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Amarendra Nath Das and anr. Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1977CriLJ493
AppellantAmarendra Nath Das and anr.
RespondentUnion of India (Uoi) and ors.
Cases ReferredJabalpur v. Shivakant Shukla
Excerpt:
- n.c. mukherji, j.1. criminal miscellaneous case no. 2729 of 1975 arises on an application under article 226 of the constitution of india filed by the petitioner amarendra nath das praying for a writ in the nature of habeas corpus and praying why the impugned order of sentence of imprisonment ordering the detention of the petitioner in civil prison be not set aside and/or quashed and the detenu set at liberty forthwith and also praying for a writ in the nature of certiorari quashing and/or setting aside the impugned order. criminal miscellaneous case no. 2730 of 1975 arises on an application filed by the petitioner anil kumar ghosh making similar prayers.2. the facts of the two cases may briefly be stated as follows:the petitioner amarendra nath das was attached to the composite food.....
Judgment:

N.C. Mukherji, J.

1. Criminal Miscellaneous Case No. 2729 of 1975 arises on an application under Article 226 of the Constitution of India filed by the petitioner Amarendra Nath Das praying for a Writ in the nature of Habeas Corpus and praying why the impugned order of sentence of imprisonment ordering the detention of the petitioner in Civil Prison be not set aside and/or quashed and the detenu set at liberty forthwith and also praying for a Writ in the nature of Certiorari quashing and/or setting aside the impugned order. Criminal Miscellaneous Case No. 2730 of 1975 arises on an application filed by the petitioner Anil Kumar Ghosh making similar prayers.

2. The facts of the two cases may briefly be stated as follows:

The petitioner Amarendra Nath Das was attached to the Composite Food Laboratory, Calcutta, from January 1971 to 3rd June, 1973 and he proceeded on leave cum posting from the said Laboratory on 4th of June, 1973, and he reported to the said Laboratory on 26th July, 1973, to collect his movement order and Railway warrant and his batch number was 6636695 HAB/CIK (Store). The petitioner along with two others were sentenced by General Court Martial assembled in Calcutta. The proceeding was started on and from 12th of July, 1974. The prosecution case as made out during the Court Martial was to the following effect:

On 6-7-1973, accused No. 3 Anil Kumar Ghosh detailed two labourers P.Ws. 10 & 11 to go to Oil Hydro Shed in POL Group and to sew 48 ting of oil Hydro in pairs in gunny bags and at about 16.30 hours on that date, the accused No. 2 Dharam Dev Singh asked the driver of the vehicle No. R.D. 19715 P.W. 1 to take the vehicle to POL Group for loading of oil hydro; the accused No. 3 Anil Kumar Ghosh gave the keys of the shed and ordered three labourers to go to oil hydro shed for loading and said tins packed in gunny bags in the said vehicle and thereafter by a gate pass the said loaded lorry moved towards Princep Ghat side where the petitioner was eagerly awaiting its arrival and thereafter the petitioner and the accused No. 2 took the vehicle to Ashokenagar, the hometown of the petitioner, where it was unloaded. The defence of the petitioner was that he had no complicity with the alleged taking out of 48 tins of oil hydro on 6-7-1973 on which date he was on leave as already stated above. He did hot know the accused Nos. 2 and 3 and he came to know of the alleged theft only on 26-7-1973 when he reported at the Composite Food Laboratory, Calcutta for his movement on transfer.

3. The case of the petitioner Anil Kumar Ghosh in Criminal Miscellaneous Case No. 2730 of 1975 is as follows:

The petitioner had been working in Defence Service under the respondent No. 1 and at the material time he was the Incharge of Necessary Group, Custodian of Oil Hydro of 225 COY ASC (Sup) since January, 1973 and his Batch No. was 6353876 NK/SHT. The prosecution case against the petitioner has been stated while giving out the prosecution case in the earlier case in Criminal Misc. Case No. 2729 of 1975.

4. The defence of the petitioner is that he had no complicity with the alleged taking out of the tins of oil hydro on 6-7-1973 and the gate pass in question which he signed was obtained from him by accused No. 2 by misrepresentation and in fact no hydro tins were issued or despatched against the said gate pass as on subsequent detection of misrepresentation the orders for issuance of stores were cancelled; the board appointed to take stock and verification of the stores did not carry out 100% stock taking at three godowns where oil hydro was stored as the board carried out stock taking in two sheds only. It was also denied by the petitioner that he ever ordered the labourers to load 24 packages in the vehicles on 6-7-1973 and made any confessional statement to Capt. R. Dayal.

