http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13

CASE NO.:

Appeal (crl.) 821 of 2001

PETITIONER:

UNION OF INDIA AND ORS.

RESPONDENT:

SHIVENDRA BIKARAM SINGH

DATE OF JUDGMENT: 24/04/2003

BENCH:

N. SANTOSH HEGDE & B.P. SINGH

JUDGMENT:

JUDGMENT

2003 (3) SCR 881

The Judgment of the Court was delivered by

B.P. SINGH, J. In this appeal by special leave the Union of India has

impugned the judgment and order of the High Court of Bombay at Goa dated

May 2, 2001 in Criminal Writ Petition No. 3 of 2001 whereby the High Court

allowing the writ petition filed under Article 226 of the Constitution of

India quashed the order of the Court Martial dated 4th September, 2000

which found the respondent guilty of the offences under sections 497, 452

and 325 of the Indian Penal Code read with Section 77(2) of the Navy Act,

1957 (hereinafter referred to as 'the Act') and the order of the Chief of

the Naval Staff dated 8th January, 2001 passed under Section 162 of the Act

as also the order of the Chief of the Naval Staff dated January 31, 2001

passed under Section 163 of the Act. After going through the evidence on

record it also recorded a finding that there was no legal evidence to

support the order of conviction and, therefore, gave to the respondent the

benefit of doubt.

The facts of the case so far as they are relevant for the disposal of this

appeal are :-

The respondent was an officer of the Indian Navy and at the relevant time

was serving as a Lieutenant posted in Goa. He was tried by a Court Martial

for offences under sections 497, 506,452 and 325 of the Indian Penal Code

read with Section 77(2) of the Act. The Court Marital found the respondent

guilty of the offences under sections 497, 452 and 325 of the Indian Penal

Code read with Section 77(2) of the Act and ordered the respondent to be

kept in rigorous imprisonment for a term of 24 calendar months as a Class-1

prisoner; to be dismissed with disgrace from the Naval service and to

suffer consequential penalties involved. The Chief of the Naval Staff in

exercise of his power under Section 163 of the Act modified the sentence

awarded to the respondent and ordered that the respondent be kept in

rigorous imprisonment as a Class-I prisoner for a period of 12 calendar

months and that he be dismissed from Naval service and shall suffer the

consequential penalties involved. The respondent submitted a petition on

December 4, 2000 under Section 162 of the Act with a request to set aside

the findings and sentence awarded to him by the Court Martial, but the same

was rejected by the Chief of the Naval Staff by his order dated January 31,

2001.

The order of conviction and sentence passed by the Court Martial as well as

the orders of the Chief of the Naval Staff in exercise of powers under

sections 162 and 163 of the Act were challenged before the High Court by

the respondent by filing a writ petition under Article 226 of the

Constitution of India. The challenge to the aforesaid orders was on several

grounds. It was submitted before the High Court that the members of the

Court Martial had not been appointed in conformity with Section 97 of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13

Act. Three of the Members of the Court Martial were incompetent to act as

impartial Judges and the objection raised by the respondent in this regard

was disposed of by the Trial Judge Advocate, without reference to the

members of the Court Martial, in gross violation of the mandatory

provisions contained in Section 102 of the Act. As a result grave prejudice

was caused to the respondent and there was serious miscarriage of justice

by such officers continuing as members of the Court Martial to try him. The

order of Court Martial was also challenged on the ground of its failure to

record reasons for the conclusions reached by it. It was also submitted

that the offences for which the respondent was tried were ordinarily

offences which could have been tried by an ordinary criminal court and,

therefore, trial by Court Martial was not justified.

On the other hand the Union of India contended that the Court Martial had

been properly constituted and it had scrupulously observed provisions of

the Act and recorded a finding of guilt against the respondent. It was not

required to record reasons for its conclusions and its findings were,

therefore, not vitiated for this reason. The objection raised by the

respondent against the inclusion of three officers as members of the Court

Martial was duly considered by the trial Judge Advocate who rejected the

objection as regards two of the officers, while the objection against the

third officer was considered by the members of the Court Martial and was

ultimately rejected. The trial Judge Advocate exercised his power to reject

such an objection in accordance with the provisions of Section 102 of the

Act. No irregularity was committed by him. The proceedings before the Court

Martial were conducted scrupulously in accordance with law and no

illegality had been committed which either resulted in serious prejudice to

the respondent or in miscarriage of justice. The writ court, therefore, had

no jurisdiction to interfere with the impugned orders. It was also the case

of the Union of India that the offences for which the respondent was tried

while serving as a naval officer were triable by the Court Martial. The

respondent had, therefore, not made out a case for interference with the

order of the Court Martial as well as the orders passed under Sections 162

and 163 of the Act having regard to the parameters of judicial interference

in matters of this nature.

