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CASE NO.:

Appeal (civil) 10383 of 1996

PETITIONER:

Union of India and others

RESPONDENT:

Ex. Flt. Lt. G.S. Bajwa

DATE OF JUDGMENT: 02/05/2003

BENCH:

N. SANTOSH HEGDE & B.P. SINGH.

JUDGMENT:

J U D G M E N T

B.P. SINGH, J.

The Union of India has preferred this appeal by special leave

against the judgment and order of the High Court of Delhi dated

August 3, 1995 in Civil Writ Petition No. 245 of 1986 whereby the

High Court allowed the writ petition filed by the respondent herein

and while setting aside the order of dismissal passed by the Court

Martial after trial, directed his reinstatement in the same post

which he held when he was dismissed, but made his continuation

in the same post subject to medical fitness. It also directed

payment of 50% of the back wages to the respondent from the date

of dismissal till the date of the judgment.

The case of the respondent in the writ petition was that he

was commissioned in the Indian Air Force on 27th June, 1970 and

was appointed to the substantive post of Flight Lieutenant on 27th

June, 1976. In the year 1976 he was posted at Udhampur. In the

course of his duties he found certain irregularities in the matter of

transportation of explosives, which were being transported

piecemeal at higher rates. He, therefore, brought this to the notice

of the authorities and pointed out that Air Marshal Dilbagh Singh

had passed orders, which were beyond his jurisdiction and

financial powers resulting in loss to the Union of India. He

claimed that on account of his alertness and fearlessness in

pointing out these irregularities, the Union of India saved a

considerable amount. However, by this act of his he incurred the

wrath of Air Marshal Dilbagh Singh who instructed his

subordinate officers to "fix" him. He was illegally and improperly

admitted in the Psychiatric Ward between June 15, 1979 and July

10, 1979 and thereafter between August 22, 1979 and October 19,

1979.

The case of the respondent was that on June 18, 1982 Wing

Commander S.L. Gupta directed him to undergo an examination

by the Medical Board on June 21, 1982 with a view to his

recategorisation of last medical category. This order was patently

illegal and, therefore, the respondent did not obey the order. On

account of his disobedience of the order passed by the Wing

Commander, a General Court Martial was ordered to try him on

the charge of disobeying the lawful command given by his superior

officer and also for improper conduct prejudicial to the good order

and Air Force discipline. Accordingly the respondent was charged

of offences punishable under sections 41(2) and 65 of the Air

Force Act, 1950 (hereinafter referred to as 'the Act'). According

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to the respondent the proceedings before the General Court Martial

were conducted illegally and improperly and in breach of law

inasmuch as the respondent was denied legal assistance in the

Court Martial proceedings even though he was charged of a serious

offence which, on proof, entailed a sentence of imprisonment for a

term which could extend to 14 years under section 41(2) and 7

years under Section 65 of the Act. Moreover he was denied copies

of the day to day proceedings which were essential for his defence.

He was also denied a fair opportunity to examine witnesses in

defence. The General Court Martial proceeded to try the

respondent and ultimately found him guilty by its verdict

pronounced on June 21, 1983. The General Court Martial imposed

the sentence of dismissal from service. The appeal preferred by

the respondent to the Central Government was dismissed on

January 14, 1985 which compelled him to file the writ petition

challenging the Court Martial proceedings and praying for a

declaration that the order passed by the General Court Martial was

null and void. He also prayed for all consequential benefits

including compensation for illegal detention in Psychiatric Ward

and for his illegal arrest on June 21, 1983.

The Union of India controverted the allegations made in the

writ petition and at the threshold took the objection that the

question regarding his illegal confinement in Psychiatric Ward and

his illegal arrest were barred by the principle of constructive res

judicata as he had moved several writ petitions and special leave

petitions earlier raising those contentions but had failed in each one

of them. It was submitted that the General Court Martial

conducted the proceedings in accordance with law and there was

no breach of a statutory provision or breach of principle of natural

justice. The order of Wing Commander S.L. Gupta was a lawful

order and its disobedience by the respondent attracted the

provisions of section 41 of the Act which made it an offence

punishable with a term of imprisonment which may extend to 14

years.

The High Court rejected the contention of the respondent

that the order passed by Wing Commander was an illegal order and

that its disobedience did not amount to a disobedience of a lawful

order for purposes of section 41 of the Act. Relying upon the

judgment of this Court in Ranjit Thakur vs. Union of India :

(1987) 4 SCC 611 it was held that the said order of Wing

Commander Gupta was not an illegal order and that order had been

issued bona fide and in public interest.

The High Court also rejected the contention of the

respondent that the orders directing him to appear before the

Medical Board, as well as the trial before the General Court

Martial, were mala fide acts committed at the instance of Air

Marshal Dilbagh Singh. It noticed that it was sometime in the year

1976 that the respondent claimed to have exposed some mal

practice which cast a reflection on Air Marshal Dilbagh Singh.

The General Court Martial proceedings were initiated in the year

1983. The submission, that the action was malafide, was therefore,

far fetched. Moreover Air Marshal Dilbagh Singh against whom

mala fide was alleged was not even a party in the writ petition.

The submission was, therefore, rejected.

