JUDGMENT
Lokeshwar Singh Panta, J.
1. The above writ petition has been filed by Naik (Lance Havildar) Jodh Singh under Articles 226 and 227 of the Constitution of India seeking the following reliefs :
I. To quash the order Annexure P-1 of the General Court Martial convicting and sentencing the petitioner to suffer imprisonment for life;
II. To quash the order of dismissal from service and reduced to ranks;
III. that the petitioner may be ordered to be acquitted of the charges;
IV. that the petitioner may be ordered to be reinstated in service with all consequential benefits; and
V. That any other order deemed just and proper by the Court including the cost of the petition.
2. The petitioner was enrolled in the Indian Army on 24th September, 1976 as Naik (Lance havildar) No. 3974969F and was posted to 11 Dogra on completion of basic training. During January 1992 he was serving in the Battalion in Nowshera Sector (J&K). On 20th January, 1992 while the petitioner was serving on forward post he received a telegram from his native village that his father was unwell. On 22nd January, 1992 his leave was sanctioned by his Company Commander who was at Kalsian base. The petitioner was prosecuted in Court Martial proceedings for causing the death of one Lance Naik Partap Singh No. 3979871X of the said Unit. The prosecution case against the petitioner briefly enumerated was as under :
3. That on January 24, 1992, the petitioner left the FDL 544 at about 10.30 hours along with the deceased L/Nk Pratap Singh for Kalsian Base via Karhali village. The deceased and one Nk Yash Paul, who was on sentry duty, protested to petitioner that the straight route normally taken for Kalsian Base should be adhered to. The deceased Pratap Singh also told the petitioner that he was not aware of the route to Kalsian Base via Karhali village. The petitioner did not heed to their protest and proceeded to Kalsian Base via Karhali village with the deceased Pratap Singh. After their departure from FDL 544, the petitioner at about 11.45 hours on January 24, 1992 re-appeared in the FDL 544 with a blood smeared bayonet in hand and said that he had killed L. NK Pratap Singh. At that time Nb/Sub Ghando Ram of 11 Dogra was also present in FDL 544. Nk. Yash Pal and Nk. Subedar Ghando Ram tried to apprehend the petitioner but he jumped and ran away towards Kharhali village. Shri Yash Paul informed the second-in-command telephonically about the alleged murder of lance Nk. Pratap Singh. A detailed searched to apprehend the petitioner and also to locate Pratap Singh deceased was immediately ordered. As such the petitioner was apprehended and brought back to the FDL 544. The dead body of Pratap Singh was also recovered at the instance of petitioner later on. Thereafter post-mortem of the dead body was conducted by the doctor. Subsequently after completion of various formalities, the petitioner was put to trial before the General Court Martial for the commission of offence of murder of Lance Nk. Partap Singh.
4. The petitioner was chargesheeted under Section 69 of the Army Act for committing a civil offence under Section 302 of the Ranbir Penal Code. After preliminary inquiry the General Court Martial was constituted. The prosecution examined 13 witnesses and the petitioner appeared in defence as DW 1. His defence was that while he along with Lance Nk. Pratap Singh was approaching the gate of the safe lane a conversation ensued between them about sanction of petitioner’s leave. The petitioner submitted that Lance Nk. Pratap Singh started saying that parents would produce children for their pleasure and afterwards they will forget them and a few more derogatory words were used by Lance Nk. Pratap Singh against petitioner’s parents about which he felt bad. He pleaded that the moment they crossed the gate of the mine field safe lane Lance Nk. Pratap Singh pointed his rifle at him. He stepped back and removed the magazine from the rifle by pressing the magazine catch. Lance Nk. Pratap Singh removed the bayonet from his rifle and took out the scabbard by his left hand and tried to stab the petitioner with the bayonet. The petitioner stated that he jumped over the wire and went inside the minefield to save himself but Lance Nk. Pratap Singh also jumped over the wire and ran after him. Thereafter a fight started between them and they went five to seven metres ahead while scuffling and in the meantime Lance Nk. Pratap Singh attacked the petitioner with bayonet which struck at his right leg, below the knee slashing his trouser. The petitioner caught hold of hand of Lance Nk. Pratap Singh and snatched the bayonet from him using his both hands. The petitioner said that he struck Lance Nk. Pratap Singh with the bayonet which hit him at the back of his neck on which he fell down and the petitioner continued stabbing him on his neck for eight to ten times. The petitioner also stated that thereafter he ran towards post holding beyonet in his hand and reached FDL-544 and that he lost his senses after he had killed Lance Nk. Pratap Singh. He pleaded that he did not know how he reached the post but when he reached the post he shouted that he had killed Lance Nk. Pratap Singh. Thereafter he went to Vaishno Mata temple bowed down before her with folded hands and murmured that he had come back. When he turned back and saw Naib Subedar Gandho Ram with a rifle in firing position pointing towards him he got scared and jumped down, fearing he would be shot dead.
