CORRECTED Non-Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

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

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

Versus

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

J U D G M E N T

L. NAGESWARA RAO, J.

1. The  order  of  dismissal  of  the  Respondent  was  set

aside  by  the  judgment  of  the  Armed  Forces  Tribunal,

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

aggrieved by which this Appeal is filed.  

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

Firing Team which was attached to  the Jat  Regimental

Centre, Bareilly  on 25.02.1999.    A firing incident took

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

was  practicing  firing  at  the  Jat  Regimental  Centre.

1

During the incident, Havildar Harpal and the Respondent

sustained gunshot injuries.  Havildar Harpal succumbed

to the bullet injuries and the Respondent was admitted at

the hospital due to injuries.  A First Information Report

was  lodged  at  the  Police  Station,  Sadar  Cantonment,

Bareilly.  A preliminary investigation was initiated by the

Staff Court of Inquiry as per the directions of the Station

Headquarters,  Bareilly which concluded on 25.11.2004.

The  General  Officer  Commanding  22  Infantry  Division

directed:

a)disciplinary  action  to  be  initiated  against  the

Respondent for causing the death of late Havildar

Harpal and for attempting to commit suicide.    

b)to  counsel  Lt.  Rajiv  Menon  for  not  implementing

the  relevant  instructions  during  the  conduct  of

firing practices at the ranges.  

c) Late  Havildar  Harpal  of  20  Jat  Regiment  was

directed  to  be  treated  on  bona fide Government

duty and his death was held attributable to military

service in peace.        

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

27.11.2004 and was handed over to 7 Kumaon Regiment

under the authority of Headquarters 49 Infantry Brigade.

On 28.12.2004,  the  Respondent  was  tentatively  charged

with the murder of Havildar Harpal under Section 302 IPC

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

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

commit  suicide.   21  witnesses  were  examined  in  the

summary of  evidence and the Respondent was given an

opportunity  to  cross-examine  the  witnesses,  which  he

declined.  He was given an opportunity to make additional

statement, which was also declined.  Further opportunity

given to him to adduce evidence was also not availed by

the  Respondent.   Summary  of  evidence  concluded  on

07.02.2005.    Additional  summary  of  evidence  was  also

recorded,  which  was  completed  on  03.06.2005.   The

General Court Martial commenced on 28.11.2005, and the

trial  was  concluded  on  16.03.2006.   The  General  Court

Martial convicted the Respondent under Section 302 IPC for

the  murder  of  Havildar  Harpal  and  for  attempting  to

commit suicide.   The Respondent was sentenced to suffer

imprisonment  for  life  and  to  be  dismissed  from service.

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The  statutory  complaint  filed  by  the  Respondent  was

rejected  by  the  Chief  of  the  Army  Staff  on  16.03.2007.

The validity of the order of the General Court Martial dated

16.03.2006 and the order of the Chief of  the Army Staff

dated 16.03.2007, rejecting the statutory complaint were

assailed before the Tribunal.  

4. Though  several  grounds  were  taken  before  the

Tribunal to challenge the order of the General Court Martial,

the  principal  contention  of  the  Respondent  was  non-

compliance of Rule 180 of the Rules.  The Tribunal decided

the petition by adverting to the contention relating to Rule

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

that a person against whom an inquiry is conducted to be

present throughout the inquiry.  As there was no doubt that

the Respondent was denied permission to be present when

statements of  witnesses were being recorded before the

Court of Inquiry, the Tribunal concluded that the entire trial

against the Respondent is vitiated.  The Tribunal set aside

the order of the Court Martial and remitted the matter for

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

of its power under Section 16 of the Armed Forces Tribunal

Act, 2007.   

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Rule 180 of the Army Rules, 1954  

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

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

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

“Procedure when character of a person subject

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

prisoner of war who is still  absent whenever any

inquiry affects the character or military reputation

of  a  person  subject  to  the  Act,  full  opportunity

must be afforded to such person of being present

throughout  the  inquiry  and  of  making  any

statement,  and  of  giving  any  evidence  he  may

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

witness whose evidence in his opinion, affects his

character or military reputation and producing any

witnesses in defence of  his character or military

reputation. The presiding officer of the court shall

take such steps as may be necessary to ensure

that  any  such  person  so  affected  and  not

previously  notified  receives  notice  of  and  fully

understands his rights, under this rule.”  

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

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

is an assembly of officers or junior commissioned officers

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

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

Rule 180 deals with the procedure for inquiry where the

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

When an inquiry affects the character or military reputation

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

be  provided  to  the  person  throughout  the  inquiry,  of

making any statement, of giving any evidence he may wish

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

According  to  Rule  182,  the  proceedings  of  a  Court  of

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

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

admissible in evidence.  However, the proviso to Rule 182

provide  that  nothing  in  Rule  182  shall  prevent  the

proceedings  from being  used  by  the  prosecution  or  the

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

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

1954 which relates to the hearing of charge which is as

follows:  

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“22. Hearing of Charge. —

(1) Every Charge against  a person subject  to  the Act

shall  be  heard  by  the  Commanding  Officer  in  the

presence of the accused. The accused shall  have full

liberty to cross-examine any witness against him, and

to call such witness and make such statement as may

be necessary for his defence: Provided that where the

charge  against  the  accused  arises  as  a  result  of

investigation  by  a  Court  of  inquiry,  wherein  the

provisions  of  rule  180  have  been  complied  with  in

respect of that accused, the commanding officer may

dispense with the procedure in sub-rule (1).

