[1] SBCWP NO. 6013/2008 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. CIVIL WRIT PETITION NO. 6013/2008 MAJOR GENERAL A.K. LAL Vs. UNION OF INDIA & ORS. Date: 07/11/2008. HON'BLE MR. JUSTICE K.S. RATHORE Mr. P.N. Chaturvedi, Mr. Vijay K. Gupta, Mr. S.P. Sharma and Mr. Mahip Datta, Advocates for the petitioner. Mr. Sanjay Pareek, Advocate for the respondent UOI. Brig. T. Parshad, Dy. JAG. **** REPORTABLE The petitioner has preferred the instant writ petition for seeking writ, order or direction praying the following reliefs:- “(i) to quash the impugned order dated 19.06.2008 and restrain the respondents from conducting General Court Martial of the petitioner; (ii) to quash the entire proceedings initiated against the petitioner on the basis of the charge sheet dated 23/26.05.2008 (Annexure-P/12); (iii) to hold the entire action taken on the basis of the order dated 19.06.2008 and charge sheet dated 26.05.2008 as contrary and illegal to the order dated 17.03.2008 passed by the Hon'ble High Court at Delhi (Annexure- P/13); (iv) any other order or direction which the Hon'ble Court may deem just and proper in the facts and circumstances of the case may also kindly be passed in favour of the petitioner.” [2] SBCWP NO. 6013/2008 2. The petitioner was working as General Officer Commanding of 3 Infantry Division. On the instructions from Headquarter Northern Command, the petitioner started promoting meditation techniques as a stress buster to reduce suicide cases in High Attitude and difficult areas. The petitioner is a guide preceptor and can initiate people into meditation. 3. On 27/28.08.2007, Cap. Neha Rawat of 3 Infantry Division Signal Regiment was detailed by her Commanding Officer to undergo meditation sessions being conducted by the petitioner in the station. On 27.08.2007, Cap. Neha Rawat accompanied one officer's wife namely Mrs. Sharma for meditation session and herself participated in meditation session. On 28.08.2007 during meditation session, the petitioner advised Cap. Neha Rawat to give up drinking liquor if she was serious about continuing meditation as both the things do not go together. The petitioner had said that “Character of meditation requires high moral values and complete abstinence from liquor” and this advise was ill taken and misconstrued as if he was pointing out at her moral character. The said lady officer told the petitioner that she will ruin his character, to which the petitioner told her that she was like his daughter and asked her to have dinner, which she had. Complete staff members of the petitioner's residence were present during meditation and also at [3] SBCWP NO. 6013/2008 dinner. She left after having dinner cheerfully and on a happy note. 4. On 29.08.2007, a complaint was made to 14 Corps for false accusations by the petitioner against Cap. Neha Rawat. On 30.08.2007, Cap. Neha Rawat met Mrs. Bhardwaj, wife of GOC 14 Corps and on her insistence, made a written complaint to GOC 14 Corps and a conspiracy was hatched to initiate a false complaint against the petitioner. 5. It is further contended that on 31.08.2007, Col. Rajneeb Sanyal instructed Cap. Neha Rawat to pack up everything and move to “B” Officers Mess of 14 Corps. Cap. Neha Rawat moved along with her belongings to “B” Officers Mess of 14 Corps. 6. Learned counsel for the petitioner has also contended that late in the evening on 31.08.2007, a formal written complaint addressed to GOC 14 Corps said to have been filed and on 01.09.2007 Cap. Neha Rawat was granted leave by Headquarter 14 Corps and she proceeded on leave w.e.f. 01.09.2007. 7. On 04.09.2007, the petitioner was removed from Command of 3 Infantry Division and was attached to Headquarter 15 Corps at Srinagar. The Court of Inquiry commenced its proceedings on 10.09.2007. It is alleged that the petitioner was neither supplied the copy of the complaint nor of the convening [4] SBCWP NO. 6013/2008 order, which is against the settled law. On 25.09.2007, the proceedings of Court of Inquiry were concluded and as many as 27 witnesses were examined and cross examined. The petitioner vide his letter dated 30.11.2007 asked for certain copies of the documents and the same were supplied to him on 01.12.2007 without report, findings and recommendations of the Court of Inquiry. 8. On 02.12.2007, hearing of tentative charge proceedings was carried out against the petitioner by Lt. Gen. P.C. Bhardwaj, Commanding Officer, and GOC 14 Corps, who ordered Summary of Evidence to be recorded. The petitioner submitted his representation to the authorities including the Chief of Army Staff and Defence Minister, through which he pointed out serious irregularities taken place at the instance of Lt. Gen. H.S. Panag, GOC- in-C, Northern Command and Lt. Gen. P.C. Bhardwaj with the aim of fixing the petitioner. The Summary of Evidence was concluded on 20.12.2007. 