons subject to the Act. (2) When an officer is remanded for the summary disposal of a charge against him or is ordered to be tried by a court martial, without any such recording of evidence in his presence, an abstract of evidence to be adduced shall be delivered to him free of charges as provided in Sub-rule (7) of Rule 33.
Summary disposal of charges- against officer, Junior Commissioned Officer or Warrant Officer- (1) Where an officer, a junior commissioned officer or a warrant officer is remanded for the disposal of a charge against him by an authority empowered u/s 83, 84 or 85 to deal summarily with that charge, the summary of evidence or (in the case of an officer where there is no summary of evidence) and abstract of the evidence to be, adduced shall be delivered to him, free of charge, with a copy of the charge as soon as practicable after its preparation and in any ease not less than twenty four hours before the disposal.
(2) Where the authority empowered u/s 83,84 or 85 decides to deal summarily with a charge against an officer, junior commissioned officer or warrant officer he shall unless he dismisses'' the charge, or unless the accused has consented in writing to dispense with the attendance of the witnesses, hear the evidence in the presence of the accused. ''The, accused shall have full liberty to cross-examine any witness against him, and to call any witnesses and make .a statement in his defence.
(3) The proceedings shall be .recorded as far as practicable in accordance with the form in Appendix IV and in every case in which punishment is awarded the proceedings together with the conduct sheet, summary or abstract of evidence and written consent to dispense with the attendance of witnesses (if any) of the accused, shall be forwarded through the proper channel to the superior military authority as defined in Section 88.
Charge-sheet and charge- (1) A charge-sheet shall contain the whole issue or issues to be tried by a court martial at one time.
(2) A charge means an accusation contained in a charge-sheet that a person subject to the Act has been guilty of an offence.
(3) A charge-sheet- may contain one charge or several charges.
Commencement of charge-sheet.- Every charge-sheet shall begin with the name and description of the person charged, and state his number, rank, name and the corps or department (if any) to which he be-longs. when the accused person does not belong to the regular Army, the charge-sheet shall show by the description of him, or directly by an express averment, that he is. subject to the Act in respect of the offence charged.
Contents of charge- (1) Each charge shall state one offence only, and in no case shall an offence be-described in the alternative in the same charge.
(2) Each charge shall be divided into two parts-
(a) Statement of the offence ; and
(b) Statement of the particulars of the act, neglect or commission constituting the offence.
(3) The offence shall be stated, if not a civil offence as nearly as practicable in the words of the Act, and if a civil offence, -in such words as sufficiently describe in technical words.
(4) The particulars shall state such circumstances respect the- alleged offence as will enable the accused to knew what act neglect or omission is intended to be proved against him as constituting the offence.
(5) The particulars in one charge may be framed wholly or partly by a reference to the particulars in another charge and in that case so much of the latter particulars as are so referred to shall be deemed to form part of the first mentioned charge as well as of the other charge.
(6) where it is intended to prove any facts in respect of which any deduction from pay and allowance can be awarded as a consequence of the offence charged, the particulars shall state those facts and the sum of the loss or damage it is intended to charge.
Rights of accused to prepare defence.- (1) Correspondence between the accused and his legal advisers shall not be liable to be censored. The accused shall inform his commanding officer of the names of such advisors, and shall also inform him of any distinctive marks that such correspondence will bear.
(2) An accused person shall have the right to interview any witnesses whom he may wish to call in his defence. The provisions of Rule 137 shall apply to procuring the attendance of such witnesses.
(3) If the accused so desires, the commanding officer of the accused shall take such steps as the circumstances of the case permit to obtain a written statement from a witness whom the accused-may wish" to call in his defence. The statement shall be obtained in closed envelope which shall be given to the accused person unopened.-
(4) If the accused, person-gives to his commanding officer the name of any person whom he wishes to call in his defence, no person shall interview such witness with reference to the charges against the accused except in the presence of the accused, unless the accused agraes to dispense with his presence in whine. Similarly if the accused wishes to interview a witness whom the prosecutor intends to call; the interview shall be in the presence of an officer detailed by the commanding officer of the accused person.
(5) The commanding officer of the accused person or the. officer responsible for his custody shall take adequate precautions so that no conversation which the accused person may have with his legal advisers or witnesses is liable to be overheard.
(6) The accused person shall have the right to address an application to the Deputy or Assistant Judge Advocate General of the command within which he for the time being is, if he is kept under arrest longer than forty eight days without being brought to trial or is not given full liberty for preparing his defence.
(7) As soon as practicable after an accused has been remanded for trial by a general or district court martial, and in any case not less than ninety six hours or on active service twenty four hours before his trial, an officer shall give to him free of charge a copy of the summary of evidence, or in the case of an officer where there is no summary of evidence an abstract of the evidence, and explain to him his rights under these rules as to preparing his defence and being assisted or, represented at the trial, and shall ask him to state in writing whether or not he wishes to have an officer assigned by the convening officer to represent him at the trial, if a suitable officer should be available. The convening officer shall be informed whether or not the. accused so elects.
Warning of accused for trial.- (1) The accused before he is arraigned shall be informed by an officer of every charge for which he is to be tried and also that on. his giving the names, of witnesses whom he desires to call in his defence, reasonable steps will be taken for proceeding their attendance, and those steps shall be taken accordingly. The interval between his being so informed and his arraignment shall not be less than ninety-six hours or where the accused person is on active service less than twenty-Tour hours.
