UNION OF INDIA AND ANR versus CHARANJIT S. GILL AND ORS

Citation: [2000] 3 S.C.R. 245 · Decided: 24-04-2000 · Supreme Court of India · Bench: G.B. PATTANAIK · Disposal: Dismissed

Cited by 4 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

UNION OF INDIA AND ANR. 
A 
v. 
CHARANJIT S. GILL AND ORS. 
APRIL 24, 2000 
[G.B. PATTANAIK, RP. SETHI AND SHIVARAJ V. PATIL, 11.] 
B 
Anny Act, 1950-Sections 39( 1) & 63-Anny Rules, 1954-Rules 39, 40 
& 102-Court Martial pmceedings-Judge-Advocate lower in rank than the 
accused officer-Whether permissible-Held, Judge-Advocate though not 
forming part of the court, yet being an integral part of it should not be an 
C 
officer of a rank lower than the officer facing the trial, unless the officer of 
such rank is not available and the opinion regarding non-availability is 
specifically recorded in the convening order. 
Rules 39, 40(2) 102 & 103-Judge-Advocate-Disqualification of-In 
court martial proceedings-An officer who is disqualified to be part of court 
martial is also disqualified fmm acting and sitting as Judge-Advocate at court 
martial-If a fit person is not appointed as a Judge-Advocate, the proceedings 
of the court cannot be held to be valid. 
Rules 39, 40 & 102--Notes appended to the rules-Whether can have the 
effect of rules or regulations-Held, No-No power is conferred on the Central 
Government for issuing notes or issuing orders which would have the effect of 
rules made under the Army Act, 1950. 
Court Martial-Are not courls in the strict sense of the term-The pro-
ceedings before the court mania[ are more administrative in nature and of 
executive type. 
General Court Martial (GCM) was convened to try the respondent, 
wherein he was found guilty and hence subjected to sentence. The Confirm-
D 
E 
F 
ing Authority, to whom the proceedings were transmitted for confirmation, 
found the sentence to be inadequate and the ref ore directed the GCM to 
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reconsider the matter. GCM, after reconsidering the matter, revoked its 
"°. 
earlier order and passed fresh order dismissing the respondent, which was 
also made subject to confirmation. 
Respondent filed Writ Petition before High Court against the order 
of the GCM dismissing him. During pendency of the Writ Petition the order 
H 
245 
A 
B 
c 
D 
E 
246 
SUPREME COURT REPORTS 
[2000] 3 S.C.R. 
of the GCM was confirmed and subsequently the writ petition was dis-
missed by the Single Judge. 
Respondent preferred appeal before the Division Bench of the High 
Court, which was allowed on the ground that the Judge Advocate being 
lower in rank to the accused officer, should not be able to take part in GCM. 
In appeal to this Court, the appellant contended that the Judge-
Advocate being only a Legal Adviser and not a member of the Court 
Martial, his rank is not material for being appointed as such to assist the 
GCM; that under the Army Act, Rules and Regulations made thereunder, 
there was no obligation for the appellants to appoint a Judge-Advocate who 
should have been senior in rank to the accused; that there are separate 
provisions under the Act, Rules and Regulations for members and Judge-
Advocate at GCM laying down their eligibility, disqualifications, duties, 
etc.; that as the officers of the same or higher rank than the officers facing 
trial are not available, the interpretation rendered by the Division Bench 
would render the holding of Court Martials impossible; and that since Note 
2 at the foot of Rule 102, having the force of law has been followed by the 
army authorities and thus disqualifications of a Judge-Advocate in a Court 
Martial are referable to Rule 39(2) alone which cannot be further stretched 
to Rule 40(2). 
The Respondent contended that the combined reading of Rules 39, 40 
and 102 makes it clear that if the Judge-Advocate is lower than the accused 
facing trial in GCM, the proceedings are liable to b~ quashed; that though, 
technically the Judge-Advocate is an adviser to the prosecution, yet in . 
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practice he wields a greatinfluence upon the verdict of the court in view of 
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the powers conferred upon him under the Act and the Rules; and that the 
. .jt-
Notes not being passed by the Parliament and having not vetted even by the 
Ministry of Law and Justice or by the Law Commission, cannot be held to 
be law. 
"' 
Dismissing the appeal, the Court 
""' 
HELD 1.1. The judge-advocate though not forming a part of the 
""f· 
court, yet being an integral part of it is required to possess all such 
qualifications and be free from the disqualifications which relate to the 
H 
appointment of an officer to the court-martial. In other words a judge-
U.0.1. v. C.S. GILL 
247 
advocate appointed with the court-martial should not be an 

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