Holding

The trial Judge Advocate cannot summarily reject objections concerning a member's competency to act as an impartial judge; such objections must be decided by the Court Martial under Section 102, and failure to do so invalidates the Court Martial proceedings.

Summary

The respondent, a naval officer, was convicted by a Court Martial for offences under the IPC and the Navy Act. He challenged the conviction, arguing that three members of the Court Martial were incompetent to act as impartial judges and that the trial Judge Advocate had summarily rejected his objections without referring them to the Court Martial, violating Section 102 of the Navy Act. The High Court held the Court Martial proceedings void for this procedural breach and quashed the conviction and the subsequent orders under Sections 162 and 163. On appeal, the Supreme Court affirmed that the trial Judge Advocate lacks authority to decide objections concerning a member's impartiality; such objections must be decided by the Court Martial itself, and non‑compliance with the mandatory provision of Section 102 vitiates the proceedings. The Court also held that the respondent had not waived his right to raise the objection. Consequently, the appeal by the Union of India was dismissed, leaving the High Court’s order of quashing intact.

Issues considered

The trial Judge Advocate's jurisdiction to summarily reject objections to Court Martial members on grounds of impartiality under Section 102 of the Navy Act.
Whether non‑compliance with the mandatory procedure of Section 102 renders Court Martial proceedings void.
Whether the respondent waived his right to object by not immediately challenging the trial Judge Advocate's ruling.
Whether the High Court could examine the evidence and find no legal evidence after finding the procedural defect.
Whether the orders of conviction and sentence under Sections 162 and 163 of the Navy Act are invalid due to the procedural irregularity.

Legislation cited

Army Acts. 130
Navy Act, 1957s. 102, s. 103, s. 104, s. 105, s. 162, s. 163, s. 97

Subjects

Court MartialNavy ActSection 102ImpartialityTrial Judge AdvocateProcedural fairnessMilitary lawWrit jurisdictionNullity

Judgment

UNION OF INDIA AND ORS. A
V.

SHJVENDRA BIKARAM SINGH

APRIL 24, 2003.

[N. SANTOSH HEGDE AND B.P. SINGH, JJ.] B

Military Laws:

Navy Act, 1957-Sections 97, JOI, 102, 162 and 163-Court Martial
proceedings-Conviction-Objection as to competency of members of Court C
Martial proceedings to act as impartial judge-Trial Judge Advocate
disposing of the objection himself without referring to the members of Court
Martial-Justification of-Held: Court Martial proceedings vitiated for not
referring the objections since in terms of mandatory provision of Section 102,
trial Judge Advocate should not have disposed of the objection himself- D
Since accused did not challenge the ruling of trial Judge Advocate after an
intermediate stage of proceedings it cannot be said that he waived his right
to raise the objection-Court Martial proceedings being nullity, evidence
recorded before it having no sanctity in law, the finding recorded by High
Court that there was no legal evidence to support charges levelled against
the accused and he was entitled to benefit of doubt set aside-Whether or E
not to continue the .Court Martial proceedings from the stage of Section 102,
is left to the authorities concerned

Respondent-naval officer was tried by Court Martial for offences under
IPC and Navy Act and was found guilty. He was sentenced to rigorous F
imprisonment for 24 months and dismissal from service with consequential
penalties. The Chief of Naval Staff under Section 163 of the Act reduced the
sentence to 12 months and upheld the rest of the sentence. He also rejected
the respondent's petition under Section 162 of the Act. Respondent then filed
writ petition challenging the order of conviction and sentence passed by Court
Martial and the orders ofChiefofNaval Staff. It was challenged on the ground G
that the members of the Court Martial had not been appointed in conformity
with Section 97 of the Act; that two of the Members of the Court Martial were
incompetent to act as impartial Judges; and that the objection raised was
disposed of by the Trial Judge Advocate without reference to the members of
the Court Martial in violation of Section 102 of the Act. High Court relied on
~I H
882 SUPREME COURT REPORTS [2003) 3 S.C.R.

A the decision of this Court in *Ranjit Thakur v. Union ofIndia, that participation
of the objected members in court martial rendered the proceedings coram non
judice, and allowed the writ petition.

Appellant-Union of India contended that the trial Judge Advocate has
power to reject summarily an objection raised by the accused against inclusion
B of any member in the Court Martial even if it related to his competency to act
as an impartial Judge, if it did not have any merit; that only those objections,
which raised grounds worth considering had to be referred to the Court Martial
for its decision; that the High Court erred in relying on the principles laid
down in Ranjit Thakur's case as that case was under the Army Act which is
C different from Section 102 of the Navy Act; that there was sufficient evidence
on record to support the conviction; that the High Court was not justified in
law in appreciating the evidence on record and concluding that the respondent
was entitled to benefit of doubt; that the respondent having submitted himself
to trial and the defect if any, not being of such a nature as to vitiate the trial,
the respondent had waived his objection against membership of two of the
D officers in the Court Martial, thus, cannot urge that ground in support of the
writ petition.

Respondent contended that the trial Judge Advocate erred in rejecting
the objection raised by the ·respondent since under Section 102 any objection
E relating to a member of the Court Martial on his competency to act as an
impartial Judge bad to be decided by the members of the Court Martial; that
the function of the trial Judge Advocate is only to advise the Court Martial
and not to decide such issues; that though the trial Judge Advocate performs
functions judicial in nature, his role becomes relevant only after the trial
commences after disposal of objections under Section 102 and in the instant
F case that stage was never reached; that the respondent never waived his right
to object to the membership of three of the.officers in the Court Martial; that
the respondent was not expected to challenge every ruling given by the trial
Judge Advocate; that the verdict of the Court Martial can be challenged in
writ jurisdiction if the High Court is satisfied that there is no legal evidence
G whatsoever to support the charges levelled against the accused; that the High
Court was entitled to look for existence of relevant material if not sufficiency
of the evidence; and that the finding recorded by the High Court that there
was no evidence whatsoever to support the charges levelled against the
respondent and, therefore, he was entitled to the benefit of doubt was correct.