5. The General Court Martial after holding the petitioner guilty of the charge of murder of Lance Nk. Pratap Singh imposed punishment upon him to suffer imprisonment for life and dismissal from the service and the petitioner was also ordered to be reduced to the ranks. The order Annexure P-1 was passed on 15-12-1992 which has been impugned in this writ petition on the following grounds :
(A) That the impugned order Annexure P-1 is not reasoned and speaking order in support of decision by a judicial quasi-judicial authority;
(B) That the prosecution has not proved with certainty that the petitioner had used and carried the rifle bearing Butt No. 555 and the story put forward by some interest persons in the Regiment was after thought and not believeable. The rifle was not sent for examination to the Director, Central Forensic Science Laboratory, Government of India, Chandigarh to exclude possibility that no beating was done from the said rifle;
(C) That it has not been established by the prosecution that the petitioner had any intention to cause death of Lance Nk. Pratap Singh or has any motive to commit the offence and there was no eye-witness to the occurrence nor the prosecution witnesses deposed that the petitioner killed Lance Nk. Pratap Singh;
(D) That the story put forward by the prosecution that the petitioner has admitted his guilt is untrustworthy for the reason that it was not a written admission or confession nor there was any corroboration of the alleged oral extra-judicial confession;
(E) That the General Court Martial has erred not extending the benefit of doubt in favour of the petitioner to which he was legally entitled in the peculiar circumstances of the case and further that the General Court Martial has erred in not extending the benefit of provisions of Sections 3 and 4 of the Probation of Offenders Act in favour of the petitioner and
(F) That the petitioner is a matured person and has old ailing parents and that in case he is found to be guilty, the sentence awarded is excessive and he deserves to be dealt with leniently especially in view of the fact that there was no pre-meditation to commit the crime and that at the spur of moment the weapon was used without any preparation that too in self defence by the petitioner.
6. On the above said premises, the petitioner has filed the present writ petition seeking reliefs noticed hereinabove.
7. Counter on behalf of the respondents was filed by IC-46078K Major P.S. Mankotia, Officer Commanding ‘D’ Company of 11th Battalion the Dogra Regiment in which it has been stated that Article 227 of the Constitution of India conferred power on the High Court of Superintendence over all the Subordinate Courts and the said Article is not attracted in the case because Clause (4) of the Article exclusively debars power of superintendence on any Court or Tribunal constituted by or under any law relating to the Armed Forces. The respondents have stated that under Article 226 the High Court can no doubt exercise judicial review of the proceedings of the Court Martial but the powers of this Court are limited to the extent that there should be any illegality, irrationality or procedural impropriety in the order so as to warrant interference by the Court and in this case no such situation exists on the face of the record. The respondents have stated that the Summary General Court Martial was held according to the provisions of Rules 151 to 165 of the Army Rules, 1954 and the petitioner was afforded sufficient opportunity to defend himself and prove his innocence. The respondents also stated that the judicial confession made by the petitioner before the Court Martial was made voluntarily by him after it was made clear to him by the Court that there was neither any threat or any coercion nor any inducement given to him by any authority and he was tried and punished strictly in accordance with the evidence and the case was decided on the basis of evidence that came on record. It has also been stated that at any stage during the course of the proceedings before the Court Martial the petitioner did not take plea that he had made confession either under threat or coercion or any inducement given to him nor the confession voluntarily made by the petitioner was ever retracted at any stage by him.
