Judgement

In this petition Mohammad Yakub Khan, who was a commissioned officer in the Indian Army, sought for special leave to appeal to His Majesty in Council as an act of grace from his conviction and sentence, on December 9, 1943, by a Summary General Court Martial at Calcutta, on charges of misappropriation of government stores, embezzlement and insubordination. He was sentenced to six months rigorous imprisonment and to be cashiered. The sentence was confirmed by the General Officer in Chief Commanding, Eastern Command on December 29, 1943.

The petitioner claimed that his conviction was bad owing mainly to the fact that the trial was vitiated by errors of law and legal procedure, in that there had been illegal joinder of charges contrary to the provisions both of the Criminal Procedure Code and of the Indian Army Act

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which seriously hampered his defence, and by the refusal to allow him to produce evidence of his good character, which, he said, with other alleged defects, amounted to a grave and substantial miscarriage of justice.

The argument before the Judicial Committee was confined to the preliminary question whether the petition was competent.

1947. Jan. 20. Pritt K.C. and Handoo for the Crown. This petition is not competent and should not be heard. It is submitted, first, that there was no jurisdiction in the Privy Council to hear cases of this kind before the JUDICIAL COMMITTEE ACT of 1833; secondly, that no jurisdiction has been created since the Act of 1833 to hear such appeals; and thirdly, that there is no right of appeal under the prerogative. With regard to the first point, appeals from a court martial set up under an Act passed a century after the JUDICIAL COMMITTEE ACT cannot possibly be made the subject of jurisdiction to this Board. There is no trace anywhere of any law, statute or instrument allowing appeals from courts martial to be brought to the Privy Council. Throughout the British army and the Indian army there never has been under the courts martial system any kind of appeal before a judicial tribunal. On the second point, the Indian Army Act is silent about any suggestion that there should be an appeal as opposed to review. As to the third question, when a new court or tribunal is created in any of His Majestys Dominions the question may arise whether the prerogative appeal is brought into existence, and the question is not, is the prerogative appeal excluded, but whether in creating the new court the legislature has impliedly enacted that it shall fall within the prerogative Theberge v. Laudry (( 1876) 2 App. Cas. 102, 108.). That case was followed in Moses v. Parker, ex parte Moses ([ 1896]

A. C. 245.) and Strickland v. Grima ([ 1930] A. C. 285, 295.), and distinguished in In re Wi Matuas Will ([ 1908] A. C. 448.). In re Mark Porret (Morleys Digest of Indian Cases, vol. 2, 353, 355, 359.) describes the functions and limitations of a court martial. Tilonko v. Attorney-General for Natal ([ 1907] A. C. 93.) is not close enough, and does not hinder my argument. Clifford v. O’Sullivan ([ 1921] 2 A. C. 570, 581.) is also not very close to the present case, and is only helpful indirectly. On principle it could never be held that an appeal should lie to this Board from a decision of a court martial established under the Indian Army Act. First, there is not from beginning to end of that Act any provision of any kind for any appeal to any court of law in any circumstances whatsoever. Secondly, the English and the Indian Army Acts are very much the same, and it would astonish lawyers and soldiers if they were told that there was any possibility of appealing to any of His Majestys courts. [Reference was made to the provisions of the Indian Army Act, including those for review.] It is submitted that many courts martial, including a summary general court martial, cannot really give a judgment at all, so that the Board is being asked to give leave to appeal from a judgment which has really no validity as a judgment; also, in most cases the findings and sentences are not valid until confirmed, so that if the Board were to grant leave it may be that it would not know to whom directions to act should be sent—it is the confirming officer who may order revision, but the revision is by the court martial. Lastly, it is important to consider, drawing the inference from the whole trend of the legislation, that the scheme contemplated by the English and the Indian Army Acts is reasonably swift justice in the interests of discipline under a special code Dawkins v. Lord Rokeby (( 1866) 4 F. & F. 806, 831.). In Fraser v. Balfour (( 1918) 34 I. L. R. 502.) it was thought that Willes J. in Dawkins case (( 1866) 4 F. & F. 806, 831.) might have laid things down too widely.

Pullan and Jayakar for the petitioner. This is an application for an appeal by the petitioner under the prerogative, and it is a case to which His Majestys prerogative extends. The prerogative has been applied to a case of this nature, in which His Majesty heard an appeal and acquitted the person; that is a precedent in the petitioners favour which should continue unless abrogated by statute. That case is Lieut. Frye (McArthur on Courts Martial, (1813),

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vol. 1, 268.), in 1743, and the position then was exactly the same as now. There never appears to have been any suggestion that this Board is without jurisdiction to deal with such a case, and Lieut. Frye (McArthur on Courts Martial, (1813), vol. 1, 268.) was clearly one in which an appeal was heard before the Privy Council and allowed; there was no suggestion that it was a question of mercy, they quashed the whole proceedings. The case is cited in the note in Halsburys Laws of England, vol. 28 of the second edition, at p. 677. The second point is that there is nothing in the statute by which this Board was formed which suggests that the jurisdiction of the Board is confined to any particular class of cases—all His Majestys subjects appear to be covered. There is no reason to say that the statute does not apply to courts acting under an Act such as the Indian Army Act as much as to courts acting under any other Colonial Act. The Indian Army Act is an Act of the Indian legislature. It is admitted that if these proceedings had taken place under the English Army Act the petitioner would have no right of appeal to any court, but it is submitted that the appeal to His Majesty in Council is outside any Act, it is under the prerogative. The authorities cited on martial law have no application.

No reply was required.

Jan. 20. The judgment of their Lordships was delivered by LORD THANKERTON. The jurisdiction of the Judicial Committee of the Privy Council is purely statutory, resting on the JUDICIAL COMMITTEE ACT of 1833 and the amending Acts. The material provision is in s. 3 of the Act of 1833, which reads as follows "All appeals or complaints in the nature of appeals whatever, which, either by virtue of this Act, or of any law, statute, or custom, may be brought before His Majesty or His Majesty in Council from or in respect of the determination, sentence, rule, or order of any Court, Judge, or Judicial Officer, and all such appeals as are now pending and unheard, shall from and after the passing of this Act be referred by His Majesty to the said Judicial Committee of His Privy Council, and such appeals, causes, and matters shall be heard by the said Judicial Committee, and a report or recommendation thereon shall be made to His Majesty in Council for his decision thereon as therein provided.

Where it is sought to bring an appeal from an order of a court established under the provisions of an Act framed long after the Act of 1833, the competence of the appeal must be determined by the test laid down by Lord Cairns L.C. in Theberge v. Laudry (2 App. Cas. 102, 108.) where he said this "In other words " their Lordships have to consider, not whether there are express words here taking away prerogative, but whether " there ever was the intention of creating this tribunal with " the ordinary incident of appeal to the Crown/ Applying this test, their Lordships are clearly of opinion that the Indian Army Act intended the findings of a court martial, as and when confirmed by the proper confirming officer, to be final, subject only to the power of revision for which the Act provides. There is no room for an appeal to His Majesty in Council consistently with the subject-matter and scheme of the Act. Their Lordships will, therefore, humbly advise His Majesty that the petition should be dismissed.