UNION OF INDIA AND OTHERS versus IC-14827 MAJOR A. HUSSAIN

Citation: [1997] SUPP. 6 S.C.R. 218 · Decided: 08-12-1997 · Supreme Court of India · Bench: SUJATA V. MANOHAR · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
UNION OF INDIA AND OTHERS 
v. 
IC-14827 MAJOR A. HUSSAIN 
DECEMBER 8, 1997 
B 
[SUJATA V. MANOHAR AND D.P. WADHWA, JJ.] 
Constitution of India : Articles 226 and 227-Court ma1tial proceed-
ings-Subject to judicial review under Article 226-But not to superintendence 
under Article 227-'"'/llo inte1fere11ce-Court martial properly convened and fair 
C procedure followed. : 
Anny Rules '1954 : Rules 180 a11d 184-Accused not entitled to 
report-Cowt of i11qitity-Nature of proceedings-Not adversmial-Not part 
of pre-trial investigation. 
D 
Rules 22, 23, 24 & Anny Order 70/84-f'rovisions relating to recording 
of summary evidence--Due compliance-No flagra11t violation of any proce-
dure or provisiort-No prejudice caused to accused-Trial hot vitiated. 
Rules 95, 96 and 105 : Cowt ma1tiat---<:hoice of defending Of-
ficer-Non availability--Accused refusing se1vices of def ending officers 
E provided by convening officer-Not entitled to advance for engaging civilian. 
defence counsel-No denial of assistance of def e11di11g office1-Cowt martial 
11ot vitiated. 
Rules 81 & 82 : T1ial by GCM----Day to day-No sufficient ground for 
F granting adjoumment----Request denied-Proceedings cannot be said to be 
conducted with undue haste. 
Rule 149 : Sufficient evidence agai11st the accused-Court martial 
havi11g jurisdiction over subject matter-Prescribed procedure fol-
lowed--Pu11ishme11t awarded withi11 the powers of the GCM----Validity of 
G co11viction and sellte11ce cannot be challenged. 
While serving as Ground Liaison Officer, Respondent by neglect lost 
certain classified documents. The Court of Inquiry fixed responsibility for 
the loss of documents on him and recommended initiation of disciplinary 
proceedings. The bearing of the charge was conducted before the Com-
H mantling Officer and the summary of evidence was recorded in the presence 
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U.O.I. v. IC-14827MAJORA HUSSAIN 
219 
of the respondent who fully participated in the proceedings and cross A 
examined the witnesses produced against him. The Commanding Officer of 
the Respondent recommended his trial by General Court Martial (GCM). 
The commencement of the GCM proceedings were delayed as the 
respondent proceeded on leave, and were interrupted because of stay B 
orders passed in various writ petitions filed by him. The GCM was finally 
convened on 14.9.1987. The respondent was provided with copies of all 
relevant documents and given opportunity to inspect whatever other docu-
ments he requested for. He was given full facilities for defending himself, 
in accordance with army rules and regulations. He engaged the services of 
a civilian defence counsel for the purpose of which an advance of Rs. 10,000 C 
was given to him as a special case by the Army authorities. The trial 
proceedings were conducted on a day-to- day basis in accordance with the 
rules. In the midst of the proceedings, the respondent's defence counsel 
withdrew from the case. On being asked by the Convening Officer about 
his choice of Defending Officer, the respondent named three officers, D 
belonging to the Judge Advocate General Branch who were not available 
due to exigencies of service. The Convening Officer offered him the services 
of three experienced and qualified defending officers one after another, but 
he refused to avail the same. The respondent was given full opportunity to 
cross examine the witnesses but he refused to do so on the ground that he 
had not been provided with the services of a defence counsel, and that he E 
was nnable to engage one due to paucity of funds. 
The GCM held the respondent to be guilty of the charge, and he was 
sentenced to be dismissed from service vide order dated 26.12.1987. This 
sentence was also confirmed by the confirming authority as required under F 
the Army Act. 
The respondent challenged his conviction and confirmation of sen-
tence by way of a writ petition in the High Court of Andhra Pradesh. Single 
Judge examined minutely the record of the GCM and quashed the GCM 
proceedings and the confirmation of sentence on the ground that the G 
respondent had been denied reasonable opportunity to defend himself. The 
grounds that found favonr with the Single Judge were that the conclusion 
in Rule 22 Inquiry was not communicated to the respondent; copies of 
statement in earlier Court of Inquiry were not supplied to him in proceed-
ings under Section 22; the respondent was not given defending officer of 
his choice during the GCM; loa

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