JUDGMENT Sudhir Agarwal, J.
1. The respondent-appellants have preferred this appeal against the judgment dated 29.8.2001 passed by the Hon'ble Single Judge whereby the writ petition No. 29244 of 1999 of the petitioner-respondent has been allowed and setting aside the punishment order dated 16.9.1997 and appellate order dated 28.5.1999 the appellants are directed to provide all consequential benefits to the petitioner-respondent.
2. Brief facts giving rise to this case are that the petitioner-respondent was enrolled on 25.10.1980 and earmarked for Army Service corps. He remained posted at different places and on 15.3.1993 was posted to 680 Tk Tptr P1 ASC, where the Officer Commanding was Lt. Col. P. Bhatnagar On 6th August 1994, when the petitioner was on Sentry Duty at main gate around 23.00 Hrs., a Civil Truck bearing registration No. MP-20 E 0043 entered garage entrance gate which was across the road diagonally opposite to the Main Entrance Gate. The petitioner-respondent becoming suspicious raised alarm and checked the vehicle whereupon found four empty barrels of Fuel, Oils & Lubricants (in short FOL) loaded in the vehicle and the driver was a civilian, who confessed that he used to come with empty barrels and go with filled barrels. The petitioner claims to have informed the higher authorities about this matter, but it appears that one Naib-subedar Lal Singh came as Duty JCO and got the barrels filled whereafter the vehicle was permitted to go. The petitioner claimed that Lt. Col. P. Bhatnagar was involved in the aforesaid activities. However in order to harass the petitioner-respondent, he got departmental proceedings initiated. A Court of Inquiry was ordered against the petitioner and a tentative charge-sheet dated 5.9.1995 was issued which was typed in English language without appending a vernacular translation thereof as required under Para 8 (a) of Appendix III of Army Rules 1954. Thereafter, under Rule 23 of the Army Rules, a charge-sheet dated 12.6.1997 was served upon the petitioner-respondent on 13.6.1997 and trial commenced on 14.6.1997. The petitioner requested the authorities to permit him defence through the assistance of civil lawyer in Summary Court Martial. The proceedings were adjourned and resumed on 15.9.1997 and concluded on 16.9.1997. Instead of permitting the petitioner to be represented through a counsel of his choice, one Subedar Budhi Ballabh was permitted to appear as 'Friend of Accused' though on the date fixed even he was not present and one Lt. Col. Mahendra Kumar Sharma is said to be present. In the Summary Court Martial, the petitioner was awarded following punishments:
(A) to suffer rigorous imprisonment for three months in civil jail;
(B) dismissal from service.
3. The petitioner preferred a statutory petition under Section 164(2) of Army Act, 1950. Since, the aforesaid petition remained undecided, the petitioner-respondent approached this Court in writ petition No. 37038 of 1998, which was finally disposed of on 7.12.1998 directing Chief of Army Staff to consider and dispose of the petitioner's statutory petition within a period of two months from the date of communication of the order. Consequently, the Chief of' the Army Stall passed final order on 28.5.1999 setting aside findings on charges Nos. 1 and 2 recorded against the petitioner on technical grounds, but holding that even thereafter, the remaining third charge was very grave in nature and sufficient to attract the punishment already awarded and, therefore, upheld the punishment. Aggrieved, the respondent approached this Court in writ petition which has been allowed by the judgment under appeal. The Hon'ble Single Judge has recorded briefly the following findings to arrive at the conclusion that the order impugned in the writ petition is vitiated in law:
(1) non compliance of Rule 33(7) and 34 of the Army Rules;
(2) by denying assistance of civil lawyer, Rule 129 of the Army Rules has been violated;
(3) an offence under Section 56(a) of the Army Act was not made out and the punishment awarded and upheld by the Chief of the Army Staff in respect to charge No. 3, therefore, was vitiated.
