Defence Witnesses in Army Court-Martial: Rules 134–138, Summoning Witnesses, Relevance, Refusal, Adjournment & AFT Challenge

By Adv. Govind Bali, Fastrack Legal Solutions LLP
Legally reviewed: 12 September 2026

The principal text is in the Army Rules, 1954. The defence-witness stage should be coordinated with our guides on Rules 33–34 defence preparation and court-martial legal representation.

1. Defence evidence is part of the statutory trial, not a favour

Army Rule 58 recognises the accused’s right, after the prosecution case closes, to give an unsworn statement or to give evidence on oath and then to call defence witnesses, including character witnesses. Rules 134–138 supplement that right by regulating which witnesses are produced, how unlisted witnesses are handled, how the defence secures attendance and what happens when an essential witness is unavailable.

The starting assumption should therefore be that the defence is entitled to present a genuine evidentiary case. The command cannot reduce the defence stage to a formal invitation followed by automatic refusal. Equally, the accused must identify what a witness is expected to prove and why that fact matters to one or more charges or a recognised defence.

2. Rule 134: prosecution witnesses the accused wants to cross-examine

Rule 134 states that the prosecutor—or the court in a Summary Court-Martial—is not bound to call every prosecution witness whose evidence appears in the Summary of Evidence. However, such witnesses should ordinarily be called where the accused desires their attendance in order to cross-examine them, and their attendance should, so far as practicable, be secured.

This rule prevents a simple tactic whereby a potentially inconvenient witness is included in the pre-trial record but omitted at trial in order to deprive the accused of cross-examination. The rule is not absolute; “ordinarily” and “so far as practicable” matter. The defence should therefore identify the witness early, state that cross-examination is required and explain the relevance of that cross-examination to the charge.

3. Rule 135: a prosecution witness not disclosed in the Summary of Evidence

If the prosecution intends to call a witness whose evidence was not contained in the Summary of Evidence supplied to the accused, Rule 135 requires reasonable prior notice together with an abstract of the proposed evidence. If the witness is nevertheless called without such notice, the court must, if the accused so desires, either adjourn after taking that witness’s evidence or permit cross-examination to be postponed.

Importantly, the Rule directs the court to inform the accused of this right. The protection is practical: cross-examination should not have to be improvised against a witness whose evidence was never disclosed during the statutory preparation stage.

4. What should counsel do when a new prosecution witness appears?

1. Ask whether a Rule 135 notice was served and when.
2. Obtain the written abstract of proposed evidence.
3. Identify new documents or factual allegations linked to the witness.
4. Ask for reasonable time to investigate and obtain rebuttal material.
5. If necessary, request that cross-examination be postponed after the examination-in-chief.
6. Ask that the request, prosecution response and ruling be recorded verbatim or in sufficient detail.

The prejudice should be stated specifically: for example, a need to verify a signal, locate a duty roster, obtain telephone records or consult a technical expert.

5. Rule 136: the accused need not hand over a defence-witness list as a condition precedent

Rule 136 provides that the accused shall not be required to give the prosecutor or the court a list of witnesses he intends to call. But the Rule also places responsibility on the accused to secure a witness whose evidence was not in the Summary of Evidence if he did not earlier request official steps to procure attendance under the pre-trial provisions.

This creates an important tactical distinction. The defence is not compelled to disclose its entire witness strategy simply because the prosecution asks for a list. Yet where official assistance is required—especially for serving military witnesses, witnesses posted elsewhere or persons under service control—the defence should make a timely written request so that the later trial record shows that procurement was sought.

6. Rule 137: the central witness-procurement obligation

For a General or District Court-Martial, Rule 137(1) directs the accused’s Commanding Officer, the convening officer or, after assembly of the court, the presiding officer to take proper steps to procure attendance of the witnesses whom the prosecutor or accused desires to call and whose attendance can reasonably be procured. The person requiring the witness may be required to undertake to defray the cost, if any.

For Summary Court-Martial, Rule 137(2) places the corresponding obligation on the court itself in relation to defence witnesses whose attendance can reasonably be procured.

The language “shall take proper steps” is significant. Once the witness is genuinely relevant and attendance can reasonably be procured, the rule contemplates affirmative steps rather than passive acknowledgment of a request.

7. What are “proper steps” under Rule 137?

The answer depends on the witness and location. Proper steps may include a signal or official communication to the witness’s unit, a movement or attendance order, coordination with a formation headquarters, service of summons where appropriate, travel arrangements, or asking a competent authority to make the witness available.

The record should reveal what was actually done. A one-line endorsement stating “witness not available” may be inadequate where the witness is a serving officer in a known posting and no effort to secure attendance is demonstrated.

8. Reasonable procurement does not mean unlimited procurement

Rule 137 does not say that every person named by the accused must be physically produced regardless of relevance, location, operational deployment or cost. The authority may examine whether attendance can reasonably be procured. That assessment should be genuine and case-specific.

Operational commitments, deployment, medical incapacity, retirement abroad or inability to trace a civilian witness may bear on procurement. But if the witness is essential, Rule 138 becomes relevant precisely because physical attendance may not always be possible.