The High Court then proceeded to consider the submission

urged before it that an illegality had been committed in as much as

the petitioner was deprived of his fundamental right by not being

permitted to be represented by a counsel of his choice at State

expense in the Court Martial proceedings. The High Court

observed in this regard that it is a fundamental right of an Indian

citizen to have assistance of a legal expert when he is to face a trial

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for an offence punishable with imprisonment, as his personal

liberty is at stake. If such an accused was not in a position to

engage an advocate at his own cost, then it becomes the

fundamental duty of the State to provide him legal assistance at the

cost of the State. Reliance was placed on the judgment of this

Court in Suk Das vs. Union Territory of Arunachal Pradesh : AIR

1986 SC 991 to support the view that the accused has a

fundamental right under Article 21 of the Constitution of India to

obtain free legal service at the cost of the State, if he is unable to

engage the services of a lawyer on account of poverty or indigence.

The High Court noticed that in the instant case as soon as the

respondent was intimated about the constitution of General Court

Martial to try him he made an application to the President of India

on May 2, 1983 bringing to his notice his inability to engage an

advocate at his own cost and requested that he may be provided

funds for engaging an advocate to defend him in the said General

Court Martial. A copy of this application was also given to the

General Court Martial. Moreover, since the respondent

apprehended that the other subordinate officers may not be in a

position to give him proper and necessary assistance in defending

him on account of their fear of Air Marshal Dilbagh Singh, his

request to have an advocate for defending him, in view of his

apprehension, could not be said to be unreasonable or improper.

The Union of India on the other hand contended that neither

in the Air Force Rules nor in the Air Force Act is there has any

provision to appoint a legal practitioner at State expense to defend

the accused before a Court Martial and, therefore, such a request

could not be granted. The Rules only provide that an accused may

be represented by any officer subject to Air Force laws who shall

be called the 'defending officer' or assisted by any person whose

services he may be able to procure who shall be called the 'friend

of the accused'. The submission urged on behalf of the Union of

India was rejected by the High Court on the reasoning that even if

there was no such provision in the Act or the Rules, the principles

laid down by the Supreme Court in the case of Suk Das (supra)

were applicable and, therefore, the respondent had a fundamental

right under Article 21 of the Constitution of India to be represented

by a legal practitioner. Article 21 commanded that no person shall

be deprived of his personal liberty except in accordance with the

procedure established by law and, therefore, it followed that when

a person was to be prosecuted, he must be afforded sufficient

opportunity to defend himself and, consequently, he must be given

legal aid. Failure to provide such legal aid vitiated the trial and in

these circumstances the trial was not proper and legal.

The learned Judge further observed that Rule 102 which

provided for an accused being represented by a defending officer

or a friend of the accused hardly satisfied the test of giving proper

opportunity to the accused to defend himself. The prosecution was

conducted by a prosecutor before the General Court Martial and

the Judge Advocate is appointed to assist the Court. The Judge

Advocate is an officer belonging to the department of the Chief

Legal Adviser or an officer approved by the Chief Legal Adviser.

The role of the Judge Advocate is to explain to the Court the legal

provisions in order to assist the Court to come to the right

conclusion. Thereafter the High Court observed :-

" In the instant case there was a prosecutor

for the prosecution and the Judge Advocate was

also appointed. The Judge Advocate always

represents the Chief Legal Advisor in a Court

Martial as per the provisions of Section 111.

Thus, the prosecution had the aid of a

prosecutor as well as a Judge Advocate whereas

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in the instant case though the petitioner was

insisting to have appointment of a Civil

Advocate, the same was not appointed. No

doubt initially a Defending Officer was helping

the petitioner but he had also withdrawn in the

midst of the trial. But merely because the

petitioner was given the assistance of the

Defending Officer, it could not be said that the

petitioner and the prosecution were in equal

position. In view of the present (sic) of the

prosecutor and the assistance of Judge

Advocate, the non-appointment of a Civil

Advocate for the petitioner has put the

petitioner in an unequal position."

The High Court, therefore, held that the denial of

petitioner's request for being represented by an advocate resulted

in miscarriage of justice, particularly in a case where the

prosecution itself alleged that the accused was suffering

psychologically to some extent. Refusal of any legal aid from a

legal expert or a person having expertise in law to such an accused

amounted to miscarriage of justice. The High Court was of the

view that the respondent was handicapped in conducting his

defence which was obvious from the fact that when he was

required to cross-examine the witnesses he requested the Court

Martial to grant him time so that he could consult his advocate in

this regard. For the same reason the respondent could not explain

to the Court Martial the relevancy of the witnesses whom he

wished to summon. He apprehended that he may disclose his

defence if he attempted to explain the relevancy of the concerned

witnesses and that would cause serious prejudice to him in the trial.

It was pointed out by the Union of India before the High

Court that in his application to the President of India, the

respondent has asked for appointment of the two advocates named

therein. An accused cannot insist on having an advocate of his

choice to defend him at State expense. The High Court observed

that even if an Advocate of his choice could not be given, the State

was bound to provide him legal assistance and this could be done if

a panel of advocates was prepared by the State and the respondent

was called upon to make his selection. The High Court, therefore,

concluded that the non-appointment of an advocate to defend the

accused resulted in miscarriage of justice and, therefore, the trial of

the petitioner stood vitiated.

