Case: UNION OF INDIA Vs. EX NO. 3192684 W SEP. VIRENDRA KUMAR

2. The Respondent was enrolled as a Soldier in 20 Jat Firing T eam 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 suicideb) to counsel Lt. Rajiv Menon for not implementing the relevant instructions during the conduct of firing practices at the rangesc) 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 peace3. 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 Tribunal4. Though several grounds were taken before the Tribunal to challenge the order of the General Court Martial, the principal contention of the Respondent was non- compliance 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.

Reasoning:
12. A close scrutiny of the above judgments would indicate(a) The proceedings of a Court of Inquiry are in the nature of a fact-finding inquiry conducted at a pre- investigation stage;(b) The accused is entitled to full opportunity as provided in Rule 180;(c) As a final order of conviction is on the basis of a trial by the Court Martial, irregularities at the earlier stages cannot be the basis for setting aside the order passed by the Court Martial;(d) If the accused raises a ground of non-compliance of Rule 180 during the framing of charge or during the recording of summary of evidence, the authorities have to rectify the defect as compliance of the procedure prescribed in Rule 180 is obligatory13. Though there is non-compliance of Rule 180 of the Army Rules in this case as the Respondent was not present during the recording of the statements of witnesses, it is clear from the record that the Respondent did not raise this ground either at the stage of framing of the charge, recording summary of evidence or during the Court Martial proceedings. After a final order was passed by the Court Martial on the basis of a full-fledged trial, it is not open to the Respondent to raise the ground of non- compliance of Rule 180 during the Court of Inquiry proceedings. Therefore, the Tribunal ought not to have remanded the matter back for a de novo inquiry from the stage of Court of Inquiry on the ground of infraction of Rule 180 of the Army RulesSection 16 of the Army Act, 195015. The power conferred on the Tribunal to direct re-trial by the Court Martial is only on the grounds mentioned in Section 16(2). The 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 the Tribunal in this case is on the basis that the procedure prescribed in Rule 180 of the Army Rules has not been followed. The 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. In addition, the Tribunal has competence only to order re-trial by the Court Martial. There is no power conferred on the Tribunal to direct the matter to be remanded to a stage prior to the Court Martial proceedings. Therefore, we are of the view that the order passed by the Tribunal directing a de novo inquiry from the stage of Court of Inquiry requires to be set aside.