D.K. Seth, J.
1. By an order dated 11th December, 1998, the following points were formulated for decision, which are as follows :
'(i) Whether the alternative charge as indicated in the charge-sheet could be hit by the embargo set down by sub-rule (2) of Rule 43?
(ii) Whether there was satisfaction of the convening officer for convening district court martial or there was an order for convening court martial by the convening officer himself?
2. Supplementary affidavits have been filed by the respective parties bringing on record the amended provision of Rule 43, which provided that the order convening the court martial may be signed by a staff of the convening officer. But the said Rule was amended on 27th July. 1995and came into force on 12th August. 1995. Such amendment, admittedly, is prospective. Thus, the present court martial having been convened before the amendment was made, cannot be governed by the amended Rule 43.
3. Rule 43 of the Air Force Rules, 1969, before amendment provided as follows :
'43. Convening of general and district court martial.--(1) An officer before convening a general or district court martial shall satisfy himself that the charges to be tried by the Court are for offence within the meaning of the Act, and that the evidence Justifies a trial on those charges, and if not so satisfied, shall order the release of the accused, or refer the case to superior authority.
(2) He shall also satisfy himself that the case is a proper one to be tried by the description of court martial he proposes to convene.
(3) The officer convening a court martial shall appoint or detail the officers to form the Court, and may also appoint or detail such waiting officers as he thinks expedient. He may also, where he considers the services of an interpreter to be necessary, appoint or detail an interpreter to the Court.'
4. In order to convene a general or district court martial, the convening officer has to satisfy himself that the charges to be tried by the Court are offences within the meaning of the Act and that the evidence justifies the trial of those charges. The second satisfaction is with regard to the kind of Court which would try the offence.
5. In the present case, as contended by Mr. A.P. Shahi, the court martial was convened by the convening officer. But the order of convening court martial was not signed by him. The only point that was urged by Mr. Shahi was that since the order convening the courtmartial was not signed by the convening officer, therefore, the same is hit by Rule 43 to the extent that it does not specify that there was a satisfaction by the convening officer. It is urged by Mr. Shahi that there was no satisfaction by the convening officer before the court martial was-convened or that there was a failure of the convening officer to decide the description of the court martial, which he had proposed to convene. In other words, the contention of Mr. Shahi is to the extent that by reason of omission to sign the order, convention of the court martial by the officer convening it, he had not satisfied himself with regard to the description of the court martial he proposed to convene in order to try the case or put it precisely whether the case which was being set down for trial court could be tried by the description of the court martial sought to be convened or was it a case proper for being tried by the description of such court martial and thus hit by sub-rule (2) of Rule 53.
6. Mr. Sisir Kumar, learned counsel for the respondents, on the other hand contends that this question was assailed by the petitioner in an early writ proceedings being Writ Petition No. 8251 of 1985 since been disposed of on 21st February. 1985, which had travelled to the Supreme Court, where it was set aside and the matter was remanded for reconsideration and affirmation. According to Mr. Sisir Kumar, the scope of the Jurisdiction of this Court under Article 226 of the Constitution is confined only to the extent that is permissible under the orders of the Apex Court remanding the case and not beyond. Since it is only for confirmation, the Court cannot go beyond the merits of the case except the Justification of the order of confirmation. The question of irregularity with regard to the convening of the court martial cannot be gone into. He further contends that even if there are certain irregularities in the convening of the court martial unless there are palpable injustice affecting the merits of the case, the same cannot be interfered with in a writ Jurisdiction.According to him, the petitioner has not contended any infraction other than that in the process of the convening of the court martial. On these grounds, he prays that the petition should be dismissed. He had also relied on a few decisions, to which a reference shall be made at appropriate stage.
