TMI Blog1982 (8) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner guaranteed under Articles 14 and 21 of the Constitution. As certain contentions were common to all the three petitions they were heard together and are being disposed of by this common judgment Facts alleged on which legal formulations were founded may be briefly set out in respect of each petitioner. Re: Writ Petition No. 4903/81: Petitioner Lt. Col. Prithipal Singh Bedi was granted permanent regular commission in the Regiment of Artillery in 1958 and in course of his service he came to be promoted as Captain, then as Major and at the relevant time he was holding the rank of Lt. Colonel and in that capacity he was designated as Commanding officer, 226, Medium Regiment of 43 Artillery Brigade. As part of his duty he had to write interim confidential reports of five officers of the rank of Major subordinate to him. One Major R. S. Sehgal was one of the subordinate officers whose interim confidential report was written by the petitioner. Under the relevant rules the officer whose confidential report is written by his superior has to be shown the confidential report and in token of his having seen the same his signature is to be obtained, the purpose underlying this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this alleged interpolation in the interim confidential report after the same having been initialled by the officer reported upon is the gravamen of the charge under section 45 of the Army Act on which the petitioner is called upon to face a trial by the General Court Martial convened under the impugned order dated April 11, 1981. Re: Writ Petition No. 1513/79: The first petitioner Captain Dharampal Kukrety and Petitioner 2 Naik Bhanwar Singh were both attached at the relevant time to 2 Rajput Regiment but since the order to try them before a General Court Martial both of them are attached to 237 Engineer Regiment of 25 Infantry Division which is a part of the 16th Corps of the Indian Army. Petitioner 1 was promoted as Acting Major but because of the direction to try him before a Court material he has been reverted to the substantive rank of Captain. Petitioner 2 holds the substantive rank of Naik. In the year 1978 one Lt. Col. S. N. Verma was the Commanding officer of the 2 Rajput Regiment and the 1st petition was directly under him being second in command. One Major V.K. Singh belonging to the 2 Rajput Regiment was a Company Commander under Lt. Col. Verma. He applied for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral Court Martial is impugned in this petition. Re: Writ Petition No. 5930/80 Petitioner Captain Chander Kumar Chopra joined the Army as 2nd Lieutenant on January 12, 1969, and in course of time came to be promoted as Captain and at the relevant time he belonged to - 877 At BN. ASC under 20 Mountain Division which is one of the Divisions in 33 Corps. Petitioner was second-in-command. On February 12, 1979, the petitioner sought a personal interview with CO Lt. Col. R.M. Bajaj to report against Major S.K. Malhotra for the irregularities committed in the Company disclosing misappropriation of funds, pilferage of petrol and stores, furnishing of false information and certificates in official documents resulting in loss to the State, misuse of transport and misuse of power and property. As Lt. Col. Bajaj did not possibly take any action on this report, the petitioner on March 7, 1979, submitted an application to the Chief of Staff, Headquarters, 33 Corps c/o 99 APO to bring to the notice of Chief of Staff the irregularities going on in A Coy. 877 AT BN ASC and seeking an interview at an early date. The petitioner s request for a personal interview was turned down whereupon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt Martial in each case must be quashed. The web of argument is woven round the true construction and intendment underlying rule 40. It was said that the grammatical construction must accord with the underlying intendment of rule 40 and that the approach must be informed by the expanding jurisprudence and widening horizon of the subject of personal liberty in Art. 21 because in the absence of Art. 33 the procedure prescribed for trial by the General Court Martial under the Act would have been violative of Art. 21. Approach, it was urged, must be to put such liberal construction on rule 40 as to subserve the mandate of Art. 21. Army, with its total commitment to national independence against foreign invasion must equally be assured the prized liberty of individual member against unjust encroachment. It was said that the court should strike a just balance between military discipline and individual personal liberty. And door must not be bolted against principles of Natural justice even in respect of Army tribunal. An unnatural distinction or differentiation between a civilian offender and an offender subject to the Act would be destructive of the cherished principle of equality, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in prescribed. This provision would show that if any person subject to the Act commits any offence triable by ordinary criminal court which for the purpose of the Act would be a civil offence, is liable to be tried for the same, though not an offence P under the Act, by