The High Court first considered the scope of its writ jurisdiction in such

matters and the parameters of judicial interference. It considered the

judgments of this Court in Union of India and others vs. Himmat Singh

Chahar : (1999) 4 SCC 521 ; Lt. Col. Prithi Pal Singh Bedi vs. Union of

India and others : AIR 1982 SC 1413 and Union of India and others vs. Major

A. Hussain : (1998) 1 SCC 537 and held that though the Court Martial

proceedings are subject to judicial review by the High Court in exercise of

its writ jurisdiction, the Court Martial is not subject to the

superintendence of the High Court under Article 227 of the Constitution. In

exercise of its jurisdiction the High Court will not minutely examine the

record of the Court Martial as if it was sitting in appeal. If the Court

Martial has been properly convened, and there is no challenge to its

composition, and the proceedings are in accordance with the procedure

prescribed, the High Court, or for that matter any Court, must stay its

hand. Proceedings of a Court Martial are not to be compared with the

proceedings in a criminal court under the Code of Criminal Procedure since

these proceedings remain to a significant degree, a specialized part of

overall mechanism by which military discipline is preserved. The Court

Martial discharges judicial function and the procedure prescribed provide

for a fair trial to the accused. Therefore, unless it is shown that

prejudice has been caused or mandatory provisions have been violated, the

High Court should not allow the challenge to validity of the conviction and

sentence of the accused when evidence is sufficient.

Bearing the above principles in mind the High Court proceeded to consider

the other submissions advanced before it. It rejected the submission that

non-recording of reasons in support of the conclusion reached by the Court

Martial vitiated the order. Relying upon the judgment of this Court in S.N.

Mukherjee v. Union of India, AIR (1990) SC 1984 it was held that the Court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13

Martial is not required to record reasons for the conclusion reached by it

while recording a conviction. It also rejected the contention urged on

behalf of the respondent that the Court Martial was not duly constituted

inasmuch as the majority of members of the Court Martial did not belong to

the executive branch of the Naval service as required by Section 97 (10) of

the Act. It accepted the submission urged on behalf of the Union that all

the officers who were members of the Court Martial were Executive Officers

which was supported by a Notification issued in this regard. The

submission, that the constitution of the Court Martial was not constituted

in conformity with the mandate of sub-section (16) of Section 97 of the Act

since it had to be constituted by the peers of the respondent, namely the

Lieutenants, and not by the Commanders, especially when the President was

Acting Captain, was also rejected. It was held that on a plain reading of

sub-sections (17) of Section 97, the mere fact that the members of the

Court Martial were higher in rank to the petitioner, did not render the

constitution of the Court Martial infirm.

The crucial question raised before the High Court was with regard to the

manner in which, and the person by whom, objection raised by the respondent

with regard to the competency of two members of the Court Martial to act as

impartial judges was rejected. It is not in dispute that the respondent

objected to three members of the Court Martial on the ground of their

competency to act as impartial judges. The members objected to were Captain

Rajiv Girotra, President, and a Member Cdr. Suresh Mehta. The objection of

the respondent was rejected by the trial Judge Advocate without referring

the objection to the members of the Court Martial for decision. The

objection as against the third member, namely Cdr. Narayan was referred to

all the members of the Court Martial excluding Cdr. Narayan, but the

objection was ultimately rejected. The High Court held that on a plain

reading of Section 102 of the Act the trial Judge Advocate had no

jurisdiction to dispose of an objection summarily which related to the

competency of a member of the Court Martial to act as an impartial member.

In the interest of fairness the Act envisages that the objection with

regard to any member of the Court Martial must be dealt with at the

threshold. The objection to any member of the Court regarding his

competency to act as an impartial judge, must be referred to the members of

the Court and disposed of in accordance with the procedure laid down in

that section. At that stage any other objection, which did not relate to

the capacity of the member to act as an impartial Judge had to be rejected

by the trial Judge Advocate. Other objections, if any, were to be dealt

with under section 103 of the Act. The language of section 102 of the Act

clearly postulates that when an objection is taken against any member on

the ground of his incompetency to act as an impartial judge, the trial

Judge Advocate must stay his hand and is obliged to refer the same to the

members of the Court Martial for deciding the same in the manner provided

for by section 102 of the Act. This provision is in the nature of an

opportunity being offered to the concerned member against whom such a

ground is urged to recuse himself, in view of the allegations made. The

trial Judge Advocate had no jurisdiction to summarily reject such an

objection without referring the same to the members. It would amount to

rewriting the said provision if it was to be held that the trial Judge

Advocate must in the first instance examine the objection himself, as to

whether the ground about the competency to act as impartial judge is made

out or not. The summary rejection of the objection with regard to Captain

Rajiv Girotra and Cdr. Suresh Mehta was, therefore, not in accordance with

the procedure prescribed by law, and there was a clear breach of the

mandatory provision relating to procedure of Court Martial, which

undoubtedly caused gross miscarriage of justice to the respondent.

Accordingly it held that the constitution of the Court Martial itself

become susceptible to serious challenge on account of incompetency of

Captain Rajiv Girotra (President) and Cdr. Suresh, Member to act as

impartial judges. Since the Court Martial was not duly constituted in

accordance with law, all subsequent steps taken by such a Court Martial

were nullity and non-est in the eye of law. It further held that even the

objection with regard to Cdr. Narayan, which was referred to the members of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13

the Court Martial and was rejected, was not disposed of in accordance with

law. The reason was that Captain Rajiv Girotra and Cdr. Suresh Mehta

continued to participate as members of the Court Martial and participated

in the proceeding when the objection against Cdr. Narayan was referred to

the Court Martial. Having regard to the procedure prescribed by section 102

of the Act, the continued participation of Captain Rajiv Girotra and Cdr.

