JASWANT SINGH versus UNION OF INDIA & ANR. on 10 December 2018

1. The appellant has challenged the decision of the Armed ForcesTribunal, Regional Bench at Lucknow dated 18 December, 2012 in O.A.No. 48/2010, by which his challenge to the punishment of dismissal andBsix months’ rigorous imprisonment imposed by a Summary Court Martialhas been rejected. The punishment of imprisonment has already beenundergone.

2. The appellant was enrolled as a Sepoy on 1 January, 2003 inthe Indian Army. A Summary Court Martial was convened on twoCcharges; the first being of an assault on a superior officer while thesecond was the use of abusive language against a Subedar who hadfound the appellant to be not properly dressed for the parade.

3. The Summary Court Martial acquitted the appellant of thesecond charge, but he was found guilty of the first charge of misconduct.DHe wasawarded a punishment of dismissal from service and six monthsrigorous imprisonment in civil jail.

4. Aggrieved by the punishment, the appellant moved the ArmedForces Tribunal, which dismissed the Original Application.

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5. The submission which has been urged on behalf of the appellantis that there was a violation of the principles of natural justice inconducting the Summary Court Martial. The submission is based on theprovisions of Rule 129 of the Army Rules, 1954. The appellant soughtthe assistance of a civil advocate which was denied.

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6. The appellant submits that in a Summary Court Martial, theSepoy was pitted against the Commanding Officer. He should have beengiven the benefit of legal advise which was denied to him on the erroneousbasis that it was only for an offence involving a possible sentence ofdeath that such assistance could be allowed.

GRule 129 of the Army Rules, 1954 provides thus; “Friend of accused – In any summary court- martial, anaccused person may have a person to assist him during thetrial, whether a legal advisor or any other person. A person soassisting him may advise him on all points and suggest the H

questions to be put to witnesses, but shall not examine or cross-examine witnesses or address the court.”

7. The above Rule clearly indicates that in a Summary CourtMartial, the accused may have a person to assist him during the trial,whether a legal adviser or any other person. The expression ‘may’ mustbe read to mean that the person who is proceeded against has the optionon whether or not to engage a legal advisor or any other person. Itrepresents an entitlement to be represented.

8. By his letter dated 7.7.2009, the appellant requested theCommanding Officer to permit him to hire a civil advocate.

9. On 8[th ]July, 2009, this request was turned down on the groundthat under Regulation 479 of the Army Regulations, a civil advocate ispermissible to only those persons who are subject to trial for an offencewhich may result in the imposition of the death penalty.

10. Regulation 479 deals with a situation where a person who issubject to the Army Act is to be tried for a court martial for an offencepunishable with death. On the contrary, Rule 129 of the Army Ruleswhich has been extracted above specifically deals with representationin a Summary Court Martial.

11. In view of the specific provision of Rule 129, the CommandingOfficer was evidently in error in declining the assistance of a lawyer onthe ground that legal assitance could be admissible only where the offencewas punishable with death.

12. Ms. Pinky Anand, learned ASG appearing for the Union ofIndia submits that no prejudice was caused to the appellant and hence,the Court may not entertain the appeal. In this connection, reliance wasplaced on the decision of this Court in Major G.S. Sodhi vs. Union ofIndia[1].

13. The judgment in Major Sodhi’s case (supra) dealt with a caseof a General Court Martial. The circumstances of the case have beenadverted to in paragraph 20 of the judgment. This Court noted that in theletter of the accused, there was a reference to Rule 95 which dealt onlywith a ‘defending officer’ and ‘friend of the accused’ to be provided foron request.

1(1991) 2 SCC 382

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14. It was in this background that this Court observed as follows:- “20. The next submission is that the proper defence as requestedby the petitioner has not been provided for. In this regard it issubmitted that on December 8, 1988 the petitioner made a requestfor a defence counsel and on December 18, 1988 he gave consentto dispense with the defending officer. However on May 8,1989 Lt. Col.S.K. Maini asked the petitioner for three names ofdefending officers in order of preference. On May 9, 1989 hegave the list of three names but according to the petitioner onMay 17, 1989 Lt. Col. S.K. Maini detailed Lt. Col. R.S. Bhattwho is of his own choice. It is also pointed out that on May 18,1989 the petitioner during the court-martial requested foradjournment of the court for 10 days in order to engage a defencecounsel. This request was turned down on the wrong advice ofthe Judge-Advocate. The further submission is that the petitioneron May 19, 1989 wrote a communication to the convening officerand apprised them with the prejudice caused to his defence.Considerable reliance is placed on this letter. We have perusedthe same. In that there is a reference to Rule 95 which deals onlywith the ‘defending officer’ and ‘friend of the accused’ to beprovided for on request. The complaint made in the letter is aboutnot providing the defending officer of his choice at the trial. Thereare some of the circumstances which according to the learnedCounsel should be taken into account in appreciating the prejudicecaused to the petitioner’s defence. Rules 95 to 101 deal with theappointment of defending officers and providing defence to theaccused. Rule 95 lays down that at any general or district court-martial the accused person should be represented by any personwho shall be called the defending officer. It is the duty of theconvening officer to ascertain whether an accused person desiresto have a defending officer assigned to represent him at his trialand if he does so desire, the convening officer shall use his bestendeavours to ensure that the accused shall be so represented bya suitable officer. This rule also provides that accused personshould be assisted by any person whose services he may be ableto procure and who shall be called “friend of the accused” to give JASWANT SINGH V. UNION OF INDIA & ANR.[DR. DHANANJAYA Y CHANDRACHUD, J.]

advice to the accused on all points and suggest the questions to beput to the witnesses. Under Rule 96 in certain general and districtcourt- martials the counsel is allowed if the convening officerdeclares 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 generallyit is the defending officer selected by the convening officer whodefends the accused and the accused is allowed in special casesif the convening officer declares that it is expedient to allow theappearance of the counsel which is exceptional. However, in this

case we need not make a roving investigation on this aspectbecause we do not find any illegality or irregularity that vitiate thetrial nor we find any prejudice having been caused to the accused.As noted above under the rules the defending officer so selectedis authorised to represent the accused and examineandcross-examine the witnesses. All that has been done duly in this case.Therefore we are unable to agree that prejudice has been causedto the petitioner’sdefence.”

(emphasis supplied)

The above factual basis on which it was held that no prejudicehad been caused to the defence of the appellant was evidently thefoundation of the ultimate decision of this Court.

15. In the present cae, the appellant had rendered seven yearsof service. He was pitted against his Commanding Officer. In the faceof Army Rule 129, there was no reason to deny him the benefit of legalrepresentation which he desired at his own expense.

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

17. In the circumstances, we allow the appeal and set aside thejudgment of the Armed Forces Tribunal and the decision which has beentaken on the basis of the Summary Court Martial.

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1318SUPREME COURT REPORTS

[2018] 13 S.C.R.

A18. It is clarified that we have interfered with the order only onthe ground of a violation of the principles of natural justice. It would beopen to the Respondents to take further steps as may be permissible inaccordance with law.

19. The appeal is, accordingly, allowed. There shall be no orderBas to costs.

Divya Pandey

Appeal allowed.

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