Gauhati High Court
V.G. Pillai vs Union Of India (Uoi) And Ors. on 12 June, 2007
Equivalent citations: 2008(1)GLT160
Author: U.B. Saha
Bench: R.B. Misra, U.B. Saha
JUDGMENT U.B. Saha, J.
1. Mr. V.G. Pillai, the appellant herein, was the writ petitioner in Civil Rule No. 73 of 1998 before this Court. In the said Writ Petition, the petitioner had challenged the order passed by the General Security Force Court (for short GSFC) dated 16.02.91 whereby and where-under the petitioner was sentenced to suffer R.I. for 2 years and also dismissed from service for committing a civil offence under Section 46 of the BSF Act, i.e. to say committing rape, an offence punishable under Section 376 IPC. The said order dated 16.2.91 of the GSFC (Annexure-A to the writ petition) was confirmed vide order dated 10.6.91 (Annexure-B to the writ petition) passed by the Inspector General of Border Security Force (for short BSF) Tripura, Cachar and Mizoram Frontier (Confirming Authority) and the communication being No. 6/57/97-Pet/CIO (D&L)/BSF/O-14 dated 02.01.1998 (Annexure-I to the writ petition), the information regarding rejection of the petitioner's appeal filed under Section 117 of the BSF Act (for short the Act) were assailed in the writ petition. The learned single Judge of this Court, by an order dated 02.01.07, after hearing the rival parties and after perusing the materials available before him, dismissed the writ petition, hence, this appeal.
2. The appellant has challenged the judgment and order of the learned single Judge mainly on the ground that the learned single Judge committed gross error in interpreting the decision of the Apex Court cited by the petitioner's counsel and also in considering the facts that the GSFC failed to consider all the relevant evidence available on record, particularly the evidence of the Medical Officer and the findings of the GSFC as cryptic, non speaking and non application of mind by the GSFC while passing the order of conviction and sentence and the order of rejection of representation under Section 117 of the Act by the Director General, Border Security Force.
3. We have heard Mr. B. Das, learned Sr. Counsel as assisted by Miss S. Das and D. Chakraborty as well as Mr. P.K. Biswas, learned Assistant Solicitor General.
4. The facts, which are required to be narrated for disposal of this appeal, are as follows:
The appellant while in service as Sub Inspector, 55 Bn. B.S.F. attached to 8 Bn. B.S.F HQs Gokulpur, West Tripura, on 15th January, 1990 at about 2130 hrs while on patrolling duty in an area of Motai BOP entered into the house of Smt Lakshmi Tripura, w/o Bharat Tripura of Village Champaknagar and offered her a bundle of currency and while she refused to accept the same the petitioner/appellant forced her down on the cot and committed rape on her and left the place after the sexual act, keeping his monkey, cap and stick in the house of Lakshmi Tripura and ultimately people gheraod the accused, petitioner/appellant in the house of Milan Tripura. Thereafter, the husband of Lakshmi Tripura, Mr. Bharat Tripura went to the Belonia Police Station and lodged F.I.R. Accordingly, the Belonia Police arrived at the scene of occurrence within 2/3 hours and enquired about the incident and arrested the accused, appellant/petitioner. The Police also seized the wearing apparels of Ms. Lakshmi Tripura, the victim lady and the monkey, cap and stick of the accused, appellant/petitioner. After investigation at the scene of occurrence the Police along with the victim lady and the accused, appellant/petitioner while proceeding towards the Belonia P.S., the accused requested the Officer-in-charge of the P.S. to allow him to go to the B O.P. to attend nature's call and to bring his warm clothes as that was winter season. The accused once entered into the barrack did not turn up and instead informed the Officer Commanding who directed him not to go with the Police till his arrival and ultimately the accused subsequently surrendered before the SDJM, Belonia, who remanded him injudicial custody. The accused was medically examined at Belonia Medical Hospital on 25.1.1990 at a belated stage. Ultimately the BSF Authority decided that the proceedings regarding the offence committed by the petitioner/appellant should be in the Security Force Court, not in criminal court, and the appellant/petitioner was charged under Section 46 of the BSF Act 1968 (for short 'the Act') for committing a civil offence that is to say committed an offence of rape, punishable under Section 376 IPC, for which F.I.R. was registered by the Belonia P.S. Thereafter a case was initiated by the BSF Authority against the petitioner/appellant as provided by the provisions of the BSF Act read with provisions of Cr.P.C. and General; Security Force Court (GSFC) which was constituted on 24.1.1991 vide order of the Inspector General of BSF, Tripura, Cachar and Mizoram Frontier to try the offence committed by the petitioner/appellant.
5. After the constitution of GSFC, the prosecution and defence produced their respective witnesses and they were examined by the said GSFC. After closing of the evidence the Law Officer summed up the case and members of the court in turn declared the verdict of guilty against the accused officer i.e. the petitioner/appellant herein. On the basis of the finding of guilt against the accused, the accused petitioner/appellant herein had been convicted under Section 46 of the Act for committing a civil offence i.e. to say Section 376 IPC and sentenced to undergo rigorous imprisonment (RI) for two years and also dismissed from service for the offence committed by him. The appropriate authority confirmed the said findings regarding the conviction and sentence to undergo Rigorous Imprisonment for two years and dismissed from service. Aggrieved by the said order of conviction and sentence, the petitioner/appellant had approached this Court by filing a writ petition under Article 226 of the Constitution of India being Civil Rule No. 330 of 1994 challenging the said order of conviction and sentence to undergo RI for two years and dismissal from service for yielding an order from this Court on several grounds. The learned Single Judge of this Court, however, after hearing the parties and after perusal of the relevant records available before him and the original records of GSFC proceedings, as produced before him, particularly after perusal of the summing up of the submission of ; the Law Officer of the BSF before the GSFC, held that it was not open for the Court to re-appreciate the evidence on record while the Court is exercising its power under Article 226 of the Constitution of India as the scope of judicial review is limited.
6. Against the said order of the learned single Judge dated 25.8.95 in the C.R. No. 330 of 1992, the writ petitioner-appellant preferred a Writ Appeal before this Court and the said appeal was registered as W.A. No. 3 of 1995 and heard by a Division Bench of this Court. Their lordships in the Division Bench considered the submissions of the learned Counsel of the parties as well as the provisions of the Section 117 of the Act. In the said appeal, the Division Bench of this Court on 11.9.97 observed that it is open to the writ petitioner to seek statutory remedy available under Section 117 and to redress his grievance as he did not avail of the alternative remedy provided in the statute before approaching writ Court and passed the following order:
(1) The appellant/writ petitioner shall make an application within a period of 15 (fifteen) days in the form of an appeal, as contemplated under Section 117 of the Act, to be addressed to the Secretary to the Govt, of India, Ministry of Home Affairs/Director General, BSF Headquarters, New Delhi, so as to enable these authorities to consider such application in the form of an appeal and to pass appropriate orders after providing the appellant the opportunity of being heard in the matter.
