Investigating Officer Not 'Suitable Person' Under Navy Regulations To Prosecute Trial Before Court-Martial: Kerala High Court

Dr. Justice Kauser Edappagath considered the constitutional validity of Regulation 178(3) of the Navy Regulations, which permits the prosecutor to be a competent witness. He also interpreted whether the term 'suitable person' in Regulation 163(1) to conduct a trial includes the investigating officer.

The judge observed:

“The petitioner is not entitled to a declaration that Regulation 178(3) of the Navy Regulations, which allows the prosecutor to be a competent witness, is unconstitutional. However, the word 'suitable person' found in Regulation 163(1) of the Navy Regulations cannot be interpreted to include the investigating officer, thereby allowing the investigating officer to act as prosecutor in the very same trial. The right to a fair trial would be infringed when the investigating officer himself assumes the role of a prosecutor in a trial before the Court-Martial.”

The plea before the Court was preferred by a Navy personnel challenging the trial by the Court-Martial in which multiple charges of cheating and forgery misusing official capacity were raised against him. He claimed that the proceedings were conducted in an illegal and improper manner, vitiating his right to free and fair trial. The trial was concluded and the petitioner had already preferred an appeal before the Armed Forces Tribunal at the time of the judgment.

Constitutional vires of Regulation 178(3)

The Court noted that the Navy Act and the Regulations constitute a self-sustaining Code that prescribes the procedure for investigation and trial. It also remarked that the petitioner had challenged the vires of the Regulation on the ground that it is violative of the settled principles in criminal jurisprudence, thereby violating his fundamental rights under Article 21. However, the ASGI submitted that the Navy Act and Regulations come within the protective umbrella of Article 33 of the Constitution.

Referring to the provision and various precedents including Arshnoor Kaur v. Union of India, Union of India v. Parashotam Dass, Rojer Mathew v. South Indian Bank Ltd and Others,

The Court observed:

“Article 33, on a plain grammatical reading of its language, does not require that Parliament itself by law restricts or abrogates any of the fundamental rights to attract the applicability of that Act. What it says is that Parliament may, by law, determine the permissible extent to which any of the fundamental rights may be restricted or abrogated in the application to the members of the Armed Forces and the Forces charged with the maintenance of public order. It therefore follows that if any provisions of the Act or Rules restrict or abrogate any right guaranteed under Part III of the Constitution, it cannot be challenged on the ground that it is violative of the fundamental rights guaranteed under Part III. The law on the subject is fairly well settled.”

Regarding the validity of the Regulation, it further observed:

“The Navy Act and the Navy Regulations are one such law and, therefore, any of the provisions therein cannot be struck down on the only ground that they restrict or abrogate or tend to restrict or abrogate any of the rights conferred by Part III of the Constitution, and this would indisputably include Article 21 of the Constitution…Even otherwise, it is not possible to subscribe to the view that Regulation 178(3) of the Navy Regulations violates the principles of fair trial and thus infringes Article 21 of the Constitution of India. The said provision only says that the prosecutor is a competent witness. A person who can lawfully be called to give evidence is a competent witness.”

Comparison of Navy Act and Regulations with the Code of Criminal Procedure

The Court made a comparison of the provisions of the Navy Act and Regulations with the Code of Criminal Procedure and found that the procedures for investigation and trial are almost the same in both.

Looking into the role of the investigating officer, it further remarked:

“The investigating officer investigates incidents or allegations of misconduct, gathering evidence and questioning witnesses. Based on the investigation, the investigating officer decides whether to recommend a summary trial by the Commanding Officer, refer the case to higher authorities or take other appropriate action. The investigating officer prepares a report summarising the investigation, findings and recommendations. He also assesses the information collected to determine the facts of the case and whether an offence has been committed. Thus, both under the Navy Act and the Cr. P.C., the role of the investigating officer is substantially the same.”

Regarding the demarcation provided for investigating officer and prosecutor, the Court noted:

“…the procedure prescribed for trial of sessions cases in Chapter XVIII of Cr.P.C., when compared with the procedure prescribed for trial by a Court-Martial, shows very little deviation or departure and is almost similar… Thus, there is a clear separation between the investigative and prosecutorial roles under Cr.P.C. as well as under the Navy Act and the Navy Regulations. Military law, like civilian law, generally recognises the need for a separation of powers.”

Investigating Officer and Prosecutor cannot be the same person

“The roles of the investigating officer and the prosecutor should be kept separate in Court-Martial proceedings to ensure a fair and impartial trial. The potential for bias and conflict of interest is too high when the same individual handles both roles. The prosecutor needs to be an impartial or objective representation of the State's interest, and this objectivity would be compromised if the prosecutor were also the one who conducted the investigation. The accused has a right to a fair trial, and allowing the investigating officer to also be the prosecutor would undermine this right by potentially creating an unfair advantage for the prosecution and a biased presentation of the case. In summary, the Investigating Officer cannot involve himself in two distinct and different roles in the same case. He cannot be allowed to wear two hats at the same time. He cannot don the role of prosecutor too. This is essential to maintain the integrity and impartiality of the Court-Martial process. There may not be any actual bias, but one of reasonable suspicion or likelihood of bias may arise.”

The Court concluded that though the investigating officer can be a competent witness to a court-martial proceeding, he/she cannot be a prosecutor in the trial before it. The Court left it open to the Armed Forces Tribunal to determine the question of whether the petitioner's trial was vitiated or prejudiced due to the appointment of investigating officer as prosecutor.

Thus, it disposed of the writ petition.

Case No: WP(Crl.) No. 1002 of 2024

Case Title: Santosh Karwade v. Union of India and Ors.

Citation: 2025 LiveLaw (Ker) 562

Counsel for the petitioner: Yeshwant Shenoy, Aysha Abraham

Counsel for the respondents: AR.L. Sundaresan – ASGI, Suvin R. Menon - CGC

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