the court martial and be punishable in the manner prescribed in section 69. Section 70 carves out an exception in respect of certain civil offences which cannot be tried by a court martial. In view of the provision prescribed in section 69, a situation is bound to arise where an ordinary criminal court and the court martial both will have jurisdiction to try a person for having committee a certain civil offence. To avoid conflict of jurisdiction, section t25 is enacted conferring a discretion on the officer commanding the army, Army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which court the proceeding shall be instituted and if that officer decides that it should be instituted before a court-martial, to direct that the accused person shall be detained in military custody. Section 126 coufers power on the criminal court to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he court. (2) If the accused objects to any such officer, his objection and also the reply thereto of the officer objected to, shall be heard end recorded, and the remaining officers of the court shall, in the absence of the challenged officer decide on the objection. (3) If the objection is allowed by one-half or more the votes of the officers entitled to vote, the objection shall be allowed, and the member objected to shall retire, and his . vacancy may be filled in the prescribed manner by another officer subject to the same right of the accused to object. (4) When no challenge is made, or when challenge has has been made and disallowed, or the place of every officer successfully challenged has been filled by another officer to whom no objection is made or allowed, the court shall proceed with the trial. Section 133 provides that the Indian evidence Act, 1872, shall, subject to the provisions of the Act, apply to all proceedings before a court-martial. Chapter XII provides for confirmation of the finding and sentence and revision thereof. Chapter XIII deals with the execution of sentence awarded by court-martial. Chapter XIV deals with pardons, remissions and suspen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he release of the accused or refer the case to the superior military authority. Rule 41 provides that on the Court assembling, the order convening the court shall be laid before it together with the charge-sheet and the summary of evidence or a true copy thereof and also names, ranks and corps of the officers appointed to serve on the Court. A duty is cast on the court to satisfy itself that it is legally constituted and one such duty being that the court, as far as it can ascertain, shall satisfy itself that it has been convened in accordance with the provisions of the Act and the Rules and that each of the officer com posing the court-martial is eligible and not disqualified for serving on that court-martial and further in case of a general court-martial, the officers are of the required rank. After the court has satisfied itself about its constitution, it shall cause the accused to be brought before it as provided in rule 43. Rule 44 enables the accused as required by section 130 of the Act to state whether he has any objection to be tried by any officer sitting on the Court. A detailed procedure is prescribed for disposing of the objection. Elaborate trial procedure is presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsons subject to the Act are to be treated a Corps for the purpose of Chapter 111 and s. 43(a) of the Act and Chapters II and III of the Rules. At this stage it would be profitable to refer to Article 33 of the Constitution which reads as under: 33. Power to Parliament to modify the rights confer red by this Part in their application to forces: Parliament may by law determine to what extend any of the rights conferred by this Part shall, in their application to the members of the Armed Forces or the Forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties, and the maintenance of discipline among them. Chapter IV in the Rules specifies restrictions on the fundamental rights. Rule 19 prescribes restrictions on the fundamental freedom under Art. 19(1) (c), to wit, to form associations or unions. Similarly rules 20 and 21 prescribe restrictions on the freedom of speech and expression guaranteed under Art. 19(1) (a). No contention was advanced before us in respect of restrictions prescribed by rules - 19, 20 and 21 on the freedom of speech and expression and the freedom of forming associations and u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise of legislative power and legislative craftmanship does not necessitate specifying the powers Since the Constitution came into force, Parliament presumably was aware that its power to legislate must be referable to Constitution and therefore it would be subject to the limitation prescribed by the Constitution. Whenever a legislation is being debated for being put on the statute book, Arts. 12 and 13 must be staring into the face of that body. Consequently when the Act was enacted not only Arts. 12 and 13 were sovering over the provisions but also Art. 33 which to some extent carves out an exception to Arts. 12 and 13 must be present to the corporate mind of Parliament which would imply that Parliament by law can restrict or abrogate fundamental