8. On merits, the respondents have stated that the Court recorded its decision based on the statements of the witnesses and the petitioner was also provided with a defence counsel and defending Officer at Government expenses. The convening order for Summary General Court Martial was issued by the Competent Authority and the punishment awarded by the Court Martial was confirmed by the Competent Authority i.e. Major General Surjit Singh, General Officer Commanding 25 Infantry Division on 15th February, 1993 and thereafter the petitioner was sent to civil prison at Dharamsala after confirmation of the punishment. The respondents have also stated that rifle butt No. 555, Registered No. 31131 was issued in the name of the petitioner at 1000 hrs. on 17th November, 1991 as per the weapon issue register. However, on 24th January, 1992 at about 1030 hrs Lance Nk. Pratap Singh was carrying the rifle butt No. 555 along with the petitioner while moving from FDL 544 to the Kalsian base because it was a routine order that minimum two persons should move together and at least one person will have a weapon and Lance Nk. Pratap Singh was carrying the weapon only as a kind gesture and mark of respect for Senior Lance Havildar (Now Sepoy) Jodh Singh i.e. the petitioner. The respondents also stated that the rifle was not sent for forensic examination for the reason that from the post mortem report of deceased Lance Nk. Pratap Singh no external injury was indicated which could be caused by a bullet or by beating on the body of the deceased and 30 multiple stab wounds on his neck were found which were inflicted with the help of bayonet. The bayonet was sent to the Forensic Department and the report was received and marked Annexure P-1. The respondents have further stated that forensic examination is required to be done only of the weapon with which the offence has been committed. The respondents stated that the petitioner had the intention to commit the murder of Lance Nk. Pratap Singh because firstly, he changed the escort i.e. Lance Nk. Tej Singh who was initially deployed to accompany him at the last minute, secondly the petitioner compelled the deceased to follow a secluded route for going to Kalsian base which was not used normally and thirdly the multiple stabs (30 in Nos.) on the neck of the deceased was a clear indication that the petitioner wanted to ensure that Lance Nk. Pratap Singh did not survive. The respondents finally prayed for the dismissal of the writ petition. No rejoinder came to be filed by the petitioner to the counter of the respondents.
9. We have heard Mr. Rajiv Sharma, learned counsel for the petitioner and Mr. Sureshwar Thakur, learned Addl. Central Govt. Standing Counsel. Mr. Rajiv Sharma, learned counsel made three-fold contentions; (i) that the petitioner had right to private defence to his body when he apprehended that the deceased was to attack him with the bayonet of his rifle and in order to save his life the petitioner inflicted the alleged injuries upon the deceased; (ii) that the petitioner had no motive or pre-meditation to murder Lance Nk. Pratap Singh and in the absence of any motive or pre-meditation or intention, the petitioner ought to have been dealt with by the Court Martial under exception to Section 300 of Ranbir Penal Code and at the best the case would fall under culpable homicide not amounting to murder and (iii) that the confession of the petitioner was not voluntarily made by him and, therefore, no reliance could have been placed on the said confession alleged to have been made to the Army officials and the Court Martial.
10. Per contra, Mr. Sureshwar Thakur, learned Addl. Central Govt. Standing Counsel contended that the petitioner had no right of private defence as per the evidene on record led before the Court Martial it has been proved that there was no apprehension from Lance Nk. Pratap Singh to the life of the petitoner nor any threat was given to the petitioner by Lance Nk. Pratap Singh in any manner to harm his body. The learned Addl. Central Govt. Standing Counsel next contended that the pre-meditation of the petitioner has been established on record when the petitioner chose to take a secluded route to go to Kalsian base which was not a normal route and this fact was sufficient to show pre-meditation of the petitoner to commit the offence. He also contended that from the reading of the evidence of prosecution witness Yash Pal it stands fully establised that the petitioner voluntarily made extra-judicial confession without any threat or inducement to him by any of the Army official and he was given to understand by the Court Martial that in case the petitioner would make such confession no leniency would be shown to him.
