IMPORTANT POINT
Bias and principles of natural justice in court martial trial discussed.

JUDGMENT

Dipak Misra, J.-The present appeal by special leave is directed against the order dated July 23, 1991 passed by the High Court of Judicature of Delhi in Writ Petition (Criminal) No. 590 of 1991 wherein the learned Single Judge has declined to interfere with the order dated July 20, 1990 whereby the confirming authority under Section 164 of the Army Act, 1950 (for short ‘the Act’) had passed an order of confirmation as regards the sentence of cashiering but reduced the rigorous imprisonment from five years to six months as imposed by the Competent Authority of General Court Martial vide order dated June 4, 1990.

2. The appellant after joining the Army was confirmed in the rank of Second Lieutenant and eventually became a Major in due course of time. In the month of August, 1988 while serving at Bangalore he was transferred to Udhampur at Jammu. While he was functioning at Udhampur in the rank of Major a General Court Martial proceeding was convened against him on the following charges:-

“First Charge SUCH AN OFFENCE AS IS MENTIONED Army Act IN CLAUSE (f) OF SECTION 52 OF THE Section 52(f) ARMY ACT WITH INTENT TO DEFRAUD,

In that he,

at field, on 30th Jan. 89, with intent to defraud submitted a claim of Rs.35,270/-in respect of transportation of his household luggage and car in civil truck No. JKQ 3285 and JKR 0587 respectively on permanent posting from Bangalore to Udhampur well knowing that his such luggage and car had not been so transported.

Second Charge SUCH AN OFFENCE AS IS MENTIONED Army Act IN CLAUSE (D) OF SECTION 52 OF THE Section 52(D) ARMY ACT WITH INTENT TO DEFRAUD,

In that he, at field, on 18th Jan. 89, with intent to defraud submitted Leave Travel Concession (LTC) claim for year 1988 to CDA (O) Pune, well knowing that he had already availed the LTC for the year 1988.

Third Charge

“AN ACT PREJUDICIAL TO GOOD Army Act ORDER AND MILITARY DISCIPLINE. Section 63 In that he, at field, on 17th Nov. 1988, improperly utilised for himself IAFT-1752-PA/53-869651 dated 15th Nov. 1988, single/ return journey railway warrant from Jammu to New Delhi and back.”

3. In pursuance of the charge-sheet, General Court Martial commenced on March 12, 1990 which consisted of five Members, namely, Co. Choudhary Sohan Lal, Lt. Col. Harpal Singh, Lt. Col. Shiv Kumar Singh, Maj. Saigal Rajinder Nath and Maj. Manhas Rajender Singh.

4. At the commencement of trial in Court Martial, the appellant objected to some of the officers being members of the composition of Court Martial on the foundation that he had lodged a statutory complaint under Section 27 of the Act before the Central Government regarding certain irregularities against the Commander of the Sub Area and as all the presiding officers had worked under the Convening Officer, namely, Brig. Phoolka, the composition of Court Martial was vitiated. The Presiding Officer and other Members of Court Martial adverted to Section 130 of the Act and Rule 44 of the Army Rules, 1954 (for short ‘the Rules’) and eventually repelled the objections and proceeded with the trial.

5. After a full length trial, Court Martial found that all the charges levelled against the appellant had been proved and accordingly sentenced him as has been indicated hereinbefore.

6. After recording of guilt and imposition of sentence, the appellant submitted an application under Section 164(1) of the Act stating, inter alia, that the Members of Court Martial were disqualified as there was a statutory complaint against the Convening Officer under whom the Members of Court Martial were functioning; that he was not afforded adequate opportunity to prepare his defence inasmuch as the officer whose name had been given by him to defend his case was not provided; and that the principles of natural justice had been flagrantly violated. As far as the first charge was concerned, it was stated that the household luggage and car were transported from Bangalore to Udhampur in the hired vehicle of Karnataka Transport Corpora