BIJI AVTAR SINGH Vs. GENERAL OFFICER

JUDGEMENT

(1.) The petitioner, a Brigadier in the Indian Army, is challenging the validity of the orders passed by the General Officer Commanding, 54. Infantry Division, dissolving the general court-martial trying him, and constituting a fresh general court martial for that purpose. It is necessary to state a few facts for a proper appreciation of the several contentions raised herein.

(2.) The petitioner, while acting as the Commander of the Andhra Sub-Area during the years 1975 to 1977, is alleged to have committed seveial acts of misappropriation. A Commission of Enquiry was constituted to investigate the charges. The Commanding Officer heard the several charges levelled against the petitioner, in accordance with rule 73, read with rule 22 of the Army Rules, 1954 and directed that the petitioner be tried for six charges framed by him. The charge-sheet along with the summary of evidence recorded by the Court of Enquiry was placed before the General Officer Commanding, as required by rule 37. On a perusal of the relevant material, the General Officer Commanding was satisfied that the evidence justified a trial on those charges and that the said charge should properly be tried by a General Court Martial. Accordingly, a General Court Martial was cons ituted by him with five members. The Gsaeral Court Martial commenced its work as provided by the Rules, and the trial was in progress. Quite a few witnesses for prosecution were examined by 19th June, 1978. When the Court convened on 19th June, 1978. the prosecution Counsel submitted that in his papers he has come across a recommendation minute which indicates that one of the members of the General Court Martial, namely, Brig. Prem Chandra, "may have gone through and examined the summary of evidence and formed this opinion that the accused be tried by a General Court Martial". The said document dated 18th February, 1978 was placed before the Court. It reads as follows :-

(3.) Brig. Prem Chandra stated that he did not remember to have signed the said recommendation, until he saw the document. He explained the circumstances in which he signed the document, as follows:-