Judgement

In this petition Mohammad Yakub Khan, who was a commissioned officer in the Indian Army, sought for special leave to appeal to His Majesty in Council as an act of grace from his conviction and sentence, on December 9, 1943, by a Summary General Court Martial at Calcutta, on charges of misappropriation of government stores, embezzlement and insubordination. He was sentenced to six months rigorous imprisonment and to be cashiered. The sentence was confirmed by the General Officer in Chief Commanding, Eastern Command on December 29, 1943.

The petitioner claimed that his conviction was bad owing mainly to the fact that the trial was vitiated by errors of law and legal procedure, in that there had been illegal joinder of charges contrary to the provisions both of the Criminal Procedure Code and of the Indian Army Act

Law Rep. 74 Ind. App. 8 ( 1946- 1947) Mohammad Yakub Khan V. King-Emperor 2

which seriously hampered his defence, and by the refusal to allow him to produce evidence of his good character, which, he said, with other alleged defects, amounted to a grave and substantial miscarriage of justice.

The argument before the Judicial Committee was confined to the preliminary question whether the petition was competent.

1947. Jan. 20. Pritt K.C. and Handoo for the Crown. This petition is not competent and should not be heard. It is submitted, first, that there was no jurisdiction in the Privy Council to hear cases of this kind before the Judicial Committee Act of 1833; secondly, that no jurisdiction has been created since the Act of 1833 to hear such appeals; and thirdly, that there is no right of appeal under the prerogative. With regard to the first point, appeals from a court martial set up under an Act passed a century after the Judicial Committee Act cannot possibly be made the subject of jurisdiction to this Board. There is no trace anywhere of any law, statute or instrument allowing appeals from courts martial to be brought to the Privy Council. Throughout the British army and the Indian army there never has been under the courts martial system any kind of appeal before a judicial tribunal. On the second point, the Indian Army Act is silent about any suggestion that there should be an appeal as opposed to review. As to the third question, when a new court or tribunal is created in any of His Majestys Dominions the question may arise whether the prerogative appeal is brought into existence, and the question is not, is the prerogative appeal excluded, but whether in creating the new court the legislature has impliedly enacted that it shall fall within the prerogative Theberge v. Laudry (( 1876) 2 App. Cas. 102, 108.). That case was followed in Moses v. Parker, ex parte Moses ([ 1896]

A. C. 245.) and Strickland v. Grima ([ 1930] A. C. 285, 295.), and distinguished in In re Wi Matuas Will ([ 1908] A. C. 448.). In re Mark Porret (Morleys Digest of Indian Cases, vol. 2, 353, 355, 359.) describes the functions and limitations of a court martial. Tilonko v. Attorney-General for Natal ([ 1907] A. C. 93.) is not close enough, and does not hinder my argument. Clifford v. O’Sullivan ([ 1921] 2 A. C. 570, 581.) is also not very close to the present case, and is only helpful indirectly. On principle it could never be held that an appeal should lie to this Board from a decision of a court martial established under the Indian Army Act. First, there is not from beginning to end of that Act any provision of any kind for any appeal to any court of law in any circumstances whatsoever. Secondly, the English and the Indian Army Acts are very much the same, and it would astonish lawyers and soldiers if they were told that there was any possibility of appealing to any of His Majestys courts. [Reference was made to the provisions of the Indian Army Act, including those for review.] It is submitted that many courts martial, including a summary general court martial, cannot really give a judgment at all, so that the Board is being asked to