11. We have given our thoughtful consideration to the rival contentions of the learned counsel for the parties. From the perusal of the Court Martial proceedings we find that the petitioner submitted before the Court Martial that he was abused by Lance Nk. Pratap Singh stating that the parents are in the habits of producing their children for their pleasure and afterwards they will forget them and the petitioner felt bad about the said remarks made by Lance Nk. Pratap Singh which resulted altercation between them. Lance Nk. Pratap Singh pointed rifle at him and he removed the magazine from the rifle by pressing the magazine catch. On this Lance Nk. Pratap Singh removed the bayonet from his rifle and took out the scabbard by his left hand and attacked the petitioner with the bayonet which struck at his right leg below; the knee slashing his trouser. The defence of the petitioner has not been found satisfactory by the Court Martial. JC-17800N Subedar Prithvi Raj appeared as P.W. 10 who deposed before the Court Martial that on 24th January, 1992 he was called by Major A.K. Ghildyal, Officer Commending D Company, in his bunker at about 12.45 hours and ordered him to take six men and to go towards Kurtol gap to apprehend the petitioner who had run away from FDL 544. He deposed that when he reached near FDL 544 he met Lieutenant Colonel O.P. Tomar coming from the direction of village Karhali who told him that the petitioner was at one of the cliff near village Karhali and ordered him to go there along with his men and apprehend the petitioner. When he reached at the above said cliff he found the petitioner standing on the cliff holding bayonet in his hand and the bayonet was smeared with blood and there was blood spots on the face of the petitioner. The petitioner confessed before him in the following words :
Maine Lance Nk. Pratap Singh to Khatam kar diya hai aur uski lash minefield me fank diya hai (I have killed Lance Nk. Pratap Singh and have thrown his body in the minefield.)
The petitioner also told him that he would not come up else Second-in-Command would shoot him. On this apprehension of the petitioner the witness told him that Second-in-Command had gone away from there and if Second-in-Command had not shot him earlier how he could shoot now. On the asking of the witness the petitioner handed over bayonet to him. When the witness along with the petitioner reached at FDL-544, Second-in-Command Lt. Col. O.P. Tomar, Naib Subedar Gandho Ram and many other members of the Unit were present there and on the aking Ltd. Col. O.P. Tomar about the whereabout dead body of Lance Pratap Singh the petitioner guided them to a place where a rifle, magazine and scabbard were lying on the ground near minefield. The petitioner thereafter pointed to a bush inside the minefield where the dead body was found by Second-in-Command and Naib Subedar Gandho Ram.
