TMI Blog1987 (10) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... jit Thakur, joined the Armed Services on September 7, 1972, and was, at the relevant time, a Signal Man in 4, Corps operating Signal Regiment. Apparently, appellant had not commended himself well to respondent No. 4, who was the commanding officer of the regiment. On March 29, 1985, appellant was already serving- out a sentence of 28 days' rigorous imprisonment imposed on him for violating the norms for presenting representations to higher officers. Appellant is stated to have sent representation complaining of ill-treatment at the hands of Respondent 4 directly to the higher officers. Appellant was punished for that by Respondent 4. Appellant was held in the Quarter-guard Cell in handcuffs to serve that sentence of rigorous imprisonment. 3. While so serving the sentence appellant is stated to have committed another offence on March 29, 1985, for which the punishment now impugned was handed down by Respondent 4. The nature of this offence had better be excerpted from the charge-sheet itself: The accused No. 1429055 M Signalman Ranjit Thakur of 4 Corps operating Signal Regiment is charged with- Army Act Section 41(2) Disobeying a lawful command given by his superior off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusive evidence of bias and vindictiveness. 5. Re: contention (a): The records of the proceedings of the Special Summary Court Martial do not indicate that the procedural safeguard against bias contained in Section 130 of the Act was complied with. Section 130 provides: 130(1) At all trials by general district or summary general court-martial, as soon as the court is assembled, the names of the presiding officer and members shall be read over to the accused, who shall thereupon be asked whether he objects to being tried by any officer sitting on the 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 and recorded, and the remaining officers of the Court shall, in the absence of the challenged officer decide on the objection. The proceedings do not indicate-this was not disputed at the hearing-that appellant was asked whether he objects to be tried by any officer, sitting at the Court-Martial. This, in our opinion, imparts a basic infirmity to the proceedings and militates against and detracts from the concept of a fair trial. The Act constitutes a special law in force c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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 pre eminently a rational provision which goes a long way to ensure a fair trial. What emerges, therefore, is that in the present case there is a non-compliance with the mandate of section 130 with the attendant consequence that the proceedings of the Summary Court-Martial are rendered infirm in law. This disposes of the first limb of the contention (a). 6. The second limb of the contention is as to the effect of the alleged bias on the part of respondent 4. The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and is whether respondent 4 was likely to be disposed to decide the matter only in a particular way. It is the essence of a judgment that it is made after due observance of the judicial process; that the Court or Tribunal passing it observes, at least the minimal requirements of natural justice, is composed of impartial persons acting fairly and without bias ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nctions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are interested. But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment or may not unfairly lead others to believe they are operating, judges refuse themselves. They do not sit in judgment .. . Referring to the proper test, Ackner LJ in Regina v. Liverpool City Justices, Ex-parte Topping [1983] I WLR 119 said: H Assuming therefore, that the justices had applied the test advised by Mr. Pearson-Do I feel prejudiced? then they would have applied the wrong test, exercised their discretion on the wrong principle and the same result, namely, the quashing of the conviction would follow. Thus tested the conclusion becomes inescapable that, having regard to the antecedent events, the participation of Respondent 4 in the Courts-Martial rendered the proceedings coram non-judice. 7. Re: contention (b): The mere circumstance that the appellant was, at the relevant point of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lusive province of the Court- Martial, if the decision of the Court even as to sentence is an outrageous defiance of B logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. In Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 Weekly Law Reports 1174 (HL) Lord Deplock said: Judicial Review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground l would call 'illegality'. the second irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community E In BhagatRam v. State of Himachal Pradesh, A.I.R. 1983 SC 454 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