(2) In the event of the appellant failing to get any relief at the hands of these authorities, it is open to him to approach this Court in a fresh petition under Article 226 of the Constitution of India. It is made clear that since the petitioner/appellant has been prosecuting this petition right from 1991 without failing his time, the respondents shall not raise any question of limitation in the light of Rule 168 of the BSF Rules, 1969. We hope that the competent authorities will consider the matter and dispose of the appeal within a period of 8 (eight) weeks from the date of its receipt.
7. After the said judgment and order of the Division Bench of this Court dated 11.09.1997 passed in the W.A. No. 03 of 1995 the petitioner-appellant made a representation to the Secretary, Home Affairs, Government of India and Director General, BSF. In compliance with the aforesaid order of the Division Bench, the petitioner/appellant was personally heard by the Director General, BSF on 09.12.1997 and Chief Law Officer (D&L) of the BSF thereafter vide letter dated 2.1.1998 intimated to the petitioner-appellant, inter alia, that his representation has been rejected being devoid of merit. Being aggrieved by the aforesaid order of rejection of the representation, the petitioner-appellant filed the Writ Petition (C) No. 73 of 1998 challenging the order of conviction and sentence and also the order of dismissal as well as the letter 02.01.98 wherein the Chief Law Officer (D&L) communicated the petitioner/appellant regarding rejection of his representation by the appellate authority i.e. the Director General of B.S.F.
8. The respondents, namely, the D.I.G., B.S.F., Tripura (South) in the aforesaid writ petition filed counter denying all the allegations of the petitioner/appellant. Having heard the learned Counsel for the respective parties and taking note of the relevant contentions made in the writ petition, affidavits, the order impugned before it as well as the General Security Force Court (GSFC) proceeding and the law reports referred before it, the learned Single Judge by his judgment and order dated 02.01.2007 dismissed the writ petition upholding the order of the GSFC dated 16.02.1991 and the order of the appellate authority communicated by the Chief Law Officer on 2.1.1998 with an observation that 'the present writ petition is devoid of merit and consequently, the same is dismissed.' Being aggrieved by the aforesaid judgment and order of the learned Single Judge, the present appeal has been preferred by the writ petitioner/appellant.
9. In this appeal the appellant assails the impugned judgment of the learned Single Judge on the following grounds that:
(1) The learned Single Judge has committed gross error in interpreting decisions of the Apex Court relied by the rival parties.
(2) The learned Single Judge also committed error by not considering the fact that the GSFC failed to consider the medical evidence available on record from which no reasonable person can come to a finding that the accused officer/petitioner/appellant committed rape, non consideration of the same by the learned Single Judge itself is a ground for setting aside the judgment and order in the writ petition.
(3) Purported finding of the GSFC being cryptic and non speaking and lacking in reasons itself shows that the GSFC failed to apply its mind to the facts and circumstances involved in the matter and acted mechanically, and as the said GSFC is not a Court, the learned Single Judge ought to have set aside the order of conviction and sentence passed by the GSFC as well as the appellate authority.
(4) The appellate authority i.e. the Director General of Police also failed to consider the representation preferred in compliance with the court's order and passed cryptic and non speaking order while confirming/upholding the order of the GSFC. For such cryptic and non speaking order also the learned Single Judge should have quashed the order of the Director General as communicated by the Chief Law Officer vide letter dated 2.1.1998 is liable to be quashed and set aside.
10. The learned senior Counsel, Mr. B. Das, appearing for the appellant/petitioner in support of the grounds taken in the appeal contended that the order of learned Single Judge cannot be sustained to be legal as because the learned Single Judge failed to consider the evidence on record, particularly the evidence of the medical officer on record, which was not considered by the GSFC and the appellate authority. He further raised his voice, interalia, that being writ jurisdiction is an extraordinary jurisdiction of the High Court, the learned Single Judge should have come to the conclusion that the writ court has the power to see as to whether the GSFC passed order of conviction and sentence considering all the evidence available before it or not, which he failed. In other way, he tried to convince this Court that there were no evidence to come to a finding of guilt for convicting and sentencing the accused officer and the same is permissible for judicial review but the learned Single Judge should not stay its hands from examining its jurisdiction under Article 226, to interfere with the conviction and sentence passed by the GSFC as the same is based on no evidence and as such the learned Single Judge should have set aside the order of conviction and sentence passed by the GSFC and order of rejection of representation of the appellant/petitioner by the appellate authority which was communicated by the Chief Law Officer (D&L) on 2.1.1998. He further contended that the appellant/petitioner has the right to approach the writ court under Article 226 for consideration of his grievance as the GSFC of the BSF is nothing but a Court martial and not a Court of law. The same is only an ad hoc body or adjudicative authority to decide administrative failure offeree members, he contended. He further contended that the Supreme Court also expressed the same view in a catena of decisions and stated that a Court martial is an ad hoc body and there should be a forum of judicial review to consider the decision in a case of court martial. In support of his aforesaid contention he placed reliance in paragraph 45 of the case of Lt. Col. Prithi Pal Singh Bedi v. Union of India and Ors. and paragraph Nos. 9, 10 and 11 in the case of Union of India and Anr. v. Charanjit S. Gill and Ors. . He finally submitted that the findings and verdict given by the GSFC cannot be treated in a strict sense as a finding and verdict since they have not given any detailed reasons in support of their so called purported findings and verdict that the petitioner/appellant was found guilty for the charge leveled against him for which itself the order of conviction and sentence of R.I. for two years and dismissal from service passed by the said authority is liable to be quashed and set aside.
11. In response to the submission of Mr. B. Das, learned senior Counsel, the learned Asstt. Solicitor General, Mr. P.K. Biswas, appearing for the respondents, while referring to the case oiMahipal Singh and Ors. v. Union of India and Ors. 2004 (1) GLT 165, submitted that Section 141 of the BSF Act and Section 475 of Cr.P.C. empowers the Central Government for making Rules and, accordingly, rules have been framed namely "The Border Security Force Rules, 1969 (for short BSF Rules, 1969) and "Criminal Courts and Border Security Courts (Amendment of Jurisdiction) Rules, 1969 or short Amendment of Jurisdiction Rules, 1969 and ultimately the petitioner/appellant was charged under Section 46 of the BSF Act for committing a civil offence that is to say an offence under Section 376 of IPC for committing rape on Laxmi Tripura while he was an active duty and a member of disciplinary force like BSF, tried by the General Security Force court following the provisions of BSF Act and Rules as the said Court has the jurisdiction to decide the offence committed by the petitioner/appellant under the Penal Code. He also contended that if a person subject to the Act like the petitioner/appellant commits such a heinous civil offence while on active duty then where the people will go. He also contended that if the GSFC conducted the trial after following the necessary procedure as prescribed by the BSF Act and Rules and the provisions of Cr.P.C. and also keeping in mind the provisions of the Indian Evidence Act and as per Rule 148 of the BSF Rules the authority opined that the petitioner/appellant is guilty and convicted and sentenced the accused officer like the petitioner/appellant then the writ court has no power either to re-appreciate the evidence or to go through the proceedings file to see whether sentence is given on insufficient evidence or not and whether any different views can be taken than the views taken by the BSF Court, i.e. GSFC. Referring the provisions of Rule 148 and 149 of the BSF Rule, learned Asstt. Solicitor General also contended that detail reasons are not necessary in the verdict and findings. Only simple finding of guilty or not guilty is sufficient for conviction and sentence as the verdict and findings are based on evidence and law and procedure summed up by the Law Officer as required by the provisions of the Act and Rules.