9. Rule 138: what happens when an essential witness is absent?

Rule 138 addresses two situations: proper procurement steps have not been taken, or a witness whose attendance could not reasonably be procured before assembly is essential to the prosecution or defence. The court must then take one of the prescribed courses.

It may take steps to obtain a commission for examination. In a General or District Court-Martial it may adjourn and report the circumstances to the convening officer. In a Summary Court-Martial it may adjourn to enable attendance or adopt another course best calculated to do justice.

This provision is stronger than a general adjournment power. Once essentiality is established, the Rules require the court to address the absence through a justice-oriented procedure rather than simply close the defence.

10. “Essential witness” is the key threshold under Rule 138

The strongest defence application explains essentiality in charge-specific terms. For each witness identify:

• the fact the witness personally observed or can prove;
• the particular charge or prosecution allegation affected;
• why the same fact cannot adequately be proved through an available witness or document;
• whether the witness contradicts a named prosecution witness;
• whether the evidence affects authenticity, chain of custody, command order, motive, alibi, identity or another material issue; and
• why refusal would cause prejudice not curable in final address.

11. The 2026 Col Suraj Shumsher Singh litigation

The AFT Principal Bench considered defence-witness issues in ongoing GCM proceedings against Col Suraj Shumsher Singh during 2026. In OA (Appeal) 670/2026, order dated 25 February 2026, the Tribunal did not stay the GCM. It nevertheless issued procedural directions concerning the recording of evidence, including that statements of defence witnesses be signed and dated on each page in the interests of justice and fair play.

That order is useful for two reasons. First, it shows the Tribunal’s reluctance to halt an ongoing court-martial merely because an evidentiary grievance is raised. Second, it shows that the Tribunal may still issue targeted directions to preserve the integrity of the trial record where fairness requires it.

12. The 15 April 2026 AFT order on refused defence witnesses

In Col Suraj Shumsher Singh v. Union of India, OA 1420/2026, 15 April 2026, the applicant challenged an interlocutory GCM order refusing his request to summon certain officers who had participated in the Court of Inquiry.

The AFT dismissed the application as premature. It held, on the facts before it, that the GCM had assessed the relevance and necessity of the proposed evidence and regarded the request as a fishing inquiry. The Tribunal specifically observed that Rule 77(3), which requires great latitude in making a defence, does not itself create a right to summon members of the Court of Inquiry merely because they conducted the inquiry. It also noted that steps had already been taken under Rule 137 for at least one proposed witness.

The proper lesson is nuanced: the right to defence evidence is protected, but relevance and necessity matter. The accused cannot transform Rule 137 into an automatic command to summon every officer connected with an earlier inquiry.

13. Court of Inquiry members as defence witnesses

A member of a Court of Inquiry is not automatically irrelevant, but the application should identify the admissible factual issue the member will prove. “He conducted the inquiry” is usually not enough. Stronger grounds might include personal knowledge of an alteration, custody of an original document, an admission made during the inquiry, or a disputed procedural fact that directly affects the trial.

If the object is merely to cross-examine the inquiry officer about the correctness of the Court of Inquiry’s conclusions, the court may regard the request as collateral because the GCM must decide the charges on the evidence led before it.

14. Defence witness for missing original documents

Where the defence says that only photocopies were provided and originals existed, identify the person who actually had custody, received, scanned, marked or transmitted the originals. A witness who merely sat on the Court of Inquiry may not be the best evidentiary route. The procurement application should target the custodian or author who can answer the authenticity issue directly.

15. Witness to prove bias, mala fides or conspiracy

Allegations of bias or conspiracy need a factual foundation. A court may reject a witness request where the defence cannot identify any statement, act, document or contradiction that the witness can prove. If the proposed witness is needed to establish bias, the application should state the event, date, communication or conduct to which the witness will testify.

16. Can the court reject a defence witness as irrelevant?

Yes. The court retains control over relevance and admissibility. But refusal should not be arbitrary. Defence counsel should invite the court to identify whether it considers the proposed evidence irrelevant, cumulative, legally inadmissible or incapable of reasonable procurement. A clear reason allows the defence to respond and later permits meaningful appellate review.

17. Character witnesses

Rule 58 recognises that the accused may call character witnesses. Character evidence becomes especially important after a finding of guilt when sentence is being considered. Distinguished service, operational exposure, decorations, absence of prior misconduct and professional reputation can affect proportionality even where they do not answer the merits of a charge.

18. Civilian defence witnesses

Civilian witnesses may present practical difficulties because the military chain of command cannot simply order attendance in the same way as a serving person. The defence should give complete addresses, contact details and a concise witness synopsis, and ask early for whatever formal process is available. If the witness is essential and physical attendance cannot reasonably be procured, Rule 138’s commission route should be considered.

19. Expert witnesses

Technical cases may require medical, cyber, handwriting, financial, forensic or other expert evidence. The application should define the expert question narrowly. A generic request for “an independent expert” is easier to refuse than a request identifying the document/device/sample and the technical proposition the expert will address.