(2) The officer at the- time of so informing the accused shall give him-a copy of the charge sheet and shall if necessary, read and explain to him the charges brought against him. If the accused desires to have it in a language which he understands, a translation thereof shall also be given to him.
(3) The officer shall also deliver to the accused a list of the names, rank and corps (if any) of the officers who are to form the court, and where officers in waiting are named, also of those officers in court martial other than summary court martial.
(4) If it appears to the court that the accused is liable to be prejudiced at his trial by any non-compliance with this rule, the court shall take steps and, if necessary, adjourn to avoid the accused being so prejudiced.
19. It appears that on April 30, 1984 Santries were posted at the Petitioner''s residence which the Petitioner claims as virtually house-arrest. The immediate alleged cause for posting the Santries was that a car battery of the vehicle (Army''s) was found from the Petitioner''s residence.. It appears that Unit Court of Inquiry was ordered to be set up on April-3.0, 1984. The convening order which is to be found at Annex. I to the additional affidavit of Major V.B. Patil filed on behalf of the Respondents discloses that a Court of Inquiry composed of Major Premendra Singh as a Presiding Officer and Capt.R.B. Bapat and Capt. L.K. Porwal as members was convened in 152 A.D. Regiment on a date and time to'' be fixed by the Presiding Officer to investigate the circumstances under which battery 12 volts 60 AH regd. No. MA 5606 (MEC) belonging to Truck T ton BA No. 74C6999Y of 152 AD Regt was missing from the said vehicle and the proceedings duly completed in all respects were to be submitted to the commanding officer by May 1, 198,4. It appears further that mere summary of evidence was ordered on May 1, 1984 by the Commanding Officer Ltd. Col.-P.R. Bajaj in respect of the alleged misconduct. The Commanding Officer Ltd. Col. Bajaj directed the summary of evidence to be recorded after considering and agreeing -with the-opinion of the Unit Court of Inquiry. Ltd. Col. Bajaj has also in his further affidavit-in-reply dt. March 8, 1986, clearly admitted that he received the report of the Unit Court of Inquiry on May 1, 1984 and -based on the opinion of the Court he directed summary of evidence to. be recorded. According to the Petitioner, a Staff Court of Inquiry was ordered by the officer commanding the formation, that is 769 (Independent) Air defence Brigade of the Petitioner on May 31, 1984 and the said inquiry was completed on July 22, 1984. The GOC-in-C Southern Command had agreed with the opinion as recommended by the Staff Court of Inquiry and directed finalisation of summary of evidence by his order of November 25, 1984. It should be noted at this stage since there is some dispute about what transpired between the decision of the Lt. Col. Bajaj on May 1, 1984 directing summary of evidence to be recorded and the decision of . the GOC-in-C, Southern Command for finalisation of the summary of evidence on November 25, 1984 because it appears that another court of" Inquiry was set up in respect of the investigation of the circumstances under which battery 12 volt 60 AH regd. No. MA 5606 (MEC) was found in the premises of the Appellant-Petitioner. However, there is one fact which is to be noted that on September 29, 1.984 Brigade Commander one Ram Pratap who was commanding 769 (Independent) Air Defence Brigade while agreeing with the opinion of the Court based on the evidence produced before the Court established, as stated above, directed that the disciplinary action be initiated against the Appellant-Petitioner for the act, inter; alia, having been found to be in improper possession of the empty battery 12 volt 60 AH Regd. No. MA .5606 (MEC) the government property and using the said battery on his car from December 1983 to first week of April 1984 and April 24/25, 1984 to May 1, 1984. He also recommended administrative action against Lt. Col. Bajal for certain'' lapses. It further appears that this .was placed before GOC-in-C, Southern Command who by his direction of Nov. 2.5, T984 having agreed With the opinion and recommendation, of Brigade Commander of Air Defence 739 directed that action against Li. Col. Bajai be kept pending till finalisation of .the summary of evidence against the Appellant-Petitioner. The difference in version between the Petitioner on one hand and the Respondents on the other is relating to what transpired between the . two dates, that is May 1, 1984 and November 25, 1984. According to the Petitioner, a Staff Court of Inquiry was appointed which recorded evidence and submitted to the Brigadier who in his turn submitted it to GOC-in-C, Southern Command. On the other hand, the version advanced on behalf of the Respondents is that another Court, of Inquiry was set up since the Appellant-Petitioner was dissatisfied with the conduct of the proceedings by the first Court of Inquiry and made-certain allegations against the Commanding Officer Bajaj and therefore another Court of Inquiry was established in between, which it submitted its opinion to the Brigadier since that Court of Inquiry was also required to inquire into the lapses of Commanding Officer Bajaj and the Brigade Commander, directed disciplinary action against the, Petitioner and recommended for administrative action against Ltd. Col. Bajaj. That is how the entire matter was placed before the GOC-in-C, Southern Command who passed the order of November 25, 1984 as stated above. For the purpose of this petition-this difference in versions is not a matter of much consequence. The broad question with which we are faced is as to when under the Rules the disciplinary case could be said to have commenced. It is no doubt true that the purpose of setting up of the Court of Inquiry is to collect evidence and to report with regard to any matter which may be referred to the Court (See Rule 177). The procedure before such Court is to be guided by the written instructions of the authorities, who assembled the Court, and the instructions should be full and specific and would state the general character of the information required, and whether the report is required or .not. The Court of Inquiry has to give previous notice or the-time, and place of the meeting of the Court of Inquiry, and of all adjournments of the Court to all persons concerned in the inquiry except a prisoner of war who is still absent, and the Court may put such questions to a witness as it thinks desirable for testing the truth or accuracy of-any. evidence he has given and otherwise for eliciting the truth. The whole of the proceedings of a Court of Inquiry would be forwarded by the Presiding Officer to the Officer who assembled the Court. The Court can be assembled by the officer in command of any body of troops (see Rule 179). Rule 180 is very important for the purpose of this petition which throws a deal of light on the immediate question with which we are concerned. Rule 180 deals with procedure when character of a person subject to the Act is involved. It reads as under:
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. The presiding officer of the court shall take such steps as may be necessary to en-sure-that any such person so affected and not previously notified receives notice of and fully understands his rights under this rule.