(2) The  commanding  officer  shall  dismiss  a  charge

brought before him if, in his opinion the evidence does

not  show  that  an  offence  under  the  Act  has  been

committed, and may do so if, he is satisfied that the

charge ought not to be proceeded with: Provided that

the  commanding  officer  shall  not  dismiss  a  charge

which he is debarred to try under sub-section (2) of Sec.

120 without reference to superior authority as specified

therein.

(3) After compliance of sub-rule (1), if the commanding

officer  is  of  opinion  that  the  charge  ought  to  be

proceeded with, he shall within a reasonable time—

(a) dispose of the case under section 80 in accordance

with the manner and form in Appendix III; or

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(b) refer  the  case  to  the  proper  superior  military

authority; or

(c) adjourn  the  case  for  the  purpose  of  having  the

evidence reduced to writing; or

(d) if the accused is below the rank of warrant officer,

order his trial by a summary court-martial:  

Provided that  the commanding officer  shall  not order

trial by a summary court-martial without a reference to

the  officer  empowered  to  convene  a  district  court-

martial or on active service a summary general court-

martial for the trial of the alleged offender unless—

(a) the offence is one which he can try by a summary

court-martial without any reference to that officer; or

(b) he  considers  that  there  is  grave  reason  for

immediate action and such reference cannot be made

without detriment to discipline.

(4) Where the evidence taken in accordance with sub-

rule (3) of this rule discloses an offence other than the

offence which was the subject of the investigation, the

commanding officer may frame suitable charge (s) on

the  basis  of  the  evidence  so  taken  as  well  as  the

investigation of the original charge.]”

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

the  Court  of  Inquiry  was  initiated  to  unearth  the

circumstances leading to  the  death  of  Havildar  Harpal

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

was  no  suspicion  about  the  involvement  of  the

Respondent.  The Respondent was examined as witness

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

the  recording  of  the  statement  of  the  Respondent,  a

serious doubt was entertained about his involvement in

the death of Havildar Harpal.  It was contended by the

Appellant  that  full  opportunity  was  given  to  the

Respondent  to  cross-examine  the  witnesses  and  to

submit an additional statement in his defence which was

declined by the Respondent.  It was further contended

that  there  is  no  complaint  made  by  the  Respondent

about the violation of Rule 180 and the prejudice that

was caused to him at the stage of recording summary of

evidence and during the Court Martial.  The submission

made on behalf of the Appellant was that the Court of

Inquiry is only for collection of evidence and any violation

of  the  procedure  prescribed  under  Rule  180  does  not

vitiate the proceedings of the Court Martial.  Moreover,

according  to  the  Appellant,  the  Respondent  failed  to

show  any  prejudice  caused  to  him  by  the  non-

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observance of the procedure provided in Rule 180.  As

the  Respondent  was  given  an  opportunity  to  cross-

examine witnesses as provided in Rule 22 and during the

Court Martial proceedings which he did not utilize, there

is no failure of justice, according to the learned Senior

Counsel for the Appellant.  

8. The Respondent defended the order of the Tribunal

by submitting that collection of evidence by the Court of

Inquiry  is  a  crucial  stage during which the  accused is

entitled  to  be  provided  with  an  opportunity  as

contemplated  in  Rule  180.   Violation  of  the procedure

prescribed  in  Rule  180  would  render  the  entire

proceedings  void.   It  was  contended  by  the  learned

Senior Counsel for the Respondent that even though the

Respondent  was initially  examined as  a witness,  there

was a requirement of summoning those witnesses whose

statements  were  recorded  in  his  absence  and  re-

examining  them  after  the  status  of  the  Respondent

changed from a witness to that of an accused.   

9. This  Court  had occasion to  consider  the scope of

Rule  180  and  it  is  necessary  to  take  note  of  the

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judgments of this Court in which Rule 180 was discussed.

The orders by which General Court Martial was convened

were challenged by petitions filed under Article 32 of the

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

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

on  behalf  of  the  petitioners  therein  was  that  it  was

obligatory  upon  the  authorities  to  appoint  a  Court  of

Inquiry  whenever  an  inquiry  affects  the  character  or

military reputation of the persons subject to the Act and,

in such an inquiry full  opportunity must be afforded to

such person of being present throughout the inquiry and

making any statement  or  giving any evidence that  he

wishes to make and of cross-examining any witnesses.

