ORDER
V.S. Kokje, J.
1. This is a petition by a Commissioned Officer of the Indian Army challenging the proceedings of Court-Martial initiated against him. The petitioner was commissioned in the Indian Army on 14th December, 1958 as a Second Lieutenant. Gradually he rose to his present substantive rank of Brigadier. From Feb., 1988 to April 1989, he was posted at Agra as Commandant Para Regimental Centre. In April, 1989 he was given acting rank of Major General and was posted as General Officer Commanding Vth Mountain Division in Eastern Command.
2. In July, 1989 the petitioner was called to Agra as a witness in Court Martial proceedings going on against one Major Mahapatra. He reported for this purpose on 13-7-1989 at Agra. After the petitioner left Agra in April 1989, Brig. Lognathan took charge as Commandant Para Regimental Centre at Agra. He reported certain financial irregularities and a Court of Enquiry was instituted to enquire into the financial irregularities in the Para Regimental Centre. On 24-7-1989 the petitioner, while he was in Agra, was asked to stay on for the Court of Enquiry. The proceedings of the Court of Enquiry went on from 26-7-1989 to 9-9-1989. Actual recording of statements took place between 4-8-1989 to 19-8-1989. On 13-10-1989 the petitioner was attached to M.C.T.E. Mhow under Army Instruction 30/1986 till finalisation of disciplinary case. He was directed to move forthwith from Agra to report at Mhow latest by 16-10-1989. The message in this regard (Annexure 5 to the petition) also stated that the petitioner will relinquish his acting rank in accordance with section SAI 1/S/74 as amended by AI 31/86.
3. After supplying the documents, except the report of the Court of Enquiry, hearing on charge under Rule 22 of the Army Rules (for short the 'AR') commenced on 28-10-1989. The charges were read and explained to the petitioner and he submitted that the charges be heard in accordance with AR 22(1). On 2-11-1989, itself 5 witnesses of the prosecution were heard in the presence of the petitioner and the petitioner declined to cross-examine each of them. However, the petitioner moved an application on 2-11-1989 seeking 15 days' time from 29-10-1989 for preparing his defence. He also requested for examination of witnesses before the Commanding Officer and for the evidence so adduced being reduced in writing at this stage as per law. He also stated that if the request for recording of evidence in writing was not granted the letter may be appended to the proceedings. This application was disposed of by the Commanding Officer on 2-11-1989 itself, observing that sufficient time had been granted to the petitioner for preparation of his defence after receipt of the Court of Enquiry proceedings by him and that under provisions of AR 25 and explanation in para 3 of AO 70 of 1986 and para 4 of appendix A to AO 70 of 1986 of charges were to be heard orally at that stage. On 6-11-1989 an order was made at the conclusion of hearing on charges that the evidence be reduced in writing and the case was adjourned. In the tentative charge-sheet in all 24 charges were levelled including the alternative charges. On 23-1-1991, orders for assembly of a General Court Martial (for short the 'GCM') were issued by the GOC-in-C Central Command. The accused objected to the sitting of the Presiding Officer on the Court and thereafter the Presiding Officer retired from the Court. The next senior person took over as the Presiding Officer. He had to fill in the vacancy created by the retirement of the earlier Presiding Officer and his taking the place of the earlier Presiding Officer. The vacancy was filled in by appointment of a senior person. The petitioner has challenged now the entire proceedings of the Court of Enquiry as well as of the Court Martial.
4. The respondents in their return have refuted all the allegations and have contended that the entire proceedings of the Court of Enquiry, as well as of the hearing on charge and the GCM were conducted in accordance with law.
5. Shri A. R. Tiwari, learned counsel for the petitioner submitted that the authorisation on the basis of A-1 warrant (Annexure 46 to the petition) was not valid in view of the language of Sections 109 and 111 of the Army Act According to him Section 109 did not permit convening of the Court Martial by any Officer who has not been appointed by Specific warrant of the Chief of the Army Staff for convening the Court Martial in a particular case. According to Shri Tiwari the words 'in this behalf appearing in Section 109 showed that no general empowerment can be made by the Chief of the Army Staff and he has to issue a specific warrant in every case in which he empowers any other officer to convene a General Court Martial. According to Shri Tiwari if the legislature intended to permit empowerment of an Officer by the Chief of the Amy Staff to convene the Court Martial generally in a class of cases, words 'by general or special warrant' would have been used. Shri Tiwari further contended that the A-I warrant issued by the Chief of the Army Staff long back was not legal and valid. It was further contended on behalf of the petitioner that he did not belong to the Central Command and, therefore, GOC-in-C Central Command had no authority to convene the 'GCM' in his case even on the basis of A-I warrant (Annex. 46 to the petition). It was submitted that attachment of the petitioner to the Central Command did not have the effect of transferring him from the Eastern Command to the Central Command.
