During the six-hour proceedings in the case today, the army also presented its side for the first time whereas Prakash's counsel Jyoti Singh today raised a new issue over the composition of the Court of Inquiry (COI).
After hearing both sides, the Armed Forces Tribunal today reserved its order in the case in which former military secretary Lt Gen Avadesh Prakash has filed a petition for quashing of the Court of Inquiry (COI) and his court martial in the Sukna land scam.
During the over six-hour proceedings in the case today, the army also presented its side for the first time whereas Prakash's counsel Jyoti Singh today raised a new issue over the composition of the COI before the two-member Bench headed by justice AK Mathur and Lt Gen (retd) SS Dhillon.
Singh contended that the COI had members who were junior to Prakash, which violated Army rules, saying the presiding officers in such COIs should be either senior or equal to the person facing the inquiry.
To this, Army's counsel Additional Solicitor General (ASG) Indira Jaising said that at the time when the COI was ordered, names of Gen Prakash and Lt Gen PK Rath had not figured in it and the Army did not look for officers senior to them.
Hearing the army reply, justice Mathur asked the force to submit the names of the persons who had been sent the signal for convening of the COI and observed, "If it was a small fry like a Lt Col, you would not have held the COI under a Lt Gen-rank officer."
On Gen Prakash's contention that Army could not turn the administrative action into disciplinary action once he had filed his reply to the show cause notice issued to him, justice Mathur said that after going through his own admission over links with Dilip Agarwal, the army chief could have changed his decision.
"If you are on the same footing as Lt Gen Rath, there was reason for the army chief to be above suspicion. He need not write these things (changes in the policy). He (army chief) has already been over-favourable to you. Apparently all things are mixed up. All fishes stink and you pick up one one
and say only this stinks," justice AK Mathur observed.
He added that "Rath is also a Lt Gen and your client is also equally placed. If he (army chief) is fair to you, then he has to be fair to Rath also."
Lt Gen Rath was the 33 Corps commander and along with Prakash, is facing a court martial for his alleged role in issuing 'No objection Certificates' (NOC) to private realtor Dilip Agarwal for a 70-acre piece of land adjacent to the Sukna military station.
The army lawyer stated that its policy over changing administrative action into a disciplinary one was not violated as administrative action against Prakash had never commenced as the Army decided to initiate disciplinary action against him soon after he filed reply to the show cause notice to him.
On Jyoti Singh's charges that her client's rights under Army Rule 180 were violated as he was not given the opportunity to cross-examine personnel who had deposed against him in the COI and was allowed to question them at a very later stage in the COI, the two-member Bench asked for the names of the witnesses whom Prakash wanted to cross-examine.
Names of Lt Gen Rath, Lt Gen Ramesh Halgali, Maj Gen PC Sen, Col Manish Dabas, Lt Col Jiji Verghese and Naib Subedar Surjeet Singh were listed by Singh in the court jam-packed with media and armed forces personnel.
In its response, the Army said Prakash was given "every opportunity" to cross-examine the witnesses but his "attitude and approach" was of "boycott" and he never exercised his right.
The counsel added that Rule 180 was invoked by COI for Prakash "after the pictures started falling in place" at a later stage and he was also given a chance to cross-examine "anybody" he wanted and there was no "malafide" intent of the COI in delaying invocation of Rule 180.
To this justice Mathur said why was Prakash "casually" given the right and the presiding authority at an "appropriate stage" should have stopped the COI and asked all the witnesses to be cross-examined by him.
"When a person talks something in the COI, he can say anything but the presence of Lt Gen Prakash could have had a sobering effect on them."
On Jaising's contention that statements given in a COI were not admissible as evidence in the court martial, justice Mathur said "COI is very significant in the defence forces" as it was the basis for court martials.
Justice Mathur also sought to know from Prakash's counsel as to why did he not raise the issue of the Army Rule 180 being violated in the COI with the army chief when it was being completed. "You thought that you will go scot-free as your friend was in the right place," he observed.
When justice Dhillon sought to know from the army that why did Lt Gen Rath name Gen Prakash after 10 witnesses had deposed before the COI, the Army lawyer said that it was for Rath to answer and added that "there is a cover up going on and we have to find out who is at the bottom of this."
When Singh contended that Prakash could not influence Rath's promotion as it was the Appointments Committee of Cabinet's who would have taken a decision, justice Mathur remarked that "in 99 per cent of the cases, the ACC accepts the recommendations of the services if nothing is found against him in the Central Vigilance Commission report."
Replying to Prakash's contention on his inability to influence the promotion of Rath, the army lawyer said the officer was secretary of the selection board, which recommended names to the ACC.
She submitted that one of the witness' Col Dabas had also said that his Annual Confidential record (ACR) was delayed by two months and termed it as "victimisation" of the witness.
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