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SUPREME COURT OF INDIA
L. NAGESWARA RAO, AJAY RASTOGI, JJ.
Union of India & Ors. – Appellant(s)
Versus
Ex. No. 3192684 W. Sep. Virendra Kumar – Respondent(s)
Civil Appeal No. 9267 of 2019 (@ Diary No.10621 of 2018)
Decided On : 07-01-2020
(A) Army Act, 1950 – Sections 64(c) and 69 read with Section 302 of IPC – Army Rules, 1954 – Rule 180 – Armed Forces Tribunal Act, 2007 – Section 16 – Dismissal from service – Charge of committing murder of colleague and for attempting to commit suicide – Proceedings of a Court of Inquiry are in nature of a fact-finding inquiry conducted at a pre-investigation stage – Accused is entitled to full opportunity as provided in Rule 180 – As a final order of conviction is on the basis of a trial by Court Martial, irregularities at earlier stages cannot be the basis for setting aside order passed by Court Martial – Though there is non-compliance of Rule 180 of Army Rules in this case as Respondent was not present during recording of statements of witnesses, Respondent did not raise this ground either at stage of framing of charge, recording summary of evidence or during Court Martial proceedings – After a final order was passed by Court Martial on the basis of a full-fledged trial, it is not open to Respondent to raise ground of non-compliance of Rule 180 during Court of Inquiry proceedings – Tribunal ought not to have remanded the matter back for a de novo inquiry from stage of Court of Inquiry on the ground of infraction of Rule 180 of Army Rules. (Paras 12 and 13)
(B) Armed Forces Tribunal Act, 2007 – Section 16 – Army Act, 1950 – Sections 64(c) and 69 read with Section 302 of IPC – Army Rules, 1954 – Rule 180 – Dismissal from service – Charge of committing murder of colleague and for attempting to commit suicide – Tribunal is competent to direct re-trial only in case of evidence made available to Tribunal was not produced before Court Martial and if it appears to Tribunal that interests of justice requires a re-trial – Re-trial that was ordered by Tribunal in this case is on the basis that procedure prescribed in Rule 180 of Army Rules has not been followed – 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 – There is no power conferred on Tribunal to direct the matter to be remanded to a stage prior to Court Martial proceedings – Order passed by Tribunal directing a de novo inquiry from stage of Court of Inquiry requires to be set aside – Order of Tribunal set aside and application remanded back to Tribunal to be considered on its own merits. (Para 15)
Facts of the case:
The Respondent was enrolled as a Soldier in 20 Jat Firing Team. A firing incident took place at around 8.45 a.m. on 02.10.2004, when the team was practicing firing at Jat Regimental Centre. During the incident, a Havildar and the Respondent sustained gunshot injuries. Havildar succumbed to the bullet injuries and the Respondent was admitted at hospital due to injuries. A First Information Report was lodged at the Police Station, Sadar Cantonment, Bareilly. A preliminary investigation was initiated by Staff Court of Inquiry as per the directions of the Station Headquarters, Bareilly which concluded on 25.11.2004. Order of dismissal of Respondent was set aside by the judgment of Armed Forces Tribunal, Regional Bench, Lucknow aggrieved by which this Appeal is filed.
Findings of Court:
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 Tribunal in this case is on the basis that the procedure prescribed in Rule 180 of the Army Rules has not been followed. Tribunal does not have jurisdiction to direct re-trial on any other ground except that mentioned in Section 16(2).
Result : Appeal allowed.
JUDGMENT
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. 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.
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. 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 noncompliance 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.
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 18
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