4. Learned Counsel for both the parties, besides making oral submissions, have also submitted written submissions.
5. Sri K.C. Sinha, Assistant Solicitor General has assailed the judgment under appeal on the aforesaid three findings and advanced his submissions contending that after service of charge-sheet, the Summary Court Martial assembled on 14.6.1997 and thereafter adjourned and reassembled on 15.9.1997 and proceeded to examine witnesses of the facts of the case. The Summary Court Martial concluded on 16.9.1997 whereafter the punishments were imposed. The statutory petition dated 4.4.1998 submitted by the petitioner under Section 164(2) was decided by the Chief of the Army Staff on 28.5.1999 and though findings pertaining to charge Nos. 1 and 2 were set aside, the finding in respect of charge No. 3 was upheld and the punishment imposed upon the petitioner found commensurating to the gravity of charge. It is contended that the purpose of supplying copy of charges to the petitioner-respondent before trial commenced is to provide him time to prepare his case for defence. It is claimed when the tentative charge-sheet was served on 5.9.1995 and the final charge-sheet was issued on 12.6.1997, i.e., after about 1 year 9 months, the petitioner-respondent has sufficient time in the meanwhile to prepare his defence. The Summary Court Martial proceedings, though commenced on 14.6.1997, but without any proceedings, it was adjourned and reassembled after three months giving again sufficient time to petitioner-respondent to prepare his defence. At the time of reassembly of Summary Court Martial, the petitioner-respondent did not raise any objection regarding non compliance of Rule 33(7) and 34 of Army Rules showing that the petitioner-respondent was fully satisfied and in any case, he was not prejudiced at all. He participated in proceedings and cross examined all prosecution witnesses. In the circumstances, even if there is a technical non compliance of Rule 33(7) and Rule 34 of the Army Rules, the same would not vitiate the proceedings in its entirety. It is also contended that Rules 33(7) and 34 of the Army Rules are directory and not mandatory and, therefore, the Hon'ble Single Judge has erred in law by holding that the Summary Court Martial proceedings are vitiated for non compliance of Rule 34 of Army Rules.
6. With respect to violation of Army Rule 129, it is contended that the petitioner-respondent submitted an application seeking leave to engage a defence lawyer. He was permitted five days' leave with the permission to engage a civil defence lawyer but he could not engage any one and the commanding officer, thereafter, provided Subedar Budhi Ballabh as "Fried of Accused". However, since, Subedar Budhar Ballabh could not attend the court, Lt. Col. Mahendra Kumar Sharma was appointed as "Friend of the Accused" to which the petitioner-respondent did not raise any objection at all and Lt. Col. Mahendra Kumar Sharma participated in the proceeding as "Friend of Accused". It is contended that in these circumstances, there is no violation of Rule 129 of the Army Rules and the Hon'ble Single Judge has erred in law in taking a different view.
7. Lastly, it is contended that the view of the Hon'ble Single Judge that offence under Section 56(a) of the Army Act is not made out is incorrect. Charge No. 3 pertaining to false allegations against Lt. Col. P. Bhatnagar. The nature of accusation were- (i) the Officer misappropriated the government property by permitting unauthorized lifting of 11 barrels of FOL, (ii) the Officer has threatened to kill the accused petitioner-respondent and his wife, (iii) on 2.1.1995, the accused's wife was arrested and taken to unit Office Area where Lt. Col. P. Bhatnagar abused her. The petitioner-respondent proved not guilty in respect to charge No. 3. Hence, the proceedings were conducted as per Rule 118 of the Army Rules since Rule 116 was inapplicable. In order to sustain charge, the written complaint made by the petitioner-respondent against the aforesaid officer was produced by Sri G.D. Chandran, Clerk, who verified the signature of the petitioner-respondent on the aforesaid complaint. Three persons were examined, who stated that no civil truck came inside having unfilled barrels of FOL and the allegation of alleged threat and abuse were also denied by the prosecution witnesses. In the circumstances, offence under Section 56(a) was clearly proved and the Hon'ble Single Judge in taking a view otherwise has erred in law.
8. Controverting the submissions advanced on behalf of the appellants, Col. Ashok Kumar, Advocate, appearing on behalf of the respondent, contended that charge-sheet does not mean tentative charge-sheet but is the charge-sheet issued under Army Rule 28, which was served upon the petitioner on 13.6.1997 and, therefore, commencement of trial on 14.6.1997 was clearly illegal. Relying on a Division Bench judgment of this Court in Ram Pravesh Rai v. Union of India and Ors. 1988 UPLBEC 783 he contended that Rule 34 is mandatory and violation thereof vitiates the entire proceedings. He further contended that he was never allowed counsel of his choice to defend his case and this vitiates the entire proceedings. Reliance is placed on the following judgments of this Court:
1. Union of India and Ors. v. Subedar/Driver Rameshwar Prasad 1993 AWC 883
2. Union of India and Ors. v. Havaldar Ram Adhar Tiwari 2002 (4) ESC 86.
9. Lastly it is contended that there was no false accusation against the higher authorities and offence under Section 56(a) of the Army Act was not made out, yet, the petitioner-respondent was punished for the said offence, which is clearly illegal.
10. In the written submissions, the petitioner-respondent has also sought to assail the findings on certain issues, which were argued by the petitioner-respondent before the Hon'ble Single Incline, but the said issues were decided against him. Since, the petitioner-respondent has not appealed against the findings of the Hon'ble Single Judge on the aforesaid issues, therefore, we refrain ourselves from considering those issues raised by the petitioner- respondent in his written submission and are confining ourselves to the three issues raised by the appellant assailing the judgment under appeal.
