JASWANT SINGHversusUNION OF INDIA & ANR.

1312                     [2018] 13
                SUPREME COURT      S.C.R. 1312
                                REPORTS                      [2018] 13 S.C.R.


 A                               JASWANT SINGH
                                          v.
                            UNION OF INDIA & ANR.
                          (Civil Appeal No. 6886 of 2014)
 B                             DECEMBER 10, 2018
               [DR. DHANANJAYA Y CHANDRACHUD AND
                                 M. R. SHAH, JJ.]
              Army Rules, 1954 – r.129 – Benefit of legal advise under –
 C     Entitlement to – Appellant, Sepoy in the Indian Army was dismissed
       from service by Summary Court Martial – Challenged before Armed
       Forces Tribunal (AFT) – Dismissed – Plea of appellant that he was
       entitled to the benefit of legal advise u/r.129 of the 1954 Rules which
       he was denied on the ground that legal assistance could be
 D     admissible only where the offence was punishable with death – Held:
       Rule 129 indicates that in Summary Court Martial, the accused may
       have a person to assist him during the trial, whether a legal adviser
       or any other person – Expression ‘may’ must be read to mean that
       the person who is proceeded against has the option on whether or
       not to engage a legal advisor or any other person – It represents an
 E
       entitlement to be represented – In view of the specific provisions of
       r.129, the Commanding Officer was evidently in error in declining
       the assistance of a lawyer to the appellant – There was a clear
       violation of the principles of natural justice – Prejudice too is evident
       – Appellant was dismissed from service and sentenced to six months’
 F     imprisonment – Both his livelihood and liberty were taken away –
       Judgment of AFT set aside – Armed Forces – Service Law – Army
       Regulations – Regulation 479 – Doctrines/Principles – Principles
       of Natural Justice .
             Allowing the appeal, the Court
 G
              HELD: 1.1 Rule 129, Army Rules, 1954 clearly indicates
       that in a Summary Court Martial, the accused may have a person
       to assist him during the trial whether legal adviser or any other
       person. The expression ‘may’ must be read to mean that the

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        JASWANT SINGH v. UNION OF INDIA & ANR.                          1313


person who is proceeded against has the option on whether or            A
not to engage a legal advisor or any other person. It represents
an entitlement to be represented. [Para 7][1315-A-B]
       1.2 Regulation 479 of the Army Regulations deals with a
situation where a person who is subject to the Army Act is to be
tried for a court martial for an offence punishable with death. On      B
the contrary, Army Rule 129 specifically deals with representation
in a Summary Court Martial. In view of the specific provisions of
Rule 129, the commanding officer was evidently in error in
declining the assistance of a lawyer on the ground that legal
assistance could be admissible only where the offence was               C
punishable with death. [Paras 10, 11][1315-D-E]
      1.3 In the present case, the appellant had rendered seven
years service. He was pitted against his commanding officer. In
the face of the Army Rule 129, there was no reason to deny him
the benefit of legal representation which he desired at his own         D
expense. For these reasons, there was a clear violation of the
principles of natural justice. The prejudice too is evident.
The appellant was dismissed from service and sentenced to six
months’ imprisonment. Both his livelihood and liberty were
taken away. The judgment of the Armed Forces Tribunal is set
aside. [Paras 15-17][1317-E-G]                                          E

      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6886
of 2014.
      From the Judgment and Order dated 18.12.2012 of the Armed
Forces Tribunal, Regional Bench, Lucknow in OA No. 48 of 2010/order     F
dated 05.03.2013 in MA No. 62 of 2013
     Major K. Ramesh, Ms. Archana Ramesh, Vibhuti S. Gupta,
Surgavir, Ram Naresh Yadav, Advs. for the Appellant.
      Ms. Pinky Anand, ASG, Ms. Kiran Suri, Sr. Adv.,
R. Balasubramanian, Ms. Sunita Sharma, Shailendra Saini, Arvind Kumar   G
Sharma, Ms. Kirti Dua, Mukesh Kumar Maroria, Advs. for the
Respondents.


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1314            SUPREME COURT REPORTS                        [2018] 13 S.C.R.