6. It was further contended on behalf of the petitioner that no Member of the GCM could be withdrawn contrary to AR 44(E)even before the swearing or affirming of Members in pursuance of AR 45. The Court could only be dissolved as per Section 117(3) of the Army Act (for short the 'Act'). As regards the Court of enquiry, it was contended that AR 180 was violated. Complete proceedings containing the documents filed in the Court of enquiry were not made available to the petitioner as required by AR 184. It was also contended that the provisions of AR 46 as regards the proceedings after the petitioner pleaded not guilty were not complied with. It was further contended and AR 22 to 25 were violated. It is further contended that the proceedings of hearing on charges were also not legally conducted that the Commanding Officer had no power to reframe the charge sheet and to sign a fresh charge-sheet. According to the petitioner the power of the Commanding Officer was exhausted on 24-7-1990 and he could not sign a fresh charge-sheet on 18-1-1991. The trial on such charge-sheet was assailed as without jurisdiction. It was also contended that certain charges were dropped or dismissed by the Commanding Officer and they could not have been revived by any authority including the Commanding Officer himself. On the aforesaid basis it was argued that the entire action was without jurisdiction and was violative of Articles 14 and 21 of the Constitution of India.
7. Shri G. M. Chafekar, learned counsel for respondents submitted that the scope of a petition under Article 226 of the Constitution relating to a person governed by the Army Act is limited. Referring to the special provisions of the 'law' under Article 33 of the Constitution as also Article 136(2) and Article 227(4) of the Constitution, he submitted that the scope of interference could not be as wide as it is in case of other Public employment. As regards the objection to the authority of the GOC-in-C Central Command to convene the Court Martial on the authority of A-I warrant issued by the Chief of the Army Staff, it was submitted that this practice has long been followed in the Army and no one objected to it so far and not even the petitioner objected to it during, the proceedings. According to Shri Chafekar, if the Chief of the Army Staff has to issue a warrant of empowerment of any other officer to convene the GCM in each and every case, the very purpose of providing for delegation of power to convene GCM would be defeated. As regards the objection to the jurisdiction of the GOC-in-C Central Command to convene the GCM and to take action against the petitioner, it was contended that the moment an Officer is attached to his command the GOC-in-C of a particular command gets jurisdiction over such officer and if he could convene GCM for the trial of such an attached officer. It was further contended that the argument that a person appointed to the Court cannot be withdrawn is also fallacious. It was further contended that there was no violation of Rules in holding the Court of enquiry and convening and conducting the GCM. Proper opportunity under AR 56 was also given to the petitioner. It was contended that there was no violation of AR 184 because of non-supply of copy of the enquiry report as under the amended Rule 184, it is not necessary to supply a copy of the enquiry report. It was also contended that there was no question of objection to withdrawal of an Officer from the Court Martial because only after the stage of AR 45 is reached that the constitution of the Court is complete. Prior to that stage an Officer could be withdrawn as the trial begins when the stage of AR 46 is reached. It was reiterated that so far as the challenge to the constitution of the Court is concerned, Article 226 may be invoked but so far as the challenge on merits of the proceedings of the Court of enquiry or' the GCM Article 226 of the Constitution could not be invoked.
8. Let us now consider the scope of a petition under Article 226 of the Constitution preferred by an Officer governed by the Army Act. Article 33 of the Constitution empowers the Parliament to determine by law as to what extent any of the rights conferred by Part III of the Constitution which relates to fundamental rights shall be restricted or abrogated in their application to the members of the Armed Forces so as to ensure the proper discharge of their duties and the maintenance of discipline among them. In the decision of the Supreme Court in Ramswaroop v. Union of India, AIR 1965 SC 247, it has been observed that each and every provision of the Army Act is a law made by Parliament and that-if any such provision tends to affect a fundamental right under Part III of the Constitution that provision does not on that count become void as it must be taken that Parliament has thereby in the exercise of its power under Article 33 of the Constitution made the requisite modification to affect the respective fundamental right. A similar view has been expressed in Jesurataram v. Chief of Army Staff, 1976 Cri. L.J. 65. Constitution itself makes provision under Article 136(2) of the Constitution and Article 227(4) excluding the decisions of any Court or tribunal constituted by or under any law relating to Armed forces' from the pale of jurisdiction of the Supreme Court in grant of Special Leave to Appeal and the High Court in respect of power of superindendence. In Prithipalsingh v. Union of India, AIR 1982 SC 1413, it was observed that the law prescribing procedure for trial of offence by Court Martial need not satisfy the requirement of Article 21 of the Constitution because to the extent the procedure is prescribed by law and if it stands in derogation of Article 21 of the Constitution, to that extent Article 21 in its application to the