IMPORTANT POINT
Non-compliance of the mandatory provision of Section 102 Navy Act, is an infirmity which goes to the root of the jurisdiction and vitiates the proceedings.

Headnote:Navy Act, 1957-Sections 102, 101, 103-Court martial proceedings -Objections to members-Manner in which proceedings commence before the Court Martial-Objections which are to be considered even before the trial begins-Any member may be objected on a ground, which affects his competency to act as an impartial judge-Procedure to be followed by members of Court Martial while considering such objections-Nature of authority exercised by trial Judge Advocate to reject summarily, without reference to members of Court Martial any objection not made on a ground, which affects competency of a member to act as an impartial judge-Limitations of his jurisdiction.
       Held : At the stage of section 102 only the objections relating to membership of the court martial on a ground affecting the competency of any member to act as a court martial are required to be considered. Every other objection regarding constitution of the court martial on other grounds has to be considered later, and that is what is provided by section 103 of the Act. All grounds other than the ground which affects the competency of a member to act as an impartial judge, is required to be decided by the court, and no discretion is left with the trial Judge Advocate. Reading the two provisions together the scheme of the Act appears to be that in the first instance the court has to consider whether any of its member is disentitled to sit as a member of the court martial on the ground that he is not competent to act as an impartial judge. No other objection is to be entertained at this stage. Therefore, when an objection to any member is raised on a ground other than the ground, which affects his competency to act as an impartial judge, the trial Judge Advocate is authorized to reject the same summarily without reference to the members of the court martial. But if any member is objected to on the ground, which affects his competency to act as an impartial judge, the trial Judge Advocate has no discretion in the matter and he must place the matter before the court, which must consider the objection in accordance with the procedure laid down in clauses (b) to (e) of section 102. Whether there is any merit in the objection, is not a matter to be considered by the trial Judge Advocate, since he is not vested with the jurisdiction to decide such objections. That power has to be exercised by the court itself. The only authority that is given to the trial Judge Advocate under clause (a) of section 102 is to reject at that stage all other objections without reference to the members of the court martial which are not on a ground which affects the competency of a member to act as an impartial judge. This is because such other objections may be considered later after the constitution of the court is first finalized after disposal of objections to membership of the court martial on the ground, which affects the competency of any member to act as an impartial judge. The scheme of the Act, therefore, is to provide for two stages at which the objections to the constitution of the court martial have to be considered. Section 102 clarifies that at that stage only those objections have to be considered which proceed on a ground, which affects the competency of any member to act as an impartial judge. All other objections to the constitution of the court have to be considered after the objections on the grounds specified in clause (a) of section 102 of the Act are disposed of. Those other objections have to be disposed of in the manner laid down under section 103 of the Act. (Para 23)
       The jurisdiction of the trial Judge Advocate under clause (a) of section 102 is limited to the extent of finding out whether the objection is on the ground specified in the first part of clause (a). If it was such a ground, then regardless of its merit, the objection had to be decided by the court martial in accordance with the procedure laid down in that section. If it was not such a ground as specified in the first part of section 102, it was then his discretion to summarily reject the same. The words of the section are "may reject summarily" which is indicative of a discretion vested in him. That is because if the objection is an objection respecting the constitution of the court, but not on the ground specified in clause (a) of section 102, then he may rather than dismissing the objection reserve it for consideration after the objections under sections 102 are disposed of and the objections under sections 103 are taken up for consideration. We are, therefore, in agreement with the High Court that the trial Judge Advocate exceeded his jurisdiction under clause (a) of section 102 of the Act and because of his erroneous exercise of jurisdiction the objections relating to the constitution of the Court Martial remained undecided by the competent authority, and yet the members of the Court Martial proceeded with the trial and found the respondent guilty. This was done in breach of a mandatory provision of section 102 of the Act. Non-compliance of the mandatory provision of section 102 is an infirmity which goes to the root of the jurisdiction and without more, vitiates the proceedings. (Paras 24 and 25)

JUDGMENT

B.P. Singh, J.-In this appeal by special leave the Union of India has impugned the judgment and order of the High Court of Bombay at Goa dated May 2, 2001 in Criminal Writ Petition No.3 of 2001 whereby the High Court allowing the writ petition filed under Article 226 of the Constitution of India quashed the order of the Court Martial dated 4th September, 2000 which found the respondent guilty of the offences under sections 497, 452 and 325 of the Indian Penal Code read with Section 77(2) of the Navy Act, 1957 (hereinafter referred to as the Act ) and the order of the Chief of the Naval Staff dated 8th January, 2001 passed under Section 162 of the Act as also the order of the Chief of the Naval Staff dated January 31, 2001 passed under Section 163 of the Act. After going through the evidence on record it also recorded a finding that there was no legal evidence to support the order of conviction and, therefore, gave to the respondent the benefit of doubt.

2. The facts of the case so far as they are relevant for the disposal of this appeal are :-

The respondent was an officer of the Indian Navy and at the relevant time was serving as a Lieutenant posted in Goa. He was tried by a Court Martial for offences under sections 497, 506, 452 and 325 of the Indian Penal Code read with Section 77(2) of the Act. The Court Martial found the respondent guilty of the offences under sections 497, 452 and 325 of the Indian Penal Code read with Section 77(2) of the Act and ordered the respondent to be kept in rigorous imprisonment for a term of 24 calendar months as a Class-I prisoner; to be dismissed with disgrace from the Naval service and to suffer consequential penalties involved. The Chief of the Naval Staff in exercise of his power under Section 163 of the Act modified the sentence awarded to the respondent and ordered that the respondent be kept in rigorous imprisonment as a Class-I prisoner for a period of 12 calendar months and that he be dismissed from Naval service and shall suffer the consequential penalties involved. The respondent submitted a petition on December 4, 2000 under Section 162 of the Act with a request to set aside the findings and sentence awarded to him by the Court Martial, but the same was rejected by the Chief of the Naval Staff by his order dated January 31, 2001.

3. The order of conviction and sentence passed by the Court Martial as well as the orders of the Chief of the Naval Staff in exercise of powers under sections 162 and 163 of the Act were challenged before the High Court by the respondent by filing a writ petition under Article 226 of the Constitution of India. The challenge to the aforesaid orders was on several grounds. It was submitted before the High Court that the members of the Court Martial had not been appointed in conformity with Section 97 of the Act. Three of the Members of the Court Martial were incompetent to act as impartial Judges and the objection raised by the respondent in this regard was disposed of by the Trial Judge Advocate, without reference to the members of the Court Martial, in gross violation of the mandatory provisions contained In Section 102 of the Act. As a result grave prejudice was caused to the respondent and there was serious miscarriage of justice by such officers continuing as members of the Court Martial to try him. The order of Court Martial was also challenged on the ground of its failure to record reasons for the conclusions reached by it. It was also submitted that the offences for which the respondent was tried were ordinarily offences which could have been tried by an ordinary criminal court and, therefore, trial by Court Martial was not justified.

4. On the other hand the Union of India contended that the Court Martial had been properly constituted and it had scrupulously observed provisions of the Act and recorded a finding of guilt against the respondent. It was not required to record reasons for its conclusions and its findings were, therefore, not vitia

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2003 Supreme(SC) 504

IMPORTANT POINTNon-compliance of the mandatory provision of Section 102 Navy Act, is an infirmity which goes to the root of the jurisdiction and vitiates the proceedings.

Cases Referred (6)

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IMPORTANT POINT
Non-compliance of the mandatory provision of Section 102 Navy Act, is an infirmity which goes to the root of the jurisdiction and vitiates the proceedings.