IC-32876M Lt. Col. O.P. Tomar appeared as P.W. 11 and deposed that at about 11.50 hours on 24th January, 1992 while he was working in his office he received a telephonic call from FDL-544 from Naik Yash Paul who informed him that petitioner had just returned to the post with a blood smeared bayonet and he had told Nk. Yash Paul that the petitioner had killed Lance Nk. Pratap Singh. Naik Yash Paul also told him that Lance Havildar Jodh Singh had run away towards village Karhali. The witness deposed that he told Nk. Yah Paul to take a few boys and search for Lance Nk. Pratap Singh in the direction from where the petitioner had come. Thereafter he immediately rang Major D. Bahuguna who was at FDL-544 and apprised him about the incident and asked him to take an armed escort with him . and one-one-ten vehicle from FDL 544 and make search in area of Kurtol gap to FDL 544 to look for Lance Nk. Pratap Singh. Soon thereafter the witness received a telephonic call from Naib Subedar Ghando Ram who informed him that he had located one rifle, one magazine and one scabbard in the minefield safe lane. Thereafter he deputed Captain P.S. Mankotia, Officer Commanding Hotel Whiskey Complex to take one armed escort with him and make search for the petitioner and apprehend him. Adjucant Captain Pawan Bajaj was also requested to send a search party along with the foot track from Kalsiyan Base to FDL-544 to look for Lance Nk. Pratap Singh. The witness along with Captain Nitin Sharma Regimental Medical Officer of the Unit went to FDL 544 and on reaching there he found there was only one sentry at the post who informed that all others had gone to search for Lance Nk. Pratap Singh and look for the petitioner. When he went towards Karhali village along with Captain Nitin Sharma, he noticed the petitioner standing on a cliff. The witness deposed that when he started moving towards the petitioner, he shouted that in case the witness would go closer to the petitioner, the petitioner would jump down from the cliff and when the witness was slowly approaching towards the petitioner, the petitioner started running and the witness also followed him and found him standing about 20 feet below the top edge of the cliff. He saw the petitioner holding blood smeared bayonet in his hand and continued repeating his threat of jumping down in case the witness moved further forward to apprehend him. The witness engaged the petitioner in a very long conversation and asked him to tell where Lance Pratap Singh was lying. The evidence of PWs. Prithvi Raj and O.P. Tomar was corroborated further by P.W. 2 Major D. Bahuguna, Naib Subedar Ghandho Ram an Lance Nk. Yash Paul. None of these witnesses has stated before the Court Martial that when the petitioner was apprehended and brought to the base his right leg below the knee was found injured and trouser slashing. It has come in the evidence of the petitioner himself that he jumped over the wire and went inside the minefield. It may be possible that while the petitioner jumped over the wire his right leg below the knee might have sustained some injuries slashing his trouser.
13. The learned counsel for the petitioner has relied upon various judgments of the Supreme Court in Jai Dev v. State of Punjab AIR 1963 SC 612 : (1963 (1) Cri LJ 495), Munshi Ram v. Delhi Administration, AIR 1968 SC 702 : (1968 Cri LJ 806), State of U.P. v. Ram Swarup, AIR 1974 SC 1570: (1974 Cri LJ 1035), Mohan Singh v. State of Punjab, AIR 1975 SC 2161 : (1975 Cri LJ 1865) and Mohd. Ramzani v. State of Delhi, AIR 1980 SC 1341 : (1980 Cri LJ 1010) to contend that the petitioner had succeeded in establishing with a balance of probability that the deceased armed with a Bayonet assaulted the petitioner on his right leg and in order to save his body, the petitioner in his private defence inflicted injuries on the body of Lance Pratap Singh and the case of the petitioner was covered under Section 105 of the Evidence Act and Section 97 of the Ranbir Penal Code equivalent to Section 97 of the Indian Penal Code.
14. We have given out thoughtful consideration to the ratio of the judgments of the Apex Court. In these judgments the Hon’ble Judges of the Apex Court have held that the right of private defence is a right of defence not of retribution and it is available in face of imminent peril to those who act in good faith and in no case can the right be conceded to a person who stage manages a situation wherein the right can be used as a shield to justify an act of aggression. In the case on hand from the evidence led by the prosecution before the Court Martial we find that the petitioner could not establish that he had the right of private defence to his body at the time of scuffle ensured between him and Lance Nk. Pratap Singh and that Lance Nk. Pratap Singh wanted to inflict injuries to the petitioner which gave imminent danger to the life of the petitioner. From the material on record, it appears to us that there was no occasion for Lance Nk. Pratap Singh to use the bayonet and inflict the injury on the right leg of the petitioner. The burden to prove the exception was heavily upon the petitioner which he could not prove beyond preponderance of the probabilities. The first contention of the learned counsel for the petitioner, therefore, was not tenable and shall stand rejected.
