JAC- 31 LECTURETTE

JUDICIAL INTERFERENCE BY CIVIL COURTS IN

PRE-TRIAL STAGES

SS 50136A CAPT ANAND KR SINHA

ROLL NO 04
 JUDICIAL INTERFERENCE BY CIVIL COURTS IN
PRE-TRIAL STAGES

“Military Commanders are the Best Judge of Military Offences”

INTRODUCTION.

1. Discipline being the most crucial attribute of the Armed Forces and
punishment being the sine qua non of discipline the Armed Forces enacted a special
law providing for the governance of the members of the Armed Forces to maintain a
highly disciplined and efficient force. It cannot be denied that the Army Act contains
an exclusive, self-contained procedure by means of which administration of military
justice has been envisaged. Comparing more favorably with the system available
under various substantive and procedural criminal laws of the land. Following are the
fundamental principles that ensure the delivery of justice in military proceedings.

(a) The statutes governing the Army cater for well-defined procedures for
pre-trial as well as at trial and post-trial stages. The trial by court-martial
enjoins the forum to record evidence strictly in accordance with the provisions
of the Indian Evidence Act, 1872 and certain rules of presumption codified in
the Army Act,1950 itself.

(b) Another outstanding feature of the system is speedy trials of the

charges, most of them military in nature, thereby giving no room for denial of
interminable delays, a common feature of criminal courts throughout the
country.

(c) The dispensation of justice in the Army is not at the cost of tenets of
criminal jurisprudence, but in absolute consonance with it. The accused is
afforded full opportunity to defend himself right from the preliminary inquiry
stage itself and at the trial he is defended by an officer designated and
detailed as his ‘defending officer’ along with a legal counsel. Thus, justice
comes free of cost.

(d) There exist various inherent checks built therein to prevent even a
remote possibility of miscarriage of justice. The findings, and sentence, if any
of the Court is scrutinized from the legal point of view before the same is
confirmed and promulgated to the accused. Before doing so the confirming
authority, in the interests of justice, equity and fairplay, is empowered to
moderate the sentence by way of remission, commutation or mitigation. He
may even go to the extent of refusing confirmation of the proceedings on the
 ground of errors of law patent on the face of the record or where he is
convicted without being afforded an opportunity to defend himself.

2. Despite the special and unique position made for Court Martial by the
Constitution under Article 227 (4), there have been various cases found to have
been entertained by the High Courts disregarding the laid down norms. Furthermore,
even though the Army Act, 1950 (hereinafter referred to as the “Act”) and related
rules and instructions have elaborately laid down in the procedure of redressal from
the orders of disciplinary proceedings as mentioned above, there have been a large
number of cases wherein redressal seekers knock the doors of civil courts for justice
even before the actual trial in respect of a personnel has commenced. Though the
jurisdiction of civil courts over administration of military law has been ousted
statutorily, the writ jurisdiction under Article 32 and Article 226 of the constitution
remain unaffected. Therefore, it is essential to understand the scope and extent of
the judicial interference by civil courts especially at pre-trial stages.

SCOPE AND EXTENT OF JUDICIAL INTERFERENCE IN PRE-TRIAL STAGES.

3. An aggrieved personnel subject to Act have been found to resort to the

following forums for redressal while the disciplinary proceedings are still pending:-

(a) Petition before the Armed Forces Tribunal under Section 14 of the
Armed Forces Tribunal Act, 2007 (hereinafter ref to as the ‘AFT Act’).

Maintainability of OA under Section 14 of the AFT Act

(i) Section 14(1) of the AFT Act states that, “Save as otherwise
expressly provided in this Act, the Tribunal shall exercise, on and from
the appointed day, all the jurisdiction, powers and authority, exercisable
immediately before that day by all courts (except the Supreme Court or
a High Court exercising jurisdiction under articles 226 and 227 of the
Constitution) in relation to all service matters.”

(ii) Section 3 (o) of the AFT Act defines “service matters” which
include all matters relating to the conditions of their service, which shall
include termination of service, inter alia.1 Further, it has also been
clarified in State of Maharashtra v. Marwanjee Desai2 that any matter
relating to the conditions of service falls within the definition of ‘service
matters’ under Section 3(o) of the AFT Act and can be the subject
matter of an application filed before the Tribunal. ‘Conditions of service’
mean those conditions which regulate the holding of a post by any
person right from the time of his appointment till his retirement and
even after his retirement including the aspect of pension etc. Therefore,
conditions of service also include dismissal from service and any

1
Section 3 (o), Armed Forces Tribunal Act, 2007
2
(2002) 2 SCC 318
 proceeding which leads to an order of termination would fall within the
expression ‘relating to conditions of service’.

