D.K.SETH, J. - (1.) BY an order dated IIth December, 1998 the following points were formulated for decision, which are as follows : "(i) Whether the alternative charge as indicated in the charge -sheet could be hit by the embargo set down by sub -rule (2) of Rule 43? (ii) Whether there was satisfaction of the convening officer for convening District Court Martial of there was an order for convening Court martial by the convening officer himself?
(2.) SUPPLEMENTARY affidavits have been filed by the respective parties bringing on record the amended provision of Rule 43. which provided that the order convening the Court martial may be signed by a staff of the convening officer. But the said Rule was amended on 27th July, 1995 and came into force on 12th August, 1995. Such amendment, admittedly, is prospective. Thus the present Court martial having been convened before the amendment was made, cannot be governed by the amended Rule 43. Rule 43 of the Air Force Rules, 1969 before amendment provided as follows : "43. Convening of general and district Court -martial. - (1) An officer before convening a general or district Court -martial shall satisfy himself that the charges to be tried by the Court are for offence within the meaning of the Act, and that, the evidence justifies a trial on those charges, and if not so satisfied shall order the release of the accused, or refer the case to superior authority. (2) He shall also satisfy himself that the case is a proper one to be tried by the description of Court -martial he proposes to convene. (3) The officer convening a Court -martial shall appoint or detail the officers to form the Court, and may also appoint or detail such waiting officers as he things expedient. He may also, where he considers the services of an interpreter to be necessary, appoint or detail an interpreter to the Court." In order to convene a general or district Court -martial, the convening officer has to satisfy himself that the charges to be tried by the Court are offences within the meaning of the Act and that the evidence justifies the trial of those charges. The second satisfaction is with regard to the kind of Court which would try the offence.
(3.) IN the present case, as contended by Mr. A.P. Shahi, the Court -martial was convened by the convening officer. But the order of convening Court -martial was not signed by him. The only point that was urged by Mr. Shahi was that since the order convening the Court martial was not signed by the convening officer, therefore the same is hit by Rule 43 to the extent that it does not specify that there was a satisfaction by the convening officer. It is urged by Mr, Shahi that there was no satisfaction by the convening officer before the Court martial was convened or that there was a failure of the convening officer to decide the description of the Court martial, which he had proposed to convene. In other words the contention of Mr. Shahi is to the extent that by reason of omission to sign the order convention of the Court martial by the officer convening it, he had not satisfied himself with regard to the description of the Court martial he proposed to convene in order to try the case or put it precisely whether the case which was being set down for trial could be tried by the description of the Court martial sought to be convened or was it a case proper for being tried by the description of such Court martial and thus hit by sub -rule (2) of Rule 53.;