5. The petitioner Amarendra Nath Das was charge-sheeted under Section 69 of the Army Act along with two other accused for committing civil offence, that is to say, criminal conspiracy contrary to Section 120-B of the Indian Penal Code. He was also charged under Section 52(d) of the Army Act for dishonestly receiving the property belonging to the Government having reasons to believe that theft has been committed in respect of the same by a person subject to Army Act; he dishonestly received oil hydrogenated contained in 48 tins.

6. The petitioner Anil Kumar Ghosh was charge-sheeted under Section 69 of the Army Act along with two other accused for committing a civil offence, that is to say, criminal conspiracy contrary to Section 120-B of the Indian Penal Code and also under Section 69 along with another accused person for committing a civil offence, that is to say, theft contrary to Indian Penal Code, Section 379 read with Section 34.

7. The charge-sheets in both the cases were framed on 5th of March, 1974, by Shri V.K. Suda. Lt. Col. Commanding 225 Coy ASC (Sup) Tape 'C whereupon an order for trial by a General Court Martial was ordered by Mr. M.S.S. Khurana, Major Deputy Assistant Adjutant General Officer, Commanding, Bengal Area, from Fort William, Calcutta, on 10-7-1974. It is the case of the petitioners that the order for Assembly of a General Court Martial at Calcutta was purportedly passed by IC-1185 Major General Biswas Arun Kumar, P.V.S.M. General Officer, Commanding, Bengal Area, on 10-7-1974 and the said order was actually passed by the said Major Deputy Assistant Adjutant General for the said General Officer Commanding. The proceeding was started on 12-7-1974. The proceeding of the General Court Martial was concluded on 3-8-1974 by announcement of sentence sentencing the petitioner Amarendra Nath Das to suffer rigorous imprisonment for 4 years, to be dismissed from service and to be fined Rs. 2,000/- only subject to confirmation. The petitioner Anil Kumar Ghosh was sentenced to suffer rigorous imprisonment for 4 years, to be dismissed from the service and to be fined Rs. 3000/-only subject to confirmation. The said sentence was confirmed by the Major General Officer, Commanding Bengal Area on 27-9-1974 with a reduction of fine to Rs. 1,000/- in both the cases. The sentence of 4 years of rigorous imprisonment was confirmed in both the cases. The petitioners in pursuance of the said order were lodged in Alipore Central Jail on 5th of October, 1974. The petitioners immediately applied for copies for preferring an appeal. The copies were supplied on 4th of February, 1975. On 24th March, 1975, the petitioners preferred appeals to the respondent No. 2 under Section 164(2) of the Army Act, 1950. On 5th of Aug., 1975, the petitioners were informed of the result of the appeal by the respondent No. 6 and thereafter, the petitioners obtained the copies of the appellate order contained in Memo of the office of the respondent No. 5 dated 26th July, 1975. It is the case of the petitioners that they have been denied reasonable opportunity of defending the case during the trial before the General Court Martial as their prayers for adjournment of the case for preparing their defence were turned down by the General Court Martial, They have also been denied the opportunity to defend their case by an officer of their own choice. It is further asserted that the convening of the General Court Martial by the respondent No. 3 without any legal sanction and authority renders the impugned order of sentence passed against them void ab initio. In this connection it is stated that the respondent No. 3 was not empowered to convene the General Court Martial without the warrant of the respondent No. 2, The impugned order not having disclosed the delegation of power in favour of the respondent No. 3 and there having no material in the proceeding showing or communicating or proving any such delegation of power in favour of the respondent No. 3, the entire proceeding including the sentence imposed upon the petitioners is void ab initio, illegal and without jurisdiction. It is stated that the respondent No. 3 had no jurisdiction and power to confirm the sentence. Again it is contended that the respondent No. 2 did not consider the petition of appeal judicially and he did not pass any speaking order and that being so, the order is illegal. Amongst these and many other grounds, the petitioners filed these applications on which the Rules were issued.