12. Regarding the contention of Mr. Das, interalia that the GSFC is not a court of law, as the same is adjudicating the alleged offence without any judicial experience, Mr. Biswas learned Asstt. S.G. submitted that the GSFC is also a court while it is discharging its judicial function vested on it, particularly in the instant case the said authority exercised the judicial function vested on it for trial of a civil offence like rape and it will be evident from the provisions of Section 88 of the BSF Act that the legislature empowered the Security Force Court to take judicial notice of any matter within the general knowledge of the members of the force and, hence, the contention of Mr. Das is not legally tenable according to him. In support of his contention he also relied upon para Nos. 21, 22 and 23 of the case of Union of India and Ors. v. IC-14827 Major A. Hussain : . He again contended that a Court martial like the GSFC has the same power and responsibility like the judicial court to protect the rights of the accused charged before it and to follow the procedural safeguards as prescribed under the Cr.P.C. and the Indian Evidence Act, as those are also applicable, in court martial proceeding like the GSFC, while the same is trying a civil offence against a person subject to the Act like the petitioner/appellant. He also submitted that if the court will go through the provisions of law relating to the Court martial in the BSF Act and Rules, then the court will see that the procedures prescribed in the said Act and Rules are perhaps equally fair, even not more than the procedure in a criminal or in any other courts and the rights of accused officer is also protected. The legislature also considered at the time of legislating the aforesaid laws that a member of the disciplinary force normally should not be tried by a criminal court while he committed some civil offence like the offence under the Indian Penal Code (IPC), as because, those court has no idea as to how and in what manner the discipline is to be maintained in the disciplinary force like the BSF and Army and for that in Section 475 of the Cr.P.C. also prescribes that the Central Government may make rules consistent with the Code of Criminal Procedure and the Army Act, Navy and the Air Force Act and other law relating to the Armed Forces of the Union, for the time being in force. He also contended that when cognizance of offence can be taken by an ordinary Criminal Court as well as the Court like the Security Force Court, choice of Force authority and Central Government is final in view of the provisions of Section 80 of the Act. In support of his aforesaid contention he referred to para 18 of the case of Mahipal Singh (supra). Section 475 of Cr.P.C. and Rule 3 of the Criminal Courts and Border Security Force Courts (Adjustment of Jurisdiction) Rules, 1969 are reproduced below:
475 (1) The Central Government may make rules consistent with this Code and the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950), and any other law, relating to the Armed Forces of the Union, for the time being in force, as to cases in which persons subject to military, naval or air force law, or such other law, shall be tried by a Court to which this Code applies or by a Court-martial; and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court to which this Code applies or by a Court-martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the commanding officer of the unit to which belongs, or to the commanding officer of the nearest military, naval or air force station, as the case may be, for the purpose of being tried by a Court-martial.
Rule 3 of the Criminal Courts and Border Security Force Courts (Adjustment of Jurisdiction) Rules, 1969. Trial of person subject to the Act.... Where a person subject to the Act, is brought before a magistrate and charged with an offence for which he is liable to be tried by the Border Security Force Court, such a Magistrate shall not proceed to try such persons or to inquire with a view to his commitment for trial by the Court of Sessions or the High Court for any offence triable by such Court, unless-
(a) He is of opinion, for reasons to be reasons to be recorded in writing that he should so proceed without being moved thereto by the Competent Authority; or
(b) He is moved thereto by such authority.
He also contended that the communication given to the petitioner/appellant about the rejection of the appeal/representation by the Director General, B.S.F. on the ground of being devoid of merit no detail reasons are necessary and required to be recorded by the appellate authority, only when the appellate authority disagree with the findings of the GSFC then the detail reasons are required to be given according to him. In support of his contention he relied on the decision of this Court in Sri Dipak Kumar Chakraborty v. Union of India (2005) 2 GLR 667 : 2005 (3) GLT 564. He again submitted that the judgment and order passed by the learned Single Judge is just, proper, valid, reasonable and fully covered by the decision of the Apex Court in the case of Union of India and Ors. v. Himat Singh Chahar wherein the Apex Court unanimously observed that the adequacy or reliability or sufficiency of the evidence cannot be examined by the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India, and that being so, according to him, the writ appeal preferred by the petitioner/appellant is liable to be dismissed.
13. Before considering the rival submissions of the parties in detail we think it would be profitable on our part to discuss regarding the power of the High Court in judicial review under Article 226 as the same was one of the contentions of Mr. Das, learned senior Counsel. Regarding the power of judicial review, according to us the matter is no longer res-integrathat the High Court has the power to go on judicial review of the findings of Security Force Court if such court or authority acted beyond the procedure prescribed by the BSF Act and Rules and also reached to a finding of guilt without any supporting evidence or wholly against the evidence. But, if the Security Force Court acted upon within its jurisdiction and within the procedures prescribed by the BSF Act and Rules and acted like a Criminal Court and reached to a finding after considering the evidence on record and summing up of the law Officer, then the High Court cannot go in for detail examination of the evidence on record and in such a case, the High Court should be restrained from exercising its power of judicial review and also should not allow to challenge the validity of conviction and sentence based on evidence. The power of judicial review when it can be exercised, has already been discussed and decided by a Division Bench of this Court in the case of Director General, Border Security Force and Ors. v. Iboton Singh (Kh) : 2007 (I) GLT 903 wherein one of us was party (U.B. Saha, J). For proper understanding, the relevant paragraph Nos. 9, 10 and 11 of the said report are quoted hereunder:
9. While considering the ambit of the exercise of the power of judicial review by the High Court under Article 226, it may be borne in mind that the proceedings of a SFC (Security Force Court) stand on the same footing as do the proceeding of a Court Martial. Hence, the judicial pronouncements, which have been rendered on the scope of judicial review of the findings of the General Court Martial, would apply with equal vigour to the proceedings of a General Security Force Court (GSFC), inasmuch as the procedure prescribed for trial of an accused by a General Court Martial and the GFC are quite akin to each other.