H Dismissing the appeal, the Court
..... U.0.1. v. SHIVENDRA BIKARAM SINGH 883

HELD: I. I. The first part of clause (a) of section 102 of the Navy Act, A
1957 refers to any objection against a member on the ground, which affects
his competency to act as an impartial judge. It enables the prosecutor and the
accused to raise an objection of the nature specified. No other objection is to
be entertained at this stage. Whether there is any merit in the objection, is
not a matter to be considered by the trial Judge Advocate, since he is not vested
B
with the jurisdiction to decide such objections. That power has to be exercised
by the court itselfin accordance with the procedure laid down in clauses (b) to
(e) of section 102. The only authority that is given to the trial Judge Advocate
is to reject at that stage all other objections summarily without reference to
the members of the court martial which are not on a ground which affects the
competency of a member to act as an impartial judge under the second part of c
clause (a). This is because such other objections may be considered later after
the constitution of the court is first finalized after disposal of objections to
membership of the court martial on the ground, which affects the competency
of any member to act as an impartial judge. Therefore, the scheme of the Act,
is to provide for two stages at which the objections to the constitution of the D
court martial have to be considered. 1897-G; 898-D-GI

1.2. The words of the Section 102 clause (a) are "may reject summarily"
are indicative of a discretion vested in the trial judge Advocate. That is because
ifthe objection is an objection respecting the constitution of the court, but not
on the ground specified in clause (a) of section 102, then he may rather than E
dismissing the objection reserve it for consideration after the objections under
sections l 02 are disposed of and the objections under section 103 .are taken
up for consideration. 1899-G, H; 890-Al

1.3. In the instant case, the trial Judge Advocate exceeded his jurisdiction
F
under clause (a) of section 102 of the Act by disposing of the objections without
referring to the members of Court Martial and because of his erroneous
exercise of jurisdiction the objections relating to the constitution of the Court
Martial remained undecided by the competent authority, and yet the members
of the Court Martial proceeded with the trial and found the respondent guilty.
This was done in breach ofa mandatory provision of section 102 of the Act. G
Non-compliance of the mandatory provision of section 102 is an infirmity which
goes to the root of the jurisdiction and, thus the proceedings before the Court
Martial are vitiated. Hence the High Court rightly quashed the order of
conviction passed by the Court Martial as well as the orders made under
'-- sections 162 and 163 of the Navy Act. 1900-B-C; 903-G I H
•
·•

A
884 SUPREME COURT REPORTS (2003] 3 S.C.R.

1.4. Section 130 of the Army Act as well as Section 102 of the Navy Act
relate to the objection to the inclusion of any officer as member of the Court
--
Martial It may be that the procedure prescribed is not identical, though similar,
but if the provision is mandatory in nature and there is non-compliance with
that provision, the consequences will be the same. 1902-F, GI
B
*Ranjit Thakur v. Union ofIndia and Ors., AIR (1987) SC 2386; Lt. Col.
Prithi Pal Singh Bedi v. Union ofIndia and Ors., AIR (1982) SC 1413; Union
ofIndia and Ors. v. Major A. Hussain, 1199811SCC537 and Union of India
and Ors. v. Himmat Singh Chahar, [199914 SCC 521, relied on.
1···

C 2. It is not expected of an accused to challenge every ruling in the course
of a trial, as that would unnecessarily protract the trial, something, which is
not encouraged by the courts. The respondent raised that objection in his
petition under section 162 of the Act and thereafter raised the same objec_tion
in the instant writ petition from which this appeal arises. Therefore, it cannot
D be said that he waived his right to raise this objection merely because he did
not challenge the ruling of the trial Judge Advocate immediately after it was
given at an intermediate stage of the proceedings. (903-A, Bl

3. If the very constitution of the Court Martial was not in accordance
with law, then any proceedings taken before such an improper Court Martial
E was a nullity as far as the trial is concerned. As a consequence, the evidence
recorded before such a Court Martial had no sanctity in law and, therefore,
did not deserve any further consideration. Therefore, the finding recorded by
the High Court that there was no legal evidence whatsoever to support the
charges levelled against the respondent and that he was entitled to benefit of
F doubt is set aside. (903-E, Fl

4. It is left to the authorities concerned to consider whether or not to
continue the Court Martial proceedings from the stage of section 102 of the
Act. Reference to the facts of the case and the merit of the charges against
the respondent is avoided. However, nothing said ·in this judgment shall be
G construed as expression of opinion on the merit of the charges, which shall be
considered in the light of the evidence, which may be produced by the
prosecution before the Court Martial or the reconstituted Court Martial, as
the case may be, ifthe competent authority so decides. Further, the respondent
will be at the liberty to raise the submission, on which no opinion is expressed,
H that the re-trial of the respondent, even if ordered, will be barred by limitation
in view of the provision of section 79 of the Act in appropriate proceedings
U.0.1. v. SHIVENDRA BIKARAM SINGH [B.P. SINGH. J.] 885
before the appropriate forum if occasion arises. (903-H; 904-D-F( A
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 82 I
of2001.

From the Judgment and Order dated 2.5.200 I of the Mumbai High Court
at Goa in W.P. No. 3 of2001. B
Anup G. Chaudhary, R.C. Verma, R.N. Poddar and B.V. Balaram Das for
the Appellants.

A.B. Sharya, D.S. Chauhan and Rajesh Narula for the Respondents.
c
The Judgment of the Court was delivered by

B.P. SINGH, J. In this appeal by special leave the Union of India has
impugned the judgment and order of the High Court of Bombay at Goa dated
May 2, 2001 in Criminal Writ Petition No. 3 of2001 whereby the High Court D
allowing the writ petition filed under Article 226 of the Constitution of India
quashed the order of the Court Martial dated 4th September, 2000 which
found the respondent guilty of the offences under sections 497, 452 and 325
of the Indian Penal Code read with Section 77(2) of the Navy Act, 1957
(hereinafter referred to as 'the Act') and the order of the Chief of the Naval
Staff dated 8th January, 200 I passed under Section 162 of the Act as also the E
order of the Chief of the Naval Staff dated January 3 I, 200 I passed under
Section 163 of the Act. After going through the evidence on record it also
recorded a finding that there was no legal evidence to support the order of
conviction and, therefore, gave to the respondent the benefit of doubt.

-- The facts of the case so far as they are relevant for the disposal of th is
appeal are :-
F

The respondent was an officer of the Indian Navy and at the relevant
time was serving as a Lieutenant posted in Goa. He was tried by a Court
Martial for offences under sections 497, 506, 452 and 325 of the Indian Penal G
·Code read with Section 77(2) of the Act. The Court Marital found the respondent
guilty of the offences under sections 497, 452 and 325 of the Indian Penal
.'
Code read with Section 77(2) of the Act and ordered the respondent to be
kept in rigorous imprisonment for a tenn of 24 calendar months as a Class-
! prisoner; to be dismissed with disgrace from the Naval service and to suffer H
consequential penalties involved. The Chief of the Naval Staff in exercise of
886 SUPREME COURT REPORTS [2003] 3 S.C.R.

A his power under Section 163 of the Act modified the sentence awarded to the
respondent and ordered that the respondent be kept in rigorous imprisonment
as a Class-I prisoner for a period of 12 calendar months and that he be
dismissed from Naval service and shall suffer the consequential penalties
involved. The respondent submitted a petition on December 4, 2000 under
Section 162 of the Act with a request to set aside the findings and sentence
B awarded to him by the Court Martial, but the same was rejected by the Chief
of the Naval Staff by his order dated January 31, 200 I.