15. The next contention of the learned counsel that there was no motive or premeditation of the petitioner to kill Lance Nk. Pratap Singh and, therefore the petitioner is entitled to exception under Section 300 of the Ranbir Penal Code as the offence if any alleged to have been committed by the petitioner would be at the most culpable homicide not amounting to murder. We are afraid to accept this contention too. It has been established by the prosecution before the Court Martial that on 24th January, 1992 at about 10.30 hours Lance Pratap Singh was carrying the rifle when he accompanied the petitioner while moving from FDL 544 to the Kalsian base because it was a routine order that minimum two persons should move and out of them one have a weapon and Lance Nk. Pratap Singh was carrying weapon only as a kind gesture and mark of respect for senior i.e. the petitioner. It is well settled proposition of law that it is not necessary in every case that motive shall be proved by the prosecution but the intention to commit the murder is also important ingredient and that can be gathered from surrounding circumstances based upon evidence led by the prosecution. In the present case, it has been established before the Court Martial from the evidence of the witnesses that firstly the petitioner changed his escort i.e. Lance Naik Tej Singh who was to accompany him at the last minute and this fact has been established on record by Naik Yash Paul and secondly that the petitioner compelled Lance Naik Pratap Singh to follow a secluded route to go to Kalsian base which was not used normally. In addition to these two circumstances the petitioner inflicted multiple grievous injuries (30 in Nos.) with sharp edged weapon i.e. bayonet on and around the neck portion of Lance Nk. Pratap Singh and thereafter concealed his dead body in bushes in the minefield. All these circumstances therefore, would clearly show that the petitioner wanted to ensur that Lance Naik Pratap Singh should not survive. From these circumstances it cannot be held that the Court Martial has erred in appreciating the entire evidence on record and the petitioner could not have been held guilty under Section 302 of the Ranbir Penal Code. We find no perversity and infirmity in the order of the Court Martial to reduce the conviction of the petitioner from Section 302 of the Ranbir Penal Code to culpable homicide not amounting to murder as we are not sitting as appellate Court and hearing an appeal against the conviction and sentence of the petitioner recorded by the Court Martial. The contention of the learned counsel that the petitioner if found guilty had committed the offence under grave and sudden provocation given by the deceased abusing his parents, too is not sustainable. In support of this submission the learned (Counsel placed reliance in K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605 : (1962 (1) Cri LJ 521). We find that the ratio of the said judgment of the Apex Court will be of no help and assistance to the petitioner in the facts and circumstances of the present case and it has been stated by petitioner himself in his defence that Lance Nk. Pratap Singh only said that the parents would produce children for their pleasure and afterwards they will forget them. We are of the view that if at all these words were used by Lance Nk. Pratap Singh to the petitioner, these cannot be construed as grave to suddenly provocate the petitioner to murder his companion Lance Nk. Pratap Singh. It has come in the defence of the petitioner himself that he struck Lance Nk. Pratap Singh with Bayonet on the back of his neck on which he fell down and thereafter the petitioner kept stabbing Lance Nk. Pratap Singh on his neck for 8 to 10 times. The defence of the petitioner that he murdered Lance Nk. Pratap Singh under grave and sudden provocation cannot be accepted and the finding of the Court Martial cannot be found faulty on this round too.
16. The last contention of the learned counsel that the confession of the petitioner relied upon by the Court Martial was not made voluntarily too was untenable. The petitioner made confession statement when he was apprehended in the presence of Naib Subedar Ghando Ram, Nk. Yash Paul and Lt. Col. O.P. Tomar and he categorically said that he had killed Lance Nk. Pratap Singh. The petitioner was armed with blood smeared beyonet admittedly weapon of offence. Lateron the body of deceased Lance Nk. Pratap Singh was recovered from the place indicated by the petitioner. The petitioner during the Summary General Court Martial proceedings also made a confessional statement on 14th December, 1992 before the Court when he was warned by the Presiding Offier, Members, Judge Advocate of the Court Martial that in case he made such a confession, he would not be entitled to any leniency from the Court and despite the warning the petitioner made a voluntarily confession before the Cour Martial. The summary of evidence was recorded by the Court Martial in accordance with Rule 23(3) of the Army Rules and no fault is found in the summary of the General Court Martial by us which calls for interference in this writ petition. The judgment of the Apex Court relied upon by the learned counsel for the petitioner in Palvinder Kaur v. The State of Punjab, AIR 1952 SC 354 : (1953 Cri LJ 154) is of no help and assistance to the petitioner. The General Court Martial has not entirely relied upon the confession of the petitioner, while convicting him for the alleged offence, but the conviction was recorded on the basis of other cogent and convincing evidence and the confession statement was one of the circumstance which was taken into consideration.
