Memo Respondents Indore

LEX BONANZA 2019 MOOT COURT COMPETITION

INDORE INSTITUTE OF LAW

TABLE OF CONTENTS
LBM – 10

BEFORE THE HON’BLE SUPREME COURT OF VINDIA
MINISTRY OF DEFENCE (APPELLANT)
VERSUS
COLONEL ARUN ROY (RESPONDENT)
UPON SUBMISSION TO THE HON’BLE SUPREME COURT OF

VINDIA
MEMORIAL ON BEHALF OF THE RESPONDENT

1

TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF ABBREVIATIONS……………………...………………………………………....4
INDEX OF AUTHORITIES…………………………………………………………………….5
BOOKS REFERRED……………………………………………………………………….5
STATUTES REFERRED…………………………………………………………………..5
LEXICONS…………………………………………………………………………………6
ONLINE RESOURCES……………………………………………………………….........6
TABLE OF CASES…………………………………………………………………………7
STATEMENT OF JURISDICTION……………………………………………………………9
STATEMENT OF FACTS……………………………………………………………………..10
STATEMENT OF ISSUES……………………………………………………………………..12
SUMMARY OF ARGUMENTS…………………………………………………………..…...13
ARGUMENTS ADVANCED…………………………………………………………………..14
I. WHETHER THE APPEAL IS MAINTAINABLE IN THE HON’BLE SUPREME

COURT OF VINDIA?.………………………………………………………………….…....14

TABLE OF CONTENTS 
II. WHETHER THERE IS A VIOLATION OF PRINCIPLES OF NATURAL JUSTICE IN

THE TRIAL OF COURT MARTIAL?.…………………………..…………………………..16
III. WHETHER THERE IS FLAGRANT VIOLATION OF PROVISIONS OF ACT, RULES

AND PROCEDURES GOVERNING MILITARY JUSTICE? ………………………..........21
PRAYER………………………………………………………………………………………...27

TABLE OF ABBREVIATIONS 
TABLE OF ABBREVIATIONS
& And
AIR All India Report
Anr. Another
Art. Article
ACHR American Convention on Human Rights
CriLJ Criminal Limited Jurisdiction
Ed. Edition
ECHR European Convention on Human Rights
Hon’ble Honorable
ICCPR International Covenant on Civil and Political
Rights
Ors. Others
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
SCM Summary Court Martial
UOI Union of India
UP Uttar Pradesh
u/s. Under section
v. Versus

INDEX OF AUTHORITIES
INDEX OF AUTHORITIES
BOOKS REFERRED:
 UC Jha.,The Military Justice System in India: An Analysis( Lexis Nexis Butterworths
Wadhwa,Nagpur).
 Brig.Nilendra Kumar &foreword- General V.P Malik., Court Martial and Military
Matters.
 Maj Gen Nilendra Kumar., Case Studies on Military Law (Universal Law Publishing
Co. Ltd).
 WgCdr (Dr) UC Jha., Armed Forces Tribunal with Acts, Rules & Legal Safeguards
 Jain M.P., Indian Constitution of India, (8th ed., 2010), Lexis Nexis Butterworths
Wadhwa, Vol.1.
STATUTES REFERRED:
 Constitution of India, 1950.
 Armed Forces Tribunal Act, 2007.
 Army Act, 1950.
 Army Rules, 1954.
 The Official Secrets Act, 1923.

INDEX OF AUTHORITIES
LEXICONS:
 Wharton’s Concise Law Dictionary, Lexis Nexis.
 Black’s Law Dictionary, (10th Ed.).
WEBSITES REFERRED:
 https://indiankanoon.org
 https://www.scconline.com
 http://www.legalserviceindia.com/article/l30-Summary-Court-Marital-And-The-
Indian-Judiciary.html
 http://aftdelhi.nic.in/
 https://www.casemine.com/judgement/in/56b492cb607dba348f00296f
6
TABLE OF CASES
TABLE OF CASES
S.NO. CASES CITATION
1. A.K Kraipak vs. Union of India (AIR 1970 S.C.150)
2. Ashok Kumar Yadav & Ors. V. State of ((1985) 4 SCC 417)