11. In order to consider the first question with respect to Rule 33(7) and 34 of Army Rules, it would be appropriate to reproduce some relevant provisions of the Army Act and Rules as under:
Sec. 120. Power of Summary Courts-martial-(1) Subject to the provisions of Sub-section (2), a summary court-martial may try any offence punishable under this Act.
(2) When there is no grave reason for immediate action and reference can without detriment to discipline be made 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, an officer holding a summary court-martial shall not try without such reference any offence punishable under any of the Sections 34, 37 and 69, or any offence against the officer holding the Court.
(3) A summary court-martial may try any person subject to this Act and under the command of the officer holding the court, except an officer; Junior commissioned officer or warrant officer.
(4) A summary court-martial may pass any sentence which may be passed under this Act, except a sentence of death or (imprisonment for life) or of imprisonment for a term exceeding the limit specified in Sub-section (5).
(5) The limit referred to in Sub-section(4) shall be one year if the officer holding the summary court-martial is of the rank of lieutenant-colonel and upwards and three months if such officer is below than rank.
Rule 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.
Rule 33. Rights of accused to prepare defence.-(7) As soon as practicable after an accused has bean remanded for trial by a general or district court-martial, and in any case not less than ninety-six hours or on active service twenty-four hours before his trial, an officer shall give to him free of charge a copy of the summary of evidence, or in the case of an officer where there is no summary of evidence an abstract of the evidence, and explain to him his rights under these rules as to preparing his defence and being assisted or represented at the trial, and shall ask him to state in writing whether or not he wishes to have an officer assigned by the convening officer to represent him at the trial, if a suitable officer should be available. The convening officer shall be informed whether or not the accused to elects.
Rule 34. Warning of accused for trial-(1) The accused before he is arraigned shall be informed by an officer of every charge for which he is to be tried and also that, on his giving the names of witnesses whom he desires to call in his defence, reasonable steps will be taken for procuring their attendance, and those steps shall be taken accordingly.
(2) The officer at the time of so informing the accused shall give him a copy of the charge-sheet and shall, if necessary, read and explain to him the charges brought against him. If accused desires to have it in a language which he understands, a translation thereof shall also be given to him.
(3) The officer shall also deliver in the accused a list of the names, rank and corps (if any), of the officers who are to form the court, and where officers in waiting are named, also of those officers in courts-martial other than summary courts-martial.
(4) If it appears to the court that the accused is liable to be prejudiced at his trial by any non-compliance with this rule, the court shall take steps and, if necessary, adjourn to avoid the accused being so prejudiced.
11. The members of army arc governed by a special enactment, namely, Army Act and the Rules framed thereunder. The nature of charges, offences and the procedure of trial and punishments are also different, inasmuch, in the same trial, the punishment affecting personal liberty as also pertaining to employment both can be awarded. The provisions pertaining to fundamental rights as such may not be available to the members of Armed Forces in view of Article 33 of the Constitution of India, which provides that the Parliament may by law determine to what extent any of the rights conferred by Part-Ill of the Constitution shall in their application apply to the members of the Armed Forces and the same be restricted abrogated so as to ensure proper discharge of their duties and to main discipline among them. Consequently, unless shown otherwise, the right of life and liberty as guaranteed under Article 21 of the Constitution which includes the right to earn livelihood cannot be said to be restricted or abrogated in the absence of specific provisions to this extent. Recognizing the fundamental right of life and liberty, it appears that under the Army Act and the Rules framed thereunder, a procedure has been prescribed consistent with the principles of audi alterm partemmeeting the requirement of adequate opportunity to the members of the Armed Forces before passing an order affecting their civil and legal rights. Of course, the constitution of Investigating Forum, the Ad judicatory Forum and the procedure depends on the provisions under the said Act and the Rules framed thereunder. Admittedly, detailed provisions have been made entitling a member of Armed Force against whom, proceedings are initiated, to have adequate opportunity of defence. The principles of audi alterum partem has not been excluded as such. Further, where certain proceedings may result in denial of personal liberty as well as right to earn livelihood to the members of Armed Forces and a procedure has been prescribed consistent with the principles of natural justice giving adequate opportunity of defence, the same have to be observed and followed strictly in words and spirit and any denial thereof would vitiate the proceedings.
12. The Apex Court in Union of India v. Major A. Husain in para-22 of the judgment observed that a person subject to Army Act is tried by Court Martial for an act which is an offence under the Act. The Court Martial discharges judicial function and to a great extent, is a Court where provisions of Evidence Act are applicable. A Court Martial has also the same responsibility as any Court to protect the rights of the accused charged before it and to follow the procedural safeguards. If one reads the provisions of law relating to Court Martial in the Army Act and Rules framed thereunder, it is clear that the procedure prescribed is perhaps equally fair if not more than a normal trial provided to the accused. If the Court martial has been convened properly, the proceedings are in accordance with the procedure prescribed and there is sufficient evidence to sustain conviction, the High Court under Article 226 of the Constitution of India would not review the proceedings as if sitting in appeal, and, every infraction Rule need not to interfered unless it is shown that accused has been prejudiced or a mandatory provisions has been violated. After referring to Rule 149 of the Army Rules, which protect proceedings on mere technical nonobservance of Rules, the Apex Court observed as under:
The High Court should not allow the challenge to the validity of conviction and sentence of the accused when evidence is sufficient, Court Martial has jurisdiction over the subject matter and has followed the prescribed procedure and is within its power to award punishment.
