Supreme Court: In a case where an Armed Force Tribunal ordered retrial on the ground that the procedure prescribed in Rule 180 of the Army Rules, 1954 had not been followed, the bench of L. Nageswara Rao and Ajay Rastogi, JJ has held that non-compliance of Rule 180 cannot be a ground for ordering a re-trial as the Tribunal does not have jurisdiction to direct re-trial on any other ground except that mentioned in Section 16(2) of the Armed Forces Tribunal Act, 2007.
The Court was hearing a case where, in a firing incident, a soldier (respondent) killed a fellow soldier, while he himself sustained gunshot injuries. The General Court Martial convicted the respondent for murder and for attempting to commit suicide. He was sentenced to suffer imprisonment for life and to be dismissed from service. The respondent then challenged the said decision before the Armed Force Tribunal, primarily, on the ground of non-compliance of Rule 180 of the Rules. 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. The Tribunal concluded that the entire trial against the Respondent is vitiated 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.
Rule 180 deals with the procedure for inquiry where the character of a person who is subject to the Act is involved. When an inquiry affects the character or military reputation of a person who is subject to the Act, full opportunity has to be provided to the person throughout the inquiry, of making any statement, of giving any evidence he may wish to make or give, and of cross-examining any evidence.
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.
When the matter reached before the Supreme Court, appellant had argued that As the Respondent was given an opportunity to cross-examine witnesses as provided in Rule 22 and during the Court Martial proceedings which he did not utilize, there is no failure of justice. It was further submitted that Court of Inquiry is only for 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, argued that the collection of evidence by the Court of Inquiry is a crucial stage during which the accused is entitled to be provided with an opportunity as contemplated in Rule 180. Violation of the procedure prescribed in Rule 180 would render the entire proceedings void.
Considering the provisions in question and various rulings, the Court concluded:
(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 obligatory.
It, hence, held that the Tribunal has competence only to order re-trial by the Court Martial and that there is no power conferred on the Tribunal to direct the matter to be remanded to a stage prior to the Court Martial proceedings.
[Union of India v. Ex. No. 3192684 W. Sep. Virendra Kumar, 2020 SCC OnLine SC 12, decided on 07.01.2020]