Haryana & Ors.
3. Capt. Kukreti & Capt. Chopra v. Union 665 of 2002

of India
4. Ex Naik Sardar Singh v. Union of India (1991) SC 1213
5. Lt. Col. Prithi Pal Singh Bedi v. Union (1982 AIR 1413, 1983 SCR (1) 393)
of India and Ors.
6. Maj. Dimple Singla vs. Union of India (on 6 February, 2008)

(UOI) And Ors.
7. Major G.S. Sodhi v. Union of India (AIR 1991 SC 1617)
8. Maneka Gandhi v. Union of India (AIR 1978 SC 597)
9. Meenglas Tea Estate v. The Workmen (AIR 1963 SC 1719)
10. Mineral Development Ltd. v. The State (AIR 1960 SC 468)

of Bihar & Anr.
11. Nawabkhan v. State of Gujarat (AIR 1974 SC 1471)
12. Prithi Pal Singh v. Union of India 1984 (3) SLR 615
13. Secretary to Government, Transport (AIR 1988 SC 2232)

Department v. Munuswamy Mudaliar &
Anr.
7
TABLE OF CASES
14. State of U.P. v. Mohd. Noor (AIR 1958 SC 86)
15. Union of India v Charanjit S Gill (1982 AIR 1413, 1983 SCR (1) 393)
16. Union of India v Charanjit S Gill (2000)
17. Union of India & Ors. v. Sandeep (1390 of 2019)

Kumar
8
STATEMENT OF JURISDICTION
STATEMENT OF JURISDICTION
The Appellant herein has approached the Hon’ble Supreme Court of Vindia through
section 30(1)1 read with section 312 of the Armed Forces Tribunal Act, 2007.
The Respondent submits to the jurisdiction of the Court but, reserve the right to contest
the jurisdiction of this Hon’ble Supreme Court.
This memorandum sets forth the facts, laws and the corresponding arguments on which
the claims are based in the instant case. The Respondents affirm that they shall accept any
Judgment of this Hon’ble Court as final and binding upon itself and shall execute it in its
entirety and in good faith.
1
30. Appeal to Supreme Court.—(1) Subject to the provisions of section 31, an appeal shall lie to the Supreme
Court against the final decision or order of the Tribunal (other than an order passed under section 19): Provided
that such appeal is preferred within a period of ninety days of the said decision or order: Provided further that
there shall be no appeal against an interlocutory order of the Tribunal
2
31. Leave to appeal.—(1) An appeal to the Supreme Court shall lie with the leave of the Tribunal; and such
leave shall not be granted unless it is certified by the Tribunal that a point of law of general public importance is
involved in the decision, or it appears to the Supreme Court that the point is one which ought to be considered
by that Court.
(2) An application to the Tribunal for leave to appeal to the Supreme Court shall be made within a period of
thirty days beginning with the date of the decision of the Tribunal and an application to the Supreme Court for
leave shall be made within a period of thirty days beginning with the date on which the application for leave is
refused by the Tribunal. 12
(3) An appeal shall be treated as pending until any application for leave to appeal is disposed of and if leave to
appeal is granted, until the appeal is disposed of; and an application for leave to appeal shall be treated as
disposed of at the expiration of the time within which it might have been made, but it is not made within that
time.
9
STATEMENT OF FACTS
STATEMENT OF FACTS
For the sake of brevity the material fact are placed here with:
1. Arun Roy is an Army colonel in Kolari Regiment situated in Thang sector in the
Country Vindia. He commanded 21 battalion troops under him in Operation
“SHAURYA”. Due to his conspicuous daring bravery, and pre-eminent act of valor,
Colonel Arun Roy’s name was being nominated for the President’s Award.
2. As the Commanding Officer he noticed various aspects that impacted operational and
administrative imperatives of his battalion. These issues pertained to
 The poor state of habitat of his troops.
 Deficiency of mechanical transport which was somehow affecting operational
efficiency
 The excessive commitment of battalion manpower on sundry guards and duties
which negated his capacity to maintain mandated operational reserves;
 Supply of inferior quality of ration as well as inferior quality of ammunitions to his
men besides, deduction of troops' ration at the Supply Depot and continual demand
on regimental and public funds of his battalion, etc.
 The most important issue which was addressed by Colonel Arun Roy was the
discrimination based on caste and religion, being done on the troops before his
joining and due to the prevailing situations; those troops were continuously
harassed by their fellow members as well in the mean times.
3. Colonel Arun Roy narrated about the discrimination and the deficiencies. It was
officially found that Brigadier Kamal Thapar did not pay heed even after being
informed about the discrimination in the troops which took place when he was on duty.
Colonel Arun Roy was Court martialed by Brigadier Kamal Thapar in May 2010 on
10
STATEMENT OF FACTS
the grounds of honey trapping along with the others, though he was not proven guilty,
he was questioned by the investigative team regarding leak of confidential information.
4. Col. Arun Roy was not allowed to defend himself against these charges and at the end
of a speedy trial in summary Court Martial was convicted and sentenced with fine of
54000 Rs. and to serve 18 months of rigorous imprisonment. He was dismissed from
service and was declared unfit for any future civil employment and His representation
for it to the confirming authority under the provisions of Army Law was also rejected.
5. In 2011, being released he approached Mr. Chetan Das a renowned human activist
and lawyer. In the Thang Bench of Armed Forces Tribunal, it was contended by them
that there was grave violation of principles of natural justice.
6. The Armed Forces Tribunal overturned the verdict of the court martial and ruled in
October 2012 that Col. Arun Roy stood honorably acquitted of all charges and would
be reinstated in service with all consequential benefits. The Armed Forces Tribunal
ordered that the jail term which Colonel Arun Roy has served and Court martial
record was to be removed from his service history and gave the Army 90 days to
implement its order. It was also ordered that the jail term which Colonel Arun Roy
has served and Court martial record was to be removed from his service history.
7. Aggrieved by the decision, The Ministry of Defence has challenged the Armed Forces
Tribunal order in the Supreme Court of Vindia in Nov 2012.
11
STATEMENT OF ISSUES
STATEMENT OF ISSUES

