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HindustanTimes Wed,27 Aug 2014

Judge advocate can’t be of lower rank than accused officer, says high court

Bhartesh Singh Thakur, Hindustan Times  Chandigarh, June 03, 2014
First Published: 12:42 IST(3/6/2014) | Last Updated: 12:44 IST(3/6/2014)

By setting aside the dismissal of Lieutenant Colonel, the Punjab and Haryana high court has ruled that a judge advocate, who is on the panel of General Court Martial (GCM), cannot be of lower rank than the accused officer. It added that if it has to be so then reasoning has to be given.

The bench headed by justice Hemant Gupta upheld the Rule 40(2) of Army Rules, 1954, that “the members of a court-martial for the trial of an officer shall be of a rank not lower than that of the officer unless, in the opinion of the convening officer, officers of such rank are not (having due regard to the exigencies of the public service) available. Such opinion shall be recorded in the convening order.”

The court observed, “The judge advocate is a necessary component of the court martial, which is mandated by Section 129 of the Army Act. In the present case, though the name of the judge advocate has been disclosed in the communication… but the reasons of nominating a Judge Advocate of a lower rank have not been communicated to the petitioner.”

It added, “Once the name of judge advocate is disclosed, the circumstances as to why he is being nominated were also required to be communicated, so as to comply with the mandate of sub-rule (2) Rule 40 ( of Army Rules). An accused in a court martial is entitled to procedural safeguards to defend him.”

A judge advocate informs the GCM of any defect or irregularity in the charge and in the constitution of the court or in the proceedings. The quality of the advice tendered by the judge advocate is very crucial in a trial conducted under the Army Act.

In this case, Lt Colonel Rahul Arora was the petitioner. The primary charge against him was that on May 31, 2002, while posted as ENT specialist at Secunderabad, he initially declared a recruit as ‘unfit’, but later altered the same to ‘review after fifteen days of treatment’ and, thus, he falsified the official document. The second charge was that he remained absent from duty from April 11 to April 19 of 2004 and the third charge was that he behaved in a manner unbecoming of his position and character expected of him.

He was awarded punishment of forfeiture of 8 years of past service for purpose of pension and severe reprimand on March 11, 2005. Though, he was acquitted of the third charge.

The convening authority was of the opinion that punishment was lenient so GCM was again called and this time, he was awarded punishment of dismissal on May 17, 2005.

On August 14, 2012, the Armed Forces Tribunal, Chandigarh Bench, had dismissed his appeal after which he had approached the high court.

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