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2002 DIGILAW 280 (JK)

Ramesh Mohan (Lt. Col. ) v. Union Of India

2002-09-02

B.C.PATEL, MUZAFFAR JAN

body2002
1. Against the order made by learned Single Judge in SWP No. 276 of 1995 on 25-08-1995, the present appeal is preferred 2. The short facts relating to the enquiries which have given rise to the present proceedings are as under- 3. For the need of fuel for Armed Forces, it was a duty of the Supply Corps (Supply Department) to see that a proper time and at proper destination fuel is supplied to so as to see that without fuel, no difficulty is required to be faced for the purpose of defence of the country. 4. One Tank Wagon No. CR-46742 was a part of consignment of High Speed Diesel DHPPA (HSD) which was consigned by the Indian Oil Corporation Limited (hereinafter to be referred to as the IOC) from Gujrat Refinery, Bajwa, to Supply Depot Babina vide RR No: C 431598 dated 01-09-1993. It was despatched to Babina Military siding on 11-09-1993. Its unloading was arranged on 12-09-1993 by the Supply Depot. Babina. It was claimed to have been decanted on 12-09-1993 and entry to this effect was made in the relevant delivery book at Babina on 13-09-1993. The Wagon was in the yard at Babina Siding till it was despatched to Jhansi by 747 Dn at 0605 hours on 21-09-1993 with a specific endorsement "Empty despatched to Jhansi". At Jhansi, when Wagons were sorted out, it was detected that Wagon No. CR-46742 despatched from Babina as "Empty™ was found to be loaded one at 0902 hours on 21-09-1993. It is in view of this, that the Wagon was again despatched to Babina on 26-09-1993. These facts were conveyed by the then Station Superintendent to Supply Depot Babina, and, a memo in writing was served on 6th October, 1993. (on question about distance between Babina and Jhansi, it was submitted that it takes hardly half an hour). 5. Supply Depot, Babina, vide letter dated 09-10-1993 accepted the position that Wagon CR-46742 could not be unloaded on 12-09-1993 due to defect in its bottom valve and requested Station Superintendent, Babina, to place this Wagon again at the delivery point for unloading. A joint inspection was carried out on 17-10-1993 by then Commercial Inspector, Sub-Inspector (RPR), Carriage Foreman (C&W) and the concerned goods clerk of Babina Military Siding, in presence of Military authorities i.e. ex Supply Depot Babina and to their surprise, there was no defect noticed in the valve. A joint inspection was carried out on 17-10-1993 by then Commercial Inspector, Sub-Inspector (RPR), Carriage Foreman (C&W) and the concerned goods clerk of Babina Military Siding, in presence of Military authorities i.e. ex Supply Depot Babina and to their surprise, there was no defect noticed in the valve. Subsequently, the railway authorities were advised by Supply Depot Babina on 02-11-1993 that as delivery against RR No. C431598 dated 01-09-1993 had already been effected under clear receipt dated 13-09-1993, there was no question of second delivery. It so happened that in the meanwhile Wagon No. CR-46742 remained at Babina till 17-12-1993. It was moved to Jhansi and later on it was placed in the IOC Siding at Jhansi on 11-01-1994 as an unconnected Wagon, where the HSD contained in was decanted by IOC Jhansi on 13-01-1994. After release, this Wagon was dispatched to Bombay on 17-01-1994. 6. Despite the aforesaid facts, concerned officials of Supply Depot, Babina reemphasized their claim of having been decanted Wagon No. CR-46742 on 12-09-1993. 7. It is in view of these facts, it was thought necessary to get the matter investigated and to get a finding confirmed that HSD consigned in Wagon No. CR-46742 against RR No: C 431598 dated 01-09-1993 was decanted by Supply Depot Babina on 12-09-1993 and to ascertain if there had been any malpractice or procedural lapses. For this purpose, a Court of Enquiry was convened by Station Headquarters, Babina Cant. Vide their convening order No. 40047 Ql dated 18-12-1993. The convening order for the Court of Inquiry is produced on record at annexure A/1 at page 13. Reading the same it is very clear that Station Commander, Babina Cantonment, made an order of composition of Court of Inquiry to be presided over by Presiding Officer, who should be of the rank of Colonel and three members of the rank of (1) Lt. Col/Major, (2) Maj/Captain and (3) Maj/Captain. The names of the officers were not disclosed but they were to be taken from 89th Infantry Brigade, 34 Armed Brigade. 94 Armed Brigade and 89 Infantry Brigade. They were asked to investigate and confirm that Wagon No. CR-46742 containing DHPPA against RR No. 341598 dated 01-09-1993 was decanted by Supply Depot, ASC, Babina Cantt, while taking delivery of POL from wagons against RR No. C-341598 on 12-09-1993. 