Suresh Mehta, without consideration of objection against them in accordance

with law, vitiated the proceeding of the Court Marital even in regard to

the consideration of the objection against Cdr. Narayan.

The High Court, therefore, held that the writ petition must succeed on the

sole ground of non-compliance of mandatory provisions of law while

considering the objection regarding incompetency of Captain Rajiv Girotra

and Cdr. Suresh Mehta to act as impartial judges, relying on the

observations of this Court in Ranjit Thakur v. Union of India and Ors., AIR

(1987) SC 2386 wherein it was held that participation of the objected

members in the Court Martial rendered the proceedings coram non judice.

The High Court observed that in view of its above finding it was

unnecessary to examine the other contentions but since the parties had

addressed the Court at length on all points, it proceeded to deal with

other submissions as well.

It rejected the submission urged on behalf of the respondent that the Court

Martial had no jurisdiction to try the respondent for the offences with

which he was charged. It held that the respondent being a person subject to

Naval Law, even though the offences of which he was charged were civil

offences, he could be tried and punished under the provisions of the Navy

Act regardless of where the offences were committed. Reference to section

78(2) of the Act was also of no assistance to the respondent because the

offence under section 497 of the Indian Penal Code was quite distinct from

an offence of rape under section 376 of the Indian Penal Code, and section

78(2) of the Act was confined in its application to the offences of murder,

culpable homicide not amounting to murder and rape.

The High Court was then persuaded to consider the evidence on record for

finding out whether there was any legal evidence to convict the respondent

of the offences with which he was charged. Considering the offence under

section 497 of the Indian Penal Code the High Court found that the

prosecution had miserably failed to establish the factum of marriage and

its legality and, therefore, the first ingredient of the offence was not

established. Similarly having scrutinized the evidence on record for the

limited purpose whether there was any legal evidence to sustain the

conviction, the High Court held that having regard to the totality of

circumstances it would be wholly unsafe to record the finding of guilt

against the respondent for the offences under sections 452 and 355 of the

Indian Penal Code. The High Court observed that it had not re-appreciated

the evidence as such, or made any attempt to find out sufficiency or

adequacy of evidence, but on wading through the evidence it found that

there was no legal evidence to support the charges and, therefore, the

respondent should be given the benefit of doubt. With these findings, the

High Court allowed the writ petition and quashed the impugned orders.

Shri Anup G. Chaudhary, senior counsel appearing on behalf of the Union of

India submitted that on a fair reading of section 102 of the Act it must be

held that the trial Judge Advocate has power to reject summarily an

objection raised by the accused against inclusion of any member in the

Court Martial even if it was related to his competency to act as an

impartial judge. He emphasized the fact that under section 114 of the Act

the trial Judge Advocate exercises powers which are judicial in nature and,

therefore, section 102 must be understood in the background of the nature

of judicial functions performed by the trial Judge Advocate. It was,

therefore, open to the trial Judge Advocate to consider the objection and

if he was of the opinion that the ground challenging the competency of the

concerned officer to act as an impartial judge did not have merit, he could

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13

reject the same summarily. Only those objections, which raised grounds

worth considering had to be referred to the Court Martial for its decision.

He, therefore, submitted that the High Court had wrongly relied on the

observations made by this Court in Ranjit Thakur's case (supra). According

to him the principles laid down therein were wholly inapplicable to the

case in hand, because in that case this Court had considered the provisions

of the Army Act, particularly Section 130 thereof which is quite different

from Section 102 of the Act. He, therefore, supported the ruling of the

trial Judge Advocate rejecting the objection of the respondent to two

members of the Court Martial on the ground of their not being competent to

act as impartial Judges. In the alternative it is submitted that in any

case there was sufficient evidence on record to support the conviction, and

the High Court was, therefore, not justified in law in appreciating the

evidence on record and reaching the conclusion that the respondent was

entitled to benefit of doubt. It is further contended that the respondent

having submitted himself to trial and the defect if any, not being of such

a nature as to vitiate the trial, it must be held that the respondent had

waived his objection against membership of two of the officers in the Court

Martial. According to him. If the respondent was aggrieved by the ruling of

the trial Judge Advocate, he could have challenged his ruling by filing a

writ petition. He having not done so, it amount to a waiver and, therefore,

he could not be permitted to urge that ground in support of the writ

petition.

Shri Arun B. Saharya, senior advocate appearing on behalf of the respondent

submitted that the trial Judge Advocate was clearly in error in rejecting

the objection raised by the respondent under section 102 of the Act having

regard to the clear language of the section. Any objection relating to a

member of the Court Martial on a ground which affected his competency to

act as an impartial judge had to be decided by the members of the Court

Martial and not by the trial Judge Advocate. He took us to the scheme of

the Act in support of his submission. He further submitted that though the

trial Judge Advocate performs functions which are judicial in nature, his

role becomes relevant only after the trial commences, as is evident from

section 114 of the Act, and the trial does not commence till such time as

the objection under section 102 are disposed of and the President and every

Member of the Court Martial is administered the oath or affirmation as

mandated by section 104 of the Act and the plea of the accused on the

charges is recorded under section 105. That stage was never reached in this

case because the objections were not disposed of in accordance with the

procedure laid down under section 102 of the Act. Moreover the provisions

of the Act further clarify that the function of the trial Judge Advocate is

only to advice the Court Martial and not to decide such issues.