COURT OF VINDIA?
II. WHETHER THERE IS A VIOLATION OF PRINCIPLES OF NATURAL

JUSTICE IN THE TRIAL OF COURT MARTIAL?
III. WHETHER THERE IS FLAGRANT VIOLATION OF PROVISIONS OF ACT,

RULES AND PROCEDURES GOVERNING MILITARY JUSTICE?
12
SUMMARY OF ARGUMENTS
SUMMARY OF ARGUMENTS
COURT OF VINDIA?
It is humbly submitted before this Hon’ble Supreme Court that the appeal filed
under Section 30 read with Section 31 of the Armed Forces Tribunal Act by the
Petitioner is not maintainable since there is no element of public importance involved
which is the main ground for accepting the Appeal under the Jurisdiction invoked.
II. WHETHER THERE IS A VIOLATION OF PRINCIPLES OF NATURAL
JUSTICE IN THE TRIAL OF COURT MARTIAL?
It is humbly submitted before this Hon’ble Supreme Court that there is a violation
of principle of natural justice as the Col. Arun Roy was not given the right to defend
himself and the Brigadier has acted arbitrarily towards him.
III. WHETHER THERE IS FLAGRANT VIOLATION OF PROVISIONS OF ACT,
RULES AND PROCEDURES GOVERNING MILITARY JUSTICE?
It is humbly submitted before this Hon’ble Supreme Court that the Court Martials
trial has rendered gross miscarriage of justice violating the provisions of act, rules and
procedures governing military justice. The Appellants expounds about the provisions
of the acts, rules governing the military justice in a nut shell substantiating that there is
a flagrant violation of the provisions of act, rules and procedures governing military
justice.
13
ARGUMENTS ADVANCED
ARGUMENTS ADVANCED
ISSUE – I : WHETHER THE PETITION IS MAINTAINABLE IN THE
HON’BLE SUPREME COURT OF VINDIA
(¶1.) The Respondents submit respectfully that the jurisdiction invoked by the petitioner
under Section 30 read with Section 31 of the Armed Forces Tribunal Act,2007 is not tenable
in the eyes of law as there is no element of “public importance” because substantive justice has
been rendered by the tribunal after due proceedings.
(¶2.) An appeal to the Supreme Court shall lie with the leave of the tribunal, and such leave
shall not be granted unless it is certified by the tribunal that a point of law of general public
importance is involved in the decision, or it appears to the Supreme Court that the point is one
which ought to be considered by that court.3 In Major G.S. Sodhi v. Union of India,4 it was
held that the army personnel cannot have their grievances redressed in ordinary courts of law
and it also stated that the court was to consider all the pleas raised from different angle while
passing the judgments. The court refused to consider the disputed question of fact relating to
court martial. In the present case the tribunal after having due examination of the witness and
proceedings have passed the order stating the acquittal of Col. Arun Roy from all charges and
that he should be reinstated in service with all consequential benefits.
3
Section 31(1) of army act
4
AIR 1991 SC 1617
14
(¶3.) The Armed Force Tribunal allows an appeal against conviction by a Court Martial only
when the finding of the Court Martial is legally not sustainable due to any reason; the finding
involves wrong decision on a question of law or there was a material irregularity in the
course of the trial resulting in miscarriage of justice. In the present case, the tribunal took up
the case filed by the respondent and after re-appreciating the evidences and facts the order was
passed.5 If the order of the tribunal is vitiated by an apparent error of law or where the legal
inference drawn from proved facts is wrong6. Here, the respondents firmly believe that the
tribunal has passed the order without any apparent error and justice has been rendered by the
Armed forces tribunal and we humbly request the Hon’ble Supreme Court to dismiss the
petition filed by the appellants.
5 Union of India & Ors. v. Sandeep Kumar 1390 of 2019