8. Mr. Balai Chandra Ray, learned Advocate appearing on behalf of the petitioners, in the first place submits that the General Court Martial was not convened in accordance with Section 109 of the Army Act, and that being so, the entire proceeding is void. In the second place, it is contended that the procedure followed before the General Court Martial was not in accordance with the provisions of the Army Act and the Rules framed thereunder and that being so, the procedure is not in consonance with the principles of natural justice. Thirdly it' Is urged that confirmation of the sentence was made by a person who was not empowered to do so under Section 154 of the Army Act. Fourthly, it is contended that the appellate order is illegal as it is not a speaking order. Fifthly, it is submitted that the charge framed is illegal and lastly it is contended that the combination of sentence is illegal according to the provisions of Section 73 of the Army Act.

9. It will be profitable to take up the first point urged by Mr. Ray first. Mr. Ray very strongly contends that the power granted by the warrant to the officer to convene the General Court Martial was neither properly granted nor received by the officer properly and as such the General Court Martial was not convened legally, and that being so, the entire proceeding must be taken as void. Section 109 of the Army Act reads as follows:

A General Court Martial may be convened by the Central Government or the Chief of the Army Staff or by any officer empowered in this behalf by warrant of the Chief of the Army Staff.

Section 109, it is seen, empowers the Central Government or the Chief of the Army Staff or any officer empowered by warrant of the Chief of the Army Staff to convene a General Court Martial. The warrant for convening the General Court Martial is Exhibit 'A-1'. The warrant reads as follows:

To the Officer, not being under the Rank of a Field Officer Commanding the Bengal Area.

In pursuance of the provisions of the Army Act, 1950 (XLVI of 1950), I do hereby empower you, or the officer on whom your command may devolve during your absence not under the rank of Field Officer, from time to time, as occasion may require, to convene General Courts Martial for the trial, in accordance with the said Act and the Rules made thereunder, of any person under your command who is subject to Military Law and is charged with any offence mentioned in the said Act, and is liable to be tried by a General Court Martial.

And for so doing, this shall be, as well as to all others whom it may concern, a sufficient warrant.

Given under my hand at New Delhi this 12th day of May, 1963.

Sd/-

General

Chief of the Army Staff.

Mr. Ray contends that the authority, Ext. A/1, does not satisfy the requirements of Section 109. Mr. Ray in this connection refers to Annexure 'B' to the petition which is an order for the Assembly of a General Court Martial. The said order was passed and signed by Major General Khurana, Deputy Assistant Adjutant General on 10th of July, 1976. It appears that he signed the order for General Officer, Commanding, Bengal Area. The General Officer, Commanding, Bengal Area at the relevant time was Major General A.K. Biswas. Mr. Ray with all emphasis contends that the warrant is as vague as anything as no person has been named to whom the power to convene a general court martial was sought to be given. The address is of a general character to the officer not being under the rank of the Field Officer Commanding the Bengal Area. This authority, it appears, was given on 12th of May, 1963. Mr. Ray submits that according to the provisions of Section 109, a General Court Martial may be convened either by the Central Government or by the Chief of Army Staff or by any officer empowered by warrant of the Chief of the Army Staff. The officer who convenes a general court martial must be specifically empowered by the Chief of the Army Staff. In this case it cannot be said that the respondent No. 3 was authorised by the respondent No. 2. The officer, who is going to be empowered, will have to be named. An authority which seeks to empower any officer of a certain rank is not an authority at all. More than one officer cannot be authorised by a single warrant. Any officer mentioned in Section 109 means 'a person' and that person means an individual.

10. In the second place, it is contended that even assuming that the authority was legal, Major General Khurana, Deputy Assistant Adjutant General could not have signed the order for the assembly for a general court-martial on behalf of the General Officer Commanding as Major General Khurana was never authorised by the warrant to convene such a court martial and, secondly, he had no authority to sign an order on behalf of another officer who got his powers by delegation from the Chief of the Army Staff, A person who was empowered by another officer to do a certain thing could not delegate the same to another officer, and that being so, Major General Khurana had no authority to sign the warrant on behalf of the respondent No. 3.

11. To support the contention that a person means an individual Mr. Ray refers to a decision reported in Durga Prasad v. State. In this case it has been held that Section 120 of the Railways Act applies to Railway servants. It was further held that

the word 'person' has to be given its plain meaning unless it leads to absurdity or is susceptible of another meaning and if no such alternative construction is possible the ordinary rule of literal construction must be adopted.

