Friday, July 4, 2014

Another controversial Indian Army General Court Martial set aside by the High Court

The Punjab & Haryana High Court has set aside another General Court Martial held in the year 1993 wherein a Captain of the Indian Army had been convicted for murder.

The case related to Capt PS Gill, who during the period of militancy in the State of Punjab was accused, and then convicted of murder by a Court Martial. Though the person allegedly murdered was a civilian, the officer was made to face a Court Martial on the pretext that he was on active service at the time when the offence was allegedly committed.

The trial was challenged on two aspects by the officer. One, that the trial should have been held in a regular criminal court and not by a Court Martial, and secondly, on the merits of the case encompassing many technical points pointing out to a post-decisional trial and prejudice.

The first point was not agreed to upon by the High Court but various facets of the second aspect were accepted and the Court Martial set aside in toto.
The High Court considered and accepted the following points while setting aside the Court Martial:

-That the convening authority himself had made a statement before the media that the accused would be punished exemplarily, and that too before the trial. This the High Court felt pointed out to a post-decisional trial and bias.

-That a Court of Inquiry and a Summary of Evidence had been conducted but the Prosecution wrongly informed the Court that it was not held.

-That by holding back the conclusions of the Court of Inquiry and the Summary of Evidence, a reasonable and fair opportunity of cross examination of prosecution witnesses was denied with regard to their previous stand(s) before the said bodies.

-That statement of a person recorded when he was in detention had been relied upon.

-That there was conflict in the evidence related to the unauthorized absence of the accused.

-That the person who had recorded the Summary of Evidence was also appointed as the prosecution officer bringing about conflict of interest.

While setting aside the entire proceedings of the Court Martial, the High Court has made the following observations in its judgment:

...Thus, the justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. Even the law bends before justice. Justice is the virtue opposed to injury or wrong. Justice is an act of rendering what is right and equitable towards one who has suffered a wrong. Therefore, the court has to do justice in conformity with some obligatory law and that this Court would be failing in its duty, if it does not embark an enquiry into the question of the legality of the order of the punishment keeping in view the parameters settled...

...The documents Ex CC and Ex Z clearly support this aspect of the matter and the amount of bias with which the authorities have sought to scuttle fair play and justice to the accused before it including the petitioner. No doubt holding of a Court of Inquiry/summary of evidence, but once it has been held so denial of the statements and the documents that form part of the proceedings and taking a false stand in GCM that it was not held certainly shakes judicial conscience...

...It is worthwhile to reproduce here that this GOC is the official empowered to order convening of the Court Martial against the petitioner and his statement that the accused shall be exemplarily punished is in itself suggestive of this inherent official bias of the authorities and which precisely is the defence that has been adduced during the GCM...

...No doubt the petitioner belongs to a highly disciplined force where utmost discipline, dedication and truth prevail. Merely under this garb the petitioner cannot be denuded of his legitimate rights that the law subscribes for him. It appears to us that the procedure which is meant to further the ends of justice has rather been used to frustrate the same and has rather severely affected the trial. The rights of the petitioner have been substantially prejudiced...

...We part holding that on account of these serious wantings has caused an immense prejudice to the petitioner and thus vital and substantial rights being affected at the trial which impinges the judicial conscience and which are not attributable to any bonafide mistakes and which appears to be intentional one deliberately to achieve a sinister design and thus thwart the law and therefore the Court Martial proceedings culminating into passing of the impugned orders and all consequences arising out of it needs to be struck down. The petition is accordingly allowed...

A complete copy of the judgment can be accessed by clicking here.


  1. Thanks for this helpful summary. One thing that amazes me is the sheer time it has taken for the legal process to run its course. It seems totally unacceptable, and this is not the first such case I can recall. What are the Indian government and courts doing to get the judicial review process into something approaching a reasonable timeframe? How many ex-service-members with meritorious cases die before their cases are decided?

  2. Totally agree Sir. The Indian judicial system is overburdened. The judge to population ratio is extremely poor. There have been attempts to overcome this malady, but not to any positive effect till now. The effort continues though....


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