Important point
A judge-advocate appointed with the court-martial should not be an officer of a rank lower than that the officer facing the trial unless the officer of such rank is not (having due regard to the exigencies of public sevice) available and the opinion regarding non-availability is specifically recorded in the convening order. Court-martial conducted with a judge-advocate lower in rank to an accused officer would be invalid

Headnote:(i) Indian Army Act—Sections 113 and 129—Army Rules—Rules 39 and 40—Court-martial—Proceedings in—Validity of—Accused was a major—Judge Advocate was captain—Court martials decision dimissing accused from service—Challenge on ground court-martial not valid as Judge Advocate was lower in rank of accused—Held, Judge-Advocate appointed with court-martial should not be an officer of rank lower than officer facing trial unless officer of such rank is not available and opinion regarding non-availability is specifically recorded in convening order—In instant case Judge-Advocate lower in rank to accused and no satisfaction or opinion in terms of sub-rule (2) of Rule 40 recorded—Court-martial not valid—Authorities given liberty to initiate fresh court-martial proceedings in accordance with law.
       Held : It was argued that in effect and practice the Judge-Advocate is the ‘court’ and the ‘court-martial’ is the jury for all practical purposes so far as the trial of the accused is concerned. The argument may be exaggerated version of the reality but is not totally without substance inasmuch as the powers exercised by the Judge-Advocate indicate that though not forming part of the court-martial, he is an integral part thereof particularly in court-martials which cannot be conducted in his absence. It cannot be denied that the justice dispensation system in the Army is based upon the system prevalent in the Great Britain. The position of the Judge-Advocate is by no means less than that of a Judge-Advocate associated with a court-martial in that country. (Para 11)
       It is true that Judge-Advocate theoritically performs no function as a judge but it is equally true that he is an effective officer of the court conducting the case against the accused under the Act. It is his duty to inform the court of any defect or irregularity in the charge and, in the constitution of the court or in the proceedings. The quality of the advise tendered by the Judge-Advocate is very crucial in a trial conducted under the Act. With the role assigned to him a Judge-Advocate is in a position to sway the minds of the members of the court-martial as his advise or verdict cannot be taken lightly by the person composing the court who are admittedly not law knowing persons. It is to be remembered that the court-martials are not part of the judicial system in the country and are not permanent courts. (Para 12)
       It is apparent that if a ‘if person’ is not appointed as a judge-advocate, the proceedings of the court martial cannot be held to be valid and its finding legally arrived at. Such an invalidity in appointing an ‘unfit’ person as a judge-advocate is not curable under Rule 103 of the Rules. If a fit person possessing requisite qualifications and otherwise eligible to form part of the general court martial is appointed as a judge-advocate and ultimately some invalidity is found in his appointment, the proceedings of the court martial cannot be declared invalid. A “fit person” mentioned in Rule 103 is referable to Rules 39 and 40. It is contended by Shri Rawal, learned ASG that a person fit to be appointed as judge-advocate is such officer who does not suffer from any ineligibility or disqualification in terms of Rule 39 alone. It is further contended that Rule 40 does not refer to disqualifications. We cannot agree with this general proposition made on behalf of the appellant inasmuch as sub-rule (2) of Rule 40 specifically provides that members of a court-martial for trial of an officer should be of a rank not lower than that of the officer facing the trial unless such officer is not available regarding which specific opinion is required to be recorded in the convening order. Rule 102 unambiguously provides that “an officer who is disqualified for sitting on a court martial shall be disqualified for acting as a judge-advocate in a court martial”. A combined reading of Rules 39, 40 and 102 suggest that an officer who is disqualified to be a part of court martial is also disqualified from acting and sitting as a judge-advocate at the court martial. It follows, therefore, that if an officer lower in rank than the officer facing the trial cannot become a part of the court martial, the officer of such rank would be disqualified for acting as a judge-advocate at the trial before a GCM. Accepting a plea to the contrary, would be invalidating the legal bar imposed upon the composition of the court in sub-rule (2) of Rule 40. .(Para 14)
       The purpose and object of prescribing the conditions of eligibility and qualification along with desirability of having members of the court martial of the rank not lower than the officer facing the trial is obvious. The law makers and the rule framers appear to have in mind the respect and dignity of the officer facing the trial till guilt is proved against him by not exposing him to humiliation of being subjected to trial by officers of lower in rank. The importance of the judge-advocate as noticed earlier being of a paramount nature requires that he should be such person who inspires confidence and does not subject the officer facing the trial to humiliation because the accused is also entitled to the opinion and services of the judge-advocate. Availing of the services or seeking advise from a person junior in rank may apparently be not possible ultimately resulting in failure of justice. (Para 16)
       After examining various provisions of the Act, the Rules and Regulations framed thereunder and perusing the proceedings of the court-martial conducted against the respondent No. 1, we are of the opinion that the judge-advocate though not forming a part of the court, yet being an integral part of it is required to possess all such qualifications and be free from the disqualifications which relate to the appointment of an officer to the court-martial. In other words a judge-advocate appointed with the court-martial should not be an officer of a rank lower than that the officer facing the trial unless the officer of such rank is not (having due regard to the exigencies of public sevice) available and the opinion regarding non-availability is specifically recorded in the convening order. As in the instant case, judge-advocate was lower in rank to the accused officer and no satisfaction/opinion in terms of sub-rule (2) of Rule 40 was recorded, the Division Bench of the High Court was justified in passing the impugned judgment, giving the authorities liberty to initiate fresh court-martial proceedings, if any, if they are so advised in accordance with law and also in the light of the judgment delivered by the High Court. (Para 21)
       (ii) Indian Army Act—Sections 113 and 129—Army Rules—Rules 39 and 40—Court-martial—Judge Advocate cannot be an officer lower in rank to accused officer—Court-martial proceedings conducted with a Judge-Advocate lower in rank than accused officer would be invalid—Number of Court-martials have already been held and conducted under assumption disqualification of Judge Advocate not referable to Rule 40(2) on strength of Note 2 attached to Rule 102—De facto doctrine attracted—Judgments rendered by court martial which have already attained finality cannot be permitted to be reopened on basis of law laid down in this judgment—Already challenged and pending proceedings would not be governed by principle of de facto doctine. (Paras 17 to 23)