12. The next case referred to by Mr. Ray has been reported in : AIR1960All721 Vishnath Pande v. State. In this case also the word 'person' was interpreted to mean an individual.

13. Mr. Ray contends that as the warrant empowering an officer to convene a court-martial was general in nature it cannot be said that a particular person was authorised, and that being so, the respondent No. 3 on whose behalf the order convening the General Court Martial was made was illegal. Mr. Ray next submits that the officer convening a General court-martial must be satisfied that there is a necessity of convening a General Court Martial. This satisfaction must be the personal satisfaction of the officer concerned. But in this case there is nothing to show that the respondent No. 3 was satisfied before the order of convening the General court-martial was made. In this connection Mr. Ray refers first to a decision reported in (1875) 1 Cri LJ 426 Taylor v. Taylor. In this case it has been laid down 'When a statutory power is conferred for the first time upon a Court and the mode of exercising it is pointed out, it means that no other mode is to be adopted.' This principle has been adopted in India till recent time by the highest court of the land. Mr. Ray refers to a decision reported in : [1964]4SCR485 (State of Uttar Pradesh v. Singhara Singh). In this case their Lordships relying on Taylor v. Taylor and also other cases laid down:

The principle that where a power Is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that the other methods of performance are necessarily forbidden....

Mr. Ray also refers to a decision reported in : [1975]3SCR839 (Ramchandra Keehav v. Govind Joti). In this case also it has been held 'where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden. This Rule squarely applies where the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other'. Relying on the decision referred to above Mr. Ray submits that the method adopted in these proceedings is a forbidden method and not provided by the provisions of the Army Act and the Rules framed thereunder.

14. In short Mr. Ray submits that the impugned order (Annexure 'B' to the petition) convening the General Court Martial is illegal and without jurisdiction inasmuch as the respondent No. 3 was not empowered to convene the same. The warrant issued by the respondent No. 2 did not authorise the respondent No. 3 to convene such a meeting. For the same reasons Mr. Ray submits that the respondent No. 3 had no jurisdiction or power to confirm the sentences of the petitioners on September 27, 1974, as he was not an authorised person by the appropriate authority and as such the order of confirmation (Annexure 'D' to the petition) is without jurisdiction and illegal. Mr. Ray as has already been stated attacks the order convening the general court-martial as illegal because the said order was signed not by the respondent No. 3 but by Major General Khurana, Deputy Assistant Adjutant General for respondent No. 3. Mr. Ray submits that even assuming that the respondent No. 3 was authorised to convene a general court-martial, he being a delegated authority cannot again delegate the same to another person. In support of his contention Mr. Ray refers to a decision reported in 1953 (1) All ELR 1113 (Barnard v. National Dock Labour Board), In this case it was held that

The power of suspension conferred by Clause 16(2) of the Dock Workers' (Regulation of Employment) Order, 1947, on the local board was a judicial or quasi-judicial function and the local board had no power to delegate it or subsequently to ratify a decision by a person to whom the power of suspension had been improperly delegated, and, therefore, the suspension of the plaintiffs by the port manager was a nullity.

Mr Ray also refers to a decision reported in AIR 1943 Cal 285 : 44 Cri LJ 673 1077 Cri. L.J./32 III (SB) (Benoari Lal Sarma v. Emperor). In this case it was held that 'The Governor General may, in an emergency, take away the High Court's Original Criminal Jurisdiction; but no one else is authorised.

15. Mr. Jifendra Nath Ghosh, learned Advocate appearing on behalf of the opposite parties, submits that no objection regarding jurisdiction was taken by the petitioners and after the sentence was confirmed, they preferred a petition of appeal, and as such even assuming that there was any irregularity, that was cured and that cannot be agitated before this Court. Mr. Ghosh further submits that the warrant for convening the General Court Martial issued by the Chief of the Army Staff is quite legal and valid. The warrant was to the officer not being under the rank of a Field Officer commanding the Bengal Area. This warrant was issued in pursuance of the provisions of the Army Act, 1950 and the Chief of the Army Staff empowered the officer not being under the rank of the Field Officer Commanding the Bengal Area or the officer on whom such officer's command may devolve during his absence not under the rank of the Field Officer, from time to time, as occasion may require, to convene General Court Martial for the trial, in accordance with the said Act and the Rules made thereunder..., The order for convening the General Court Martial in this case was passed by the respondent No. 3 who is the General Officer commanding the Bengal Area. That being so, it cannot be said that the Officer was not empowered to convene the General Court Martial.