Another grievance of the respondent was that he had given

two lists of witnesses, the first consisting of 24 names and the

second of 7 names. But when he requested the General Court

Martial to summon those witnesses the Judge Advocate advised

the General Court Martial that the respondent should be asked to

explain the relevancy of those witnesses and accordingly the

respondent was called upon to disclose the relevancy of each

witness and on what point he wished to examine him. The High

Court held that technically as well as legally the direction of the

Court Martial was proper and correct, but the Court Martial ought

not to have acted too technically since the respondent was not in a

position to state the relevancy of the witnesses without disclosing

his defence and, therefore, apprehended that he while attempting to

disclose the relevancy of witnesses may disclose his defence to his

prejudice.

The High Court noticed that the respondent, when called

upon to explain the relevancy of the witnesses, stated that he would

write letters to the witnesses who were out of Delhi. They were

officers of the Indian Air Force, some of them retired and some of

them in service. Only after getting their replies, he could state

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their relevancy to the Court and also whether he wanted to

examine any of them. He sought an adjournment on June 3, 1983

and prayed that the matter be adjourned till June 17, 1983.

However, he was granted an adjournment only for 4 days. The

High Court observed that it failed to understand how the General

Court Martial expected that the respondent would be in a position

to contact witnesses residing at Bombay, Bangalore etc. and get

their replies in 4 days. Thus by adjourning the hearing on June 3,

1983 to June 7, 1983 the General Court Martial denied reasonable

opportunity to the respondent to examine his defence witnesses.

The High Court then considered the complaint of the

respondent that he was not supplied copies of the proceedings

taking place every day despite his repeated requests. The non

supply of copies of evidence and proceedings amounted to denial

of reasonable opportunity to the accused to defend himself and was

also against the principles of natural justice. The High Court

accepting the submission held that the denial of copies of the

evidence and proceedings recorded every day, to the petitioner also

resulted in denying reasonable opportunity to him to defend.

Lastly the High Court considered the grievance of the

respondent that the prosecutor, the Judge Advocate and the

members of the General Court Martial met behind close doors and

changed the recorded proceedings and evidence after careful

editing. Portions favourable to the respondent were removed and

the depositions were changed to suit the prosecution and the

original statements destroyed. The High Court examined portions

of the typed record of proceedings produced by the petitioner and

found that on the same date some portion of the statement of the

Judge Advocate as well as the witnesses were typed on different

typewriters. The High Court also noticed that the evidence of

witnesses was recorded by the Court in long hand and it was not

dictated directly to the typists and the statements were

subsequently typed by the typists. Even the signatures of the

witnesses were not taken nor did the signatures of the Court appear

on those documents. The High Court, thereafter concluded :-

" Therefore, in these circumstances, the

procedure followed by the Court in conducting

the trial in question is also not proper as the

original statements of the witnesses recorded by

the Court in its own hand in the open court are

not preserved and when the petitioner is

alleging that there was tempering with the

evidence recorded, it has become very difficult

for us to come to a conclusion that the

allegations made by the petitioner are baseless

or false in the absence of the original record."

In view of these findings the High Court held that the trial of

the petitioner was vitiated and consequently the punishment

awarded to him was set aside.

Shri Raju Ramachandran, learned Additional Solicitor

General appearing on behalf of the appellant-Union of India

assailed the judgment of the High Court and submitted that the

finding recorded by the High Court that the failure of the

appellant to provide a counsel to the respondent at State

expense resulted in breach of the fundamental right of the

respondent guaranteed under Article 21 of the Constitution of

India, was recorded by the High Court in ignorance of the

provisions of Article 33 of the Constitution of India which

expressly empowers the Parliament to modify the rights

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conferred by Part III of the Constitution in their application to

the members of the armed forces. The High Court was,

therefore, in error in not considering the provisions of the Act,

as a law made by Parliament under Article 33 of the

Constitution of India modifying and restricting the right

conferred by Article 21 of the Constitution of India. In a Court

Martial trial the appellant was not required to provide a counsel

at State expense to the respondent, whose rights were governed

by the provisions of the Act and the Rules. They provided that

the appellant may be represented by an officer called "the

defending officer" or assisted by any person whose services he

may be able to procure who shall be called "the friend of the

accused" . The respondent was in fact permitted to engage a

counsel at his own expense but he failed to do so. Even the

friend of the accused, had to withdraw at the request of the

respondent. The respondent cannot be, therefore, heard to say

that prejudice was caused to him on account of non-compliance

of any of the provisions of the Act or the Rules. He further

submitted that in recording a finding that the respondent and the

prosecution were not equally placed in the proceedings before

the Court Martial, the High Court completely misunderstood

the duties of the Judge Advocate and the role played by him in

proceeding before the Court Martial. He also assailed the other

findings recorded by the High Court.

Learned counsel appearing on behalf of the respondent

submitted that the findings recorded by the High Court are

unassailable and he urged further grounds, which were not

urged before the High Court, to support the conclusion reached

by the High Court.

It is indeed surprising that while considering the

submissions urged on behalf of the respondent alleging the

breach of his fundamental right under Article 21 of the

Constitution of India, the High Court neither noticed the

provisions of Article 33 of the Constitution of India nor does it

appear to have been brought to its notice. Article 33 of the

Constitution of India expressly empowers the Parliament to

determine by law the extent to which any of the rights conferred

by Part III of the Constitution, in their application, inter alia, to

the members of the armed forces, shall be restricted or

abrogated to ensure the proper discharge of their duties and the

maintenance of discipline among them. The Parliament can,

therefore, in exercise of powers conferred by Article 33 of the

Constitution of India restrict or abrogate the fundamental rights

guaranteed under Part III of the Constitution in their application

to the members of the armed forces. It, therefore, follows

that if any provision of the Act or the Rules restricts or

abrogates any right guaranteed under Part III of the Constitution

of India, it cannot be challenged on the ground that it is

violative of the fundamental right as guaranteed under Part III.