(emphasis added)
13. Therefore, in order to justify Court Martial proceedings, it has to be seen that the procedure prescribed has- been followed besides other things, namely, that the authorities have jurisdiction over the subject matter and the conclusion is based on some evidence. In the light thereof, we propose to consider the rival submissions of the parties in respect to observance of Rule 33(7) and 34 of the Army Rules in the present proceedings in the light of the aforesaid legal position.
14. The procedure of Summary Court Martial shows that after service of charge-sheet upon the accused, he has to be afforded adequate opportunity of defence by permitting sufficient time to prepare his defence. Rules 33(7) and 34(1) prohibits any commencement of trial prior to 96 hours after service of charge-sheet upon the officer concerned. However, where the accused person is in active service, the inter regnum period is 24 hours. The term "active service" has been defined under Section 3(i) of the Act, which is reproduced as under:
3. Definitions.- In this Act, unless the context otherwise requires,
(i) "active service ", as applied to a person subject to this Act, means the tune during which such person-
(a) is attached to, or forms part of, a force which is engaged in operations against an enemy, or
(b) is engaged in military operations in, or is on the line of march to, a country or place wholly or partly occupied by an enemy, or
(c) is attached to or forms part of a force which is in military occupation of a foreign country
15. Admittedly, the petitioner-respondent was not in active service at the time of trial in terms of Section 3(i) of the Act and, therefore, in his case, as per Rule 33(7) and 34(1), 96 hours minimum time gap was mandatory between the communication of charge-sheet and the commencement of trial. The appellant vehemently contended that a tentative charge-sheet was issued to the petitioner on 5.9.1995 and after more than one and half year, the final charge sheet was issued on 12.6.1997 containing same charges. Thereafter, though the trial commenced on 14.6.1997. but the proceedings were adjourned and reassembled on 15.9.1997, i.e., after 3 months. It is contended that this gave sufficient time to the petitioner-respondent to prepare his defence and, therefore, in the entirety of the circumstances, it cannot be contended that the petitioner-respondent was not afforded sufficient time to prepare his defence and was prejudiced in any manner. In our view, the contention is not acceptable for more than one reason. Admittedly, the charge-sheet contemplated for commencement for Summary Court Martial is not one, which is said to be issued on 5.9.1995, i.e. tentative charge-sheet but is one issued by the appellant-respondents on 12.6.1997. The charges in the final charge-sheet might have been the same as levelled in the tentative charge-sheet, but so long as a final charge-sheet is not issued, it cannot be said that the accused must prepare his defence on the basis of uncertainty of allegations contained in the tentative charge-sheet, which are liable for variation in the final charge-sheet. The accused is well within his right to say that he need not waste his time and energy to prepare his defence on allegations which are yet to be finalized and so long as the allegations are not given a final shape, there was no occasion for him to make any preparation for his defence. He can also expect that a tentative charge-sheet may not result in the final charge-sheet at all. Therefore, it cannot be argued that the accused must have prepared himself with all his defence based on the allegation, contained in the tentative charge-sheet Moreover, under the Rules, the trial would have proceeded only after issuance of a charge-sheet as contemplated under Rule 28 and not with a document, termed as tentative charge-sheet. A tentative charge-sheet, therefore, in our view, cannot be given any weight for the purpose of requirement of compliance of Rule 33(7) and 34(1) of the Army Rules and the period of 96 hours contemplated under Rule 33(7) and 34(1) would commence only after communication of charge-sheet under Rule 28, which the respondent-appellants, in the present case, have termed as final charge-sheet.
16. The appellants are also not correct in submitting that no proceedings took place on 14.6.1997 and the Summary Court Martini was adjourned and reassembled on 15.9.1997. A perusal of the record shows that the charge-sheet was served upon the petitioner-respondent on 13.6.1997. However, before that, the officer commanding presiding the Summary Court Martial passed an order on 10.6.1997 appointing Subedar Budhi Ballabh as "friend of accused" informing about assembly of the Court Martial on 14.6.1997 at 9.00 hrs. at 680 Tk Tptr P1 ASC. The Summary Court Martial however commenced on 14.6.1997 at 13.15 hrs. The proceedings commenced with the arraignment of the petitioner-respondent, who was required to plead "guilty" or "not" and in respect to charge Nos. 1 and 2, petitioner-respondent pleaded "guilty" but in respect to charge No. 3, he pleaded "not guilty". The proceedings also recorded that the charges in respect to which, the petitioner respondent pleaded "guilty" or "not guilty" were explained to him and the Rule 115(2) was complied with. Rule 115 deals with general plea of "guilty" and "not guilty" and is reproduced as under:
115. General plea of "guilty" or "not guilty".- (1) The accused person's plea-" guilty" or "not guilty" (or if he refuses to plead, or does not plead intelligibly either one or the other, a plea of "not guilty")- shall he recorded on each charge.
