Kerala High Court: In two intra-court appeals, one filed by Naval personnel and the other by the Union of India, against the judgment passed by the Single Judge, a Division Bench of K. Natarajan* and Johnson John, JJ. dismissed the writ appeal filed by Naval personnel and allowed the Union of India’s appeal, holding that there is no prohibition under the Navy (Discipline and Miscellaneous Provisions) Regulations, 1965, (Navy Regulations) against appointing an investigating officer as the Prosecutor in the same court martial proceedings. The Court further held that Regulation 178(3), which provides that the Prosecutor is a competent witness, is not ultra vires Article 21 of the Constitution.
Background
The case arose from proceedings against a Naval personnel with 31 years of service, who was facing trial before a General Court Martial under the Navy Act, 1957. Among the charges against him were allegations of dishonestly inducing an officer to transfer ₹1,10,595 and other similar allegations, leading to charges under Section 420, Penal Code, 1860 (IPC) read with Section 77(2), Navy Act. During the trial, after eight witnesses had been examined, the Naval personnel claimed that he came to know that the Prosecutor before the court martial was also the investigating officer who had investigated the charges against him. He contended that this arrangement violated his right to a free and fair trial under Article 21. He challenged, inter alia, the constitutional validity of Regulation 178(3), Navy Regulations, contending that an investigating officer could not simultaneously act as Prosecutor and thereafter appear as a witness in the same proceedings. He also challenged the manner in which the investigation and charges had been framed and the convening of the General Court Martial. The Single Judge declined to declare Regulation 178(3) unconstitutional but held that the expression “suitable person” under Regulation 163(1) could not include the investigating officer for appointment as Prosecutor in the same trial. The Single Judge further observed that such an appointment could infringe the right to a fair trial and left it open to the Armed Forces Tribunal to consider, after the trial, whether any prejudice had been caused to the petitioner.
Analysis and Decision
The Court considered whether Regulation 178(3) Navy Regulations was ultra vires Article 21 and whether Regulation 163(1) prohibited the appointment of the investigating officer as Prosecutor. The Court examined the statutory framework governing court martial proceedings and noted that the Navy Act and the Navy Regulations provide a specific procedure governing investigation, trial, evidence and other aspects of court martial proceedings.
The Court relied upon Sections 4 and 5, Criminal Procedure Code, 1973 (CrPC) as well as Section 475 thereof, and observed that where a special law prescribes a separate procedure, that special procedure would prevail. Referring to Section 4, Navy Act, the Court noted that fundamental rights in their application to persons subject to naval law are subject to the restrictions or modifications provided under the Act. The Bench further referred to Article 33 of the Constitution, under which Parliament is empowered to modify or restrict the application of fundamental rights to members of the Armed Forces to ensure the proper discharge of their duties and maintenance of discipline.
On Regulation 163, the Court noted that it requires the convening authority to appoint a “suitable person” to prosecute the case. Regulation 178(3), meanwhile, provides that the Prosecutor is a competent witness. Reading the two provisions together, the Bench observed that there was no express prohibition against the investigating officer being appointed as Prosecutor. The Court held that Regulation 178(3) itself contemplated a situation where the Prosecutor could be examined as a witness and, therefore, the mere fact that the Prosecutor was also the investigating officer could not render the provision unconstitutional.
The Bench further held that the Navy Regulations do not prohibit an investigating officer from being appointed as Prosecutor. According to the Court, an investigating officer may be considered a suitable person to conduct the prosecution, particularly as the officer is familiar with the facts of the case and has completed the investigation and filed the chargesheet.
The Court rejected the contention that the appointment of an investigating officer as Prosecutor, by itself, violates the right to a fair trial under Article 21. It held that Regulation 178(3) is not ultra vires Article 21 and remains valid in view of the Constitutional framework applicable to members of the Armed Forces under Article 33.
The Bench also disagreed with the Single Judge’s observation that a Prosecutor must be an independent authority and that an investigating officer, having already formed an opinion during investigation, could not be a suitable person to prosecute the case. The Court observed that the Prosecutor’s role is to place the evidence before the court martial and effectively present the prosecution case, while the decision regarding conviction and sentence rests with the court-martial. Therefore, the Prosecutor need not necessarily be an independent authority in the manner contemplated by the Single Judge.
Accordingly, the Court dismissed the appeal filed by the Naval Personnel and allowed the appeal filed by the Union of India. The observations of the Single Judge concerning the appointment of the investigating officer as Prosecutor and the alleged prejudice caused thereby were set aside. The Court clarified that the said observations should not influence the consideration of the petitioner’s case.
[Union of India v. Santosh Karwade, W.A. Nos. 218 of 2026 and 2980 of 2025, decided on 18-9-2026]
*Judgment Authored by: Justice K. Natarajan