TMI Blog1948 (4) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... s attached to a unit of the Indian Engineers. He remained, however, subject to the Army Act. 2. The appellant was charged before a Field General Court-Martial at Lahore on October 12, 1948, on four charges, framed under the Army Act. The first charge, under Section 17 of the Army Act, alleged that the appellant, on or about April 22, 1943, when concerned in the care of public property, namely, ₹ 8,089-7-0, the imprest money of the Company commanded by the appellant, had fraudulently misapplied the same. The third charge, also under Section 17 of the Army Act, alleged similarly that the appellant had fraudulently misapplied regimental property, namely, ₹ 871-12-9, being part of the regimental funds of the said Company. The second and fourth charges were framed under Section 40 of the Army Act, and were alternative charges to the first and third charges, respectively, alleging neglect to the prejudice of good order and military discipline in that the appellant so negligently performed his duties as to suffer the said sums of money to be destroyed by fire. 3. It would appear from the appellant's affidavits hereafter mentioned that there was no dispute that on Apr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l was against the provisions of the Army Act, Rules of Evidence and Procedure and the conviction was against natural justice. In substance and in law the prisoner did not have a trial at all. (f) It had been averred by the Prosecuting Officer before the Court-Martial, and so held by the Court-Martial, that there was no obligation on the prosecution to prove where the money went to ; and that it was entirely for the appellant to substantiate his innocence. 6. The appellant's petition came before Blacker J., who referred to a Special Bench of the High Court the question whether Section 270 of the Government of India Act, 1935 (hereafter referred to as the Act ) is applicable to Courts-Martial held tinder the Army Act in respect of a British officer attached to the Indian Army. Sub-sections (7) and (2) of that section are as follows : 270.(1) No proceedings civil or criminal shall be instituted against any person in respect of any act done or purporting to be done in the execution of his duty as a servant of the Crown in India or Burma before the relevant date, except with the consent in the case of a person who was employed in connection with the affairs of the Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's objection to his convictions could be divided into three groups : (1) Objections to the jurisdiction of the Court-Martial, (2) Want of the consent of the Governor-General under Section 270 of the Act. (3) Objections to the conduct of the trial, that is to say, contentions that the procedure was such as to deny him justice, and that there was no evidence on which a conviction could be based. 10. As regards the second objection, the learned Judge held that he was bound by the judgment of the Special Bench referred to above, with which he agreed. As regards the third group of objections, the learned Judge said : With regard to the question of procedure I have seen the record of the Court-Martial, and the procedure adopted appears to me to be absolutely consistent with all principles of natural justice...On the point whether there was evidence on which the conviction could be based, there was considerable argument before me regarding the powers of the High Court to inquire into this question. I have, however, been saved the labour of discussing these arguments in this judgment, as the matter has also been decided by the Special Bench, whose decision that this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Martial, Their Lordships did not think it right to allow the appellant to argue matters which he had elected not to argue before the Federal Court and on which, in consequence, that Court had given no decision. It is obvious, however, that if this application had been granted, the appellant would have been faced with a very difficult task, having regard to the observations of Blacker J., already quoted. 14. The result is that the only question now arising for decision is whether Section 270(1) of the Act applies in the present case. If the sub-section does apply, the Court-Martial which convicted the appellant had no jurisdiction to try him, since the consent of the Governor-General was not obtained, and his conviction cannot stand. If the sub-section does not apply, the present appeal must fail. 15. The first matter to be considered is whether proceedings before a Court-Martial are proceedings civil or criminal in the sense in which these words are used in Section 270(1). Clearly proceedings before a Court-Martial are not civil proceedings, but it is conceded that they may well come within the description of criminal proceedings in a suitable context. Their Lordship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -Martial proceedings under the Army Act are criminal proceedings within Section 270(1), or no Court-Martial proceedings are. If all Court-Martial proceedings under the Army Act are criminal proceedings within Section 270(1) there is no way to escape from the fantastic results which would follow from such a decision. 19. It is unnecessary to elaborate this matter further, as there is another reason why this appeal could not succeed, even if proceedings before a Court-Martial were criminal proceedings within Section 270(1). That sub-section only applies to proceedings instituted against any person in respect of any act done or p urporting to be done in the execution of his duty as a servant of the Crown in India or Burma before the relevant date. On February 17, 1948, the judgment of this Board was delivered in Privy Council Appeal No. 57 of 1947 (Gill v. King (1948) 50 Bom. L.R. 487, P.C.) In that case the appellant had been charged with accepting or conspiring to accept bribes, and the following passage from the judgment is relevant in the present case (p. 493): The Federal Court has not expressed an opinion upon the necessity of a sanction under section 197 of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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