Armed Forces is modified by enactment of the procedure in the Army Act itself. It was further observed in this very case that Article 33 of the Constitution does not obligate that Parliament must specifically adumbrate each fundamental right enshrined in Part III and to specify in the law enacted in exercise of the power conferred by Article 33 the degree of restriction or total abrogation of each right. Every provision of the Army Act enacted by the Parliament, if in conflict with the fundamental rights conferred by Part III, shall have to be read subject to Article 33 as being enacted with a view to either restricting or abrogating other fundamental rights to the extent of inconsistency or repugnancy between Part III of the Constitution and the Army Act However, in the very same judgment the Supreme Court has sounded a note of caution observing that the reluctance of the Apex Court to interfere with the internal affairs of the Army is likely to create a distorted picture in the minds of the military personnel that persons subject to Army Act are not citizens of India. Dispelling this distortion the Court observed that it is one of the cardinal features of our Constitution that a person by enlisting in or entering armed forces does not cease to be a citizen so as to wholly deprive him of his rights under the Constitution. In the larger interest of national security and military discipline Parliament in its wisdom may restrict or abrogate such rights in their application to the Armed Forces but this process should not be carried so far as to create a class of citizens not entitled to the benefits of the liberal spirit of the Constitution. Persons subject to Army Act are citizens of this ancient land having a feeling of belonging to the civilised community governed by the liberty oriented Constitution. Personal liberty makes for the worth of human being and is a cherished and prized right. Deprivation thereof must be preceded by an inquiry ensuring fair, just and reasonable procedure and trial by a Judge of unquestioned integrity and wholly unbiased. While dealing with this case we have to keep in our mind the aforesaid observations defining the scope of interference by the High Court and the Supreme Court in the disciplinary matters relating to Army personnel.
9. Let us now deal with the petitioner's contention that authorisation on the basis of A-I warrant is not valid as no general empowerment can be done by the Chief of the Army Staff in exercise of powers under Section 109 of the Army Act. Sections 109 and 111 of the Army Act read as under : -
'109. Power to convene a general court-martial - A general court-martial may be convened by the Central Government or the (Chief of the Army Staff) or by any Officer empowered in this behalf by warrant of the (Chief of the Army Staff).'
'111. Contents of warrants issued under Sections 109 and 110. - A warrant issued under Section 109 or Section 110 may contain such restrictions, reservations or conditions as the officer issuing it may think fit.'
It was contended that Section 109 speaks of 'by any officer empowered in this behalf by warrant of the Chief of the Army Staff. It does not contain the words 'by a General or Special Warrant.' It is contended on behalf of the petitioner that if the Parliament intended to provide for issue of a General warrant of empowerment it would have used the words 'by general or special warrant.' Absencen of these words indicate, according to the petitioner the legislative intent not to allow empowerment by general warrant. It is further contended on behalf of the petitioner that the words in this behalf also go to show that the empowerment has to be in each particular case separately and not by a general warrant. Parallel provisions in Sections 12(3)(b) and 13(2) of the Criminal Procedure Code, Order 27, Rule 1 of the Civil Procedure Code, Rule 13 of the M.P. Civil Services (CCA.) Rules, Rule 13 of the Central Services (CCA.) Rules were referred to. It was further contended that the issuance of the warrant was a serious matter and required due application of mind, The decision of the Supreme Court in V. S. Kuttan Pillai v. Ramakrishnan, AIR 1980 SC 185 was referred to in support of this contention. It was further contended that cause of action must precede authorisation and before the cause of action has arisen in each case the Chief of the Army Staff could not authorise anyone to convene the GCM. A Single Bench Judgment of the Orissa High Court in State of Orissa v. Bisram Patel, AIR 1965 Orissa 159, was pressed into service in support of this contention that words 'in this behalf militated against a general authorisation or empowerment. Reference was also made to the decision of the Supreme Court in Ramswaroop v. Union of India, AIR 1965 SC 247. It was further contended that the A-I Form was not prescribed by the Act or the Rules and was not in conformity with Section 109 of the Act. A decision of the Supreme Court in Gaurchandra Raut v. public Prosecutor, AIR 1963 SC 1198 was also referred to in support of the contention that the words 'in this behalf would exclude any general empowerment by the Chief of the Army Staff. (.....continued).
On the other hand it was argued for the respondents that judgment of the Supreme Court in Major G. S. Sodhi v. Union of India, 1991 (2) SCC 382 was a complete answer to the question and that on the same warrant action was being taken for convening the Courts Martial all along. The rulings reported in Deshbandhu Gupta v. Delhi Stock Exchange, AIR 1979 SC 1049, and State of Tamil Nadu v. Mahi Traders, AIR 1989 SC 11671 = 1989 STC 288 were also pressed into in service in support of the contention that the A-I warrant issued by the Chief of the Army Staff was a valid and prope authorisation for convening the GCM.