The order of conviction and sentence passed by the Court Martial as
well as the orders of the Chief of the Naval Staff in exercise of powers under
C sections 162 and 163 of the Act were challenged before the High Court by
the respondent by filing a writ petition under Article 226 of the Constitution
of India. The challenge to the aforesaid orders was on several grounds. It was
submitted before the High Court that the members of the Court Martial had
not been appointed in conformity with Section 97 of the Act. Three of the
Members of the Court Martial were incompetent to act as impartial Ju.dges and
D the objection raised by the respondent in this regard was disposed of by the
Trial Judge Advocate, without reference to the members of the Court Martial,
in gross violation of the mandatory provisions contained in Section I02 of
the Act. As a result grave prejudice was caused to the respondent and there
was serious miscarriage of justice by such officers continuing as members of
E the Court Martial to try him. The order of Court Martial was also challenged
on the ground of its failure to record reasons for the conclusions reached by
it. It was also submitted that the offences for which the respondent was tried
were ordinarily offences which could have been tried by an ordinary criminal
court and, therefore, trial by Court Martial was not justified.

F On the other hand the Union of India contended that the Court Martial
had been properly constituted and it had scrupulously observed provisions
·-
of the Act and recorded a finding of guilt against the respondent. It was not
required to record reasons for its conclusions and its findings were, therefore,
not vitiated for this reason. The objection raised by the respondent against
the inclusion of three officers as members of the Court Martial was duly
G considered by the trial Judge Advocate who rejected the objection as regards
two of the officers, while the objection against the third officer was considered
by the members of the Court Martial and was ultimately rejected. The trial "
Judge Advocate exercised his power to reject such an objection in accordance
with the provisions of Section 102 of the Act. No irregularity was committed
H by him. The proceedings before the Court Martial were conducted scrupulously
U.0.1. v. SHIVENDRA Bl KARAM SINGH [B.P. SINGH, J.] 887

in accordance with law and no illegality had been committed which either A
resulted in serious prejudice to the respondent or in miscarriage of justice.
The writ cowt, therefore, had no jurisdiction to interfere with the impugned
orders. It was also the case of the Union of India that the offences for which
the respondent was tried while serving as a naval officer were triable by the
Court Martial. The respondent had, therefore, not made out a case for
interference with the order of the Court Martial as well as the orders passed B
under Sections 162 and 163 of the Act having regard to the parameters of
judicial interference in matters of this nature.

The High Court first considered the scope of its writ jurisdiction in such
matters and the parameters of judicial interference. It considered the judgments C
of this Court in Union of India and others vs. Himmat Singh Chahar: (1999)
4 SCC 521 ; Lt. Col. Prithi Pal Singh Bedi vs. Union of India and others : AIR
1982 SC 1413 and Union of India and others vs. Major A. Hussain: (1998)
I SCC 537 and held that though the Court Martial proceedings are subject
to judicial review by the High Court in exercise of its writ jurisdiction, the
Court Martial is not subject to the superintendence of the High Court under D
Article 227 of the Constitution. In exercise of its jurisdiction the High Court
will not minutely examine the record of the Court Martial as if it was sitting
in appeal. If the 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 E
its hand. Proceedings of a Cowt Martial are not to be compared with the
proceedings in a criminal court under the Code of Criminal Procedure since
these proceedings remain to a significant degree, a specialized part of overall
mechanism by which military discipline is preserved. The Court Martial
discharges judicial function and the procedure prescribed provide for a fair
trial to the accused. Therefore, unless it is shown that prejudice has been F
caused or mandatory provisions have been violated, the High Court should
not allow the challenge to validity of the conviction and sentence of the
accused when evidence is sufficient.

Bearing the above principles in mind the High Court proceeded to
consider the other submissions advanced before it. It rejected the submission G
that non-recording of reasons in support of the conclusion reached by the
Court Martial vitiated the order. Relying upon the judgment of this Court in
S.N. Mukherjee v. Union of India, AIR (1990) SC 1984 it was held that the
Court Martial is not required to record reasons for the conclusion reached by
it while recording a conviction. It also rejected the contention urged on behalf H
888 SUPREME COURT REPORTS (2003] 3 S.C.R.

A of the respondent that the Court Martial was not duly constituted inasmuch
as the majority of members of the Court Martial did not belong to the
executive branch of the Naval service as required by Section 97 (I 0) of the
Act. It accepted the submission urged on behalf of the Union that all the
officers who were members of the Court Martial were Executive Officers which
was supported by a Notification issued in this regard. The submission, that
B the constitution of the Court Martial was not constituted in conformity with
the mandate of sub-section ( 16) of Section 97 of the Act since it had to be
constituted by the peers of the respondent, namely the Lieutenants, and not
by the Commanders, especially when the President was Acting Captain, was
also rejected. It was held that on a plain reading of sub-sections (17) of
C Section 97, the mere fact that the members of the Court Martial were higher
in rank to the petitioner, did not render the constitution of the Court Martial
infirm.

The crucial question raised before the High Court was with regard to
the manner in which, and the person by whom, objection raised by the
D respondent with regard to the competency of two members of the Court
Martial to act as impartial judges was rejected. It is not in dispute that the
respondent objected to three members of the Court Martial on the ground of
their competency to act as impartial judges. The members objected to were
Captain Rajiv Girotra, President, and a Member Cdr. Suresh Mehta. The
E objection of the respondent was rejected by the. trial Judge Advocate without
referring the objection to the members of the Court Martial for decision. The
objection as against the third member, namely Cdr. Narayan was referred to
all the members of the Court Martial excluding Cdr. Narayan, but the objection
was ultimately rejected. The High Court held that on a plain reading of Section
I 02 of the Act the trial Judge Advocate had no jurisdiction to dispose of an
F objection summarily which related to the competency of a member of the
Court Martial to act as an impartial member. In the interest of fairness the Act
envisages that the objection with regard to any member of the Court Martial
must be dealt with at the threshold. The objection to any member of the Court
regarding his competency to act as an impartial judge, must be referred to the
members of the Court and disposed of in accordance with the procedure laid
G down in that section. At that stage any other objection, which did not relate
to the capacity of the member to act as an impa11ial Judge had to be rejected . r'
by the trial Judge Advocate. Other objections, if any, were to be dealt with
under section I03 of the Act. The language of section I02 of the Act clearly
postulates that when an objection is taken against any member on the ground
H of his incompetency to act as an impartial judge, the trial Judge Advocate
U.0.1. v. SHIVENDRA BIKARAM SINGH [B.P. SINGH, J.) 889
must stay his hand and is obliged to refer the same to the members of the A
Court Maitial for deciding the same in the manner provided for by section I02
of the Act. This provision is in the nature of an opportunity being 9ffered
to the concerned member against whom such a ground is urged to recuse
himself, in view of the allegations made. The trial Judge Advocate had no
jurisdiction to summarily reject such an objection without referring the same B
to the members. It would amount to rewriting the said provision if it was to
be held that the trial Judge Advocate must in the first instance examine the
objection himself, as to whether the ground about the competency to act as
impartial judge is made out or not. The summary rejection of the objection
with regard to Captain Raj iv Girotra and Cdr. Suresh Mehta was, therefore, not
in accordance with the procedufe prescribed by law, and there was a clear C
breach of the mandatory provision relating to procedure of Court Martial,
which undoubtedly caused gross miscarriage of justice to the respondent.
(
Accordingly it held that the constitution of the Court Martial itself become
susceptible to serious challenge on account of incompetency of Captain Raj iv
Girotra (President) and Cdr. Suresh, Member to act as impartial judges. Since D
the Court Martial was not duly constituted in accordance with law, all
subsequent steps taken by such a Court Martial were nullity and non-est in
the eye of law. It further held that even the objection with regard to Cdr.
Narayan, which was referred to the members of the Court Martial and was
rejected, was not disposed of in accordance with law. The reason was that
Captain Rajiv Girotra and Cdr. Suresh Mehta continued to participate as E
members of the Court Martial and participated in the proceeding when the
objection against Cdr. Narayan was referred to the Court Martial. Having
regard to the procedure prescribed by section I 02 of the Act, the continued
participation of Captain Rajiv Girotra and Cdr. Suresh Mehta, without
consideration of objection against them in accordance with law, vitiated the F
proceeding of the Court Marital even in regard to the consideration .of the
objection against Cdr. Narayan.

