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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

    CIVIL APPEAL NO. 6886 OF 2014

JASWANT SINGH                                   Appellant(s)

                               VERSUS

UNION OF INDIA & ANR.   Respondent(s)

JUDGMENT

   Dr. Dhananjaya Y. Chandrachud, J.

The appellant has challenged the decision of the Armed

Forces Tribunal, Regional Bench at Lucknow dated 18 December,

2012  in  O.A.  No.  48/2010,  by  which  his  challenge  to  the

punishment of dismissal and six months’ rigorous imprisonment

imposed by a Summary Court Martial has been rejected.  The

punishment of imprisonment has already been undergone.

The appellant was enrolled as a Sepoy on 1 January, 2003

in the Indian Army. A Summary Court Martial was convened on two

charges; the first being of an assault on a superior officer

while the second was the use of abusive language against a

Subedar who had found the appellant to be not properly dressed

for the parade.

The Summary Court Martial acquitted the appellant of the

second charge, but he was found guilty of the first charge of

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misconduct.  He  was  awarded  a  punishment  of  dismissal  from

service and six months rigorous imprisonment in civil jail.

Aggrieved  by  the  punishment,  the  appellant  moved  the

Armed  Forces  Tribunal,  which  dismissed  the  Original

Application.

The  submission  which  has  been  urged  on  behalf  of  the

appellant is that there was a violation of the principles of

natural justice in conducting the Summary Court Martial.  The

submission is based on the provisions of Rule 129 of the Army

Rules, 1954. The appellant sought the assistance of a civil

advocate which was denied.

The appellant submits that in a Summary Court Martial,

the Sepoy was pitted against the Commanding Officer.  He should

have been given the benefit of legal advise which was denied to

him on the erroneous basis that it was only for an offence

involving a possible sentence of death that such assistance

could be allowed.

Rule 129 of the Army Rules, 1954 provides thus;

“Friend of  accused –  In any  summary court- martial, an accused person may have a person to  assist  him  during  the  trial,  whether  a legal advisor or any other person.   A person so assisting him may advise him on all points and  suggest  the  questions  to  be  put  to witnesses,  but  shall  not  examine  or  cross- examine witnesses or address the court.”

The above Rule clearly indicates that in a Summary Court

Martial, the accused may have a person to assist him during the

trial, whether a legal adviser or any other person.   The

expression ‘may’ must be read to mean that the person who is

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proceeded against has the option on whether or not to engage a

legal  advisor  or  any  other  person.   It  represents  an

entitlement to be represented.

By his letter dated 7.7.2009, the appellant requested the

Commanding Officer to permit him to hire a civil advocate.

On 8th July, 2009, this request was turned down on the

ground that under Regulation 479 of the Army Regulations, a

civil advocate is permissible to only those persons who are

subject  to  trial  for  an  offence  which  may  result  in  the

imposition of the death penalty.

Regulation 479 deals with a situation where a person who

is subject to the Army Act is to be tried for a court martial

for an offence punishable with death.   On the contrary, Rule

129  of  the  Army  Rules  which  has  been  extracted  above

specifically  deals  with  representation  in  a  Summary  Court

Martial.

In  view  of  the  specific  provision  of  Rule  129,  the

Commanding  Officer  was  evidently  in  error  in  declining  the

assistance of a lawyer on the ground that legal assitance could

be admissible only where the offence was punishable with death.

Ms. Pinky Anand, learned ASG appearing for the Union of

India submits that no prejudice was caused to the appellant and

hence,  the  Court  may  not  entertain  the  appeal.  In  this

connection, reliance was placed on the decision of this Court

in Major G.S. Sodhi vs. Union of India1.

The judgment in Major Sodhi’s case (supra) dealt with a

1. (1991) 2 SCC 382

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case of a General Court Martial. The circumstances of the case

have been adverted to in paragraph 20 of the judgment. This

Court noted that in the letter of the accused, there was a

reference  to  Rule  95  which  dealt  only  with  a  ‘defending

officer’ and ‘friend of the accused’ to be provided for on

request.

