HARDEV SINGH Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) This petition under Art. 226 of the Constitution of India, by a former Major General of the Indian Army, assails the findings and sentence of the General Court Martial, cashiering him from service, and its confirmation by the Chief of the Army Staff, and the Central Government.

(2.) The petitioner was tried by the General Court Martial on a number of charges and was sentenced to be cashiered from the Army. The findings of the General Court Martial on some of the counts and the sentence were confirmed by Chief of the Army Staff. A petition by the Central Government against the findings and the sentence failed.

(3.) Whether the proceedings of the General Court Martial were vitiated by any illegality or irregularity in the course of the proceedings, is the first question that requires consideration. The proceedings are sought to be voided on two grounds. In the first instance, it is urged that the mandatory provisions of R. 33 (7) of the Army Rules, 1954, were not complied with inasmuch as the petitioner was not given a copy of the summary of evidence and was not afforded other facilities, envisaged by the said 6ub-rule, 96 hours before the commencement of trial. This contention is based on a misconception. Sub-rule (7) provides for a copy of the summary of evidence and other facilities being provided "not less than 96 hours or on active service 24 hours before his trial". It was not disputed on behalf of the petitioner that by virtue of the operation of a Notification of Nov. 28, 1962, issued under Section 9 of the Army Act, 1950, the petitioner would be deemed to have been on active service, even though he may not have been on active service, as defined in Section 3 of that Act. An attempt was, however, made to void the Notification on the ground that it was issued as a sequel to the Indo-Chinese conflict and its continued operation after the cessation of hostilities was mala fide. It is true that the Notification was issued in the situation that arose as a result of the Chinese aggression but there can be little doubt that with the continued occupation of Indian territory by certain alien powers and the situation on the long border of India, which is pregnant with potential danger, there would be no ground to challenge the propriety of such a Notification. In any event, in view of the substantial policy content of the desirability of such a declaration, the matter can hardly be said to be justiciable so as to be allowed to be canvassed in a Court of law. Be that as it may, the criticism as to the insufficiency of time for the preparation of the defence would be unjustified because when the Court assembled on Jan. 12, 1966, it granted the plea of the petitioner for an adjournment on the ground that he has not had sufficient time to prepare his defence and when the proceedings were resumed, the petitioner signified his assent to the commencement of trial. There was, therefore, no infirmity in the proceedings on this count.