7. I have heard both the learned counsel at length.
8. So far as the question with regard to the limit and scope to which this Court had travelled after the order of the Apex Court is concerned, may be examined. As pointed out by Mr. Shahi the finding and sentence of court martial is not valid unless it is confirmed in view of Section 152 of the Air Force Act. 1950. Under Section 157, the confirming authority has the power to mitigate, remit or commute the sentence, which is not disputed by Mr. Shahi. Now after it is confirmed, a party aggrieved had a remedy as provided in Section 161. Relying on this provision, particularly, sub-section (1), Mr. Shahi submits that even if it is accepted that the scope of this writ petition is limited to the extent as are available within the frame work of the order passed by the Apex Court remanding the case for confirmation, then the scope can be scrutinized to the extent of sub-section (1) of Section 161, which includes a case with regard to the regularity of the proceeding to which the order relates. According to him, the regularity of the proceedings includes the irregularity in the convening of the court martial. Thus, in my view, the preliminary objection raised by Mr. Sishir Kumar cannot be sustained for the following reasons :
That whatever might be the finding in the earlier writ petition by this Court, the same does not bind the parties as soon the same was set aside by the Apex Court. As soon the judgment is set aside, the entire matter becomes open. By reason of the order passed by the Apex Court, the matter was remanded for reconsideration and confirmation to the extent of Section 161, read with Section 152. By reason of Section 152until it is confirmed, the entire matter becomes open with regard to all questions relating to the validity of the offence as well as that of the proceedings. Section 161, sub-section (1) describes the scope and Jurisdiction of the confirming authority as to what extent it can incise the proceeding of the court martial. It can examine the correctness, legality or propriety of the order passed. It can also examine the regularity of the proceedings. Thus, to the extent of examining the regularity of the proceeding, it is open to be gone into in these proceedings since the Apex Court had directed reconsideration and confirmation of the order within the meaning of subsection (1) of Section 161.
9. Mr. Sisir Kumar then contends that by reason of subsection (2) of Section 161 the petitioner having an alternative remedy, cannot maintain this petition.
10. Since the petition is pending for over long 10 years and affidavits have been exchanged, now at this stage it would not be fair to throw away the petition on the ground of alternative remedy, which is admittedly, available to the petitioner. In the case of L. Hirday Bank v. I.T.O.. : [1970]78ITR26(SC) , which has since been : followed by this Court in the case of Committee of Management Shri Ram Deo Sanskrit Mahavidyalaya, Berari, district Jaunpur v. Vice-Chancellor, Sampurnanand Sanskrit Vishwa-vidyalaya and others. 1991 (1) UPLBEC 300, it was so held. Therefore, having regard to the ratio decided in the said two decisions, I do not find any reason to throw away the petition on the ground of alternative remedy.
11. It appears that amended Rule 43 not being applicable, the order convening court martial is required to be signed by the convening officer as has been not done in the present case. Now it is to be examined as to whether such an irregularity affects the merit of the case to the extent that the petitioner has suffered injustice.
12. Admittedly, this is an irregularity but such an irregularity is a procedural irregularity. It is not contended that the petitioner was not given opportunity. Neither any ground was urged before this Court to the extent of infraction of any other formalities or that there was any other procedural irregularity. Neither it was contended that the petitioner was not given opportunity. It is also not pointed out that by reason of such irregularity, the petitioner was unable to defend himself or that he had suffered any prejudice or injustice.
13. Rule 43 in sub-rule (1) of the Air Force Rules. 1969, requires the first satisfaction of the convening officer with regard to the necessity of convening court martial and that the evidence on record Justified the trial of the charges and that the offence, which are sought to be tried are offence within the meaning of the Act.
14. So far these questions are concerned, they are being assailed. The other ground that has been advanced is with regard to the absence of signature in the order convening the court martial. It is urged that the convening officer did not satisfy himself with regard to the ingredients that are necessary to be gone into under sub-section (1).
15. On the question that the order having not been signed by the convening officer. It is hit by sub-rule (2) since there was no satisfaction of the officer as to what kind of court martial should be convened, Mr. Shahi had contended that the convening officer had not applied his mind to satisfy himself that the charges were offences within the meaning of the Act or that there was a case which requires to be tried by a court martial and that were sufficient evidence to justify the trial.