9. Learned counsel appearing for the petitioner submits that on 01.03.2008 Lt. Gen. P.C. Bhardwaj took over as GOC-in-C Northern Command and became the Convening Authority of the petitioner in place of Lt. Gen. H.S. Panag, who since moved to Lucknow as GOC-in-C Central Command. As during investigation and Summary of Evidence, Lt. Gen. P.C. Bhardwaj had exercised the powers of Commanding [5] SBCWP NO. 6013/2008 Officer, he is now disqualified to be the Convening Authority under Regulation 449(b) and consequently holding of trial in Northern Command becomes illegal. 10. Vide letter dated 05.03.2008 the petitioner was informed by Headquarter 14 Corps that a Summary General Court Martial (SGCM) has been ordered by GOC-in-C Northern Command on 24.02.20008 and the Court will assemble at Akhnoor on 24.03.2008. 11. Aggrieved by the said order, the petitioner filed a statutory complaint to Central Government at Delhi under Section 27 of the Army Act praying for shifting the venue of trial from Northern Command to any other area in the country which is outside the Command influence of Lt. Gen. P.C. Bhardwaj and Lt. Gen. H.S. Panag. The petitioner also prayed for setting aside the Convening order dated 24.02.2008 being unlawful. 12. During pendency of the statutory appeal filed under Section 27 of Army Act, the petitioner preferred a writ petition bearing No. 2116/2008 before the Delhi High Court and vide order dated 17.03.2008 the Delhi High Court directed that statutory petition of the petitioner under Section 27 of the Army Act be decided by the competent authority within one month and the court martial proceedings, in the meantime, may go on but no final [6] SBCWP NO. 6013/2008 order will be passed, till disposal of the statutory petition under Section 27 of the Army Act. 13. Vide order dated 21.03.2008 the petitioner was attached to Headquarter I Corps under South Western Command and vide letter dated 19.06.2008 he was informed by the Headquarter I Corps that General Court Martial has been ordered by GOC-in-C South Western Command on 26.05.2008 and the Court will assemble at Bhatinda on 07.07.2008. 14. The petitioner was attached at Mathura under the South West Command having Headquarter at Jaipur. Although the statutory petition has been decided by the respondents but no copy of the decision has been provided to the petitioner. After changing the Headquarter, it is alleged that second convening order dated 26.05.2008 was passed and second charge-sheet dated 23.05.2008 was issued to the petitioner and the petitioner was informed vide letter dated 19.06.2008. 15. Thus being aggrieved with the impugned convening order dated 19.06.2008 and charge-sheet dated 23.05.2008/ 26.05.2008, the petitioner has preferred the instant writ petition challenging the aforesaid orders, inter-alia, on the ground that Lt. Gen. P.C. Bhardwaj, HQ 14 Corps Leh received the complaint of the petitioner as well as complaint of Cap. Neha Rawat on 29/30.08.2007 and 31.08.2007 [7] SBCWP NO. 6013/2008 respectively and it is not clear that both the complaints were forwarded by the Lt. Gen. P.C. Bhardwaj to Lt. Gen. H.S. Panag, GOC-in-C Northern Command and it appears that complaint of Cap. Neha Rawat was forwarded to GOC-in-C Northern Command and the complaint of the petitioner was retained, which resulted into passing a biased and partial order of convening dated 04.09.2007. 16. The impugned orders are further challenged on the ground that Lt. Gen. P.C. Bhardwaj with a pre-decided mind, retained the complaint of the petitioner by making false decisions and notings and blocked the same in illegal manner and without application of mind simply forwarded the complaint of Cap. Neha Rawat to GOC-in-C Lt. Gen. H.S. Panag with a contemplation to invite an order of convening of a Court of Inquiry. 17. It is also contended that the complaint originated on account of false and mischievous motivation of wife of Lt. Gen. P.C. Bhardwaj as Cap. Neha Rawat was not inclined to file a complaint of any nature at first instance. 18. Learned counsel appearing for the petitioner has also referred certain facts that in the evening of 30.08.2007 there was a meeting held between Cap. Neha Rawat and Mrs. P.C. Bhardwaj at her residence in 14 Corps at Leh. Further Cap. Neha [8] SBCWP NO. 6013/2008 Rawat was ordered to report at 14 Corps, HQ Leh and was relieved from 3 Infantry Division at Karu under the Command of the petitioner and later on she proceeded to leave on 01.09.2007. 