- (1.) G. S. N. Tripathi and R. K. Singh, JJ. In this petition, the following reliefs have been sought:- (i) issue a writ, order or direction in the nature of mandamus commanding the respon dents to set the petitioner at liberty forthwith from his illegal military confinement. (ii) Issue a writ, order or direction in the nature of Habeas Corpus directing the respon dents to produce the petitioner before this Court forthwith. (iii) Issue a writ, order or direction in the nature of mandamus commanding the respon dents to pay to the petitioner compensation amounting to Rs. 5 lacs. (iv) Issue any other writ, order or direction which this Court may deem fit and proper in the circumstances of the case. (v) to award the cost of the petition in favour of petitioner.
(2.) THE admitted position is that the petitioner was due to retire after putting 28 years' of service from the post of Sub edar, on 28-2-95 but he was taken into illegal military custody with effect from the afternoon of the same day under the provisions of Section 1 23 of the Army Act and after 55 days, he was let off by the opposite party after finding that there was no material to proceed against him. THE detention was unlawful, prejudiced and biased, being against the provisions of Sec tions 102 and 103 of the Act and Rule 27 of the Army Rules. THE charge levelled against the petitioner by the respondents, was false and the respondents had no juris diction to proceed against the petitioner under the provisions of the Army Act. In the counter-affidavit filed by Sri T. S. Negi, posted as a Captain at Record 39, Gorkha Training Centre, Varanasi, the allegation of bias, illegality and ir regularity have been denied. The petitioner was serving with 2 U. P. E. M. E. Company NCC in March 1993 and Lt. Col. Satish Chandra was performing duties of O. C. at that time. On 6th March, 1993, a Barakhana to celebrate Holi was or ganized. The petitioner also took part. Lt. Col. Satish Chandra left the unit for his residence around 14. 30 Hrs. After his departure from the place, there was a heated exchange followed by exchange physical blows between Sri S. B. Singh and Sri S. B. Mazumdar, the Head Clerk and Col.-Satish Chandra was informed about the incident by Driver Shri S. P. Upadhayay. Lt. Col. Satish Chandra came back to the unit around 17 Hrs. on the same day. By that time, everything had been pacified and Sri S. B. Mazumdar had been sent home. Lt. Col. Satish Chandra had ad monished the petitioner for not being able to control the situation and hit him on the chest, who was also present at the time of incident and, thereafter, Sub. B. K. Saikia (Petitioner) reported sick to Military Hospital, Varanasi on 9th March, 1993 and gave history that he sustained injury because he was hit by his Officer Com manding Lt. Col. Satish Chandra on 6-3- 93. Thereafter a Court of Enquiry was ordered by Headquarters NCC Group A vide order dated 16-4-93 to investigate the circumstances under which Sub-B. K. Saikia, the petitioner sustained injury as per statement furnished by him. However, it was not established that the petitioner was hit by Lt. Col. Satish Chandra, during the court of enquiry. Disciplinary proceed ings started against the petitioner for making false allegations against the officer commanding Lt. Col. Satish Chandra, which was taken serious by the Head quarters Sub-Area, Allahabad, under whose jurisdiction, Varanasi falls. The Hearing could not be concluded till 18-4-95 because Lt. Col. Satish Chandra arrived very late. Meanwhile, the petitioner was taken into Military custody on 28-2-95 under Section 123 of the Army Act as he was to proceed on pension. It is wrong to say that the Army Act does not empower the authorities to proceed against an army personnel, who has retired. Prima facie a case had been made out against the petitioner and proceedings were launched. But ultimately the matter could not be crystalized for want of proper evidence and the petitioner was let off on 22-5-95 as noted above.
(3.) THE main thrust of the petitioner's learned Counsel was that after retirement, the petitioner could not be proceeded against under Section 123 of the Army Act. But it is not correct. Section 123 of the Army Act reads as below:- "123 (1)-Where an offence under this Act had been committed by any person while subject to this Act and he has ceased to be so subject, he may be taken into and kept in military custody and tried and punished for such offence as if he continued to be so subject. (2) No such person shall be tried for an offence, unless his trial commences within six months after he had ceased to be subject to this Act: Provided that nothing contained in this sub-section shall apply to the trial of any such person for an offence of desertion or fraudulent entitlement or for any of the offences mentioned in Section 37 or shall effect the jurisdiction of a criminal court to try any offence triable by such court as well as by a court martial. (3) When a person subject to this Act is sentenced by a court-martial to transportation or imprisonment, this Act shall apply to him during the term of his sentence, though he is cashiered or dismissed from the regular Army, or has otherwise ceased to be subject to this Act and he may be kept, removed, imprisoned and punished as if he continued to be subject to this Act. (4) When a person subject to this Act is sentenced by a court-martial to death, this Act shall apply to him till the sentence is carried out. " Learned Counsel for the petitioner admits that now even after retirement, the petitioner could be proceeded against for an act of indiscipline committed by him under Section 123 of the Army Act.;