rights set out in part III in their application to Armed Forces. But it was said that by contemporane expositio Section 21 of the Act clearly sets out the limits of such restriction or abrogation and no more. Section 21 confers power on the Central Government to make rules restricting to such extent and in such manner as may be necessary to modify the fundamental freedom conferred by Art. 19(1) (a) and (c) in their application to Armed Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is power the Act was enacted in July, 1950. [t has to be enacted by the Parliament subject to the requirements of part III of the Constitution read with Article 33 which itself forms part of part III. Therefore, every provision of the Army Act enacted by the Parliament, if in conflict with the fundamental rights conferred by Part III, shall have to be read subject to Art. 33 as being enacted with a view to either restricting or abrogating other fundamental rights to the extent of inconsistency or repugnancy between Part Ill of the constitution and the Army Act. This is no more res integra in view of the decision of the Constitution Bench of this Court in Ram Sarup v. Union of India Another(l) in which repelling the contention that the restriction or abrogation of the fundamental rights in exercise of the power conferred by Art. 33 is limited to one set out in sec. 21 of the Act, this Court observed as under: The learned Attorney-General has urged that the entire Act has been enacted by Parliament and if any of the provisions of the Act is not consistent with the provisions of any of the articles in Part III of the Constitution, it must be taken that to the extent of the incon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is contention was negatived on the ground that Art. 33 was not applicable because parliament had delegated the powers of State legislature to the President and, therefore, any law enacted by the President in exercise of this power would not have the force of Parliamentary legislation contemplated by Art. 33. But this is hardly of any assistance. In Lt. Col. M.L.Kohli v. union- af India ors (l) the petitioner challenged certain provisions of the Army Act and it was contended that Art. 33 does not cover ex-servicemen who are not serving members of the defence forces. In fact, at the hearing of the petition the contention was withdrawn and, therefore, it is not necessary to examine this decision any further. Mr. Tarkunde, however, contended that the observations of the Constitution Bench in Ram Sarup s case in respect of the provisions of the Act having been enacted by the Parliament in exercise of powers conferred by Art. 33 and that each and every provision of the Act is a law made by Parliament and if any such provision tends to affect the fundamental rights under Part III of the Constitution, that provision does not, on that account become void as it must be taken that Parli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules and the regulations. Section 191 confers power on the Central Government to make rules for the purposes of carrying into effect the provisions of the Act. Section 192 confers power on the Central Government to make regulations for all or any of the purposes of the Act other than those specified in s. 191. Section 193 provides that all Rules and Regulations made under the Act shall be published in the official gazette and on such publication shall have effect as if enacted in the Act. What character the rules and the regulations acquire when a deeming fiction is enacted that if enacted in accordance with the procedure prescribed they shall have effect as if enacted in the Act meaning thereby that they are to be treated as part and parcel of the enactment itself ? In the Chief Inspector of Mines Anr. v. Lala Karam Chand Thapar etc.,(l) a Constitution Bench of this Court examined the position- of rules or regulations made under an Act having the effect as if enacted in the Act. After examining various foreign decisions, the Court held as under: The true position appears to be that the rules and regulations do not loose their character as rules and regulations, even though t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause power was reserved with the Secretary of State in the later factories Act of 1937 to bring the earlier regulation in conformity with the intendment of the Act. It would, however, appear that this ancient formula often resorted to, to clothe subordinate legislation with the force of the provisions of the statute would require further consideration. . It is, however, not necessary to conclude this point because the primary contention was about the non-compliance with rules rather than with their validity. Rule 40 provides for composition of court-martial. It reads as under: Composition of court-martial: (I) A general court martial shall be composed, as far as seems to the convening officer practicable, of officers of different corps or departments, and in no case exclusively of officers of the corps or department to which the accused belongs. (2) The members of a court-martial for the trial of an officer shall be of a rank not lower than that of the officer p unless, in the opinion of the convening officer, officers of much rank are not (having due regard to the exegencies of the public service) available. Such opinion shall be re corded in the convening order. (3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made under the Act. Rule 187 bears the marginal note: Corps prescribed under section 3(vi). Each of the separate bodies of persons subject to the Act set out in sub-rule (I) (a) to (y) is to be a corps for the purposes of Chapter III and s. 43(a) of the Act and Chapters Il and Ill of the Act. Sub- rule (3) provides that for the purposes of every other provision-H i.e., other than Chapter III and s. 43.