19. It is also contended that the alleged complaint is made on 31.08.2007 under two different signatures on two sets of the complaints and thus, Lt. Gen. P.C. Bhardwaj initiated conspired acts through his wife by taking cognizance to the alleged complaint under different signatures by forwarding the same to GOC-in-C Northern Command at Udhampur. At the same time the complaint of the petitioner dated 29/30.08.2007 which is prior in time, is simply ignored and brushed aside. 20. Learned counsel for the petitioner further submits that as many as 27 witnesses were examined and cross examined in a span of about 15 days and the Court of Inquiry was concluded on 25.09.2007, which clearly demonstrates violation of principle of natural justice. Further the material witness was not examined in the Court of Inquiry deliberately and the witnesses were pressurised to give statement against the petitioner and the order of convening dated 04.09.2007 was leaked to the Press just to malign the reputation of the petitioner and the said order of convening dated 04.09.2007 is a non- speaking order. [9] SBCWP NO. 6013/2008 21. Learned counsel for the petitioner also referred Rule 22 of the Army Rules, 1954 (for short 'the Rules of 1954'), which reads as under:- “22. Hearing of Charge.- (1) Every charge against a person subject to the Act shall be heard by the Commanding Officer in the presence of the accused. The accused shall have full liberty to cross- examine any witness against him, and to call such witness and make such statement as may be necessary for his defence: Provided that where the charge against the accused arises as a result of investigation by a Court of inquiry, wherein the provisions of rule 180 have been complied with in respect of that accused, the commanding officer may dispense with the procedure in sub-rule(1). (2) The commanding officer shall dismiss a charge brought before him if, in his opinion the evidence does not show that an offence under the Act has been committed, and may do so if, he is satisfied that the charge ought not to be proceeded with: Provided that the commanding officer shall not dismiss a charge which he is debarred to try under sub-section (2) of Sec. 120 without reference to superior authority as specified therein. (3) After compliance of sub-rule(1), if the commanding officer is of opinion that the charge ought to be proceeded with, he shall within a reasonable time- (a) dispose of the case under section 80 in accordance with the manner and form in Appendix III; or (b) refer the case to the proper superior military authority; or [10] SBCWP NO. 6013/2008 (c) adjourn the case for the purpose of having the evidence reduced to writing; or (d) if the accused is below the rank of warrant officer, order his trial by a summary court- martial: Provided that the commanding officer shall not order trial by a summary court-martial without a reference to the officer empowered to convene a district court-martial or on active service a summary general court-martial for the trial of the alleged offender unless- (a) the offence is one which he can try by a summary court- martial without any reference to that officer; or (b) he considers that there is grave reason for immediate action and such reference cannot be made without detriment to discipline. (4) Where the evidence taken in accordance with sub-rule (3) of this rule discloses an offence other than the offence which was the subject of the investigation, the commanding officer may frame suitable charge(s) on the basis of the evidence so taken as well as the investigation of the original charge.” 22. After referring Rule 22 of the Rules of 1954, learned counsel Mr. Gupta submits that the provisions of Rule 22 are not complied with and are violated in as much as the hearing of charge was dispensed with U/O 22 Rule 1 on account of Rule 180 whereas totally extraneous charges were framed which are even not alleged in the complaint. 23. He also referred Rules 22(2) and 22(3) and [11] SBCWP NO. 6013/2008 contended that compliance of Rule 22 is mandatory which has not been complied with. 24. Learned counsel Mr. Gupta further referred Rules 23, 24, 28, 30, 31 and 37 of the Army Rules, 1954 which read as under:- “23. Procedure for taking down the summary of evidence.