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1999 Supreme(Cal) 215
High Court Of Calcutta
S. K. MUKHERJEE, AMITAVA LALA
MAJOR CHARANJIT SINGH GILL - Appellant
Versus
UNION OF INDIA - Respondent
M. A. T. 2181 Of 1997
Decided On : 04/26/1999
D.RAJAN, MIHIR CHAKRAVARTY, N.C.ROY CHAUDHARY, S.SINHA, SAMARJIT GUPTA
The disqualification for "sitting on a Court-Martial" applied to Judge Advocates as well as members of the Court Martial.
Headnote:
ARMY ACT - SECTION 129 - JUDGE ADVOCATE - INTERPRETATION - SCOPE AND AMBIT - DISQUALIFICATION - RULE 102 VIS-A-VIS RULE 39 (2) AND 40 (2) OF THE ARMY RULES, 1954 - DISTINCTION BETWEEN "SITTING ON A COURT-MARTIAL" AND "SERVING ON A COURT-MARTIAL" - MEANING AND APPLICABILITY - VALIDITY OF COURT-MARTIAL PROCEEDINGS.
Fact of the Case:
The appellant, a Major in the Indian Army, was charged with various offences under the Army Act, including absenting himself without leave and improperly walking out of the office of his Commanding Officer. A General Court Martial was convened to try the appellant, and he was found guilty of some of the charges. The appellant challenged the validity of the Court Martial proceedings on various grounds, including the appointment of a Judge Advocate who was lower in rank than the appellant.
Finding of the Court:
The Court held that the appointment of a Judge Advocate who was lower in rank than the appellant was invalid, and that this invalidity vitiated the entire Court Martial proceedings. The Court distinguished between "sitting on a Court-Martial" and "serving on a Court-Martial", holding that the disqualification for "sitting on a Court-Martial" applied to Judge Advocates as well as members of the Court Martial.
Issues: 1. Whether the appointment of a Judge Advocate who was lower in rank than the appellant was valid. 2. Whether the disqualification for "sitting on a Court-Martial" applied to Judge Advocates as well as members of the Court Martial.
Ratio Decidendi: 1. The Court held that the appointment of a Judge Advocate who was lower in rank than the appellant was invalid. The Court relied on Rule 102 of the Army Rules, 1954, which provides that an officer who is disqualified for sitting on a Court Martial shall be disqualified for acting as a Judge Advocate at that Court Martial. The Court held that the disqualification for "sitting on a Court-Martial" applied to Judge Advocates as well as members of the Court Martial, and that the Judge Advocate in the present case was therefore disqualified from acting as a Judge Advocate.
Final Decision: The Court allowed the appeal and set aside the order of the trial court and the entire Court-Martial proceedings.
( 1 ) THIS appeal is directed against the judgment and order passed by a single bench of this Hon'ble Court in dismissing the writ petition being C. O. No 7102 (w) of 1992.
( 2 ) IN short, the appellant/writ petitioner's case is that he became victim of personal vendetta of some senior army personnel.
( 3 ) ON 18th November, 1991 a charge-sheet was served upon the appellant which was endorsed by the General Officer Commanding,bengal Area. The charge-sheet reads as follows:
Charge Sheet
The accused, K-27342x substantive Major Charanjit Singh Gill, HQ Eastern Command, attached to 121 Inf Bn (TA), an officer holding a permanent Commission in Regular Army is charge with:-
ABSENTING HIMSELF WITHOUT LEAVE
in that he.
Frist Charge :- At Calcutta, while attached with 235 Inland water
Army Act :- Transport Operating Company, Engineers, absented
Section 39 (a) :- himself without leave from the unit lines from 27 Octto 29 Oct 90.
ABSENTING HIMSELF WITHOUT LEAVE
in that he.
Second Charge :- At Calcutta, while attached with 235
Inland water Army Act :- Transport Operating Company, Enginers, absented
Section 39 (a) :- himself without leave from the unit lines from 27 October 90 to 29 October 90.
ABSENTING HIMSELF WITHOUT LEAVE
in that he.
Third Charge :-At Calcutta, while attached with 235 Inland water
Army Act :-Transport Operating Company, Engineers, absented
Section 39 (a) :- himself without leave from the unit lines from 01 November 90 to 02 November 90.
ABSENTING HIMSELF WITHOUT LEAVE
in that he.
Fourth Charge :-At Calcutta, while attached wih 235 Inland water
Army Act :- Transport operating company, Engineers, absented
Section 39 (a) :- himself without leave from the Unit lines from 17 November 90 to 18 November 90
AN ACT PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE.
in that he,
Fifth Charge :-At Calcutta on 20 Nov 90, improperly walked out
Army Act :- of the office of his then Commanding Officer,
Section 63 :- IC- 28638l Lt Col R. K. Sharma of 235 Inland water Transport Operating Company Engineers, while the latter was holding preliminary hearing of the Charges against him.
Place : Calcutta- 53 (VS Negi)
Date : 18 November, 1991 Colonel Commanding Officer
121 Inf BN (TA)
( 4 ) IN all, the charges against the appellant is that he was absenting himself without leave for one day against first charge, for two days against 2nd charge, for one day against 3rd charge, for one day against 4th charge and for one day against 5th charge.
( 5 ) A General Court Martial was called upon by the General Officer Commanding, Bengal Area by an office order dated 23rd December, 1991.
( 6 ) THE composition of the Court Martial was one Colonel, three Lt. Colonels and one Major. Three officers being one Colonel and two Majors were prescribed as waiting members.
( 7 ) ONE Captain being an officer of the Headquarters, Eastern Command, holding the appointment of Deputy Assistant Judge Advocate General as Judge Advocate in this Court Martial.
( 8 ) THE petitioner was made guilty in respect of 1st, 2nd, 3rd and 5th charges but held not guilty in respect of 4th charge.
( 9 ) AS a result, whereof by an order dated 10th February, 1992 he was given sentence to forfeit six months of service for the purpose of promotion.
( 10 ) SUCH order, however, was passed subject to confirmation by the Confirming Authority in terms of section 153 of the Army Act.
( 11 ) ON 2nd May, 1992 in terms of section 160 of the Army Act the General Court Martial was directed to assemble for revision of the order passed in earlier occassion. Ultimately of 18th May,1992 General Court Martial reconsidered the sentence earlier awarded and revoked the same by passing a fresh sentence of dismissing the appellant from service.
( 12 ) THE fresh sentence was also announced as being subject to confirmation by the confirming Authority.
( 13 ) UNDER these circumstances, the appellant being writ petitioner invoked the writ jurisdiction of this court mainly for th