It is no doubt true that the restriction or abrogation is dependent

on Parliamentary legislation and only a law passed by virtue of

Article 33 can override Articles 21 and 22 of the Constitution of

India. The law on the subject is fairly well settled and we may

only refer to some of the authorities on the subject. In Ram

Sarup vs. Union of India and another : AIR 1965 SC 247 a

Constitution Bench of this Court upholding the submission

urged by the Learned Attorney General observed :-

"The learned Attorney General has urged

that the entire Act has been enacted by

Parliament and if any of the provisions of

the Act is not consistent with the provisions

of any of the articles in Part III of the

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Constitution, it must be taken that to the

extent of the inconsistency Parliament had

modified the fundamental rights under those

articles in their application to the person

subject to that Act. Any such provision in

the Act is as much law as the entire Act. We

agree that each and every provision of the

Act is a law made by Parliament and that if

any such provision tends to affect the

fundamental right under Part III of the

Constitution, that provision does not, on that

account, become void, as it must be taken

that Parliament has thereby, in the exercise

of its power under Art. 33 of the

Constitution, made the requisite

modification to affect the respective

fundamental right. We are however of

opinion that the provisions of S. 125 of the

Act are not discriminatory and do not

infringe the provisions of Art. 14 of the

Constitution. It is not disputed that the

persons to whom the provisions of S. 125

apply do form a distinct class. They apply

to all those persons who are subject to Act

and such persons are specified in S. 2 of the

Act."

In Lt. Col. Prithi Pal Singh Bedi vs. Union of India and

others : (1982) 3 SCC 140 this Court observed :-

"Article 33 confers power on the

Parliament to determine to what extent any

of the rights conferred by Part III shall, in

their application to the members of the

Armed Forces, be restricted or abrogated so

as to ensure the proper discharge of duties

and maintenance of discipline amongst

them. Article 33 does not obligate that

Parliament must specifically adumbrate each

fundamental right enshrined in Part III and

to specify in the law enacted in exercise of

the power conferred by Article 33 the degree

of restriction or total abrogation of each

right. That would be reading into Article 33

a requirement which it does not enjoin. In

fact, after the Constitution came into force,

the power to legislate in respect of any item

must be referable to an entry in the relevant

list. Entry 2 in List I : Naval, Military and

Air Forces; any other Armed Forces of the

Union, would enable Parliament to enact the

Army Act and armed with this power the

Act was enacted in July 1950. It has to be

enacted by the Parliament subject to the

requirements of Part III of the Constitution

read with Article 33 which itself forms part

of Part III. Therefore, every provision of the

Army Act enacted by the Parliament, if in

conflict with the fundamental rights

conferred by Part III, shall have to be read

subject to Article 33 as being enacted with a

view to either restricting or abrogating other

fundamental rights to the extent of

inconsistency or repugnancy between Part

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III of the Constitution and the Army Act".

This Court referred to the observations in Ram Sarup

(supra) and held that the question was no longer res integra in

view of the decision of the Constitution Bench. The Court,

therefore, rejected the submission that the law which prescribed

procedure for trial of offences by Court Martial must satisfy the

requirement of Article 21 because to the extent the procedure is

prescribed by law and if it stands in derogation of Article 21, to

that extent Article 21 in its application to the armed forced is

modified by enactment of the procedure in the Army Act itself.

The Court noticed that there operate two conflicting public

interests; the maintaining of discipline in the Armed Forces to

safeguard national security, to ensure enjoyment by the people

of India of their fundamental rights, and the right of members

of Armed Forces themselves to fundamental rights.

In Delhi Police Non-Gazetted Karmachari Sangh and

others vs. Union of India and others : (1987) 1 SCC 115

the challenge to the Act and the Rules impugned therein was on

the ground of infringement of fundamental right guaranteed

under Article 19(1)(c) read with Article 19(4) of the

Constitution of India. It was argued in that case that

recognition of the Association carries with it the right to

continue the Association as such. It is a right flowing from the

fact of recognition. To derecognise the association in effect

offends against the freedom of association. This Court held :-

" That the Sangh and its members come

within the ambit of Article 33 cannot be

disputed. The provisions of the Act and

Rules taking away or abridging the freedom

of association have been made strictly in

conformity with Article 33. The right under

Article 19(1)(c) is not absolute. Article

19(4) specifically empowers the State to

make any law to fetter, abridge or abrogate

any of the rights under Article 19(1)(c) in

the interest of public order and other

considerations. Thus the attack against the

Act and Rules can be successfully met with

reference to these two articles as members

of the police force, like the appellants

herein, are at a less advantageous position,

curtailment of whose rights under Article

19(1)(c) comes squarely within Article 33 in

the interest of discipline and public order."

Having regard to the authorities it must be held that the

provisions of the Act cannot be challenged on the ground that

they infringe the fundamental right guaranteed to the

respondent under Article 21 of the Constitution of India. Since

the Air Force Act is a law duly enacted by Parliament in

exercise of its plenary legislative jurisdiction read with 33 of

the Constitution of India, the same cannot be held to be invalid

merely because it has the effect of restricting or abrogating the

right guaranteed under Article 21 of the Constitution of India or

for that reason under any of the provisions of Chapter III of the

Constitution.

