Investigating officer can prosecute case before Navy court-martial: Kerala High Court

The Kerala High Court on Friday held that an officer who investigates a case against Navy personnel can also be appointed to prosecute the same case before a court-martial, since the Navy Regulations do not prohibit such an arrangement [Union of India & ors v Santosh Karwade & anr].

A Division Bench of Justice K Natarajan and Justice Johnson John held that such an appointment of the investigating officer as a prosecutor would not, by itself, violate the right to a fair trial under Article 21 of the Constitution.

"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," the Court added.

The ruling came in appeals filed by the Union government an a naval officer named Santosh Karwade against a 2025 judgment of a single judge Bench of the High Court.

Karwade, who had served in the Navy for 31 years, was facing a court-martial under the Navy Act, 1957. Among other allegations, he was accused of dishonestly persuading an officer to transfer ₹1.10 lakh.

He approached the Court alleging that he had been denied a free and fair trial, as the officer who investigated the allegations against him was subsequently appointed as a prosecutor in the same court-martial proceedings.

Karwade challenged Regulation 178(3) of the Navy (Discipline and Miscellaneous Provisions) Regulations, 1965 (Regulations), which permits a prosecutor to be a competent witness.

He argued that allowing the investigating officer to perform the roles of both a prosecutor and an investigating officer under this provision was contrary to basic principles of criminal law and violated of Article 21.

A single judge Bench of the Court refused to declare Regulation 178(3) of the Regulations as unconstitutional.

The single-judge's ruling was challenged on this aspect by Karwade in his appeal.

Notably, the single-judge Bench also clarified that the expression 'suitable person' in Regulation 163(1) (governing appointment of prosecutors) could not be interpreted to allow the appointment of an investigating officer as prosecutor who had investigated the same case, as it would infringe the right to a fair trial. This aspect was challenged by the Central government by way of its appeal.

The Division Bench disagreed the single judge's ruling regarding the appointment of prosecutors. It explained that court-martial proceedings are governed by the Navy Act and the special procedure contained in the Regulations, rather than the Code of Criminal Procedure (CrPC).

It clarified that the Regulations provided a separate legal framework in matters relating to navy personnel, including investigation, arrest, recording of evidence and trial.

It also referred to Article 33 of the Constitution, which permits Parliament to restrict or modify the application of fundamental rights to members of the armed forces to ensure the proper discharge of their duties and maintenance of discipline.

The Division Bench observed that on reading both Regulations together it could be understood that the Regulations 163 and 178 did not expressly bar an investigating officer from being appointed as a prosecutor. Rather, Regulation 178(3) only contemplated that a prosecutor could also be examined as a competent witness during the court-martial.

The Court proceeded to rule that Regulation 178(3) could not be declared as unconstitutional merely on the ground that it allowed a prosecutor to also be examined as a witness.

The Division Bench also disagreed with the single judge's view that a prosecutor must necessarily be an independent authority.

"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. Hence, the observation made by the single Judge cannot be accepted, and it is to be set aside," the Court held.

It, therefore, dismissed Karwade's appeal, while allowing the Union government's appeal.

Additional Solicitor General P Sreekumar and central government counsel Suvin R Menon appeared for the Union of India.

Advocates Yeshwanth Shenoy and Aysha Abraham represented Karwade.

[Read Judgment]