SHARMA, J. - (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. Before we proceed further, we would like to deal with an objection raised by Mr. R. D. Rastogi, learned counsel for non- applicant (petitioner) that the writ petition is within the jurisdiction of the learned Single Judge in view of the amended rule 55 of the Rules for High Court of Judicature for Rajasthan, 1952 (for short, the Rules ). He further contends that the order of the learned Single Judge ordering the release from the close arrest is an interim order and therefore, neither Special Appeal lies under Sec. 18 of the Rajasthan High Court Ordinance, 1949, nor Special Appeal has been filed and therefore, this Division Bench has no jurisdiction to deal with the matter of close arrest. So far as this objection is concerned, we have already said that the learned Single Judge himself while ordering that Major S. K. Sharma shall be released from close arrest on furnishing personal bond by his wife, had left the matter open and observed the respondents shall be free to move for vacation/modification of the order dated April 3,1991,to which reference has already been made in the earlier part of this order. Therefore, so far as the present case is concerned, the objection of Mr. Rastogi, in our opinion, has no relevance and we proceed to deal with the question as to whether any modification in the order of the learned Single Judge about releasing the petitioner from close arrest, is called for or not? We may also say that as directed by the learned Single Judge and ordered by the Chief Justice constituting this Bench, we would like to proceed to deal with all the applications, including contempt petition and main writ petition, but Mr. Rastogi, learned counsel representing the wife of S. K. Sharma gave out that he holds no brief for Major S. K. Sharma and according to him against a lunatic person, it will not be proper to deal with his matter in his absence and therefore we are dealing with the matter of close arrest and not contempt petitions and main writ petition. We have said earlier that in the 4th Stay Application no reference was made to the order dated April 5,1988. This Court under the order dated April 5,1988, had dealt with third Slay Application and the orders made in the First and IInd Stay Application stood modified to the extent as contained therein, but for the reasons known to the petitioner no mention was made to the aforesaid order dated April 5,1988. In the aforesaid order it was clearly mentioned that Army authorities of 41 Sub area shall not initiate disciplinary proceedings but it will not prevent other. Army authorities unconnected with the aforesaid area to do so. . Therefore, it cannot be said that even in respect of cause of action which gave rise to the writ petition No. 604/88/army authorities could not have initiated any disciplinary proceedings which includes GCM. It may be staled that so far as present GCM in which the petitioner was ordered to be taken in the close arrest it was ordered to be convened vide order dated January 2,1991 in respect of offences under Sec. 52 and 63 of the Army Act, 1959 (for short, the Act) in respect of incident alleged to have taken place in the year 1989-90. In the writ petition the aforesaid cause of action having not accrued by then, could not have been included. Nodoubt an application seeking incorporating the same has been filed but it has yet to be decided. It may be mentioned that in respect of alleged offences of the year 1989-90 under Sees. 52 and 63 of the Act, the Court of Inquiry under rule 177 of the Army Rules 1954 (for short, the Rules) was held and a writ petition was filed by Major S. K. Sharma in this court challenging the aforesaid court of inquiry and in the aforesaid writ petition (No. 3459/90) earlier an expale stay order was granted but later on the learned Single Judge (N. C. Sharma J.) under his order dated August 25, 1990 vacated the earlier stay order and thereafter on the same day Major S. K. Sharma withdrew the writ petition. Be that as it may, it can be said that the court of inquiry was held in respect of offences under Sec. 52 and 63 of the Act and after holding court of inquiry, it appears that it was decided that GCM should be convened and under order dated January 2,1991, the GCM was convened and it was to assemble on January 12,1991, at Jaipur. It was on January 10, 1991 that Major S. K. Sharma was taken in close arrest in respect of GCM which was ordered to be convened on January 2, 1991 and was to assemble at Jaipur on January 12, 1991. It was at that stage that 4th Slay Application was filed on January 7, 1991 and on January 11, 1991 holding of GCM was stayed. There after, as said earlier, the order was made that Major S. K. Sharma be released from close arrest. On January 17, 1991 it was ordered that Major S. K. Sharma shall be examined by a Board of Doctors to be constituted by the Army Authorities at Delhi and Major Sharma was examined and the report of the Medical Board was available with the learned Single Judge when he made the final order. Section 145 of the Act deals with the provisions in respect of lunacy of accused and under its sub-section (1) whenever, in the course of a trial by a court-martial, it appears to the court that the person charged is by reason of unsoundness of mind incapable of making his defence, or that he committed the act alleged but was by reason of unsoundness of mind incapable of knowing the nature of the act or knowing that it was wrong or contrary to law, the court shall record a finding accordingly.
