Judgement

Appeal (No. 30 of 1945), by leave of the Federal Court of India, from a judgment of the Federal Court (November 20, 1944) which dismissed the appellants appeal from a judgment of the High Court at Lahore (April 24, 1944) which dismissed the appellants petition praying for a writ in the nature of habeas corpus for his release from imprisonment. The appellant had been sentenced by Field General Court-Martial to be cashiered and to undergo two years imprisonment with hard labour.

The following facts and relevant statutory provisions are taken from the judgment of the Judicial Committee. The appellant was, at the date of his conviction by court-martial, an officer of His Majestys Forces, holding the temporary rank of Major in the Royal Engineers. He had enlisted in the United Kingdom in October, 1939, and had subsequently been commissioned and posted to India in the Royal Engineers in 1940. At the time of the events which gave rise to his trial by court-martial the appellant was attached to a unit of the Indian Engineers. He remained, however, subject to the Army Act. He was charged before a Field General Court-Martial at Lahore on October 12, 1943, on four charges, framed under the Army Act. The first charge, under s. 17 of the Army Act, alleged that the appellant, on or about April 22, 1943, when concerned in the care of public property, namely, Rs. 8089 As. 7, the imprest money of the company commanded by the appellant, had fraudulently misapplied the same. The third charge, also under s. 17 of the Army Act, alleged similarly that the appellant had fraudulently misapplied regimental property, namely, Rs. 871 As. 12 Ps. 9, being part of the regimental funds of the said company. The second and fourth charges were framed under

s. 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. It would appear from the appellants affidavits hereafter mentioned that there was no dispute that on April 22, 1943, the appellant had in his possession the two sums of money alleged in the charges, and that subsequently he was unable to produce them. His defence, on the facts, appeared to have been primarily that the whole of the money was destroyed in an accidental fire which occurred in a chest of drawers in the appellants room on the night of April 22-23, 1943, owing to the overturning of a candle, while the appellant was temporarily absent from the room. On October 17, 1943, the court-martial found the appellant guilty on the first and third charges, and not guilty on the second and fourth charges, and sentenced him to be cashiered and to undergo two years imprisonment with hard labour. The findings and sentence were reserved by the Commander, Lahore District, who had convened the court-martial. They were confirmed on November 23, 1943, by the General Officer Commanding-in-Chief, Central Command. The appellant was committed to prison to serve his sentence on November 30, 1943. On January 20, 1944, the appellant petitioned the High Court of Judicature at Lahore, under s. 491 and s. 561a of the Code of Criminal Procedure (Act V of 1898), praying that the Superintendent of the Central Jail, Lahore, should be directed to produce the appellant, and the Adjutant-General in India should be directed to show cause why the appellant should not be set at liberty. By his amended petition, dated February 11, 1944, supported by two affidavits by the appellant, the appellant averred that his trial and conviction by Field General Court-Martial was illegal, on grounds which may be summarized as follows (a) The alleged offence took place within the Area Command of Rawalpindi. The court-martial was, improperly, convened by the Commander of the Lahore District, (b) The appellant should have been tried by a General Court-Martial,