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Union Of India & Others v. Ashok Kumar - SPECIAL APPEAL No. 20 of 2007 [2007] RD-AH 8489 (4 May 2007)


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Court No.32

Civil Misc. Review Application No. 22320 of 2007


Special Appeal No.20 of 2007

Union of India & others .....Appellants


Ashok Kumar .....Respondent


Hon'ble S. Rafat Alam, J.

Hon'ble Ashok Bhushan, J.

This is an application seeking review of the judgment dated 9.1.2007 dismissing Special Appeal No. 20 of 2007.

Sri W.H. Khan, learned counsel for the applicant-respondent vehemently contended that the Division Bench while dismissing the special appeal did not correctly interpret the judgment of the Hon'ble Apex Court rendered in the case of Major General Inder Jit Kumar Vs. Union of India and others, (1997) 9 SCC 1 and thus, wrongly held that no opportunity of hearing was required to be granted at the time of drawing up the charges.

The above submission cannot be accepted for two reasons. Firstly, the scope of review is very limited and it is not an appeal in disguise whereby a judgment is reheard and corrected meaning thereby a party under the garb of review cannot claim another opportunity to address on the same fact upon which the matter was already heard and adjudicated upon.  In the case of Thungabhadra Industries Ltd. v. The Government of Andhra Pradesh, 1985 (5) SCR 174 the Hon'ble Apex Court has held that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. Secondly, the ratio of the judgment of the Hon'ble Apex Court in the case of Major General Inder Jit Kumar Vs. Union of India and others (supra) is that the principles of natural justice are not attracted to a preliminary inquiry and it is an order of the court martial, which results in deprivation of liberty. Para 8 of the aforesaid judgment reads as under: -

"8. The appellant has also contended that a copy of the report of the Court of Inquiry was not given to him and this has vitiated the entire Court Martial. The appellant has relied upon Rule 184 of the Army Rules, 1954 in this connection. Rule 184, however, provides that the person who is tried by a Court-Martial shall be entitled to copies of such statement and documents contained in the proceedings of a Court of Inquiry as are relevant to his prosecution or defence at his trial. There is no provision for supplying the accused with a copy of the report of the Court of Inquiry. The procedure relating to a Court of Inquiry and the framing of charges was examined by this Court in the case of Major G. S. Sodhi. v. Union of India, (1991) 2 SCC 382 : (1991 AIR SCW 1589). This Court said that the Court of Inquiry and participation in the Court of Inquiry is at a stage prior to the trial by Court-Martial. It is the order of Court-Martial, which results in deprivation of liberty and not any order directing that a charge be heard or that a summary of evidence be recorded or that a Court-Martial be convened. Principles of natural justice are not attracted to such a preliminary inquiry. Army Rule 180, however, which is set out earlier gives adequate protecting to the person affected even at the stage of the Court of Inquiry. In the present case, the appellant was given that protection. He was present at the Court of Inquiry and evidence was recorded in his presence. He was given an opportunity to cross-examine witnesses, make a statement or examine defence witnesses. The order of the Court of Inquiry directing that Court-Martial be convened and framing of charges, therefore, cannot be faulted on this ground since it was conducted in accordance with the relevant Rules."

Reliance on the judgment of the Hon'ble Single Judge of this Court in the case of Daya Shankar Tiwari Vs. Chief of the Army Staff, New Delhi and others, 2002 (3) AWC 2142 which has been approved by a Division Bench of this Court in Special Appeal No.1456 of 2004 (Union of India and others Vs. Daya Shankar Tiwari) is also misplaced and is not applicable in the facts and circumstances of the present case. Therefore, in the absence of any ground for review and also in view of the exposition of law that the review is not an appeal in disguise whereby a judgment is re-heard and corrected, this review application deserves to be rejected.  

In the result, the review application fails and is hereby rejected but without costs.

Dated: 4.5.2007



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