10. V. S. Kuttan Pillai's case (supra) relates to power to issue a general search warrant and has no application to the present case. There is no denial that issue of any warrant is a serious business and has to be carried out after considering the matter properly. In State of Orissa v. Bisram Patel (supra) Section 15 of the Rice Milling Industry (Regulation) Act, 1958 was under consideration. The section reads as hereunder: -
'No Court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by the licensing officer or any person duly authorised by the Central Government or the Licensing Officer in this behalf.'
In para 3 of the judgment the learned Single Judge has referred to the notification authorising the Inspector of Supplies among others to report to the Courts within the area noted against them in writing in respect of the offences punishable under the said Act. This authorisation was not held to be sufficient holding that the words 'in this behalf in Section 15 of the Act required specific authorisation in respect of the particular offences being reported. The ruling is clearly distinguishable. The words 'in this behalf used in Section 15 of the Act involved in the Orissa case were interpreted to mean in respect of the particular offence which was being reported. In Section 109 of the Army Act words 'in this behalf clearly mean 'in respect of convening of GCM.' The plain language of Section 109 of the Army Act leaves no doubt or ambiguity. It provides that a GCM may be convened by i) the Central Government, ii) the Chief of the Army Staff or iii) by any officer empowered by the Chief of the Army Staff to convene the GCM. The words 'in this behalf used in Section 109 of the Act do not relate to any specific case of a particular officer. The subject matter is the power to convene a GCM and three authorities, who .could exercise these powers have been enumerated; out of them, the last being any officer empowered to convene a GCM by issue of a warrant by the Chief of the Army Staff. In Ramswaroop's case (supra) while dealing with Sections 164(2), 153 and 154 of the Army Act the Court observed that the Act itself provides that the Central Government is to confirm the findings and sentences of General Courts-Martial and therefore could not have contemplated, by the provisions of Section 164, that the Central Government could not exercise this power but should always have this power exercised by any other officer which it may empower in that behalf by warrant. This ruling does not take us any further so far as the interpretation of Section 109 is concerned. In Gaurchandra Raut's case (supra) the question was sanction to prosecute and the words used in Section 198-B, Criminal Procedure Code were being interpreted. In para 6 of the judgment the reaon for holding that general authorisation would not be sufficient has been given. It has been observed that sub-section (3) of Section 198-B, Criminal Procedure Code speaks of a complaint under sub-section (1) and the complaint under sub-section (1) is a specific complaint in writing made by the Public Prosecutor. A reading of the two sub-sections together it would be clear that the authorisation by the Governor is of the sanction with respect to a specific complaint. In the circumstances it was held that general sanction cannot be granted. It was pointed out that clause (a) of sub-section (3) of Section 198-B, Criminal Procedure Code contemplated authorisation by the Governor defamed and because of this, authorisation given by someone else even before the cause of action arose could be of no avail. It was further observed that considering the nature of the offences it was difficult to appreciate how an authorisation in advance to sanction the making of a complaint of defamation can at all be given. It was further observed that if such authorisation were good in law, the Secretary authorised can suo motu sanction the making of a complaint, without reference to the Governor, which would lead to the astounding result that even where a high dignitary wanted to ignore a defamatory statement because it is beneath notice or because it may lead to embarrassment to him, the Secretay can set the law in motion and either make a mountain out of a mole hill or embarrass the Governor himself. It is because of these reasons that it was held that the construction in favour of general sanction would defeat the object which the Legislature had in view when it enacted the provision. This ruling is clearly distinguishable on facts. In that case in the very nature of things, the matter was so personal as to rule out any possibility of a general authorisation for granting sanction for prosecution being possible. It concerned the defamation of a high dignitary and it was rightly though fit that on each occasion of such defamation the concerned person alone could authorise, accord of sanction to prosecute in that specific case. In the case before us there can be nothing personal about convening of GCM. If the petitioner's interpretation is to be accepted, each time the GCM is to be convened, it can either be done by the Central Government itself or by the Chief of the Army Staff himself. If the Chief of the Army Staff had to empower someone else to convene a GCM in a particular case he will have to study the entire case papers and to decide whether a GCM should be convened or not and after taking such decision empower any other officer by issue of a warrant for convening a GCM in that particular case. The very purpose of the authorisation would be defeated because if the Chief of the Army Staff has to undertake the entire exercise in each and every case then, there is no need of empowering any other officer only for the purpose of signing a letter convening GCM in that case. The plain language of the section clearly indicates that the legislative intent was to lessen the burden of the Chief of the Army Staff by allowing him to delegate the power of convening the GCM in a case or class of cases, in respect of which he empowered any other officer by a warrant. To our mind the language of Section 109 does not leave any doubt that it permits issue of a general warrant empowering any officer to convene the GCM in respect of a class of persons. The A-1 warrant issued by the Chief of the Army Staff empowering the Field Officer Commanding Central Command to convene GCM for the trial of any person under his command, who was subject to military law is, therefore, valid and proper. The respondents have contended that on the basis of warrants like A-I warrant GCM have been convened so long for a number