(a) of the Act and Chapters Il and III of the Rules-each of the body of persons set out in sub -clauses (a) to (f ) shall be deemed to be a corps. They are: (a) every battalion; (b) every company which does not form part of battalion; (c) every regiment of cavalry, armoured corps or artillery: (d) every squadron or battery which does not form part of a regiment of cavalry, armoured corps or artillery; (e) every school of instruction, training centre, or regimental centre; and (f ) every other separate t unit composed wholly or partly of persons subject to the Act. To understand the full import of the expressions battalion , company , regiment , squadron or battery , it was imperative to understand - the hierarchy and vertical formations in the Army. National security demands t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is borne in mind the meaning of the expression corps in rule 40 does not present any difficulty. Reverting to sub-rule (3) of rule 187 which prescribes corps for the purposes of s. 3(vi), every battalion is a corps for the purposes of the Act and Rules. Now there may be a company but not forming part of a battalion and may be independent of any battalion and, therefore, sub clause (b) of sub-rule (3) of rule 187 treats such unattached Company not forming part of a battalion as a corps by itself. That is equally true of regiment of cavalry, armoured corps or artillery. Undoubtedly, every school of instruction, training centre or regimental centre cannot form part of a battalion and must of necessity be a separate Corps. If we recall the composition as roughly sketched, every company is part of some battalion because each battalion is sub-divided into companies. And that is possibly the army unit which is being designated as Corps. Bearing in mind the designation of battalion in infantry and regiment in cavalry, the unit designated as battalion or regiment will be a corps for the purpose of the Act and the Rules. This conclusion is reinforced by reference to rule 187(1) in whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... departments and what must be eschewed is its being composed exclusively of officers of corps or departments to which the delinquent officer belongs. If we give a restricted meaning to the expression corps the rule becomes workable If wider meaning is given so as to substitute army corps for corps it would be wholly unworkable because officers will have to be summoned from another command altogether. Thus, if we take army corps to mean the same thing as corps and if the accused belongs to a certain army corps all officers belonging to various divisions under the same army corps, to all brigades under all the divisions of the same army corps, to all battalions under all brigades of the same army corps and to all companies under all battalions of the same army corps will be disqualified because they do not belong to the different corps and are likely to be stigmatised as officers exclusively belonging to the same corps. A vertical movement starting from the bottom which is indicated by reference to battalion and regiment in sub-rule (3) of rule 187 clearly indicates that the lowest formation in the battalion or the regiment is corps over and above those specifically designat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corps, officers from battalions other than the battalion to which the accused belongs can be conveniently summoned because each battalion is under the same brigadier. In this manner officers belonging to different corps can be summoned and one can easily avoid a general court martial composed exclusively of officers of the corps to which the accused belongs. It would be unwise to reject this construction on the ground that it does not take note of and try to avoid command influence. Command influence is too vague a concept to call in aid for construction of a rule. Viewed from either angle the expression corps in rule 40 is not used in the same sense in which the expression army corps is used but it is used in the sense in which it is defined and elaborated in rule 187. It was contended that the interpretation of rule 40 must be informed by the underlying intendment that officers composing the court-martial must be independent of command influence or influence of superior officers like the convening officer. This is unquestionably correct, save and except saying what meaning one must assign to a loose expression like command influence . If by command one at the highest lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restricted construction with narrow connotation as explained in rule 187 (3). There are two further requirements to be complied with while setting up a general