It was in this background that this Court observed as

follows:-

“20.     The  next  submission  is  that  the proper defence as requested by the petitioner has not been provided for.  In this regard it is  submitted  that  on  December  8,  1988  the petitioner  made  a  request  for  a  defence counsel  and  on  December  18,  1988  he  gave consent  to  dispense  with  the  defending officer.   However  on May  8, 1989  Lt. Col. S.K.  Maini  asked  the  petitioner  for  three names  of  defending  officers  in  order  of preference. On May 9, 1989 he gave the list of  three  names  but  according  to  the petitioner  on  May  17,  1989  Lt.  Col.  S.K. Maini detailed Lt. Col. R.S. Bhatt who is of his own choice.  It is also pointed out that on  May  18,  1989  the  petitioner  during  the court-martial  requested  for  adjournment  of the court for 10 days in order to engage a defence counsel. This request was turned down on  the  wrong  advice  of  the  Judge-Advocate. The further submission is that the petitioner on May 19, 1989 wrote a communication to the convening officer and apprised them with the prejudice caused to his defence. Considerable reliance is placed on this letter.  We have perused  the  same.   In  that  there  is  a reference to Rule 95 which deals only with the  'defending  officer'  and  'friend  of  the accused’ to be provided for on request. The complaint  made  in  the  letter  is  about  not providing the defending officer of his choice at  the  trial.  There  are  some  of  the circumstances which according to the learned Counsel  should  be  taken  into  account  in appreciating  the  prejudice  caused  to  the petitioner's defence.  Rules 95 to 101 deal with  the  appointment  of  defending  officers

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and providing defence to the accused. Rule 95 lays  down  that  at  any  general  or  district court-martial  the  accused  person  should  be represented by any person who shall be called the defending officer.  It is 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  accused  shall  be  so represented by a suitable officer. This rule also provides that accused person should be assisted by any person whose services he may be able to procure and who shall be called "friend of the accused" to give advice to the accused  on  all  points  and  suggest  the questions to be put to the witnesses. Under Rule  96  in  certain  general  and  district court- martials the counsel is allowed if the convening  officer  declares  that  it  is expedient  to  allow  the  appearance  of  the counsel. Rule 97 prescribes the requirements for  appearance  of  counsel.  From  a  combined reading  of  these  rules  it  appears  that generally  it  is  the  defending  officer selected by the convening officer who defends the  accused  and  the  accused  is  allowed  in special  cases  if  the  convening  officer declares that it is expedient to allow the appearance  of  the  counsel  which  is exceptional.  However,  in  this  case  we  need not  make  a  roving  investigation  on  this aspect because we do not find any illegality or irregularity that vitiate the trial nor we find any prejudice having been caused to the accused. As noted above under the rules the defending officer so selected is authorised to  represent  the  accused  and  examine  and cross-examine  the  witnesses.   All  that  has been done duly in this case. Therefore we are unable  to  agree  that  prejudice  has  been caused to the petitioner's defence.”

(emphasis supplied)

The above factual basis on which it was held that no prejudice

had been caused to the defence of the appellant was evidently

the foundation of the ultimate decision of this Court.

In  the  present  cae,  the  appellant  had  rendered  seven

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years  of  service.   He  was  pitted  against  his  Commanding

Officer.  In the face of Army Rule 129, there was no reason to

deny him the benefit of legal representation which he desired

at his own expense.    

For these reasons, we are of the view that there was a

clear violation of the principles of natural justice.   The

prejudice too is evident.  The appellant was dismissed from

service and sentenced to six months’ imprisonment.  Both his

livelihood and liberty were taken away.

In the circumstances, we allow the appeal and set aside

the  judgment  of  the  Armed  Forces  Tribunal  and  the  decision

which has been taken on the basis of the Summary Court Martial.

It is clarified that we have interfered with the order

only on the ground of a violation of the principles of natural

justice. It would be open to the Respondents to take further

steps as may be permissible in accordance with law.

The appeal is, accordingly, allowed.  There shall be no

order as to costs.   

…...……………...…................J.                                     (DR. DHANANJAYA Y. CHANDRACHUD)

......….........……………………….....J.                      (M.R. SHAH)

NEW DELHI, December 10,2018