On the question of waiver he submitted that it implies a conscious giving

up of a right. In the facts of this case it is apparent that the respondent

never waived his right to object to the membership of three of the officers

in the Court Martial. He initially urged this submission before the High

Court when he first filed the writ petition, which was dismissed as pre-

mature since he had not availed of the remedies under sections 162 and 163

of the Act. Thereafter, he also urged this objection in his petition filed

under section 162 of the Act and finally the point was specifically urged

before the High Court in the instant writ petition out of which the present

appeal arises. He submitted that the respondent was not expected to

challenge every ruling given by the trial Judge Advocate, and it was only

appropriate that he permitted the trial to continue and then challenged the

verdict of the Court Martial on the ground of glaring illegalities and

breach of mandatory provisions of law which not only caused prejudice to

the respondent, but also resulted in serious miscarriage of justice. He

further urged before us that even though it is not permissible to the High

Court to exercise its writ jurisdiction to appreciate the evidence on

record in the same manner as the High Court may do in a criminal appeal

before it exercising appellate jurisdiction, the verdict of the Court

Martial can certainly be challenged in writ jurisdiction if the High Court

is satisfied that there is no legal evidence whatsoever to support the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13

charges levelled against the accused. He emphasized that in doing so the

High Court was not expected to scrutinize the evidence with a view to

finding out whether there was sufficient evidence to record the conviction,

but only to find out if there was any legally admissible evidence at all,

which could support the finding recorded by the Court Martial. Therefore,

not the sufficiency, but the existence of relevant material, was what the

High Court was entitled to look for in a case of this nature, and that is

precisely what the High Court has done in this case. He, therefore,

supported the finding recorded by the High Court that there was no evidence

whatsoever to support the charges levelled against the respondent and,

therefore, he was entitled to the benefit of doubt.

In reply Shri Anup G. Chaudhary submitted that even if this Court comes to

the conclusion that there had been violation of mandatory provisions of

section 102 of the Act and that the violation resulted in prejudice to the

respondent and serious miscarriage of justice, this Court should direct the

trial to commence from the stage of section 101 of the Act. This was, of

course, subject to his contention that, in the facts and circumstances of

this case, the finding recorded by the Court Martial should be affirmed.

It would be beneficial to notice a few provisions of the Navy Act, 1957,

which would disclose the scheme of the Act and the procedure to be followed

in a Court Martial proceedings.

Section 93 provides that an offence triable under the Act may be tried and

punished by court-martial. Section 97 provides that court-marital shall be

constituted and convened, subject to the provisions of the sub-sections to

Section 97, by the President, the Chief of the Naval Staff, or any officer

empowered in this behalf by commission from the Chief of the Naval Staff.

Sub-section (6) thereof provides that a court-martial shall consist of not

less than five and not more than nine officers. Sub-sections (7) to (22)

lay down the qualifications of the officers entitled to sit as a member of

the court-martial and other details relating to the constitution of a

court-martial. Section 99 lays down that every court-martial shall be

attended by a person referred to as the trial Judge Advocate who shall be

either a Judge Advocate in the department of the Judge Advocate General of

the Navy or any fit person appointed by the convening officer. Sub-section

(2) provides that the trial Judge Advocate shall administer oath to every

witness at the trial and shall perform such other duties as are provided in

the Act and as may be prescribed. Sections 101 to 103 are of considerable

significance in this case and they are, therefore, reproduced for sake of

convenience :-

"101. Commencement of proceedings. - (1) As soon as the Court has been

assembled the accused shall be brought before it and the prosecutor, the

person or persons, if any defending the accused and the audience admitted.

(2) Except where the accused defends himself, he may be defended by such

person or persons as may be prescribed.

(3) The trial Judge Advocate shall read out the warrant for assembling the

court and the names of officers who are exempted from attending under sub-

section (20) of section 97 together with the reasons for such exemption.

(4) The trial Judge Advocate shall read out the names of the officers

composing the court and shall ask the prosecutor whether he objects to any

of them.

(5) If the prosecutor shall have made no objection or after any objection

made by the prosecutor has been disposed of, the trial Judge Advocate shall

ask the accused if he objects to any member of the court. 102.Objections to

members. - The following provisions shall apply to the disposal of

objections raised by the prosecutor as well as the accused :-

(a) any member may be objected to on a ground which affects his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13

competency to act as an impartial judge; and the trial Judge Advocate may

reject summarily without reference to the members of the court any

objection not made on such grounds;

(b) objections to members shall be decided separately, those to the

officer lowest in rank being taken first : provided that if the objection

is to the president, such objection shall be decided first and all the

other members whether objected to or not shall vote as to the disposal of

the objection;

(c) on an objection being allowed by one-half or more of the Officers

entitled to decide the objection, the member objected to shall at once

retire and his place shall be filled up before an objection against another

member is taken up;

(d) should the president be objected to and the objection be allowed,

the court shall adjourn until a new president has been appointed by the

convening authority or by the officer empowered in this behalf by the

convening authority; and

(e) should a member be objected to on the ground of being summoned as a

witness, and should it be found that the objection has been made in good

faith and that the officer is to give evidence as to facts and not merely

as to character, the objection shall be allowed.