20. The rule obliges that whenever'' an inquiry affects the character of a person subject to the Act full opportunity is to be afforded to such person of remaining present throughout the inquiry, making any statement, Giving any evidence he may wish to give and cross-examining any witnesses whose evidence is relevant for the purpose for which the Court is established, and for producing any defence witnesses, if he so desires.. The Court of Inquiry is under an obligation to administer an oath or affirmation, inter alia, -when so directed by the Officer assembling the Court (see Rule 181).
Rule 22 applies to persons other than officers, it is no doubt true that Rule 22(1) does not in terms obliges that the evidence, should be recorded in writing. The only obligation is that it should be heard in presence of the accused who will have an opportunity, to cross-examine. Rule 22(2) empowers the Commanding Officer to dismiss a charge if, in his opinion, the evidence does not warrant it, or if the officer is satisfied that the charge ought not to be proceeded with. In case the Commanding Officer feels that the charge should be proceeded with, he can dispose of the case summarily u/s 80 or refer the case to super for military authority or adjourn the case for the purpose of having the evidence reduced into writing or direct for a summary Court Martial in case of the accused below the rank of Warrant Officer. Rule 22 does not apply in the present case and, therefore, we need not dilate any further about the discussion which has taken place as to whether disciplinary case in case of a person other than officers commences at'' the stage when the proceedings are taken under Rule 22, Rule 23 is a machinery provision which prescribes the procedure for recording of evidence. Rule 24 empowers Commanding Officer when the evidence is recorded in writing under Rule 23 to remand the accused for trial by. Court Martial or refer the case to proper military authority or rehear the case himself and then dismiss the charge or dispose it of surrunarily. It is Rule 25 which is material for our purposes. Rule 25 has been set out above. The gist of the rule is that an officer charged with an offence under the Act can insist for recording the evidence in writing in his presence in the same manner as nearly as the circumstances admit as is required by Rule 22 and Rule 23 in case of other persons subject to the Act. In other words, Rules 22 and 23 will a ply to persons other than officers. A mere look at Rule 22(3)(c) and Rule 23(1) makes the position clear. Rule 23(3)(c) permits the Commanding Officer at the conclusion of the hearing of a charge to adjourn the case, for the purposes of having evidence reduced, into writing, and the opening part of Rule 23(1) says that where the case is adjourned for purposes of the evidence having-been reduced into, writing, the procedure followed therein should be adopted. This procedure of adjoining the ease for recording of evidence and recording the evidence as prescribed in Rule 23-would, not be available in case-of-officers. This view has found favour with one of us (G.T. Nanavati J-.).-in Virancaraj J. Kharod v. Union of India 1985 GLH 704. Therefore, when "a charge of an offence against an officer is to be investigated, the procedure presented in Rule 25 is to be followed, and if the charge affects the character of such officer, the procedure prescribed in Rule 180 has to be adopted. The effect of Rule 25 is that if an officer charged with an offence insists for recording of evidence in writing, the procedure mentioned in Rules 22 and 23, as far as possible, has to- be .followed. But if it affects his character, the additional procedural safeguards are provided in Rule 180. The conjoint reading of Rules 22, 23, 25 and,180 appears to us to be that if a person other than an officer is charged and the Commanding Officer feels that the circumstances are clear enough, he may proceed with the charge and after following the procedure prescribed in Rules 22(1) and 23, if necessary, dispose of the matter as provided in Rule 24. ''But if the person charged is an officer the procedure though as prescribed in Rules 22 and 23 may be adopted-as far as. possible, however, if. it affects his character, the procedure. prescribed in Rule 180 has to be followed. If therefore, a Court of Inquiry is established and the accusation against the, officer affects his character, the conclusion which is inescapable on reading of these relevant Rule 25 read with Rule 180, is that the disciplinary case is initiated at that stage. If it is in. the nature of, merely preliminary investigation, it would be difficult to conceive of a "provision of a mandatory character requiring the Inquiry Officer or the Court of Inquiry to record the evidence in writing in the presence of the officer, permit him to cross-examine and allow him to lead defence evidence. The submission, therefore, urged on; behalf of the Respondents that till a-specific charge is framed against an officer, it cannot be said that the disciplinary case is commenced does not command to us or the reasons which we have stated above. It is no doubt true that even in a case of an officer as the! of other person, the charge must come before the Commanding Officer so that he may determine whether it'' could be dismissed or the. case'' be. referred to a suprior authority for summary disposal u/s 63 or Section 84 or for trial by Court-Martial, It is also true that even where an officer, is charged, the Commanding Officer can dispense with a formal and a d.;.-ailed investigation unless the officer charged demands one. But if the accusation against the officer affects his character, the procedure which is to be adopted is a full-fledged procedure as prescribed in r: 180.,It .is on this consideration that we are inclined to take the view as we do that the disciplinary case must be deemed to have commenced immediately when the Court of inquiry was established for purposes of investigating the accusation against the officer involving his character. In the present case, we have no doubt on facts that the accusation against the Petitioner was one affecting his character. The circumstances which lend support to our view are speaking circumstances. The first circumstances is that a complaint was lodged at the concerned police, station in Vadodra against the present Petitioner for having committed the offence of theft in respect of battery No. 12 volts 60 AH reg. No. MA 5606 (MEC) which was in truck bearing 1 ton BA No. 74C6999Y. The Petitioner