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Report No. 169

4.5. No existing right of appeal against the order of the courts-martial.-

It is thus evident that in the case of a final finding or sentence awarded by the general courts martial, district courts martial and summary general courts martial, the only remedy provided to the accused persons is the one provided in sub-section (2) of section 164 as pointed out by the Supreme Court in S.N. Mukherjee's case. (The opportunity to make a representation to the confirming authority before confirmation is not a remedy but only an opportunity to make a representation before the final order is passed). The said remedy under section 164(2) can be invoked only after the finding of the sentence has been confirmed by the confirming authority and not before the confirmation of the same.

The power or revision and the power to alter the finding or sentence in certain cases or for that matter the power to annual the proceedings provided by sections 160, 163 and 165 are not so much the remedies given to the accused persons but are really the powers of the various specified authorties. In sum, there is no right of appeal against the order of the court-martial i.e., where it has been confirmed as required by law or where it does not require such confirmation, as the case may be), or against an order passed under sub-section (2) of section 164, with which the accused is aggrieved.

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