16. Secondly, it is submitted by Mr. Ghosh that simply because Major General Khurana, Deputy Assistant Adjutant General for General Officer, Commanding the Bengal Area signed the order convening the General Court Martial on behalf of the General Officer, Commanding the Bengal Area, it cannot be said that the order convening the General Court Martial was illegal. Simply because Major General Khurana signed the order on behalf of the respondent No. 3 it cannot be said that the order was passed by Major General Khurana. There is nothing in the Army Act or the Rules that the convening order must be signed by the General Officer Commanding himself. Again from the records produced by the opposite parties we find that there is an endorsement on the order convening the General Court Martial by the respondent No. 3 to the effect 'I agree' and that the endorsement is signed by the respondent No. 3. This shows that the respondent No. 3 expressed his consent in writing for convening a General Court Martial. Mr. Ghosh also submits that it is not at all necessary that every warrant authorising an officer to convene a General Court Martial should name the person concerned. The authority can be issued in favour of an officer whoever may hold the post at the relevant time, It has been clearly stated that the authority was issued to an officer not being under the rank of a Field Officer Commanding the Bengal Area. The respondent No. 3 was such an officer and that being so, the order convening the General Court Martial is quite valid and legal. We agree with Mr. Ghosh and hold that respondent No. 3 was duly authorised by the respondent No. 2 to convene a General Court Martial and the order convening the General Court Martial was legal.

17. Mr. Bay in the next place submits that the order confirming the sentence passed by Shri A.K. Biswas, General Officer, Commanding Bengal Area (as per Annexure 'D' to the petition) is illegal and without jurisdiction on the ground that he was not authorised to confirm the sentence Ext. A/3 is a warrant for confirming findings and sentences of the General Court Martial under the Army Act. This authority was issued by the Secretary, Ministry of Defence, and the authority was to the officer not being under the rank of the Field Officer Commanding Bengal Area. Mr. Ray's argument for declaring the order illegal and without jurisdiction is the same which he advanced while attacking the order convening the General Court Martial. In the same way Mr. Ghosh submits that the authority was quite legal and as such the confirmation of sentence made by the respondent No. 3 was quite legal and valid. In view of our finding that the respondent No. 3 was duly authorised, we hold that the order of confirmation passed by him is legal.

18. Mr. Ray next submits that the petition of appeal has not been considered in its proper perspective and the order passed by the respondent No. 2 is illegal and without jurisdiction and the respondent No. 2 has illegally affirmed the order of sentence of imprisonment. The order passed by the respondent No. 2 on the petition of appeal is Annexure 'F' to the petition. The order reads as follows:

While examining the post confirmation petitions submitted by Ex. Hav A.N. Das (accused No. 1) and Ex. NK A.K. Ghose (accused No. 3) the COAS set aside the portion of the sentence relating to fine of Rs. 1,000/- awarded to each of the three accused persons, the sentence being illegal. Subject to the above, the COAS has rejected the petitions submitted by accused Nos. 1 and 3.

This Mr. Ray strongly submits cannot be said to be a legal order and from the nature of the order it must be said that the respondent No. 2 did not apply his mind to the petition of appeal. In this connection Mr. Ray refers to a decision reported in : 1978(2)ELT378(SC) (Travancore Rayons Ltd. v. Union of India). In this case it was held

The Central Government is by Section 36 of the Central Excises and Salt Act (1944) invested with the judicial power of the State. Orders involving important disputes are brought before the Government. The orders made by the Central Government being subject to appeal to the Supreme Court under Article 136 of the Constitution, it would be impossible for that Court, exercising jurisdiction under Article 136 to decide the dispute without a speaking order of the authority, setting out the nature of the dispute, the arguments in support thereof raised by the aggrieved party and reasonably disclosing that the matter received due consideration by the authority competent to decide the dispute'. Mr. Ghosh submits that this decision does not apply to the facts of the. present case because there is no provision of any appeal to any court against the order or sentence passed in a General Court Martial under the provisions of the Army Act. Article 227(4) of the Constitution bars the Jurisdiction of the High Courts to exercise the power of superintendence over a court martial. The only remedy of a convicted person is to invoke Article 226 of the Constitution for issuing a Writ of Habeas Corpus or Certiorari only on the ground that the Court Martial had no jurisdiction to convict the petitioners. This being the position, Mr. Ghosh submits that the order passed by the respondent No. 2 on petition of appeal is quite legal and valid.

