TAJ MOHAMAD SHEIKH Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner, an officer in the Indian Army (Army Medical Corps) has been tried by a General Court Martial (hereinafter referred to as the GCM, for short) on a charge under Section 64(e) of the Army Act. 1950. He has been found guilty and sentenced to be cashiered and to suffer rigorous imprisonment for six months by the GCM. The sentence and the finding are yet to be confirmed. This petition under article 226 of the Constitution has been filed seeking the quashing of the finding and sentence of the GCM. On behalf of the respondents, a preliminary objection has been raised to the maintainability of the petition on the ground of availability of an efficacious remedy by was petition under section 164 of the Army Act, 1950. The learned counsel for the parties have been heard on the preliminary objection.

(2.) A perusal of Chapter X of the Army Act, 1950 shows that it contemplates four types of court martial, namely, general courts- martial, district courts-martial, summary general courts- martial and summary court martial. Different authorities are empowered for convening different types of courts martial. Provisions have been made in the Act for the constitution of courts martial and procedure thereof.

(3.) Section 153 provides-no finding or sentence of any court- martial shall be valid except so far as it may be confirmed as provided by the Act. Power to revise any finding or sentence of a court martial is vested in the confirming authority who may also direct taking additional evidence. It is clear that the finding and sentence of a court martial remain on paper unless confirmed as provided by the Act. Section 165 authorises the Central Govt. the Chief of the Army Staffer any prescribed officer to annul the proceedings of any court martial on the ground that they are illegal or unjust.