Judicial review under Article 226 is applicable to court-martial proceedings, ensuring protection of fundamental rights and addressing jurisdictional errors.

JUDGMENT :

Neela Gokhale, J.

1. Rule. Rule made returnable forthwith. With the consent of parties, the matter is heard finally.

2. The Petitioner assails the Judgment and Order dated 17^th January2024 passed by the Armed Forces Tribunal, (‘AFT’) Mumbai Bench in Original Application (‘OA’) No. 227/2021 as well as the Judgment and Order dated 19^th March 2021 passed by the General Court Martial (‘GCM’) convened by the Respondent Army Authorities, to try the Petitioner for offences punishable under Section 69 of the Army Act 1950. (“AA”)

3. Section 69 of the AA provides for trial by Court Martial for commission of a civil offence and punishment as prescribed under the said provision. Section 3 (ii) of AA defines ‘civil offence’ to mean an offence which is triable by a criminal court. The Petitioner was thus, tried by the Court Martial for two charges under Section 69 AA, firstly, for allegedly committing aggravating sexual offence under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO”) and secondly, for allegedly committing sexual harassment under Section 12 of the same Act.

4. The alleged incident took place on 1^st February 2020. Summary of Evidence (‘SoE’) was taken down by the Commanding Officer, followed by issuance of a convening order dated 21^st January 2021 of the General Court Martial. Charges were framed. Post trial, the GCM returned a finding of guilt of the Petitioner. He was sentenced to the minimum punishment of 5 years imprisonment under relevant sections of POCSO. He was also sentenced to be cashiered from service. As per procedure, the Confirming Authority duly confirmed the findings of the Court Martial. Representation under Section 164(2) AA against the Finding and Sentence of the GCM was made on behalf of the Petitioner to the competent authority and was dismissed. The sentence was promulgated by the competent authority. The Petitioner challenged the Finding and Sentence of GCM before the AFT, Mumbai Bench by filing an OA, which was also dismissed by the AFT. It is this Judgment and Order which is assailed by the Petitioner in the present petition under Article 226 /227 of the Constitution of India.

5. Article 227 (4) takes away the power of superintendence of the High Court for matters emanating from court martial under Section 15 of the AFT Act. However, as affirmed by the Supreme Court in the matter of Union of India & Others vs Parashotam Dass, (2023) SCC Online SC 314 exerciseof powers of judicial review by the High Court under Article 226 is not diluted even for matters dealing with courts-martial. It is a settled position of law that the High Courts, under Article 226, have the power of judicial review even in respect of courts martial and the High Court can grant appropriate relief “if the assailed proceedings have resulted in denial of the fundamental rights guaranteed under Part III of the Constitution or if the said proceedings suffer from a jurisdictional error or any error of law apparent on the face of the record.” While dealing with the issue whether existence of provision of statutory appeal against the final decision or Order of AFT under Section 30 and 31 of the AFT Act, prohibits exercise of powers of judicial review by High Courts, pertaining to such orders, under their 226 jurisdiction, the Supreme Court in the Parashotam Das (supra) decision, held as under:

“28...To deny the High Court to correct any error which the Armed Forces Tribunal may fall into, even in exercising jurisdiction under Article 226, would be against the constitutional scheme. The first independent judicial scrutiny is only by the Armed Forces Tribunal. To say that in some matters, a judicial scrutiny would amount to a second appeal, would not be the correct way to look at it. What should be kept in mind is that in administrative jurisprudence, at least two independent judicial scrutinies should not be denied, in our view. A High Court Judge has immense experience. In any exercise of jurisdiction u