6
Nayak, Radhakant, Administrative Justice in India, Sage Publications New Delhi, 1989, pp. 147-165
15
ISSUE – II : WHETHER THERE IS VIOLATION OF THE PRINCIPLES
OF NATURAL JUSTICE?
(¶4.) The Appellant most humbly submits before this Hon’ble Court that the principles of
natural justice are those rules which have been laid down by the Courts as being the minimum
protection of the rights of the individual against the arbitrary procedure that may be adopted
by a judicial, quasi-judicial and administrative authority while making an order affecting those
rights. In A.K Kraipak vs. Union of India7 and Maneka Gandhi v. Union of India8 it was
held that it is now firmly established that in the absence of express provisions in any statute
dispensing with the observance of the principles of natural justice, such principles will have to
be observed in all judicial, quasi-judicial and administrative proceedings which involve civil
consequences to the parties.
(¶5.) If that is their purpose, there is no reason why they should not be made applicable to
administrative proceedings also especially when it is not easy to draw the line that demarcates
administrative enquiries from quasi-judicial ones. The purpose of following the principles of
natural justice is the prevention of miscarriage of justice. The rule that inquiry must be held in
good faith and without bias and not arbitrarily or unreasonably is now included among the
principles of natural justice. These rules are intended to prevent such authority from doing
injustice. The rules of natural justice do not supplant the law of the land but only supplement
it.
7
(AIR 1970 S.C.150)
8
(AIR 1978 S.C.597)
16
(¶6.) While making the Report, Colonel Arun Roy was Court martialed by Brigadier Kamal
Thapar in May 2010 on the grounds of previously being charged with honey trapping along
with the others, though at that time, he was not proven guilty, although he was questioned by
the investigative team regarding leak of confidential information. Col. Arun Roy was not
allowed to defend himself against these charges on purpose, and was convicted in the summary
Court Martial. This is distinctly in violation of the principles of natural justice.
(¶7.) The International Covenant on Civil and Political Rights (ICCPR), the European
Convention on Human Rights (ECHR), and the American Convention on Human Rights
(ACHR) feature the right of an accused to defend himself or herself and to have the assistance
of counsel (the right to a defence) as one of the minimum rights or guarantees of every accused.
Article 14 of the International Covenant on Civil and Political Rights (ICCPR) states that in
the determination of any criminal charge against him, everyone shall be entitled to some
minimum guarantees, in full equality one of which is to be tried in his presence, and to defend
himself in person or through legal assistance of his own choosing.
(¶8.) In Maj. Dimple Singlavs Union Of India (UOI) And Ors.,9 it was held that the
recording of reasons would be the bare minimum requirement of the principles of natural
justice, the Fundamental Rights conferred under Part-III thereof, are not applicable to the
persons subject to the Act, but the reasons to be recorded would be part of basic principles of
natural justice to make the special plea meaningful. Recording reasons on the special plea
raised by the petitioner makes the right of appeal of the petitioner a meaningful right, which
9
6 February, 2008
17
alone would satisfy the principles of natural justice, equity and fair play. Col. Arun Roy was
deprived of his right to defend himself and was convicted with baseless reasons.
(¶9.) In Lt. Col. Prithi Pal Singh Bedi v. Union of Inida and Ors.,10 the Court observed
that it is one of the cardinal features of our Constitution that a person by enlisting in or entering
Armed Forces does not cease to be a citizen so as to wholly deprive him of his rights under the
Constitution.
(¶10.) In Sunil Batra v. Delhi Administration,11 the court held that the Persons subject
to Army Act are citizens of this ancient land having a feeling of belonging to the civilised
community governed by the liberty-oriented constitution. Personal liberty makes for the worth
of human being and is a cherished and prized right. Deprivation thereof must be preceded by
an enquiry ensuring fair, just and reasonable procedure and trial by a judge of unquestioned
integrity and wholly unbiased.
(¶11.) In Nawabkhan v. State of Gujarat,12 this Court dealt with the issue and held as under:
"In the present case, a fundamental right of the petitioner has been encroached upon by the
police commissioner without due hearing so the Court quashed it - not killed it then but
performed the formal obsequies of the order which had died at birth. The legal result is that the
