Kerala HC says investigating officer can also be appointed as prosecutor in court-martial case as per Navy regulations

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The Kerala High Court recently held that an investigating officer can be appointed as a prosecutor in a court-martial case as per the Navy (Discipline and Miscellaneous Provisions) Regulations, 1965, and that it would not violate the accused person’s fundamental right to a fair trial. 

The Division Bench of Justices K. Natarajan and Johnson John held that a combined analysis of the Constitution of India, the Code of Criminal Procedure, 1973, the Navy Act, 1957 and the Navy Regulations would indicate that, in matters of the armed forces, there are restrictions imposed on the fundamental rights of military personnel. In such cases, the prosecutor and the investigating officer in a court-martial case could be competent witnesses. The court inferred that even if the investigating officer is appointed as the prosecutor, he could be examined as a witness.

The petitioner was a Navy personnel with 31 years of service, undergoing a trial where he was charged with offences, including cheating. He had previously approached a Single Bench of the court, alleging that he was denied the right to a free and fair trial, as the trial was being conducted by the prosecutor, who had also been the investigating officer of the charges levelled against him.

He claimed that he was denied access to material documents and adequate opportunities to defend the case. He sought directions to declare the provision allowing a court-martial prosecutor to testify as a competent witness as unconstitutional, as it allegedly violated the right to a fair trial of the accused person. 

The Single Judge upheld the constitutionality of the challenged regulation. However, it held that the right to a fair trial would be infringed when the same investigating officer assumes the prosecutor role and directed the petitioner to approach the Armed Forces Tribunal for its assessment on whether the trial conducted by the prosecutor was vitiated. 

The petitioner then challenged the regulation before the Division Bench.

The Central government countered the petitioner’s arguments, stating that the provisions of the Navy Act stated that fundamental rights could be modified with regard to persons who are subject to the naval law. It stated that the Single judge’s observations regarding the appointment of the investigating officer as prosecutor were unwarranted. 

The Division Bench found that the investigating officer may be a suitable person to prosecute the case in a court-martial proceeding because he “knew the facts” and had filed the chargesheet against the accused. However, it set aside the Single Bench’s decision that appointing the investigating officer as prosecutor violated his right to free trial and the subsequent directions to the petitioner.

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