ULIAM DAUD PARDHIYA (SEPOY) Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner has been convicted and sentenced by the General Court martial (for short G.C.M.) on 4th of May, 1993 for having committed a civil offence, that is to say, Murder, contrary to Section 302 of the Ranbir Penal Code, under Section 69 of the Army Act, to suffer imprisonment for life and to be dismissed from service. He has challenged and conviction and sentence by filing Habeas Corpus Petition on the ground that offence under Section 302 RPC is not made out from the evidence collected by the prosecution and that is no mens -rea to commit the murder of the deceased Sepoy Baghrai Mardi. The conviction of the petitioner amounts to breach of his. fundamental rights guaranteed under Article 21 of the Constitution of India and has resulted into miscarriage of justice. He has also stated that in view of the law laid down by the Supreme Court, the accused, who has been sentenced and convicted by a court Martial has a fundamental right to invoke the extraordinary writ jurisdiction of the High Court under Article 226 of the Constitution of India and the Court can examine the record of the General Court Martial proceedings and issue a writ of certiorari for quashing the proceedings.

(2.) THE petitioner has been convicted and sentenced for commission of substantive offences and has been lodged in Central Jail, Srinagar for serving sentence.

(3.) THE contention of the learned counsel for the petitioner is that he has been detained in illegal custody and lodged in Central Jail, Srinagar as the order of General Court Martial being illegal and unsustainable amounts to breach of Article 21 of the Constitution of India. This contention of the learned counsel cannot be accepted. The petitioner has been convicted and sentence recorded against him is illegal, even in that event, the petitioner is lodged in the Central Jail, Srinagar in execution of the order of the G .C .M. for serving sentence and by no stretch of imagination it can be said that the petitioner while serving sentence is lodged in the illegal custody and for his release, a petition for Habeas Corpus can be maintained.