No Bar On Appointing Investigating Officer As Prosecutor In Navy Court-Martial: Kerala High Court

The Court upheld Regulation 178(3), which permits the Prosecutor to be examined as a competent witness, as constitutionally valid in view of Article 33 of the Constitution.

The Court was hearing cross-appeals filed by the Union of India and a Navy personnel against a Single Judge’s judgment which, while refusing to strike down Regulation 178(3), held that the expression “suitable person” under Regulation 163(1) did not include the Investigating Officer and that the same officer acting as Prosecutor could prejudice the right to a fair trial.

A Bench of Justice K. Natarajan and Justice Johnson John observed: “On a thorough reading of the Regulations, there is no prohibition on an Investigating Officer from being appointed as a Prosecutor. The Investigating Officer may be a suitable person for conducting the prosecution case before the court-martial, who knows the facts of the case and who finally files the charge sheet against the Armed personnel. Therefore, Regulation 178(3) of the Navy Regulations cannot be said to be ultra vires to Article 21 of the Constitution of India, but it is valid in view of the restrictions under Article 33 of the Constitution of India. Accordingly, we answered both points in favour of the Union of India.”

Additional Solicitor General of India P. Sreekumar and Central Government Counsel Suvin R. Menon appeared for the Union of India. Advocates Yeshwanth Shenoy and Aysha Abraham appeared for the Navy personnel.

Background

The writ petitioner was a Navy personnel with 31 years of service who was facing trial before a court-martial under the Navy Act, 1957. The charges against him included allegations of dishonestly inducing an officer to transfer money, attracting Section 420 of the Indian Penal Code, 1860 read with Section 77(2) of the Navy Act.

After eight witnesses had been examined, the personnel challenged the court-martial proceedings, alleging that the Prosecutor conducting the trial was also the Investigating Officer. He also alleged denial of access to material documents and adequate opportunities to defend himself.

Among other reliefs, he sought a declaration that Regulation 178(3) of the Navy (Discipline and Miscellaneous Provisions) Regulations, 1965 was unconstitutional because it permitted the Prosecutor to be examined as a witness. He contended that allowing the Investigating Officer to act as Prosecutor violated the guarantee of a fair trial under Article 21.

The Single Judge declined to declare Regulation 178(3) unconstitutional. However, the Single Judge held that the “suitable person” who may be appointed as Prosecutor under Regulation 163(1) could not be the Investigating Officer in the same case. The question whether this dual role had caused prejudice was left open for consideration by the Armed Forces Tribunal if the personnel challenged his conviction and sentence.

The Navy personnel appealed against the refusal to invalidate Regulation 178(3). The Union of India separately challenged the finding that the Investigating Officer could not be appointed as Prosecutor.

The Union contended that the Code of Criminal Procedure, 1973 did not govern court-martial proceedings because the Navy Act and the Regulations prescribed a distinct procedure. It also relied on Article 33, which permits Parliament to restrict or abrogate the application of fundamental rights to members of the Armed Forces to ensure discipline and the proper discharge of their duties.

Court’s Observations

The High Court referred to Sections 4, 5 and 475 of the Code of Criminal Procedure, 1973 and Section 4 of the Navy Act, 1957. It held that where a special enactment prescribes its own procedure for investigation, inquiry and trial, that procedure prevails over the general criminal procedure.

Section 184 of the Navy Act empowers the Central Government to frame regulations governing the command, discipline and conditions of service of naval forces. Exercising that power, the Central Government framed regulations covering investigation, arrest, remand, recording of evidence and court-martial proceedings.

The Court observed: “On a conjoint reading of Section 4 of Cr.P.C., read with Section 475 of Cr.P.C., the application of Cr.P.C. is inapplicable to the Navy Act, and the Navy regulations which contain the self-code for conducting the enquiry, trial and sentence.”

The Bench relied on Ajmer Singh v. Union of India (1987), where the Supreme Court held that Parliament intended to treat a court-martial as a forum to which the provisions of the Code of Criminal Procedure would not apply.

The Court noted that Section 4 of the Navy Act provides that the fundamental rights under Part III of the Constitution apply to persons subject to naval law with the modifications and restrictions contained in the Act.

It held that Article 33 empowers Parliament to restrict the fundamental rights of Armed Forces personnel to the extent considered necessary for maintaining discipline and ensuring the proper discharge of their duties.

The Court observed: “In view of Article 33 of the Constitution of India, restrictions were imposed upon the fundamental rights guaranteed under Part III of the Constitution of India, especially Article 21 of the Constitution of India. In view of the same, the Parliament is empowered to enact laws restricting the fundamental rights of the members of Armed Forces, to the extent considered necessary in the interest of discipline and public order.”

Since the Navy Act and the Regulations prescribed the procedure governing court-martial proceedings, the contention that Regulation 178(3) violated Article 21 was rejected.

Regulation 163(1) empowers the convening authority to appoint a “suitable person” as Prosecutor. Regulation 178(3), in turn, provides that the Prosecutor is a competent witness.

Reading the two provisions together, the Court found no express prohibition against appointing the Investigating Officer as Prosecutor. It reasoned that Regulation 178(3) contemplated a situation in which the Prosecutor could also be examined as a witness.

The Court held: “Although it is not expressly stated that the Investigating Officer is explicitly prohibited from being appointed as prosecutor, it is implied that if the Investigating Officer is so appointed, he may also be examined as a witness. If, at all, the Investigating Officer is not appointed as a prosecutor, then there is no question of examining the prosecutor as a witness before the court-martial. Therefore, we are of the opinion that sub-regulation 3 of Regulation 178 has impliedly provided that the Investigating Officer, if he is also a prosecutor, can be examined as a witness.”

The Bench further distinguished V.K. Singh (2026), which concerned an investigation by the Central Bureau of Investigation under the Official Secrets Act, 1923. It held that the ruling did not apply because the Code of Criminal Procedure governed that investigation, whereas the Navy Act and Regulations prescribed a separate procedure for court-martial proceedings.

The Court rejected the Single Judge’s view that an Investigating Officer could never be considered a suitable person to act as Prosecutor because he had already formed an opinion during the investigation.

It held that the Prosecutor’s function was to present the evidence before the court-martial, while the decision on guilt and sentence remained with the court-martial itself.

The Bench remarked: “The sole duty of the prosecutor is to place the evidence before the court-martial. The judgment or order of sentence is to be delivered by the court-martial itself, and not by the prosecutor. The prosecutor’s role is confined to effectively presenting the accused before the court and placing the evidence on record. Therefore, the prosecutor need not be an independent authority but must be a suitable person for prosecuting the case before the court-martial.”

It consequently held that appointing the Investigating Officer as Prosecutor could not, by itself, be treated as violating the right to a fair trial under Article 21.

Conclusion

The Kerala High Court dismissed the Navy personnel’s appeal and allowed the Union of India’s appeal. It upheld Regulation 178(3) of the Navy (Discipline and Miscellaneous Provisions) Regulations, 1965 and held that Regulation 163(1) did not prohibit the Investigating Officer from being appointed as Prosecutor.

The Court set aside the Single Judge’s observation that appointing the Investigating Officer as Prosecutor would prejudice the personnel’s court-martial proceedings and directed that the observation should not influence the matter in any manner.

Cause Title: Union of India v. Santosh Karwade (Neutral Citation: 2026:KER:71832)

Appearances

Appellant: P. Sreekumar, Additional Solicitor General of India; Suvin R. Menon, Central Government Counsel

Respondent: Advocates Yeshwanth Shenoy and Aysha Abraham

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