Interpreting Rule 180, this Court held that it cannot be

construed  to  mean  that  whenever  or  wherever  any

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

is conducted and his character or military reputation is

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

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

1 (1982) 3 SCC 140

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“40. … Rule 180 merely makes it obligatory that

whenever a Court of enquiry is set up and in the

course  of  enquiry  by  the  Court  of  enquiry

character  or  military  reputation  of  a  person  is

likely to be affected then such a person must be

given  a  full  opportunity  to  participate  in  the

proceedings of Court of enquiry. Court of enquiry

by  its  very  nature  is  likely  to  examine  certain

issues  generally  concerning  a  situation  or

persons.  Where  collective  fine  is  desired  to  be

imposed,  a  Court  of  enquiry  may  generally

examine  the  shortfall  to  ascertain  how  many

persons are responsible. In the course of such an

enquiry  there  may  be  a  distinct  possibility  of

character  or  military  reputation  of  a  person

subject  to  the  Act  likely  to  be  affected.  His

participation cannot be avoided on the specious

plea that no specific enquiry was directed against

the person whose character or military reputation

is involved. To ensure that such a person whose

character  or  military  reputation  is  likely  to  be

affected  by  the  proceedings  of  the  Court  of

enquiry  should  be  afforded  full  opportunity  so

that  nothing  is  done  at  his  back  and  without

opportunity  of  participation,  Rule  180  merely

makes  an  enabling  provision  to  ensure  such

participation.”  

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

rejected the challenge to the Court Martial proceedings

while dismissing the Writ Petitions filed under Article 32

of  the  Constitution.   The  main  grievance  of  the

petitioners  in  that  case  was  the  violation  of  the

procedure  prescribed in  Rules  22 and 23 of  the  Army

Rules.   While  recording  a  finding  that  there  has  been

substantial compliance of Rules 22 and 23, this Court has

held  that  recording  of  evidence  is  only  to  find  out

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

martial.   This Court was of the opinion that the object

and  effect  of  the  Rules  should  be  considered  in  the

context  bearing in  mind the general  principle  whether

such an incomplete compliance has caused any prejudice

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

there is any violation of mandatory rules, the benefit of

the same should be given to the delinquent officer.  The

conclusion in that case was that there was no violation of

the Rules and in any event no prejudice was caused to

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

2 (1991) 2 SCC 382

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

aside the judgment of the High Court of Andhra Pradesh

upheld the order of conviction of the respondent by the

Court Martial.  While dealing with the submissions made

on  Rule  180,  this  Court  relying  upon  Major  General

Inder  Jit  Kumar v.  Union  of  India4 held  that

proceedings before a Court of Inquiry are not adversarial

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

fact-finding enquiry committee.   This Court was of the

view  that  it  is  unnecessary  to  examine  if  pre-trial

investigation is adequate or not when there is sufficient

evidence to sustain conviction by the Court Martial.   It

was  further  held  that  the  requirement  of  proper  and

adequate  investigation  is  not  jurisdictional  and  any

violation  thereof  does  not  invalidate  the  Court  Martial

unless it is shown that the accused has been prejudiced

or  a  mandatory  provision  has  been  violated.   As  the

Respondent  therein  participated  in  the  recording  of

summary of evidence without raising any objection, the

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

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submission  regarding  violation  of  principles  of  natural

justice at an earlier stage was rejected by this Court.   

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

the question regarding the bias of members of the Court

of Inquiry was decided in favour of the delinquent officer.

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

“53. In  a  CoI  participation  of  a  delinquent

officer whose character or military reputation is

likely to be affected is a categorical imperative.

The  participation  has  to  be  meaningful,

effective and he has to be afforded adequate

opportunity.  It  needs  no  special  emphasis  to

state that Rule 180 is framed under the Army

Act and it has the statutory colour and flavour.

It  has  the  binding  effect  on  CoI.  The  rule

provides  for  procedural  safeguards  regard

being  had  to  the  fact  that  a  person  whose

character and military reputation is likely to be

affected is in a position to offer his explanation

and  in  the  ultimate  eventuate  may  not  be

required  to  face  disciplinary  action.  Thus

understood, the language employed in Rule 180

lays  postulates  of  a  fair,  just  and reasonable

delineation. It is the duty of the authorities to

ensure that there is proper notice to the person

5 (2013) 16 SCC 116

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concerned and he is given opportunity to cross-

examine the witnesses and, most importantly,

nothing should take place behind his back. It is

one thing to say that CoI may not always be

essential or sine qua non for initiation of a court

martial but another spectrum is that once the

authority has exercised the power to hold such

an  inquiry  and  CoI  has  recommended  for

disciplinary action, then the recommendation of

CoI is subject to judicial review. While exercising

the  power  of  judicial  review  it  becomes

obligatory to see whether there has been due

compliance of the stipulates prescribed under

the rule, for the language employed in the said

rule is  absolutely clear and unambiguous. We

may  not  dwell  upon  the  concept  of  “full

opportunity” in detail. Suffice it to say that one

cannot stretch the said concept at infinitum on

the  bedrock  of  grant  of  opportunity  and  fair

play. It has to be tested on the touchstone of

the factual matrix of each case.”

