RANJODH SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THE writ petition is against a judgment and order rendered by the Armed Forces Tribunal. By a General Court Martial, Petitioner was cashiered and sentenced to undertake imprisonment of five years. Petitioner approached the Tribunal against the order of the General Court Martial. The Tribunal found that Petitioner was not given adequate opportunity to cross -examine the prosecution witnesses, and that, he was also not allowed to bring his own evidence. In the circumstances, the Tribunal concluded that there are two options available to it, namely, to allow the Petitioner to cross -examine the prosecution witnesses and also to bring his own evidence before the Tribunal or to remit the matter for re -trial. The Tribunal opted for the second option and by the order impugned in the writ petition directed re -trial. It is the contention in the writ petition that the Tribunal was obliged to take further evidence and to conclude the matter. No doubt, the Tribunal had such power. Instead of exercising such power, Tribunal has directed re -trial. It was contended that the Tribunal could not do so. We are of the view that in view of what has been provided in Sub -section (2) of Section 16 of the Armed Forces Tribunal Act, 2007, Tribunal had power to direct re -trial and in the facts and circumstances of the case, the Tribunal did exercise such power in consonance with justice, inasmuch as, Tribunal noticed that the conviction is based on a testimony brought on record without permitting cross -examination. In other words, Tribunal found that there was no acceptable evidence justifying the conviction. Sub -section (2) of Section 16 of the said Act authorizes Tribunal to exercise the power of re -trial, only when it is of the view that the conviction is not sustainable on the basis of evidence brought on record.

(2.) LEARNED Counsel for the Petitioner submitted that when a re -trial will take place, the Members of the Board will stand changed and in consequence thereof there will be miscarriage of justice. The fact remains that the Tribunal concluded that the trial, as was conducted, was not in consonance with law and, accordingly, directed re -trial. Learned Counsel further submitted that Section 121 of the Army Act, 1950 prevents a second trial. Learned Counsel has not been able to understand the distinction between a second trial and a re -trial, whereas in case of second trial, both the trials are valid; in case of re -trial, it is pronounced that the original trial is invalid and, accordingly, re -trial is directed.