Kerala High Court rules investigating officer can also be prosecutor in Navy court-martial

In a September 18 order, a bench of Justices K Natarajan and Johnson John said that Parliament is empowered to enact laws restricting the fundamental rights of the members of the Armed Forces, to the extent considered necessary in the interest of discipline and public order. 

The order added, “There is no clear prohibition in the regulations for appointing the investigating officer as a Prosecutor…the appointment of the investigating officer as a prosecutor cannot, by itself, be considered a violation of the right to a fair trial guaranteed under Article 21 of the Constitution of India.”

Justices K Natarajan and Johnson John said that there was no prohibition in the Navy Regulations for appointing the Investigating Officer as a Prosecutor.

One officer, two roles

Santosh Karwade, a Navy personnel with 31 years of service, was facing a court-martial under the Navy Act, 1957. He challenged the proceedings, alleging that the officer who investigated the case also served as the appointed prosecutor, violating his right to a fair trial under Article 21 of the Constitution of India.

Karwade was convened under the Navy Act for various charges framed against him, including allegations that he dishonestly induced an officer, Balachandran, to transfer Rs 1.10 lakh, and included an offence of cheating under the IPC read with Section 77(2) (which states that any person under naval law who commits a civil offence) of the Navy Act. By the time he could challenge the case, eight witnesses had already been examined.

Accordingly, he challenged the appointment of the investigating officer as prosecutor, arguing that the same officer could not investigate and prosecute the case. The single judge held that an investigating officer could not be a “suitable person” to act as prosecutor in the same trial. However, Karwade was directed to approach the Armed Forces Tribunal after trial to establish whether this caused prejudice.

Advocate Aysha Abraham, appearing for Karwade, argued that although the judge had held that the investigating officer should not act as prosecutor, it did not strike down Regulation 178 (3), which provides that the prosecutor is also to be examined as a witness, as unconstitutional. Instead, Karwade was asked to approach the Armed Forces Tribunal after conviction to determine whether the appointment had vitiated the trial.

Additional Solicitor General of India, P Sreekumar, appearing for the State, argued that Section 4 of the Navy Act provides for the fundamental rights to apply to persons subject to the Naval Law with modifications. Therefore, it also contended that the CrPC does not apply to the Navy Act, and has separate procedural laws and regulations under the Navy Act and Regulations, which provide the manner of conducting the trial before the court-martial. 

It was also submitted that the Central Government was empowered to enact special legislation for the Armed Forces, restricting their fundamental rights to the extent deemed necessary. 

Appeal dismissed

The court noted that it is well settled that if any law framed by the Central Government is affecting the fundamental right of the citizen, then it is ultra vires. However, the fundamental rights guaranteed under Part III of the Constitution are subject to the restrictions imposed by Article 33 of the Constitution of India.

The court, therefore, held that the appeal filed by Karwade was dismissed, and the observation made by the single Judge in respect of the appointment of the Investigating Officer as a Prosecutor before the court-martial under the Navy Act, which would prejudice the case, was hereby set aside.