(2) If an accused person pleads "guilty", that plea shall he recorded as the finding of the court; but before it is recorded, the court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea, and in particular of the meaning of the charge to which he has pleaded guilty, and of the difference in procedure which will be made by the plea of guilty, and shall advise him to withdraw that plea if it appears from the summary of evidence (if any) or otherwise that the accused ought to plead not guilty.
(3) Where an accused person pleads guilty to the first of two or more charges laid in the alternative, the court may, after Sub-rule (2) of this rule has been complied with and before the accused in arraigned on the alternative charge or charges, withdraw such alternative charge or charges without requiring the accused to plead thereto, and a record to that effect shall he made upon the proceedings of the court.
17. Thereafter, the proceedings were adjourned with the following endorsement-The Court is adjourned at 13.45 hrs. sine die due to exigency of service and non availability of few essential witnesses.
18. Therefore, it cannot be said that on 14.6.1997, no proceeding took place at all, on the contrary, after proceedings for sometime and completion of certain steps, further proceedings were adjourned due to the reasons attributable to prosecution itself, i.e., non availability of some essential witnesses. Admittedly, the charge-sheet having been communicated to the petitioner-respondent on 13.6.1997 and the proceedings commenced on 14.6.1997 at 13.15 hrs., it cannot be said that procedure prescribed under Rule 33(7) and 34(1) of the Army Rule was followed in words and spirit. Where a person is being charged of an offence, he must be afforded opportunity to prepare himself by giving appropriate and reasonable time. In the Army Rules, the reasonable time has already been stated under Rule 33(7) and 34(1), i.e., not less than 96 hours between the time the accused is informed and his arraignment. The period may be more than 96 hours, but the language of Rules make it obligatory that it shall not be less than 96 hours. The provisions have been couched in negative language prohibiting authorities to proceed without giving 96 hours period between communication and arraignment of the accused. In our view, Rule 33(7) and 34(1) cannot be said to be directory but is mandatory. Their violation would vitiate the proceedings. The authorities are empowered to dispense with the provisions of Rule 34(1) as provided under Rule 36, but in the absence of any dispension of observance of Rule 34(1), its observance is must. It is not the case of the appellant that observance of Rule 34(1) was dispensed with by exercising power under Rule 36. In these circumstances, non observance of Rule 33(7) and 34(1) in our view would vitiate the proceedings. We are fortified in taking the aforesaid view by a Division Bench judgment of this Court in Ram Pravesh Rai v. Union of India and Ors. (Supra) wherein this Court held that-In the absence of dispension under Rule 36, compliance of requirements of Rules 33 and 34 is a must and non compliance would vitiate the proceedings. The same view has been taken by another Division Bench in U.S. Pathak v. Union of India 1989 (15) AIR 315 where, in para-20 of the judgment this Court observed as under:
In our opinion, the requirement that at least 96 hours notice should he given to the accused is mandatory. The language used in Rule 34 is peremptorily. It states that "the interval between his being so informed and his arraignment shall not be sell then 96 hours. " (emphasis supplied) Such an interpretation is also consistent with the principles of natural justice. The purpose of Rule is to enable the accused to have sufficient notice so that he may prepare his defence. That being so, the breach of Rule 34 must vitiate the entire trial.