was suspended on June,29, 1984 and in the suspension order it has been, .inter alia, stated that as already intimated to him his character, conduct as an officer and gentleman have been impugned and the investigation was in progress, and that besides his other activities are potentially arduous to both security and morale of the unit. The convening order of May 16, 1984 clearly requires the procedure prescribed in Rule 180 to be followed. No doubt the first Court of Inquiry which has been established on April 30, 1984 merely requires investigation of circumstances of the loss of battery MA 5606 (MEC). But the convening order of May 16, 1984 clearly requires the investigation into the alleged acts of misconduct against the Petitioner including for the loss of battery of the aforesaid truck. It is in this background of the rules and facts that we have observed that the difference in ineversions as to what transpired between May 1, 1 984 and November 25, 1934 is nor of much consequence since, the establishment of the Court of inquiry for the lapse alleged against the Petitioner, including for the loss of battery in the background, clearly indicates that the procedure of Rule 180 is to be followed, any if that is so, there cannot be any escape from the conclusion that the disciplinary case is commenced. The view which we have taken, is supported by the Special Army Order issued by the Chief of Army Staff dated November 15, 1983, Para. 25 of the said order reads as under:
An officer will be considered to be subject to a disciplinary Case with effect from the earlier of the following two dates:
(a) The date on which a Court of Inquiry is ordered involving his character or military reputation; or
(b) the date on which formal cognizance of an offence is taken against him.
Since, the first contingency prescribed in para. 25 has occurred, the Petitioner would be considered to be subject to disciplinary case. An attempt was made on behalf of the Respondents to persuade us that this para is for a limited purpose of writing confidential reports of officers involved in disciplinary cases. We are not basing our view on this para. 25 but the view which we have taken independently on the construction of the rules and facts gets support from para. 25.
The next proposition relied on by the Petitioner is Prithi Pal Singh Bedi v. Union of India and Ors. (Supra). The learned Counsel relied on the observations made in para. 41 & 45 of this judgment which are quoted hereinbelow:
Mr. Sanghi next contended that is obligatory upon the authorities concerned to appoint, a Court of Inquiry whenever an inquiry affects the character or military reputation of a person subject to the Act and in such an inquiry full opportunity must be afforded to such person of being present throughout the inquiry and of making any statement or giving any evidence he may wish to make or give and of cross-examining any -witness whose evidence in his opinion affects the character a military reputation and producing any witness in defence of his character or military reputation. There are some provisions in the Act which (provide) setting up of a Court of Inquiry in the circumstances and for the purpose set out in the provisions. Section 89 permits collective fines to be imposed in the circumstances therein mentioned but the same can be done after obtaining the report of a Court of Inquiry. In other words,, where it is considered necessary and permissible under the Act to impose a collective fence it can be done after obtaining the report of a Court of inquiry which will presage an appointment of such a Court of Inquiry. Similarly, Section 106 comprehends the appointment of a Court of Inquiry when any person subject to the Act has been absent from his duty without due authority for a period of 30 days, an such Court is required to inquire in respect of the absence of the person and the deficiency if any in the property of the Government entrusted to his care, or in any arms ammunition, equipment, instruments, clothing or necessaries, and if satisfied of the fact of such absence without due authority or other sufficient cause, the Court shall declare such absence and the period thereof, and the said deficiency, if any, and the commanding officer of the corps or department to which the person belongs shall enter in the Court-martial book of the corps or department a record of the declaration. A reference to these two sections would show that where action can be taken after obtaining report of the Court of Inquiry it has been so specified. Now, when an offence is committed and a trial by a general court martial is to be held, there is no provision which requires that a; Court of inquiry should be set up before the trial is directed. Mr. Sanghi, ''however: urged that on a correct interpretation of Rule 180, it would appear that whenever the character of a person subject to the Act is involved, in any inquiry, a Court of inquiry must-be set up. Rule-180 does not bear cut the sub-mission, ii sets up a stage in the procedure prescribed for the Courts of inquiry. Rule 180 cannot be construed to mean that whenever or wherever in any inquiry in respect of any person subject to the Act his character or military reputation is likely to be affected setting up of a Court of inquiry is a sine qua non. Rule 180 merely makes it obligatory that whenever a Court of inquiry is set up and in the course of inquiry by the-Court of inquiry character or military reputation of a person is like to be affected than such a person must be given full opportunity to participate in the proceedings of Court of inquiry. Court in inquiry by its very nature is likely to examine certain issues generally concerned a situation or persons. Where collective fince is desired to be imposed, a Court of inquiry may generally examine the shortfall to ascertain how many persons are responsible; In the course of such an inquiry 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 inquiry was directed against the person whose character or military reputation is likely to be affected by the proceedings of the Court of inquiry 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. But it cannot be used to say that whenever in any other inquiry or an inquiry before a commanding officer under Rule 22 or a covening officer under Rule 37 or the trial by a court-martial, character or military reputation of the officer concerned is likely to be affected a prior inquiry by the Court of inquiry is a sine qua non: Therefore, the contention being without merits must be negatived.