court martial. Section 113 provides that a general court martial shall consist of not less than five officers, each of whom has held a commission for not less than three whole years and of whom not less than four are of a rank not below that of captain. Sub-rule (2) of rule 40 adds one more condition that the members of court-martial for trial of an officer shall be of a rank not lower than that of the officer unless in the opinion of the convening officer, officers of such rank are not (having due regard to the exigencies of public service) available. Such opinion has to be recorded in the convening order. Sub-rule (3) of rule 40 merely incorporates the mandate of s. 113. Having formulated the necessary test for examining the validity of the composition of general court martial it is necessary to turn to the facts of each case in this behalf. Lt. Col. Prithi Pal Singh Bedi (Writ Petition No. 4903/81) was holding the rank of Lieutenant Colonel and belonged to the 226 Regiment of 43 Artillery Brigade of 9th Infantry Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aying that he belongs to 33 corps he means to suggest that he belongs to 33 Army Corps. At the relevant time the petitioner was holding the rank of a Captain and was attached to 877 At. BN. ASC c/o 99 A.P.O.. There is not one word in the petition that any of the officers composing the general court-martial set up to try him, belongs to his corps in the sense in which the word has been interpreted by us. Nor has he alleged that any one lower in rank than a Captain has been nominated as a member of the general court-martial set up to try him. Therefore, a even in this case there is nothing to show that rule 40 has been violated. It would be advantageous at this stage to call attention to the provision contained in section 130 of the Act and rules 41 to 44 of the Rules. When either a general, district or summary court martial is assembled and the offender who is to be tried is brought before it, it is obligatory to read out the names of the presiding officer and the members composing the court martial to the accused and he is asked whether he objects to his being tried by any of the officers sitting on the court. Sub-section (2) of section 130 requires that if the accused objects t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdly assist because as in this case if the contention is that rule 40 was . violated in constituting the court-martial and that each officer was disqualified from being a member of the court-martial, there is none left to dispose of the contention. In such a situation, rule 44 may not be helpful because once such an objection is taken no one shall be competent to decide the objection. The provision conferring a right on the accused to object to a member of the court-martial sitting as a member and participating in the trial ensures that a charge of bias can be made and investigated against individual members composing the court-martial. This is preeminently a rational provision which goes a long way to ensure a fair trial. That stage is still to come and therefore we refrain from pronouncing on any allegation of bias against individual member of the court martial. Similarly a very faint attempt made by Mr. Sanghi inviting us to examine the merits of the charge against Lt. Colonel Bedi should not lure us into doing so. That is our function at any rate at this stage and we steer clear the same. Having examined the general contention as to the legality and validity of general co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson whose evidence appears to be relevant, shall be taken down in writing in the presence add hearing of the accused before the commanding officer or such officer as he directs. (2) The accused may put in cross-examination such questions as he thinks fit to any witness, and the questions together with the answers thereto shall be added to the evidence recorded. (3) The evidence of each witness after it has been recorded as provided in the rule when taken down, shall be read over to him, and shall be signed by him, or if he cannot write his name, shall be attested by his mark and witnessed as a token of the correctness of the evidence recorded. After all the evidence against the accused has been recorded; the accused will be asked: Do you wish to make any statement ? You are not obliged to say anything unless you wish to do so, but whatever you say will be token down in writing and may be given in evidence. Any statement thereupon made by . the accused shall be taken down and read over to him, but he will not be cross-examined upon it. The accused . may then call his witnesses, including, if he so desires, any witnesses as to character. (4) The evidence of the witnesses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abstract, of evidence to be adduced shall be delivered to him free of charge as provided in sub-rule (7) of rule 33. The submission is that before a general court martial is convened as provided in rule 37 it is obligatory for the commanding officer to hear the charge made against the accused in his presence giving an opportunity to the accused to cross-examine any witness against him and to call any witness and make any statement in his defence and that if the commanding officer is