10. While considering the scope of judicial review of the findings of a SFC, it also needs to be borne in mind that a SFC is not subject to power of superintendence of the High Court under Article 227 of the Constitution of India. Though the proceedings of the SFC fall outside the purview of Article 227, these proceedings are nonetheless subject to the overall, power of judicial review by the High Court under Article 226 of the Constitution. If a SFC has been properly convened, there is no challenge to its constitution and if the procedure, which it followed, was in accordance with the procedure prescribed by the BSF Act and the BSF Rules, the High Court would not interfere with the findings of such a Court unless the findings reached by it are perverse, that is, when the finding reached is wholly without any supporting evidence or wholly against the evidence. The proceedings of a SFC are not to be compared with the proceedings of a trial, in the ordinary criminal courts, under the Code of Criminal Procedure. A SFC remains, to a great degree, an integral and specialized part of the overall mechanism by which discipline is maintained in a 'force', such as, BSF. It is for the special needs of such a 'force' that instead of ordinary criminal court, the offenders are tried by SFC even when the offence is punishable by Indian Penal Code. At the same time, what cannot be ignored is that a SFC functions, as a Court to which the provisions of the Evidence Act Assam Rifles applicable. The concept of relevance of admissibility of evidence, the burden of proof, and the standard of proof, as envisaged in the Evidence Act, are applicable, without exception, to the trial of an accused by SFC. Viewed thus, it is clear that a SFC has the same responsibility, as any other criminal court, to protect the rights of an accused arraigned before it and, therefore, follow the procedural safeguards given to an accused in order to ensure that he has a fair trial.
11. When the provisions contained in the BSF Rules are analysed, in the light of the various administrative instructions, which have been issued from time to time, it becomes a manifestly clear that the procedure prescribed is a fair procedure for trial and it is for this reason that the High Court does not, ordinarily, interfere with the proceedings of a trial held by SFC. When there is sufficient evidence to sustain conviction, the SFC had the jurisdiction over the subject matter, the SFC followed the prescribed procedure and the punishment awarded was also within its powers, the High Court - would not allow challenge to the validity of the conviction and sentence. The High Court, while considering a challenge posed to the findings of guilt reached against an accused or the sentence passed against him, would not function as a Court of appeal. The role of the High Court, under Article 226, in such a case, would, ordinarily, be to review the decision-making process and not the decision as such. If the decision-making process suffers from non-consideration of relevant factors or consideration of irrelevant factors, the High Court may interfere with the decision, so reached, if the High Court is of the view that such a decision-making process has caused failure of justice. The merit of the decision of a SFC can be looked into by the High Court only when it is challenged on grounds of perversity. If two views on the basis of the materials on record are possible to be formed, the High Court would not substitute its views in place of the decision of the SFC merely because of the fact that the High Court is of the opinion that the view taken by it is more plausible and reasonable.
14. In the instant case the learned Single Judge after exercising its power of Writ Court dismissed the writ petition, hence, it cannot be said that the learned Single Judge had not exercised his power of judicial review as vested on him by the Constitution of India. As a matter of fact the learned Single Judge has not exercised the power of judicial review in so far as the order of the Security Force Court has not been interfered with.
15. In Prithi Pal Singh (supra) the Apex Court considered Rules 22, 23, 25 and 40 of the Army Rules, 1954 as the same was challenged being violative of the fundamental rights of the petitioner therein as guaranteed under Article 14 of the Constitution of India. The charge against the accused Prithi Pal Singh was for interpolation of confidential report after the same was signed by an officer subordinate to him namely, Maj. R.S. Sehgal. The Apex Court in para 45 of Prithi Pal (supra) discussed regarding the power of criminal court as well as the Army Court and the status of Security Force Court as the question arose before the Apex Court regarding restrictions and abrogation put on the members of the armed force under Article 33 of the Constitution of India and provisions of Army Act and Rules. Relevant portion of para 45 of the aforesaid decision is extracted hereunder:
45. Reluctance of the Apex Court more concerned with civil law to interfere with the internal affairs of the Army is likely to create a distorted picture in the minds of the military personnel that persons subject to Army Act are not citizens of India. It is one of the cardinal features of our Constitution that a person by enlisting in or entering armed forces does not cease to be a citizen so as to wholly deprive him of his rights under the Constitution. More so when this Court held in Sunil Batra v. Delhi Administration that even prisoners deprived of personal liberty are not wholly denuded of their fundamental rights. In the larger interest of national security and military discipline Parliament in its wisdom may restrict on abrogate such rights in their application to the Armed Forces but this process should be car-? ned so far as to create a class of citizens not entitled to the benefits of the liberal spirit of the Constitution. Persons subject to Army Act are citizens of this ancient land having a feeling of belonging to the civilized community governed by the liberty oriented constitution. Personal liberty makes for the worth of human being and is a cherished and prized right. Deprivation thereof must be preceded by an inquiry ensuring fair, just and reasonable procedure and trial by a judge of unquestioned integrity and wholly unbiased. A marked difference in the procedure for trial of an offence by the Criminal Court and the court-martial is apt to generate dissatisfaction arising out of this differential treatment. Even though it is pointed out that the procedure of trial by court-martial is almost analogous to the procedure of trial in the ordinary Criminal Courts, we must recall what Justice William 0' Douglas observed that civil trial is held in an atmosphere conducive to the protection of individual rights while a military trial is marked by the aged old manifest destiny of retributive justice. Very expression 'court-martial' generally strikes terror in the heart of the person to be tried by it. And somehow or the other the trial is looked upon with disfavour Tough Test for Military Justice' Time Magazine, pp. 42 and 43. In Reid v. Covert (1957) 1 Lawed 2d 1148, Justice Black observed at p. 1174 as under:
Courts-martial are typically ad hoc bodies appointed by a military officer from amongst his subordinates. They have always been subject to varying degrees of "command influence". In essence, these tribunals are simply executive tribunals whose personnel are in executive chain of command. Frequently, the members of the court-martial must look to the appointing officer for promotions, advantageous assignments and efficiency ratings-in short, for their future progress in the service. Conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, the members of a court-martial, in the nature of things, do not and cannot have the independence of jurors drawn from the general public or of civilian judges.
