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UNION OF INDIA VS EX. NO. 3192684 W. SEP. VIRENDER KUMAR
The case of Union of India vs Ex. No. 3192684 W.Sep. Virender Kumar dealt with non-compliance with Rule 180 of Army Rules Act, 1954 being a ground for ordering a retrial. Rule 180 of the Army Rules Act,1954 states that procedure when the character of a person subject to the Act is involved.
Brief Facts of the Case:
In the present case, Virender Kumar (respondent) killed a fellow soldier Havildar Harpal, accidentally and sustained gunshot injuries himself. The General Court Martial convicted the Respondent under Section 302 IPC for the murder of Havildar Harpal and for attempting to commit suicide. Virender Kumar was sentenced to imprisonment for life and was to be dismissed from service. Aggrieved, the respondent challenged the stated decision to the Armed Forces Tribunal for non-compliance with Rule 180 of the Army Rules, 1954. Though several grounds were taken before the Tribunal to challenge the order of the General Court Martial, the principal claim of the Respondent was non-compliance with Rule 180 of the Army Rules 1954. The Tribunal decided the petition by referring to the contention relating to Rule 180. The Tribunal stated that Rule 180 provides that a person against whom an inquiry is conducted to be present throughout the inquiry. As without doubt, the Respondent was refused permission to be present when statements of witnesses were being recorded before the Court of Inquiry, the Tribunal inferred that the entire trial against the Respondent is revoked. The Tribunal set aside the order of the Court Martial and repealed the matter for a new trial from the stage of Court of Inquiry in the exercise of its power under Section 16 of the Armed Forces Tribunal Act, 2007. Section 16 of the Armed Forces Tribunal deals with re-trial.
Judgment and Observations:
When the matter reached before the Supreme Court, the Appellant had argued that as the Respondent was allowed to cross-examine witnesses as provided in Rule 22 and during the Court Martial proceedings which he did not appropriate, there is no failure on part of the law. It was further submitted that the Court of Inquiry is only for the collection of evidence and any violation of the procedure prescribed under Rule 180 does not vitiate the proceedings of the Court Martial. The respondent, on the other hand, contended that the collection of evidence by the Court of Inquiry is a critical stage during which the accused is entitled to be provided with an opportunity as observed in Rule 180. Violation of the procedure prescribed in Rule 180 would render the entire proceedings void. The Apex Court observed that the only point considered by the Tribunal is Rule 180 and the effect of non-compliance of the said Rule. The Supreme Court in Major G.S. Sodhi v. Union of India (1991) 2 SCC 382 rejected the challenge to the Court Martial proceedings while dismissing the Writ Petitions filed under Article 32 of the Constitution. In Union of India & Ors. v. Major A. Hussain (IC-14827) (1998) 1 SCC 537, this Court while setting aside the judgment of the High Court of Andhra Pradesh upheld the order of conviction of the respondent by the Court Martial.
Based on these judgments, the Apex court deduced the following: (a) The proceedings of a Court of Inquiry are like a fact-finding inquiry conducted at a stage prior to the investigation; (b) The accused is entitled to full opportunity as provided in Rule 180; (c) As a final order of conviction is based on a trial by the Court Martial, irregularities at the earlier stages cannot be grounds for setting aside the order passed by the Court Martial; (d) If the accused raises a ground of non-compliance with Rule 180 during the framing of charge or during the recording of summary of the evidence, the authorities have to amend the defect as the assent of the procedure prescribed in Rule 180 is essential.
The Supreme Court held that: 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 bring it to notice 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 based on 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. 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 require a retrial. The Tribunal does not have jurisdiction to order re-trial on any other ground except that mentioned in Section 16(2). Non-compliance with Rule 180 cannot be a basis for ordering a re-trial. The Supreme Court also held that the Tribunal could only order a re-trial of a Court Martial proceeding. 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 infringement of Rule 180 of the Army Rules.
The order passed by the Tribunal commanding a de novo inquiry from the stage of Court of Inquiry was set aside and the appeal was accordingly allowed.
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