accused was never guilty of flouting an order which never legally existed."
(¶12.) A Constitution Bench of Supreme Court in State of U.P. v. Mohd. Noor,13 rejected a
submission made on behalf of the State that there was nothing wrong with the Presiding Officer
10
1982 AIR 1413, 1983 SCR (1) 393
11
1978 AIR 1675, 1979 SCR (1) 392
12
AIR 1974 SC 1471
13
AIR 1958 SC 86
18
of a Tribunal appearing as a witness and deciding the same case, observing as under: "The two
roles could not obviously be played by one and the same person.......the act of Shri B. N. Bhalla
in having his own testimony recorded in the case indubitably evidences a state of mind which
clearly discloses considerable bias against the respondent. If it shocks our notions of judicial
propriety and fair play, as indeed it does, it was bound to make a deeper impression on the
mind of the respondent as to the unreality and futility of the proceedings conducted in this
fashion. We find ourselves in agreement with the High Court that the rules of natural justice
were completely discarded and all canons of fair play were grievously violated by Shri. B.N.
Bhalla continuing to preside over the trial. Decision arrived at by such process and order
founded on such decision cannot possibly be regarded as valid or binding."
(¶13.) The legal maxim "nemo debet esse judex in propria causa" (no man shall be a judge
in his own cause) is required to be observed by all judicial and quasi-judicial authorities as
non-observance thereof is treated as a violation of the principles of natural justice - (Vide
Secretary to Government, Transport Department v. Munuswamy Mudaliar & Anr.14;
Meenglas Tea Estate v. The Workmen15; and Mineral Development Ltd. v. The State of
Bihar & Anr.16.
(¶14.) In Ashok Kumar Yadav & Ors. V. State of Haryana & Ors.17, it was held that no
person should adjudicate a dispute which he or she has dealt with in any capacity. The failure
to observe this principle creates an apprehension of bias on the part of the said person.
Therefore, law requires that a person should not decide a case wherein he is interested. The
14
AIR 1988 SC 2232
15
AIR 1963 SC 1719
16
AIR 1960 SC 468)
17
(1985) 4 SCC 417
19
question is not whether the person is actually biased but whether the circumstances are such as
to create a reasonable apprehension in the minds of others that there is a likelihood of bias
affecting the decision.
(¶15.) It was officially identified that Brigadier Kamal Thapar was on duty that time where
the troops were being discriminated and even being informed about it, Colonel Kamal Thapar
did not pay heed of it. In order to evade the liability, he passed the buck onto Col. Arun Roy.
He also took advantage of his position and acted arbitrarily towards Col. Arun Roy. Therefore,
there is a violation of the principles of natural justice whereby, Col. Arun Roy was also
dismissed from service, with the added disqualification of being declared unfit for any future
civil employment.
20
ISSUE – III : WHETHER THERE IS FLAGRANT VIOLATION OF
PROVISIONS OF ACT, RULES AND PROCEDURES GOVERNING
MILITARY?
(¶16.) It is humbly submitted before this Hon’ble Supreme Court that the order passed by the
tribunal is just and it should held valid. There is no right to appeal unless a superior military
authority has acted illegal, unsent or exercise, such authority may vary or remit the punishment
and make appropriate judgements
‘Superior military authority is the commanding officer’
An Individual shall be able to invoke the original jurisdiction in summary disposal where
punishment is the disposal
Sec. 3(o)(iii) and Sec.3(p),18 where the former clause states that, summary disposal and
trials where the punishment of dismissal is awarded19;
It is humbly contended before this Hon’ble court that only offence from Sec.34 to Sec.70
of the Armed Forces Tribunal Act can be tried by a court martial.
RIGHT TO FAIR TRIAL:
The right to a fair trial is a fundamental safeguard to ensure that individuals are protected
from unlawful or arbitrary deprivation of their human rights and freedoms. The right to a fair
trial applies not only to the procedures for the determination of criminal charges against
individuals but also to those international standards provide for a number of guarantees at the
pre-trail individual’s right at the pre-trail stage.
18
“summary disposals and trials” mean summary disposals and trials held under the Army Act, 1950 (46 of 1950)
the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950)
19
Section 3(o) in the Armed Forces Tribunal Act, 2007
21
(¶17.) It remains relevant throughout all stages of criminal proceedings. In the context of post-
trail rights, international standards mandate that anyone convicted of a crime shall have the
right to appeal to a higher authority, the right to have the conviction reviewed by higher
