CAPT PARAMJEET SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) IN this writ petition filed under Article 226 of the Constitution of INdia the petitioner No. 1 has challenged the proceedings of the General Court Martial held against him in pursuance of Anxs. 2 and 3 and he has prayed that the entire proceedings of General Court Martial be quashed. He has prayed for a declaration that he is being illegally detained and that his request for release from civil arrest has unlawfully been refused. There is a further prayer that in case any order given in the General Court Martial proceedings, after filing of the writ petition the same may be quashed.

(2.) THE case of the petitioners is that petitioner No. 1 is an Officer holding a permanent Commission in the regular Army and he is having the rank of Captien. He was working at Kota under 11th Battalion, Brigade of Guards in the month of July 1987. He was sent on temporary duty as a Member of the Board 165, Field Regiment as a representative of 96 Infantary Brigade, Amritsar. Ordinarily, the petitioner should have been sent back to his Unit because of the non-constitution of the Survey Board, for which he had been sent to Amritsar. In order to conceal the fact of re-constitution of the Board from the members of the earlier Board, the Commanding Officer of 165 Field Regiment made a false report against the petitioner about his alleged absence without leave. Col. I. R. Maira conducted a preliminary enquiry on July 31, 1987 and framed two charges against the petitioner. A tentative charge sheet framed u/ss 39 (a) and 48 of the Army Act was served on the petitioner on July 31, 1987. THE first charge against the petitioner was that he remained absent without leave and the Board had assembled on July 18,1987 and continued to remain absent till 25. 07. 1987. THE second charge was that on 27. 07. 1987 when he was required to be present in parade, he was found intoxicated. Major Ajai Raina was detailed to record in summary of evidence. On 1. 8. 87 Col. I. R. Maira published Part 1 order and order of Summary of Evidence by para 171/87. Respondent No. 4 Col. I. R. Maira proceeded under Rule 22 and 23 of the Army Rules and in other case he could have directly sent the matter to the higher authorities for convening a General Court Martial (G. C. M. ). He, however, proceeded to hear the charges and passed an order for recording summary of evidence. He did not follow the procedure laid down in Rules 22 and 23. A final charge sheet was served upon the petitioner on December 18, 1987 under the signatures of Col. R. K. Sharma for General Officer, Commanding, 18th Infantary Division. Col. R. K. Sharma convened the G. C. M. on December 20, 1987 and passed orders for composition of the G. C. M. He signed the composition of convining order on December 20, 1987 as "for General Officer Commanding, 18th Infantary Division. " THE proceedings of G. C. M. started on December, 22, 1987. THE petitioner was taken under close arrest. THE petitioner made a request on December 22,1987 that he be released from the close arrest but his request was denied. Several objections were raised by the petitioner against convening of the General Court Martial but they were over ruled. THE petitioner made an application on December 31, 1987 under Rule 5 of the Army Rules contending that no case was made out against him and the charges framed against him may be dismissed. But this application was also rejected. THE petitioner has stated that the G. C. M. proceedings have been conducted and it is very likely that vardict may be pronounced in a few days. THE petitioner has alleged that there has been a wholesale violation of the provisions contained in s. 109 of the Army Act as well as Rules 22,23,25,37,41 and 180 of the Army Rules and, therefore, the very order convening G. C. M. is liable to be quashed and all proceedings taken in pursuance of the convening order also liable to be quashed.

(3.) IN my opinion, in a writ petition under Article 226 of the Constitution, the Court will ordinarily not interfere with the proceedings of G. C. M. or any action taken in connection with convening of G. C. M. , by issuing a writ before the finalisation of the proceedings. The Court may interfere if it finds that the very initiation of the proceedings is without jurisdiction. This view has clearly been taken by their Lordships of the Supreme Court in Chief of Army Staff v. Maj. Dharam Pal Kukrety IN that case the Supreme Court held: - "if the respondent contention with respect to the jurisdiction of the Chief of the Army Staff to issue the said notice were correct, the Respondent was certainly exposed to the jeopardy of having his explanation and defence rejected and he being removed or dismissed from services. Were the said notice issued without jurisdiction, the respondent would have then suffered a grave, prejudicial injury by an act which was without jurisdiction. Where the threat of a prejudicial action is wholly without jurisdiction, a person cannot be asked to wait for the injury to be caused to him before seeking the Courts protection. If on the other hand, the Chief of the Army Staff had the power in law to issue the said notice it would not be open to the respondent to approach the court under Article 226 of the Constitution at the stage of notice only and in such an event his writ petition could be said to be premature. "