The High Court, therefore, held that the writ petition must succeed on
the sole ground of non-compliance of mandatory provisions of law while
considering the objection regarding incompetency of Captain Rajiv Girotra G
and Cdr. Suresh Mehta to act as impartial judges, relying on the observations
of this Court in Ran) it Thakur v. Union of India and Ors., AIR (1987) SC 2386
wherein it was held that participation of the objected members in the Court
Maitial rendered the proceedings coram non judice.

The High Court observed that in view of its above finding it was H
\
).

890 SUPREME COURT REPORTS [2003) 3 S.C.R.

A unnecessary to examine the other contentions but since the parties had
addressed the Comt at length on all points, it proceeded to deal with other
submissions as well.

It rejected the submission urged on behalf of the respondent that the
Court Martial had no jurisdiction to try the respondent for the offences with
B which he was charged. It held that the respondent being a person subject to
Naval Law, even though the offences of which he was charged were civil
offences, he could be tried and punished under the provisions of the Navy
Act regardless of where the offences were committed. Reference to section
78(2) of the Act was also of no assistance to the respondenf because the
C offence under section 497 of the Indian Penal Code was quite distinct from
an offence of rape under section 376 of the Indian Penal Code, and section
78(2) of the Act was confined in its application to the offences of murder,
culpable homicide not amounting to murder and rape.
''"
The High Court was then persuaded to consider the evidence on record
D for finding out whether there was any legal evidence to convict the respondent
of the offences with which he was charged. Considering the offence under
section 497 of the Indian Penal Code the High Court found that the prosecution
had miserably failed to establish the factum of marriage and its legality and,
therefore, the first ingredient of the offence was not established. Similarly
E having scrutinized the evidence on record for the limited purpose whether
there was any legal evidence to sustain the conviction, the High Court held
that having regard to the totality of circumstances it would be wholly unsafe
to record the finding of guilt against the respondent for the offences under
sections 452 and 355 of the Indian Penal Code. The High Court observed that
it had not re-appreciated the evidence as such, or made any attempt to find
F out sufficiency or adequacy of evidence, but on wading through the evidence
it found that there was no legal evidence to support the charges and, therefore,
the respondent should be given the benefit of doubt. With these findings, the
High Court allowed the writ petition and quashed the impugned orders.

Shri Anup G. Chaudhary, senior counsel appearing on behalf of the
G Union of India submitted that on a fair reading of section I 02 of the Act it
must be held that the trial Judge Advocate has power to reject summarily an
objection raised by the accused against inclusion of any member in the Court
Martial even if it was related to his competency to act as an impartial judge.
He emphasized the fact that under section 114 of the Act the trial Judge
H Advocate exercises powers which are judicial in nature and, therefore, section
•
U.0.1. v. SHIVENDRA BIKARAM SINGH (B.P. SINGH,J.) 891

I 02 must be understood in the background of the nature of judicial functions A
performed by the trial Judge Advocate. It was, therefore, open to the trial
'Judge Advocate to consider the objection and if he was of the opinion that
the ground challenging the competency of the concerned officer to act as an
impartial judge did not have merit, he could reject the same summarily. Only
those objections, which raised grounds worth considering had to be referred
to the Court Martial for its decision. He, therefore, submitted that the High B
Court had wrongly relied on the observations made by this Court in Ranjit
Thakur's case (supra). According to him the principles laid down therein were
wholly inapplicable to the case in hand, because in that case this Court had
considered the provisions of the Army Act, particularly Section 130 thereof
which is quite different from Section 102 of the Act. He, therefore, supported C
the ruling of the trial Judge Advocate rejecting the objection of the respondent
to two members of the Court Martial on the ground of their not being
competent to act as impartial Judges. In the alternative it is submitted that in
any case there was sufficient evidence on record to support the conviction,
and the High Court was, therefore, not justified in law in appreciating the
evidence on record and reaching the conclusion that the respondent was D
entitled to benefit of doubt. It is further contended that the respondent
having submitted himself to trial and the defect if any, not being of such a
nature as to vitiate the trial, it must be held that the respondent had waived
his objection against membership of two of the officers in the Court Martial.
According to him. If the respondent was aggrieved by the ruling of the trial E
Judge Advocate, he could have challenged his ruling by filing a writ petition.
He having not done so, it amount to a waiver and, therefore, he could hot
be permitted to urge that ground in support of the writ petition.

Shri Arun B. Saharya, senior advocate appearing on behalf of the
respondent submitted that the trial Judge Advocate was clearly in error in F
rejecting the objection raised by the respondent under section I 02 of the Act
having regard to the clear language of the section. Any objection ~elating to
a member of the Court Martial on a ground which affected his competency
to act as an impartial judge had to be decided by the members of the Court
Martial and not by the trial Judge Advocate. He took us to the scheme of
the Act in support of his submission. He further submitted that though the G
trial Judge Advocate performs functions which are judicial in nature, his role
becomes relevant only after the trial commences, as is evident from section
114 of the Act, and the trial does not commence till such time as the objection
under section I02 are disposed of and the President and every Member of
the Court Martial is administered the oath or affirmation as mandated by H
892 SUPREME COURT REPORTS (2003) 3 S.C.R.

