Mr. Shree Prakash Sinha, Mr. Anand Kumar, Mr. Gurpreet Das, Ms. Asmita and Mr v. UNION OF INDIA AND ORS

Judgment

1. The petitioner Ex. Major General M S Jaswal was subjected to General Court Martial1 proceedings under Section 109 of the Army Act 1950, which culminated in an order dated 23 December 2018 finding the petitioner guilty of having committed offences under Sections 354A of the Indian Penal Code2 read with Section 45 of the Army Act 1950, and imposition, consequent thereto, of punishment of dismissal from service.

2. The petitioner had, during the GCM proceedings, raised a challenge to the jurisdiction of GCM to proceed against the petitioner.

3. The decision taken on the said request was not communicated to the petitioner as soon as it was taken. The petitioner, in these circumstances, approached the Armed Forces Tribunal3 by way of OA 1631/2018, praying that he be provided copies of order/orders passed by the GCM rejecting his objection to jurisdiction.

4. While the said OA was pending, the GCM proceedings concluded on 23 December 2018, as already noted hereinabove.

5. The petitioner, thereafter, approached the Tribunal by way of a second OA, i.e. OA 191/2019, praying that the respondent be directed 1 “GCM” hereinafter 2 “IPC” hereinafter 3 “Tribunal” hereinafter W.P.(C) 1864/2025 & W.P.(C) 1865/2025 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:15.12.2025 15:39:19 to provide him certified copies of the original manuscript of the court martial proceedings and the true certified copy of the typed copy of the court martial proceedings.

6. Thus, the prayers in these two OAs were distinct and different. Both the OAs have come to be dismissed by the Tribunal by separate orders dated 24 May 2019.

7. Against the orders dated 24 May 2019 of the Tribunal in OA 1631/2018 and OA 191/2019, the petitioner filed review applications, being RA 27/2019 and RA 28/2019 respectively.

8. Both these review applications were dismissed by the Tribunal by separate orders dated 26 August 2021.

9. The petitioner initially approached the Supreme Court, challenging the orders passed by the Tribunal in OAs and RAs. Orders dated 24 May 2019 in OA 1631/2018 and 26 August 2021 in

RA 27/2019 were challenged in Civil Appeals 2207/2022 and 2208/2022, whereas the judgments in OA 191/2019 and RA 28/2019 were challenged in Civil Appeals in 2209/2022 and 2210/2022.

10. By order dated 29 November 2024, the Supreme Court directed its Registry to transfer the records of the Civil Appeals to this Court for decision, in view of the judgment of the Supreme Court in Union W.P.(C) 1864/2025 & W.P.(C) 1865/2025 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:15.12.2025 15:39:19 of India v. Parashotam Dass4.

11. Subsequent thereto, the Civil Appeals were re-numbered by the Registry of this Court as WP(C) 1864/2025 and WP(C) 1865/2025. WP(C) 1864/2025 challenges order dated 24 May 2019 in OA 191/2019 and order dated 26 August 2021 in RA 28/2019, whereas WP(C) 1865/2025 challenges order dated 24 May 2019 in OA 1631/2018 and order dated 26 August 2021 in RA 27/2019 respectively.

12. We have heard Mr. Shree Prakash Sinha, learned Counsel for the petitioner and Ms. Avshreya Pratap Singh Rudy, learned CGSC for the respondents, at length. Impugned judgments and orders of the Tribunal Judgment dated 24 May 2019 in OA 1631/2018 and order dated

13. 26 August 2021 in RA 27/2019

13.1 In its judgment dated 24 May 2019 in OA 1631/2018, the Tribunal has noted that grievance of the petitioner, in the OA, was that he had not been provided certified copies of order dated 14 July 2018, whereby the GCM had rejected the special plea of jurisdiction raised by the respondent in terms of Rule 515 of the Army Rules. The 4 (2025) 5 SCC 786 5 51. Special plea to the jurisdiction. – (1) The accused, before pleading to a charge, may offer a special plea to the general jurisdiction of the court, and if he does so, and the court considers that anything stated in such plea shows that the court has not jurisdiction it shall receive any evidence offered in support, together with any evidence offered by the prosecutor in disproof or qualification thereof, and, any address by or on behalf of the accused and reply by the prosecutor in reference thereto. W.P.(C) 1864/2025 & W.P.(C) 1865/2025 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:15.12.2025 15:39:19 petitioner also sought copies of the day to day proceedings of the GCM which, too, had not been provided to him.

14. Before the Tribunal, following submissions were advanced by the petitioner, as noted in the order passed by the Tribunal: (i) Section 1336 of the Army Act made the provisions of the Evidence Act applicable both to the proceedings of the GCM as well as to the Army Act itself. (ii) Section 1527 of the Army Act also deemed proceedings of the GCM to be judicial proceedings. They were, therefore, subject to the provisions of the Evidence Act. (iii) The proceedings of the GCM were, therefore, “public documents” for the purposes of Sections 748 and 769 of the If the court overrules the special plea, it shall proceed with the trial. (2) (3) If the court allows the special plea, it shall record its decision, and the reasons for it, and report it to the convening authority and adjourn; such decision, shall not require any confirmation, and the convening authority shall either forthwith convene another court for the trial of the accused, or order the accused to be released. (4) If the court is in doubt as to the validity of the plea, it may refer the matter to the convening authority, and may adjourn for that purpose or may record a special decision with respect to such plea, and proceed with the trial. 6 133. General rule as to evidence. – The Indian Evidence Act, 1872 (1 of 1872), shall, subject to the provisions of this Act apply to all proceeding before a court-martial. 7 152. Powers of court-martial in relation to proceedings under this Act. – Any trial by a court-martial under the provisions of this Act shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860), and the court-martial shall be deemed to be a court within the meaning of Sections 345 and 346 of the Code of Criminal Procedure, 1973 (2 of 1974). 8 74. Public documents. – The following documents are public documents— documents forming the acts or records of the acts— (1) (i) (ii) (iii) the Commonwealth, or of a foreign country; public records kept in any State of private documents. of the sovereign authority, of official bodies and tribunals, and of public officers, legislative, judicial and executive, of any part of India or of (2) 9 76. Certified copies of public documents. – Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies. Explanation. – Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section. W.P.(C) 1864/2025 & W.P.(C) 1865/2025 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:15.12.2025 15:39:19 Evidence Act. These provisions, therefore, entitled petitioner to certified copies of the proceedings of the GCM.

15. The respondent, on the other hand, placed reliance, before the Tribunal, on the judgments of the Supreme Court in Union of India v. G.S. Bajwa10 and S.N. Mukherjee v. Union of India11.

16. The Tribunal rejected the submissions of the petitioner. While accepting the contention that, under Section 15(2)12 of the Armed Forces Tribunal Act, 200713, the petitioner was entitled to challenge any order passed by the GCM, the Tribunal held that a certified copy of the order proposed to be challenged was not sine qua non to approach the Tribunal.

17. Insofar as the reliance, by the petitioner, on the provisions of the Evidence Act is concerned, the Tribunal held, in the impugned judgment, that Section 39 of the AFT Act gave overriding effect, to its provisions, over the provisions of the Evidence Act. Even so, it was noticed that the petitioner was entitled to inspect the record of the GCM, take copies of any orders or decisions contained therein and, on the basis of such copies, could approach the Tribunal under Section 15(1) of the AFT Act. The Tribunal further found the case to be covered by the judgments of the Supreme Court in G.S. Bajwa and S.N. Mukherjee. In Bajwa, it was noted that the Supreme Court had