103. Further objections. - (1) The trial Judge Advocate shall then ask the

accused whether he has any further objection to make respecting the

constitution of the court; and should the accused raise any such objection,

it shall then be decided by the court, which decision shall be final and

the constitution of the court-martial shall not be afterwards impeached and

it shall be deemed in all respects to have been duly constituted.

(2) If the accused should have no further objection to make to the

constitution of the court or if any objection is disallowed, the members

and the trial Judge Advocate shall then make an oath or affirmation in the

form set out in section 104.

These provisions lay down the manner in which the proceedings commence

before the Court Martial and the objections, which are to be considered

even before the trial begins. These provisions, therefore, apply at the

pre-trial stage. After the provisions of sections 101 to 103 are complied

with, the President and every member of the Court Martial is required to be

administered an oath or affirmation in the form and manner prescribed by

section 104 of the Act. Thereafter under section 105 when the court is

ready to commence the trial, the trial Judge Advocate is required to read

out the charges and ask the accused whether he pleads guilty or not guilty.

If he pleads guilty and the court accepts the plea, it shall be recorded as

a finding of the court and the court shall proceed to take steps to pass

sentence unless there are other charges to be tried in which event the

sentence shall be deferred until after the findings on such charges are

given. If the accused pleads not guilty or refuses to, or does not, plead

or if he claims to be tried, the court shall proceed to try the accused.

Section 113 provides that when the case for the defence and the

prosecutor's reply, if any, are concluded, the trial Judge Advocate shall

proceed to sum up in open court the evidence for the prosecution and the

defence and lay down the law by which the court is to be guided. Section

114 lays down the duties of the trial Judge Advocate at such trial. It is

the duty of a trial Judge Advocate to decide at the trial all questions of

law arising in the course of the trial, and specially all questions as to

the relevancy of facts which it is proposed to prove and the admissibility

of evidence or the propriety of the questions asked by or on behalf of the

parties; and in his discretion to prevent the production of inadmissible

evidence whether it is or is not objected to by the parties. Under section

115 it is the duty of the court to decide which view of the facts is true

and then arrive at the finding, which under such view ought to be arrived

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13

at. Under section 116 after the trial Judge Advocate has finished his

summing up, the court is to be cleared to consider the finding. The trial

Judge Advocate shall not sit with the court when the court is considering

the finding and no person shall speak to or hold any communication with the

court while the court is considering the finding. Thereafter under section

117 the court is required to reassemble and the President shall inform the

trial Judge Advocate in open court what is the finding of the court as

ascertained in accordance with section 124.

It will thus appear that the steps taken before the stage is reached under

section 104 of the Act for administering oath or affirmation to the

President and the Members of the Court Martial, are taken at the pre-trial

stage. Though the proceedings commence before the Court Martial for

compliance of the requirements of sections 101, 102 and 103 of the Act, the

trial commences only after the President and the members of the Court

Martial are administered oath as required by section 104 of the Act and the

accused is produced before the Court Martial. Sub-section (3) of Section

101 directs the trial Judge Advocate to read out the warrant for assembling

the court and the names of officers who are exempted from attending

together with the reasons for such exemption. After the warrant is read

out, the trial judge is required to read out the names of the officers

composing the court. It shall then ask the prosecutor whether he objects to

any of them. If any objection is made by the prosecutor the same has to be

disposed of. However, if the prosecutor has no objection, the trial Judge

Advocate shall ask the accused if he objects to any member of the court.

It would thus appear that before the trial commences, objections to

membership of the Court have to be considered with a view to ensure

fairness of trial and to avoid charge of bias against any of the members of

the Court Martial. Section 102 lays down the provisions, which shall apply

to the disposal of objections raised by the prosecutor as well as the

accused. Clause (a) provides that any member may be objected on a ground,

which affects his competency to act as an impartial judge, and the trial

Judge Advocate may reject summarily without reference to the members of the

court any objection not made on such ground. Clauses (b) to (e) lay down

the procedure to be followed by the members of the Court Martial while

considering such objections.

