2009(4) ALL MR 38
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BILAL NAZKI AND V.K. TAHILRAMANI, JJ.

I.C. 38180X Ex Lt. Col. Sunil Issar Vs. Presiding Officer, Court Of Inquiry, Major General, D. P. Segal & Ors.

Writ Petition No.5293 of 2000

20th April, 2009

Petitioner Counsel: Mr. J. SHEKHAR,J. Shekhar
Respondent Counsel: Smt. S. V. BHARUCHA,Shri. D. A. DUBEY

Army Rules (1954), Rr.39, 40, 102 - Ineligibility and disqualification of Officers for Court-martial - A person who is disqualified to be a member of court-martial, held, is also disqualified to be a Judge-Advocate at such court-martial. JT 2000(5) SC 135 - Ref. to. (Para 5)

Cases Cited:
Union of India Vs. Charanjeet S. Gill, JT 2000(5) SC 135 [Para 5]


JUDGMENT

BILAL NAZKI, J.:- 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 It appears that the Petitioner challenged the order by way of Writ Petition earlier which was withdrawn by the Petitioner on the ground that he would approach the Chief of the Army Staff.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 the Supreme Court in Union of India and Anr. Vs. Charanjeet S. Gill and Ors.; Judgment Today 2000(5) SC 135. After analysing the relevant Rules and referring to earlier judgments as to the role of Judge-advocate in a Court-martial, the Supreme Court observed in para no.16 as under :

"16. In view of what has been noticed hereinabove, it is apparent that if a 'fit person' is not appointed as a Judge-Advocate, the proceedings of the court-martial cannot be held to be valid and its finding legally arrived at. Such an invalidity in appointing an 'unfit' person as a Judge-Advocate is not curable under Rule 103 of the Rules. If a fit person possessing requisite qualifications and otherwise eligible to form part of the general court-martial is appointed as a Judge-Advocate and ultimately some invalidity is found in his appointment, the proceedings of the court-martial cannot be declared invalid. A 'fit person' mentioned in Rule 103 is referable to Rules 39 and 40. It is contended by Shri. Rawal, learned ASG that a person fit to be appointed as a Judge-Advocate is such officer who does not suffer from any ineligibility or disqualification in terms of Rule 39 alone. It is further contended that Rule 40 does not refer to disqualifications. We cannot agree with this general proposition made on behalf of the appellant inasmuch as Sub-rule (2) of Rule 40 specifically provides that members of a court-martial for trial of an officer should be of a rank not lower than that of the officer facing the trial unless such officer is not available regarding which specific opinion is required to be recorded in the convening order. Rule 102 unambiguously provides that "an officer who is disqualified for sitting on a court-martial shall be disqualified for acting as a Judge-Advocate in a court-martial". A combined reading of Rules 39, 40 and 102 suggest officer who is disqualified to be a part of court-martial is also disqualified acting and sitting as a Judge-Advocate at the court-martial. It follows, therefore, that if an officer lower in rank than the officer facing the trial cannot become a part of the court-martial, the officer of such rank would be disqualified for acting as a Judge-Advocate at the trial before a GCM. Accepting a plea to the contrary, would be invalidating the legal bar imposed upon the composition of the court in Sub-rule (2) of Rule 40."

6. The learned counsel for the Respondent submits that this judgment would not be applicable to the facts of the present case because the Court-martial was concluded on 6.1.2000 and the judgment of the Supreme Court was pronounced on 24.4.2000. Such an argument was made before the Supreme Court. In this case also, the Army had been following the practice of appointing the Judge-Advocates who were in certain cases junior to the officers who were facing trial. But the Supreme Court while applying the de-facto doctrine came to the conclusion that the cases which were already concluded on the date when the Supreme Court passed the judgment, could not be reopened. Therefore, the learned counsel for the Respondent submits that the present case would fall in those cases where the de-facto doctrine would apply. This argument cannot be accepted as this argument was also answered by the Supreme Court. In para 25 of the judgment of the Supreme Court, Supreme Court stated that proceedings of any Court-martial if already challenged on this ground and or pending adjudication in any Court in the country, would however, be not governed by the principles of de-facto doctrine. No pending petition shall however, be permitted to be amended to incorporate the plea regarding ineligibility and disqualification of the Judge-Advocate on the ground of appointment being contrary to the mandatory Rule 40(2) of the Army Rules. Therefore, we are of the view that the bar created under the Supreme Court judgment would not apply to the case of the Petitioner as he filed Writ Petition after 6.1.2000 which was withdrawn with liberty to approach the Chief of the Army Staff. The Chief of the Army Staff disposed of the appeal and thereafter, this Writ Petition was filed. For these reasons and following the aforesaid judgment of the Supreme Court, we feel that this petition deserves to be allowed.

7. Petition is accordingly allowed. The orders impugned, are quashed and the punishment is set aside. Respondents are directed to give consequential reliefs to the Petitioner.

Petition allowed.