Legally Bharat

Supreme Court of India

Union Of India vs Lt. Col Rahul Arora on 9 September, 2024

Author: Prashant Kumar Mishra

Bench: Dipankar Datta, Prashant Kumar Mishra

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2024 INSC 672                                                                  REPORTABLE




                                      IN THE SUPREME COURT OF INDIA
                                       CIVIL APPELLATE JURISDICTION

                                     CIVIL APPEAL NO. 2459 OF 2017


            UNION OF INDIA & ORS.                                     ….     APPELLANTS

                                                     VERSUS

            LT. COL. RAHUL ARORA                                      ....   RESPONDENT




                                               JUDGMENT

PRASHANT KUMAR MISHRA, J.

This appeal is directed against the order dated 21.05.2014

passed by the High Court of Punjab & Haryana in CWP No.

20380 of 2012. Under the said order, the High Court has set-

aside the order passed by the Armed Forces Tribunal,

Chandigarh1, which has dismissed the appeal of the respondent
Signature Not Verified

Digitally signed by
rashmi dhyani pant
Date: 2024.09.09
17:52:08 IST
Reason:

1 ‘AFT’
2

and upheld the findings and sentence awarded by the General

Court Martial2.

2. The respondent was first commissioned in the Army

Medical Corps3 as medical officer from 29.05.1978 to

31.07.1983. He was again commissioned as regular officer in

AMC on 25.02.1987. In 1996, he was designated as Graded

ENT Specialist and was then upgraded as classified Specialist

ENT in the year 2001. In the month of February, 2002, the

respondent was posted with Military Hospital, Secunderabad

wherein he was required to examine new recruits being

forwarded by various training centres.

3. In September, 2002 one Recruit/Soldier/GD K. Siddaiah

alleged that the respondent paid money for reviewing its

remarks “unfit” to ”review after 15 days”. The statement of

the recruit was recorded by one Major Mrs. R.M.B. Mythilly who

initiated AFMSF-7. The respondent was charge-sheeted, and

three charges were framed against him, namely:

(i)The respondent, an ENT Specialist at a Military
Hospital, had, for extraneous consideration declared
2 ‘GCM’
3 ‘AMC’
3

an Army recruit, K. Siddaiah, as ‘fit’ after previously
declaring him ‘unfit’. Consequently, the first charge
against him was under Section 57(c) of the Army
Act for knowingly and with intent to defraud altering
a document/remarks in the AFMSF-7.

(ii) The second charge was under Section 39(a)
of the Army Act for absenting himself without leave
from 11.04.2004 to 19.04.2004.

(iii) The third charge was under Section 45 of
the Army Act for conduct unbecoming of an officer
and the character expected of his position.

4. Upon conclusion of trial by GCM and upon finding two out

of three charges proven, the respondent was dismissed from

service against which he preferred proceedings before AFT,

which upheld the findings of guilt and the sentence of dismissal

from service as awarded by the GCM. It is this order of the AFT

which was assailed by the respondent before the High Court.

The High Court allowed the writ petition preferred by the

respondent solely on the ground that an officer junior to the

respondent has acted as Judge Advocate in the GCM contrary to

the law laid down by this Court in Union of India & Anr. vs.

Charanjit Singh Gill4.

4 2000 (5) SCC 742
4

5. Assailing the impugned order of the High Court, Shri R.

Bala, learned Senior Advocate for the appellant/Union of India

has argued that there is no blanket prohibition on appointing an

officer of lower rank than the charged officer to serve as Judge

Advocate in a Court Martial. He would strenuously urge that in

Charanjit Singh Gill (supra), this court has carved out an

exception to the effect that “a Judge Advocate appointed with

the Court Martial should not be an officer of a rank lower than

that of the officer facing the trial unless the officer of such rank

is not (having due regard to the exigencies of public service)

available and the opinion regarding non-availability is

specifically recorded in the convening order”. According to

learned senior counsel, the present case falls within the above

exception inasmuch as non-availability of an officer of

equivalent or higher rank was specifically recorded in the

convening order. It is also argued, referring to Army Rule 103

that a Court Martial shall not be invalid merely by reason of any

invalidity in the appointment of the Judge Advocate officiating

thereat. Reference is made to Union of India vs. S.P.S.

Rajkumar and Ors.5

5 2007 (6) SCC 407
5

6. Per contra, Shri G.S. Ghuman, learned counsel appearing

for the respondent would submit that one Major Rajiv Dutta was

appointed as a Judge Advocate in the Court Martial, who was

junior in rank to the respondent. This was informed to the

respondent by forwarding certified copy of the convening order

under the Army Rules 33 (7) and 34 and the same was also

received by the respondent on 07.10.2014. Both the copies

were filed with the written statement. In these orders, the

prerequisites of bringing the appointment of an officer

equivalent or junior to the rank of the respondent was not

mentioned, therefore, the High Court has taken the correct view

in the matter by referring to Charanjit Singh Gill (supra).

7. In the present appeal, we are only concerned with the

legality of the appointment of Judge Advocate who was

admittedly junior to the respondent, therefore, we are not

dwelling on the facts of the case or merits of the charges.