12. A  close  scrutiny  of  the  above  judgments  would

indicate that:

(a) The  proceedings  of  a  Court  of  Inquiry  are  in  the

nature of a fact-finding inquiry conducted at a pre-

investigation stage;

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(b) The  accused  is  entitled  to  full  opportunity  as

provided in Rule 180;

(c) As a final order of conviction is on the basis of a trial

by  the  Court  Martial,  irregularities  at  the  earlier

stages  cannot  be  the  basis  for  setting  aside  the

order passed by the Court Martial;   

(d) If the accused raises a ground of non-compliance of

Rule 180 during the framing of charge or during the

recording of summary of evidence, the authorities

have  to  rectify  the  defect  as  compliance  of  the

procedure prescribed in Rule 180 is obligatory.  

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

Army  Rules  in  this  case  as  the  Respondent  was  not

present  during  the  recording  of  the  statements  of

witnesses, it is clear from the record that the Respondent

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

the charge, recording summary of evidence or during the

Court Martial proceedings.  After a final order was passed

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

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

compliance  of  Rule  180  during  the  Court  of  Inquiry

proceedings.  Therefore, the Tribunal ought not to have

remanded the matter back for a de novo inquiry from the

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stage of Court of Inquiry on the ground of infraction of

Rule 180 of the Army Rules.     

Section 16 of the Army Act, 1950

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

the Armed Forces Tribunal Act, 2007 an order of remand

was  made  by  the  Tribunal.   Section  16  of  the  Armed

Forces Tribunal Act, 2007 reads as follows:  

“16.  Re-trial.  —  (1)  Except  as  provided  by

this Act,  where  the  conviction  of  a  person  by

court martial for an offence has been quashed,

he shall not be liable to be tried again for that

offence by a court-martial or by any other Court.

(2)  The Tribunal shall  have  the  power  of

quashing  a  conviction,  to  make  an  order

authorising the appellant to be retried by court

martial, but shall only exercise this power when

the  appeal  against  conviction  is  allowed  by

reasons only of evidence received or available to

be received by the Tribunal under this Act and it

appears  to  the Tribunal that  the  interests  of

justice require that an order under this section

should be made:

Provided that an appellant  shall  not  be retried

under this section for an offence other than—

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(a)  the offence for  which he was convicted by

the original court martial and in respect of which

his appeal is allowed;

(b)  any offence for  which he could  have been

convicted  at  the  original  court  martial  on  a

charge of the first-mentioned offence;

(c)  any  offence  charged  in  the  alternative  in

respect of which the court martial recorded no

finding in consequence of convicting him of the

first-mentioned offence.

(3)  A  person  who  is  to  be  retried  under  this

section for an offence shall, if the Tribunal or the

Supreme Court so directs, whether or not such

person is being tried or retried on one or more of

the  original  charges,  no  fresh  investigation  or

other  action shall  be taken under the relevant

provision of the Army Act, 1950 (46 of 1950) or

the  Navy Act,  1957  (62  of  1957)  or  the  Air

Force Act, 1950 (45 of 1950), as the case may

be, or rules and regulations made thereunder, in

relation to the said charge or charges on which

he is to be retried.”

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

by the Court Martial is only on the grounds mentioned in

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

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only in case of evidence made available to the Tribunal

was  not  produced  before  the  Court  Martial  and  if  it

appears  to  the  Tribunal  that  the  interests  of  justice

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

Tribunal in this case is on the basis that the procedure

prescribed in Rule 180 of the Army Rules has not been

followed.   The  Tribunal  does  not  have  jurisdiction  to

direct re-trial on any other ground except that mentioned

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

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

has  competence  only  to  order  re-trial  by  the  Court

Martial.  There is no power conferred on the Tribunal to

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

Court Martial proceedings.  Therefore, we are of the view

that the order passed by the Tribunal directing a de novo

inquiry from the stage of Court of Inquiry requires to be

set  aside.  As  the  Tribunal  has  not  adjudicated  on  the

merits of the Transfer Application, we set aside the order

of the Tribunal and remand the Application back to the

Tribunal  to  be  considered  on  its  own  merits,  without

20 | P a g e

being  influenced  by  any  observation  made  in  this

judgment.   

16. However, the Respondent shall not be sentenced to

any  imprisonment  in  view  of  his  having  already

undergone the sentence of more than 10 years.  

17. The Appeal is accordingly allowed.  

     ..….............................J.

 [L. NAGESWARA RAO]

…...…........................J. [AJAY RASTOGI]

New Delhi, January 07, 2020.

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Non-Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

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

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

Versus

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

J U D G M E N T

L. NAGESWARA RAO, J.

1. The  order  of  dismissal  of  the  Respondent  was  set

aside  by  the  judgment  of  the  Armed  Forces  Tribunal,

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

aggrieved by which this Appeal is filed.  