Absence of even one appeal with power to review evidence, legal formulation, conclusion and adequacy or otherwise of punishment is a glaring lacuna in a country where a counter part civilian convict can prefer appeal after appeal to hierarchy of Courts. Submission that full review of finding and/or sentence in confirmation proceeding under Section 153 is provided for is poor solace. A hierarchy of Courts with appellate powers each having its own power of judicial review has of course been found to be counter productive but the converse is equally distressing in that there is not even a single judicial review. With the expanding horizons of fair play in action even in administrative decision, the universal declaration of human rights and retributive declaration of human rights and civilized days, a time has come when a step is required to be taken for at least one review and it must truly be a judicial review as and by way of appeal to a body composed of non-military personnel or civil personnel. Army is always on alert for repelling external aggression and suppressing internal disorder so that the peace loving citizens enjoy a social order based on rule of law; the same cannot be denied to the protectors of this order. And it must be realized that an appeal from Ceaser to Ceaser's wife--confirmation proceeding under Section 153has been condemned as injudicious and merely a lip sympathy to form. The core question is whether at least there should be one appeal to a body composed of non-military personnel and who would enjoy the right of judicial review both on law and facts as also determine the adequacy of punishment being commensurate with the gravity of the offence charged. Judicial approach by people well versed in objective analysis of evidence trained by experience to look at facts and law objectively, fair play and justice cannot always be scarified at the altar of military discipline. Unjust decision would be subversive of discipline. There must a judicious admixture of both. And nothing revolutionary is being suggested. Our Army Act was more or less modeled on the U.K. Act. Three decades of its working with winds of change blowing over the world necessitates a second look so as to bring it in conformity with liberty oriented constitution and rule of law which is the uniting and integrating force in our political society. Even U. K. has taken a step for far-reaching importance for rehabilitating the confidence of the Royal Forces in respect of judicial review decisions of court-martial. U.K. had enacted a Court-martial (Appeals) Act of 1951 and it has been extensively amended in Court-martial (Appeals) Act, 1968. Merely providing an appeal by itself may not be very re-assuring but the personnel of the appellate Court must inspire confidence. The Court-martial Appellate Court consists of the ex-officio and ordinary judges of the Court of Appeal, such of the Judges of the Queen's Bench Division as the Lord Chief Justice may nominate after consultation with the Master of the Rolls, such of the Lords, Commissioners of Justiciary in Scotland as the Lord Chief Justice generally may nominate, such Judges of the Supreme Court of the Northern Ireland as the Lord Chief Justice of Northern Ireland may nominate and such of the persons of legal experience as the Lord Chancellor may appoint. The court-martial appellate Court has power to determine any question necessary to be determined in order to do justice in the case before the Court and may authorize a new trial where the conviction is quashed in the light of fresh evidence. The Court also has power inter alia, to order production of documents or exhibits connected with the proceedings, order of attendance of witnesses, receive evidence, obtain reports and the like from the members of the court-martial or the person who acted as Judge-Advocate, order a reference of any question to a Special Commissioner for Inquiry and appoint a person with special expert knowledge to act as an assessor. (Halsbury's Laws of England, 4th Edn. paras 954-55, pp. 458-459). Frankly the appellate Court has power of full judicial review unhampered by any procedural clap trap." The Apex Court in Charanjit S. Gill (supra) also reiterated the same view as expressed by it in the case of Prithi Pal (supra), which would be evident from para Nos. 9, 10 and 11 of the said judgment. It appears from Charanjit S. Gill (supra), the question was there, whether an officer lower in rank than the officer facing trial can be appointed as a judge advocate or not and whether the principles of defacto doctrine will be applied in case the officer lower in rank acted as Judge-Advocate in a trial before the General Court-Martial. At the time of discussion of the aforesaid subject their Lordships also discussed the status of the Court-martial as well as other courts. But at the time of hearing of the cases of Prithi Pal (supra) and Charanjit S. Gill (supra), the learned Counsel for the parties in the aforesaid cases did not refer the case of Major A. Hussain (supra), hence their Lordships also did not get the opportunity to consider as to whether or not a Security Force Court/Court-Martial is a court when it decides an offence relating to civil offence. Para Nos. 10 and 11 of the Charanjit S. Gill (supra) is extracted hereunder for proper understanding:
10. In the absence of effective steps taken by the Parliament and the Central Government, it is the constitutional obligation of the Courts in the country to protect and safeguard the constitutional rights of all citizens including the persons enrolled in the Armed Forces to the extent permissible under law by not forgetting the paramount need of maintaining the discipline in the Armed Forces of the country.
11. The Court-martial under the Act are not Courts in the strict sense of the term as understood in relation to implementation of civil laws. The proceedings before Court-martial are more administrative in nature and of the executive type. Such Courts under the Act, deal with two types of offences, namely, (1) such acts and omissions which are peculiar to the Armed Forces regarding which no punishment is provided under the ordinary law of the land and (2) a class of offences punishable under the Indian Penal Code or any other legislation passed by the Parliament. Chapter VI of the Act deals with the offences. Sections 34 and 68 relate to the offences of the first description noted hereinabove and Section 69 with civil offences, which mean the offence triable by an ordinary Criminal Court....
16. In Mahipal Singh (supra) the learned Single Judge of tins Court considering the case of Ram Sarup v. Union of India and case of Balbir Singh v. State of Punjab (1995) SCC 90 came to a conclusion that the petitioners of that case allegedly committed the offence while on active duty and alleged act was committed at a place specified by the Central Government and on both counts the offence is triable by the Security Force Courts. It is also stated that being confronted with a Criminal Court the matter was referred to the Central Government under Section 80 of the Act and Central Government after consideration of the matter decided that the proceeding be instituted in Security Force Court. Such decision of the Central Government was final and thereafter it was the duty of the Security Force Court to decide the matter finally. Para 18 of Mahipal Singh (supra) is quoted hereunder:
18. In the instant case, the petitioners allegedly committed the offence "while on active duty". Further, the alleged act was committed at a place specified by the Central Government. On both the counts offence is triable by the Security Force Court. The BSF authority as re-fleeted above, in fact, had decided that the petitioners would be tried by the Security Force Court. Being confronted with the Criminal Court, the matter was referred to the Central Government in exercise of power confronted by the provisions of the Act referred to above by the BSF authority. The Central Govt, upon consideration of the matter decided that the proceedings be instituted in Security Force Court. Such decision of the Central Government was final. Thereafter, it was the duty of the Security Force Court to decide the matter finally. Instead, they referred the matter for re-trial by the Criminal Court solely on the ground that they failed to procure attendance of the witnesses, unmindful of the fact that the same state of affairs would continue before the Criminal Court also.
17. In Major A. Hussain (supra) their Lordships of the Apex Court specifically held that the Court-martial discharges judicial function and to a great extent it is a Court where provisions of Evidence Act are applicable. A court martial has also the same responsibility as any Court to protect the rights of the accused charged before it and to follow the procedural safeguards. For better understanding of the submission of rival parties it would be better to extract paras 21 and 22 of the said judgment hereunder:
21. We find the proceedings of the General Courtmartial to be quite immaculate where trial was fair and every possible opportunity was afforded to the respondent to defend his case. Rather it would appear that the respondent made all efforts to delay the proceedings of the Court-martial. Thrice he sought the intervention of the High Court. Withdrawal of the defence counsel in the midst of the proceedings was perhaps also a part of plan to delay the proceedings and to make that a ground if the respondent was ultimately convicted and sentenced. Service of qualified defending officer was made available to the respondent to defend his case, but he had rejected their services without valid reasons. He was repeatedly asked to give the names of the defending officers of his choice but he declined to do so. The court-martial had been conducted in accordance with the Act and Rules and it is difficult to find any fault in the proceedings. The Division Bench said that the learned Single Judge minutely examined the record of the court-martial proceedings and after that come to the conclusion that the respondent was denied reasonable opportunity to defend himself. We think this was fundamental mistake committed by the High Court, it was not necessary for the High Court to minutely examine the record to the General Court-martial as if it was sitting in appeal. We find that on merit, the High Court has not said that there was no case against the respondent to hold him guilty of the offence charged.