JUDGMENT

Sethi, J.—Leave granted.

2. Finding that the Judge Advocate was lower in rank to the accused facing trial before a General Court Martial (hereinafter referred to as “GCM”), the Division Bench of the High Court set aside the order of the Trial Court and the entire Court Martial proceedings conducted against the respondent No.1. The Bench, however, observed that the quashing of the proceedings of the GCM will not prevent the authorities concerned to initiate fresh court martial proceedings if they are so advised in accordance with law and also in the light of the judgment delivered. Feeling aggrieved by the aforesaid judgment the present appeal has been filed with a prayer for setting aside the impugned judgment and upholding the order of the GCM as well as the learned Single Judge.

3. The relevant and almost admitted facts for determining the controversy in this appeal are that the first respondent joined the Indian Army as a Commissioned Officer in 1971 and was promoted to the rank of Major in 1984. He was posted at Fort William, Calcutta in April, 1990. While attached with 235 IWT company, Engineers, the respondent No. 1 was alleged to have absented himself without leave on four occasions which was an offence under Section 39(1) of the Army Act. He was also charged under Section 63 of the Army Act for violation of good order and military discipline. A GCM was convened by the General Officer Commanding (GOC), Bengal Area by his order dated 23rd December, 1991. The Court martial comprised of Col. Rabinder Bahadur Singh as Presiding Officer and Col. Kunjachan Puthenveetil Sebastian, Col. Prakash Nambiar, Col. Mahitosh Deb and Major Kadam Netaji Kesharuo as Members. Capt. Vashishta Arun Kumar, Dy. Assistant Judge Advocate General was appointed as Judge Advocate in the court martial proceedings. The respondent No. 1 was found guilty of four out of five charges by the GCM and was sentenced to forfeit six months service for the purposes of promotion. The order of conviction and sentence was, however, made subject to the confirmation by the Confirming Authority to whom the proceedings were transmitted by the GCM in terms of Section 153 of the Army Act. The Confirming Authority felt that the sentence awarded to the respondent No. 1 by the GCM was grossly inadequate and inappropriate which required review. The order of the Confirming Authority dated 2-5-1992 was conveyed to the GCM which on 19-5-1992 upon, reconsideration revoked the earlier sentence and passed a fresh order of sentence of dismissing the respondent No.1 from service. This order was also made subject to confirmation by the Confirming Authority.

3A. Aggrieved by the order of conviction and sentence passed by the GCM, the respondent No.1 filed writ petition being CO No. 7102(W) of 1992 in the High Court at Calcutta praying therein for quashing orders dated 23-12-1991, 10-2-1992, 2-5-1992 and 19-5-1992. At the time of admission of the writ petition a learned Single Judge of the High Court passed an interim order on 29th May, 1992 directing the appellants not to confirm the impugned order of dismissal and not to take any steps against respondent No. 1 without the leave of the Court. The interm order was, however, vacated by the learned Single Judge on 16-12-1996 allowing the Confirming Authority to complete the process of confirmation and passing appropriate orders. Consequently, the GCM proceedings were confirmed on 17-12-1996 and the respondent No. 1 was dismissed from service on 18-12-1996. The writ petition filed by the first respondent was dismissed by the learned Single Judge on 3rd July, 1997. Feeling aggrieved by the judgment of the learned Single Judge the respondent No.1 preferred appeal being MAT No.2181/97 before the Division Bench which was allowed vide the order impugned in this appeal.

4. In his writ petition the respondent No. 1 is stated to have alleged that in the year 1987-88 when he was posted as Garrison Engineer in Jammu & Kashmir St

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2000 Supreme(SC) 828

Cases Referred (3)