(iii) It has further been brought out in S.S. Bola v. B.D. Sharma3 that
the AFT Act was made to provide adjudication of complaints and
disputes regarding service matters and not only appeals against the
verdicts of the Court Martial.

(iv) Union of India v P S Gill4

(aa) The respondent filed an original application before the

Principal Bench, Armed Forces Tribunal, New Delhi, to question
the validity of the order convening the General Court Martial, to
quash the proceedings of the Court of Inquiry, summary of
evidence and the conclusion of the GOC-in-C, Western
Command holding him prima facie guilty. He further questioned
the invocation of Section 123 of the Army Act against him to
continue the proceedings even after his retirement.

(ab) The Tribunal as per laid down law only looked into
probative value of the material on record that has to be at the
time of framing of charge, proceeded to decide as to whether
a prima facie case is made out and it was concluded that there
was no foundation even to prima facie show the lapses on the
part of the Respondent and hence the charges framed against
him were found unsustainable. Consequently, the charges were
quashed.

(ac) The Appellants made an attempt to obtain leave to

Appeal under Section 31 the AFT Act, to approach the Supreme
Court, which was not entertained. Aggrieved by the judgment of
the Tribunal, the Appeal was then filed under the Supreme
Court.

(ad) The learned counsel appearing for the Appellant

contended that the O.A. in this case was filed under Sections 14
against an order by which the Court Martial was convened and
the Tribunal did not have jurisdiction to entertain the subject O.A.
at the interlocutory stage and that a verdict is a final judgment or
order passed by the Court Martial and as such, an order by
which the General Court Martial was convened cannot be the
subject matter of an appeal before the Tribunal.

3
(1997) 8 SCC 522
4
2019 SCC Online SC 1519
 (ae) The learned counsel for the Respondent argued that
Section 14 of the AFT Act provides that the Tribunal shall
exercise all jurisdiction, powers and authorities exercisable by all
Courts (except the Supreme Court or the High Courts exercising
jurisdiction under Articles 226 and 227 of the Constitution), in
relation to service matters. He further submitted that according to
Section 14(2), any person aggrieved by an order pertaining to
any service matter may make an application to the Tribunal and
that the jurisdiction of the Tribunal cannot be curtailed on
pedantic grounds and the order by which General Court Martial
was convened was rightly set aside by the Tribunal.

(af) The Supreme Court relied on the judgement in Mantri

Technozone v. Forward Foundation5 wherein it was held “that an
interpretation which confers jurisdiction should be preferred over
an interpretation which takes away jurisdiction” and held that
impugned judgment of the Tribunal does not suffer from lack of
jurisdiction. Therefore, an order convening a GCM can be
challenged before an AFT.

(b) Writ Petition under Article 226 and Article 32 of the Constitution .

(i) Writ petition before Supreme Court under Article 32 of the

Constituion. It can be filed when there is a violation of
Fundamental Right as mentioned under Article 12 to 35 of the
Constitution of India. However, the Constitution also provided for the
Parliament to restrict or abrogate the fundamental rights of the
members of the Armed Forces vide Article 33 6 in consideration of the
exclusive character of the organization. Further, in Ram Swarup v
Union of India7, it has been clarified by the Apex Court that when a law
made by the Parliament affects a fundamental right under part III of the
Constitution, that provision does not become void for it must be taken
that Parliament had thereby in the exercise of power under Article 33
made the requisite modification to affect the respective fundamental
right. Accordingly, the writ must be in compliance to the provisions
described as above.

(ii) Writ petition before High Court under Article 226 of the
Constitution. The power of the High Court under the Article 226
is very wide and is utilised for enforcement of Fundamental Rights and
also other ordinary legal rights. However, as held by the Apex Court in

5
2019 SCC OnLine SC 322 (3JB)
6
Article 33 of the Constitution of India.
7
AIR 1965 SC 247
 Radhey Shyam & Anr vs Chhabi Nath & Ors 8,the High Court under its
writ jurisdiction has the power to only correct errors of jurisdiction
and cannot disturb the true findings of the facts because they are
within the appellate Court’s jurisdiction. Therefore a writ will be
maintainable under Article 226 of the Constitution by the High Court
under the following circumstances :-

(aa) want or excess of jurisdiction

(ab) violation of procedure or disregard of principles of natural
justice.
(ac) error of law apparent on the fact of the record.