8. 94 Armed Brigade and 89 Infantry Brigade. They were asked to investigate and confirm that Wagon No. CR-46742 containing DHPPA against RR No. 341598 dated 01-09-1993 was decanted by Supply Depot, ASC, Babina Cantt, while taking delivery of POL from wagons against RR No. C-341598 on 12-09-1993. 8. Courts attention was drawn while investigating the case to the following aspects:- "a) Was the said wagon (No. CR-46742) containing DHPPA decanted in the presence of Receipt and despatch Board of officers on 12-09-1993? b) Was a clear delivery taken from railway authority on 12-09-1993? c) To pin point the responsibility, in case the said wagon (No. CR-46742) was not decanted along with other wagons against the above RR No. C-431598 and quantity 24500 litres of DHPPA-A contained in the said wagon was taken on charge. d) To find the present location and status of the said wagon in case it was not decanted on 12-09-1993." 9. In the said letter, it was mentioned that Rule 180 of the Army Rules 1954 shall be applied when required and the Court of Inquiry was requested to complete the proceedings and to submit a report in quintuplicate by December 26th, 1993. 10. In the opinion of the ACO Allahabad, despite sufficient evidence, the Court of Inquiry had no thorough pip and failed to arrive at any clear finding on the main issue i.e. to say whether RTW CR-46742 was physically decanted at Supply Depot Babina on 12-09-1993 or not. Even the other enquiry/investigation carried out by other agencies such as railway authorities brought out a number of contradictions and did not help in arriving at any definite conclusion. Few examples of such anomalies were indicated as under:- a) According to the findings of Joint Inspection Report on 17 Oct. 1993. the wagon contained DHPP(A). b) According to Senior DCM Jhansi letter dated 21-12-1993 the tank wagon was found to contain K. Oil. c) According to IOC Kanpur Lab Report of the sample drawn on 04-01-1994 the wagon contained HSD. 11. Thus in view of these facts, to find out the truth in the case, it was decided to have another convening order No. 12001/SUP DEP BBN/A2 dated 28-09-1994. c) According to IOC Kanpur Lab Report of the sample drawn on 04-01-1994 the wagon contained HSD. 11. Thus in view of these facts, to find out the truth in the case, it was decided to have another convening order No. 12001/SUP DEP BBN/A2 dated 28-09-1994. The Court of Inquiry was asked to investigate the following aspects:- a) Whether DHPP(A) was decanted from RTW CR-46742 against RR No. 43 1598 dated 01-09-1993 and from RTW-46495 against RR No. 426558 dated 17-07-1993 by Sub Depot Babina on 12 Sept 94 before taking clear delivery from Railways and whether there were any lapses, procedural or otherwise? b) Whether RTWs Cr-46742 and CR-46495 contained HSD of normal commercial specification instead of DHPP(A)? c) Any other matter arising out of evidence. 12. It was in view of these facts as second Court of Inquiry was constituted by the competent authority, the appellant herein filed a writ petition before Jammu bench of this court, being SWP No: 276/1995 for issuance of writ under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir for quashing the order No: 12001/ SUP DEP BBN/A2 dated 28-09-1994 passed by respondent No. 5, Sub-Area Commander, Allahabad Sub-Area, Allahabad, constituting second Court of Inquiry to investigate into the matter which was conclusively investigated by the Court of Inquiry constituted for the purpose vide order dated 18-12-1993 by respondent No. 4, Station Commander. Babina Cant., and all consequential orders that may be passed thereafter. The appellant also prayed that the impugned order dated 10-03-1995 attaching the petitioner to Jabalpore till finatization of disciplinary case claimed to be pending against the petitioner be quashed and set aside. 13. Learned Advocate Mr. Jan appearing for the appellant submitted that in view of Rule 180 of the Army Rules 1954, the enquiry could not have been conducted in absence of the appellant and no report can be made without giving an opportunity to cross examine the witnesses. He further submitted that when first enquiry was conducted and report has been submitted, the second enquiry is contrary to the provisions of law contained in Rule 139 of the Army Rules. He submitted that in view of this, proceedings must be quashed. 14. He further submitted that when first enquiry was conducted and report has been submitted, the second enquiry is contrary to the provisions of law contained in Rule 139 of the Army Rules. He submitted that in view of this, proceedings must be quashed. 