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1985 Supreme(Cal) 438
High Court Of Calcutta
U. C. BANERJEE
AMAL SANKAR BHADURI - Appellant
Versus
UNION OF INDIA - Respondent
C. O. . Of 1985
Decided On : 12/24/1985
Headnote:
ARMED FORCES - JURISDICTION OF WRIT COURT - SUBJECT TO STRICTEST FORM OF DISCIPLINE - ARTICLE 33 OF THE CONSTITUTION - SAFEGUARDS UNDER PART III OF THE CONSTITUTION - ARMY PERSONNEL AS CITIZENS OF THE COUNTRY - ARTICLE 33 - SCOPE AND EXTENT - ARTICLE 226 OF THE CONSTITUTION - JURISDICTION OF HIGH COURT - ARTICLE 227(4) - NOT APPLICABLE TO ARTICLE 226 - COMPOSITION OF GENERAL COURT MARTIAL - SECTION 113 OF THE ARMY ACT - RULE 40 OF THE ARMY RULES - RANK - SUBSTANTIVE RANK - SECTION 17 OF THE GENERAL CLAUSES ACT - NOT APPLICABLE - NON-COMPLIANCE OF CONDITIONS PRECEDENT TO THE EXERCISE OF POWER CONVENING A COURT MARTIAL - RULE 37 OF THE ARMY RULES - SATISFACTION OF THE CONVENING OFFICER - INDEPENDENT APPLICATION OF MIND - RULE 458 OF THE DEFENCE SERVICES RULES - OPINION OF THE JUDGE ADVOCATE GENERAL - NOT CONCLUSIVE - JUDICIAL REVIEW - ARTICLES 14, 21 AND 32 OF THE CONSTITUTION - WRIT JURISDICTION - QUASHING OF CHARGE SHEET AND CONVENING ORDER.
Fact of the Case:
Petitioner, a Lt. Col. in the Army, was charged with three offences under the Army Act. He challenged the constitution of the General Court Martial on the ground that three out of its five members were of a lower substantive rank than that of the petitioner, in contravention of Rule 40(2) of the Army Rules. He also contended that the convening officer did not apply his mind independently and was satisfied with the opinion of the Assistant Judge Advocate General, which was not permissible under Rule 37(1) of the Army Rules. Further, he argued that there was no evidence to justify the charges against him.
Finding of the Court:
The Court held that the convening officer ought to have applied his mind independently and not on the basis of someone else's opinion. The Court also held that the evidence on record did not justify the charges against the petitioner. Therefore, the Court quashed the charge sheet and the order convening the General Court Martial.
Issues: 1. Whether the High Court has jurisdiction to entertain a writ petition challenging the constitution of a General Court Martial and the satisfaction of the convening officer under Rule 37(1) of the Army Rules? 2. Whether the members of a General Court Martial must be of a rank not lower than that of the officer being tried, as per Rule 40(2) of the Army Rules? 3. Whether the convening officer must apply his mind independently and not rely on the opinion of the Judge Advocate General, as per Rule 37(1) of the Army Rules? 4. Whether there was sufficient evidence to justify the charges against the petitioner.
Ratio Decidendi: 1. The High Court has jurisdiction to entertain a writ petition challenging the constitution of a General Court Martial and the satisfaction of the convening officer under Rule 37(1) of the Army Rules, as the power of superintendence under Article 226 of the Constitution is of very wide amplitude and is not restricted by Article 227(4). 2. The members of a General Court Martial must be of a rank not lower than that of the officer being tried, as per Rule 40(2) of the Army Rules. The definition of 'rank' in Rule 2(d)(ii) of the Army Rules does not apply to Rule 40(2), and the word 'rank' in Section 113 of the Army Act means substantive rank, not acting rank. 3. The convening officer must apply his mind independently and not rely on the opinion of the Judge Advocate General, as per Rule 37(1) of the Army Rules. The opinion of the Judge Advocate General is only for advice and cannot be used to satisfy the requirement of personal satisfaction under Rule 37(1). 4. There was no sufficient evidence to justify the charges against the petitioner.
Final Decision: The Court quashed the charge sheet and the order convening the General Court Martial.
( 1 ) AN interesting question as regards the jurisdiction of the writ Court in matters of Court Martial in General, falls for determination in this writ petition. While it is true that Army personnel ought to be subjected to strictest form of discipline and Article 33 of the Constitution has conferred powers on to the Parliament to abridge the rights conferred under Part III of the Constitution. In respect of the members of the Armed Forces, but does that mean and imply that the Army personnel would be denuded of the Constitutional privileges as guaranteed under the Constitution. Can it be said that the Army personnel form a class of citizens not entitled to the Constitution's benefits and are outside the purview of the Constitution. To answer above in the affirmative in my view, would be a violent departure to the wishes of. the framers of our Constitution. An Army Personnel is as much citizen as any other individual citizen of this country. At this juncture it would be worthwhile to refer to Article 33 of the Constitution. Article 33 has been engrafted in the Constitution to enable the Parliament by law to restrict the-rights as contained in Part III of the Constitution. The extent of restrictions necessary to be imposed on any of the fundamental rights in their application to the armed forces and the forces charged with the maintenance of public order for the purpose of ensuring proper discharge of their duties and maintenance of discipline among them would necessarily depend upon the prevailing situation at a given point of time and it would be inadvisable to encase it in a rigid statutory formula. The Constitution makers were obviously anxious that no more restrictions should be placed than are absolutely necessary for ensuring proper discharge of duties and the maintenance of discipline amongst the Armed Force Personnel and therefore Article 33 empowered the Parliament to restrict or abridge within permissible extent, the rights conferred under Part III of the Constitution in so far as the Armed Force Personnel are concerned. (In this context reference may he made to the decision of the Supreme Court in the case of B. Viswar and Ors. vs. Union of India and Ors. , reported in AIR 1983 S. D. 658 ). The Supreme Court in the case of Prithi Pal Singh vs. The Union of India reported in AIR 1982 SC 1413 observed :"it is one of the cardinal features of our Constitution that a person by enlisting in or entering Armed Forces does not cease to be a citizen so as to wholly deprive him of his rights under the Constitution. More so when this Court held in Sunil Patra vs. Delhi Administration (1979) 1 SCR 392 at page 495: (AIR 1978 SC 1675 at page 1727) that even prisoners deprived of personnel liberty are not wholly denuded of their fundamental rights. In the larger interest of national security and military discipline Parliament in its wisdom may restrict or abridge such rights in their application to the Armed Forces but this process should not be carried so far as to create a class of citizen not entitled to the benefits of liberal spirit of the Constitution. Persons subject to Army Act are citizens of this ancient land having feeling of belonging to the civilized community governed by the liberty oriented - Constitution. "
( 2 ) AT this stage it is convenient to deal with the other aspect of the matter as regards the maintainability of the petition under Article 226 of the Constitution as contended by the respondent, viz. , that the ban imposed by Article 227 (4) also applies to Article 226. At the outset it is to be noted that unlike Article 227, there is no express limitation in Article 226 itself excluding the power of Superintendence over Military Tribunal from the scope of that Article. It is now well settled that the Law Courts would not be justified in incorporating an expression or a word in a particular provision of the statute as it would be presumed that such omission has been effected by the I am ma