22. 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. Proceedings of a court-martial are not to be compared with the proceedings in a criminal court under the Code of Criminal Procedure where adjournments have become a matter of routine though that is also against the provisions of law. It has been rightly said that court-martial remains to a significant degree, a specialized part of overall mechanism by which the military discipline is preserved. It is for the special need for the armed forces that a person subject to Army Act is tried by court-martial for an act which is an offence under the Act. A court-martial discharge judicial function and to a great extent is a Court where provisions of Evidence Act are applicable. A court-martial has also the same responsibility as any Court to protect the rights of the accused charged before it and to follow the procedural safeguards. If one looks at the provisions of law relating to court-martial in the Army Act, the Army Rules, Defence Service Regulations and other Administrative Instructions of the Army, it is manifestly clear that the procedure prescribed is perhaps equally fair if not more than a criminal trial provides to the accused. When there is sufficient evidence to sustain conviction, it is unnecessary to examine if pre-trial investigation was adequate or not. Requirement of proper and adequate investigation is not jurisdictional and any violation thereof does not invalidate the court-martial unless it is shown that accused has been prejudiced or a mandatory provision has been violated. One may usefully refer to Rule 149 quoted above. The High Court should not allow the challenge to the validity of conviction and sentence of the accused when evidence is sufficient, court-martial has jurisdiction over the subject-matter and has followed the prescribed procedure and is within its powers to award punishment.
18. In the case of Pradeep Singh v. Union of India and Ors. 2007 AIR SCW 258 7 the Apex Court also affirmed the views taken by it earlier in the case of Maj. A. Hussain (supra) and held that 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 and in the said case it is also stated that it is for the special need for the armed forces that a person subject to Army act is tried by Court-martial for an act which is an offence under the Act and the Court-martial discharges judicial function. Relevant paragraph i.e., para-11 of the Pradeep Singh (supra) is quoted hereunder:
11. 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. Proceedings of a court-martial are not to be compared with the proceedings in a criminal court under the Code of Criminal Procedure, 1973 where adjournments have become a matter of routine though that is also against the provisions of law. It has been rightly said that court martial remains to be significant degree, a specialized part of overall mechanism by which the military discipline is preserved. It is for the special need for the armed forces that a person subject to Army Act is tried by court-martial for an act, which is an offence under the Act. Court-martial discharges judicial function, and to a great extent, is a court where provisions of the Evidence Act are applicable. A court-martial has also the same a responsibility as any court to protect the rights of the accused charged before it and to follow the procedural safeguards. If one looks at the provisions of law relating to court-martial in the Army Act, the Army Rules, Defence Service Regulations and other Administrative Instructions of the Army, it is manifestly clear that the procedure prescribed is perhaps equally fair if not more than a criminal trial provides to the accused. When there is sufficient evidence to sustain conviction, it is unnecessary to examine if pretrial investigation was adequate or not. Requirement of proper and adequate investigation is non-jurisdictional and any violation thereof does not invalidate the court-martial unless it is shown that accused has been prejudiced or a mandatory provision has been violated. One may usefully refer to Rule 149 quoted above. The High Court should not allow the challenge to the validity of conviction and sentence of the accused when evidence is sufficient, court-martial has jurisdiction over the subject-matter and has followed the prescribed procedure and it is within its powers to award punishment.
19. The object of BSF law is of two fold. Firstly, it is to provide for the maintenance of the good order and discipline among the members of the BSF and in certain circumstances among others who live or work in the aforesaid force environment. The same is considered by supplementing the ordinary criminal law and ordinary judicial system with a special Code of discipline and special system in a special area. The legislature considering the aforesaid aspects restricted the member of the disciplinary force like the BSF from approaching the ordinary criminal court, as the BSF law is used with regard to maintain discipline, rather than administrative one. To properly understand the scheme of the BSF Act and Rules, we think it would be profitable for proper understanding to discuss regarding certain provisions of the BSF Act and Rules.
Section 3 of the Act discusses regarding persons subject to the Act. Section 46 of the said Act defines civil offences and Sections 64 and 65 deal with kinds of security force court and power to convene a General Security Force Court. Section 80 empowers the Director General or the Inspector General or the Deputy Inspector General within whose command the accused person is serving to decide before which Court the proceeding shall be instituted, i.e. choice between the criminal Court and security force Court. Section 83 of the Act discusses regarding law officer, particularly presence of a Law Officer in every General Security Force Court is a mandatory one. Section 87 of the Act provides that the Indian Evidence Act shall, subject to the provisions of this Act, apply to all proceedings before a security force court. Section 88 of the said Act also empowers security force court to take judicial notice of any matter within the general knowledge of the members as officer of the force. Section 91 prescribes the procedures and examination of the witnesses. Section 106 deals with powers of Security Force Court (in short SFC) in relation to proceedings under the BSF Act, wherein it is also stated that any trial by a SFC under the provisions of this Act shall be deemed to be a judicial proceeding within the meaning of Section 193 and 228 of the I.P.C. and the SFC shall be deemed to be a Court within the meaning of Sections 480 and 482 of the Code of Criminal Procedure Code.
Sections 3, 46, 64, 65, 88 and 106 of the B.S.F. Act 1968 are extracted herein under for better understanding:
3. Persons subject to this Act.--(1) The following persons shall be subject to this Act, wherever they maybe, namely-
(a) Officers and Subordinate Officers; and
(b) Under officers and other persons enrolled under this Act, (2) Every person subject to this Act shall remain so subject until retired, discharged, released, removed or dismissed from the Force in accordance with the provisions of this Act and the rules.
46. Civil offencesSubject to the provisions of Section 47, any person subject to this Act who at any place, or beyond, India commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section shall be liable to be tried by a Security Force Corrupt and, on conviction, be punishable as follows, that is to say-
(a) If the offence is one which would be punishable under any law in force in India with death, he shall be liable to suffer any punishment, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and
(b) In any other case, he shall be liable to suffer any punishment, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned.
64. Kinds of Security Force Courts--For the purposes of this Act there shall be three kinds of Security Force Courts, that is to say-
(a) General Security Force Courts;
(b) Petty Security Force Courts; and
(c) Summary Security Force Courts.
65. Power to convene a General Security Force Court--A General Security Force Court may be convened by the Central Government or the Director General or by any officer empowered in this behalf by warrant of the Director-General.