14. So far as attachment is concerned, he submitted that there cannot be any proceeding on the basis of report submitted, if any, by the second Court of Inquiry and therefore, the attachment order is also bad, Illegal, perverse and not in accordance with law. Mr. Jan. learned advocate further submitted that the petitioner is now about to complete his career in the Armed Forces and continuation of the trial, if any, would amount to nothing but harassment and, therefore, such proceeding must be quashed. 15. The facts are narrated hereinabove and, therefore, to understand the submission canvassed by Mr. Jan, learned advocate, it would be necessary to refer to the provisions contained in the Army Act and the Rules. 16. From the facts narrated in the earlier part of the judgment and the two orders constituting Court of Inquiries, it is clear that who is the wrong doer, was not known to the authorities, therefore, investigation was directed to be made. Neither in the Army Act nor in the Army Rules, enquiry and investigations have been defined, though the words are used at various places. Chapter VII of the Army Act refers to various punishments, alternative or combination of punishment, cashiering of officer. Field Punishment and various other types of punishments. Chapter VIII of the Army Act refers to penal deductions. Chapter IX refers to arrest and proceedings before trial. Chapter X refers to Court Martial. Chapter XI refers to Procedure of Courts Martial. Chapter XII refer_ to Confirmation and Revision. Chapter XIII refers to execution of sentences. Chapter XIV refers to pardons, remissions and suspensions. Thus the Act prescribes complete procedure for a trial. 17. So far as pretrial stage is concerned, if one looks at Chapter V of the Army Rules, it would be clear that sufficient protection is given to the persons who are likely to face the trial. Chapter V refers to investigation of charges and trial by Court martial. The accused shall have full liberty to cross examine any witness against him and to call any witness and make any statement in his defence. Chapter V refers to investigation of charges and trial by Court martial. The accused shall have full liberty to cross examine any witness against him and to call any witness and make any statement in his defence. The Commanding Officer in his opinion if, evidence does not show that offence under the Act has been committed, then in his discretion, if satisfied that the charge ought not to be proceeded with, may pass appropriate order. At the stage of conclusion of hearing of a charge, if he is of the opinion that the charge ought to be proceed with, then he shall have to follow the procedure prescribed under sub-rule 3 of Rule 22. Rule 23 refers to summary of evidence. Rule 25 refers to procedure on charge against officer. It refers to framing the charges, preparation for defence by accused person and convening of court. The procedure at trial is also prescribed in Rule 41 and under various rules. Prosecution, defence and summing up of a case is also prescribed in rules. With regard to sentence, confirmation and revision, mitigation of sentence etc. are also prescribed. The proceedings of General and District Court Martial are provided in rule 85 and onwards. Provisions of defending of officer and friend of accused and counsel is also provided in Rule 95 and onwards. What should be the procedure is also prescribed. There are general provisions with regard to witnesses and evidence. There is special provision of summary General Court Martial and Field punishment. Thus procedure is prescribed for a trial which is required to be followed scrupulously. At this juncture, it would be worth to keep in mind the provisions contained in the Code of Criminal Procedure with regard to enquiry and investigation. Provisions are made in this behalf. Inquiry means every inquiry, other than a trial, conducted under this Code by a Magistrate or a Court. Investigation includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf. 18. It would be interesting to note at this juncture the procedure about the trial of warrant cases by Magistrate where case is instituted otherwise than on a police report. It is found in section 244. 