19. As regads the objection raised by Mr. Ray that the appellate order is not a speaking order. Mr. Ghosh submits that it need not be so and in support of his submission he refers to a decision re ported in : 1969CriLJ663 (Som Datt Dutta v. Union of India). It has been held

There is no express obligation imposed by Section 164 or by Section 165 of the Army Act on the confirming authority or upon the Central Government to give reasons in support of its decision to confirm the proceedings of the Court martial. Apart from any requirement imposed by the statute or statutory rule either expressly or by necessary implication, it cannot be said that there is any general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision. Such orders cannot, therefore, be held to be illegal for not giving any reasons for confirming the orders of the Court Martial.

We agree with Mr. Ghosh that in such cases no speaking order is necessary and the order passed on the petition of appeal does not suffer from any illegality.

20. Mr. Ray in the next place submits that the charge framed in this case is illegal and that being so, the entire trial has been vitiated and the same should be quashed. Mr. Ray refers to Section 69 of the Army Act. Section 69 provides that any person subject to this Act who at any place in or beyond India commits any civil offence shall be liable to be tried by a court martial. Civil offence has been defined in Section 3(ii) which reads as follows:

Civil offence is an offence which is triable by a criminal Court.

In the charge-sheet, which is Annexure 'A' to the petition, it has been stated that the accused committed a criminal conspiracy contrary to Section 120-B of the Indian Penal Code, theft contrary to Section 379, Indian Penal Code read with Section 34, Indian Penal Code. Mr. Ray submits that if it is contrary to Section 379 or 120-B Indian Penal Code then it cannot come under the definition of Civil Offence and trial cannot be held by the court martial. Mr. Ray also took pains to convince us what is meant by contrary to. 'Contrary to' means in place of, instead. Mr. Ghosh admits that the language used in the charge-sheet is not happy but nevertheless the details of the offence having been given in the charge-sheet, it cannot be said that the accused was in any way prejudiced and on reading the charge-sheet as a whole it is clear that it was alleged that a civil offence as defined in Section 3(ii) was committed by the accused. Mr. Ghosh further submits that simply because 'contrary to' was used in the charge-sheet, it cannot be said that the accused was in any way prejudiced and moreover no such objection was taken by the accused at any stage of the trial. On a careful consideration of the arguments advanced by the learned Advocates, we are of the opinion that the use of the words 'contrary to' in the charge does not vitiate the charge.

21. Mr. Ghosh takes a preliminary point with regard to the maintainability of the applications. It is submitted that these Rules were issued by this Court in the exercise of Extraordinary Original Criminal Jurisdiction. Under Extraordinary Criminal Jurisdiction this Court could only issue Rules calling upon the respondents to show cause why a Writ in the nature of Habeas Corpus should not be issued. This Court had no right sitting in the said jurisdiction to issue Rules asking the respondents to show cause why a Writ in the nature of Certiorari should not be issued. There may be some substance in the point raised by Mr. Ghosh, but when such Rules were issued by a Bench of this Court we cannot say at the present moment that this Court had no jurisdiction to issue the Rules. The next objection raised by Mr. Ghosh is more vital. Mr. Ghosh submits firstly that the impugned orders in this case could only be attacked under Article 226 on the ground of jurisdiction. In support of his contention Mr. Ghosh refers to a decision reported in : [1951]2SCR344 (Janardhan Reddy v. The State of Hyderabad). In this case it has been held 'That if a Court acts without jurisdiction, its decision can be challenged in the same way as it would have been challenged if it had acted with jurisdiction'. It has been further held in this case that

If it should appear on the face of the return that a person is in detention in execution of a sentence on indictment on a criminal charge, that would be a sufficient answer to an application for a writ of Habeas Corpus. Assuming, however, that it is open even in such case to investigate the question of jurisdiction where the conviction and sentence had been upheld on appeal by a court of competent jurisdiction, the mere fact that the trial court had acted without jurisdiction would not justify interference, treating the appellate order also as a nullity.

