IMPORTANT POINT
Though Court-martial proceedings are subject to judicial review by the High Court under Art. 226 of the Constitution, the Court-martial is not subject to the superintendence of the High Court under Art. 227 and if a Court Martial has been properly convened and the proceedings are in accordance with the procedure prescribed, the Court must stay its hands.

Headnote:(i) COURT MARTIAL-Constitution of India-Arts. 226 and 227-High Court s power of judicial review of court martial proceedings-Held, Court-martial proceedings are subject to judicial review by High Court under Art. 226-Court martial is not subject to superintendence of High Court under Art. 227-Proceedings of Court martial not to be compared with proceedings in a criminal court-High Court should not allow challenge to conviction when evidence is sufficient, court martial has jurisdiction and followed prescribed procedure and is within its powers to award punishment.
       Held : Though court-martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the court-martial is not subject to the superintendence of the High Court under Article 227 of the Constitution. If a court-martial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter any court must stay its hands. Proceedings of a court-martial are not to be compared with the proceedings in a criminal court under the Code of Criminal Procedure where adjournments have become a matter of routine though that is also against the provisions of law. It has been rightly said that Court-martial remains to a significant degree, a specialised part of overall mechanism by which the military discipline is preserved. It is for the special need for the armed forces that a person subject to Army Act is tried by court-martial for an act which is an offence under the Act. Court-martial discharges judicial function and to a great extent is a court where provisions of Evidence Act are applicable. A court-martial has also the same responsibility as any court to protect the rights of the accused charged before it and to follow the procedural safeguards. If one looks at the provisions of law relating to court-martial in the Army Act, the Army Rules, Defence Service Regulations and other Administrative Instructions of the Army, it is manifestly clear that the procedure prescribed is perhaps equally fair if not more than a criminal trial provides to the accused. When there is sufficient evidence to sustain conviction, it is unnecessary to examine if pre-trial investigation was adequate or not. Requirement of proper and adequate investigation is not jurisdictional and any violation thereof does not invalidate the court martial unless it is shown that accused has been prejudiced or a mandatory provision has been violated. One day usefully refer to Rule 149 quoted above. The High Court should not allow the challenge to the validity of conviction and sentence of the accused when evidence is sufficient, court-martial has jurisdiction over the subject matter and has followed the prescribed procedure and is within its powers to award punishment. (Para 17)
       (ii) Constitution of India-Art. 226-Army Act, 1950-Army Rules -Court martial proceedings held against respondent-Respondent was held guilty of the charge-Award of sentence of dismissal from service-Sentence confirmed-Writ petition-High Court quashed court martial proceedings and confirmation of sentence on ground that respondent was denied reasonable opportunity to defend himself-Respondent was given copies of all relevant papers-He was allowed services of a civilian counsel-Special advance given to engage services of civil counsel-No fault could be found with convening officer if respondent himself did not avail services of a defending officer when provided-No irregularity or illegality-Respondent was provided with reasonable opportunity to defend himself-Proceedings were fair -Impugned judgment of High Court liable to be set aside. (Para 18)

JUDGMENT

D.P. Wadhwa, J.-Appellants are aggrieved by the judgment dated February 21, 1994 of the Division Bench of the High Court of Judicature : Andhra Pradesh dismissing their appeal against judgment dated April 25, 1991 of the learned single Judge of that High Court whereby the learned single Judge allowed writ petition filed by the respondent and quashed the court martial proceedings held against him including the confirmation of sentence passed upon him by the court martial.

2. A General Court Martial (GCM) under the Army Act, 1950 (for short the Act ) was convened to try the respondent holding the rank of Major in the army on the following charge :

"Charge Sheet

The accused IC-14827F Major Arshad Hussain, 225 Ground Liaison Section Type C attached to AOC Centre, an officer holding a permanent commission in the Regular Army, is charged with :

Army Act - Section 63. - An Act prejudicial to good order and Military Discipline,

in that he,

at Field, between 17 Sep. 84 and 17 Nov. 84, when serving with 225 Ground Liaison Section Type C , lost by neglect twelve (12) pages of the Commander s Operational Brief taken on charge at Serial 115 on the Incoming Top Secret Register of HQ 150 Inf Bde which were entrusted to him for safe custody.

Place: Secunderabad

Date : 14 Aug. 87 Sd/-

(Gautam Mitra)

Brig.

Commandant

AOC Centre

To be tried by General Court Martial.

Station: Madras - 9

Dated : 25 Aug. 87 Sd/-

(Deepak Sehdev)

Colonel

Colonel A

For General Officer Commanding Andhra, Tamil Nadu, Karnataka and Kerala Area."

Section 63 of the Act reads as under :

"63. Any person subject to this Act who is guilty of any or omission which, though not specified in this Act, is prejudicial to good order and military discipline shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned."

3. After conclusion of the GCM proceedings the respondent was held guilty of the charge and was sentenced to be dismissed from service by order dated December 26, 1987 of the General Court Martial. The sentence passed against the respondent was confirmed by the confirming authority as required under the Act.

4. The respondent challenged his conviction and sentence in a writ petition filed by him in the High Court which, as noted above, allowed the same and quashed the court martial proceedings and confirmation of sentence against the respondent. The ground which appealed to the High Court in setting aside the court martial proceedings and subsequent confirmation of sentence may be stated from the judgment of the single Judge which is as under :

"The petitioner has been denied a reasonable opportunity to defend himself by not communicating the conclusion reached in Rule 22 Inquiry as contemplated by Army Order 70/84. In the proceedings under Section 22 by not supplying the copies of statements in earlier Court of Inquiry : (i) during General Court Martial by not giving assistance of a defending Officer of his choice; (ii) not providing him load which was already sanctioned to engage a new counsel as the earlier counsel engaged by him had retired for no fault of the petitioner; (iii) by not providing him the documents for which he had made a request to the convening authority long before assembly of the Court Martial and for which his counsel had also made a request."

5. Now to understand if the High Court rightly exercised its power of judicial review of the court martial proceedings, we may refer to a few relevant facts and briefly to the court martial proceedings.

6. In the year 1984 respondent was serving as Ground Liaison Officer in a Brigade which was situated somewhere in Rajasthan in close proximity of international border with Pakistan. One Major P.C. Bakshi was also posted as Brigade Major in that B

Click Here to Read the rest of this document

1997 Supreme(SC) 1614

Cases Referred (3)