A section I 04 of the Act and the plea of the accused on the charges is recorded
under section 105. That stage was never reached in this case because the
objections were not disposed of in accordance with the procedure laid down
under section I 02 of the Act. Moreover the provisions of the Act further
clarify that the function of the trial Judge Advocate is only to advice the
B Court Martial and not to decide such issues.

On the question of waiver he submitted that it implies a conscious
giving up of a right. In the facts of this case it is apparent that the respondent
never waived his right to object to the membership of three of the officers
in the Court Martial. He initially urged this submission before the High Court
C when he first filed the writ petition, which was dismissed as pre-mature since
he had not availed of the remedies under sections 162 and 163 of the Act.
Thereafter, he also urged this objection in his petition filed under section I 62
of the Act and finally the point was specifically urged before the High Court
in the instant writ petition out of which the present appeal arises. He submitted
D that the respondent was not expected to challenge every ruling given by the
trial Judge Advocate, and it was only appropriate that he permitted the trial
to continue and then challenged the verdict of the Court Martial on the
ground of glaring illegalities and breach of mandatory provisions of law which
not only caused prejudice to the respondent, but also resulted in serious
miscarriage of justice. He further urged before us that even though it is not
E permissible to the High Court to exercise its writ jurisdiction to appreciate the
evidence on record in the same manner as the High Comt may do in a criminal
appeal before it exercising appellate jurisdiction, the verdict of the Court
Martial can certainly be challenged in writ jurisdiction if the High Court is
satisfied that there is no legal evidence whatsoever to support the charges
F levelled against the accused. He emphasized that in doing so the High Court
was not expected to scrutinize the evidence with a view to finding out
whether there was sufficient evidence to record the conviction, but only to
find out if there was any legally admissible evidence at all, which could
support the finding recorded by the Court Martial. Therefore, not the
sufficiency, but the existence of relevant material, was what the High Court
G was entitled to look for in a case of this nature, and that is precisely what
the High Court has done in this case. He, therefore, supported the finding
recorded by the High Comt that there was no evidence whatsoever to support
the charges levelled against the respondent and, therefore, he·was entitled to
the benefit of doubt.

H In reply Shri Anup G. Chaudhary submitted that even if this Court
U.0.1. v. SHIVENDRA BIKARAM SINGH [B.P. SINGH, J.] 893
comes to the conclusion that there had been violation of mandatory provisions A
of section I02 of the Act and that the violation resulted in prejudice to the
respondent and serious miscarriage of justice, this Court should direct the
trial to commence from the stage of section I0 I of the Act. This was, of
course, subject to his contention that, in the facts and circumstances of this
case, the finding recorded by the Court Martial should be affirmed.
B
It would be beneficial to notice a few provisions of the Navy Act, 1957,
which would disclose the scheme of the Act and the procedure to be followed
in a Court Martial proceedings.

Section 93 provides that an offence triable under the Act may be tried
and punished by court-martial. Section 97 provides that court-marital shall be C
constituted and convened, subject to the provisions of the sub-sections to
Section 97, by the President, the Chief of the Naval Staff, or any officer
empowered in this behalf by commission from the Chief of the Naval Staff.
Sub-section (6) thereof provides that a court-martial shall consist of not less
than five and not more than nine officers. Sub-sections (7) to (22) lay down D
the qualifications of the officers entitled to sit as a member of the court-martial
and other details relating to the constitution of a court-martial. Section 99 lays
down that every court-maiiial shall be attended by a person referred to as the
trial Judge Advocate who shall be either a Judge Advocate in the department
of the Judge Advocate General of the Navy or any fit person appointed by
the convening officer. Sub-section (2) provides that the trial Judge Advocate E
shall administer oath to every witness at the trial and shall perform such other
duties as are provided in the Act and as.may be prescribed. Sections IOI to
103 are of considerable significance in this case and they are, therefore,
reproduced for sake of convenience :-

"I 0 I. Commencement of proceedings. - (I) As soon as the Court has F
been assembled the accused shall be brought before it and the
prosecutor, the person or persons, if any defending the accused and
the audience admitted.

(2) Except where the accused defends himself, he may be defended by G
such person or persons as may be prescribed.

(3) The trial Judge Advocate shall read out the warrant for assembling
the court and the names of officers who are exempted from attending
under sub-section (20) of section 97 together with the reasons for
such exemption.
H
894 SUPREME COURT REPORTS (2003] 3 S.C.R.

A (4) The trial Judge Advocate shall read out the names of the officers
composing the court and shall ask the prosecutor whether he objects
to any of them.

(5) If the prosecutor shall have made no objection or after any objection
made by the prosecutor has been disposed of, the trial Judge Advocate
B shall ask the accused if he objects to any member of the court.
102.0bjections to members. - The following provisions shall apply to
the disposal of objections raised by the prosecutor as well as the
accused :-

(a) any member may be objected to on a ground which affects his
c competency to act as an impartial judge; and the trial Judge
Advocate may reject summarily without reference to the members
of the court any objection not made on such grounds;
(b) objections to members shall be decided separately, those to the
officer lowest in rank being taken first : provided that if the
D objection is to the president, such objection shall be decided first
and all the other members whether objected to or not shall vote
as to the disposal of the objection;
(c) on an objection being allowed by one-half or more of the Officers
entitled to decide the objection, the member objected to shall at
E once retire and his place. shall be filled up before an objection
against another member is taken up;
(d) should the president be objected to and the objection be allowed,
the court shall adjourn until a new president has been appointed
by the convening authority or by the officer empowered in this
F behalf by the convening authority; and
(e) should a member be objected to on the ground of being summoned
as a witness, and should it be found that the objection has been
made in good faith and that the officer is to give evidence as to
facts and not merely as to character, the objection shall be allowed.
G
103. Fu11her objections. - ( 1) The trial Judge Advocate shall then ask
the accused whether he has any further objection to make respecting
the constitution of the court; and should the accused raise any such
objection, it shall then be decided by the court. which decision shall
be final and the constitution of the court-mm1ial shall not be afterwards
H impeached and it shall be deemed in all respects to have been duly
U.0.1. v. SHIVENDRA BIKARAM SINGH [B.P. SINGH, J.) 895
constituted. A
(2) If the accused should have no further objection to make to the
constitution of the court or if any objection is disallowed, the members
and the trial Judge Advocate shall then make an oath or affirmation
in the form set out in section !04.
B
These provisions lay down the manner in which the proceedings
commence before the Court Martial and the objections, which are to be
considered even before the trial begins. These provisions, therefore, apply at
the pre-trial stage. After the provisions of sections. IOI to 103 are complied
with, the President and every member of the Court Martial is required to be
administered an oath or affirmation in the form and manner prescribed by C
section 104 of the Act. Thereafter under section 105 when the court is ready
to commence the trial, the trial Judge Advocate is required to read out the
charges and ask the accused whether he pleads guilty or not guilty. If he
pleads guilty and the court accepts the plea, it shall be recorded as a finding
of the court and the court shall proceed to take steps to pass sentence unless D
there are other charges to be tried in which event the sentence shall be
deferred until after the findings on such charges are given. If the accused
pleads not guilty or refuses to, or does not, plead or if he claims to be tried,
the court shall proceed to try the accused. Section 113 provides that when
the case for the defence and the prosecutor's reply, if any, are concluded, the
. trial Judge Advocate shall proceed to sum up in open court the evidence for E
the prosecution and the defence and lay down the law by which the court
is to be guided. Section 114 lays down the duties of the trial Judge Advocate
at such trial. It is the duty of a trial Judge Advocate to decide at the trial all
questions of law arising in the course of the trial, and specially all questions
as to the relevancy of facts which it is proposed to prove and the admissibility F
of evidence or the propriety of the questions asked by or on behalf of the
parties; and in his discretion to prevent the production of inadmissible evidence
whether it is or is not objected to by the parties. Under section 115 it is the
duty of the court to decide which view of the facts is true and then arrive
at the finding, which under such view ought to be arrived at. Under section
116 after the trial Judge Advocate has finished his summing up, the court is G
to be cleared to consider the finding. The trial Judge Advocate shall not sit
with the court when the court is considering the finding and no person shall
speak to or hold any communication with the court while the court is
considering the finding. Thereafter under section 117 the court is required to
reassemble and the President shall inform the trial Judge Advocate in open H
896 SUPREME COURT REPORTS (2003) 3 S.C.R.