tribunal, to ensure at least two levels of judicial scrutiny of the case. The guarantees of fair trail
must be observed throughout the review proceedings.
(¶18.) In India, the Supreme Court carried out the first major scrutiny of the military justice
system in Lt. Col. Prithi Pal Singh Bedi v. Union of India20 and called for a change in the
archaic provisions of the Army act 1950. Since the government did not take any action for the
review and modernisation of the services acts, the Supreme Court in the case of Union of India
v Charanjit S Gill21 referring to its earlier decisions in Bedi’s case stated:
In the absence of any effective step taken by the parliament and the central government,
it is the constitutional rights of all citizens including the persons enrolled in the armed forces
to the extent permissible under the law but not forgetting the paramount need of maintaining
the discipline in the Armed Forces of the country.22
(¶19.) Though the Supreme Court and the high courts have made adverse comments on the
military justice system, the soldiers still at the mercy of a legal system that has not changed
since its adoption in the 1950s. This system was originally designed to enforce discipline in a
mercenary force and is not suitable for the governance of a modern military organisation under
a democratic setup.
20
1982 AIR 1413, 1983 SCR (1) 393
21
Special Leave Petition (civil) 7347 of 1999
22
Union of India v Charanjit S Gill (2000)
22
The legislation containing the military justice system is unable to meet the demands of
an enlightened society and the present day cadre of the armed forces many advance made in
the administration of military justice in other democracies of the world have not been reflected
in the Indian system.
(¶20.) The dissatisfaction over the existing military justice system has resulted in a large
number of armed forces personnel approaching the higher judiciary for relief. As a result,
10,000 cases of armed forces personnel are currently pending before the Supreme Court and
various high courts. The military justice system cannot be solely for the purpose of enforcing
obedience in a hierarchical fashion, it must also ensure fairness.
A lack of fairness in the administrative and disciplinary processes can seriously
undermine the cohesion, morale and discipline of the personnel and impact negatively on unit
effectiveness in peace as well as war. In the light of the prevailing situations the Armed Forces
Tribunal has acted fairly and rendered justice by completely analysing the crux of the present
case.23
(¶21.) According to Lord Diplock, the case is subjected judicial review if it satisfies the three
grounds. They are:
 Illegality
 Irrationality
 Procedural impropriety which is expounded in section 179 of the Army Act with the
following grounds, that the tribunal shall allow an appeal against any conviction by court
martial if;24
23
Ex Naik Sardar Singh v. Union of India (1991) SC 1213
24
Section 179 of Army Act,1950
23
o Findings are not legally sustainable;
o There was a wrong decision on question of law;
o Miscarriage of justice.
(¶22.) As there was grave injustice done to the respondent in the court martial satisfying the
above grounds, the Armed Forces Tribunal had the jurisdiction to accept and pass order
accordingly. The examination of the practises and failures of other nations’ military justice
system lead to the conclusion that the way the Indian Armed Forces are managing the discipline
justice system is not only the only way, or even the best way, to accomplish the goals of
fairness and independence in disciplinary proceedings. Any progressive system must have
the ability to borrow beneficial ideas.
(¶23.) The judiciary has assumed a significant role in the administration of the State and the
military is but a part or an organ of the State, dramatic changes in the military justice system
have already occurred in many countries or are under active consideration. According to Rubin,
over the past 50 years, the military law in the UK has ceased to be the narrow preserve of
military lawyer and of a handful of civilian lawyers who occasionally appeared before courts-
martial. In India the law still survives as a static, primitive, Victorian heritage, with native
executive not withstanding a semi-centennial struggle to build law, justice and development
for an independent nation.’
In view of the trend toward the United Nations peace keeping missions around the world,
global co-operation reinforces the need to take a broader, international approach in evaluating
the Indian military justice system, not only do international perspectives furnish ways of
improving the Indian Military Justice system, they also affect how that system is perceived.
24
(¶24.) According to the Regulation for the Army 1987, the judge must see whether justice is