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

Firing Team which was attached to  the Jat  Regimental

Centre, Bareilly  on 25.02.1999.    A firing incident took

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

was  practicing  firing  at  the  Jat  Regimental  Centre.

During the incident, Havildar Harpal and the Respondent

sustained gunshot injuries.  Havildar Harpal succumbed

to the bullet injuries and the Respondent was admitted at

the hospital due to injuries.  A First Information Report

was  lodged  at  the  Police  Station,  Sadar  Cantonment,

Bareilly.  A preliminary investigation was initiated by the

Staff Court of Inquiry as per the directions of the Station

Headquarters,  Bareilly which concluded on 25.11.2004.

The  General  Officer  Commanding  22  Infantry  Division

directed:

a) disciplinary  action  to  be  initiated  against  the

Respondent for causing the death of late Havildar

Harpal and for attempting to commit suicide.    

b) to  counsel  Lt.  Rajiv  Menon  for  not  implementing

the  relevant  instructions  during  the  conduct  of

firing practices at the ranges.  

c) Late  Havildar  Harpal  of  20  Jat  Regiment  was

directed  to  be  treated  on  bona fide Government

23 | P a g e

duty and his death was held attributable to military

service in peace.        

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

27.11.2004 and was handed over to 7 Kumaon Regiment

under the authority of Headquarters 49 Infantry Brigade.

On 28.12.2004,  the  Respondent  was  tentatively  charged

with the murder of Havildar Harpal under Section 302 IPC

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

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

commit  suicide.   21  witnesses  were  examined  in  the

summary of  evidence and the Respondent was given an

opportunity  to  cross-examine  the  witnesses,  which  he

declined.  He was given an opportunity to make additional

statement, which was also declined.  Further opportunity

given to him to adduce evidence was also not availed by

the  Respondent.   Summary  of  evidence  concluded  on

07.02.2005.    Additional  summary  of  evidence  was  also

recorded,  which  was  completed  on  03.06.2005.   The

General Court Martial commenced on 28.11.2005, and the

trial  was  concluded  on  16.03.2006.   The  General  Court

Martial convicted the Respondent under Section 302 IPC for

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the  murder  of  Havildar  Harpal  and  for  attempting  to

commit suicide.   The Respondent was sentenced to suffer

imprisonment  for  life  and  to  be  dismissed  from service.

The  statutory  complaint  filed  by  the  Respondent  was

rejected  by  the  Chief  of  the  Army  Staff  on  16.03.2007.

The validity of the order of the General Court Martial dated

16.03.2006 and the order of the Chief of  the Army Staff

dated 16.03.2007, rejecting the statutory complaint were

assailed before the Tribunal.  

4. Though  several  grounds  were  taken  before  the

Tribunal to challenge the order of the General Court Martial,

the  principal  contention  of  the  Respondent  was  non-

compliance of Rule 180 of the Rules.  The Tribunal decided

the petition by adverting to the contention relating to Rule

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

that a person against whom an inquiry is conducted to be

present throughout the inquiry.  As there was no doubt that

the Respondent was denied permission to be present when

statements of  witnesses were being recorded before the

Court of Inquiry, the Tribunal concluded that the entire trial

against the Respondent is vitiated.  The Tribunal set aside

the order of the Court Martial and remitted the matter for

25 | P a g e

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

of its power under Section 16 of the Armed Forces Tribunal

Act, 2007.   

Rule 180 of the Army Rules, 1954  

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

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

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

“Procedure when character of a person subject

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

prisoner of war who is still  absent whenever any

inquiry affects the character or military reputation

of  a  person  subject  to  the  Act,  full  opportunity

must be afforded to such person of being present

throughout  the  inquiry  and  of  making  any

statement,  and  of  giving  any  evidence  he  may

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

witness whose evidence in his opinion, affects his

character or military reputation and producing any

witnesses in defence of  his character or military

reputation. The presiding officer of the court shall

take such steps as may be necessary to ensure

that  any  such  person  so  affected  and  not

26 | P a g e

previously  notified  receives  notice  of  and  fully

understands his rights, under this rule.”  

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

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

is an assembly of officers or junior commissioned officers

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

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

Rule 180 deals with the procedure for inquiry where the

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

When an inquiry affects the character or military reputation

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

be  provided  to  the  person  throughout  the  inquiry,  of

making any statement, of giving any evidence he may wish

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

According  to  Rule  182,  the  proceedings  of  a  Court  of

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

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

admissible in evidence.  However, the proviso to Rule 182

provide  that  nothing  in  Rule  182  shall  prevent  the

proceedings  from being  used  by  the  prosecution  or  the

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

27 | P a g e

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

1954 which relates to the hearing of charge which is as

follows:  

“22. Hearing of Charge. —

(1) Every Charge against  a person subject  to  the Act

shall  be  heard  by  the  Commanding  Officer  in  the

presence of the accused. The accused shall  have full

liberty to cross-examine any witness against him, and

to call such witness and make such statement as may

be necessary for his defence: Provided that where the

charge  against  the  accused  arises  as  a  result  of

investigation  by  a  Court  of  inquiry,  wherein  the

provisions  of  rule  180  have  been  complied  with  in

respect of that accused, the commanding officer may

dispense with the procedure in sub-rule (1).