In order to succeed in an application under Article 226 of the Constitution, the petitioners will have to say that the order was illegal on the face of it. To support this contention Mr. Ghosh refers to a decision reported in (1949) 1 All ELR 242 (R. v. Secretary of State for War, Ex parte Martyn). This was also a case of a Court Martial. It was held that

The High Court could only interfere with military court and matters of military law in so far as the civil rights of the soldier or other person with whom they dealt might be affected, and, therefore, if the court martial had not been convened in accordance with the Rules of Procedure, which was a matter of military law and procedure, the High Court had no jurisdiction to interfere.

22. Mr. Ghosh in support of his contention that even assuming that there was some jurisdictional error after submitting to the appellate jurisdiction and after passing of the order in appeal the jurisdictional error if any is curbed and in such circumstances writ court cannot be moved, refers to a decision reported in 1949 WN 96 (Rex v. Pereira Ex parte Khotoo Bawash). In this case some Indian seamen were charged with disobeying a lawful order to return to their ship. They pleaded guilty through an interpreter and the Magistrate convicted and sentenced them. They applied to the Divisional Court for leave to apply for an order of certiorari to quash their convictions on the ground they had not understood what was meant by their pleas of guilty. At the hearing of the substantive application it appeared that meanwhile the applicants had given notice of appeal against their convictions and sentences to quarter sessions; that they had on that ground been granted bail and that the hearing of those appeals had been adjourned on account of the present (substantive) application for certiorari. It was held that:

The present application must be refused on the ground that leave to make it was obtained in circumstances which were pot fully disclosed and which, had the court known of them, would have led to the refusal of leave to appeal.

23. Mr. Ghosh next refers to a decision reported in AIR 1968 Delhi 156 : 1968 Cri LJ 1059 (S.P.N. Sharma v. Union of India). In this case it has been held

A Habeas Corpus proceeding is not admissible so as to enable a civil court to exercise a supervisory control over or review procedural errors generally in the proceedings of the Court Martial. The single enquiy open in Habeas Corpus proceedings to secure release from imprisonment ordered by a Court Martial is as to its jurisdiction in regard to the person, the offence and the sentence.' Mr. Ghosh submits that for the reasons stated above it cannot be said that in this case there is any want of jurisdiction in regard to the person, the offence and the sentence. Mr. Ghosh also refers to a decision reported in : AIR1970Delhi29 Flying Officer S. Sundarajan v. Union of India, In this case it has been held:

The remedy of a writ of habeas corpus is not available to test the propriety or legality of the verdict of a competent court. The court is not entitled to go into the regularity of steps taken by the court martial in the course of trial or by the confirming authority in the finding and the sentence which do not go to their jurisdiction and confirming. Interference is possible only where the irregularity or illegality affects the jurisdiction of the court martial or the confirming authority.

On a careful consideration of the facts and circumstances of the case and the authorities referred to above, we agree with Mr. Ghosh that in the present cases there is no illegality or want of jurisdiction.

24. Mr. Ghosh's last submission is that in view of the decision reported in : 1976CriLJ945 (Addl. District Magistrate, Jabalpur v. Shivakant Shukla), it must be held that relief under Aticle 226 of the Constitution against illegal detention is no longer available. It has been held by the majority that in view of the Presidential Order dated 27th June, 1975, no person has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act (M.I.S.A.) or is illegal or vitiated by mala fides factual or legal or is based on extraneous considerations. It is true that their Lordships were considering detention order passed under the Maintenance of Internal Security Act, But their Lordships have further held

Article 21 is the sole repository of rights to life and personal liberty against the State, Any claim to a writ of habeas corpus is enforcement of Article 21 and is, therefore, barred by the Presidential Order. It is not competent for any court to go into the questions of mala fides of the order of detention or ultra vires character of the order of detention or that the order was not passed on the satisfaction of the detaining authority.

25. We therefore accept the argument advanced by Mr. Ghosh that even assuming that the Court Martial acted without jurisdiction, we cannot interfere with the orders on the applications made by the petitioners for writ of habeas corpus and/or certiorari, challenging the detention of the petitioners in pursuance of order passed by the General Court Martial.

26. For the reasons stated above these applications fail and the Rules are discharged.

B.C. Ray, J.

27. I agree.


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