It was not disputed before the High Court, nor was it

disputed before us, that the Act and the Rules framed

thereunder do not oblige the State/Union of India to engage at

the cost of the State a counsel for the officer who faces his trial

before the Court Martial. The High Court relying on the

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judgment of this Court in Suk Das vs. Union Territory of

Arunachal Pradesh (supra) held that the respondent had a

fundamental right under Article 21 of the Constitution of India

to obtain free legal service at the cost of the State if he was

unable to engage the services of a lawyer on account of poverty

or indigence. It clearly erred in applying the principles laid

down in that case. That was not a case dealing with a member

of the armed forces governed by a law enacted by Parliament,

which restricted or abrogated the right with a view to ensure the

proper discharge of duties and the maintenance of discipline

among members of the armed forces, and which the Parliament

was authorized to enact by virtue of Article 33 of the

Constitution.

We also fail to understand how the respondent can claim

that he was unable to engage the services of a counsel on

account of poverty or indigence. The respondent was an officer

of the Indian Air Force and was holding the rank of Flight

Lieutenant. He had served the Indian Air Force for many years.

The mere fact that he wrote to the President of India stating that

he was not in a position to engage an Advocate at his own cost,

was not sufficient to hold that he was unable to do so on

account of poverty or indigence. In any event, there being no

provision under the Act or the Rules to provide a defence

counsel at a State expense, the respondent could not claim such

a right de hors the Act and the Rules on the ground of Article

21 of the Constitution of India which stood restricted by the

Act.

We may notice at this stage that it is not as if the

respondent was not permitted to engage a counsel at his own

expense. The Court Martial permitted him to engage a counsel

at his own expense. After seeking several adjournments on this

ground, the respondent ultimately informed the Court Martial

that he was not in a position to engage counsel at his own

expense. In view of these facts the respondent cannot place any

reliance on the judgment of this Court in Major General Inder

Jit Kumar vs. Union of India and others : (1997) 9 SCC 1.

In that case, as was submitted by the respondent, time was

given to the appellant to engage a defence counsel. In the

instant case, as we have observed earlier, the respondent was

also given such an opportunity but he did not engage a defence

counsel of his choice at his own expense. Moreover in Major

General Inder Jit Kumar (supra) the Court was not called upon

to consider the claim of the appellant therein to be represented

by a counsel of his choice at State expense. In fact the

respondent has no such right under the Act. The respondent

does not even have a right to claim an advance from the State

for engaging a counsel at his own expense. In Union of India

and others vs. Major A. Hussain : (1998) 1 SCC 537 a

grievance was made before this Court by the respondent therein

that since further advance of Rs.15,000/- was not given to him

to engage another defence counsel he could not effectively

defend his case. Repelling the argument this Court observed :-

" The High Court, however, failed to

take notice of the fact that the respondent

was not entitled to any advance for the

purpose of engaging the defence counsel and

earlier as a special case an advance of

Rs.10,000 had been sanctioned. No Rule or

Army Instruction has been shown under

which the respondent was entitled to an

advance".

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It is futile for the respondent to rely upon the decision in

Board of Trustees of the Port of Bombay vs. Dilipkumar

Raghavendranath Nadkarni and others : (1983) 1 SCC 124 and

J.K. Aggarwal vs. Haryana Seeds Development Corporation

Ltd. and others : (1991) 2 SCC 283 as the principles laid down

therein are not applicable to the case of the respondent. The

employees concerned in those cases were not governed by any

law made by the Parliament and referable to exercise of

legislative authority under Article 33 of the Constitution of

India. This apart, in those cases this Court upheld the right of

the employees to be represented by a legal expert or a lawyer

only in those cases where the employer was represented by a

legally trained person. In the instant case, therefore, the

principle laid down therein has no application.

So far as the facts of this case are concerned it is clear

from the record that the respondent was informed that he was

not entitled to a civil defence counsel of his choice at State

expense but he was given the option of engaging a civil counsel

of his choice under own arrangement and at his own expense.

He was also informed that he could give the name of any

service officer whom he wished to have as his defending officer

and whose services will be made available to him free of cost.

Upon a written request of the respondent the services of Sqn.

Leader V.K. Sawhney, an officer with legal qualifications

having substantial experience as a defending officer in trial by

Court Martial was made available to him as "the friend of the

accused" by the convening authority. The respondent was also

advised that he could accept the services of the said officer as

his defending officer, if he so desired. Inspite of the options

given to the respondent and inspite of several adjournments, the

respondent did not engage a counsel at his own expense. When

the defence case commenced, the respondent dispensed with the

services of the "friend of the accused", whose services he had

asked for in writing.

We are, therefore, satisfied in the facts and circumstances

of the case that the provisions of the Act and the Rules were

scrupulously followed in the conduct of the Court Martial

proceedings and the respondent chose to defend himself

without seeking the help of the defending officer or the friend

of the accused. It, therefore, does not lie in his mouth to

complain that he was prejudiced in his defence on account of

the State not providing him defence counsel at State expense.

The finding recorded by the High Court is, therefore, wholly

unsustainable.