Reluctance of the apex court more concerned with civil law to interfere with the internal affairs of the Army is likely to create a distorted picture in the minds of the military personnel that persons subject to Army Act are citizens of India if is one of the cardinal features of our Constitution that a person Dy enlisting in or entering armed forces does not cease to be a citizen so as to wholly deprive, him of his rights under the Constitution. More so when, this Court held in Sunil Batra Vs. Delhi Administration and Others etc., that even prisoners deprived of personal, liberty not wholly denuded of their fundamental rights. In the larger interest of national security and military discipline Parliament in its wisdom may restrict, on abrogate such rights in their application to the Armed Forces but this process should not be carried so far as to create a class of citizens not entitled to the benefits of the liberal spirit of the Constitution. Persons subject to Army Act are citizens of this ancient land having a feeling of belonging to the civilised community governed by the liberty oriented constitution. Personal liberty makes for the worth of human being and is a cherished and prized right. Deprivation thereof must be preceded by an inquiry ensuring fair, just and reasonable procedure and trial by a judge of unquestioned integrity and wholly unbiased. A marked difference in the procedure for trial of an offence by the Criminal Court and the court-martial is apt to generate dissatisfaction arising out of this differential treatment. Even though it is pointed out that the procedure of trial by court-martial is almost nalogous to the procedure of trial in the ordinary Criminal courts, we must recall what Justice William O''Douglas obsetved that civil trial is held in an atmosphere conducive to the protection of individual rights while a military trial is marked by the age-old manifest destiny of retributive justice. Very expression ''court-martial'' generally strikes terror in the- heart of the person to be tried by it. And somehow or the other the trial is looked upon with disfavour ''Tough Test for Military Justice'', Time Magazine, pp.42 and 43.. In Reid v. Covert, Justice Black observed at p. 1174 as under:
Court-martial are typically, ad hoc-bodies appointed by a military officer from among, his subordinates. They have always been subject to varying degrees of ''command influence''. In essence, these tribunals are simply executive tribunals whose personnel* are in the executive chain of command. Frequently, the members of the court-martial must look to the appointing officer for promotions, advantageous assignments and efficiency ratings in short for their future progress in the service. Conceding to military personnel that high degree of honesty and. sense of justice which nearly all of them undoubtedly have, the members of a court-martial, in the nature of things, do not and cannot have the independence of jurors drawn from the general public or of civilian judges.
Absence of even one appeal with power to review evidence, legal formulation, conclusion and adequacy, or otherwise of punishment is a glaring lacuna in a country where a counter part civilian convict can-prefer appeal after appeal to hierarchy of Courts. Submission that full review of finding and/or sentence in confirmation proceeding u/s 153 is provided for is poor solace, A hierarchy of Courts with appellate powers each having its own power of judicial review has of course been found to be counter productive but the converse is equally distressing in that there is no even a single judicial review. With the expanding horizons of fair play in action even in administrative- decision, the universal declaration of human rights and retributive justice being relegated to the uncivilised days, a time has come when a step is required to be taken for at least one review and it must truly be a judicial review as and by way of appeal to a body composed of non-military personnel or civil personnel. Army is always on alert for repelling external aggression and suppressing internal disorder so that the peace loving-citizens enjoy a social order bade on rule of law; the'' same cannot be denied to the protector is of this order. A ad it must be realised that an appeal from Caser to cease''s wife?confirmation proceeding u/s 153? has been condemned as injudicious and merely a lip" sympathy to form. The core question is whether at (east there should be one appeal to a body composed of non-military personnel and who would enjoy the right of judicial review both on law and facts as also determine the adequacy of punishment being commensurate with the Gravity of the offence charged. Judicial approach by people well versed in objective analysis of evidence trained by experience to look at facts and law objectively, fair play and justice cannot always be sacrificed at the altar of military discipline. Unjust decision WOULD be subversive of discipline. There must be a judicious admixture of both. And nothing revolutionary is being suggested''. Our Army Act was more or less modelled on the U.K. Act. Three decades of its working with winds of change blowing, over the world necessitates a second look, so as to bring it in conformity with liberty oriented constitution and rule of law .which is the uniting and integrating force in our political society. Even U.K. has taken a step of far-reaching importance for rehabilitating the confidence of the Royal Forces in respect of judicial review of decisions of court-martial. U.K. had enacted a Court-martial (Appeals) Act, of 1951 and it has eer extensively amended in Court-martial (Appeals) Act, 1965, Merely providing an appeal by itself may not be very re-assuring but the personnel Of the appellate Court must inspire confidence. The Court-martial Appellate Court consists of the ex-officio and ordinary judges of the Court of Appeal,, such of the judges of the Queen''s Bench Division as the Lord Chief Justice may nominate after consultation with the Master of the Rolls, such of the Lords, Commissioners, of Justiciary in Scotland as the Lord Chief Justice generally may nominate, such Judges of the Supreme Court of the Northern Ireland as the Lord Chief Justice of Northern Ireland may nominate and such of the -persons of legal experience as the Lord Chancellor may appoint. The court-martial appellate Court has power to determine any question necessary to be determined in order to do justice in the case before the Court and may authorise a new. trial where the conviction, is quashed in the light of fresh evidence. The Court also-has power inter alia, to order production of .documents or exhibits connected with the proceedings, order the attendance of witnesses, receive'' evidence, obtain reports and the like from the members of the court-martial or the person who acted ad Judge-Advocate, order a reference of any question to a Special Commissioner for Inquiry and appoint a person with special expert knowledge to act as an assessor. (Halsbury''s Laws of England, 4th Edn. parags. 954-55, pp. 458-459). Frankly the appellate Court has power of full judicial review unhampered by any procedural clap trap.
