COLLECTOR HARISH CHANDRA GOSWAMY Vs. UNION OF INDIA

JUDGEMENT

(1.) have heard arguments for deciding this application seeking interim reliefs during the pendency of the Criminal Writ Petition No. 675 of 1989 in which rule has been already issued. The petitioner. who has been found guilty in the proceedings held by the General Court Martial and has been sentenced to undergo imprisonment of two years ana has been cashiered from the service, has challenged the said orders in the writ petition. In the application the petitioner has sought the interim reliefs for staying the operation of the findings and the sentences awarded by the General Court Martial and for releasing the petitioner from custody on bail and restraining the respondents from dispossessing the petitioner from Quarter No. 53, Civil Lines, Mathura (U.P.) allotted to him on account of his being in service and for payment of normal pay and allowances during the pendency of the writ petition.

(2.) This application is strongly opposed by the respondents pleading that there has been not committed any illegality by the General Court Martial in holding the trial and in returning the findings of guilty and in imposing the sentences Reference has been made to Article 237(4) of the Constitution of India pleading that the court has no jurisdiction to examine the findings of the said General Court Martial. Reference is also made to Article 33 of the Constitution of India emphasizing that the official in the defence services cannot exercise the fundamental rights which are available to the citizens. However, legally the court has jurisdiction under Article 226 of the Constitution of India to examine the correctness or otherwise of the proceedings and the findings recorded by the General Court Martial. A rule bad been already issued and it would not be appropriate to give any finding on the merits of the case which would be gone into only after the writ comes up for regular hearing.

(3.) It must be held that the petitioner has a primafacie.caseinhia favour inasmuch as the rule stands issued in the writ petition. It would not be in the intereats of justice that the petitioner should beallowed to undergo the sentence of imprisonment till the writ petition is decided on merits otherwise the petitioner would not be able to get any benefit of having filed this writ petition in which rule had been issued if he was to already undergo the sentence which the petitioner has challenged by filing this writ petition.