(2) The  commanding  officer  shall  dismiss  a  charge

brought before him if, in his opinion the evidence does

not  show  that  an  offence  under  the  Act  has  been

committed, and may do so if, he is satisfied that the

charge ought not to be proceeded with: Provided that

the  commanding  officer  shall  not  dismiss  a  charge

which he is debarred to try under sub-section (2) of Sec.

120 without reference to superior authority as specified

therein.

28 | P a g e

(3) After compliance of sub-rule (1), if the commanding

officer  is  of  opinion  that  the  charge  ought  to  be

proceeded with, he shall within a reasonable time—

(a) dispose of the case under section 80 in accordance

with the manner and form in Appendix III; or

(b) refer  the  case  to  the  proper  superior  military

authority; or

(c) adjourn  the  case  for  the  purpose  of  having  the

evidence reduced to writing; or

(d) if the accused is below the rank of warrant officer,

order his trial by a summary court-martial:  

Provided that  the commanding officer  shall  not order

trial by a summary court-martial without a reference to

the  officer  empowered  to  convene  a  district  court-

martial or on active service a summary general court-

martial for the trial of the alleged offender unless—

(a) the offence is one which he can try by a summary

court-martial without any reference to that officer; or

(b) he  considers  that  there  is  grave  reason  for

immediate action and such reference cannot be made

without detriment to discipline.

(4) Where the evidence taken in accordance with sub-

rule (3) of this rule discloses an offence other than the

offence which was the subject of the investigation, the

commanding officer may frame suitable charge (s) on

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the  basis  of  the  evidence  so  taken  as  well  as  the

investigation of the original charge.]”

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

the  Court  of  Inquiry  was  initiated  to  unearth  the

circumstances leading to  the  death  of  Havildar  Harpal

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

was  no  suspicion  about  the  involvement  of  the

Respondent.  The Respondent was examined as witness

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

the  recording  of  the  statement  of  the  Respondent,  a

serious doubt was entertained about his involvement in

the death of Havildar Harpal.  It was contended by the

Appellant  that  full  opportunity  was  given  to  the

Respondent  to  cross-examine  the  witnesses  and  to

submit an additional statement in his defence which was

declined by the Respondent.  It was further contended

that  there  is  no  complaint  made  by  the  Respondent

about the violation of Rule 180 and the prejudice that

was caused to him at the stage of recording summary of

evidence and during the Court Martial.  The submission

made on behalf of the Appellant was that the Court of

30 | P a g e

Inquiry is only for collection of evidence and any violation

of  the  procedure  prescribed  under  Rule  180  does  not

vitiate the proceedings of the Court Martial.  Moreover,

according  to  the  Appellant,  the  Respondent  failed  to

show  any  prejudice  caused  to  him  by  the  non-

observance of the procedure provided in Rule 180.  As

the  Respondent  was  given  an  opportunity  to  cross-

examine witnesses as provided in Rule 22 and during the

Court Martial proceedings which he did not utilize, there

is no failure of justice, according to the learned Senior

Counsel for the Appellant.  

8. The Respondent defended the order of the Tribunal

by submitting that collection of evidence by the Court of

Inquiry  is  a  crucial  stage during which the  accused is

entitled  to  be  provided  with  an  opportunity  as

contemplated  in  Rule  180.   Violation  of  the procedure

prescribed  in  Rule  180  would  render  the  entire

proceedings  void.   It  was  contended  by  the  learned

Senior Counsel for the Respondent that even though the

Respondent  was initially  examined as  a witness,  there

was a requirement of summoning those witnesses whose

31 | P a g e

statements  were  recorded  in  his  absence  and  re-

examining  them  after  the  status  of  the  Respondent

changed from a witness to that of an accused.   

9. This  Court  had occasion to  consider  the scope of

Rule  180  and  it  is  necessary  to  take  note  of  the

judgments of this Court in which Rule 180 was discussed.

The orders by which General Court Martial was convened

were challenged by petitions filed under Article 32 of the

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

Ors. v.  Union of India & Ors.6 One of the contentions

on  behalf  of  the  petitioners  therein  was  that  it  was

obligatory  upon  the  authorities  to  appoint  a  Court  of

Inquiry  whenever  an  inquiry  affects  the  character  or

military reputation of the persons subject to the Act and,

in such an inquiry full  opportunity must be afforded to

such person of being present throughout the inquiry and

making any statement  or  giving any evidence that  he

wishes to make and of cross-examining any witnesses.