of years in all the Commands of the Army. It was pointed out relying on Deshbandhu Gupta's case and State of Tamil Nadu v. Mahi Trader's case that it is a well settled principle of construction that Courts in construing a statute will give much weight to the interpretation put upon it at the time of its enactment and since, by those whose duty it has been to construe, execute and apply it. Such interpretation may not have a controlling, effect upon the Courts and if occasion arose the interpretation had to be disregarded for cogent and persuasive reasons and in a clear case of error a Court would without hesitation refuse to follow such construction. In State of Tamil Nadu v. Mahi Traders (supra) relying on Deshbandhu Gupta's case and decision of the Supreme Court in Vargis v. Union of India, AIR 1981 SC 1922 it was held that a contemporaneous exposition by the Administrative authorities is a very useful and relevant guide to the interpretation of expression used in a statute. It was further observed that such interpretation should be shown to be clearly wrong before it is overturned. The A-I warrant in this case is issued in the year 1963 and is holding field for over 28 years now. It is based on the i interpretation that a general empowerment under Section 109 of the Army Act is possible. There is no reason to upset this interpretation now after so many years. In Major Sodhi's case (supra) in para 19 of the judgment the argument of the petitioner in that case which also is an argument of the petitioner in the case before us that a general authorisation cannot be made and such authorisation could be from person to person who in accordance with Section 111 should impose restrictions, reservations or conditions, has been dealt with. This contention has not been accepted and in para 19 itself it has been observed that the Court saw no force in the submission. For the aforesaid reasons we have no hesitation in holding that the empowerment of the GOC-in-C Central Command by the Chief of the Army Staff to convene the GCM by A-I warrant is proper and valid and does not suffer from any defect.
11. The next contention of the petitioner is that the A-I warrant speaks of the convening of the Court martial in respect of a person under the Command of the field officer. The petitioner, according to him, was not under the Central Command as he was only attached to the Central Command. It was contended that the petitioner had taken posting in Towang in the Eastern Command on 27-4-1989. According to the petitioner, Defence Service Regulation 453(b) (for short the DSR) provides that if the offence alleged to have been committed by an individual comes to light after his transfer to a Unit/Formation at another station, he should be recalled and disciplinary action against him should be completed at the earliest possible date. According to the petitioned he was never recalled from the Eastern Command for the purpose of disciplinary action under DSR 453(b). He was called as a witness and thereafter was asked to stay on for Court of enquiry. Thereafter he was only attached till finalisation of the disciplinary case under AI 30/86. According to the petitioner despite attachment he would be deemed to continue under the Eastern Command. For this reason, according to the petitioner, GOC-in-C Central Command had no authority even under the A.I. warrant to convene GCM in respect of disciplinary action against him. It was further contended that DSR 93 does not permit attachment for a period exceeding 6 months at a time, there being no extension in his case the attachment has also come to an end. It was further submitted that AI (Army Instructions) would not supersede DSR and, therefore. DSR will have to be given their due weight. Decision of the Supreme Court in Palaru Ram Krushniah v. Union of India, AIR 1990 SC 166 was cited, in support.
12. On behalf of the respondents it was submitted that AI 30 empowers the Army headquarters to attach a particular officer from one command to the other command for disciplinary purposes. This has been done in the present case and no fault can be found-with the attachment. According to the respondents there is no conflict in AI 30A ND DSR 453(b) and as there is no conflict, question of DSR overriding AI does not arise. There is no basic difference between recall and attachment and a person attached could be said to have been recalled. It is also contended that under regulation 9 a commanding officer of a person subject to Army Act is defined to be a commanding officer or where no appointment has been made the officer who is for the time being in command of the unit to which the person belonged or is attached to or any detachment or distinct sizable portion of the unit with which the person is for the time being serving and in respect of Which it is the duty of such officer under the regulations or by the custom of the service, to discharge the function of the commanding officer. Considering all these provisions it is clear that even in respect of an officer attached to' a particular command or command with which the person is for the time being serving, the commanding officer of that command would be the commanding officer for all purposes. It is also clear that if by the custom of the service commanding officer of the Unit to which an Army Officer is attached discharges the functions of a commanding officer, then he will be the commanding officer for all purposes in respect of such attached officer. It is noteworthy that the petitioner has not made any grievance about this immediately after receiving the order convening GCM. All these pleas have been raised by way of amendment in the petition. The same is the situation about the time limit of 6 months provided in DSR 93. It is clear that DSR 93 has nothing to do with the attachment for the purposes of disciplinary action. Attachment for the purposes of disciplinary action is provided by AI 30 and there is no apparent conflict between the two provisions. Reference to DSR 93 is, therefore, of no use to the petitioner. The point raised by the petitioner that he was an officer belonging to the Eastern Command on the date of the convening of the GCM and, therefore, the GOC-in-C Central Command had no authority to convene the GCM in respect of disciplinary action against him, has therefore, no force. The petitioner has also referred to the decision in Major K. D. Gupta v. Union of India, AIR 1983 SC 1122, but the said decision does not throw any light on the question of attachment and the consequences flowing from it as is claimed by the petitioner.