rendered by the lower courts and make sure that the accused had fair trial and does not suffer
any consequence, the Tribunal while reviewing the judgment passed by the court martial felt
that there was a gross miscarriage of justice and therefore reversed the order. As members of
the armed forces of the union more than 1.4 million Indians are subject to the military justice
system, however, all Indians have a stake, in the effectiveness of the military justice system
because it is critical to maintaining order and discipline in the armed forces, as well as their
morale. When the system is used toward punishment to a wrong doer, it has enormous
consequences on society.
(¶25.) Defending officer or counsel can be awarded to the accused. Rule 95-allowas a friend
to assist the accused in the preparation of his defence but cannot cross-examine on the behalf
of the accused. Whereas, Rule 96 grants the permission to have a counsel for the accused at his
own expenses.
(¶26.) Whenever a case of suicide by a military member is reported, a doubt is cast by the civil
society about the efficacy of the system-its effectiveness in punishing the person responsible
for the untimely death of a comrade. the views of the serving and the retired officers, personnel
below the officer rank ’PBOR’, and advocates on their eight crores issue of the military justice
system are as follows. The accused is introduced and then asked if he objects to any of the
officer.25
(¶27.) The accused was tried by a summary court -martial on a charge under Army Act Section
63” for an act prejudicial to good order and military discipline.” At his trial he pleaded ‘guilty’
25
Capt. Kukreti & Capt. Chopra v. Union of India
25
to the charge found him accordingly. He was sentenced’ to rigorous imprisonment in military
custody for 2 months and 29 day.’ Perusal of Appendix ‘A’ to Army Order Number 24/1994,
containing the proceeding of hearing the charge showed that the officer hearing the charge
showed that the officer hearing the charge instead of examination of any prosecution witnesses
merely recorded the wrong ‘documentary’. He did not give the accused an opportunity to make
any statement and call any witness in his defence.26
(¶28.) There was no court of Inquiry wherein the provisions of Army rule 180 27 had been
complied with to enable the commanding officer to dispense with the procedure. The
mandatory provisions of Rule 2228 stood violated. Similar situation was seen in the present
case. The order passed by the tribunal is just and it should be held valid and dismiss the petition
filed by the appellants as it is violation of the mandatory provisions of the rules and procedures
governing military justice.
26
Prith Pal Singh v. Union of India 1984 (3) SLR 615
27
180. Procedure when character of a person subject to the Act is involved. Save in the case of a prisoner of war
who is still absent whenever any inquiry affects the character or military reputation of a person subject to the Act,
full opportunity must be afforded to such person of being present throughout the inquiry and of making any
statement, and of giving any evidence he may wish to make or give, and of cross-examining any witness whose
evidence, in his opinion, affects his character or military reputation and producing any witnesses in defence of his
character and military reputation. The presiding officer of the court shall take such steps as may be necessary to
ensure that any such person so affected and not previously notified receives notice of and fully understands his
rights, under this rule.
28
(4) Where the evidence taken in accordance with sub-rule (3) of this rule discloses an offence other than the
offence which was the subject of the investigation, the commanding officer may frame suitable charge(s) on the
basis of the evidence so taken as well as the investigation of the original charge. Explanation : Where an officer,
other than the commanding officer, proposes to proceed against an accused under Sec 80 of the Act, the
provisions of sub-rules (1) to (3) of this rule shall, in so far as they are applicable, may be complied with by
such officer.
26
PRAYER
PRAYER
WHEREFORE, in light of the issues raised, arguments advanced and authorities cited, the
counsel for the Respondent humbly prays that this Hon’ble Court may be pleased to:
 Dismiss the Appeal as devoid of all merits
 Uphold the order of the Armed Forces Tribunal, acquitting Col. Arun Roy from all
accusations.
AND/OR pass any order/orders as this Hon’ble Court deems fit and proper in the
circumstances of the given case and in the interest of Justice, Equity and Good Conscience.
And for this act of kindness and justice, the Respondent shall be duty bound and forever pray.
All of which is most humbly and respectfully submitted.
Place: Union of Vindia S/d
Date: November, 2012 COUNSEL FOR THE RESPONDENT
27