Section 103 refers to further objections. Clause (a) of section 103 begins

with the words "'the trial judge advocate shall then ask the accused

whether he has any further objections to make respecting the constitution

of the court". If the accused raises any such objection, that is required

to be decided by the court, which decision shall be final and the

constitution of the court martial shall not be afterwards impeached, and it

shall be deemed in all respects to have been duly constituted. In case the

accused has no further objection to make or the objection made is

disallowed, the members and the trial Judge Advocate shall then make an

oath or affirmation in the form set out in section 104. From the scheme of

these sections it is quite apparent that before the trial commences, all

objections to the constitution of the Court Martial must be considered and

decided. Section 102 is confined to an objection on the ground, which

affects the competency of the President or a member of the Court Martial to

act as an impartial Judge. As would be clear from a reading of this section

as a whole it does not provide for the consideration of any other objection

at that stage. The section that follows i.e. section 103 refers to any

further objection respecting the constitution of the Court Martial. It is,

therefore, open to the accused to raise further objections on other grounds

respecting the constitution of the Court Martial, and for this purpose he

may urge the ground of breach of any or the provisions of the sub-sections

of section 97 of the Act, or any other objection which he has respecting

the constitution of the Court Martial. These objections have to be decided

under section 103 by the Court Martial, which must mean all the members of

the Court Martial, who are entitled to sit as a Court after the disposal of

objections, if any, under section 102 of the Act.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13

We then come back to section 102 of the Act, particularly clause (a)

thereof. The real controversy in the instant case is the nature of

authority exercised by the trial Judge Advocate to reject summarily,

without reference to the members of the Court Martial any objection not

made on a ground, which affects the competency of a member to act as an

impartial judge. While the respondent contends that all objections made on

a ground which affects the competency of a member to act as an impartial

judge have to be decided in accordance with the procedure laid down in

clauses (b) to (e) of section 102, according to the appellant it is open to

the trial Judge Advocate to reject summarily even an objection to a member

on the ground which affects his competency to act as an impartial judge. It

is contended that even if the ground urged, though it affects the

competency of a member to act as an impartial judge, the trial Judge

Advocate may reject the same if he finds no merit in it.

We are inclined to accept the contention put forth by the respondent.

Clause (a) of section 102 is in two parts. The first part refers to any

objection against a member on the ground, which affects his competency to

act as an impartial judge. The second part deals with the authority of the

trial Judge Advocate to reject summarily without reference to the members

of the court "any objection not made on such grounds". It was not disputed

before us that if there was a valid ground urged affecting the competency

of a member to act as an impartial judge, the same has to be decided in

accordance with the procedure laid down under clauses (b), (c), (d) and (e)

of section 102. The first part of clause (a) enables the prosecutor and the

accused to raise an objection of the nature specified. The second part of

clause (a) only empowers the trial Judge Advocate to reject summarily any

objection not made on such grounds. To us it appears that the clear

intention of the legislature was that at the stage of section 102 only the

objections relating to membership of the court martial on a ground

affecting the competency of any member to act as a court martial are

required to be considered. Every other objection regarding constitution of

the court martial on other grounds has to be considered later, and that is

what is provided by section 103 of the Act. All grounds other than the

ground which affects the competency of a member to act as an impartial

judge, is required to be decided by the court, and no discretion is left

with the trial Judge Advocate. Reading the two provisions together the

scheme of the Act appears to be that in the first instance the court has to

consider whether any of its member is disentitled to sit as a member of the

court martial on the ground that he is not competent to act as an impartial

judge. No other objection is to be entertained at this stage. Therefore,

when an objection to any member is raised on a ground other than the

ground, which affects his competency to act as an impartial judge, the

trial Judge Advocate is authorized to reject the same summarily without

reference to the members of the court martial. But if any member is

objected to on the ground, which affects his competency to act as an

impartial judge, the trial Judge Advocate has no discretion in the matter

and he must place the matter before the court, which must consider the

objection in accordance with the procedure laid down in clauses (b) to (e)

of section 102. Whether there is any merit in the objection, is not a

matter to be considered by the trial Judge Advocate, since he is not vested

with the jurisdiction to decide such objections. That power has to be

exercised by the court itself. The only authority that is given to the

trial Judge Advocate under clause (a) of section 102 is to reject at that

stage all other objections without reference to the members of the court

martial which are not on a ground which affects the competency of a member

to act as an impartial judge. This is because such other objections may be

considered later after the constitution of the court is first finalized

after disposal of objections to membership of the court martial on the

ground, which affects the competency of any member to act as an impartial

judge. The scheme of the Act, therefore, is to provide for two stages at

which the objections to the constitution of the court martial have to be

considered. Section 102 clarifies that at that stage only those objections

have to be considered which proceed on a ground, which affects the

competency of any member to act as an impartial judge. All other objections

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13

to the constitution of the court have to be considered after the objections

on the grounds specified in clause (a) of section 102 of the Act are

disposed of. Those other objections have to be disposed of in the manner

laid down under section 103 of the Act.

