ORDER
ANDMILITARY DISCIPLINE.In that he.Fifth Charge
Army Act
Section 63At Calcutta on 20 Nov 90, improperly walked out of the office of his then Commanding Officer, 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 Date : 18 November 1991. (VS Negi)
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 the purpose of quashing and setting aside the orders dated 23rd December, 1991, convening by the General Court Martial, imposing of the sentence by them by an order dated 2nd May, 1992 exercising the revisional jurisdiction and the order dated 19th May, 1992 revising the aforesaid initial sentence and dismissing the petitioner from service amongst other reliefs which are appeared to be consequential to the main prayer under the writ petition.
14. During the pendency of the writ petition an interim order was passed by this court whereby the respondents authorities restrained from taking any steps for confirming the finding and also from giving effect thereto and which was subsequently modified on 16th December, 1996 at the instance of the respondents by directing the General Court Martial to put up before the appropriate confirming authority for the appropriate orders and if the proceedings, finding and sentence be confirmed by the confirming authority, it shall be open to the petitioner to approach tills court again for such interim relief as available in accordance with law. It was also mentioned in the order that it shall be open to the petitioner to submit a pre-confirmation representation to the confirming Authority and 11 was directed that if such pre-confirmation representation was received in time, the confirming Authority, while processing, shall consider the same on its merits.
15. The confirming Authority, however, passed an order on 17th December, 1996 confirming the sentence on revision as passed by the General Court Martial.
16. It is to be remembered that the aforesaid two dates being 16th December, 1996 when the earlier interim order passed by this court was modified and the subsequent date being 17th December, 1996 when the confirming Authority confirmed the sentence given by the General Court Martial on revision are very important. Surprisingly the revisional order was confirmed by the confirming Authority hurriedly and on the following day of modification of the interim order.
17. The appellant/ writ petitioner amongst others challenged the validity and legality as also the correctness of the proceedings in the various manners.
18. However, upon hearing the writ petitioner as well as the respondents authority a single Bench of this Hon'ble Court was pleased to dismiss the writ petition without any order of costs, Prayer for stay was sought for which was refused.
19. Ultimately the appeal was preferred before this court from such order of dismissal of writ petition on various grounds which are as follows:
1. The appointment of the Respondent No. 7, Captain Arun Vasheshta as Judge-Advocate for the Court Martial of the petitioner Major C.S. Gill was invalid. Therefore, the Court Martial is invalid and void ab initto;
2. The G O C Bengal Area was not the Confirming Authority by reason of para 472 of the Defence Service Regulations as amended in 1989 and therefore the order dated 2.5.92 directing revision of the sentence passed by the Court Martial, purporting to have been passed by him as the confirming Authority under section 160 of the Army Act is without Jurisdiction and consequently the said order and all subsequent proceedings are bad to law:
3. The A-3 warrant issued to the G.O.C. Bengal Area purporting to authorise him to act as the confirming Authority is only applicable to officers under the command of the G.O.C.Bengal Area. The petitioner was under the command of the G.O.C. in-C Eastern Command, and was not under the Command of G.O.C. Bengal Area. Therefore the order dated 2.5.92 in respect of the petitioner passed by the G.O.C. Bengal Area as the confirming Authority is bad in law;
3A. The A-1 warrant issued to the G.O.C. Bengal Area in exercise of power under section 109 of the Army Act, authorises him to convene a Court Martial in respect of persons under his command. It did not empower him to convene a Court Martial in respect of the petitioner, who was not under the Command of the G.O.C. Bengal Area. Therefore the order dated 23.12.91 convening the General Court Martial against the petitioner is without Jurisdiction and bad in law and renders the entire proceedings void ab initio;
4. The order dated 2.5.92 directing revision of the sentence alone is bad in law because revision of sentence could only be directed after confirmation of the findings of the Court Martial, which was not done;
5. The participation of the Judge-Advocate in the Court Martial after it reassembled for the revision of the sentence, and the order dated 2.5.92 in so far as it gave liberty to the Judge-Advocate to give a further summing-up on the matters, if he considered it necessary, are ultra vires the Army Act and Rules. Such participation was also violative of rule 105(8), and caused serious prejudice to the petitioner,
6. The G.C.M, in revoking the earlier sentence passed by it and subsequently the order for dismissal, by the order of the G.C.M. dated 19.5.92 did not exercise its independent discretion but acted at the dictation of the G.O.C. Bengal Area;
7. The order passed by G.C.M. on 19.5.92, is bad in law;
8. The order of confirmation dated 17.12.96 was in violation of the order passed by this Hon'ble Court on 16.12.96 directing the army authorities to give an opportunity to make a pre-confirmation representation. A reasonable opportunity of making such representation was denied;
9. The sentence of dismissal passed by the G.C.M on 19.5.92 and the confirmation thereof by the order dated 17.12.96 are bad because the punishment awarded was wholly disproportionate with the triviality of the offences alleged to have been committed by the petitioner:
10. The petitioner was victimised by the Army Authorities, right from the beginning.
20. Mr. Dipankar Ghosh, learned senior counsel with able assistance of Mr. Samarjit Gupta and Mr. Sitesh Sinha, learned counsels, in elaborating the summarised point No.1, contended that the Judge-Advocate appointed herein was in the rank of a Captain, which is lower rank than the rank of a Major/ Appellant herein tried by the Court Martial. Therefore under rule 40(2) of the Army Rules, 1954 will be applicable in the present case disqualifying such person to act as a Judge-Advocate. Therefore, Court Martial held in presence of such Judge-Advocate became void ab initio.
21. Under Rule 102 of the Army Rules, 1954 an officer who is disqualified for sitting on a Court Martial shall be disqualified for acting as a Judge-Advocate at that Court Martial. Even if Rule 103 of the Army Rules, 1954 speaks that a Court Martial shall not be invalid merely by reasons of any invalidity in the appointment of the Judge-Advocate officiating threat, if he is a fit person and subject to subsequent approval of his appointment has been obtained from the Judge-Advocate General or the Deputy Judge-Advocate General. It has been contended that neither the Judge-Advocate is a fit person nor a subsequent approval of his appointment obtained from the Judge-Advocate General or the Deputy Judge-Advocate General. Therefore, in all, the illegal appointment of the Judge-Advocate is totally invalidated the Court Martial Proceeding.
22. The single Bench of this court, while considering the writ petition regarding the point of appointment of Judge-Advocate held that Rule 39 and 40 of the Army Rules, 1954 speak about the composition of the members of the Court Martial and their ineligibilty and disqualifications. The aforesaid rules do not apply for the purpose of Judge-Advocate not being a member of the Court Martial. It was held therein that Rule 102 which deals with the disqualification of Judge-Advocate has a direct relation with regard to Rule 39 because it speaks a Judge-Advocate, being art 'Officer' who is disqualified for sitting a Court Martial shall be disqualified for acting as a Judge-Advocate at that Court Martial. The word 'Officer' also provided in Rules, 1954. It is not the case of the petitioner that the Judge-Advocate suffered from any disqualification as mentioned under Rule 39. Therefore, it cannot be held that he disqualified to act as a Judge-Advocate,
23. The appellant contended that such inference of the single Bench is manifestly erroneous since there is a distinction in between the words ' sitting on a Court Martial' occurring in Rule 102 and the words 'serving on a Court Martial' occurring in Rule 39 of the Army Rules, 1954, these two expressions cannot be equated. 'sitting on a Court Martial' apply only to the members of the court whose duty and function is to try the accused officer. The words 'serving on a Court Martial' referred to a much larger body which includes not only the members but also other officers discharging duties other than the members. If this court takes the rule of oath ofthe members it will be seen that such administration of oath will be made under Rule 45 wherein in case of Judge-Advocate and other officers under Rule 46 of the Army Rules, 1954.