18. It would be interesting to note at this juncture the procedure about the trial of warrant cases by Magistrate where case is instituted otherwise than on a police report. It is found in section 244. We need not discuss the provisions, but reading of the provisions made by the Parliament are required to be seen. 19. So far enquiry is concerned under the Army Act and the Rule framed there under, known as Army Rules, provide for the same in Chapter VI. Rule 177 if read it becomes clear that it is court of inquiry which is an assembly of officers whose function is to collect evidence and to make a report. The whole proceedings of a court of Inquiry is required to be forwarded by the Presiding Officer to the officer who assembled the court. It is only in a case where an enquiry affects character of or military reputation of a person subject to the Act. opportunity is required to be afforded to such a person of being present throughout the enquiry; of making any statement and of giving any evidence he may wish to make or give; of cross examining any witness whose evidence may affect his character and military reputation; to produce any witness in defence of his character or military reputation. It would be his character or military reputation. It would be worth at this stage to reproduce Rules 177 and 179 which are as under:- 177. Courts of Inquiry:- (1) A Court of Inquiry an assembly of officers or of officers and junior commissioned officers or warrant officers or noncommissioned officers directed to collect evidence and, if so required, to report with regard to any matter which may be referred to them. (2) The court may consist of any number of officers or any rank, or of one or more officers together with one or more junior commissioned officers or warrant officers of noncommissioned officers. The member of court may belong to any branch of department of the service, according to the nature of the investigation. (3) A court of inquiry may be assembled ˜by the officer in command of any body of troops, whether belonging to one or more corps. 179. Procedure (1) The court shall be guided by the written instructions of the authority who assembled the court. (3) A court of inquiry may be assembled ˜by the officer in command of any body of troops, whether belonging to one or more corps. 179. Procedure (1) The court shall be guided by the written instructions of the authority who assembled the court. The instructions shall be full and specific and shall state the general character of the information required. They shall also state whether a report is required or not. (2) xxxxxxxxxxxxxxxxxxxxxxx (3) Previous notice should be given of the time and place of the meeting of a court of inquiry, and of the adjournments of the court, to all persons concerned in the inquiry except a prisoner of war who is still absent. (4) The court may put such questions to a witness as it thinks desirable for testing the truth or accuracy of any evidence he has given an otherwise for eliciting the truth. (5) The court may be re-assembled as often as the officer who assembled the court may direct, for the purpose of examining additional witnesses, or further examining any witness or recording further information. (6) The whole of the proceedings of a court of inquiry shall be forwarded by the presiding officer to the officer who assembled the court. 20. So far as-Rule 180 is concerned, we have indicated that it is only under this rule, opportunity is required to be given to the person concerned, if enquiry is affecting character or Military reputation of the person. 21. When a person is known and definite information is with the Commanding Officer indicating the manner in which the offence is committed, there may not be a question of investigation. When it is not certain as to who the offender is out of several persons, it becomes necessary for the court of Inquiry to collect evidence and to make report in the matter to officer who assembled the court. 22. Rule 179 of the Army Rules if read, it becomes very clear that the procedure is to be followed for collection, of evidence, and, if so required, to make a report with regard to the matter which has been referred to the court of Inquiry. The Court of Inquiry is required to have instructions which should be full and specific with regard to the generat character of the information required. The Court of Inquiry is required to be informed whether report is required or not. The Court of Inquiry is required to have instructions which should be full and specific with regard to the generat character of the information required. The Court of Inquiry is required to be informed whether report is required or not. Sub-Rule 3 of Rule 179 of the Army Rule refers to giving notice to the person concerned in the enquiry. It is in view of this, it was submitted by learned counsel Mr. Jan that all the persons concerned were required to be informed about proceedings including appellant in the instant case. 23. Reading the provisions, it is very clear that it is not contemplated that even when it is not certain to the Commanding Officer as to who has committed the offence or the matter of committing the offence is not certain, yet he has to give audience to the person(s). There is no question of even thinking that the person concerned is likely to be prosecuted in future, should be informed. Only Rule 180 contemplates that if enquiry is conducted, which affects character or Military reputation of a person subject to the Act, full opportunity is to be given. Thus, when it is certain that a particular person has committed a wrong and his act or ommission is likely to affect the character or military reputation, then opportunity is to be given. 