Oral Judgment: [Bilal Nazki, J.]

1. Heard the learned counsel for the parties. Perused the record.

2. The Petitioner was serving as a Lieutenant Colonel in the Indian Army when charges were framed against him and he was tried by general Court Martial. There were six charges levelled against the Petitioner. During the Court-martial, he was held to be guilty of four of the charges being charge Nos.1, 4, 5 and 6. Thereafter he was sentenced to suffer rigorous imprisonment for three years and he was also cashiered. It appears that the Petitioner challenged the order by way of Writ Petition earlier which was withdrawn by the Petitioner on the ground that he would approach the Chief of the Army Staff. Thereafter, he approached the Chief of the Army Staff who rejected his appeal against the conviction, however, reduced the sentence of imprisonment to the period already undergone by him. This order was passed by the Chief of the Army Staff on 2.6.2000. Thereafter, this Writ Petition came to be filed.

3. The Petitioner has challenged the conviction and sentence imposed by Court Marshal mainly on following grounds:

i) Rule 180 was not complied with during the course of inquiry proceedings;

ii) The Judge Advocate appointed, was inferior in rank to the accused and as such, the trial got vitiated;

iii) He was not heard at the stage of framing of charge;

iv) He was not given fair chance of cross-examining the prosecution witnesses and was not also given a chance to produce the defence witnesses;

4. After hearing the learned counsel for the parties, we feel that this petition has to be allowed on the ground that the Judge Advocate was below the rank of the accused which is the admitted position and as such, the Court-martial got vitiated. The learned counsel for the Respondents, however, submits that at no point of time during the Court-martial, the Petitioner had complained to appointment of a Major as the Judge Advocate and therefore, this ground may not be available to him. However, we are of the view that if the Court-martial has been conducted contravening the mandatory Rules then it is immaterial whether such an objection was taken by the Petitioner during the Court-martial or not. However, the Petitioner maintains that he had at all stages taken objection to the appointment of the Major as Judge Advocate.

“Rule 39 of the Rules framed under the Army Act, lays down the ineligibility and disqualifications of the Officers for Court-martial. Rule 39 reads as under:

39. Ineligibility and disqualification of officers for court-martial:- (1) An Officer is not eligible for serving on a court-martial if he is not subject to the Act.

(2) An officer is disqualified for serving on a general or district court-martial if he—

(a) is an officer who convened the court; or

(b) is the prosecutor or a witness for the prosecution; or

(c) investigated the charges before trial, or took down the summary of evidence, or was a member of a court of inquiry respecting the matters on which the charges against the accused are founded, or was the squadron, battery, company, or other commander, who made preliminary inquiry into the case, or was a member of a previous court-martial which tried the accused in respect of the same offence; or

(d) is the commanding officer of the accused, or of the corps to which the accused belongs; or

(e) has a personal interest in the case.

(3) The provost-marshal or assistant provost-marshal is disqualified from serving on a general court-martial or district court-martial."

5. Rule 40 lays down the composition of general Court-martial and Rule 102 of the Rules lays down that the person who is ineligible to be a member of Court-martial, would also be ineligible to be the Judge Advocate. Therefore, in our opinion, a person who is disqualified to be a member of the Court-martial is also disqualified to be a Judge-advocate at such Court-martial. This matter appears to be not res-integra and this is already decided by t