The learned Counsel for the Petitioner also relied on the decision of the Hon''ble Apex Court reported in 1993(4) SCC p. 10 ( Rattan Lal Sharma Vs. Managing Committee, Dr. Hari Ram (Co-education) Higher Secondary School and others, .
The learned Counsel for the Petitioner laid emphasis on the observations made in para. 11 & 12 which are quoted hereinbelow:
In the instant case, charge No. 12 states that a. particular sum on account of amalgamated fund for the month of December was given to the Appellant by Shri Maru Ram who was teacher in charge of the amalgamated fund. In the-inquiry committee comprising three members, the said Shri Maru Ram was taken as one of the members and he himself deposed to establish the said charge No. 12, Shri Maru Ram was interested in establishing the said charge. From the charge itself, it is apparent that he had a pre-disposition to decide against the Appellant. It is really unfortunate that although the Appellant raised an objection before the inquiry committee by clearly indicating that the said Shri Maru Ram was inimical towards him and he should not be a member in the inquiry committee, such objection was rejected on a very fjlrnsy ground, namely, that since the said Shri Mary Ram was one of the members of the Managing Committee and was the representative of the teachers in the Managing Committee it was necessary to include him in the inquiry committee. It is quite apparent that the inquiry committee could have been constituted with other mernoers of the Managing Committee and the rules of the inquiry are not such, that-Shri Maru Ram being teachers'' representative was required to be included in the said inquiry committee so that the doctrine of necessity may be attracted.-If a person has a pecuniary interest, such interest, even if very small, disqualifies such person. For appreciating a case of personal bias or bias to the subject matter the test is whether there was a real likelihood of a bias even though such bias has not in fact taken place. De Smith in his Judicial Review of Administrative Action, (1980) at page 262 has observed that a real likelihood of bias means at least substantial possibility of bias. In R. v. Sunderland Justices it has been held that the court will have to judge the matter as a reasonable man would judge of any matter in the conduct of his own business. In R. v. Sussex Justices it has been indicated that answer to the question whether there was a real likelihood of bias depenis not upon what actually was done but upon what might appear to be done. In Halsbury''s Laws of England, 4th Edn., vol. 2 para. 551, it has been indicated that the test of bias is whether a reasonable intelligent man, fully-appraised of all the circumstances, would feel a serious .apprehension of bias. The same principle has also been accepted by this Court in Mandak Lal v. Dr. Prem Chand. This Court has laid down that the test is not whether in fact, a bias has affected the judgment ; the test always is an must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal, might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done.