24. Secondly the disqualification indicated under Rule 39(2) in respect of the officers serving on a Court Martial are disqualifications with reference to personal qualifications of such officers and not disqualifications arising out of the rank held by such officers. It is apparent that the object of the Rule 39(a) to (e) is to ensure eligibility and impartiality of the officers of the Court Martial.
25. The appellant contended that Rule 102 does not refer to Rule 39(2) expressly or by necessary implication. Rule 102 does not speak of disqualification of officers 'serving on a Court Martial'. On the contrary, Rule 102 speaks disqualification of officers 'sitting on a Court Martial'. Therefore, in coming to provision of Rule 40(2) about disqualification of the members of a Court Martial does not necessarily mean not to the extent of appointment of Judge-Advocate but to the extent of members of the Court Martial alone. 'Serving on a Court Martial' and 'sitting on a Court Martial' are two distinct features which we can also found from Rule 41(1) (c) and also Rule 41(2). Rule 41(2) categorically specifies that the Judge-Advocate was duly appointed and is not disqualified for 'sitting on a Court Martial'. Therefore, the conclusion of the single Bench of this court is erroneous if the Rule 102 envisaged the applicability of Rule 39(2), Rule 102 would have been redundant and wholly unnecessary. The appointment of Judge-Advocate would have been invalid by way of Rule 39 alone.
26. Mr. N.C. Roy Chowhury, learned senior counsel with able assistance of Mr. Mihir Chakraborty, learned counsel joined issue therein. He reiterated the observation of the learned single Judge by saying that the Judge-Advocate is a distinct entity of 'members' of a Court Martial. His duty is laid down in Rule 105 of Army Rules, 1954. He is merely a legal advisor to the court and he represents Judge-Advocate General and maintains an impartial position. Judge Advocate is not involved in the decision making process and has no footing rights in taking decision by Court Martial. The oath of the members and Judge-Advocate are different. Rule 39 (2) of the Army Rules, 1954 lays down disqualifications in respect of an 'officer' serving at a General or District Court Martial. These disqualifications are absolute and cannot be rectified by anyone. There is only this Rule which lays down disqualifications for officers either member or Judge-Advocate. By virtue of Rule 102 these disqualifications are also applicable to Judge-Advocate.
27. These disqualifications are in respect of a particular court Martial and not for every Court Martial since the Court Martial is an ad hoc body. The investigations are also not carried out by one particular authority but by any officer detailed for the said purpose in the particular case, thus making officer disqualified for 'that Court Martial' and not every Court Martial.
28. Rule 40 lays down the composition of Court Martial as far as only members of Court Martial are concerned.
29. Following important features are necessary for the purpose of coming to the true meaning as per the respondents herein :
(a) Due to Rule 102 the disqualifications laid down under Rule 39are applicable to Judge-Advocate;
(b) Section 103 prescribes for the rank;
(c) Section 113 lays down restriction as to the 'rank' of members of General Court Martial wherein section 129 does not lays down any restrictions as to rank of Judge Advocate;
(d) Army Rule 40 enunciates the principle of ethos of service that Junior shall not ordinarily try his seniors. Judge-Advocate does not. 'try' the accused but merely represents Judge-Advocate General to ensure that proceedings are carried out according to law;
(e) Disqualifications under Rule 39 are absolute and seniority of rank is not the disqualification. The provision of Rule 39 cannot be incorporated in the rule by interpretation;
(f) Judge-Advocate General Department is headed by one Major General and six Brigediers. There are 43 Lt. General in Army. For argument sake if the principle is accepted then in case of trial of Lt. General that who will act as Judge-Advocate in such trial?
(g) The rank is not the disqualifications. Rule 41(c) deals with satisfaction by the court as to eligibility and disqualification of members, Rule 42(2) deals with satisfaction as to appointment and disqualification of judge-Advocate. There is no mention of satisflcationof 'rank' as to Judge-Advocate.
