ALBERT WEST MEADS Vs. KING

JUDGEMENT

(1.) THIS is an appeal, by leave of the Federal Court of India, against the judgment of the Federal Court dated November 20, 1944, dismissing the appellant's appeal against the judgment of the High Court of Judicature at Lahore dated April 24, 1944, whereby the said High Court dismissed the appellant's petition praying for a writ in the nature of habeas corpus for his release from imprisonment. The appellant had been sentenced by Field General Court-Martial to be' cashiered and to undergo two years' imprisonment with hard labour. The appellant was, at the date of his conviction by Court-Martial, an officer of His Majesty's Forces, holding the temporary rank of Major in the Royal Engineers. He had enlisted in the United Kingdom in October, 1939, and had subsequently been commissioned and posted to India in the Royal Engineers in 1940. At the time of the events which gave rise to his trial by Court-Martial, the appellant was attached to a unit of the Indian Engineers. He remained, however, subject to the Army Act.

(2.) THE appellant was charged before a Field General Court-Martial at Lahore on October 12, 1948, on four charges, framed under the Army Act. THE first charge, under Section 17 of the Army Act, alleged that the appellant, on or about April 22, 1943, when concerned in the care of public property, namely, Rs. 8,089-7-0, the imprest money of the Company commanded by the appellant, had fraudulently misapplied the same. THE third charge, also under Section 17 of the Army Act, alleged similarly that the appellant had fraudulently misapplied regimental property, namely, Rs. 871-12-9, being part of the regimental funds of the said Company. THE second and fourth charges were framed under Section 40 of the Army Act, and were alternative charges to the first and third charges, respectively, alleging neglect to the prejudice of good order and military discipline in that the appellant so negligently performed his duties as to suffer the said sums of money to be destroyed by fire.

(3.) ON January 20, 1944, the appellant petitioned the High Court of Judicature at Lahore, under Section 491 and Section 561a of the Code of Criminal Procedure (Act V of 1898), praying that the Superintendent of the Central Jail, Lahore, should be directed to produce the appellant, and the Adjutant General in India should be directed to show cause why the appellant should not be set at liberty. By his amended petition, dated February 11, 1944, supported by two affidavits by the appellant, the appellant averred that his trial and conviction by Field General Court-Martial was illegal, on grounds which may be summarised as follows : (a) The alleged offence took place within the Area Command of Rawalpindi. The Court-Martial was, improperly, convened by the Commander of the Lahore District. (b) The appellant should have been tried by a General Court-Martial, consisting of five officers, and not by a Field General Court-Martial consisting of three officers. The reasons given by the Convening Officer for convening a Field General Court-Martia] were not bona fide. (c) Under Section 270 of the Government of India Act, 1933, the previous sanction of the Governor General was required before proceedings could be taken. Such sanction had not been given. (d) There was no evidence before the Court-Martial on which the appellant could have been found guilty. (e) The trial was against the provisions of the Army Act, Rules of Evidence and Procedure and the conviction was against natural justice. In substance and in law the prisoner did not have a trial at all. (f) It had been averred by the Prosecuting Officer before the Court-Martial, and so held by the Court-Martial, that there was no obligation on the prosecution to prove where the money went to ; and that it was entirely for the appellant to substantiate his innocence.