SUBEDAR B K SAIKIA U P E M E COY N C C INSTITUTE OF TECHNOLOGY BANARAS HINDU UNIVERSITY VARANASI 223 FIELD WORKSHOP E M E 604 E M E BATT Vs. UNION OF INDIA

JUDGEMENT

(1.) G. S. N. Tripathi and R. K. Singh, JJ. In this petition, the following reliefs have been sought:- (i) issue a writ, order or direction in the nature of mandamus commanding the respon dents to set the petitioner at liberty forthwith from his illegal military confinement. (ii) Issue a writ, order or direction in the nature of Habeas Corpus directing the respon dents to produce the petitioner before this Court forthwith. (iii) Issue a writ, order or direction in the nature of mandamus commanding the respon dents to pay to the petitioner compensation amounting to Rs. 5 lacs. (iv) Issue any other writ, order or direction which this Court may deem fit and proper in the circumstances of the case. (v) to award the cost of the petition in favour of petitioner.

(2.) THE admitted position is that the petitioner was due to retire after putting 28 years' of service from the post of Sub edar, on 28-2-95 but he was taken into illegal military custody with effect from the afternoon of the same day under the provisions of Section 1 23 of the Army Act and after 55 days, he was let off by the opposite party after finding that there was no material to proceed against him. THE detention was unlawful, prejudiced and biased, being against the provisions of Sec tions 102 and 103 of the Act and Rule 27 of the Army Rules. THE charge levelled against the petitioner by the respondents, was false and the respondents had no juris diction to proceed against the petitioner under the provisions of the Army Act.

(3.) THE main thrust of the petitioner's learned Counsel was that after retirement, the petitioner could not be proceeded against under Section 123 of the Army Act. But it is not correct. Section 123 of the Army Act reads as below:- "123 (1)-Where an offence under this Act had been committed by any person while subject to this Act and he has ceased to be so subject, he may be taken into and kept in military custody and tried and punished for such offence as if he continued to be so subject. (2) No such person shall be tried for an offence, unless his trial commences within six months after he had ceased to be subject to this Act: Provided that nothing contained in this sub-section shall apply to the trial of any such person for an offence of desertion or fraudulent entitlement or for any of the offences mentioned in Section 37 or shall effect the jurisdiction of a criminal court to try any offence triable by such court as well as by a court martial. (3) When a person subject to this Act is sentenced by a court-martial to transportation or imprisonment, this Act shall apply to him during the term of his sentence, though he is cashiered or dismissed from the regular Army, or has otherwise ceased to be subject to this Act and he may be kept, removed, imprisoned and punished as if he continued to be subject to this Act. (4) When a person subject to this Act is sentenced by a court-martial to death, this Act shall apply to him till the sentence is carried out. "