24. We have discussed the facts in detail. No where name of appellant appears. It is matter of investigation and only on investigation it would be known whether any offence is committed or not and if committed who are the responsible persons for the act or the omission. Therefore, it cannot be said that when court of Inquiry is constituted to collect evidence, the person who is likely to be prosecuted, should be also called at the enquiry proceedings and should be given an opportunity of cross examining the witnesses. In the opinion of this court, it would be beyond the scope of Rule 179 of the Army Rules to permit a person to remain present at the enquiry which is constituted for the purpose of collection of evidence and to make report only. When it is not certain as to who are the person involved, there is no question to invoke Rule 180 of the Army Rules. 25. When it is not certain as to who are the person involved, there is no question to invoke Rule 180 of the Army Rules. 25. It is required to be noted that so far as Rule 180 is concerned, if there is no specific allegation, then one may not be knowing about a person who is responsible for act or ommission. It is in view of this, it appears that the provision has been made in later part of Rule 180, which reads as under:- "180....The presiding officer of the court shall take such steps as may be necessary to ensure that any such person so affected and not previously notified, receives notice of and fully understands his rights under this rule." 26. It is required to be noted that the Act and the Rules laid down the object and procedure of the Court of Inquiry. This is the only mode of ascertainment of fact at the pre-charge level contemplated by the law. The Commanding Officer has no authority to record a finding of fact. It is well known that the investigation is only preliminary step and information is being gathered on evidence, if there is sufficient material, the charge is to be laid. The court, at the state of trying the officer, is not concerned as to in what manner, the case was investigated. This is known that where a statutory remedy is provided, the court should be loath not to interfere in the order of authorities to whom special jurisdiction has been conferred by statute. 27. The matter is at the sate of investigation. Only after collection of evidences, a decision could be taken whether prima facie case has been made out against a person or not. When the matter is at the stage of investigation of the purpose of finding out as to whether crime is committed or not and if committed, by whom, then in such a case, accused has no right to participate. It is in this back ground the case is required to be considered. 28. Mr. Jan learned Advocate appearing for the appellant submitted that in view of a decision of Delhi High Court in case of Raghbir Singh Sangwan Vs. Union of India and others, 1981 (3) SLR 207. the court should quash proceedings. In that case petitioner was cleared of the charges by three courts of inquiry. 28. Mr. Jan learned Advocate appearing for the appellant submitted that in view of a decision of Delhi High Court in case of Raghbir Singh Sangwan Vs. Union of India and others, 1981 (3) SLR 207. the court should quash proceedings. In that case petitioner was cleared of the charges by three courts of inquiry. Thus the charges were known and the persons against whom allegations were made were also known and yet three inquiries were conducted. We would like to state at this juncture that the provision is made by the Parliament with regard to the investigation conducted by the police even after filing the charge sheet. 29. Further investigation even under the Army Act or the Army Rules is not barred. Sub Rule (5) of Rule 179 on the contrary is a source of power of the officer who assembled the court to re-assemble for the purpose of examining additional witnesses or further examining any witness or regarding further information. Thus it cannot be said that further enquiry cannot be conducted. 