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LEX BONANZA 2019 MOOT COURT COMPETITION

INDORE INSTITUTE OF LAW

LEX BONANZA 2019 MOOT COURT COMPETITION

BEFORE THE HON’BLE SUPREME COURT OF VINDIA

MINISTRY OF DEFENCE (APPELLANT)

COLONEL ARUN ROY (RESPONDENT)

UPON SUBMISSION TO THE HON’BLE SUPREME COURT OF

MEMORIAL ON BEHALF OF THE RESPONDENT

MEMORIAL ON BEHALF OF THE RESPONDENT

I. WHETHER THE APPEAL IS MAINTAINABLE IN THE HON’BLE SUPREME

MEMORIAL ON BEHALF OF THE RESPONDENT

II. WHETHER THERE IS A VIOLATION OF PRINCIPLES OF NATURAL JUSTICE IN

III. WHETHER THERE IS FLAGRANT VIOLATION OF PROVISIONS OF ACT, RULES

MEMORIAL ON BEHALF OF THE RESPONDENT

AIR All India Report

ACHR American Convention on Human Rights

CriLJ Criminal Limited Jurisdiction

ECHR European Convention on Human Rights

ICCPR International Covenant on Civil and Political

SCC Supreme Court Cases

SCR Supreme Court Reporter

SCM Summary Court Martial

UOI Union of India

u/s. Under section

MEMORIAL ON BEHALF OF THE RESPONDENT

 UC Jha.,The Military Justice System in India: An Analysis( Lexis Nexis Butterworths

 Constitution of India, 1950.

 Armed Forces Tribunal Act, 2007.

 Army Act, 1950.

 Army Rules, 1954.

 The Official Secrets Act, 1923.

MEMORIAL ON BEHALF OF THE RESPONDENT

 Wharton’s Concise Law Dictionary, Lexis Nexis.

 Black’s Law Dictionary, (10th Ed.).

S.NO. CASES CITATION

1. A.K Kraipak vs. Union of India (AIR 1970 S.C.150)

2. Ashok Kumar Yadav & Ors. V. State of ((1985) 4 SCC 417)

3. Capt. Kukreti & Capt. Chopra v. Union 665 of 2002

4. Ex Naik Sardar Singh v. Union of India (1991) SC 1213

6. Maj. Dimple Singla vs. Union of India (on 6 February, 2008)

7. Major G.S. Sodhi v. Union of India (AIR 1991 SC 1617)

8. Maneka Gandhi v. Union of India (AIR 1978 SC 597)

9. Meenglas Tea Estate v. The Workmen (AIR 1963 SC 1719)

10. Mineral Development Ltd. v. The State (AIR 1960 SC 468)

11. Nawabkhan v. State of Gujarat (AIR 1974 SC 1471)

13. Secretary to Government, Transport (AIR 1988 SC 2232)

14. State of U.P. v. Mohd. Noor (AIR 1958 SC 86)

16. Union of India v Charanjit S Gill (2000)

17. Union of India & Ors. v. Sandeep (1390 of 2019)

the jurisdiction of this Hon’ble Supreme Court.

entirety and in good faith.

Country Vindia. He commanded 21 battalion troops under him in Operation

administrative imperatives of his battalion. These issues pertained to

 The poor state of habitat of his troops.

 Deficiency of mechanical transport which was somehow affecting operational

 The excessive commitment of battalion manpower on sundry guards and duties

which negated his capacity to maintain mandated operational reserves;

 Supply of inferior quality of ration as well as inferior quality of ammunitions to his

on regimental and public funds of his battalion, etc.