A court what is the finding of the court as ascertained in accordance with
section 124.

It will thus appear that the steps taken before the stage is reached under
section I 04 of the Act for administering oath or affirmation to the President
and the Members of the Comt Martial, are taken at the pre-trial stage. Though
B the proceedings commence before the Court Martial for compliance of the
requirements of sections I0 I, 102 and I03 of the Act, the trial commences only
after the President and the members of the Court Martial are administered oath
as required by section 104 of the Act and the accused is produced before the
Court Martial. Sub-section (3) of Section I 0 I directs the trial Judge Advocate
C to read out the warrant for assembling the court and the names of officers
who are exempted from attending together with the reasons for such exemption.
After the warrant is read out, the trial judge is required to read out the names
of the officers composing the court. It shall then ask the prosecutor whether
he objects to any of them. If any objection is made by the prosecutor the
same has to be disposed of. However, if the prosecutor has no objection, the
D trial Judge Advocate shall ask the accused if he objects to any member of
the court.

It would thus appear that before the trial commences, objections to
membership of the Court have to be considered with a view to ensure fairness
E of trial and to avoid charge of bias against any of the members of the Court
Martial. Section I 02 lays down the provisions, which shall apply to the
disposal of objections raised by the prosecutor as well as the accused. Clause
(a) provides that any member may be objected on a ground, which affects his
competency to act as an impartial judge, and the trial Judge Advocate may
reject summarily without reference to the members of the court any objection
F not made on such ground. Clauses (b) to (e) lay down the procedure to be
followed by the members of the Court Martial while considering such
objections.

Section I 03 refers to further objections. Clause (a) of section I 03 begins
G with the words "the trial judge advocate shall then ask the accused whether
he has any further objections to make respecting the constitution of the
court". Ifthe accusedTaises any such objection, that is required to be decided
by the court, which decision shall be final and the constitution of the court
111aitial shall not be afterwards impeached, and it shall be deemed in all
respects to have been duly constituted. In case the accused has no further
H objection to make or the objection made is disallowed, the members and the
U.0.1. v. SHIVENDRA BIKARAM SINGH [B.P. SINGH, J.] 897
trial Judge Advocate shall then make an oath or affirmation in the form set A
out in section 104. From the scheme <!f these sections it is quite apparent that
before the trial commences, all objections to the constitution of the Court
Martial must be considered and decided. Section I 02 is confined to an objection
on the ground, which affects the competency of the President or a member
of the Court Martial to act as an impartial Judge. As would be clear from a
reading of this section as a whole it does not provide for the consideration B
of any other objection at that stage. The section that follows i.e. section 103
refers to any further objection respecting the constitution of the Court Martial,
It is, therefore, open to the accused to raise further objections on other
grounds respecting the constitution of the Court Martial, and for this purpose
he may urge the ground of breach of any or the provisions of the sub- C
sections of section 97 of the Act, or any other objection which he has
respe4;ting the constitution of the Court MartiaL These objections have to be
decided under section I03 by the Court Martial, which must mean all the
members of the Court Martial, who are entitled to sit as a Court after the
disposal of objections, if any, under section 102 of the Act.
D
We then come back to section 102 of the Act, particularly clause (a)
thereof. The real controversy in the instant case is the nature of authority
exercised by the trial Judge Advocate to reject summarily, without reference
to the members of the Court Martial any objection not made on a ground,
which affects the competency of a member to act as an impartial judge. While E
the respondent contends that all objections made on a ground which affects
the competency of a member to act as an impartial judge have to be decided
in accordance with the procedure laid down in clauses (b) to (e) of section
102, according to the appellant it is open to the trial Judge Advocate to reject
summarily even an objection to a member on the ground which affects his
competency to act as an impartial judge. It is contended that even if the F
ground urged, though it affects the competency of a member to act as an
impartial judge, the trial Judge Advocate may reject the same if he finds no
merit in it.

We are inclined to accept the contention put forth by the respondent.
Clause (a) of section I02 is in two parts. The first part refers to any objection G
against a member on the ground, which affects his competency to act as an
impartial judge. The second part deals with the authority of the trial Judge
Advocate to reject summarily without reference to the members of the court
"any objection not made on such grounds". It was not disputed before us
that ifthere was a valid ground urged affecting the competency of a member H
898 SUPREME COURT REPORTS (2003] 3 S.C.R.