16. It is not necessary to go into those questions whether that officer had satisfied himself or not. But can be examined from the records of this case as to whether there are materials which may justify satisfaction of such officer or not. In other words, whether there arematerials to justify the presumption of the existence of the ingredients mentioned in sub-rules (1) and (2) respectively. Since the matter has travelled a long way and had a chequered history, therefore, the Court may intervene and examine the, record and enter into that question. Since the allegations are with regard to procedural irregularity, therefore, it may be examined by the Court as to whether it had in any way prejudiced the petitioner or had resulted in substantial injustice. Inasmuch as no one has a right with regard to the procedure. The procedure is handmaid of justice. If there is no infraction or injustice or if it appears that substantial Justice has been done, in that event procedural irregularity if does not affect the merits of the case and which will not prejudice the parties. It can be overlooked and may be examined as to whether there are sufficient ingredients to justify the initiation of the proceedings.
17. The irregularity that has been alleged is of such a nature which can safely come within the exceptions as discussed above and can be looked into by this Court and as such I propose to examine the same. The charges that have been levelled may be found in Annexure-II, which may be quoted as follows :
'The accused, 619328 Corporal Tiwari RNIAF/P of 13 Provost and security Unit. Air Force attached to Air Force Administrative College, Coimbatore, an airman of the regular air force is charged with :
FirstCharge
Committinga civil
Section 71
offence.that is to
AirForce Act. 1950.
saycommitting unnatural offence punishable Under Section 377 of the Indian Penal Code, In that he. at Colmbatore on 15thMarch, 1980. at about 1830 Hrs.,while on duty as Desk NCO of No. 13 P & S Unit, Inserted his penis Into the anus of Master SanjayKumar aged about 9 years son of 222446 JWO Singh SB AF/Flt.
SecondCharge Section 46(a) AirForce Act, 1950 (Alternative to First Charge)
Disgraceful conduct of an indecent kind in thathe. atColmbatore on 15th March. 1980 at about 1830 hrs. while on duty as Desk NCO of No. 13P & S Unit, placed his penis in the region of the exposed buttocks of Master Sanjay Kumar. aged about 9 years. Son of 222446 JWO Singh SB AF/ Fit,
Place:Coimbatore,Sd. N. Srinivasa
Date : 13th June
80 GopalanGroup Captain Officer Commanding Air Force. AdministrativeCollege.
To betried by District Court Martial.
Sd.
V. K. Naidu
Group Captain.
Senior Personnel
Staff Officer,
For Air Marshal,
Air Officer
Commanding-
In-Chlef.
TrainingCommand. 1AP
18. The charges show that it was signed by the convening officer but the order convening the court martial was signed by senior personnel staff officer. Thus, the very signature on the charge by the convening officer shows that it is looked into by him and thus there was satisfaction to that extent. Even if it is presumed that he had not satisfied himself after having examined the said charges and the evidence, this Court finds that there were sufficient ingredients to Justify satisfaction that the offence issuch which is to be tried by a court martial.
19. At the same time, the charges are also offence that fall under Section 71 of the said Act being an offence within the meaning of the Act. Thus, the materials available on record Justify the convening of the court martial under sub-rule (1) of Rule 43. Therefore, it is very difficult to accept the contention of Mr. Shahi that there was no application of mind of the convening officer. There being sufficient ground to justify the convening of the court martial under sub-rule (1) of Rule 43, it can be safely presumed that the convening officer had satisfied himself with regard thereto as soon as he signs the charge-sheet.
20. Now whether the infraction with regard to sub-rule (2) of Rule 43 will be such a fatal irregularity to prejudice the petitioner, is to be seen. Now since the convening officer had satisfied himself that court martial should be convened, then at least there is a proposition to the extent that the decision for trial by court martial can be supported. But what description of court martial should be convened, is a question, which is to be determined under sub-rule (2), which appears to have been signed by the Staff Officer, other than the convening officer. When it is decided that it should be tried by a court martial and what should be the description of the court martial, may not be fatal for the trial which may prejudice the petitioner causing serious injustice.