30. In view of the decision rendered by a learned Single Judge of Delhi High Court in case of Raghbir Singh Sangwan (supra), learned Advocate Mr. Jan submitted that rule does not contemplate more than one court of inquiry. The learned Single Judge in para 10 of the judgment held that: "Even assuming that the Commanding Officer can differ from the findings of the court of inquiry, he must do so by stating his reasons, particularly when the three courts of inquiry had established innocence of the petitioner. A finding of guilt ought to state as to why the finding of the court of inquiry are wrong. A speaking order in these circumstances is a sine qua non of fair play.� 31. The court has not propounded a view that there cannot be second court of inquiry. In view of the learned Judge, officer must set out reasons if Commanding Officer is differing from the report made by the court of inquiry. Reading this judgment, it is thus very clear that three enquiries were already conducted and findings were recorded. (The High Court has observed that courts of enquiry recorded a finding that the petitioner was innocent). In such a situation, court has taken a view that three court of enquiry have recorded a finding. 32. Reading this judgment, it is thus very clear that three enquiries were already conducted and findings were recorded. (The High Court has observed that courts of enquiry recorded a finding that the petitioner was innocent). In such a situation, court has taken a view that three court of enquiry have recorded a finding. 32. In the instant case, the first court of enquiry was not called upon to record any finding against the person. It had to collect the evidence only. Rule 179 if perused, it is very clear that the evidence is to be collected and report is required to be made with regard to any matter which may be referred to them. There is no question of recording innocence or guilt of the person. In the instant case, the court of inquiry™ was investigating a matter with regard to decantation of the wagon. The railway authorities, police authorities and the persons working in the Railway Siding may be responsible or may not be responsible. Even the officers of the Sub Area or Corps may be responsible or not be responsible. Therefore, there was need of collection of evidence. Only the court of inquiry was required to forward its opinion about the responsibility and lapses, if any, in the facts and circumstances of the present case. The judgment delivered by learned Single Judge in case of Raghbir Singh (supra) is of no assistance to the appellant. 33. Mr. Jan learned Advocate drew our attention to the decision of the Apex Court in case of Major General Inder Jit Kumar Vs. Union of India and others. (1997) 9 SCC 1, and submitted that it was obligatory upon the authorities to call or to issue a notice to the appellant. The Apex Court in the said case pointed out that in the case of Major G.S. Sodhi Vs. Union of India, (1991) 2 SCC 382, the court has held: ".....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 (he 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......." 34. It is the order of (he 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......." 34. The court further pointed out that the Rule 180 gives protection to the person effected even at the stage of court of inquiry. The protection was given in that case. In that case, it is also made clear in para 7 that under Rule 177 of the Rules, a court of inquiry can be set up to collect evidence and to report, if so required, with regard to any matter which maybe referred to it. The court of inquiry is in the nature of a fact finding inquiry committee. In that case, investigation of the tentative charges was carried out by the Commanding Officer under Rule 20 read with Rule 25 and the appellant was given an opportunity to cross examine the witnesses and produce his witnesses. While recording summary of evidence under Rule 23, he was given an opportunity. Thus when there is a question in the opinion of the court of inquiry that evidence lead before it affects the character or military reputation of a person, then opportunity is required to be given. If it is known from the initiation of enquiry, then he is required to be given an opportunity as contemplated. However, when it is not certain whether offence is committed or not or who has committed, there is no question of giving such an opportunity during investigation. 