HARI SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner was serving as substantive Naik in No. 5. Training Company, the Grenadiers Regimental Centre, Jabalpur. He was served with a charge -sheet dated 9 -4 -1976 for committing an unnatural offence with Rect. Surender Singh District Court Martial was ordered, who after the enquiry and examining a number of witnesses by both the sides and hearing arguments found by his order dated 23 -7 -1976 the petitioner not guilty. The confirming authority did not agree with the findings and remanded the case to the District Court Martial for reassessment of the evidence in the light of the observations made therein under Section 160 of the Army Act and Rule 68 of the Army Rules. After the remand of the case, the District Court Martial recorded fresh evidence and recalled some of the witnesses earlier examined and found the petitioner guilty by his order dated 17 11 -1976 and he was sentenced to suffer one year's rigorous imprisonment in the civil jail in addition to being dismissed from service, and the said order of the District Court Martial was confirmed vide Annex. 9 promulgation dated 11 -1 -1977 and 6 months out of one year rigorous imprisonment was remitted. The petitioner moved a petition under Section 164 of the Army Act and the said petition was rejected vide order dated 2 -8 -1978 by a one line order 'your petition was placed before Army Commander, who after due consideration has rejected the same' It is in these circumstances the present writ petition was filed. A show -cause notice was issued as to why the writ petition be not admitted. The non -petitioners filed a reply to the show -cause notice and after hearing both the counsel for the parties the writ petition was admitted on 19 -7 -1979 inspite of a preliminary objection raised by the learned counsel for the respondents that the writ petition was not maintainable and this Court had no jurisdiction to entertain the writ petition.

(2.) I have heard learned counsel for the parties. Learned counsel for the respondents has pressed before me also that this Court should not entertain the writ petition as the orders were not passed within the territorial jurisdiction of this Court and he has placed reliance on S.S. Mittal v. Bar Council of India and Ors. . On the other hand, learned counsel for the petitioner has placed reliance on Prem Cables Pvt. Ltd. v. The Asstt. Collector Customs and Anr. ILR (1978) 28 Raj. 963 and Krishnatosh Das Gupta v. Union of India and Ors. 1979 Lab. IC 1154. I have given my thoughtful consideration to the whole matter. This Court after hearing both the learned counsel for the parties had admitted the writ petition and rejected the argument that the petition is not maintainable. After 7 years on this technical ground it will not be in the interest of justice to accept this argument and, therefore, I over rule this preliminary objection. On merits, learned counsel for the non -petitioner has placed reliance on Rule 143 of the Army Rules which gives power and authorises for recalling of witnesses at the request of the prosecutor or of the accused and has submitted that the District Court Martial has inherent powers even after the remand of the case and merely because no specific directions or permission was given to the District Court Martial to recall any witness or to examine fresh witnesses the District Court Martial cannot be said to have acted without jurisdiction or against the directions in recalling the witnesses or examining fresh evidence. The revision order (Ex. 4) dated 25 -10 -1976 is very specific. It is observed in paragraph 4 as under: