J U D G M E N T

Sanjeev Kumar: J

1. This petition filed by one Mushtaq Ahmad Malik under Article 226 of the Constitution of India seeks to challenge an order and judgment dated 23rd April 2024 passed by the Armed Forces Tribunal, Regional Bench, Srinagar at Jammu [“the Tribunal”] in OA No. 235/2023 whereby the appeal filed by the petitioner against order of his conviction passed by Summary General Court Martial has been dismissed on the ground that it was not accompanied by a certified copy of the order.

2. The impugned judgment passed by the tribunal is challenged by the petitioner primarily on the ground that the proceedings of Summary General Court Martial were not supplied to the petitioner by the respondents by taking shelter under Rule 147 of the Army Rules 1954 [“the Rules”].

3. It is contended that the tribunal could not have insisted for certified copy of the order of conviction and sentence passed by Summary General Court Martial when the copy whereof was never supplied to the petitioner. Additionally, the petitioner has also thrown challenge to the constitutional validity of Rule 147-A on the ground that its provisions are violative of Article 14 and 21 of the Constitution of India and that the protection available under Article 33 of the Constitution is available to the Act/Acts of legislature and does not extend to subordinate legislation or the rules framed under the Army Act 1950 [“the Act”].

4. The writ petition is contested by respondents. It is submitted by respondents that in view of clear provisions of Rule 147-A, the copies of proceedings of Summary General Court Martial may be denied in a case where Central Government certifies that it is against the interest of security of the State or friendly relations with foreign States to supply a copy of the proceedings or any part thereof under Rule 147. It is thus submitted that in view of the aforementioned certificate issued by the Central Government, the petitioner was denied the copies of Summary General Court Martial proceedings. The copy of the certificate issued by the Central Government was supplied to the petitioner vide Communication dated 31st May 2023. The constitutionality of Rule 147-A is defended by placing reliance upon the provisions of Article 33 of the Constitution of India.

5. Having heard learned counsel for the parties and perused the material on record, we deem it appropriate to first set-out Rule 147 and 147-A of the rules hereinbelow:

147. Right of person tried to copies of proceedings:- [Every person tried by a Court-Martial (other than summary Court-Martial) shall, after the proceedings have been signed by the presiding officer and in the case of summary Court-Martial the officer holding the trial, and before they are destroyed, on a request made by such person in writing to the Court or the officer holding the trial or the person having the custody of his proceedings, be entitled for the supply of a copy of such proceedings, within a reasonable time and free of cost, including the proceedings upon revision, if any.]

[147-A. Copy of proceedings not to be given in certain cases:-Notwithstanding anything contained in rule 147, if the Central Government certifies that it is against for interests of the security of the State or friendly relations with foreign States to supply a copy of the proceedings or any part thereof under the said rule, he shall not be furnished with such copy:

Provided that if the Central Government is satisfied that the person demanding the copy is desirous of submitting a petition in accordance with the Act or instituting any action in a Court of law in relation to the finding or sentence, it shall permit inspection of the proceedings to such person or his legal adviser, if any, on the following conditions, namely:-

(a) the inspection shall be made at such times and such places as the Central Government or any authority authorised by it, may direct; and

(b) the person allowed to inspect the proceedings shall, before