30. In support of the contention as above Mr. Roy Chowdhury cited two decisions one being 1983 Cr.LJ NOC 109 (Delhi) (Trilochan Joshi and Ors. v. Union of India and Ors.) to establish that a Judge Advocate is merely a legal advisor to the court and at Court Martial he represents Judge-Advocat General and maintains an impartial position, He also cited another judgment being 1971(1) SLR 717 (Major Manohar Lal v. The Union of India through the Secretary to Gout, of India, Ministry of Defence, New Delhi & Anr.) with regard to applicability of Rule 40(2) of the Army Rules, 1954. By citing this judgment he tried to establish that Rule 40(2) of the Army Rules, 1954 is not mandatory. To that score this court found that the reported Judgment goes against the argument advanced by the respondents and also observation of the single Bench of this court from which the appeal has been preferred because the pith and substance of the holding of the single Bench as against the appellant herein and also analysis of the respondents that Judge-Advocate is not a 'member' of the Court Martial but an 'officer' and, therefore, cannot be enquated with the member and cannot try the issue but only to represent the Judge-Advocate General.
31. The petitioner also took the plea that the Judge-Advocate may not sit in the revision because he has no role to play after the original proceeding of the General Court Martial is over. The single Bench held to that extent that section 160(2) of the Army Act has an answer to that extent herein it has prescribed that the court, on revision, shall consist of the same officers as were present when the original decision was placed, unless any of those officers are unavoidably absent.
32. We have carefuly considered the argument advanced by the parties. Before going to any other question we feel it is expedient that this questionhas to be answered with its proper prospective since it touches the maintainability of the General Court Martial as held and prosecuted the appellant/writ petitioner.
33. Under these circumstances, first of all, we have to take into account the meaing of the 'Judge-Advocate'. It appears section 129 of the Army Act, 1950 provides for the same and which is as follows :
'129. Judge Advocate--Every General Court-Martial shall, and every district or summary General Court-Martial may be attended by a Judge Advocate, who shall be either an officer belonging to the department of the Judge Advocate General or if no such officer is available, an officer approved of by the Judge Advocate General or any of his deputies.'
34. Legal luminaries have discussed about the meaning an object by the post being 'Judge Advocate', it was considered that presently the title 'Judge Advocate' is misleading. Often people think that 'Judge Advocate' besides in the advisor to the court is also an Advocate to the prosecutor. Lord Cranworth gave a description of the post in 1864 by calling 'Judex Advocatus', a Judge called to assist the court though forming no constituent part of it. The term 'Advocate' may thus be a corruption of 'Advocatus' used in Lord Cranworth's sense. Now, in Britain as well as India, the prosecutor is a different official quite distinct from the 'Judge Advocate'. In order to avoid confusion, it is advisable that the title of Judge Advocate should be suitably modified.
35. Judge Advocate is a very important functionary at a Court Martial. This Officer has been styled by McArthur 'the primum mobile'. Adye described him as 'the mainspring of a Court-Martial if he errs, all may go wrong'. It is imperative that the officer appointed as Judge Advocate is professionally competent, fair and well-versed in Army Act, Rules, Regulations, Orders and Customs pertaining to the service. It is also desirable that he should be conversant with the law of the land.
36. Upon any point of law or procedure which arises upon the trial, the court should be guided by the opinion of the Judge Advocate, which should not be disregarded except for very weighty reasons. The court is responsible for the legality of its decisions but it must consider the grave consequences which may result from its disregard' of the advice of the Judge Advocate on any legal point. If a Court Martial acting without jurisdiction or in excess of jurisdiction, convicts an officer, JCO or other rank, the members of the court may be held liable for damages in a civil court and such liability, or at least the amount of damages, may depend upon the question whether they exercised a bona fide Judgment, and the fact that they accepted the advice of the Judge Advocate, even if such advice was held to be wrong, might practically exonerate the members from liability. Permission to call and question withnesses should never be refused to Judge Advocate unless the court considers that he is acting improperly or in such a manner as to obstruct the proceedings. The court should record reasons for refusing the permission.
37. Presence of Judge-Advocate at General Court Martial is a legal necessity and his non-attendances threat will invalidate the proceedings.