13. The next challenge of the petitioner is that no Member comprising the Courts-Martial could have been withdrawn by the respondent No. 2. It was contended that Lt. Gen. Mande was withdrawn by the respondent No. 2, whereas after composition of the Courts-Martial such retirement was possible and permissible only on a cause which the Court may deem to be sufficient under AR 44(E). It was contended that the convening authority after composition and assembly of the Courts Martial has power only to dissolve the Court-Martial in terms of Section 117(3) of the Act. It is contended that because of this the composition of the Courts Martial has been rendered invalid. The respondents have contended that prior to the reaching of the stage of AR 45, the composition of the Court-Martial is not complete and, therefore, any changes in it are irrelevant. AR 37 provides for convening of General and District Court-Martial. AR 38 provides for adjournment because of insufficient number of Officers. AR 39 provides for ineligibility and disqualification of officers for Court-Martial. AR 40 provides for Composition of General Court-Martial. AR 41 provides for Inquiry by Court as to legal constitution. It provides that on the Court assembling, the order convening the Court shall be laid before it together with the charge sheet and the summary of evidence or a true copy thereof, and also the ranks, names and corps of the officers appointed to serve on the Court; and the Court shall satisfy itself that it is legally constituted; by ascertaining that it has been convened in accordance with the provisions of the Act and the Rules, that the Court consists of a number of officers not less than the minimum required by law and, that each of the officers so assembled is eligible and not disqualified for serving on that court-martial; and the officers are of the required rank. The court has to further ascertain that the Judge Advocate is duly appointed and is not disqualified for sitting on that court-martial. If the court is not satisfied about the compliance of the provisions, it has to report its opinion to the convening authority and may adjourn. Rule 42 relates to enquiry by Court as to amenability of accused and validity of charge. If the Court is satisfied that the requirements of Rule 41 have been complied with, it has to further satisfy itself in respect of each charge about to be brought before it that it appears to be laid against a person subject to the Act and subject to the jurisdiction of the Court, and that each charge discloses an offence under the Act and is framed in accordance with these rules, and is so explicit as to enable the accused readily to understand what he has to answer. If the Court is not satisfied on these matters it shall report its opinion to the convening authority and may adjourn for that purpose. AR 43 onwards deals with procedure at trial, challenge and swearing. When the Court has satisfied itself that the provisions of AR 41 and 42 have been complied with, it has to cause the accused to be brought before the Court and the prosecutor shall take his due place in the Court. AR 44 deals with proceedings for challenges lof members of Court. The order convening the Court and the names of the Presiding Officer and the members of the Court have then to be read over to the accused and he has to be asked as required by Section 130, whether he has any objection to being tried by any officer sitting on the Court. Any such objection has to be disposed of in accordance with Section 130 of the Act. The accused has to state the names of the officers in respect of whom he has objection/The accused may also lead evidence in support of his objection. If the objections are in respect of more than one member each objection has to be decided separately and the objection in respect of the officer lowest in the rank has to be disposed of first. The objection has to be decided by remaining officers of the Court in absence of the challenged officer. When the objection in respect of the officer is allowed that officer has to retire forthwith and cannot take part in the further proceedings. When the officer so retires or is not available to serve owing to any cause which the Court may deem to be sufficient and there are any officers in waiting detailed as such, the Presiding Officer shall appoint one of such officers to fill the vacancy. When the challenges are over, swearing or affirming of members in accordance with AR 45 is taken. We have to examine the withdrawal of Lt. Gen. Mande in the light of aforesaid rules. It has been contended on behalf of Union of India that before the stage of Rule 45 i.e. before swearing or affirming of members, any member can be withdrawn at any time. It is clear from the record that Lt. Gen Madanvijay who was seniormost officer in the officers detailed on the GCM was challenged by the petitioner and the challenge was accepted by the Court. The first amongst the waiting members Lt. Gen Mande was, therefore, inducted to the Court. Later on Lt. Gen Mande was withdrawn and another member was appointed. There is no provision prohibiting such a change in the composition of the Court-Martial and in any case no prejudice can be caused to a person arrayed before the court-martial, when he has been given an opportunity to challenge sitting of members on the Court. It is Only after the stage of swearing or affirming of members under AR 45 is reached that the change in constitution of the Court will affect the delinquent officer. Till then the composition on constitution of the Court-Martial is not complete and there is no prohibition against withdrawing a member from cour-martial and supply of Vacancy by a new member. In this case an officer Ltd. Gen. Mande has been withdrawn and another office. Mag. Gen. Surjeetsingh whose name already appeared in the waiting list was inducted prior to the swearing in or affirmation of the members of the court-maritial. There was no illegality or impropriety in the procedure adopted and in any case there was absolutely no prejudice caused to the petitioner because he was given opportunity to challenge the appointment of each of the members of the GCM. The objection as to the validity of composition and constitution of the GCM is also, therefore, overruled.