88. Judicial notice--A Security Force Court may take judicial notice of any matter within the general knowledge of the members as officers of the Force.
106. Powers of Security Force Court in relation to proceedings under this ActAny trial by a Security Force Court under the provisions of this Act shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860) and the Security Force Court shall be deemed to be a Court within the meaning of Sections 480 and 482 of the Code of Criminal Procedure, 1898(5 of 1898).
20. Rule 148 and 149 of the BSF Rules prescribe what should be the contents of the verdict and finding of the Security force court after completion of the trial.
Rules 148 and 149 of the BSF Rules are quoted below:
148. Verdict--The Court shall after the evidence for prosecution and defence has been heard give its opinion as to whether the accused is guilty or no guilty of the charge or charges.
149. Finding--(1) The finding on every charge upon which the accused is arraigned shall be recorded and except as mentioned in these rules shall be recorded simply as a finding of "Guilty" or of "Not Guilty".
(2) Where the Court is of opinion as regards any charge that the facts proved do not disclose the offence charged or any offence of which he might under the Act legally be found guilty on the charge as laid, the Court shall find the accused "Not guilty" of that charge.
(3) When the Court is of opinion as regards any charge that the facts found to be roved in evidence differ materially from the facts alleged in the statement of particulars in the charge, but are nevertheless sufficient to prove the offence stated in the charge, and that the difference is not so material as to have prejudiced the accused in his defence, it may, instead of a finding of "Non Guilty" record a special finding.
(4) The special finding may find the accused guilty on a charge subject to the statement of exceptions or variations specified therein.
(5) The Court shall not find the accused guilty on more than one of two or more charges laid in the alternative, even if conviction upon one charge necessarily connotes guilt upon the alternative charge or charges.
We have taken note of Section 475 of the Cr.P.C. and the relevant rules of criminal court and security force court (adjustment of jurisdiction) Rules, 1969 and it appears from the aforesaid provisions of the Criminal Procedure Code and the Rules that when a person subject to the force is brought before a Magistrate on accusation of an offence for which he is liable to be tried by a criminal Court, like GSFC, the Magistrate shall not proceed with the case unless he is requested to do so by the appropriate force authority. He may, however, proceed with the case if he is of the opinion that he should proceed with the case without being requested by the said authority and even in such cases Magistrate has to give notice to the Commanding Officer and not to make any order of conviction or acquittal or frame charges or committed acts until the expiry of notice period. The Commanding Officer of the force may inform the Magistrate that in his opinion the accused-officer should be tried, by the Court-Martial. The aforesaid provisions of Section 475(1) and Rule 3 are mandatory in nature. Hence, in the instant case, as the Central Government has framed rules and the appropriate authority exercises its discretion as prescribed under Section 80 of the Act, it cannot be said that the discretion vested on the said authority is arbitrary, unguided and in contrary. According to us, every provision of the Act is the law made by the Parliament and that if those provisions, in any way, affect the fundamental rights of the force member under Part-III of the Constitution, that provision do not on that count become void as those provisions are protected under Article 33 of the Constitution. While the statute prescribes both the Court-martial and the criminal Court to try the particular civil offence, then it is the prescribed authority under Section 80 of the Act, to decide whether the said civil offence relating to a person subject to the Act will be tried by which authority and the decision of the prescribed authority is final. In the instant case, the prescribed authority, of the Border Security Force exercised its discretion under Section 80 of the Act and decided to try the civil offence committed by the accused/appellant-petitioner under the Security Force Court, like GSFC.
21. From the aforesaid provisions of the BSF Act and the Rules, a reasonable person can easily come to a conclusion that the BSF Act and Rules prescribed the complete mechanism regarding the trial of civil offences committed by a person subject to the Act, like petitioner/appellant, while he was on active duty. Hence, it cannot be said that the members of the force are denied from their fundamental rights as entitled under the provisions of the Constitution and not to be a citizen, but certainly some of their fundamental rights have been curtailed by constitution itself empowering the Parliament and restricted to by and under the provisions of law, being they are the members of the disciplinary force as the discipline is the grave concern for such Force. Important provisions, in this regard, are contained in Article 33, 136(2) and 227(4) of the Constitution. The purpose of laying down the Fundamental Rights is to ensure the proper duties of Force member and maintenance of discipline amongst the members of the Force. A citizen of the Nation working in the disciplinary force cannot be compared himself with the other citizens, who are outside the force. Their rights are conferred by part-Ill of the Constitution so as to ensure the proper discharge of the duties and maintenance of the discipline amongst them subject to the provisions of Article 33 of the Constitution. Article 33 of the Constitution stated above reads as under:
Article 33.
Power of Parliament to modify the rights conferred by this part in their application to Forces, etc. Parliament may, by law, determine what extent any of the rights conferred by this Part shall, their application to-
a) The members of the Armed Forces; or
b) The members of the Forces charged with the maintenance of public order; or
c) Persons employed in any burreau or other organization established by the State for the purposes of intelligence or counter intelligence; or
d) Persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organization referred to in Clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.
22. Restrictions of the fundamental rights under the provisions of the Constitution or any other law cannot be said to be discriminatory and trial of the civil offences by the General Security Force Court also cannot be questioned on the ground that Presiding Officer of the said security force court are not acquainted with the judicial knowledge as required like the presiding officer of the Criminal Court.
23. In the case of Union of India and Ors. v. Himat Singh , the Apex Court, after considering the case of Major A. Hussain (supra), held that the defence personnel serving in the Army, Navy or Air Force when commit any offence are dealt with by special provision contained in the Army Act or the Navy Act or the Air Force Act and not by normal procedure Code. The said Navy Act is a complete code by itself and prescribed the procedure to be followed in case it is decided that the Court martial should try an officer. The Act also provides sufficient safe guard by way of further appeal/representation to the Chief of the staff and then ultimately to the Union Government. The Apex Court held that the power of judicial review cannot be a power of an appellate authority to re-appreciate evidence and in coming to a conclusion that the evidence is sufficient for the conclusion arrived at by the competent authority in Court-martial proceedings. Paragraph 5 of Himat Singh Chahar (supra) is reproduced below:
5. 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 that 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. The said power pf judicial review cannot be a power of an appellate authority permitting the High Court to reappreciate the evidence and in coming to a conclusion that the evidence is insufficient for the conclusion arrived at by the competent authorities in court-martial proceedings. At any rate it cannot be higher than the jurisdiction of the High Court exercised under Article 227 against an order of an inferior tribunal. This being the parameter for exercise of power of judicial review against the findings of a competent authority in court-martial proceedings, and applying the same to the impugned judgment of the High Court we have no hesitation to come to the conclusion that the High Court overstepped its jurisdiction in trying to reappreciate the evidence of Mrs. Nirmala Sharma and in coming to the conclusion that her evidence is not credible enough to give a finding of guilt against the respondent of a charge under Section 354. We have also perused the statement of Mrs. Nirmala Sharma and the conclusion becomes inescapable on the basis of the said statement of Mrs. Nirmala Sharma that the respondent has been rightly found to have committed offence under Section 354 by the authorities in the court-martial proceedings.