The High Court has taken the same view as we have taken of the provisions

of sections 102 and 103 of the Act. The trial Judge Advocate, in the

instant case, rejected summarily the objection taken by the respondent to

the membership of two of the officers, while the objection against the

third officer was rejected by the court itself. Having perused the minutes

of the trial Judge Advocate it cannot be said that the ground on which the

objection was taken was not one, which affected the concerned member to act

as an impartial judge. The objection as against the President of the Court,

namely Captain Rajiv Girotra was that he was a course-mate of Cdr. Baijal,

with whose wife the respondent was alleged to have had adulterous

connections. Similar objection was taken to the membership of Cdr. Suresh

Mehta that he was the course-mate of the complainant. It would thus appear

that the respondent objected to their membership on a ground, which

affected their competency to act as an impartial judge. The question

whether the objection was sustainable or not, was a question which had to

be decided by the members of the court martial in accordance with the

provisions of clauses (b) to (e) of section 102. Instead of following the

procedure laid down by the aforesaid sub-sections, the trial Judge Advocate

usurped the jurisdiction of the court and rejected summarily the objection

of the respondent after going through the material on record, holding that

the objections were not sustainable. In doing so he clearly over stepped

the limitations of his jurisdiction and decided a matter which the court

alone, and not he, was empowered to decide. The question whether the ground

is substantiated by material brought on record is a question, which relates

to the merit of the objection. The respondent may be able to substantiate

the ground urged by him or he may fail to do so. In that event his

objection may be rejected by the members of the court martial but that is

not to say that the ground on which objection was taken did not affect the

competency of a member to act as an impartial judge. The jurisdiction of

the trial Judge Advocate under clause (a) of section 102 is limited to the

extent of finding out whether the objection is on the ground specified in

the first part of clause (a). If it was such a ground, then regardless of

its merit, the objection had to be decided by the court martial in

accordance with the procedure laid down in that section. If it was not such

a ground as specified in the first part of section 102, it was then his

discretion to summarily reject the same. The words of the section are "may

reject summarily" which is indicative of a discretion vested in him. That

is because if the objection is an objection respecting the constitution of

the court, but not on the ground specified in clause (a) of section 102,

then he may rather than dismissing the objection reserve it for

consideration after the objections under sections 102 are disposed of and

the objections under sections 103 are taken up for consideration.

We are, therefore, in agreement with the High Court that the trial Judge

Advocate exceeded his jurisdiction under clause (a) of section 102 of the

Act and because of his erroneous exercise of jurisdiction the objections

relating to the constitution of the Court Martial remained undecided by the

competent authority, and yet the members of the Court Martial proceeded

with the trial and found the respondent guilty. This was done in breach of

a mandatory provision of section 102 of the Act. Non-compliance of the

mandatory provision of section 102 is an infirmity which goes to the root

of the jurisdiction and without more, vitiates the proceedings. It was so

held by the court in Ranjit Thakur's case (supra) where the Court

considering a similar provision, though under the Army Act, observed :-

"The procedural safeguards contemplated in the Act must be considered in

the context of and corresponding to the plenitude of the summary

jurisdiction of the Court-Martial and the severity of the consequences that

visit the person subject to that jurisdiction. The procedural safeguards

should be commensurate with the sweep of the powers. The wider the power,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13

the greater the need for the restraint in its exercise and correspondingly,

more liberal the construction of the procedural safeguards envisaged by the

Statute. The oft quoted words of Frankfurther, J. in Vitarelli v. Seaton,

359 US 535 are again worth recalling:

".....If dismissal from employment is based on a defined procedure, even

though generous beyond the requirements that bind such agency, that

procedure must be scrupulously observed.......This judicially evolved rule

of administrative law is now firmly established and, if I may add, rightly

so. He that takes the procedural sword shall perish with that sword."

What emerges, therefore, is that in the present case there is a non-

compliance with the mandate of S.130 with the attention consequence that

the proceedings of the Summary Court-Martial are rendered infirm in law."

This Court referred to similar observations made in Lt. Col. Prithi Pal

Singh Bedi v. Union of India, AIR (1982) SC 1413 where this Court

observed:-

".....Whenever an objection is taken it has to be recorded. In order to

ensure that anyone objected to does not participate in disposing of the

objection.....

......This is a mandatory requirement because the officer objected to

cannot participate in the decision disposing of the objection.

.....The provision conferring a right on the accused to object to a member

of the Court Martial sitting as a member and participating in the trial

ensures that a charge of bias can be made and investigated against

individual members composing the Court - Martial. This is pre-eminently a

rational provision which goes a long way to ensure a fair trial."

On the question of bias, the Court in Ranjit Thakur's case (supra) observed

thus :-

"The second limb of the contention is as to the effect of the alleged bias

on the part of respondent 4. The test of real likelihood of bias is whether

a reasonable person, in possession of relevant information, would have

thought that bias was likely and is whether respondent 4 was likely to be

disposed to decide the matter only in a particular way.

It is the essence of a judgment that it is made after due observance of the

judicial process; that the Court or Tribunal passing it observes, at least

the minimal requirements of natural justice is composed of impartial

persons acting fairly and without bias and in good faith. A judgment which

is the result of bias or want of impartiality is a nullity and the trial

'coram non judice'. (See Vassiliades v. Vassiliades, AIR (1945) PC 38."

In Union of India and Ors v. Major A. Hussain, [1998] 1 SCC 537, while

dealing with the parameters of judicial review and interference with Court-

Martial proceedings this Court observed :-

"23. Though court-martial proceedings are subject to judicial review by the

High Court under Article 226 of the Constitution, the court-martial is not

subject to the superintendence of the High Court under

Article 227 of the Constitution. If a court-martial has been properly

convened and there is no challenge to its composition and the proceedings

are in accordance with the procedure prescribed, the High Court or for that

matter any court must stay its hands."

