Investigating Officer Cannot Act As Prosecutor In Court-Martial Proceedings Under Navy Act: Kerala High Court

The Court was hearing a writ petition filed by a Navy officer challenging his conviction in a General Court-Martial. The petitioner had also questioned the constitutionality of Regulation 178(3) of the Navy (Discipline and Miscellaneous Provisions) Regulations, 1965.

A Bench of the Kerala High Court, comprising Justice Kauser Edappagath, while deciding the matter, held that “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.”

Advocate Yeshwant Shenoy represented the petitioner, while A.R. L. Sundaresan, ASGI and Suvin R. Menon, CGC, appeared on behalf of the respondents.

Background

The petitioner, a Master Chief Petty Officer (Logistics) with over three decades of service, was tried by a General Court-Martial under the Navy Act, 1957. He faced charges of cheating fellow officers, forging Money Receipt Orders (MROs), and making false entries in official registers, punishable under the IPC read with Section 77(2) of the Navy Act, as well as Section 60(a) of the Navy Act.

The petitioner argued that his trial was vitiated because the same officer who investigated the case was appointed as the prosecutor. He submitted that this dual role compromised impartiality, denied him a fair trial, and contravened Articles 14 and 21 of the Constitution.

He further sought a declaration that Regulation 178(3), which permits a prosecutor to testify as a witness, was unconstitutional.

The respondents opposed the plea, contending that the Navy Act and Regulations form a self-contained code under Article 33 of the Constitution, and that the petitioner had suffered no prejudice.

Court’s Observations

Right to Fair Trial in Court-Martials

The Court reiterated that a fair trial is an integral part of the right to life under Article 21 and must be ensured in all proceedings, including those under the Navy Act. The Bench held that any procedure which obstructs the fairness of a trial would be unconstitutional.

While observing that the Right to Fair Trial should be protected even in a court-martial, the Bench remarked: “The right to get a fair trial is not only a basic fundamental right but also a human right. The Courts in India play a crucial role in safeguarding this right by adhering to established legal principles, ensuring that the judicial process is transparent, impartial and accessible to all, and the Court-Martial is not an exception.”

Prosecutors as Competent Witnesses

The Court rejected the plea that Regulation 178(3) violated Article 21, noting that even if the prosecutor testifies, “the defence can cross-examine him and even summon him as a witness,” ensuring fairness.”

The Court also highlighted that the provision is protected under Article 33 of the Constitution, which empowers Parliament to restrict or abrogate fundamental rights in their application to the Armed Forces to maintain discipline. Relying on Ram Sarup v. Union of India (1965), R. Viswan v. Union of India (1983), and Ex. Flt. Lt. G.S. Bajwa v. Union of India (2003), the Court held that any restriction under the Navy Act or Regulations is valid by virtue of Article 33.

The Court further clarified that while it may generally be considered inappropriate for a prosecutor to act both as an advocate and a witness in the same case, this does not affect the basic rule of competency. A prosecutor, like any other individual, remains a competent witness in law, and any concerns arising from such dual roles go to the credibility and weight of the evidence rather than to its admissibility.

Concluding, the Court held that Regulation 178(3) is constitutionally valid and does not violate the right to a fair trial as the provision only affirms the competency of a prosecutor to testify, leaving credibility to judicial assessment.

On the Prosecutor and the Investigating Officer Being the Same Person

While examining whether the same person could perform the dual functions of investigating officer and prosecutor, the Bench underscored that investigation and prosecution are two distinct functions, each carrying its own purpose and responsibility, and that conflating the two would strike at the root of impartial adjudication.

The Bench explained that investigation is concerned with the collection of evidence and materials, while prosecution is concerned with presenting the case fairly before the court. Allowing one individual to carry out both functions would blur this distinction, “create a real likelihood of bias”, and erode the fairness of proceedings

Reiterating the responsibility of prosecutors, the Bench stated that prosecutors are like “ministers of justice” whose role is to place the evidence fairly before the court and assist in arriving at the truth, not to secure convictions at any cost. By contrast, investigating officers are concerned with building the case. Confusing these two functions, the Court stressed, would compromise the very foundation of justice.

Stating that such separation was not a matter of mere propriety but of principle flowing from constitutional guarantees of fairness under Articles 14 and 21, the Bench affirmed that “…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.”

Applicability to Court-Martials

The Court observed that while the Navy Act is silent on whether an investigating officer may act as a prosecutor, the principles under the CrPC must be applied to fill the gap, noting that “the provisions of Cr.P.C. would apply in a situation where a special enactment did not make any provision for investigation, inquiry, or trial independently or was silent on those aspects. Where the Navy Act or the Navy Regulations are silent or do not explicitly contradict Cr. P.C., the relevant provisions of Cr.P.C. could be applied. Thus, in the absence of a specific provision in the Navy Act or Regulations prohibiting or permitting the investigating officer from acting as a prosecutor, the provisions in Cr.P.C. [Sections 302(1) and 25(3) (a)], which creates a bar for an investigating officer to conduct the prosecution of the same case he investigated, would apply in a trial before the Court-Martial under the Navy Act.”

On the interpretation of Regulation 163(1) of the Navy Regulations, which empowers the convening authority to appoint a “suitable person” as prosecutor, the Court clarified that the phrase cannot be construed so broadly as to include an investigating officer.

“An investigating officer who conducted an investigation and already formed an opinion, based on the evidence he collected, that the accused has committed the offence can never be a suitable person to act as a prosecutor who is an independent authority serving as an officer of the Court. Therefore, the word ‘suitable person’ found in Regulation 163(1) of the Navy Regulations cannot be interpreted to include the investigating officer”, Bench Concluded.

Conclusion

Ultimately, the Court held that the petitioner was not entitled to a declaration that Regulation 178(3) of the Navy Regulations, which permits a prosecutor to also appear as a competent witness, is unconstitutional.

However, it clarified that the expression “suitable person” in Regulation 163(1) cannot be interpreted to include an investigating officer, as allowing an investigating officer to act as prosecutor in the same trial would infringe the right to a fair trial

The Court left open the question whether prejudice had been caused to the petitioner, resulting in failure of justice or vitiation of the trial on account of the investigating officer being appointed as prosecutor, to be determined by the Armed Forces Tribunal in the pending appeal against conviction and sentence.

The writ petition was accordingly disposed of.

Cause Title: Santosh Karwade v. Union of India (Neutral Citation: 2025:KER:63148)

Appearances

Petitioner: Advocate Yeshwant Shenoy

Respondents: A.R. L. Sundaresan, ASGI and Suvin R. Menon, CGC

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