14. The next objection is as to the violation of AR ISO, It is submitted on behalf of the petitioner that the tentative charge-sheet was founded on the report of the Court of Enquiry. The attachment of the petitioner was also based on the Court of Enquiry and the loss of rank and the monetary loss suffered by the petitioner were also based on the Court of enquiry. Irregularity in the proceedings of Court of enquiry tend to prejudice the petitioner. It was further submitted that the petitioner's participation during the Court of enquiry was only at the time of examination of witnesses. It is contended that when the various documents were being produced before the court of enquiry the petitioner was not kept present. It was further contended that copy of the report of the court of enquiry was also not supplied to the petitioner which also caused prejudice to him. In Prithipal Singh's case (supra) it has been observed in para 41 of the judgment that AR 180 sets up a stage in procedure prescribed for the Court of Enquiry. It cannot be construed, to mean that setting up of a Court of Enquiry is a sine qua non for the court martial. Rule 180 merely makes it obligatory that whenever a court of enquiry is set up and in the course of its enquiry the character of military deputation of a person is likely to be affected then such a person must be given a full opportunity to participate in the proceedings of Court of Enquiry. A perusal of the record shows that throughout the recording of the statements from 4-8-1989 to 19-8-1989 the petitioner was present and all the witnesses were examined in his presence. No prejudice appears to have been caused to him. In Maj. G. S. Sodhi's case (supra) the Supreme Court has observed that procedural defects unless vital and substantial will not affect the trial. The procedure is meant-to further the ends of justice and not to frustrate them. It is not on each and every ground of defect preceding trial that can affect the trial as such. The object and effect of the rules should be considered in the context appearing in mind. The general principle whether such an incomplete compliance has caused any prejudice to the delinquent officer. In this case no substantial violation 8f AR 180 has been proved and in any case there is no prejudice caused by the alleged violation to the petitioner. The challenge to the proceedings on this ground also fails.
15. Next, it was submitted that out of 24 charges contained in the tentative charge-sheet 12 charges under* Section 52 of Army Act were dropped/dismissed and the remaining 12 charges under Section 63 of the Act were recorded against the petitioner. A perusal of the tentative charge-sheet will show that there were 12 main charges and 12 charges in the alternative. In the final charge-sheet these alternative charges have not been mentioned and only 12 charges under Section 52 of the Army Act have been mentioned. In S. N. Mukherjee v. Union of India, AIR 1990 SC 1984, in para 54, it has been observed that when alternative charges have been framed the delinquent officer could be held guilty either of these charges and he could not be held guilty of both the charges at the same lime. When the delinquent officer was found guilty of the first charge he had to be acquitted of the second charge. No infirmity in the court martial having found the delinquent officer guilty of the main charge while holding him not guilty of the second charge, was found by the Supreme Court in that case. In the present case also if the alternative charges have been withdrawn or have not been levelled in the final charge-sheet it cannot be said that the petitioner could not be proceeded against for the main charges also. There is, therefore no force in this objection also.