A to act as an impartial judge, the same has to be decided in accordance with
the procedure laid down under clauses (b ), (c), (d) and (e) of section I 02. The
first part of clause (a) enables the prosecutor and the accused to raise an
objection of the nature specified. The second part of clause (a) only empowers
the trial Judge Advocate to reject summarily any objection not made on such
grounds. To us it appears that the clear intention of the legislature was that
B at the stage of section I 02 only the objections relating to membership of the
court martial on a ground affecting the competency of any member to act as
a court martial are required to be considered. Every other objection regarding
constitution of the court martial on other grounds has to be considered later,
and that is what is provided by section 103 of the Act. All grounds other than
C the ground which affects the competency of a member to act as an impartial
judge, is required to be decided by the court, and no discretion is left with
the trial Judge Advocate. Reading the two provisions together the scheme of
the Act appears to be that in the first instance the court has to consider
whether any of its member is disentitled to sit as a member of the court martial
on the ground that he is not competent to act as an impartial judge. No other
D objection is to be entertained at this stage. Therefore, when an objection to
any member is raised on a ground other than the ground, which affects his
competency to act as an impartial judge, the trial Judge Advocate is authorized
to reject the same summarily without reference to the members of the court
0

martial. But if any member is objected to on the ground, which affects his
E competency to act as an impartial judge, the trial Judge Advocate has no
discretion in the matter and he must place the matter before the court, which
must consider the objection in accordance with the procedure laid down in
clauses (b) to (e) of section 102. Whether there is any merit in the objection,
is not a matter to be considered by the trial Judge Advocate, since he is not
vested with the jurisdiction to decide such objections. That power has to be
F exercised by the court itself. The only authority that is given to the trial Judge
Advocate under clause (a) of section I02 is to reject at that stage all other
objections without reference to the members of the court martial which are not
on a ground which affects the competency of a member to act as an impartial
judge. This is because such other objections may be considered later after
G the constitution of the court is first finalized after disposal of objections to
membership of the court martial on the ground, which affects the competency
of any member to act as an impartial judge. The scheme of the Act, therefore,
is to provide for two stages at which the objections to the constitution of the
court martial have to be considered. Section I02 clarifies that at that stage
only those objections have to be considered which proceed on a ground,
H which affects the competency of any member to act as an impartial judge. All
)
..I._

U.0.1. v. SHIVENDRA BIKARAM SINGH [B.P. SINGH, J.) 899
other objections to the constitution of the court have to be considered after A
the objections on the grounds specified in clause (a) of section I 02 of the
Act are disposed of. Those other objections have to be disposed of in the
manner laid down under section I 03 of the Act.
•A
The High Court has taken the same view as we have taken of the
provisions of sections I 02 and 103 of the Act. The trial Judge Advocate, in B
the instant case, rejected summarily the objection taken by the respondent to
the membership of two of the officers, while the objection against the third
officer was rejected by the court itself. Having perused the minutes of the trial
Judge Advocate it cannot be said that the ground on which the objection was
taken was not one, which affected the concerned member to act as an impartial C
judge. The objection as against the President of the Court, namely Captain
Raj iv Girotra was that he was a course-mate of Cdr. Baijal, with whose wife
the respondent was alleged to have had adulterous connections. Similar
objection was taken to the membership of Cdr. Suresh Mehta that he was the
course-mate of the complainant. It would thus appear that the respondent
objected to their membership on a ground, which affected their competency D
to act as an impartial judge. The question whether the objection was sustainable
or not, was a question which had to be decided by the members of the court
martial in accordance with the provisions of clauses (b) to (e) of section 102.
Instead of following the procedure laid down by the aforesaid sub-sections,
the trial Judge Advocate usurped the jurisdiction of the court and rejected E
summarily the objection of the respondent after going through the material
on record, holding that the objections were not sustainable. In doing so he
clearly over stepped the limitations of his jurisdiction and decided a matter
which the court alone, and not he, was empowered to decide. The question
whether the ground is substantiated by material brought on record is a
question, which relates to the merit of the objection. The respondent may be F
able to substantiate the ground urged by him or he may fail to do so. In that
event his objection may be rejected by the members of the court martial but
that is not to say that the ground on which objection was taken did not affect
the competency of a member to act as an impartial judge. The jurisdiction of
the trial Judge Advocate under clause (a) of section 102 is limited to the extent G
of finding out whether the objection is on the ground specified in the first
part of clause (a). If it was such a ground, then regardless of its merit, the
objection had to be decided by the court martial in accordance with the
procedure laid down in that section. If it was not such a ground as specified
in the first part of section I 02, it was then his discretion to summarily reject
the same. The words of the section are "may reject summarily" which is H
900 SUPREME COURT REPORTS (2003] 3 S.C.R.

A indicative of a discretion vested in him. That is because if the objection is
an objection respecting the constitution of the court, but not on the ground
specified in clause (a) of section 102, then he may rather than dismissing the
objection reserve it for consideration after the objections under sections I 02
are disposed of and the objections under sections I 03 are taken up for
consideration.
•
B
We are, therefore, in agreement with the High Court that the trial Judge
Advocate exceeded his jurisdiction under clause (a) of section 102 of the Act
and because of his erroneous exercise of jurisdiction the objections relating
to the constitution of the Court Martial remained undecided by the competent
C authority, and yet the members of the Court Martial proceeded with the trial
and found the respondent guilty. This was done in breach of a mandatory
provision of section 102 of the Act. Non-compliance of the mandatory provision
of section 102 is an infirmity which goes to the root of the jurisdiction and
without more, vitiates the proceedings. It was so held by the court in Ranjit
Thakur's case (supra) where the Court considering a similar provision, though
D under the Army Act, observed :-

"The procedural safeguards contemplated in the Act must be
considered in the context of and corresponding to the plenitude of the
summary jurisdiction of the Court-Martial and the severity of the
consequences that visit the person subject to that jurisdiction. The
E procedural safeguards should be commensurate with the sweep of the
powers. The wider the power, the greater the need for the restraint in
its exercise and correspondingly, more liberal the construction of the
procedural safeguards envisaged by the Statute. The oft quoted words
of Frankfurther, J. in Vitarelli v. Seaton, 359 US 535 are again worth
F recalling :
" ..... If dismissal from em.ploy111ent is based on a defined procedure,
even though generous beyond the requirements that bind such
agency, that procedure must be scrupulously observed ....... This
judicially evolved rule of administrative law is now firmly
G established and, if I may add, rightly so. He that takes the
procedural sword shall perish with that sword."

What emerges, therefore, is that in the present case there is
a non-compliance with the mandate of S.130 with the attention
H consequence that the proceedings of the Summary Court-Martial
U.0.1. v. SHIVENDRA BIKARAM SINGH [B.P. SINGH, J.] 901
are rendered infirm in law." A
This Court referred to similar observations made in Lt. Col. Prithi Pal
Singh Bedi v. Union of India, AIR ( 1982) SC 1413 where this Court observed:-

" ..... Whenever an objection is taken it has to be recorded. In order to
ensure that anyone objected to does not participate in disposing of B
the objection .....

...... This is a mandatory requirement because the officer objected to
cannot participate in the decision disposing of the objection .

..... The provision conferring a right on the accused to object to a
member of the Court Martial sitting as a member and participating in C
the trial ensures that a charge of bias can be made and investigated
against individual members composing the Court - Martial. This is pre-
eminently a rational provision which goes a long way to ensure a fair
trial."