(iii) The Supreme Court has laid down the following circumstances
in which Judicial Review can be exercised: -

(aa) In S N Mukherjee v Union of India 9, the Court held that

judicial review may be proved if :

(aaa) the said proceedings have resulted in denial of

Fundamental Rights
(aab) the said proceedings suffer from a jurisdictional
error

(aac) there is an error of law apparent on the face of the

record.

(ab) In Union of India v Maj A Hussain10, the Supreme Court

held that if the composition and the proceedings were not in
accordance with the procedure prescribed under the Army Act,
1950, the High Court and Supreme Court can interfere.

(ac) In Union of India v Himmat Singh Chahar 11, the Supreme

Court held that violation of principles of natural justice that vitiate
the proceedings call for judicial review.

(v) In contrast, the Supreme Court has held in the following cases
that no judicial review will lie:-
(aa) In BC Chaturvedi v Union of India 12, the Court could not
review the decision or order of punishment by the disciplinary
8
 (2009) INSC 753

9
(1990) 4 SCC 594
10
(1998) 1 SCC 537
11
(1999) 4 SCC 521
12
(1995) 6 SCC 749
 authority and the court could not act as an appellate body to
reappreciate the facts and evidence.
(ab) In the Chahar case13, it is not the duty of the Court to
ensure that the conclusion which the authority reaches is
necessarily correct in the eyes of the law. The ambit of the
judicial review is to merely comment on the manner of the
proceeding taken.

(iv) Brig Iqbal Singh VSM v Union of India14

(aa) The petitioner filed a writ before the Delhi High Court for
issuance of a writ of prohibition against the respondents for
taking disciplinary action against the petitioner when the trial is
yet to commence.

(ab) The contention of the learned counsel of the petitioner

was the trial was barred by limitation under section 122 of the
Army Act, 1950. However, the court in the subject case made
the following observations:-

(aba) The recording of summary of evidence cannot be

subjected to judicial scrutiny when the trial has not even
commenced.

(abb) The petitioner will be afforded an opportunity to

challenge the action by the respondents and conduct
cross-examination of the prosecution witnesses before
the Trial which is when the court shall decide the issue
strictly in accordance with law uninfluenced by
observations made by any other judicial forum.

(abc) The stage for taking objection relating to the

jurisdiction of the Court Martial to proceed with the trial
by virtue of the bar of limitation is at the stage of
recording of General Court Martial, as limitation being a
question of law and fact necessitates evidence to be
recorded.

(abd) The statutory scheme provides valuable

safeguards to the petitioner in respect of every stage of

13
supra
14
2005 (79) DRJ 492 (DB)
 the proceeding; at the court of inquiry and summary of
evidence – an opportunity to cross-examine, during the
trial – by virtues of pleas, and after the trial, i.e against
the order passed by the Court Martial – under Section
164 (1) of the Army Act, 1950 wherein the confirming
officer has to satisfy itself of the correctness of the order
passed.

(abe) The Court held that when adequate remedy

provided to the petitioner in the course of the Court
Martial and Statutory appeal under Section 161, 164 and
179 of the Army Act, 1950, the writ petition held to be
not appropriate remedy.

(c) Provisions for redressal under Army Act, 1950 . Section 26 of the
Army Act, 1950 provide remedies to aggrieved persons against decisions
taken by authorities against them and Section 27 of the Army Act, 1950
confers a right of redressal to any officers who deems himself wrong by his
Commanding Officer or any superior Officer who on due application made to
such Commanding Officer does not receive redressal to which he considers
himself entitled. Such officer is given the right to make a complaint to the
Central Government in such manner as may from time to time be specified by
the proper authority. In respect of the above provision, the Supreme Court in
Union of India v P S Gill 15observed that protracted representations to the
authorities results in deviation from the main matter and such petitioning as
well as litigation and stay orders are devices adopted to create situations for
withholding commencement of trials. It is noticed that after creating situations
for delayed commencement of trial, persons have pleaded the bar of limitation
to the trial by Court Martial. And further relying on Union of India v Harjeet
Singh Sandhu16, the court clarified that, having created such a situation for
himself, he must not take advantage of his own wrong, and must be estopped
from pleading the bar of limitation. Similarly, if the petitioner has not raised
issues of noncompliance in pre-trial stages, he cannot be allowed to raise a
plea on the same later.17

CONCLUSION.

