Junior officer acting as Judge Advocate without recording reasons to invalidate court martial proceedings: Supreme Court

New Delhi: The Supreme Court has said that appointing a junior officer to act as a Judge Advocate without recording reasons would invalidate the court martial proceedings.

A bench of Justices Prashant Kumar Mishra and Prasanna Bhalachandra Varale, in its judgment on September 9, upheld the Punjab and Haryana High Court's order overturning a decision by the Armed Forces Tribunal that upheld the dismissal of Lt Col Rahul Arora, a classified specialist ENT in Army Medical Corps.

Relying upon 'Union of India & Anr Vs Charanjit Singh Gill' (2000), the bench said non recording of reasons of appointment of an officer junior in rank as a Judge Advocate in the convening order would invalidate the proceedings.

Challenging validity of the High Court's order, the Union government cited an exception carved out in the previous judgment. It said the apex court had then stated “a Judge Advocate appointed with the court martial should not be an officer of a rank lower than that of the officer facing the trial unless the officer of such rank is not (having due regard to the exigencies of public service) available and the opinion regarding non-availability is specifically recorded in the convening order”.

In the case, the bench, however, noted two convening orders were furnished before the High Court and the one produced by the Union government's authorities was "altered".

"It is quite apparent that the reason for culling out exception as held permissible by this court in Charanjit Singh Gill, was not mentioned in the document," the bench noted.

The court pointed out subsequent mentioning of the reason, after putting signatures by the issuing authority in the document, was "unauthorised and impermissible".

"The High Court has correctly held that the convening order suffers from incurable defect as held by this court in Charanjit Singh Gill," the bench said.

The court also noted the High Court specifically observed that once a document has been put in the course of transmission, it could not be changed or altered or modified except after recording that there was a mistake, which needs correction. Once dispatched by the officer, the communication of the document is complete and any alteration is unauthorised, the court said.

The Union government's counsel also referred to Army Rule 103 that a Court Martial would not be invalid merely by reason of any invalidity in the appointment of the Judge Advocate.

The bench, however, said, "This rule is available only where a fit person has been appointed as a Judge Advocate. If the person so appointed is not fit to act and perform the duties of the Judge Advocate as held in Charanjit Singh Gill, Rule 103 would not come to the rescue of the appellant."

The court here examined only legality of Judge Advocate and did not deal with merits of charges levelled against the officer in the Court Martial proceedings on a complaint made by a recruit declaring him "fit" after finding him "unfit", for "extraneous consideration".