16. Another contention put forth by the petitioner was that AR 22-25 have also been violated in the case. On perusal of the record we do not find any substantial violation of the rules in the proceedings of the GCM. In para 9 of the petition it has been alleged that there was no due application of mind for investigations said to be made on 2-11-1989 and in consequence certain safeguards under AR 22 read with AR 25 were denied to the petitioner. A letter given by the petitioner was annexed as Annex. 8 to the petition. In this letter dated 2-11-1989 the petitioner had stated that he had opted that the investigation should be held and the evidence as requested be taken in his presence in writing, as provided by AR 25. The petitioner has complained that this was not done. Then he has said that the complete investigation of 12 charges has been disposed of in less than 2 hours. It was also complained of that the petitioner's request for being given reasonable time to prepare case of defence for cross-examination of prosecution witnessess as Court of Enquiry proceedings were given to him only on 22-10-1989 was turned down. The petitioner had further stated in this letter that his request for implementation of AR 25 whereby evidence given by the witnesses on that stage be reduced in writing in his presence was also turned down. Another letter dated 28-10-1989 has also been marked as Annexure 8 to the petition. In this the petitioner has demanded copy of Court of Enquiry proceedings and has put on record that his request had not been acceded to till then. It appears on the same day he was provided with the copy of the report of the Court of Enquiry. This is the only thing the petitioner has referred as regards violation of AR 22 and 25 in the petition. No other specific violation has been pointed out in the petition. In reply the respondents in their return in para 12 have averred that the hearing of the charge was carried out in terms of AR 22. The charges were read to the petitioner who had required the same to be heard as per AR 22(1). The Commanding Officer heard the evidence of 5 witnesses and perused various documents produced by them. The petitioner has declined to cross-examine them or to make any statement. The petitioner had asked that the evidence be taken in writing as provided under AR 25. It was contended that AR 25 does not make any provision for hearing under AR 22(1) to be recorded. It is contended that the hearing of charge in terms of AR 22(1) has to be oral in order to enable the Commanding Officer to decide whether the case is to be dismissed or ought to be proceeded with. When the Commanding Officer decides to proceed further with the case he may order the evidence to be reduced into writing as per AR 22(3)(e). It is also contended that the Commanding Officer after full application of mind had decided the applications given by the petitioner. It was further contended in the return that summary of evidence was recorded strictly in accordance with provisions of AR 23. It took almost 250 days for concluding the recording of the said evidence. The petitioner fully participated and cross-examined witnesses at great length, gave his own statement and produced his own defence statements, and thus provisions of AR 23(1), (2)(3)(4) were fully complied with by the Officer recording the summary of evidence. In the rejoinder in para 36 the petitioner has tried to elaborate on the alleged violations of AR 22 to 25. But on going through the complaints, we do not find that there is any substance in them. It is also not found that the evidence laid in Court of Enquiry has been taken into consideration in violation of AR 182. In the result we do not find that the contention of the petitioner that AR 22-25 were violated is correct.
17. The next grievance of the petitioner is that in violation of AR 105, Judge Advocate Col. R. N. Singh adopted a partisan attitude from the start of the proceedings and failed to act with impartiality. He has been giving advice as directed by his Department in contravention of law and as a result important rights of the petitioner have been infringed. It was further contended that the Department of Judge Advocate General was consulted in this case on the pre-trial stage and it is on its advice that the GCM was convened and trial was to take place. An Officer from this very department was appointed to work as Judge Advocate and such a person is bound to have anxiety of seeing that the charge-sheet approved by his department is somehow sustained and such a person cannot be said to be free from bias. It was further contended on behalf of the petitioner that the GCM erred in law in ignoring mandate of AR 41(2) in illegally permitting the Judge Advocate to sit on the Court-martial and to permit him to advise the Court. It was also contended that the Judge Advocate cannot be of a lesser rank and the prosecutor also required to be of equivalent rank and seniority. In para 18 of the return the contentions in this regard have been dealt with. It has been pointed out that the Judge Advocate General's department ensures that different officers are made responsible to render advice during the pre-trial stage, trial stage and during post-trial stage. It has been denied that officers of the same department are inclined to display an undue anxiety that the charge-sheet as approved by their department is sustained somehow. It is contended that the Judge Advocate General's Department does not have any personal interest against any officer and, therefore, it cannot be said that their advice is influenced by departmental bias. It has been specifically stated that Judge Advocate Col. R. N. Singh who belonged to the department of Judge Advocate General was neither placed under the command of the office of the Dy. Judge Advocate General Headquarter, Central Command nor was he ever under the command of the Judge Advocate General at Army Headquarter. He was posted as Directing Staff (Law) at College of Combat, Mhow, whose affairs are controlled by DGMT at Army Headquarters, New Delhi. On perusal of the record placed before us, we do not find any substance in the allegations against the Judge Advocate or any evidence of any departmental bias entertained by him in conduct of the case. It was also pointed out in the return that the criteria of the disqualification of the Judge Advocate was spelt out in AR 39(2) read with AR 102. The GCM had duly satisfied about the qualifications of the Judge Advocate before proceeding with the case. As regards the contention of the petitioner that the Judge Advocate cannot be of lesser rank and the prosecutor also is required to be of atleast equivalent rank, it was contended that there is no such requirement in the Army Act or Rules or Regulations. In this regard it was also pointed out that AR 40 requires that in no case an officer below the rank of Captain be a member of the Court-Martial for the trial of a Field Officer. In these circumstances we do not find any force in the submissions of the petitioner on the aforesaid point.
18. In the result, we find no force in the petition. It deserves to be dismissed and is hereby dismissed. However, in the circumstances of the case we do not deem it fit to impose any costs on the petitioner. Security, if any, be refunded.