35. In case of Lt. Col. Prithi Pal Singh Bedi Vs. Union of India and others, (1982) 3 SCC 140, the Apex Court has pointed out;- "....However, procedure prescribed in Rules 22, 23 and 24 is at a stage anterior to trial by the court martial. It is the decision of the court martial which would result in deprivation of liberty and not the court directing that the charges be heard or that summary of evidence be recorded or that a court martial be convened. Even in normal trial under the Criminal Procedure Code it has never been suggested that it is unfair to launch a Criminal prosecution without first hearing the accused. Even in normal trial under the Criminal Procedure Code it has never been suggested that it is unfair to launch a Criminal prosecution without first hearing the accused. Therefore, there is no substance in the contention that Rules 22, 23 and 24 in views of the provision contained in Rule 25 are ultra vires Article 21 of the Constitution." 26. Section 89 of the Act refers to collective fine. Whenever any weapon or part of a weapon forming part of the equipment of a half squadron, battery, company or other similar unit is lost or stolen, the officer commanding the army. Army corps, division or independent brigade to which such unit belongs may, after obtaining the report of a court of inquiry, impose a collective Hue upon the junior commissioned officers, warrant officers, noncommissioned officers and men of such unit, or upon so many of them as in his judgment, should be held responsible for such toss or theft. The line is to be assessed on the basis of the pay of the individuals. 37. Section 106 of the Army Act refers to the absence of a person without leave. When a person is absent from his duly without due authority for a period of 30 days, the court of inquiry shall, as soon as practicable, assemble and such court, shall, on oath or affirmation administer in the prescribed manner, inquire respecting the absence of the person and the deficiency, if any, in the property of the Government entrusted to his care or in any, ammunition, equipment, instrument, clothing or necessaries and if satisfied of the fact of such absence without due authority or other sufficient cause, the court shall declare such absence and the period (hereof Thus these are the provisions where the court of inquiry is must. It is also to be noted that when an offence is committed and trial by General Court Martial is to be held, there is no provision which requires that a Court of Inquiry should be set up before the trial is commenced. 38. Mr. Jan learned counsel for the appellant submitted that when enquiry is being made, he must be asked to remain present and must be permitted to cross examine the witnesses. When it is not known as to a particular person has committed a crime, and. 38. Mr. Jan learned counsel for the appellant submitted that when enquiry is being made, he must be asked to remain present and must be permitted to cross examine the witnesses. When it is not known as to a particular person has committed a crime, and. enquiry is of a subject matter which may affect the character or military reputation of a person who is not known, then there is no question of opportunity to be afforded. The Court of Inquiry following the provisions of Rule 177 has yet to come to a conclusion. 39. In the instant case, whether offence is committed or not and by whom is to be investigated. Can it be said that all persons working in the Army Supply Corps of the Babina Cant should be heard at the stage of enquiry? However, during the course of enquiry, if it is noticed that the military™ reputation or character of a person is likely to be affected who is subject to the Army Act. then the Presiding Officer of the court has to take steps as may be necessary to ensure that such person is given an opportunity. Thus it is for the court of Inquiry conducting enquiry to consider the aspect and during such enquiry, if it is noticed, the Court of Inquiry will have to call the officer whose character or military reputation is likely to be adversely affected. It is in this view of the matter, while convening Court of Inquiry, it was specifically mentioned that provisions of Army Rule 180, will be complied with, when necessary. Therefore, in view of this, it is incorrect to state that he must be asked to remain present in the initiat stage. 40. Mr. Jan learned Advocate, relied upon the decision of a learned Single Judge of this court, reported in 1984(3) SLR. 675. incase Prithpal Singh Vs. Union of India and others. In that case, at no stage the petitioner has accepted Mr. Arun Dhar as a friend under Rule 129, yet he was imposed on him against his wishes. The court came to the conclusion that this would amount to denial of right to the person in having a friend to assist as required by Rule 129 of the Army Rules. It is in view of these facts, the court arrived at a conclusion that there is breach of provisions contained in Rule 129. The court came to the conclusion that this would amount to denial of right to the person in having a friend to assist as required by Rule 129 of the Army Rules. It is in view of these facts, the court arrived at a conclusion that there is breach of provisions contained in Rule 129. There was also violation of Rule 115. Rule 115 refers to general plea of guilty or not guilty. Rule 129 refers to friend of accused. It is in this view of the fact that violation of both these Rules was noticed and the court has interfered. Thus this decision is of no assistance to the counsel appearing for the appellant. 