19. The learned Counsel for the appellant however has placed reliance on a Single Judge judgment in Civil Misc. Writ Petition So. 55547 of 2000 Balbir Singh v. Chief of the Army Staff and Ors. decided on 4.5.2005, wherein non compliance of Rule 34 was held to be justified by considering the period of interval commencing from the service of tentative charge-sheet. The Court observed that tentative charge-sheet was issued on 5.4.1999 and regular charge-sheet on 13.4.1999 and the Summary Court Martial proceedings commenced on 13.4.1999 cannot be said to be vitiated on account of non compliance of Rule 33(7) and 34 of the Army Rules. We have considered the aforesaid judgment, but with great respect to his Lordship, we are unable to agree. In our view, the said judgment does not lay down correct law. Information of allegations termed as tentative charge-sheet and recording of summary of evidence as contemplated under Rule 23 and 24 of the Army Rules cannot be said to be a part and parcel of the Court Martial Trial, which commenced only on issuance of the charge-sheet under Rule 28. The hearing of charge contemplated under Rule 22(1) & (2) of the Army Rules is in the nature of preliminary enquiry. This is akin to preliminary enquiry in a departmental proceeding or committal proceeding under Criminal Procedure Code as is apparent from a perusal of Rule 22(3)(d) which provides that if the commanding officer after hearing of the charge is of the opinion that the charge ought to be proceeded with, and the accused is below the rank of warrant officer order his trial by a Summary Court Martial. Rule 22 by itself, therefore, does not mean commencement of Summary Court Martial at all. The requirement of Rule 33(7) and 34(1) for allowing a period of not less than % hours before arraignment of the member of Armed Force refers to a period between communication of regular charge-sheet and commencement of the Court Martial proceedings. Where a particular procedure has been prescribed in the Rules consistence with the principles of natural justice, its violation vitiates the entire proceedings. We are, therefore, in full agreement with the view taken by the Hon'ble Single Judge in the judgment under appeal that there was a non-compliance of Rule 33(7) and 34(1) of Army Rules in the present case and the petitioner-respondent was denied opportunity to prepare his case as provided under the aforesaid provision and it vitiates the entire proceedings.
20. At this stage, we also propose to refer Rule 149 of the Army Rules heavily relied by the learned Counsel for the appellant contending that any non observance of Rule 33(7) and 34(1) of Army Rules would not invalidate the Court Martial proceedings since they are saved under Rule 149 of the Army Rules, which is reproduced as under:
149. Validity of irregular procedure in certain cases.- Whenever, it appears that a court-martial had jurisdiction to try any person and make a finding and that there is legal evidence or a plea of guilty to justify such finding, such finding and any sentence which the court-martial had jurisdiction to pass thereon may he confirmed, and shall, if so confirmed and in the case of a summary court-martial where confirmation is not necessary, he valid, notwithstanding any deviation from these rules or notwithstanding that the charge-sheet has not been signed by the commanding officer or the convening officer, provided that the charges have, in fad, before trial been approved by the commanding officer and the convening officer or notwithstanding any defect or objection, technical or other, unless it appears that any injustice has been done to the offender, and where any finding and sentence are otherwise valid they shall not be invalid by reason only of a failure to administer an oath or affirmation to the interpreter or shorthand writer; but nothing in this rule shall relieve an officer from any responsibility for any willful or negligent disregard of any of these rules.
21. In our view, the submission is wholly unsustainable for the reason that Rule 149 is applicable to certain cases where there is some irregularity in the procedure of Court Martial or Summary Court Martial. However, as we have held that the provisions of Rule 33(7) and 34(1) are mandatory and non observance thereof amounts to denial of opportunity of defence to the accused, it cannot be said that the same is a mere irregularity and is protected by Rule 149 of the Army Rules.
22. Besides. Rule 149 itself provides the only such cases tainted with irregularities are protected where it does not appear that any injustice has been done to the offender or the finding and sentence is valid but the oath and affirmation to the interpreter or writer was not administered properly. In the case in hand, the Rule 33(7) and 34(1) prohibit any Court Martial proceedings without giving minimum 96 hours" time to the accused from the date of communication of charge-sheet and his arraignment. As we have discussed in detail, the two provisions under Rule 33(7) and 34(1) are mandatory and obligatory, the violation thereof vitiates the entire trial. In the circumstances, it cannot be said that the proceedings conducted in violation of the aforesaid provisions are protected and in our view, Rule 149 has no application in such a case.
23. Coming to the next question of violation of Rule 129 of the Army Rules regarding denial of assistance to the petitioner-respondent of defence counsel of his choice, we find that Rule 129 enables an accused person to have a person to assist him during trial whether a legal advisor or any other person. It reads as under:
129. Friend of accused. - In any summary court-martial, an accused person may have a person to assist him during the trial, whether a legal adviser or any other person. A person so assisting him may advise him on all points and suggest the questions to be put to witnesses, but shall not examine or cross-examine witnesses or address the court.