The High Court then considered the provisions of Rule

102 of the Rules and held that merely providing for the accused

being represented by the defending officer or friend of the

accused hardly satisfied the test of giving proper opportunity to

the accused to defend himself. According to the High Court the

prosecution was assisted by a prosecutor and the Judge

Advocate whereas the respondent was insisting for engagement

of an advocate at State expense, which was not granted. No

doubt a defending officer had been given to the petitioner but

he had also withdrawn in the midst of the trial. It cannot,

therefore, be said that the petitioner and the prosecutor were in

equal position.

The High Court erroneously referred to the respondent

being assisted by a defending officer when in fact he was being

assisted by a "friend of the accused", who was nominated at his

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own request. As noticed earlier, it was the respondent who

dispensed with the assistance of the friend of the accused and,

therefore, he cannot make a grievance of it. But the approach

of the High Court belies a complete misconception of the

functions and duties of the Judge Advocate and the role played

by him in a Court Martial proceeding. The High Court

proceeded on the assumption that the Judge Advocate, who

represents the Chief Legal Adviser in Court Martial

proceedings, is there to assist the prosecution and he alongwith

the prosecutor constitute a team against which is pitted the

hapless accused in the trial. In doing so the High Court

completely misdirected itself and laboured under a complete

mis-apprehension of the duties and the role of the Judge

Advocate.

Under Rule 110 of the Air Force Rules, 1969 an officer,

who is disqualified for sitting as a Court Martial, shall be

disqualified for acting as Judge Advocate at that Court Martial.

This rule ensures that the Judge Advocate also enjoys the same

impartiality as the President and Members of the Court Martial.

The powers and duties of the Judge Advocate have been laid

down in Rule 111 which provides that the prosecutor or the

accused, is at all times, entitled to his opinion on any question

of law relative to the charge or trial, whether he is or out of

court, subject, when he is in court to the permission of the

court. He is responsible for informing the court of any

informality or irregularity in the proceedings. Whether

consulted or not, he shall inform the convening officer and the

court of any informality in the proceedings or defect in the

charge, or in the constitution of the court, and shall give his

advice on any matter before the court. At the conclusion of the

case he shall, unless both he and the court consider it

unnecessary, sum up the evidence and give his opinion upon the

legal bearing of the case before the court proceeds to deliberate

upon its finding. The Judge Advocate has, equally with the

Presiding Officer, the duty of taking care that the accused does

not suffer any disadvantage in consequence of his position as

such or of his ignorance or incapacity to examine or cross-

examine witnesses or otherwise, and may, for that purpose,

with the permission of the court, call witnesses and put

questions to witnesses, which appear to him necessary or

desirable to elicit the truth. In fulfilling his duties, the Judge

Advocate must be careful to maintain an entirely impartial

position. Rule 111, therefore, which lays down the powers and

duties of the Judge Advocate leaves no room for doubt that

though a participant in the proceeding, he is not partisan. He

holds a brief neither for the prosecutor nor for the defence. He

must guide the Court Martial when questions of law arise and

render his honest opinion regardless of the consideration

whether it helps the prosecution or the defence. He is neither a

friend of the prosecutor nor an adversary of the defence. He

has to maintain an entirely impartial position charged with the

duty of taking care that the accused does not suffer any

disadvantage in consequence of his position as such. The Judge

Advocate performs a solemn obligation to advise honestly and

to guide dispassionately the Court Martial with the objective to

ensure a fair trial and justice according to law. The duties with

which he is charged and the impartiality expected by him must

assure the person being tried that he shall not suffer any

disadvantage on account of his position as such and that

whenever necessary intervention by Judge Advocate shall

ensure even handed justice. We, therefore, do not agree with

the conclusion reached by the High Court that the procedural

safeguards under the Act do not provide a level playing field

and that the dice is heavily loaded against the accused in a trial

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before the Court Martial. We cannot lose sight of the fact that

even the Judge Advocate is administered an oath/affirmation

before he enters upon his office. He is bound by his oath to

carry out the duties of his office in accordance with the Act and

the Rules without partiality, favour or affection and not on any

account, at any time, whatsoever, disclose or discover the vote

or opinion on any matter of any particular member of the Court

Martial, unless required to give evidence thereof by a court of

justice or a Court Martial in due course of law. The impartiality

of the Judge Advocate, is thus, ensured and it can never be

contended that in the scheme of the Act and the Rules the role

of the Judge Advocate is only to assist the prosecutor to secure

the conviction of the accused.

The next finding of the High Court is with regard to the

approach adopted by the Court Martial in regard to the

relevancy of witnesses, which the respondent was called upon

to disclose. The High Court itself found that there was nothing

wrong in the Court calling upon the respondent to disclose the

relevancy of each witness and the point on which the

respondent wished to examine him. The High Court, however,

went on to observe that the Court ought not to have acted too

technically since the respondent was not in a position to state

the relevancy of the witnesses without jeopardizing his defence.

The reason given by the High Court does not impress us. If the

direction of the Court Martial was in accordance with law, there

could be no justification to hold that obedience of law itself

resulted in prejudice to the respondent. In our view, in the facts

and circumstances of the case, the Court Martial was fully

justified in calling upon the respondent to satisfy the Court that

it was necessary to examine those witnesses in the trial. We say

so because a large number of witnesses were sought to be

examined. Many of them were Air Force officers, which

included some former Chief of the Air Staff as also the Chief of

the Air Staff. One fails to understand what possibly could be

the relevancy of these witnesses when the charge against the

respondent was that he had disobeyed the order of his superior

officer by not complying with the direction to submit himself to

a medical examination by the Board. To us it appears that the

request was not even bona fide and was a mere delaying tactics.