41. Mr. Jan learned Advocate also submitted that when powers are conferred on the authority to do certain thing in certain way, then it must be exercised in the manner it is laid down. He has placed reliance on a case of Ramachandra Kesha Vs. Adke, Appellant Vs. Govind Joti Chavare and others, Respondent AIR 1975 SC 915. In para 25 of the said judgment. the Apex Court has observed as under:- "A century ago, in Taylor Vs. Taylor (1875) 1 Ch D 426 Jessel M.R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time....." 42. Mr. Jan, learned Advocate relying upon the decision of the Apex Court in case of Ranjit Thakur Vs. Union of India and others. (1987) 4 SCC 611 submitted that as there is breach of Rule 180, proceedings must be quashed. 43. It may be noted that procedural safeguards contemplated in the Act are required to be considered in the context and corresponding to the plenitude of the summary jurisdiction of the court martial and the severity of the consequences that visit the person subject to that jurisdiction. There was non compliance of the mandate of Section 130. There is an infirmity which goes to the root of the jurisdiction and without more, vitiates the proceedings. 44. In the instant case, yet investigation is not complete, charge is not framed and trial has not commenced. Mr. Jan learned Advocate submitted that in view of the Apex Court decision in case of Capt. There is an infirmity which goes to the root of the jurisdiction and without more, vitiates the proceedings. 44. In the instant case, yet investigation is not complete, charge is not framed and trial has not commenced. Mr. Jan learned Advocate submitted that in view of the Apex Court decision in case of Capt. Virender Kumar Vs. Union of India, reported in (1981) 1 SCC 485, procedure under Rule 157 or 157-A was not at all followed fairly, therefore, the Apex Court allowed the appeal. In that case Capt. Virender Kumar fighting in the front line sustained a spinal injury while in action. The material on record as noticed by (he Apex Court, he had a brilliant career and was courageous officer. In view of (he injury lie was not continued in service and pension of Rs. 51.50 per month was fixed. Chief of the Army Staff was required to satisfy himself that the officer is unfit to be retained in the service due to physical disability. After following the principles of natural justice, decision is to be taken. In case of Commissioned Officers, medical board has to examine the officer. The court pointed out that the procedure was not followed. As the procedure was not followed, the appeal was allowed with costs. 45. In the instant case no decision has been taken, affecting the services of the appellant, therefore, no reliance can be placed at this stage on the decision. 46. In Para 5 of the judgment, the learned Single Judge has pointed out that no adverse order against the petitioner is passed and there is nothing to indicate that any action has been taken on the basis of court of inquiry report. If the finding or opinion is taken to be suffering from some legal vice or any mischief, it is always open for the petitioner to take action against that. Learned Single Judge has considered all the aspects including that of convening the second court of Inquiry and perusal of the rule and the Act, and on perusal, the learned Single Judge arrived at a conclusion that there is nothing to suggest that there is prohibition either expressly or impliedly in ordering second court of Inquiry for investigation into the matter. 47. The learned Single Judge has also rejected the ground that second court of inquiry is bad when it is composed of different officers. 47. The learned Single Judge has also rejected the ground that second court of inquiry is bad when it is composed of different officers. There is no provision in law which indicates that second enquiry cannot be entrusted to other officers. In the opinion of the court, no case is made out for interference and, therefore, the appeal is required to be dismissed. Accordingly the appeal is dismissed with costs. Interim direction shall stand vacated.