17. The contention of the learned Addl. Central Govt. Standing Counsel that the decision of the Court constituted under law relating to armed force such as Army Act and Army Rules is not open to challenge under Article 226 cannot be accepted. In S.N. Mukherjee v. Union of India (1990) 4 SCC 594 : (1990 Cri LJ 2148), their Lordships of the Supreme Court held that the decision of Court constituted under Law relating to armed Forces such as Army Act and Army Rules was open to challenge uner Article 32 or 226 but not Article 136 or 227 of the Constitution of India. In Union of India v. Major A. Hussain (IC-14827). (1998) 1 SCC 537 : (AIR 1998 SC 577), their Lordships of the Supreme Court held as under :
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. 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 hand. 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 prescribe is equally fair if not more than a criminal trial provides to the accused. When there is sufficient evidence to sustain the 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 the accused has been prejudiced or that a mandatory provision has been violated. One may usefully refer to Rule 149 of the Army Rules. The High Court should not have allowed the challenge to the validity of conviction and sentence of the accused when evidence was sufficient, court-martial had jurisdiction over the subject-matter and had followed the prescribed procedure and was within its powers to award punishment.
Again in Union of India v. Himmat Singh Chahar (1999) 4 SCC 521 : 1999 Cri LJ 2894), their Lordships of the Supreme Court relying upon the earlier judgment in Union of India v. Major A. Hussain (AIR 1998 SC 577) again emphasised as under :
The defence personnel serving in the Army, Navy or Air Force when commit any offence are dealt with the special provisions contained in the Army Act, 1950 or the Navy Act, 1957 or the Air Force Act, 1950 and not by the normal Criminal Procedure Code. The said Navy Act is a complete code by itself and prescribes the procedure to be followed in case it is decided that an officer should be tried by a court-martial. The Act also provides sufficient safeguard by way of further appeal to the Chief of the Staff and then ultimately to the Union Government. Therefore, ordinarily there should be a finality to the findings arrived at by the competent authority in the court-martial proceedings. The High Court’s power under Article 226 to judicially review such findings is 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 vitiated the entire proceedings or that the authority exercising the jurisdiction had not been vested with jurisdiction under the Act. The said power of 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. Therefore, it has to be held that the High Court overstepped its jurisdiction in trying to reappreciate the evidence of N and in corning to the conclusion that her evidence was not credible enough to give a finding of guilt against the respondent of a charge under Section 354. Moreover, on facts it has to be held that the statement of N leads to an inescapable conclusion that the respondent has been rightly found by the authorities in the court-martial proceedings to have committed offence under Section 354.
18. In the light of the above-referred judgments of the Apex Court the power under Article 226 of this Court to judicially review findings of Court martial is 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 vitiated the entire proceedings or that the authority exercising the jurisdiction had not been vested with jurisdiction under the Act. The said power of judicial review cannot be a power of an appellate authority permitting this 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. As noted hereinabove we find no cogent ground to interfere with the findigns of the court-martial and the conclusion arrived at by it convicting the petitioner and sentending him to suffer imprisonment for life and consequential departmental punishments.
19. No other point has been urged by the learned counsel on either side.
20. In the result, for the above stated reasons, there is no merit in this writ petition which shall stand dismissed accordingly. However, the parties are left to bear their own costs.