In the facts of the case, there was not only a reasonable apprehension in the mind of the .Appellant about the bias of one of. the members of the inquiry committee, namely, the said Shri Maru Ram but such apprehension became real when the said Shri Maru Ram appeared as a witness against the Appellant to prove the said charge and. thereafter proceeded with the inquiry proceeding as a member of the. inquiry committee to uphold the correctness of his deposition as a judge. The, learned Single Judge considering the aforesaid facts came to the finding that the participation of Shri Maru Ram as a member of the inquiry committee has vitiated the inquiry proceeding because of flagrant violation of the principles of natural justice. Unfortunately, the Division Bench set aside such judgment of the learned Single Judge and dismissed the writ petition improperly, to say the least, on a technical ground that plea of bias of Shri Maru Ranr and his acting as a judge of his own case by being a member of the inquiry committee was not specifically taken before the Deputy Commissioner and also before the appellate authority, namely, the Commissioner by the Appellant and as such the said plea should not be allowed to be raised in writ proceeding, more so, when the case of prejudice on account of bias could be waived by the person suffering such prejudice. Generally, a point not raised before the tribunal or administrative authorities may not be allowed to be raised for the first time in the writ proceeding, more so when the interference in the writ jurisdiction which is equitable and discretionary is not of course a must as indicated by this Court in A.M. Allison v. State of Assam particularly. when the plea sought to be raised for-the first time in a writ proceeding requires investigation of facts. But if the plea though not specifically raised before the subordinate tribunals or the administrative and quasi-judicial bodies, is raised before the High Court in the writ proceeding for the first time and the plea goes to-the root of the question and is based on admitted and uncontroverted facts and does not require any further investigation into'' a question of fact, the High Court is not only justified in entertaining the plea but in the anxiety to do justice which is the paramount consideration of the court.-it. is only desirable that a litigant should not be shut out from raising such plea which goes to the root of the lis involved. The aforesaid view has been taken by this Court in a number of decisions and a reference may be made to the decisions in A.St. Arunachalam Pillai v. Southern Roadways Ltd. and Cantonment Board, Ambala v. Pyarelal. In our view, the learned Single Judge has very rightly held that the Deputy Commissioner was under an obligation to consider the correctness and propriety of the decision of the Managing Committee based on the report of the inquiry committee which since made available to him, showed on the face of it that Shri Maru Ram was including and retained in the inquiry committee ''despite objection of the Appellant and the said Shri Maru Ram became a witness against the Appellant to prove one of the charges. It is really unfortunate .that the Division Bench set aside the decision of the learned Single Bench by taking recourse to technicalities that the plea of bias on account of inclusion of Shri Maru Ram in the inquiry committee and his giving evidence on behalf of the department had not been specifically taken by the Appellant before the Deputy Commissioner and the Commissioner. The Division Bench has also proceeded on the footing that as evien a part from charge No. 12, the Deputy Commissioner Has also considered the other charges on consideration of which along with charge No. 12, the proposed order of dismissal was made, no prejudice has been caused to the Appellant. Such view, to say the least, cannot be accepted in trial facts and circumstances of the case. The learned Single Judge, in our view, has rightly held that the bias of Shri Maru Ram, one of the members of the inquiry committee had percolated throughout the inquiry proceeding thereby vitiating the principles of natural justice and the findings made by the inquiry committee was the product of a biased and prejudiced mind. The illegality committed in conducting the departmental proceedings has left an indelible scamp of infirmity on the decision of the Managing Committee since affirmed by the Deputy Commissioner and the Commissioner. The observation of S.R. Das C.J. in Mohd. Nooh case may be referred to in this connection:
Where the error, irregularity or illegality touching jurisdiction or procedure committed by an- inferior court or tribunal of'' first instance is "so patent and ''loudly obtrusive . that it leaves on its decision, aft indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rule of natural justice and all accepted rules of procedure and which offends the superior court''s sense of fair play, the superior court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the court or tribunal of first instance, even if an appeal to another inferior court'' or tribunal was available and. recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned.
The learned Counsel then placed reliance on 1987 (4) SCC p. 611 (Ranjit Thakur v. Union of India and Ors.).
The learned Counsel laid stress on the observations made in paras. 11, 13, 16, 17 & 19 of this judgment which are quoted hereinbelow:
The procedural safeguards contemplated in the Act must be considered in the context of an corresponding to the plenitude of the summary jurisdiction of the court-martial and the severity of the consequences that visit the person subject to that jurisdiction. The procedural safeguards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise and correspondingly, more liberal the construction of the procedure1 safe guards envisaged by. the statute. The of quoted words of Frankfurter J. in Vitarelli v. Seaion are again worth recalling:
... if dismissal from employment is based on a defined procedure, even though-generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. ... This judicially evolved rule of administrative law is now firmly established and, if I may add rightly so. Hs that takes the procedural. sword shall perish with that sword.
We are afraid, the non-compliance of the mandate of Section 130 is an infirmity which goes to the root of the jurisdiction and without more, vitiates the. proceedings. Indeed it has been so held by this Court in Prithi Pal Singh v. Union of India where Desai, J: referring to the purpose of Section 130 observed: (SCC pp. 167-68, SCC (Cri.) p.667, p. 32).
Whenever an objection is taken it has to be recorded. In order to ensure that anyone objected to does not participate in disposing of the objection. ... This is a mandatory requirement because the officer objected to cannot participate in the decision disposing of the objection. The provision conferring a right on the accused to object a member of the court-martial sitting as a member and participating in the trial ensures that a charge of bias can be made and investigated against individual members composing the court-martial. This is pre-eminently a rational provision which goes a long way to ensure a fair trial.
It is the essence of a judgment that it is made after due observance of the judicial process ; that the court or tribunal passing it observes, at least the minimal requirements of natural justice ; is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial ''coram non-judice''. (See Vassiliades v. Vassiliades).
As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the judge is not to look at his own mind and ask himself, however, honestly, ''Am I biased ?'' ; but to look at the mind of the party before him. . . .
In Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, Lord Deaning M.R. observed:
... in considering whether there was a. real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It. does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, "...in the circumstances, there was a real likelihood of bias on his part, then he should not sit.
On the other hand the learned Counsel for the Respondents relied on Regulation 518 of the Army Regulations which is quoted hereinbelow:
Courts of Inquiry And Station Boards. The convening officer is responsible of a court of inquiry or station board is composed of members whose experience and training best fit them to deal with the matter at-issue. The personal detailed to constitute the court of Inquiry or Station Board should have no personal interest-or involvement/direct or indirect, in the subject matter of the investigation. A court of inquiry may consist of officers only, or of one or more officers together with one or more JCOs. Was, NC.Os as may be desirable.