24. It transpires from the record that Sri S.K. Malhotra, presiding the Summary Court Martial, in his letter dated 10.6.1997 (page 138 of the paper book of the writ petition) communicated the date of Summary Court Martial proceeding and also informed the name of "friend of accused" as Subedar Budhi Ballabh. There is nothing on record to show that the said person was chosen by the petitioner-respondent as "friend of accused". Rule 129 entitles an accused person to assist him during trial but does not obligates upon the authorities to nominate a "friend of accused" in the trial. There is nothing on record to show that either the petitioners-respondent suggested the name of Subedar Budhi Ballabh as "friend of accused" or requested to allow him to participate as "friend of accused" during trial. On the contrary, the petitioner's case through out has been that he requested for permission of the authorities to engage a defence counsel, but he was denied such opportunity. The appellants have contended in the written submission that it is not obligatory on the part of the competent authority to provide defence assistant to the accused, but if the accused chose to have a "friend of accused", he may be permitted to do so. We entirely agree with the submission but the proceeding in the case in hand shows a different factual situation and action taken on the part of the authorities. The officer presiding himself nominated and communicated the name of Subedar Budhi Ballabh as "friend of accused1' to the petitioner-respondent as is apparent from his letter dated 10.6.1997. The minutes of the Summary Court Martial proceedings dated 14.6.1997 further show that even the said "friend of accused" made available by the authorities to the petitioner-respondent was not present and did not participate in the proceedings on 14.6.1997. Thereafter, as already observed, the proceedings were adjourned sine die due to non availability of some essential prosecution witnesses. The appellants have further stated in the written statement that the petitioner-respondent submitted an application on 28.8.1997 requesting for five days' leave to enable himself to engage a civil counsel and said leave was sanctioned but he failed to engage any defence lawyer. It is also stated in the written statement that on 15.9.1997, Subedar Budhi Ballabh could not be present and hence, Lt. Col. Mahendra Kumar Sharma was provided as "friend of accused" to which the petitioner-respondent did not raise any objection. However, this statement of fact stated in the written statement is incorrect and contrary to the material on record. The record shows that Sri S.K. Malhotra Lt. Col.. Officer Commanding, presiding Summary Court Martial himself issued a letter dated 20.8.1997. The aforesaid document is on record at Page-127 of the paper book of the writ petition, wherein, on 20.8.1997 Sri S.K. Malhotra Lt. Col., Officer Commanding, recorded the following order:
IC-32507-P Lt. Col Mahendra Kumar Sharma of 18 Armd Bde Big Coy is hereby detailed as the friend of the accused in the SCM proceedings of No. 13883630-Ksep/MT MZH Khan in place of JC-660473-A Sub MT Budhi Bllabh.
25. However, in the Court Martial proceeding, after reassembly on 15.9.1997, the Summary Court Martial Court has recorded the following proceedings in respect to the "friend of accused" which is at Page-104 of the paper book of the writ petition and is quoted us under
1. The Court is reassembled at 1200 hrs on on 15 Sep 97 pursuant to order by IC-32507-P Lt. Col. S.K. Malhotra Officer Commanding 680 (1) Tk Tptr P1 ASC, the convening authority of SCM.
2. The order of the convening authority No. 6423/MZH/ST-12 dt 06 Sep 97 is read and attached to the proceedings as exhibit 'K'
3. The Court finds that JC-660473 A Sub Budhi Ballabh friend of the accused is not present and in his place IC-30272-P LT Col Mahendra Kumar Sharma of 18 Armd Bde Sig Coy is present Lt. Col. M.K. Sharma hands over an order of the convening authority detailing him as the 'friend of the accused". The letter No. 6423/MZH/ST-12 dt 20 Ang 97 issued by Lt. Col. S.K. Malhotra Officer Commanding 680 (I) Tk Tptr P1 ASC received, read and marked as exhibit 'L' and attached to the proceedings.
(emphasis added)
26. We are constrained to observe that the convening authority had already appointed Lt. Col. Mahednra Kumar Shanna as "friend of accused' and, therefore, on 15.9.1997, there was no occasion for Subedar Budhi Ballabh to be present. Yet in the Court Martial proceedings, it has been mentioned that 'Subedar Budhi Ballabh is not present. It shows that the authority proceeded with the understanding that the "friend of accused" has to be appointed by them and not by the accused himself. This clearly shows that the respondent-appellants at any stage did not permit the petitioner-respondent to have a "friend of accused" nominated by him put the friend of accused" were nominated by the authorities and there is nothing to show that the petitioner was appraised of his right to have a friend of accused of his own choice. The petitioner-respondent being a Sepoy in Army cannot be expected to be well conversant with the proceedings and it is expected from the authorities to appraise him of his right and procedure as provided under the Rules, which is consistent with the observance of principles of andi alterm partem. The reliance placed by the appellant on the judgment of the Apex Court in Union of India v. Ex Fit Lt. G.S. Bajwa Military Law Journal 2003 SC 129 has no application in the present case, since, in the aforesaid case, the accused was afforded opportunity to engage a defence lawyer at his own cost, but he claimed that he was not able to engage a defence lawyer and is entitled to be represented by a counsel of his choice at the state expenses which was accepted by the High Court relying on Sukhdas v. Union Territory of Arunchal Pradesh observing that right to obtain free legal advise is a fundamental right under Article 21 of (he Constitution. The said view was negated by the Apex Court observing that under Article 33 of the Constitution of India, the Parliament is empowered to restrict the application of fundamental lights in the case of members of Armed Forces and where provision is not made to provide legal assistance at the state expenses, it cannot be said that the proceedings are vitiated by referring to Article 21 of the Constitution. While allowing the appeal and reversing the view of the Hon'ble High Court the Apex Court referred to the factual position in Para-26 that Summary Court Martial permitted the accused to engage a counsel of his choice at his own expense and adjourned matter on several occasions, but he failed to engage a counsel at his own expense and sought to provide legal assistance at state expenses, which was not allowed. Therefore, the aforesaid judgment has no application in the case in hand.