38. A Court-Matrial in absence of Judge Advocate shall not proceed and shall adjourn.
39. Invalidity in the appointment of Judge Advocate does not vitiate the trial provided a fit person has been appointed and subsequent approval of Judge Advocate General or Deputy Judge Advocate General has been obtained.
40. An officer who is disqualified for sitting on a Court Matrial, shall be disqualified for acting as a Judge Advocate at the Court Martial.
41. Therefore, we can understand from the illustrations as given by the legal luminaries as to the scope and ambit of the work of the Judge Advocate. The crux of the observation is that a Judge Advocate is a Judge called to assist the court though forming no constituent part of it and his presence is a legal necessity wherein his absence will invalidate the proceedings. Keeping eyes on the aforementioned observations now we have to consider the scope and ambit of the rules being 102 vis-a-vis 39 (2) and 40(2) of the Army Rules, 1954. It is undisputed that disqualification for 'sitting on a Court Martial' and disqualification for 'Serving on a Court-Martial' are two distinct and different feature. 'Serving on a Court-Martial' is a general proposition applicable in each and every Court-Martial but disqualification as to 'sitting on a Court-Martial' means the particular Court-Martial which sits is disqualified for proceeding resultant viod ab initio verdict.
42. Under such circumstances, 'sitting on a Court-Martial' as a specific face value in this aspect.
43. Rule 40 of the Army Rules, 1954 as regards to the composition of the Court-Martial has to be read in its totality without giving a specific emphasis with regard to any sub-rule thereunder. 'Composition of Court-Martial' does not necessarily mean 'composition of the members of the Court-Martial' alone but it has its wide amplitude specially in respect of a 'Judge Advocate' if we go by the meaning that a Judge Advocate is a Judge called to assist the court though forming no constituent part of it and is a legal necessity in absence of its proceedings will be invalidated. If we took the view than the view taken by the respondents that Judge Advocate does not 'try the case' cannot be acceptable by this court, in fact, Judge Advocate tries and tries for the members of the Court-Martial which is a legal necessity.
44. Under these circumstances, it cannot be said that principles of ethos of service that the Junior shall not ordinarily try for seniors cannot be also acceptable by the court
45. The respondent authories have taken us to a decision of a single Bench of Punjab & Haryana High Court reported in 1971(1) SLR 717 (Major Monohar Lal v. The Union of India through the Secretary to Government of India, Ministry of Defence, New Delhi & Anr.) to establish that Army Rule 40(2) is not mandatory even to the extent of members of the Court-Martial. If it is so, such rule should not be read, as argued by the respondents themselves that there is no scope or interpretation of the rules. Moreover as because the oath are taken differently and the composition of the Judge Advocate Department is made differently only upto the rank of Major General and Brigadiers. We cannot hold good in favour of the authorities. On the contrary, we say that in the way of advancement of judicial processAct and Rules in respect or Army has also to be advanced, modernised, regularised, disciplined and flexible. No doubt discipline is a criteria in the Military Law but when the Court-Martial made for performing judicial functions it should act properly with the help of the proper Judge Advocate so that Judicial discipline in the military should not be trambled.
46. However, without deciding any other point we are of the view that a Judge Advocate being lower in rank to an accused officer should not be able to take part in the General Court-Martial proceedings for the above reason.
47. Therefore, this appeal is allowed. We set aside the order of the trial court and ultimately the entire Court-Martial proceedings as held in the manner described herein.
No order is passed as to costs.
However, this will not prevent the authorities concerned to initiate fresh Court-Martial proceedings, if any, if they are so advised, in accordance with law and also in the light of the Judgment delivered herein.
S.K. Mookherjee, A.C.J.
48. I agree with the conclusion.
The Court Prayer for stay is granted for three weeks from date.
On the prayer made by Mr. Gupta, we direct the respondents to make payment of the admitted dues of the appellant according to law and according to Rules governing his case and such payment and receipt there of will be without prejudice to the rights and contentions of the parties. Such payment be made within a period of 10 days from this date.
Xeroxed certified copy, if applied for, be delivered within seven days from the date of deposit of the requisite stamps and folios.
49. Appeal allowed