There is no power conferred on the Tribunal to direct the matter to be remanded to a stage prior to

Union and of India & Ors. V Ex. No. 3192684 W. Sep. Virendra Kumar Civil Appeal No. 9267 of 2019 on 07th January 2020.

The civil appeal claimed by the Union of India and Ors. was allowed by the Supreme Court under the bench consisting of Justice L. Nageswara Rao and Justice Ajay Rastogi.

The SC held that, “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 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 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.

The General Court Martial convicted the Respondent under Section 302 IPC for the murder of Havildar Harpal and for attempting to commit suicide. The appeal was raised in the Armed Forces Tribunal, Regional Bench, Lucknow, set aside the order of the Court Martial.

The question of law is whether Rule 180 of the Army Rule was violated?

The contentions made by the appellant are Court of Inquiry is provided in Rule 179 of the Army Rule was instigated to find the circumstances principal to the death of Havildar Harpal and to find out who was actually responsible. They further say that the respondent was not treated as an accused during the examination after encountering a serious doubt on him he was given a chance to cross-examine the witnesses and to submit an additional statement in his defence but all the opportunities were rejected by the respondent. Therefore the Rule 180 was not violated.

“The submission made on behalf of the Appellant was that the Court of Inquiry is only for the collection of evidence and any violation of the procedure prescribed under Rule 180 does not vitiate the proceedings of the Court Martial.”

The counsel appearing on the behalf of the respondent made a contention that Violation of the procedure prescribed in Rule 180 would solidify the entire proceedings void. One of the procedures prescribed in this rule is that the evidence and witness should be summoned only in the presence of the accused. In this case, though the respondent was not actually an accused during summoning the evidence and witness there was a requirement in re-examining in his presence.

Lt. Col. Prithi Pal Singh Bedi & Ors. v. Union of India & Ors, Union of India & Ors. v. Major A. Hussain, Union of India & Ors. v. Sanjay Jethi & Anr. These cases were referred by the Supreme Court for the interpretation of Rule 180 of the Army Rules.

From the above judgments, the court inferred that, (a)The proceedings of a Court of Inquiry are in the nature of a fact-finding inquiry conducted at a 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 a summary of evidence, the authorities have to rectify the defect as compliance of the procedure prescribed in Rule 180 is obligatory.

The SC said that the respondent cannot say that the provision in rule 180 was not followed properly in the later stages ie., after passing the order.

“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.”

The Tribunal can direct for re-trail by the Court Martial only on the grounds of Section16(2) they don’t have jurisdiction to do re-trail on the basis of the provision in Rule 180 and further, the Tribunal has power only to order for re-trail. They can’t direct the matter to remand before the prior stage of proceedings.

The SC held that,

“The power conferred on the Tribunal to direct re-trial by the Court, Martial is only on the grounds mentioned in Section 16(2).”

Considering these views the court said that the order passed by the tribunal is to be set aside and the application is remanded back to the Tribunal itself to consider the case on the merits without being influenced by the judgment passed in the Supreme Court. The appeal made was allowed.

View/ Download the Judgment: Union and of India & Ors. V Ex. No. 3192684 W. Sep. Virendra Kumar

–  Manusri Ramakrishna

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