27. Here the petitioner-respondent neither sought to engage a defence lawyer at the expense of the state nor he was granted any opportunity to engage or nominate a "'friend of accused' of his own choice but the record shows that the authority presiding Summary Court Martial nominated and communicated the "friend of accused'' to the petitioner-respondent. The first one who was nominated on 10.6.1997 did not participate in the proceedings on 14.6.1997. The second person was nominated on 20.8.1997, who is said to be present in the trial on 15.9.1997 and 16.9.1997. The petitioner was also not appraised of his right of engaging a "friend of accused" of his own choice but it appears that he was made to believe that a "friend of accused" as appointed by the authorities has to be accepted by him and only he will participate in the proceedings. The appellants have admitted in the written submissions that the petitioner submitted an application seeking time to engage a civil counsel to defend his case but there is nothing to show that he was permitted to do so. Though it is contended that he was granted permission to engage a civil lawyer for sanctioning live days leave, but however, the record shows otherwise inasmuch another "friend of accused" was nominated by the presiding officer of the Summary Court Martial on 20.8.1997 itself and there is nothing on record to substantiate the contention of the appellant as stated in the written argument. From the pleadings, it is, therefore, apparent that the petitioner sought to engage a defence lawyer and it does not appear that the respondents had any objection to such request of the petitioner-respondent, but from the record it appears that he was not allowed to engage a defence lawyer but the "friend of accused" was thrust upon him by the authorities. This Court in Union of India v. Rameshwar Mahto 1993 A WC 883 and Union of India v. Ram Adhar Tiwari 2002(4) ESC 86 has held that an accused person is entitled for the assistance of a "friend of accused" of his choice and denial thereof would vitiate the proceedings. Considering the pleadings and material on record and in view of the discussions made above, we are inclined to hold that the petitioner-respondent was denied assistance of "friend of accused" of his choice as provided under Rule 129 and there is breach of the aforesaid provision. We, therefore, upheld the finding of the Hon'ble Single Judge that there is violation of Rule 129 of the Army Rules in the present proceedings
28. Now coming to the third aspect of the matter that no offence under Section 56(a) of the Army Act was made out and, therefore, the punishment awarded to the petitioner-respondents is, liable to be set aside, we find that the petitioner-respondent did sent letters to the higher authorities making complaint against the conduct of senior officer, namely, Lt. Col. P. Bhatnagar. The contents of the letters show that serious aspersions were caused against Lt. Col. P. Bhatnagar. The oral evidence produced by the appellant in the enquiry denied the very basis of such allegations showing prima facie falsity. Section 56(a) of the Army Act provides as under:
False accusations.-Any person subject to this Act who commits any of the following offences, that is to say,-
(a) makes a false accusation against any person subject to this Act knowing or having reason to believe such accusation to be false, or
(b) ...
shall, on conviction by court-marital, be liable to suffer imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned.
29. It Contemplates three things, namely, accusation against any person subject to the Act, the same must be false and the person making such accusation knows or has reason to believe that such accusation is false. Therefore, in the case in hand, the crucial aspect to attract Section 56(a) is whether the petitioner-respondent knew or had reason to believe that the accusations made at the relevant time were false. This depends on evidence and appreciation thereof. Since we have already held that the proceedings in question are vitiated on account of non observance of Rule 33(7) of 34(1) of the Army Rules having the effect of denying reasonable opportunity of defence to the petitioner-respondent, we are of the view that it would not be appropriate at this stage to record any finding with respect to this issue which would depend upon the evidence produced by the parties and appreciation thereof and we propose to leave this question open, which may be considered and decided by the authorities, in case, they decide to proceed afresh against the petitioner-respondent in accordance with law.
30. The findings of Hon'ble Single Judge, therefore, in respect to question as to whether any offence under Section 56(a) of the Army Act is made out or not is modified and we leave this question open to be considered and decided by the authorities, in case, the Court Martial proceedings are conducted against the petitioner-respondent afresh in accordance with law after giving opportunity to the petitioner-respondent in the light of the observations made in this judgment.
31. In the result and in view of the discussions made hereinabove, we upheld the judgment of Hon'ble Single Judge for allowing the writ petition and quash the orders impugned in the writ petition subject to observations and modifications made hereinabove.
32. The Special appeal is, accordingly, dismissed without any order as to costs.