Interpreting Rule 180, this Court held that it cannot be

construed  to  mean  that  whenever  or  wherever  any

6 (1982) 3 SCC 140

32 | P a g e

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

is conducted and his character or military reputation is

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

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

“40. … Rule 180 merely makes it obligatory that

whenever a Court of enquiry is set up and in the

course  of  enquiry  by  the  Court  of  enquiry

character  or  military  reputation  of  a  person  is

likely to be affected then such a person must be

given  a  full  opportunity  to  participate  in  the

proceedings of Court of enquiry. Court of enquiry

by  its  very  nature  is  likely  to  examine  certain

issues  generally  concerning  a  situation  or

persons.  Where  collective  fine  is  desired  to  be

imposed,  a  Court  of  enquiry  may  generally

examine  the  shortfall  to  ascertain  how  many

persons are responsible. In the course of such an

enquiry  there  may  be  a  distinct  possibility  of

character  or  military  reputation  of  a  person

subject  to  the  Act  likely  to  be  affected.  His

participation cannot be avoided on the specious

plea that no specific enquiry was directed against

the person whose character or military reputation

is involved. To ensure that such a person whose

character  or  military  reputation  is  likely  to  be

affected  by  the  proceedings  of  the  Court  of

33 | P a g e

enquiry  should  be  afforded  full  opportunity  so

that  nothing  is  done  at  his  back  and  without

opportunity  of  participation,  Rule  180  merely

makes  an  enabling  provision  to  ensure  such

participation.”  

10. This Court in Major G.S. Sodhi v. Union of India7

rejected the challenge to the Court Martial proceedings

while dismissing the Writ Petitions filed under Article 32

of  the  Constitution.   The  main  grievance  of  the

petitioners  in  that  case  was  the  violation  of  the

procedure  prescribed in  Rules  22 and 23 of  the  Army

Rules.   While  recording  a  finding  that  there  has  been

substantial compliance of Rules 22 and 23, this Court has

held  that  recording  of  evidence  is  only  to  find  out

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

martial.   This Court was of the opinion that the object

and  effect  of  the  Rules  should  be  considered  in  the

context  bearing in  mind the general  principle  whether

such an incomplete compliance has caused any prejudice

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

there is any violation of mandatory rules, the benefit of

the same should be given to the delinquent officer.  The 7 (1991) 2 SCC 382

34 | P a g e

conclusion in that case was that there was no violation of

the Rules and in any event no prejudice was caused to

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

Major A. Hussain (IC-14827)8, this Court while setting

aside the judgment of the High Court of Andhra Pradesh

upheld the order of conviction of the respondent by the

Court Martial.  While dealing with the submissions made

on  Rule  180,  this  Court  relying  upon  Major  General

Inder  Jit  Kumar v.  Union  of  India9 held  that

proceedings before a Court of Inquiry are not adversarial

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

fact-finding enquiry committee.   This Court was of the

view  that  it  is  unnecessary  to  examine  if  pre-trial

investigation is adequate or not when there is sufficient

evidence to sustain conviction by the Court Martial.   It

was  further  held  that  the  requirement  of  proper  and

adequate  investigation  is  not  jurisdictional  and  any

violation  thereof  does  not  invalidate  the  Court  Martial

unless it is shown that the accused has been prejudiced

or  a  mandatory  provision  has  been  violated.   As  the

8 (1998) 1 SCC 537 9 (1997) 9 SCC 1

35 | P a g e

Respondent  therein  participated  in  the  recording  of

summary of evidence without raising any objection, the

submission  regarding  violation  of  principles  of  natural

justice at an earlier stage was rejected by this Court.   

11. In Union of India & Ors. v. Sanjay Jethi & Anr.10

the question regarding the bias of members of the Court

of Inquiry was decided in favour of the delinquent officer.

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

“53. In  a  CoI  participation  of  a  delinquent

officer whose character or military reputation is

likely to be affected is a categorical imperative.

The  participation  has  to  be  meaningful,

effective and he has to be afforded adequate

opportunity.  It  needs  no  special  emphasis  to

state that Rule 180 is framed under the Army

Act and it has the statutory colour and flavour.

It  has  the  binding  effect  on  CoI.  The  rule

provides  for  procedural  safeguards  regard

being  had  to  the  fact  that  a  person  whose

character and military reputation is likely to be

affected is in a position to offer his explanation

and  in  the  ultimate  eventuate  may  not  be

required  to  face  disciplinary  action.  Thus

understood, the language employed in Rule 180

10 (2013) 16 SCC 116

36 | P a g e

lays  postulates  of  a  fair,  just  and reasonable

delineation. It is the duty of the authorities to

ensure that there is proper notice to the person

concerned and he is given opportunity to cross-

examine the witnesses and, most importantly,

nothing should take place behind his back. It is

one thing to say that CoI may not always be

essential or sine qua non for initiation of a court

martial but another spectrum is that once the

authority has exercised the power to hold such

an  inquiry  and  CoI  has  recommended  for

disciplinary action, then the recommendation of

CoI is subject to judicial review. While exercising

the  power  of  judicial  review  it  becomes

obligatory to see whether there has been due

compliance of the stipulates prescribed under

the rule, for the language employed in the said

rule is  absolutely clear and unambiguous. We

may  not  dwell  upon  the  concept  of  “full

opportunity” in detail. Suffice it to say that one

cannot stretch the said concept at infinitum on

the  bedrock  of  grant  of  opportunity  and  fair

play. It has to be tested on the touchstone of

the factual matrix of each case.”