21. Be that as it may, the material that appeared from the charge-sheet justifies the grounds for satisfaction that the charges are required to be tried by one of the description of court martial. Therefore, absence of signature of the convening officer with regard to the description of the court martial would not be fatal as discussed hereinbefore so far this case is concerned. In my view, sub-rule (2) does not require that the order is to be signed by the convening officer himself. If the convening officer himself instructs his subordinate officer, in that event theorders signed by the said officer cannot be said to be without jurisdiction for rendering the whole procedure illegal. It may be irregularity but not an illegality to the extent of rendering the proceedings void or invalid. Since there are materials justifying the situation, therefore, this irregularity cannot be held to be fatal so as to declare the proceedings void, illegal or invalid.
22. There is nothing provided in the Act and the Rules that the order of confirmation has to be supported by reasons. But after having examined the records and the materials placed before this Court, I do not find that the order of confirmation though does not specify reason, is liable to be set aside. On the other hand the materials Justify the confirmation of the order.
23. Though Mr. Shahi had insisted that this Court should enter into the merits of the case but I am afraid that sitting in writ jurisdiction, this Court does not exercise the Jurisdiction of an appellate authority. It is only to be found out as to whether there is any illegality, irregularity or absence of Jurisdiction. After having gone through the materials. I am unable to find any perversity or infirmity to the extent that the order can be struck down on the ground of infirmity or illegality or irregularity. Even if this Court is of a different view, still then in absence of any illegality, irregularity or perversity, this Court cannot interfere with the order and substitute its own view.
24. In view of the observations made above. It is necessary to refer to the decisions cited by Mr. Sisir Kumar being Shivraman Nair. v. Union of India. MLJ 1997 SC (1) and Union of India v. Major A. Hussain, MLJ 1998 SC 18. Though, however, he sought to derive certain inspiration from the ratio decided in the said judgment that even if there are some materials in order to maintain discipline, the Courts may not intervene. Thus, there are some support, which can be derived from the decision in the case of Shivaraman Nair (supra).
25. In the case of Major Hussain. (supra) the Apex Court had found that there was no flagrant violation of any procedure. The said decision may not help us directly. But still then in this case, the irregularity of a proceeding is not a flagrant violation of the procedure and that the irregularity is not an illegality in the present case and as such, a little benefit may be derived from the decision in the said case to support the contention of Mr. Shisir Kumar.
26. Mr. Shahi had relied on a decision in the case of Saheb Dayal Sharma v. Union of India, 1987 L⁣ 843. This decision is exactly on the point, namely. Infraction of Rule 43, which has been held to be fatal. The facts of the said case would be had from the paragraph 7 of the said decision, which is quoted below :
'The main contention of the learned counsel for the petitioner in the present case is that respondent 3 was the convening authority and he did not take the decision to convene the district court martial and not were any orders issued by him framing the charges and nor was the district court martial convened by him. The learned counsel submits that under the Act and the Rules these actions have to be taken by the convening officer himself and a subordinate officer cannot act as an agent of the convening officer.'
27. Thus, in the said case, the facts were that the convening officer did not take the decision to convene the district court martial and that there was no order issued by him for framing the charges and neither the court martial was convened by him. In the present case, it is only the third ground that is existing as I have found above, namely, the court martial was not convened by him and that the charges were framed by him. Though, however, I had held that there are materials to presume that he had satisfied about the convening of the court martial, yet the same does not make any distinction with regard to the question that he had decided to convene the court martial. Thus, on facts the case isdistinguishable. Therefore, in absence of flagrant violation of the procedure that has been there in the decision in the case of Saheb Dayal Sharma (supra), the decision so rendered, cannot be attracted in view of the facts and circumstances of the present case, which is otherwise distinguishable. But then having regard to the proposition as I have held with due respect. I may not agree with the proposition to the extent in view of the distinguishable facts of this case to attract the ratio, as a whole, in the present case. Therefore, this decision does not help us. Nor does it help Mr. Shahi to advance his proposition to the extent of his submission.
28. In that view of the matter. I am not inclined to interfere with the order impugned.
The petition, therefore, falls and is accordingly dismissed. No cost.