Declaring the law to the effect that a court-martial order of an officer of the armed forces has no legal force if the accused is not given the advance notice of 96 hours before the trial, the Supreme Court upheld the decision of the High Court setting aside the court-martial of an Army Officer for want of complete 96 hours notice given to the Officer.
The notice was given to the officer on November 2, at 1800 hours that he court martial proceedings would being at 1130 hours on November 6. However the proceedings started at 1010 hours on November 6. Despite the Officer pleading guilty to the offence, both the High Court and Supreme Court noted that 96 hours not having been completed, the rules of court martial proceedings were violated and thus the order dismissing him from service was bad in law.
The Supreme Court noted "the key words used in Rule 34 from which the intendment is to be found are 'shall not be less than ninety-six hours'. As the respondent was not in active service at the relevant time, we are not concerned with the later part of that rule which provides for interval of twenty-four hours for the accused in active service." Thereon it was declared by the Court as under;
"22. The principle seems to be fairly well settled that prohibitive or negative words are ordinarily indicative of mandatory nature of the provision; although not conclusive. The Court has to examine carefully the purpose of such provision and the consequences that may follow from non-observance thereof. If the context does not show nor demands otherwise, the text of a statutory provision couched in a negative form ordinarily has to be read in the form of command. When the word "shall" is followed by prohibitive or negative words, the legislative intention of making the provision absolute, peremptory and imperative becomes loud and clear and ordinarily has to be inferred as such. There being nothing in the context otherwise, in our judgment, there has to be clear ninety-six hours interval between the accused being charged for which he is to be tried and his arraignment and interval time in Rule 34 must be read absolute. There is a purpose behind this provision: that purpose is that before the accused is called upon for trial, he must be given adequate time to give a cool thought to the charge or charges for which he is to be tried, decide about his defence and ask the authorities, if necessary, to take reasonable steps in procuring the attendance of his witnesses. He may even decide not to defend the charge(s) but before he decides his line of action, he must be given clear ninety-six hours. A trial before General Court Martial entails grave consequences. The accused may be sentenced to suffer imprisonment. He may be dismissed from service. The consequences that may follow from non-observance of the time interval provided in Rule 34 being grave and severe, we hold, as it must be, that the said provision is absolute and mandatory. If the interval period provided in Rule 34 is held to be directory and its strict observance is not insisted upon, in a given case, an accused may be called upon for trial before General Court Martial no sooner charge/charges for which he is to be tried are served. Surely, that is not the intention; the timeframe provided in Rule 34 has definite purpose and object and must be strictly observed. Its non-observance vitiates the entire proceedings.
Declaring the law as above, the Supreme Court held, "that the respondent was informed of the charges for which he was to be tried by General Court Martial on November 2, 1995 at 1800 hours is not in dispute. Although the respondent was informed that he would be tried by General Court Martial on November 6, 1995 at 1130 hours but the proceedings of the General Court Martial clearly show that the trial commenced at 1010 hours. That interval between the respondent having been informed of the charges for which he was to be tried and his arraignment was less than ninety-six hours is an admitted position. Merely because the respondent pleaded guilty is immaterial. The mandatory provision contained in Rule 34 having been breached, the Division Bench cannot be said to have erred in affirming the order of the Single Judge setting aside the proceedings of the General Court Martial."
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