12. A  close  scrutiny  of  the  above  judgments  would

indicate that:

37 | P a g e

(a) The  proceedings  of  a  Court  of  Inquiry  are  in  the

nature of a fact-finding inquiry conducted at a pre-

investigation stage;

(b) The  accused  is  entitled  to  full  opportunity  as

provided in Rule 180;

(c) As a final order of conviction is on the basis of a trial

by  the  Court  Martial,  irregularities  at  the  earlier

stages  cannot  be  the  basis  for  setting  aside  the

order passed by the Court Martial;   

(d) If the accused raises a ground of non-compliance of

Rule 180 during the framing of charge or during the

recording of summary of evidence, the authorities

have  to  rectify  the  defect  as  compliance  of  the

procedure prescribed in Rule 180 is obligatory.  

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

Army  Rules  in  this  case  as  the  Respondent  was  not

present  during  the  recording  of  the  statements  of

witnesses, it is clear from the record that the Respondent

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

the charge, recording summary of evidence or during the

Court Martial proceedings.  After a final order was passed

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

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

compliance  of  Rule  180  during  the  Court  of  Inquiry

38 | P a g e

proceedings.  Therefore, the Tribunal ought not to have

remanded the matter back for a de novo inquiry from the

stage of Court of Inquiry on the ground of infraction of

Rule 180 of the Army Rules.     

Section 16 of the Army Act, 1950

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

the Armed Forces Tribunal Act, 2007 an order of remand

was  made  by  the  Tribunal.   Section  16  of  the  Armed

Forces Tribunal Act, 2007 reads as follows:  

“16.  Re-trial.  —  (1)  Except  as  provided  by

this Act,  where  the  conviction  of  a  person  by

court martial for an offence has been quashed,

he shall not be liable to be tried again for that

offence by a court-martial or by any other Court.

(2)  The Tribunal shall  have  the  power  of

quashing  a  conviction,  to  make  an  order

authorising the appellant to be retried by court

martial, but shall only exercise this power when

the  appeal  against  conviction  is  allowed  by

reasons only of evidence received or available to

be received by the Tribunal under this Act and it

appears  to  the Tribunal that  the  interests  of

justice require that an order under this section

should be made:

39 | P a g e

Provided that an appellant  shall  not  be retried

under this section for an offence other than—

(a) the offence for  which he was convicted by

the original court martial and in respect of which

his appeal is allowed;

(b)  any offence for  which he could  have been

convicted  at  the  original  court  martial  on  a

charge of the first-mentioned offence;

(c)  any  offence  charged  in  the  alternative  in

respect of which the court martial recorded no

finding in consequence of convicting him of the

first-mentioned offence.

(3)  A  person  who  is  to  be  retried  under  this

section for an offence shall, if the Tribunal or the

Supreme Court so directs, whether or not such

person is being tried or retried on one or more of

the  original  charges,  no  fresh  investigation  or

other  action shall  be taken under the relevant

provision of the Army Act, 1950 (46 of 1950) or

the  Navy Act,  1957  (62  of  1957)  or  the  Air

Force Act, 1950 (45 of 1950), as the case may

be, or rules and regulations made thereunder, in

relation to the said charge or charges on which

he is to be retried.”

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

by the Court Martial is only on the grounds mentioned in

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

only in case of evidence made available to the Tribunal

was  not  produced  before  the  Court  Martial  and  if  it

appears  to  the  Tribunal  that  the  interests  of  justice

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

Tribunal in this case is on the basis that the procedure

prescribed in Rule 180 of the Army Rules has not been

followed.   The  Tribunal  does  not  have  jurisdiction  to

direct re-trial on any other ground except that mentioned

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

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

has  competence  only  to  order  re-trial  by  the  Court

Martial.  There is no power conferred on the Tribunal to

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

Court Martial proceedings.  Therefore, we are of the view

that the order passed by the Tribunal directing a de novo

inquiry from the stage of Court of Inquiry requires to be

set  aside.  As  the  Tribunal  has  not  adjudicated  on  the

merits of the Transfer Application, we set aside the order

of the Tribunal and remand the Application back to the

Tribunal  to  be  considered  on  its  own  merits,  without

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being  influenced  by  any  observation  made  in  this

judgment.   

16. The Appeal is accordingly allowed.  

     ..….............................J.

                                                  [L. NAGESWARA RAO]

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

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