This apprehension appears to be justified in view of the fact that

the respondent asked for adjournment of the case by 14 days.

The purpose for which adjournment was sought was that he

would be writing to the witnesses concerned and only after

getting their response he would decide whether to examine

them before the Court Martial as his witnesses. This depicts the

peculiar approach of the respondent. He prayed for an

adjournment not on the ground that there was some difficulty in

producing these witnesses on a particular day, but on the

ground that he had not communicated with them and only after

communicating with them and getting their response, he would

be in a position to tell the Court whether he would examine

them and if so, which of them, as his witnesses. On such a

ground, the Court Martial would have been justified in rejecting

the prayer but the Court Martial granted him 4 days time and

accordingly adjourned the proceedings at his request. The High

Court has found fault with the Court Martial in not giving to the

respondent sufficient time to get replies from the witnesses. It

has gone to the extent of holding that the Court Martial denied

reasonable opportunity to the respondent to examine his

defence witnesses. We are of the view that this finding is

wholly unsustainable.

In the first instance Rule 89 of the Rules provides that

when a court is once assembled and the accused had been

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arraigned, the court shall, subject to the provisions of Rule 88,

continue the trial from day to day unless it appears to the court

that an adjournment is necessary for the ends of justice, or that

such continuance is impracticable. The normal rule, therefore,

is that the trial must continue from day to day and this is with a

view to expeditious disposal of the matter before the Court

Martial. Unfortunately the practice of seeking unnecessary

adjournments has become rampant with the resultant delay in

disposal of matters before adjudicatory authorities and the

courts. This practice has been deprecated by this Court. In

Union of India vs. Major A. Hussain (supra), this Court

observed :-

"Proceedings of a court-martial are not to be

compared with the proceedings in a criminal

court under the Code of Criminal Procedure

where adjournments have become a matter

of routine though that is also against the

provisions of law."

We, therefore, hold that no illegality was committed

either in calling upon the respondent to explain the relevancy of

the witnesses or in refusing a long adjournment, on the request

of the respondent.

In the facts and circumstances of the case the grievance

of the respondent that he was denied reasonable opportunity to

examine his defence witnesses is baseless.

The next grievance of the respondent which found favour

with the High Court is that he was not supplied copies of the

proceedings every day, though he had repeatedly asked for the

same. The appellant pointed out that neither under the Air

Force Act, 1950 nor the Air Force Rules, 1969 is there any

provision for supply of copies of the evidence and the

proceedings every day. But there is a provision which permits

the charged officer to inspect the record of proceedings.

Therefore, the request for supply of copies every day was not

tenable. The High Court held that merely because there are no

provisions in the Act and the Rules to supply copies, the Court

cannot deny the copies of evidence and the record of

proceedings to the accused and such denial amounts to denial of

reasonable opportunity to defend himself, as it was in violation

of the principles of natural justice.

Rule 125 of the of the Air Force Rules, 1969 provides as

follows :-

"125. Right of person tried to copies of

proceedings. - Every person tried by a

court martial shall be entitled on demand, at

any time after the confirmation of the

finding and sentence and before the

proceedings are destroyed, to obtain free of

cost from the officer or person having the

custody of the proceedings, a copy thereof,

including the proceedings upon revision, if

any."

Rule 100 is as follows :-

"100. Custody and inspection of

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proceedings. The proceedings shall be

deemed to be in the custody of the judge

advocate (if any), or, if there is none, of

the presiding officer, but may, with proper

precaution for their safety, be inspected by

the members of the court, the prosecutor

and accused, respectively, at all reasonable

times before the court is closed, to

consider the finding."

It will thus be seen that there is a specific provision in the

Rules which provides for copies of the proceedings to the

person tried by the Court Martial free of cost at any time after

the confirmation of the finding and sentence and before the

proceedings are destroyed. Clearly, therefore, the respondent

was not entitled to a copy of the proceedings day to day as

claimed by him. However, Rule 100 in terms provides that the

proceedings may be inspected by the accused at all reasonable

times before the court is closed to consider the finding.

Nothing, therefore, prevented the respondent from inspecting

the proceedings and preparing his defence. Rule 100 itself

incorporates the principle of natural justice by giving to the

respondent an opportunity to go through the proceedings and

for this purpose to inspect the same at all reasonable times. This

meets the requirement of principles of natural justice and the

respondent cannot complain on the ground that he was not

given a copy of the proceedings day to day. The High Court

was, therefore, clearly wrong in coming to the conclusion that

the principles of natural justice were violated by non supply of

copies of proceedings day to day.

The next allegation of the respondent which was

considered by the High Court was to the effect that the Judge

Advocate, the Prosecutor and the Court Martial were meeting in

closed chamber and then the original depositions were being

changed to favour the prosecution and after removing portions

favourable to the respondent, the statements of witnesses were

being re-typed and original statements were destroyed. The

High Court observed that the Court was recording the

proceedings in long hand and thereafter it was being typed.