-(1) Where the case is adjourned for the purpose of having the evidence reduced to waiting, at the adjourned hearing evidence of the witnesses who were present and gave evidence before the commanding officer, whether against or for the accused, and of any other person whose evidence appears to be relevant, shall be taken down in writing in the presence and hearing of the accused before the commanding officer or such officer as he directs. (2) The accused may put in cross-examination such questions as he thinks fit to any witness, and the questions together with the answers thereto shall be added to the evidence recorded. (3) The evidence of each witness after it has been recorded as provided in the rule when taken down, shall be read over to him, and shall be signed by him, or if he cannot write his name shall be attested by his mark and witnessed as a token of the correctness of the evidence recorded. After all the evidence against the accused has been recorded, the accused will be asked: “Do you wish to make any statement? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence.” Any statement thereupon made by the accused shall be taken down and [12] SBCWP NO. 6013/2008 read to him, but he will not be cross-examined upon it. The accused may then call his witnesses, if he so desires, any witnesses as to character. (4) The evidence of the witnesses and the statement (if any) of the accused shall be recorded in the English language. If the witness of accused, as the case may be, does not understand the English language, the evidence or statement, as recorded, shall be interpreted to him in a language which he understands. (5) If a person cannot be compelled to attend as a witness, or if owing to the exigencies of service or any other grounds (including the expense and loss of time involved), the attendance of any witness cannot in the opinion of the officer taking the summary (to be certified by him in writing), be readily procured, a written statement of his evidence purporting to be signed by him may be read to the accused and included in the summary of evidence. (6) Any witness who is not subject to military law may be summoned to attend by order under the hand of the commanding officer of the accused. The summons shall be in the form provided in Appendix III. 24. Remand of accused.- (1) the evidence and statement (if any) taken down in writing in pursuance of rule 23 (hereinafter referred to as the “summary of evidence”), shall be considered by the commanding officer, who thereupon shall either- (a) remand the accused for trial by a court-martial; or (b) refer the case to the proper superior military authority; or [13] SBCWP NO. 6013/2008 (c) if he thinks it desirable, re-hear the case and either dismiss the charge or dispose of it summarily. (2) If the accused is remanded for trial by a court- martial, the commanding officer shall without unnecessary delay either assemble a summary court- martial (after referring to the officer empowered to convene a district court-martial when such reference is necessary) or apply to the proper military authority to convene a court-martial, as the case may require.” 28. Charge-sheet and charge. -(1) A charge-sheet shall contain the whole issue or issues to be tried by a court-martial at one time. (2) A charge means an accusation contained in a charge- sheet that a person subject to the Act has been guilty of an offence. (3) A charge-sheet may contain one charge or several charges. 30. Contents of charge.- (1) Each charge shall state one offence only and in no case shall an offence be described in the alternative in the same charge. (2) Each charge shall be divided into two parts- (a) statement of the offence; and (b) statement of the particulars of the act, neglect or omission constituting the offence. (3) The offence shall be stated, if not a civil offence, as nearly as practicable in the words of the Act, and if a civil offence, in such words as sufficiently describe in technical words. (4) The particulars shall state such circumstances [14] SBCWP NO. 6013/2008 respecting the alleged offence as will enable the accused to know what act, neglect or omission is intended to be proved against him as constituting the offence. (5) The particulars in one charge may be framed wholly or partly by a reference to the particulars in another charge, and in that case so much of the latter particulars as are so referred to, shall be deemed to form part of the first mentioned charge as well as of the other charge. (6) Where it is intended to prove any facts in respect of which any deduction from pay and allowances can be awarded as a consequence of the offence charged, the particulars shall state those facts and the sum of the loss or damage it is intended to charge. 31. Signature on charge- sheet.- The charge-sheet shall be signed by the commanding officer of the accused and shall contain the place and date of such signature. 