24. It is nowhere stated in the Cr.P.C. what is the definition of the Court. It appears from the Chamber Dictionary that the meaning of the 'Court' is a hall of justice, the judges and officials who presides there: anybody of persons assembled to decide causes, a sitting of such a body. Martial means war like or otherwise military, therefore in general sense Court-Martial means Court held by military persons. According to the Shorter Oxford English Dictionary on Historical Principles prepared by William Little H.W. Fowler J: Coulson, Revised & Edited by C.T. Onions, Third Edition, "Court-Martial" means a Judicial Court, consisting of military or naval officers, for the trial of military or naval offences or the administration of martial law.
We are unable to accept the contention of Mr. Das, learned Sr. Counsel appearing for the petitioner-appellant to the effect that the Court-Martial like GSFC is not a Court at all rather an ad hoc body of the Military force or adjudicative authority or administrative Tribunal without any judicial experience.
25. Court-martial is a military Court convened under the authority of the Government or empowered by law held by military Judges/Officers and sometime the Court-martial is discharging judicial function as a judicial court. It appears from Section 88 of the Act which empowers the SFC to take judicial notice of any matter within general knowledge of the members as officer of the force and in Section 106 of the Act also stated that any trial by a Security Force Court under the provisions of the Act shall be deemed to be a judicial proceeding. Reference may be made to the case of Union of India v. Shivendra Bikram Singh wherein the Apex Court held that the Court-martial discharges judicial function and the procedure provides for a fair trial to the accused and therefore unless it is shown that prejudice has been caused or mandatory provisions have been-violated the High Court should not allow challenge the validity of the conviction and sentence of the accused when the evidence is sufficient. According to us, unless the same is a judicial court, and how the proceeding before it can be said to be judicial proceedings, hence the Security Force Court and/or a Court-martial is a judicial Court. Our aforesaid views are also supported by a decision of the Apex Court in the case of Union of India and Ors. v. I.C. 14827 Major A. Hussain, wherein the Apex Court held that Court-Martial discharges judicial function to a great extent, it is a Court where provisions of Evidence Act are applicable and a Court-Martial has also some responsibilities as any Court to protect the rights of the accused charged before it and to follow the procedural safeguard. We also noticed and mentioned earlier that the learned Counsel of the parties while arguing the case of Charan S. Gill (supra) did not place the case of Major A. Hussain (supra) before the Apex Court and as a result, their lordships in Charanjit S. Gill (supra) were not a position to consider the earlier decision of the apex court in Major A. Hussain (supra) wherein the Apex Court held that court-martial is also a court. The Apex Court also took note of the decision in Major A. Hussain (supra) in the case of Shivendra Bikram (supra) and Union of India v. G.S. Bajwa reported in (2003) 9 SCC 630 wherein their lordships affirmed the views taken in the case of Major A. Hussain (supra). In Pradeep Singh (supra) the Apex Court also followed the principles laid down by it in the earlier decision of the Court in the case of Major A. Hussain (supra).
26. For the aforesaid reasons, we are of the considered opinion that Court-matrial of Army, Navy, Air Force and other paramilitary force like BSF and CRPF are also a judicial Court while the same is trying civil offences committed by persons subject to the Act following the provisions of Indian Evidence Act and criminal procedure code and while the said court-martial is trying an offence or misconduct committed by a person subject to the Act against the service law and administrative lapses, then the same should be considered as an adjudicative or administrative tribunal. Hence when the Security Force Court/Court-Martial is a judicial Court or administrative Tribunal that will depend upon particular circumstances and the nature of offence committed.
27. According to us, there is no such wrong committed by the said authority while the authority also considered all the relevant provisions of law including the provisions of the Evidence Act and the summing up report of the law officer and came to the finding that the accused-petitioner is found guilty on the evidence available and sentenced to suffer R.I. for 2 years with an order of dismissal. We are of the opinion that the learned single Judge did not, commit any wrong but very rightly held that the High Court sitting in a writ jurisdiction, has no power to re-appreciate the evidence of the witnesses before the GSFC, as we have already held that the power of judicial review of the High Court is always there when the security force court acted beyond the jurisdiction and contrary to the provisions of the BSF Act and or rules and without any evidence, but the High Court cannot convert itself into an appellate forum while the Security Force Court reached its finding on the basis of the evidence and acted within its jurisdiction and prescribed procedure of law, then it would not be proper for the High Court to exercise its power of judicial review. In the instant case, it appears from proceeding file, prosecution examined 14 witnesses. We have gone through the proceeding file produced before us, particularly page 69, 70,76, i.e. the finding and sentence given by the GSFC as relied by Mr. Das Learned Sr. Counsel and also the summing up report of the law officer, wherein he explains law relating to charge and summarized evidence including the medical evidence. According to us, this is not a case of no evidence and/or lacking sufficient evidence. Hence, we are of the view that the learned single Judge did not commit any wrong in dismissing the writ petition preferred by the petitioner-appellant.
28. We have also perused the statement of the prosecutrix, Smt. Laxmi Tripura, and we are of the opinion that this is not a case of no evidence or insufficient evidence and of considered opinion that the petitioner-appellant has been rightly convicted and sentenced on the basis of the evidence available before the Security Force Court as he committed a civil offence under Section 46 of the Act i.e. to say rape an offence punishable under Section 376 of I.P.C. on Laxmi Tripura and found guilty by the Security Force Court for such civil offence.
29. In Writ Appeal No. 606 of 2005 Dharamraj Kumar Singh v. Union of India and Ors. reported in 2007 (3) GLT 579 a Division Bench of this Court, wherein both of us were party, held that the disciplinary force cannot be a home for the member/delinquent officer to do whatever he likes to do as it is an Institution to main law and order and national security to develop national life and it is the duty of the member of the disciplinary force to work for fulfilling the national aspiration. If a member of such disciplined force becomes undisciplined, then the consequences will be nothing but nullification of the force, which is recognized by virtue of its discipline and the delinquent appellant petitioner in fact tried to nullify the discipline in the force. Discipline is the sine qua non for the public officer, in which we were party. In the instant case also, we are of the view that the accused-officer/petitioner appellant nullified the discipline of the force while on active duty by way of committing a civil offence, i.e. to say rape on Smt. Laxmi Tripura and we have no hesitation to come to a conclusion that the action taken by the force authority in the GSFC is valid and legal and also the decision of the learned single Judge is within the parameter of law laid down by the Apex Court, as he decided the matter considering all the law reports referred by the parties before him and properly interpreted those reports. For the aforesaid reasons, the writ appeal is dismissed. No order as to costs.