On the question of bias, the Court in Ranjit Thakur's case (supra) D
observed thus :-

"The second limb of the contention is as to the effect of the alleged
bias on the part of respondent 4. The test of real likelihood of bias
is whether a reasonable person, in possession of relevant information,
would have thought that bias was likely and is whether respondent E
4 was likely to be disposed to decide the matter only in a particular
way.

It is the essence of a judgment that it is made after due observance
of the judicial process; that the Court or Tribunal passing it observes,
at least the minimal requirements of natural justice is composed of p
impartial persons acting fairly and without bias and in good faith. A
judgment which is the result of bias or want of impartiality is a nullity
and the trial 'coram non judice'. (See Vassiliades v. Vassiliades, AIR
(I 945) PC 38."

In Union of India and Ors v. Major A. Hussain, [1998] I SCC 537, while G
dealing with the parameters of judicial review and interference with Court-
Martial proceedings this Court observed :-

"23. 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 H
I
)..

902 SUPREME COURT REPORTS [2003] 3 S.C.R.

A Article 227 of the Constitution. If a court-martial has been properly
convened and there is no challenge to its composition and the
proceedings are in accordance with the procedure prescribed, the
High Court or for that matter any court must stay its hands."
(emphasis supplied)
•
B To the· same effect are the observations in Union of India v. Himmat
Singh Chahar, [ 1999] 4 SCC 52 I. It was said, while considering provisions of
the Navy Act, 1957 :-

"4. Since the entire procedure is provided in the Act itself and the Act
also provides for a further consideration by the Chief of the Naval
c Staff and then by the Union Government then ordinarily there should
be a finality to the findings arrived at by the competent authority in
the court-martial proceedings. It is of course true and notwithstanding
the finality attached to the orders of the competent authority in the
court- martial proceedings the High Court is entitled to exercise its
D power of judicial review by invoking jurisdiction under Article 226 but
that would be for a limited purpose of finding out whether there has
been infraction of any mandatory provisions of the Act prescribing
the procedure which has caused gross miscarriage of justice or for
finding out that whether there has been violation of the principles of
natural justice which vitiates the entire proceedings or that the authority
E exercising the jurisdiction had not been vested with jurisdiction under
the Act."

Learned counsel for the appellant submitted that except one, the aforesaid
decisions were rendered while considering the provisions of Section 130 of
F the Army Act, which is differently worded. It may be that section 130 of the
Army Act is differently worded, but that will not make any difference to the
application of the principles laid down by this Court in the aforesaid decisions.
Section 130 of the!- Army Act as well as section I 02 of the Navy Act relate
to the objection to the inclusion of any officer as member of the Court Martial.
It may be that the procedure prescribed is not identical, though similar, but
G if the provision is mandatory in nature and there is non-compliance with that
provision, the consequences will be the same. We, therefore, hold that non-
compliance with section I 02 of the Navy Act has vitiated the proceedings
before the Court Martial.

This takes us to the second submission urged on behalf of the appellant
H that the respondent has waived his right to raise such objection since he did
U.0.1. v. SHlVENDRA BIKARAM SINGH [B.P. SINGH, J.] 903
not challenge the ruling of the trial Judge Advocate by filing a writ petition A
before the High Court. We find no merit in this submission because it is not
expected of an accused to challenge every ruling in the course of a trial as
that would unnecessarily protract the trial, something, which is not encouraged
by the courts. He raised that objection in his petition under section 162 of
the Act and thereafter raised the same objection in the instant writ petition
from which this appeal arises. It cannot, therefore, be said that he waived his B
right to raise this objection merely because he did not challenge the ruling
of the trial Judge Advocate immediately after it was given at an intermediate
stage of the proceedings.

We, however, find considerable force in the submission urged on behalf C
of the appellant that having found that there was a breach of mandatory
provision of the Act which vitiated the proceedings before the Court Martial,
the High Court was not justified in considering the evidence on record even
for the limited purpose of discovering whether there was any legal evidence
to sustain the charges. Counsel for the respondent on the other hand submitted
that it was within the power of judicial review of the High Court to quash an D
order of conviction recorded by the Court Martial if it came to the conclusion
that the finding of the Court Martial was perverse as there was no legal
evidence whatsoever to support the conviction. In our view, in the facts and
circumstances of this case this question had become academic once it was
found that the proceedings before the Court Martial were vitiated on account E
of non-compliance with the provisions of section 102 of the Act. If the very
constitution of the Court Martial was not in accordance with law, then any
proceedings taken before such an improper Court Martial was a nullity as far
as the trial is concerned. As a consequence, the evidence recorded before
such a Court Martial had no sanctity in law and, therefore, did not deserve
any further consideration. F
We, therefore, set aside the finding recorded by the High Court that
there was no legal evidence whatsoever to support the charges levelled
against the respondent and that he was entitled to benefit of doubt. The
findings of the High Court on other questions are affinned. The order of
conviction passed by the Court Martial as well as the orders made under G
sections 162 and 163 of the Navy Act have been rightly quashed by the High
Court.

In the facts and circumstances of the case we leave it to the authorities
concerned to consider whether or not to continue the Court Martial
H
904 SUPREME COURT REPORTS (2003] 3 S.C.R.

A proceedings from the stage of section 102 of the Act. We make no direction
in that regard. In case it is decided to continue the proceeding, the objections
-
raised by the respondents shall be placed for consideration and decision by
the members of the Court Martial in accordance with the procedure laid down
in clauses (b) to (e) of section 102 of the Act. This is on the assumption that
all the members of the Court Martial are available to act as such. In the event
B of non-availability of any or all the members of Court Martial earlier constituted,
it will be open to the competent authority to constitute a fresh Court Martial.
In that event the question whether the objections survive or not may have
to be reconsidered depending on whether the President or the Members
objected to continue to serve on the Court Martial. Thereafter further
C proceedings shall be taken in accordance with law. The Court Martial shall
not be influenced by any observation made by the High Court in its impugned
judgment. We have scrupulously avoided reference to the facts of the case
and the merit of the charges against the respondent. However, nothing said
in this judgment shall be construed as expression of opinion on the merit of
the charges, which shall be considered in the· light of the evidence, which may
D be produced by the prosecution before the Court Martial or the reconstituted
Court Martial, as the case may be, if the competent authority so decides.

Before parting with this judgment we may notice the submission urged
on behalf of the respondent that the re-trial of the respondent, even if
E ordered, will be barred by limitation in view of the provision of section 79 of
the Act. According to learned counsel for the respondent the trial commences
when the charges are read out to the accused and his plea is recorded in
accordance with section 105 of the Act. We do not wish to express any
opinion on this question. However, the respondent will be at liberty to raise
this question in appropriate proceedings before the appropriate forum, if
F occasion arises.

This appeal is accordingly dismissed but subject to the direction
aforesaid.

N.J. Appeal dismissed.