37. Convening of General and District Court-martial. -(1) An officer before convening a general or district court-martial shall first satisfy himself that the charges to be tried by the court are for offences within the meaning of the Act, and that the evidence justifies a trial on those charges, and if not so satisfied, shall order the release of the accused, or refer the case to superior authority. (2) He shall also satisfy himself that the case is a proper one to be tried by the kind of court-martial which he proposes to convene. (3) The officer convening a court-martial shall appoint or detail the officers to from the court and, may also appoint, or detail such waiting officers as he [15] SBCWP NO. 6013/2008 thinks expedient. He may also, where he considers the services of an interpreter to be necessary, appoint or detail an interpreter to the court. (4) The officer convening a court-martial shall furnish to the senior member of the court with the original charge-sheet on which the accused is to be tried and, where no judge-advocate has been appointed, also with a copy of the summary of evidence and the order for the assembly of the court-martial. He shall also send, to all the other members, copies of the charge-sheet and to the judge-advocate when one has been appointed, a copy of the charge- sheet and a copy of the summary of evidence.” 25. After referring the aforesaid Rules, learned counsel Mr. Gupta has contended that the provisions of Rules 22 to 37 are mandatory in nature and the mandatory provisions are not followed by the respondents and in support of his submissions, he placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Prithi Pal Singh Bedi Vs. Union of India and others, reported in 1982 SC 1413. 26. Learned counsel for the petitioner further placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Union of India and others Vs. Dev Singh, reported in Mil LJ 2003 SC 146, wherein the Hon'ble Supreme Court has held that “On initiation of the Court Martial Proceedings itself, the respondent raised the contention that [16] SBCWP NO. 6013/2008 the preliminary proceedings which directed the initiation of court Martial was in violation of Rule 22- Court Martial failed to consider the preliminary objection of the respondent- Advantage cannot be taken by the appellant herein to contend that in subsequent proceedings the lacuna, if any, in the preliminary proceedings have been rectified.” 27. It is vehemently argued by learned counsel Mr. Gupta that Summary of General Court Martial convened in the earlier command i.e. Northern Command under Army Rule 37 after conducting proceedings under Army Rule 22, 23, 24 and 31 has been annulled, cancelled and barred. No fresh proceedings or de-novo proceedings under Army Rule 22 and 23 has been done in the present command. According to the respondents new command resumed and restarted the disciplinary proceedings from the stage, such proceedings were left in the earlier command i.e. Northern Command. Further the compliance of Army Rule 24 has been done in the new command i.e. South Western Command by issuing a certificate. The certificate dated 02.12.2007 is the statutory compliance of Army Rules 180. 28. It is further contended that the fresh proceedings on the same complaint cannot be initiated again at all, however, in case the Army Authorities intends to continue with their perceived vendetta and exuberantion, a fresh complaint is [17] SBCWP NO. 6013/2008 necessary or independent facts followed by strict compliance of mandatory provisions such as 22, 23,24 31 and 37 to initiate any disciplinary proceedings. 29. Further after the annulment of proceedings in terms of Section 165 of the Army Act, the dead issue cannot be revived by merely changing the command. 30. Per contra, learned counsel Mr. Pareek appearing on behalf of the respondent Nos. 1 to 4 has raised preliminary objection regarding maintainability of the writ petition and submits that the writ petition is liable to dismissed being premature as at present no adverse order has been passed against the petitioner. The petitioner has only been asked to face the duly constituted General Court Martial under the provisions of Army Act and Rules for the offence committed by him. The trial by General Court Martial is conducted as per the provisions of the Army Act, an Act framed by the Parliament for trial of offenders. The said Army Act, 1950 has been enacted by the Parliament in the light of Article 33 of the Constitution of India and as per the provisions of the Army Act, the petitioner shall be afforded all opportunities to defend himself as trial by a General Court Martial is an open trial. The petitioner can hire the services of civil counsels to defend himself. The entire evidence shall be led on oath and right of [18] SBCWP NO. 6013/2008 cross-examination shall be afforded to the petitioner. The petitioner shall have right to object to the members under Army Rule 44, shall have right to