4. Even though there is very limited scope of interference by the courts through
the process of judicial review, the civil courts can neither look into the facts or
evidence of the case nor into the adequacy of the punishment but only into the
procedural aspects of the proceedings. Nevertheless, there has been an increasing

15
supra
16
(2001) 5 SCC 593
17
Virendra Kumar v Union of India 2020 2 SCC 714
number of military personnel seeking relief from civil courts. The number of military
cases pending in civil courts in 1992 was 1723 and that number drastically moved to
6024 in 200018. In view of the above, whether the judicial interference by the Courts
in pretrial stages in the name of judicial activism is proving to be detrimental to
maintenance of discipline within the Army is a question that needs to be addressed.

5. Despite the special and unique position carved out for court martial by the
Constitution itself, of late, the judicial activism is growing rapidly in the Army cases.
Some High Courts, disregarding the laid down norms, have transgressed its
jurisdiction and passed interim orders and writs. Such judicial transgressions more
often than not are in total violation of the concept of judicial review, which in its wider
sense means a final decision by the Court of Law. As such, all questions of fact and
law, i.e. the merits of the whole case, would open to judicial review. In it’s narrow
sense, judicial review is essentially collateral and does not go into the merits of the
case but only examines the constitutionality and basic legality thereof, i.e on account
that of no jurisdiction or against the fundamental provisions of a statute.

6. Judicial review on procedural grounds can be made by the Court in respect of

laws. The division between the two kinds of grounds of review i.e procedural and
substantive is analogous to the one between, “procedural due process” and
“substantive due process” made by the US Supreme Court in interpreting the due
process clause of the 14th amendment of the US Constitution. The “due process of
law concept” in the Indian context is a fall out of the interpretation of Article 21 as
given by the Supreme Court and which forms the basis for the evolving of the
concept of judicial review by Courts while exercising their writ jurisdiction. In this
regard, it would be beneficial to remember that Article 21 of the Constitution lays
down that no person shall be deprived of his personal life and liberty except
according to the “procedure established by law”. At the same time, it may be
remembered that procedure laid down in the Army Act and Army Rules is the one
established by law. In fact, Article 21 which guarantees a fundamental right, is also
subject to be restricted or abrogated under Article 33.

7. Lastly, since the point of scrutiny is judicial interference by civil court at pretrial
stages specifically, it is to be noted that the judiciary in respect of matters heard by
them wherein the trial is yet to commence or is pending, must have faith in the
military decorum which is instilled withchecks to prevent even a remote possibility of
miscarriage of justice. Therefore, whilst exercising the power of judicial review at pre-
trial stages, instead of granting reliefs to include, release of personnel on bail, interim
stays/ stalling of proceedings or staying of attachment for discipline etc, the courts
must give the military court an opportunity to rectify the grievance at its appropriate
stage under provisions of the Act thereby in consequence avoiding non-delivery of
justice that may occur, some probable example of which are undermentioned:-

18
Editorial, “How fair is the Army Judicial System”, the Tribune (Chandigarh, India 23 October 2001)
 (i) In cases where the court grants bail resulting in the escaping of accused
even when their writ petitions are dismissed.

(ii) In cases where Interim stays are granted and proceedings are stalled,
the prolonged delays act adversely in the administration of justice.
Additionally, postings and promotions are stayed bringing the entire process
on halt.

(iii) Stays on Attachment for discipline and on proceedings render the trial
as time barred as limitation of period expires during the course of the stay.

8. Therefore, it is a matter for consideration that while the interference by Courts

in the disciplinary process may be reassuring to some, there are grave attendant and
inherent dangers in this sort of assertiveness. Surely, the judiciary cannot violate the
Constitution and must act strictly as per law. However, in the process of performing
its own functions, the judiciary naturally would be expected to confine itself
scrupulously to the allocated function and refrain from transcending it under any
situation or circumstances. Moreover, it cannot be doubted that military commanders
are the best judge of military offences, as they are not committed against an
individual but against the whole Army. Therefore, the Courts may consider a more
restrictive approach towards redressal of cases by armed forces personnel rather
than a proactive approach especially when the trial is yet to commence.