so satisfied he can .. dismiss the charge as provided in sub-rule (2) of rule 22. If at the conclusion of the hearing under rule 22 the commanding officer is of the opinion that the charge ought to be proceeded with, he has four options open to.him, one suchbeing toadjourn the caseforthe - . purpose of having the evidence reduced to writing, called summary of evidence. Rule 23 prescribes the procedure for taking down the summary of evidence which, inter alia, provides recording of the evidence of each witness, opportunity to the accused to cross-examine each such witness, etc. Rule 24 provides that the summary of evidence so recorded shall be considered by the commanding officer who at that stage h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harge-sheet was given to him. He has averred that the order dated November IO, 1980, for taking down summary of evidence is void and illegal as it is violative of Rule 23 cf the Rules. Mr. Sanghi contended that failure to comp1y with rules 22, 23 and 24 has denied to the petitioner an opportunity first to convince the commanding officer to dismiss the charge under sub-rule (2) of rule 22 and even if he could not have persuaded the commanding officer to dismiss the charge after the summary of evidence was recor(led, he could have persuaded the commanding officer under rule 24 either to refer the case to superior military authority or re-hear it and dismiss the charge and this dential of opportunity vitiates the subsequent trial by general court martial. Nowhere in the petition the petitioner has specifically stated that he did make a request that the investigation shall be done in his presence and that the summary of evidence should be recorded in his presence. There is utter sphinx like silence on this point. In para 39 of the counter-affidavit on behalf of the respondents it is specifically stated that rule 25 requires that if an officer wants rules 22 and 23 to be complied with, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of minimum principles of natural iustice enacted in rules 22, 23 and 24 depends for its applicability upon the demand by tbe officer it would be contrary to public policy which mandates that compliance with rules of natural justice should not be made dependent upon a requisition by the person against whom the inquiry is held but it must be deemed to be obligatory and an integral part of any procedure prescribed for a Tribunal whose decision is likely to result in deprivation of personal liberty. It has already been pointed out that Parliament has the power to restrict or abrogate any of the rights conferred by Part III of the Constitution in their application to the members of the Armed Forces so as to ensure the proper discharge of duties and maintenance of discipline amongst them. The Act is one such law aad,therefore, any of the provisions of the Act cannot be struck down on the only ground that they restrict or abrogate or tend to restrict or abrogate any of the rights conferred by Part III of the Constitution and this would indisputably include Article 21. But even apart from this, it is not possible to subscribe to the view that even where the prescribed procedure inhere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Maneka Gandhi v. Union of India, it is an incontrovertible proposition of law that even while finding a balance between need for expedition and need to give full opportunity to the person against whom the inquiry is held, a body charged with a duty to act judicially must comply with the minimum requirements of natural justice and that if observance of natural justice in the area of administrative decision making so as to avoid devaluation of the principle by administrators already alarmingly insensitive to the rationale of audi alterm partem that one can ever look upon with equanimity where this principle gives way before a tribunal charged . P with a duty to act judicially. As has been pithily observed by an author. such an overemphasis overlooking the other procedural safeguards prescribed, indeed wears an engaging air of simplicity and reason but having examined the entire procedure one can say confidently that this simplicity is merely skin deep. Rules 2, 23 and 24 prescribe participation at a state prior to the trial by the court martial. Undoubtedly, fairness in action and natural justice have been developing very much in recent years and if the power of the executive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evention of Corruption Act had resulted in failure of justice. This Court agreed with this conclusion. Drawing sustenance from this conclusion it was urged that irregularity in the course of investigation, if any, would not vitiate the trial but in such a situation the court must examine evidence more carefully. As we are of the opinion that the failure to comply with the requirements of rules 22, 23 and 24 depended upon a requisition by the petitioner, his inaction or omission in that behalf would have no impact on the order convening the court-martial. Reference was also made to Flying Officer S. Sundarajan v.Union of India ors. ,( ) where a Full Bench of the Delhi High Court held that any error or irregularity in complying with tho procedure prescribed by rule IS of the Indian Air Force