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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 8

th

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 India

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.

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