KH.NOBIN SINGH, J. -
(1.) Heard Mr. Shreeji Bhavsar, learned counsel appearing for the petitioner; Mr. S. Suresh, learned ASG for respondent Nos. 3 and 4 and Mr. Niranjan Sanasam, learned GA for respondent Nos. 1 and 2.
(2.) By the instant writ petition, the petitioner has prayed for issuing a writ of mandamus or any other writ to direct the respondent Nos.1 and 2 to register FIR under the appropriate Sections of the Indian Penal Code, 1860 and the Arms Act, 1959 for alleged recovery of illegal and unaccounted arms and ammunitions by the respondent No.3 on 02.07.2018 from inside the barrack of 2 FID/3CISU, M Sector, Imphal.
(3.) Facts and circumstances as narrated in the writ petition, are that the petitioner is a decorated Army Officer with 32 years of service and he has been awarded 4 comme-ndation cards. He initially joined 1 PARA Commando (SF) as a Paratrooper and immediately after his half basic training in the year, 1987, he joined his Battalion in Srilanka during the Operation Pawan. After two years, he came back to India and he along with a team went to Nagaland in Operation ORCHID and RHINO. He took commission and passed out with 100 regular course in June 1997 and did cross attachment in Garhwal Scouts. During attachment, he accomplished various difficult patrols in snow glaciers of Indo-China border at a height ranging from 17000 ft. to 22000 ft. and for the same as 2/Lt, he was awarded with first GOC-in-C-Commendation Card. In 1999 he led a team of mountaineers in Operation VIJAY and played a major role in the capture of BAJRANG POST. After the Kargil War, he moved with an advance party of Gargh Scouts to Naogaon in Srinagar on LoC for counter infiltration operations and in June, 2000, he joined Int Corps at Bagrakote in WB where, for his gallantry act, he got his second commendation card. The petitioner went on staff posting in counter insurgency field at Rajouri in May 2005 where he also got his third commendation card. Finally after 12 years, in May 2008 he got his first peace posting in Mumbai where he was part of a special team who interrogated Ajmal Kasab. During his Mumbai tenure, beyond a call of his duty without caring his life and safety, he jumped into 18 to 20 ft deep drain with full of poisonous gas and inhaled almost 20 points of Methane Gas while rescuing two civilians and for three days thereafter, he was fighting his battle in ICU (INH ASIVINI Colaba) where he narrowly escaped the jaws of death. For his brave act, he was awarded with the Chief's Commendation Card.
3.2. Thereafter, the petitioner was posted as the Officer Commanding, Z Section, 3 Corps Intelligence and Surveillance Unit, Rang-apahar (Dimapur) vide order dated 20.5.2016. While he was being posted at Rangapahar (Dimapur), he sent a confidential letter dated 09.09.2016 to the Lt Gen Praveen Bakshi, AVSM, VSM, ADC, GOC-in-C, Eastern Command in respect of fake encounters and cold blooded murders of civilians by some rogue elements in the same unit of the army, for which he was pressurised by the respondent No. 4 to withdraw it on the assurance that an independent inquiry would be conducted and proper action would be taken in regard to the issues raised in the said letter and the petitioner was, thus, compelled to withdraw it. The respondent No.3, Lt Col RP Nanda who had been posted as reliver of the petitioner, reported at No. 2 FID on 26.06.2018 and from 26.06.2018 onwards, the process of handing/ taking over between the petitioner and respondent No. 3, Lt Col Nanda went on smoothly except in respect of an issue regarding the debt balance of Rs. 3,59,000/- (Rupees three lakhs fifty-nine thousand) only. The petitioner was asked by the respondent No.3 to inform about it to the respondent No.4 and accordingly, on 27.06.2018 the petitioner talked to the respondent No.4 and took his verbal permission about the visit of his wife at Imphal for 6 days from 30.06.2018. On 28.06.2018, the petitioner informed the same to the respondent No.3, Lt Col Nanda asking whether the respondent No. 4, CO had passed any order as regards the debt balance of about Rs. 3,59,000/-. Consequently, the petitioner wrote a letter to the respondent No. 4, CO who did not pass any order till 29.6.2018, rather ordered the petitioner to report at the Unit Headquarter on 30.06.2018. By 4 p.m. the petitioner once again wrote a letter to the respondent No.4 seeking clarification on the financial matter. On 30.6.2018, the petitioner informed the respondent No. 3 to take over the detachment who refused to do so on the ground that it was a financial matter. Till almost 10 p.m., the petitioner did not receive any letter but on whatsapp, the respondent No.4 issued warnings that if the petitioner did not report to Unit HQ, disciplinary action would be taken against him.
3.3. On 01.07.2018 in the early morning around 6 a.m., suddenly, the petitioner saw 8 to10 jawans standing outside the house who took the petitioner in custody and without proper handing/ taking over the detachment to the respondent No.3, the QRT took the petitioner at Dimapur. From 01.07.2018 to 11.07.2018, the petitioner was kept in illegal custody at Dimapur. On 01.07.2018 itself, his wife and children were left behind at M Sector, Imphal who were also detained by the Respondent No.3, Lt Col Nanda till approx 10:45 a.m. All gates were closed and sentries were instructed by him not to allow anyone to go outside the gate. With the interference of a local friend, the petitioner's wife was allowed to go out and in the evening at 6 p.m, his wife registered FIR at Imphal Police Station.
3.4. On 02.07.2018, the respondent No.3, Lt Col Nanda appears to have written a letter to respondent No.4, Col. Ranjan Singh mentioning about the recovery of unaccounted arms and ammunitions from inside the barrack of 2 FID/3 CISU, M Sector, Imphal. After about 3 months from 2.7.2018, the Additional Director General, Discipline and Vigilance, Adjutant General Branch issued an order dated 5.10.2018 for attachment of the petitioner from his posting at 52, Maharashtra NCC Battalion, Nanded, Maharashtra to 56 Arty Bde/56 Inf Div/3 Corps at Pasighat, Arunachal Pradesh for disciplinary action under the provisions of the Army Instruction 30/86.
3.5. In the meantime, on 05.07.2018, his wife filed a habeas corpus petition being WP(Cril) No.11 of 2018 in which this Court directed the Corps Cdr, then Lt Gen R Gopal to ensure presence/ production of the petitioner before this Court on 11.07.2018 on which the petitioner was escorted by a team under the command of Respondent No. 4, CO till Court premises and finally, he got release order.
3.6. The attachment order dated 5.10.2018 came to be challenged by the petitioner by way of a writ petition being WP(C) No.1031 of 2018 in which the execution of the attachment order dated 05.10.2018 was suspended by this Court on 23.01.2019. Thereafter, after hearing the learned counsel appearing for the parties, the interim order was extended till the disposal of the writ petition. The Union of India filed a petition for special leave to appeal being SLP(C) No.3480 of 2019 before the Hon'ble Supreme Court against the orders dated 05.10.2018 and 23.01.2019 passed by this Court. It may be noted that along with the said SLP, a letter dated 02.07.2018 was filed and on 13.02.2019 the petitioner came to know about it for the first time. The Hon'ble Supreme Court vide its order dated 15.2.2018 allowed the said SLP and set aside the interim orders dated 5.10.2018 and 23.1.2019 passed by this Court.;