(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. If an application is made by such relative or friend and on his giving security to the satisfaction that Government that the person delivered shall be properly taken care of and prevented from doing injury to himself or any other person and will be produced for the inspection of such officer and at such and will be produced for the inspection of such officer and at such times and places as the Central Government may direct, the Central Government may order such person to be delivered to such relative or friend. Para 391 of Defence Services Regulations (for short, the Regulations) deals with military custody, which provides that under See. 101 of the Act any person subject to military law when charged with an offece punishable under the Act may be taken into military custody which means that the offender is placed under arrest. The arrest is of two kinds, namely close arrest or open arrest. When arrest is not described by the authority ordering it as open arrest, it means close arrest. Under para 392 (c) of the Regulations media of close arrest has been given and so far as an officer is concerned, he may be placed under arrest by a competent authority when charged with a serious offence. Under clause (k) in any case the accused will be placed under close arrest before the commencement of the court martial and during the course of his trial he will remain under close arrest except where the convening officer or an authority superior to him directs otherwise. It will be clear that the Act, Rules and Regulations contain complete procedure for trial by GCM, for close arrest and for release from close arrest and also for recording a finding as to whether a person is a lunatic or not. A detailed procedure is provided under the Act to decide the questions of fact, if one arises during the course of trial, whether a person who is governed by the Act committed an offence or not, or whether he should be kept in lunatic assylum or should be released on application by his relative or friend. It has been contended by Mr. Raslogi, that the fact as to whether the petitioner is lunatic or not has been determined by the Medical Board of the Army which Medical Board was constituted by the Army authorities and it was said that Major S. K. Sharma was not fit to face GCM. We may state that the medical report will be relevant material for the court i. e. GCM to decided whether Major S. K. Sharma is lunatic or not and the finding of fact has to be recorded and it is for the competent authority to decided the question of fact whether an officer governed by the Act is lunatic or not. The GCM was ordered to be convened on January 2, 1991 and that loo after holding the court of inquiry under the provisions of rule 177 and onwards of the Rules in which Major S. K. Sharma look part, cross- examined the witnesses, challenged the court of inquiry by filing the writ petition to which reference alreday been made in the earlier part of this order, secured exparte stay order which was later on vacated and then withdrew the writ petition. We may stale that one Major A. K. Gupta filed a writ petition at the main seat of this Court at Jodhpur challenging the convening of the GCM and the prayer was made that he should not be taken in the military custody. That writ petition was dismissed. A special Appeal was filed which was registered as D. B. Special Appeal 88/90. A Division Bench of this Court at Jodhpur under its order besides ordering slay of further proceedings in the matter of GCM, also ordered that the petitioner A. K. Gupta shall furnish personal bond in the sum of Rs. 1,00. 000/- with two sureties each in the amount of Rs. 50,000/- to the satisfaction of the Commanding Officer, respondent No. 5 in that case, to the effect that till the proceedings are completed, he shall not leave India and shall make himself available at Madras or Jodhpur as required by the respondents during the course of investigation and Court martial, if any. The Court ordered that in case the petitioner in that case furnishes the aforesaid personal bond and surely bonds, he shall not be taken in military custody till further orders. The aforesaid order of the Division Bench was challenged by the Union of India before the Supreme Court by filing SLP which SLP was registered as Special Leave Petition (Civil) No. 5217/90. On March 30,1990, the Supreme Court passed the following order: " Special Leave granted. Having heard counsel for the parties, we arc of the opinion that the impugned order made by the Division Bench of the High Court cannot be sustained. The Court should not at this stage interfere with the proceedings against the respondent; whether one should be taken into military custody or not, should be left to the Army authority. The appeal is accordingly allowed setting aside the impugned order of the High Court. " It will therefore be clear that the Apex Court has taken a view that the question as to whether one should be taken into military custody or not, should be left to the Army authorities and the court should not interfere. Therefore, one should be taken into close arrest or not is entirely with the Army authorities and once GCM is convened, the trial starts, close arrest is to follow. We have already said in the earlier part of this order that the Act, Rules or Regulations provide complete machinery for dealing with the case of a lunatic and there are provisions for his lease and deliver him to his relative or friend. ;