TMI Blog1963 (10) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... a writ in the nature of a writ of habeas corpus and a writ of certiorari setting aside the order dated January 12, 1963 of the General Court Martial and the order of the Central Government confirming the said findings and sentence and for his release from the Central Jail, Tehar, New Delhi, where he is detained pending execution of the sentence awarded to him. The contentions raised for the petitioner are: (1) That the provisions of s. 125 of the Act are dis criminatory and contravene the provisions of Art. 14 of the Constitution inasmuch as it is left to the unguided discretion of the officer mentioned in that section to decide whether the accused person would be tried by a Court Martial or by a Criminal Court. (2) Section 127 of the Act which provides for successive trials by a Criminal Court and a Court Martial, violates the provisions of Art. 20 of the Constitution as it provides for the prosecution and punishment of a person for the same offence more than once. (3) The petitioner was not allowed to be defended at the General Court Martial by a legal practitioner of his choice and therefore there had been a violation of the provisions of Art. 22(1) of the Constitution. (4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efused and that he cannot be said to have been denied his fundamental right of being defended by a counsel of his choice. In paragraph 9 of his petition he did not state that he had made a request for his being represented by a counsel of his choice. He simply stated that certain of his relatives who sought interview with him subsequent to his arrest were refused permission to see him and that this procedure which resulted in denial of opportunity to him to defend himself properly by engaging a competent civilian lawyer through the resources and help of his relatives had infringed his fundamental right under Art. 22 of the Constitution. If the petitioner had made any express request for being defended by a counsel of his choice, he should have stated so straight-forwardly in para 9 of his petition. His involved language could only mean that he could not contact his relations for their arranging a civilian lawyer for his defence. This negatives any suggestion of a request to the Military Authorities for permission to allow him representation by a practising lawyer and its refusal. We therefore hold that there had been no violation of the fundamental right of the petitioner to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; or of 'not guilty'. In view of these provisions, the petitioner's statement, which can be considered to be a mere allegation, cannot be based on any definite knowledge as to how the voting went at the consideration of the finding in pursuance of r. 61. Further, there is no reason to doubt what is stated in the certificate which, according to the counter-affidavit, is not recorded in pursuance of any provision governing the proceedings of the Court Martial, and does not form Dart of any such proceedings. It is recorded for the satisfaction of the confirming authority. The certificate is dated January 12, 1963, the date on which the petitioner was convicted. The affidavit filed by Col. N.S. Bains, Deputy Judge-Advocate General, Army Headquarters, New Delhi, contains a denial of the petitioner's allegation that the certificate is a false and concocted document and has been made by the authorities after the filing of the writ Petition. We see no reason to give preference to the allegations of the petitioner over the statement made by Col. Bains in his affidavit, which finds support from the contents of Exhibit A signed by the presiding officer of the Court.Martial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides that the Central Government is to confirm the findings and sentences of General Courts Martial and therefore could not have contemplated, by the provisions of s. 164, that the Central Government could not exercise this power but should always have this power exercised by any other officer which it may empower in that behalf by warrant. We therefore do not consider this contention to have any force. Lastly, Mr. Rana, learned counsel for the petitioner, urged in support of the first that in the exercise of the power conferred on Parliament under Art. 33 of the Constitution to modify the fundamental rights guaranteed by Part 111, in their application to the armed forces, it enacted s. 21 of the Act which empowers the Central Government, by notification, to make rules restricting to such extent and in such manner as may be necessary, the right of any person with respect to certain matters, that these matters do not cover the fundamental rights under Arts. 14, 20 and 22 of the Constitution, and that this indicated the intention of Parliament not to modify any other fundamental right. The learned Attorney-General has urged that the entire Act has been enacted by Parliament and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Officers who are not expected to be trained Judges, as the presiding officers of Criminal Courts are. No judgment is recorded. No appeal is provided against the order of the Court Martial. The authorities to whom the convicted person can represent against his conviction by a Court Martial are also non- judicial authorities. In the circumstances, a trial by an ordinary Criminal Court would be more beneficial to the accused than one by a Court Martial. The question then is whether the discretion of the officers concerned in deciding as to which Court should try a particular accused can be said to be an unguided discretion, as contended for the appellant. Section 125 itself does not contain anything which can be said to be a guide for the exercise of the dis- cretion, but there is sufficient material in the Act which indicate the policy which is to be a guide for exercising the discretion and it is expected that the discretion is exercised in accordance with it. Magistrates can question it and the Government, in case of difference of opinion between the views of the Magistrate and the army authorities,. decide the matter finally. Section 69 provides for the punishment which can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused and witnesses of the incident, if all or some of them happen to belong to the army, should be left behind for the purpose of trial by the ordinary Criminal Court. The trials in an ordinary court are bound to take longer, on account of the procedure for such trials and consequent appeals and revision, then trials by Courts Martial. The necessities of the service in the army require speedier trial. Sections 102 and 103 of the Act point to the desirability of the trial by Court Martial to be conducted with as much speed as possible. Section 120 provides that subject to the provisions of sub-s. (2), a summary Court Martial may try any of the offences punishable under the Act and sub-s (2) states that an officer holding a summary Court Martial shall not try certain offences without a reference to the officer empowered to convene a district court martial or on active service a summary general court martial for the trial of the alleged offender when there is no grave reason for immediate action and such a reference can be made without detriment to discipline. This further indicates that reasons for immediate action and detriment to discipline are factors in deciding the type of tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... together with a statement of the offence of which he is accused, to the Commanding Officer of the regiment, corps, ship or detachment to which he belongs, or to the Commanding Officer of the nearest military, naval or air-force station, as the case may be, for the purpose of being tried by Court Martial. This gives a discretion to the Magistrate, having regard to the rules framed, to deliver the accused to the military authorities for trial by Court Martial. The Central Government framed rules by S.R.O. 709 dated April 17, 1952 called the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952, under s. 549 Cr. P.C. It is not necessary to quote the rules in full. Suffice it to say that when a person charged is brought before a Magistrate on an accusation of offences which are liable to be tried by Court Martial, the Magistrate is not to proceed with the case unless he is moved to do so by the relevant military authority. He can, however, proceed with the case when he be of opinion, for reasons to be recorded, that he should so proceed without being moved in that behalf by competent authority. Even in such a case he has to give notice of his opinion to the Comman ..... X X X X Extracts X X X X X X X X Extracts X X X X
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