8. Before the High Court, two different convening orders

were produced. One by the appellant and the other one by the

respondent. While the documents submitted by the appellant
6

contained the reasons for appointing a junior as the Judge

Advocate whereas in the convening order submitted by the

respondent no such reason was mentioned. After comparing

the documents, the High Court has recorded a finding that the

convening order Annexure R-I (produced by the appellant

before the High Court) has been altered after the same was

dispatched and received by the Headquarters Artillery Centre,

Hyderabad. The High Court noted that Annexure P-I is

identically worded, but in the second page, the words “in my

opinion having due regard to the exigencies of public service

an officer of equal or superior rank to the accused is not

available to act as Judge Advocate” are additional. The High

Court specifically observed that once a document has been put

in the course of transmission by the General Officer

Commanding, Andhra Pradesh, Tamil Nadu, Karnataka and

Kerala area, the same could not be changed/altered or modified

except after recording that there was a mistake, which needs

correction. Once dispatched by the officer signing the same,

the communication of the document is complete and any

alteration in the document is unauthorised.
7

9. In the above circumstances, it is quite apparent that the

reason for culling out exception as held permissible by this

Court in Charanjit Singh Gill (supra), was not mentioned in

the document while the same was dispatched by the issuing

authority and supplied to the respondent. Subsequent

mentioning of the reason in the other document, after putting

signatures by the issuing authority, was unauthorised and

impermissible, the High Court has correctly held that the

convening order suffers from incurable defect as held by this

Court in Charanjit Singh Gill (supra) in the following words:

“16. It is true that a Judge Advocate theoretically performs
no function as a Judge but it is equally true that he is an
effective officer of the Court conducting the case against the
accused under the Act. It is his duty to inform the Court of
any defect or irregularity in the charge and in the
constitution of the Court or in the proceedings. The quality
of the advice tendered by the Judge Advocate is very crucial
in a trial conducted under the Act. With the role assigned to
him a Judge Advocate is in a position to sway the minds of
the Members of the Court Martial as his advice or verdict
cannot be taken lightly by the persons composing the Court
who are admittedly not law-knowing persons. It is to be
remembered that the Courts Martial are not part of the
judicial system in the country and are not permanent courts.

18. In view of what has been noticed hereinabove, it is
apparent that if a “fit person” is not appointed as a Judge
Advocate, the proceedings of the Court Martial cannot be
held to be valid and its finding legally arrived at. Such an
invalidity in appointing an “unfit” person as a Judge
Advocate is not curable under Rule 103 of the Rules. If a fit
person possessing requisite qualifications and otherwise
eligible to form part of the General Court Martial is
appointed as a Judge Advocate and ultimately some
invalidity is found in his appointment, the proceedings of the
Court Martial cannot be declared invalid. A “fit person”
8

mentioned in Rule 103 is referable to Rules 39 and 40. It is
contended by Shri Raval, learned Additional Solicitor General
that a person fit to be appointed as Judge Advocate is such
officer who does not suffer from any ineligibility or
disqualification in terms of Rule 39 alone. It is further
contended that Rule 40 does not refer to disqualifications.

We cannot agree with this general proposition made on
behalf of the appellant inasmuch as sub-rule (2) of Rule 40
specifically provides that Members of a Court Martial for trial
of an officer should be of a rank not lower than that of the
officer facing the trial unless such officer is not available
regarding which specific opinion is required to be recorded in
the convening order. Rule 102 unambiguously provides that
“an officer who is disqualified for sitting on a Court Martial,
shall be disqualified for acting as a Judge Advocate at that
Court Martial”. A combined reading of Rules 39, 40 and 102
suggests that an officer, who is disqualified to be a part of a
Court Martial, is also disqualified from acting and sitting as a
Judge Advocate at the Court Martial. It follows, therefore,
that if an officer lower in rank than the officer facing the trial
cannot become a part of the Court Martial, the officer of
such rank would be disqualified for acting as a Judge
Advocate at the trial before a GCM. Accepting a plea to the
contrary would be invalidating the legal bar imposed upon
the composition of the Court in sub-rule (2) of Rule 40.

20. The purpose and object of prescribing the conditions of
eligibility and qualification along with desirability of having
Members of the Court Martial of the rank not lower than the
officer facing the trial is obvious. The law-makers and the
rule-framers appear to have in mind the respect and dignity
of the officer facing the trial till guilt is proved against him
by not exposing him to the humiliation of being subjected to
trial by officers of lower rank. The importance of the Judge
Advocate as noticed earlier being of a paramount nature
requires that he should be such person who inspires
confidence and does not subject the officer facing the trial to
humiliation because the accused is also entitled to the
opinion and services of the Judge Advocate. Availing of the
services or seeking advice from a person junior in rank may
apparently be not possible ultimately resulting in failure of
justice.”

10. The legal position is thus well settled in Charanjit Singh

Gill (supra) that non recording of reasons of appointment of an

officer junior in rank as a Judge Advocate in the convening
9

order invalidates the Court Martial proceedings. The High Court

has not committed any error of law in holding so in the facts

and circumstances of the case.

11. The next argument raised by the appellant taking shelter

of Army Rule 103 is referred only to be rejected for the reason

that the protection under this rule is available only where a fit

person has been appointed as a Judge Advocate. If the person

so appointed is not fit to act and perform the duties of the

Judge Advocate as held in Charanjit Singh Gill (supra), Rule

103 would not come to the rescue of the appellant. Moreover,

such argument has already been rejected by this Court in

paragraph 18 of the report in Charanjit Singh Gill (supra).

12. In view of the forgoing discussion, we find no substance in

this Civil Appeal which deserves to be and is hereby dismissed.

………………………………………J.
(PRASHANT KUMAR MISHRA)

………………………………………J.
(PRASANNA BHALACHANDRA VARALE)

NEW DELHI;

September 09, 2024.

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