UNION OF INDIA Vs. MAJOR S K SHARMA

JUDGEMENT

(1.) IN writ petition No. 604/1988 one or other Stay Applications were filed and one or other Stay orders were made to which reference shall be made in the later part of this order, but for the present we may rerfer to the 4th Stay Application which was made by the petitioner in the aforesaid writ petition. The 4th Slay Application was filed on January 7,1991 by none-else but the petitioner Major S. K. Sharma, in this Court. It was registered as S. B. Civil Misc. 4th Stay Application No. 124/1991. On the 4th Slay Application the mailer was placed before G. S. Singhvi on January 9,1991 and it was ordered by him that it may be placed before D. L. Mehta. Then it was ordered that it may be placed before Tibrewal J. The prayer which was made in the aforesaid 4th Slay Application was that the respondents be directed not to conduct any inquiry, G. C. M. etc. against the petitioner till the statutory complaint filed by him is investigated and finally concluded either way. IN the 4th Stay Application Reference was made to the Stay Application No. 467/1988 wherein a Division Bench of this Court consisting of S. N. Bhargava & G. K. Sharma J. I, made the following order, on March 7,1988 *** Yet another Stay Application was made and on that 3rd Slay Application this Court consisting of the same Bench of Hon'ble S. N. Bhargava and Hon'ble O. K. Sharma J. I made an order on March 30,1988 which reads as under: *** IN the main petition it was ordered that notice may be given and till then status quo may be maintained. IN the 4lh Slay Application with which we are presently dealing no reference was made to another order of this court to which one of us (M. B. Sharma J.) was a parly and the said order was made on April 5,1988 which reads as under: " Hon'ble M. B. Sharma. J. Hon'ble P. C. Jain J. Petitioner in person. Shri J. P. Singh, Officer-in-charge on behalf of the respondents. We have heared the petitioner and Shri J. P. Singh, Officer-in-charge of the case and have gone through the reply filed to the third slay application. This Court in D. B. Civil Misc. Stay Petition No. 484 of 1988, had ordered on 15th March 1988 that the- movement order dated 12th March 1988 of the petitioner shall remain in abeyance and its operation was stayed. Not only this, it was further ordered that the petitioner will not be given any movement order to move out of Jaipur without seeking the permission of this Court. It appears that on 19th January 1987, one Major H. P. S. Sandu was posted on the command area, posted as OC 706 Company ASC. We do not intend to stay the aforesaid order of posting of Major H. P. S. Sandu but it will be subject to the final decision of the writ petition. The posting of Maj. Sandu will not affect any promotion chances of the petitioner. After having heard the petitioner and the Officer-in-charge of the case, we are of the opinion that keeping in view the facts of the case no enquiry shall be conducted against the petitioner by any officer of 41 Sub-area, but it will not prevent other Army authorities unconnected with the aforesaid area, to initiate disciplinary proceedings, if any against the petitioner". It will also be pertinent to mention here that on July 11,1990 when the writ petition was listed in the Court, the petitioner was not present and because till then the petitioner was not represented by any counsel, this Court ordered that a notice be given to the petitioner and Mr. R. M. Lodha who was then present on behalf of Union of INdia was directed to see that the notice is served on the petitioner.

(2.) AS said earlier, 4th Stay Application was filed on January 7,1991 and the learned Single Judge of this Court (Hon'ble N. I. . Tibrewal J.) under his order dated April 3,1991 ordered that the main writ petition alongwith slay application and contempt petition should be placed before Hon'ble S. N. Bhargava and Hon'ble M. R. Calla. JJ, and Chief Justice was requested to constitute the Bench of the above named Judges. The Chief Justice has constituted this Bench. It may be mentioned here that the Review Petition was filed on behalf of the Union of India seeking review of the order in so far as the learned Single Judge under his order dated April 3,1991 ordered that the petitioner shall be released from the close arrest on furnishing a personal bond by his wife Smt. Jai Shree Sharma, in the sum of Rs. 10,000/- and one surety in the like amount to the satisfaction of Commander Head Quarter 6l, (Indep) Sub Area-cum-Station Commander, Jaipur. Learned Judge further observed that: " It is however made clear that the non-petitioners shall be free to move an application before the Division Bench for modification/vacation of this order as and when the petitioner is mentally fit to face GCM proceedings". In the review petition the learned Single Judge did not think it proper to review his order and observed that he has already left the matter open so far as release from close arrest is concerned before the Division Bench as and when an application is made. Learned Single Judge under his order dated April 11,1991, dismissing the review petition said- " However, it is again made clear that the petitioner shall be free to move before the Division Bench giving reasons for putting the non-petitioner in close arrest". In the aforesaid order, by the word petitioner, it was meant the petitioner in review petition i. e. Union of India.

(3.) UNDER sub-section (2) the Presiding Officer of the Court or in the case of a summary court martial the officer holding the trial, shall forthwith report the case to the confirming officer or to the authority empowered to deal with its finding under Sec. 162, as the case may be. UNDER sub-section (3) the confirming officer to whom the ease is reported under sub-section (2) may, if he does not confirm the finding, lake steps to have the accused person tried by the same or another court-martial for the offence with which he was charged. UNDER sub-section (4) of Section 145 of the Act the authority to whom the finding of a summary court- martial is reported under sub-section (2) and a confirming officer confirming a finding in any case so reported to him shall order the accused person to be kept in custody in the prescribed manner and shall report the case for the orders of the Central Government. UNDER sub-section (5) on receipt of a report under sub- seclion (4) the Central Government may order the accused person to be detained in a lunatic assylum or other suitable place of safe custody. UNDER Sec. 146 where any accused person, having been found by reason of unsoundness of mind to be incapable of making his defence, is in custody, or under detention under Sec. 145. the officer commanding the army,army corps, division or brigage within the area of whose command the accused is in custody or is detained or any other officer prescribed in this behalf (a) if such person is in custody under sub-section (4) of Section. 145, on the report of a medical officer he is capable of making his defence, or (b) if such person is detained in a jail under sub- section (5) of section 145 on a certificate of the Inspector General of Prisons, and if such person is detained in a lunatic assylum under the said sub-section on a certificate of any two or more visitors of such assylum that he is capable of making his defence, take steps to have such person tried by the same or another court martial for the offence with which he was originally charged or, if the offence is a civil offence, by a criminal court. Again, under Section 148 of the Act where any person is in custody under sub-seclion (4) of Section 145, or under detention under sub-section (5)of that Section, then on the report of a Medical officer he may be ordered to be released by the Central Government or may be ordered to be retained in custody. But in that case it is necessary that the Central Government must be satisfied that in case of release there is no danger of the accused causing any injury to himself or any other person. Even under Section 149 of there Act thre is provision to deliver the accused to any relative or friend and that power is also vested in the Central Government.