20. Witness already examined in the Summary of Evidence

If a witness’s evidence appears in the SOE and the accused wants to cross-examine that witness at trial, Rule 134 is relevant even if the prosecutor no longer wishes to call the person. Defence counsel should make the request before the prosecution closes so that the court does not later treat the issue as an afterthought.

21. Recall of witness

Army Rule 143 permits recall and further examination of a witness before the closing address—or before finding in an SCM—where the court considers it necessary in the interests of justice. Recall should identify the new matter that emerged after the witness was released and explain why it could not reasonably have been covered earlier.

22. Do not wait until the last day of defence evidence

The chronology of the request is often decisive. A witness requested months earlier with a clear synopsis presents differently from a witness named after repeated adjournments with no explanation of relevance. The defence should create a paper trail during preparation under Rules 33–34, renew the request at trial if necessary, and keep proof of the authority’s response.

23. Suggested format of a defence-witness application

1. Name, rank and present location of witness.
2. Rule invoked: Rule 137 and, where applicable, Rule 138.
3. Charge relevance: identify the charge number and disputed fact.
4. Expected evidence: concise factual synopsis, not argument.
5. Why non-cumulative: explain why another witness/document does not prove the same matter.
6. Procurement: state why attendance can reasonably be procured, or why commission/adjournment is required.
7. Prejudice: explain what defence is lost if the witness is refused.
8. Relief: official steps, summons, commission, adjournment or other appropriate direction.

24. If the witness is refused, what should be recorded?

Ask that the application, prosecution response, Judge-Advocate’s advice, court ruling and reasons be included in the proceedings. If the ruling is oral, request an adequate record. A later Section 164 petition or AFT appeal should be able to show exactly what evidence the witness would have given and why the refusal mattered.

25. Should the AFT be approached immediately after refusal?

The April 2026 Suraj Shumsher Singh order demonstrates the difficulty of interlocutory AFT intervention. Where the GCM is ongoing and has made a reasoned relevance assessment, the Tribunal may regard the challenge as premature and leave the issue for appeal after final findings.

An exceptional immediate challenge is more plausible where the refusal is plainly jurisdictional or destroys a defence in a way that cannot later be repaired. Even then, counsel should expect the Tribunal to ask why the military court cannot first complete its statutory process.

26. Section 15 AFT appeal after conviction

After a final court-martial outcome, the AFT can examine whether a material irregularity resulted in miscarriage of justice. An arbitrary refusal to procure an essential defence witness can therefore be framed not as an abstract procedural complaint but as a denial that affected the reliability or fairness of the finding.

The appellate ground should identify the excluded evidence, the defence theory it supported and how the prosecution case would have been materially tested by that evidence.

27. Five common mistakes by defence teams

• naming a witness without stating what fact the witness proves;
• seeking Court of Inquiry members merely to attack the inquiry rather than prove trial facts;
• making the request too late to permit reasonable procurement;
• failing to invoke Rule 138 when an essential witness is genuinely unavailable; and
• challenging refusal before AFT without first creating a complete GCM record of relevance and prejudice.

28. Defence checklist

1. Map every charge to the prosecution evidence required to prove it.
2. Identify the defence fact or contradiction for each proposed witness.
3. Request official procurement early where service witnesses are involved.
4. Use Rule 134 for SOE prosecution witnesses required for cross-examination.
5. Use Rule 135 when an undisclosed prosecution witness is introduced.
6. Use Rule 137 for procurement.
7. Use Rule 138 where an essential witness cannot attend.
8. Consider Rule 143 recall where a genuinely new issue emerges.
9. Get every refusal and reason on the record.
10. Carry the issue into Section 164 and AFT only with a concrete prejudice analysis.

29. Frequently asked questions

Can the Army refuse a witness because the accused has already called many witnesses?

Numerical volume alone is not the legal test. Relevance, necessity, duplication and reasonable procurement should be examined. A cumulative witness may be refused more readily than an essential witness on a distinct fact.

Can a serving officer be summoned as a defence witness?

Yes, subject to relevance and reasonable procurement. Rule 137 specifically requires proper steps for witnesses desired by the accused whose attendance can reasonably be procured.

Can the accused insist on calling the Court of Inquiry presiding officer?

No automatic right arises merely because the officer conducted the inquiry. The defence should identify the material fact the officer is required to prove.

What if an essential witness is posted abroad?

Rule 138 should be examined. Commission or another justice-oriented procedure may be appropriate where physical attendance cannot reasonably be procured.

Can AFT stop the GCM because a defence witness was refused?

Possibly in an exceptional case, but the 2026 Principal Bench approach shows strong reluctance to interfere interlocutorily with a trial court’s relevance assessment. The issue is often preserved for final appeal.

30. Conclusion

The right to defence witnesses is strongest when it is exercised with precision. Rules 134–138 give the accused powerful mechanisms to secure relevant evidence, confront witnesses omitted by the prosecution and prevent the trial from closing while an essential witness remains unavailable. But the Rules operate through relevance, necessity and reasonable procurement—not by automatic summons on demand.

The defence should therefore build every witness application as an evidentiary proposition: this witness proves this fact, this fact answers this charge, attendance can be procured by this route, and refusal will cause this prejudice. That is the record most likely to survive scrutiny before the confirming authority and AFT.