Some pages of such typed record showed that some portions of

the submissions of the Judge Advocate as well as the witnesses

were typed on different typewriters. From this the High Court

jumped to the conclusion that the procedure followed by the

Court in conducting the trial was not proper as the original

statements of the witnesses recorded by the Court in its own

hand in the open Court were not preserved and the respondent's

allegation that records were tampered with could not be said to

be baseless or false. The respondent relied upon an affidavit

filed before the High Court by one Shri H.S. Siddhu who

attended the Court Martial proceeding and stated that once he

visited the room next to the Court Martial Room and he found

typists typing Court Martial records. He found that the

proceedings made by the Judge Advocate in manuscript were

being typed by one of the typists. The said manuscript had

several amendments made in red ink and even a whole para had

been redrafted. Thereafter the respondent had requested the

Court Martial to obtain his signatures on each and every page of

the manuscript proceedings on each day and to give him a copy

of the proceedings at the end of the day but that request was

refused. The respondent has not filed any affidavit of his own

but has chosen to file an affidavit of a former officer, which

also does not clearly establish that the records were being

tampered with. Obviously when the Judge Advocate records

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proceedings in long hand, the same has to be given a final shape

before it becomes a part of the record. That cannot be said to

be tampering with the record. Moreover the mere fact that

copies of the proceedings were typed on two different

typewriters does not necessarily lead to the conclusion that the

evidence was changed or the record was tampered. Very often,

with a view to quick disposal of work, the material to be typed

may be distributed to more than one typist. We, therefore, find

no force in the submission that the members of the Court

Martial, the Judge Advocate and the Prosecutor tampered the

record of proceedings with a view to prejudice the case of the

respondent. No specific instance was pointed out to us to

substantiate this charge.

We shall now take up for consideration the submissions

urged before us, which were not urged before the High Court.

It was submitted that the power to convene a Court

Martial cannot be delegated. In the instant case it was

contended by the learned counsel for the respondent that the

order convening the Court Martial was signed by Air Cdr. D.S.

Sabhikhi on behalf of the Air Marshal. The heading of the

document which is Annexure-R is as follows :-

"Orders by Air Marshal D.A. Lafotaine,

AVSM, VM, Air Officer In-charge

Personnel, Air Headquarters, IAF."

A ground was taken before the High Court (ground f)

that the convening of the General Court Martial was signed by

an officer, in whose name no delegation or such authority had

ever been made. In reply thereto the appellant had submitted

that the convening order was signed by the said officer on

behalf of the Air Officer Incharge Personnel, who had after due

application of mind, issued the order for convening the above

Court Martial. It was not disputed before us that the Air Officer

Incharge Personnel (AOP) was empowered to convene a Court

Martial. The only question which, therefore, requires

consideration is whether the order convening the General Court

Martial was passed by the AOP and it was only formally

communicated under signatures of Air Cdr. concerned or

whether the Air Cdr. named therein, who was not empowered,

himself passed the convening order. With a view to avoid any

controversy on this factual position, we directed the appellant to

produce before us the original file. We have perused the file

and we find that the order for convening the General Court

Martial was approved by Air Marshal D.A. Lafotaine, AOP.

There is, therefore, no force in the submission that the

convening order was unauthorized and, therefore, illegal.

The next submission urged before us, which does not

appear to have been urged before the High Court, was that the

order given by Wing Commander S.L. Gupta on June 18, 1982

was itself illegal and, therefore, the respondent was not bound

to obey that order. It was argued before us that there was an

undertaking by the appellant before this Court with regard to

the stay of medical board proceedings, which was due on 1st

May, 1980. No such recorded undertaking has been brought to

our notice and it is sought to be argued on the basis of the

counter-affidavit filed in the instant proceedings before the

High Court that even the appellant understood that an oral

undertaking had been given to the Court not to hold a medical

board till 1.5.1980. It is not possible for us to accept the ipse

dixit of the respondent that there was an oral undertaking given

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to this Court. All undertakings given to this Court are recorded

and even when an oral understanding is reached, one would

find some reference to it in the proceedings of the Court. In the

absence of any such material on record the contention of the

respondent that the appellant was bound by the oral undertaking

not to proceed with the medical board must be rejected. In any

event even if it is accepted, that an oral undertaking was given,

it was only to the effect that no medical board will be held till

1st May, 1980. There is no undertaking given thereafter. The

order of Wing Commander Gupta was issued on 18th June,

1982, more than two years later.

It was urged before us for the first time that the prayer

made by the respondent on 7th June, 1983 for examining

himself as a defence witness was refused. The respondent

contends that the said prayer was recorded in the proceedings.

However, no proceeding was brought to our notice wherein it

was recorded that the respondent shall not be allowed to

examine as a defence witness. On the contrary, it appears from

the extract of proceedings of the Court Martial, referred to by

the appellant in its counter-affidavit, that at page 180 of the

proceedings the following was recorded :-

"The court also decides to inform the

accused that since he has not brought out

any fresh points in his submission and

rejoinder, the court decides to proceed

further in the interest of justice.

The court is opened and the above

decision is announced to the accused in open

court. On being asked the accused confirms

that he has no witnesses to examine in his

defence. The court informs the accused that

since he has no witnesses to examine, the

defence case may be treated as closed. The

accused confirms that he does not wish to

examine any witness in his defence and that

the defence case is closed".

`

In these circumstances the submission that the respondent

was not permitted to examine himself as a defence witness must

be rejected.

In the result this appeal is allowed, the impugned

judgment and order of the High Court of Delhi dated August 3,

1995 is set aside and the Writ Petition being C.W.P. No.245 of

1986 dismissed. There shall be no order as to costs.