 A           The Judgment of the Court was delivered by
             DR. DHANANJAYA Y CHANDRACHUD, J.
             1. The appellant has challenged the decision of the Armed Forces
       Tribunal, Regional Bench at Lucknow dated 18 December, 2012 in O.A.
       No. 48/2010, by which his challenge to the punishment of dismissal and
 B
       six months’ rigorous imprisonment imposed by a Summary Court Martial
       has been rejected. The punishment of imprisonment has already been
       undergone.
             2. The appellant was enrolled as a Sepoy on 1 January, 2003 in
       the Indian Army. A Summary Court Martial was convened on two
 C
       charges; the first being of an assault on a superior officer while the
       second was the use of abusive language against a Subedar who had
       found the appellant to be not properly dressed for the parade.
             3. The Summary Court Martial acquitted the appellant of the
       second charge, but he was found guilty of the first charge of misconduct.
 D
       He was awarded a punishment of dismissal from service and six months
       rigorous imprisonment in civil jail.
             4. Aggrieved by the punishment, the appellant moved the Armed
       Forces Tribunal, which dismissed the Original Application.
 E            5. The submission which has been urged on behalf of the appellant
       is that there was a violation of the principles of natural justice in
       conducting the Summary Court Martial. The submission is based on the
       provisions of Rule 129 of the Army Rules, 1954. The appellant sought
       the assistance of a civil advocate which was denied.
 F            6. The appellant submits that in a Summary Court Martial, the
       Sepoy was pitted against the Commanding Officer. He should have been
       given the benefit of legal advise which was denied to him on the erroneous
       basis that it was only for an offence involving a possible sentence of
       death that such assistance could be allowed.
 G           Rule 129 of the Army Rules, 1954 provides thus;
                 “Friend of accused – In any summary court- martial, an
                 accused person may have a person to assist him during the
                 trial, whether a legal advisor or any other person. A person so
                 assisting him may advise him on all points and suggest the
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            JASWANT SINGH V. UNION OF INDIA & ANR.                               1315
              [DR. DHANANJAYA Y CHANDRACHUD, J.]

             questions to be put to witnesses, but shall not examine or cross-   A
             examine witnesses or address the court.”
      7. The above Rule clearly indicates that in a Summary Court
Martial, the accused may have a person to assist him during the trial,
whether a legal adviser or any other person. The expression ‘may’ must
be read to mean that the person who is proceeded against has the option          B
on whether or not to engage a legal advisor or any other person. It
represents an entitlement to be represented.
    8. By his letter dated 7.7.2009, the appellant requested the
Commanding Officer to permit him to hire a civil advocate.
                                                                                 C
    9. On 8th July, 2009, this request was turned down on the ground
that under Regulation 479 of the Army Regulations, a civil advocate is
permissible to only those persons who are subject to trial for an offence
which may result in the imposition of the death penalty.
       10. Regulation 479 deals with a situation where a person who is
                                                                                 D
subject to the Army Act is to be tried for a court martial for an offence
punishable with death. On the contrary, Rule 129 of the Army Rules
which has been extracted above specifically deals with representation
in a Summary Court Martial.
       11. In view of the specific provision of Rule 129, the Commanding
                                                                                 E
Officer was evidently in error in declining the assistance of a lawyer on
the ground that legal assitance could be admissible only where the offence
was punishable with death.
       12. Ms. Pinky Anand, learned ASG appearing for the Union of
India submits that no prejudice was caused to the appellant and hence,           F
the Court may not entertain the appeal. In this connection, reliance was
placed on the decision of this Court in Major G.S. Sodhi vs. Union of
India 1 .
        13. The judgment in Major Sodhi’s case (supra) dealt with a case
of a General Court Martial. The circumstances of the case have been              G
adverted to in paragraph 20 of the judgment. This Court noted that in the
letter of the accused, there was a reference to Rule 95 which dealt only
with a ‘defending officer’ and ‘friend of the accused’ to be provided for
on request.
1
    (1991) 2 SCC 382                                                             H
1316      SUPREME COURT REPORTS                         [2018] 13 S.C.R.