Rules which is in pari materia with rule 22 of the Rules would not vitiate the trial and ultimate conviction of the accused because of any error or irregularity at a stage before the accused is charged for the purpose of having the evidence reduced to writing and it will not vitiate the subsequent trial as the guilt of the accused has to be established not on the basis of what the command ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... care, or in any arms, ammunition, equipment, instruments, 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 thereof, and the said deficiency, if any the commanding officer of the corps or department to which the person belongs shall enter in the court-martial book of the corps or department a record of the declaration. A reference to these two sections would show that where action can be taken after obtaining report of the court of inquiry it has been so specified. Now, when an offence is committed and a trial by a 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 directed. Mr.Sanghi, however, urged that on a correct interpretation of rule 180, it would appear that whenever the character of a person subject to the Act is involved in any inquiry, a court of inquiry must be set up. Rule 180 does not bear out the submission. It sets up a stage in the procedure prescribed for the courts of inquiry, Rule 180 cannot be construed to mean that whenever or wherever in any inquiry in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments therein listed. As the trial by the court martial has not been commenced, we are sure that the authorities concerned will supply necessary documents to the petitioner in order to avoid even a remote reflection that he was not given adequate opportunity to defend himself. In passing it is necessary to observe that the procedure prescribed for trial of sessions cases in Chapter XVIII of the Code of Criminal Procedure when compared with the procedure prescribed for trial by a general court martial there is very little deviation or departure and more or less the procedure appears to be fair, just and reasonable, Dr. O. P. Sharma, Judge-Advocate-General, Indian Army, in his Military Law in India, p. 156, after comparing the two procedures observes that the procedure of trial by court martial is almost analogous to the procedure of trial in the ordinary criminal courts. He points out two demerits, viz., a distinct possibility of a successive trial by a criminal court and a court-martial exposing the accused to the hazards of double jeopardy, and the absence of a provision for bail. The horrendous delay of trial in ordinary criminal courts has its counterpart in delay in trial b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... influence . In essence, these tribunals are simply executive tribunals whose personnel are in the executive chain of command. Frequently, the members of the court-martial must look to the appointing officer for promotions, advantageous assignments and efficiency ratings-in short, for their future progress in the service. Conceding to military personnel that high degree of honesty and sense justice which nearly all of them undoubtedly have, the members of a court-martial, in the nature of things, do not and cannot have the independence of jurors drawn from the general public or of civilian judges. Absence of even one appeal with power to review evidence, legal formulation, conclusion and adequacy or otherwise of punishment is a glaring lacuna in a country where a counterpart civilian convict can prefer appeal after appeal to hierarchy of courts. Submission that full review of finding and/or sentence in confirmation procceding under section 153 is provided for is poor solace. A hierarchy of courts with appellate powers each having its own power of judicial review has of course been found to be counterproductive but the converse is equally distressing in that there is not even a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nate after consultation with the Master of the Rolls, such of the Lords, Commissioners of Justiciary in Scotland as the Lord Chief Justice generally may nominate, such judges of the Supreme Court of the Northern Ireland as the Lord Chief Justice of Northern Ireland may nominate and such of the persons of legal experience as the Lord Chancellor may appoint. The court martial appellate court has power to determine any question necessary to be determined in order to do justice in the case before the court and may authorise a new trial where the conviction is quashed in the light of fresh evidence. The court also has power inter alia, to order production of documents o; exhibits connected with the proceedings, order the attendance of witnesses, receive evidence, obtain reports and the like from the members of the court martial or the person who acted a Judge-Advocate, order a reference of any question to a Special Commissioner for Inquiry and appoint a person with special expert knowledge to act as an assessor,(1) Frankly the appellate court has power of full judicial review unhampered by any procedural clap trap. Turning towards the U.S.A., a reference to Uniform Code of Military J ..... X X X X Extracts X X X X X X X X Extracts X X X X
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