(emphasis supplied)

To the same effect are the observations in Union of India v. Himmat Singh

Chahar, [1999] 4 SCC 521. It was said, while considering provisions of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13

Navy Act, 1957 :-

"4. Since the entire procedure is provided in the Act itself and the Act

also provides for a further consideration by the Chief of the Naval Staff

and then by the Union Government then ordinarily there should be a finality

to the findings arrived at by the competent authority in the court-martial

proceedings. It is of course true and notwithstanding the finality attached

to the orders of the competent authority in the court- martial proceedings

the High Court is entitled to exercise its power of judicial review by

invoking jurisdiction under Article 226 but that would be for a limited

purpose of finding out whether there has been infraction of any mandatory

provisions of the Act prescribing the procedure which has caused gross

miscarriage of justice or for finding out that whether there has been

violation of the principles of natural justice which vitiates the entire

proceedings or that the authority exercising the jurisdiction had not been

vested with jurisdiction under the Act."

Learned counsel for the appellant submitted that except one, the aforesaid

decisions were rendered while considering the provisions of Section 130 of

the Army Act, which is differently worded. It may be that section 130 of

the Army Act is differently worded, but that will not make any difference

to the application of the principles laid down by this Court in the

aforesaid decisions. Section 130 of the Army Act as well as section 102 of

the Navy Act relate to the objection to the inclusion of any officer as

member of the Court Martial. It may be that the procedure prescribed is not

identical, though similar, but if the provision is mandatory in nature and

there is non-compliance with that provision, the consequences will be the

same. We, therefore, hold that non-compliance with section 102 of the Navy

Act has vitiated the proceedings before the Court Martial.

This takes us to the second submission urged on behalf of the appellant

that the respondent has waived his right to raise such objection since he

did not challenge the ruling of the trial Judge Advocate by filing a writ

petition before the High Court. We find no merit in this submission because

it is not expected of an accused to challenge every ruling in the course of

a trial as that would unnecessarily protract the trial, something, which is

not encouraged by the courts. He raised that objection in his petition

under section 162 of the Act and thereafter raised the same objection in

the instant writ petition from which this appeal arises. It cannot,

therefore, be said that he waived his right to raise this objection merely

because he did not challenge the ruling of the trial Judge Advocate

immediately after it was given at an intermediate stage of the proceedings.

We, however, find considerable force in the submission urged on behalf of

the appellant that having found that there was a breach of mandatory

provision of the Act which vitiated the proceedings before the Court

Martial, the High Court was not justified in considering the evidence on

record even for the limited purpose of discovering whether there was any

legal evidence to sustain the charges. Counsel for the respondent on the

other hand submitted that it was within the power of judicial review of the

High Court to quash an order of conviction recorded by the Court Martial if

it came to the conclusion that the finding of the Court Martial was

perverse as there was no legal evidence whatsoever to support the

conviction. In our view, in the facts and circumstances of this case this

question had become academic once it was found that the proceedings before

the Court Martial were vitiated on account of non-compliance with the

provisions of section 102 of the Act. If the very constitution of the Court

Martial was not in accordance with law, then any proceedings taken before

such an improper Court Martial was a nullity as far as the trial is

concerned. As a consequence, the evidence recorded before such a Court

Martial had no sanctity in law and, therefore, did not deserve any further

consideration.

We, therefore, set aside the finding recorded by the High Court that there

was no legal evidence whatsoever to support the charges levelled against

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13

the respondent and that he was entitled to benefit of doubt. The findings

of the High Court on other questions are affirmed. The order of conviction

passed by the Court Martial as well as the orders made under sections 162

and 163 of the Navy Act have been rightly quashed by the High Court.

In the facts and circumstances of the case we leave it to the authorities

concerned to consider whether or not to continue the Court Martial

proceedings from the stage of section 102 of the Act. We make no direction

in that regard. In case it is decided to continue the proceeding, the

objections raised by the respondents shall be placed for consideration and

decision by the members of the Court Martial in accordance with the

procedure laid down in clauses (b) to (e) of section 102 of the Act. This

is on the assumption that all the members of the Court Martial are

available to act as such. In the event of non-availability of any or all

the members of Court Martial earlier constituted, it will be open to the

competent authority to constitute a fresh Court Martial. In that event the

question whether the objections survive or not may have to be reconsidered

depending on whether the President or the Members objected to continue to

serve on the Court Martial. Thereafter further proceedings shall be taken

in accordance with law. The Court Martial shall not be influenced by any

observation made by the High Court in its impugned judgment. We have

scrupulously avoided reference to the facts of the case and the merit of

the charges against the respondent. However, nothing said in this judgment

shall be construed as expression of opinion on the merit of the charges,

which shall be considered in the light of the evidence, which may be

produced by the prosecution before the Court Martial or the reconstituted

Court Martial, as the case may be, if the competent authority so decides.

Before parting with this judgment we may notice the submission urged on

behalf of the respondent that the re-trial of the respondent, even if

ordered, will be barred by limitation in view of the provision of section

79 of the Act. According to learned counsel for the respondent the trial

commences when the charges are read out to the accused and his plea is

recorded in accordance with section 105 of the Act. We do not wish to

express any opinion on this question. However, the respondent will be at

liberty to raise this question in appropriate proceedings before the

appropriate forum, if occasion arises.

This appeal is accordingly dismissed but subject to the direction

aforesaid.