CASE : CRIMINAL CASE
COURT : SUPREME COURT OF NEPAL
The petitioner Gurung claimed that the Court Marshal general took action against him although he was a civilian. The Case study : Imansingh Gurung VS HMGN
He was sentenced to eight years imprisonment under Section 45(b), in an allegation of committing crime under Section 57 of the Military Act. He had urged the respondent for the revision of the decision; however, no notice of any development about the same had been supplied to the petitioner. The petitioner had been punished for two years of imprisonment and fined Rs. 65,000 by the Central Regional Court on a charge of illegal foreign exchange. The Court Marshal again punished him on the same ground.
This had violated Articles 11(4) and 14(2) of the then Constitution as well as Article 14(2) of the Constitution of 1990. Civilians may not be punished under the Military Act. The petitioner requested that the decision be declared void and that he be released from illegal detention issuing an order of habeas corpus.
The respondents stated that the punishments awarded to the petitioner by the ordinary court and the Court Marshal were separate and not the same case. The punishment by the special court was related to illegal possession of foreign currency while the punishment by the Court Marshal was related to abetting a military officer to commit an illegal act. The Military Act is protected constitutionally under Article 131 and Section 4 of the Law Interpretation Act 1953. Therefore, the petition was requested to be quashed.
Full bench Held
Article 23 of the Constitution guarantees constitutional remedy for substantive as well as fundamental rights. Article 88(2) of the Constitution may be applied to declare a law null and void if only such law is inconsistent with the present Constitution, not the former Constitution.
The jurisdiction of the court may not be exercised retrospectively to declare void a decision taken under the situation where the former Constitution was effective. The question on the constitutionality of the jurisdiction of the Court Marshal would have been raised then under Article 71 of the former Constitution. The question is raised only after three years of the existence of the law; therefore, it would not be practical declaring such law void abinitio<, unless deemed extremely necessary by the nature of the subject matter.
If citizens are treated unequally by any act of state agency or by law made by legislature that would be unconstitutional in accordance with Article 11(1). Laws formulated to fulfil requirements of one group or community may not resolve the problems of other groups or communities.
If there should exist a reasonable relationship between such laws and the intended objective, it may not be regarded against the right to equality. Therefore, the provision of Section 1(3)(d) may not be consented on the ground of the systems of the other countries and court judgments. If the provision is endorsed, regarded as reasonable and if jurisdiction is given to the Court Marshal to adjudicate cases involving a civilian only on the ground of the involvement of military personnel in the crime, this may be social intercourse of the military. Therefore, it is discriminatory and unjust to apply the debated section of the Military Act to the civilian petitioner.
If any civilian citizen is treated differently to the other civilians keeping him in a military category and depriving him of the opportunity of justice through an ordinary court, and if there does not seem reason and ground, such act would be against the Article 11(1) of the Constitution. Hence, clause Section (d) of clause 1(3) of the Military Act is deemed inconsistent with Article 11(1) of the Constitution and thereby declared ipso facto null and void.
In the context of issuing a habeas corpus order, it is obvious that the detaining agency, whether ordinary court or military court, must maintain the Constitution and legal provisions. The restriction by the Constitution to interfere in the proceedings of the Court Marshal does not mean that it may act whichever way it likes. If the Court Marshal detains against the Constitution and the law and if the path of complaining is closed, the detained may seek alternatives and the court may release the prisoner by declaring the detention unlawful.
As far as the actions and punishment of the petitioner are concerned, the facts and evidence of the case show that the punishment awarded to the petitioner in accordance with Section 45(b) and 7 of the Military Act is based on a charge of illegal possession of foreign exchange which is a crime of civil nature like customs, smuggling, corruption etc
It may not be said that such acts would fall under military crime merely on the ground that proceeded under military law. The military offence is related to the operation of a military organisation and discipline; so the intention of the proviso of the Article 88(2) is not to restrict interference only on the ground of involvement of military personnel in any crime.
Therefore, the court can review judicially the punishment awarded to a civilian in a charge of civilian nature by the General Court Marshal and it can declare void such unconstitutional and unlawful decision. The charge to the petitioner seemed to be abetting to a military personnel. Hence, the punishment by the Court Marshal is revoked and the petitioner be released from the detention by an order of habeas corpus.