 A     14. It was in this background that this Court observed as follows:-
       “20. The next submission is that the proper defence as requested
       by the petitioner has not been provided for. In this regard it is
       submitted that on December 8, 1988 the petitioner made a request
       for a defence counsel and on December 18, 1988 he gave consent
 B     to dispense with the defending officer. However on May 8,
       1989 Lt. Col.S.K. Maini asked the petitioner for three names of
       defending officers in order of preference. On May 9, 1989 he
       gave the list of three names but according to the petitioner on
       May 17, 1989 Lt. Col. S.K. Maini detailed Lt. Col. R.S. Bhatt
 C     who is of his own choice. It is also pointed out that on May 18,
       1989 the petitioner during the court-martial requested for
       adjournment of the court for 10 days in order to engage a defence
       counsel. This request was turned down on the wrong advice of
       the Judge-Advocate. The further submission is that the petitioner
       on May 19, 1989 wrote a communication to the convening officer
 D     and apprised them with the prejudice caused to his defence.
       Considerable reliance is placed on this letter. We have perused
       the same. In that there is a reference to Rule 95 which deals only
       with the ‘defending officer’ and ‘friend of the accused’ to be
       provided for on request. The complaint made in the letter is about
 E     not providing the defending officer of his choice at the trial. There
       are some of the circumstances which according to the learned
       Counsel should be taken into account in appreciating the prejudice
       caused to the petitioner’s defence. Rules 95 to 101 deal with the
       appointment of defending officers and providing defence to the
       accused. Rule 95 lays down that at any general or district court-
 F
       martial the accused person should be represented by any person
       who shall be called the defending officer. It is the duty of the
       convening officer to ascertain whether an accused person desires
       to have a defending officer assigned to represent him at his trial
       and if he does so desire, the convening officer shall use his best
 G     endeavours to ensure that the accused shall be so represented by
       a suitable officer. This rule also provides that accused person
       should be assisted by any person whose services he may be able
       to procure and who shall be called “friend of the accused” to give

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         JASWANT SINGH V. UNION OF INDIA & ANR.                                 1317
           [DR. DHANANJAYA Y CHANDRACHUD, J.]

      advice to the accused on all points and suggest the questions to be       A
      put to the witnesses. Under Rule 96 in certain general and district
      court- martials the counsel is allowed if the convening officer
      declares that it is expedient to allow the appearance of the counsel.
      Rule 97 prescribes the requirements for appearance of counsel.
      From a combined reading of these rules it appears that generally          B
      it is the defending officer selected by the convening officer who
      defends the accused and the accused is allowed in special cases
      if the convening officer declares that it is expedient to allow the
      appearance of the counsel which is exceptional. However, in this
      case we need not make a roving investigation on this aspect
      because we do not find any illegality or irregularity that vitiate the    C
      trial nor we find any prejudice having been caused to the accused.
      As noted above under the rules the defending officer so selected
      is authorised to represent the accused and examine and cross-
      examine the witnesses. All that has been done duly in this case.
      Therefore we are unable to agree that prejudice has been caused           D
      to the petitioner’s defence.”
                                                       (emphasis supplied)
      The above factual basis on which it was held that no prejudice
had been caused to the defence of the appellant was evidently the
foundation of the ultimate decision of this Court.                              E

       15. In the present cae, the appellant had rendered seven years
of service. He was pitted against his Commanding Officer. In the face
of Army Rule 129, there was no reason to deny him the benefit of legal
representation which he desired at his own expense.
                                                                                F
       16. For these reasons, we are of the view that there was a clear
violation of the principles of natural justice. The prejudice too is evident.
The appellant was dismissed from service and sentenced to six months’
imprisonment. Both his livelihood and liberty were taken away.
      17. In the circumstances, we allow the appeal and set aside the           G
judgment of the Armed Forces Tribunal and the decision which has been
taken on the basis of the Summary Court Martial.



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1318             SUPREME COURT REPORTS                        [2018] 13 S.C.R.


 A            18. It is clarified that we have interfered with the order only on
       the ground of a violation of the principles of natural justice. It would be
       open to the Respondents to take further steps as may be permissible in
       accordance with law.
              19. The appeal is, accordingly, allowed. There shall be no order
 B     as to costs.

       Divya Pandey                                                 Appeal allowed.




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