When the character or military reputation of an officer is likely to be a material issue, the presiding officer of the court of inquiry wherever possible, will be senior in rank and other members at least equivalent in rank to that officer. When investigating damages to service equipment, the evidence of a technical officer who is experienced and fully conversant with the technical details of the equipment should be recorded. A station board may consist of any person selected by the convening officer. The members of a mixed civil and military board will take precedence in accordance with any general or special, instructions issued by the Central Government. The stationery and forms required by a. board, will be supplied by the. unit which applies for it.
The learned Counsel for the Respondents now sought to distinguish the citations placed by the learned Counsel for the Petitioner.
The learned Counsel for the Respondents submitted that Major Chand Kumar''s case deals primarily in relation to Regulation 452(2) which has put a restraint on power of transfer during pendency of disciplinary proceeding.
The learned Counsel submitted that in the facts of this case Hon''ble Court held inter alia ''the problem is that when the disciplinary case is said to have commenced if it commences with the setting up of the Court of inquiry exercising its power under the Rule 25 read with Rules 22 and 23 the disciplinary case is deemed to have been commenced and if that is so, which in our opinion is clear enough on construction of the rules, the condition precedent is Regulation 452(a) is satisfied.
The learned .counsel distinguished this judgment by submitting that for the purpose of Regulation 452(a) such inquiry proceeding should be deemed to and or to be treated as disciplinary proceeding though in fact it is not so.
The learned Counsel for the Respondents then sought to'' distinguish the judgment referred to by the learned Counsel for the Petitioner reported in 1994 (A.N.W.R.), p. 347 (D.B.) (Hyderabad High Court) (Secretary, Ministry of Defence, New Delhi and Ors. v. Maj. A. Hussain and Ors.):
According to the learned Counsel for the Respondents this case has merely held that a delinquent Army Officer is entitled to the evidence (statement of witnesses and documents) recorded in a Court of inquiry and charge has been framed and he is exercising the option provided for under Rule 23 of Army Rules 1954. This case clearly proves that the'' right to have the evidence recorded in s Court of inquiry with arise under Ch. (v) which deals with investigation of charges and trial by court- martial wherein Rule 23 as a part thereon.
Now in respect of Rattan Lai Sharma''s case the learned Counsel for the Respondents submitted that the allegation of bias is merely an allegation and it could not be proved and this case is of no relevance at this inquiry stage as held by the Hon''ble Apex Court in Major G.S. Sodhi Vs. Union of India (UOI), ? Major G.S. Sodhi Vs. Union of India (UOI), case.
The learned Counsel then submitted that the decision cited by the learned Counsel for the Petitioner insofar as the Ranjit Thakur''s case is concerned, it is of no relevance also inasmuch as this case relates to quashing of a court-martial proceeding and the court-martial stage has not yet reached in the case of the Petitioner.
Now. the learned Counsel emphasised on the submission that the reply of the Respondents is that the proceeding initiated by the order dated January 30, 2003 is merely a fact finding inquiry proceeding under Rule 177 to collect evidence and to report on the same.
The learned Counsel further submitted that the copy of the inquiry order dated January 30, 2003 has been handed over, to the Court at the time of hearing.
The learned Counsel now submitted that no charge has been framed against the writ Petitioner nor accusation of- any guilt for an offence under the Act has been alleged against him and in that circumstances the provisions of ch. (V) of the Rules have no application to the writ Petitioner and he is governed, by provisions of Ch. (VI) of the Rules and his right is enshrined in Rule 18. This Rule will be clearned from an analysis of ch. (V) and ch. (VI) of the Army Rules, 1954.
I respectfully agree with the submissions, of the learned Counsel for the Respondents in this regard.
Now if we look into the different rules of General and District court-martial, Summary court-martial, witness and evidence, Summary General court-martial, execution or sentence in Court of inquiry in'' this regard and the provisions of Rules embodied in the statute in this regard it is found that it deals with setting up of Court of inquiry to collect evidence and to report that in matter which may be referred as has been submitted by the learned Counsel for the Respondents.
I also respectfully agree to the submissions of the learned Counsel for the Respondents in this regard or in this context. However, on consideration of the legal propositions referred to by the learned Counsel for both the sides it appears to me that this is not a stage When the writ petition is to be moved. In my opinion, it is also a fact that be it Court of inquiry, be it disciplinary proceeding principles of natural justice are to be followed and all opportunities here also are to be given to the Petitioner during the course of inquiry as observed earlier, either Court of inquiry or disciplinary proceeding reasonable opportunity is to be given to the incumbent to defend himself. In this case, however, there is no denial that the Petitioner cross-examined six witnesses. In my opinion, all the relevant papers and documents which are to be relied on during the inquiry or which are to be relied on in making attempt to prove the guilt of the Petitioner, the copies of documents need be supplied to the Petitioner.
In such circumstances I am of opinion that this writ petition can be disposed of and-I dispose it of by directing the Respondents to supply all the relevant documents which if have not been supplied as yet and if the Petitioner wants to produce any other evidence or wants to cross-examine any further on the basis of the said documents supplied to him or any document whatsoever, the said chance should be given to him and the authority may proceed against the Petitioner on giving such opportunities in addition to the opportunities given, if any.
The writ petition is thus disposed of with the above direction to the Respondent authorities. All interim orders stand vacated.
There will be no order as to costs.
Urgent xerox certified copy, if applied for be given to the parties expeditiously.