SINGHAVI, J. - (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. In reply to the writ petition the respondents have asserted that in July 1987 the petitioner was working in 11th Battalion Brigade of the Guards at Tibri, Gurdaspur (Punjab) and not at Kota as alleged by him. The allegation of the petitioner that the Board was cancelled and, therefore, he ought to have been sent back, has been denied in the reply. It is stated that all efforts to trace out the petitioner failed and then 165 Field Regiment reported his absence to his parent Unit (11 Guards ). The respondents have disputed that there is any material difference in the contents of the tentative charge given to the petitioner and the Battalion Routine Order Part 1,171/87 in which the summary of evidence was ordered on 27. 7. 87. When the petitioner did not come on parade, two officers were sent to find out his whereabouts. Through these officers the Commanding Officer came to know that the petitioner has consumed liquor and was using abusive language. This language was incorporated while ordering the Summary of Evidence. Reference has been made to Note 6 of AA Sec. 48. It has been stated in para 8 that the order for trial by G. C. M. is required to be signed by the convening officer or by a staff officer for him. It has then been stated that Major Gen. Baljit Singh, AVSM, VSM is in possession of A-l warrant. Col. R. K. Sharma, SM. VSM. Colonal 'a' is the staff officer to the said General Officer who has validly signed the convening order dated December 20, 1987 for Major General Baljit Singh as spelt out in Note 5 of the Army Rules, 1941. Thus, there has been no irregularity regarding the close arrest of the petitioner. It has been stated that the same has been done as per the procedure laid down for G. C. M. The respondents have asserted that the provisions contained in Rule 22, and 25 of the Army Rules have been complied with. The submission of the Defending Officer of the petitioner was duly heard, recorded and decided as an identical matter in terms of the Rule 88 of the Army Rules. The question relating to General Jurisdiction of the Army Court under Army Rule 51 was heard and validly decided by the G. C. M. after hearing the testimony of Col. I. R. Maira. The respondents have contested the petition by asserting that no irregularity has been committed either in the convening of G. C. M. , serving of charge sheet or conduct of the proceedings of G. C. M. An additional affidavit has been filed on behalf of the respondents. This affidavit is of Col. N. L. Yadav, who has stated himself to be the Of-ficer-Incharge, Legal Cell. HQ 61 (1) Sub Area. He has stated that the competent authority i. e. , General Officer Commanding , 18 Infantary Division took the decision on 1. 10. 87 that the petitioner would be tried by General Court Martial. Annexure R/3 has been filed in support of this assertion. Col. R. K. Sharma signed the convening order dated December 20, 1987 as staff officer on behalf of convening authority after putting up Minute Sheet dated 27. 10. 87. The Minute Sheet was approved by the convening authority, i. e. Major General Baljit Singh, AVSM, VSM, General Officer Commanding, 18 Infantry Division. He is holder of A-l warrant and is authorised by Commander-in-Chief for convening G. C. M. under the Army Act. An affidavit of Major General Baljit Singh has also been filed as Anx. 5 with the affidavit of Col. N. L. Yadav. In his affidavit Major General Baljit Singh has stated that he has personally perused the Minute Sheet No. 6100/1/s/a2 dated 27. 10. 87 put up to him by IC-22197f, Col. R. K. Sharma, SM. VSM, then Colonel 'a'of Headquarters 18 Infantry Division and after having applied his mind and having been satisfied that it is a fit case to be tried by General Court Martial, he had verbally issued instructions on the case the same day to the said Officer that the accused is to be tried by G. C. M. He has also stated that he put his initials on he said Minute Sheet tantamounting to his approval. Mr. C. K. Garg, learned counsel for the petitioner has raised several arguments in support of the petition. Mr. Garg has submitted that S. 109 of the Army Act has been flouted inasmuch as the order for convening of G. C. M. has not been issued by a competent authority. The order has been signed by Col. R. K. Sharma, who has not been authorised by the Chief of the Army Staff for convening G. C. M. According to Mr. Garg, The General Officer Commanding has not given any delegation in favour of Mr. R. K. Sharma nor could it have been given in the absence of any provision to that effect under s. 109 of the Army Act, 1950 (hereinafter referred to as 'the Act' ). The second submission of Mr. Garg is that the tentative charge-sheet served on the petitioner and final charges levelled against the petitioner are substantially different. According to Mr. Garg, a new Charge No. 3 was framed against the petitioner although it was not a part of the tentative charge. According to Mr. Garg, the procedure prescribed under Rules 22,23,24,25,37,41 and 180 are mandatory but in the present case there has been a total violation of the procedure prescribed in thesse Rules. Elaborating his arguments, Mr. Garg submitted that the petitioner was never imputed or charged with item No. 5 of the charge-sheet dated 3. 11. 87, in regard to which G. C. M. was convened. Under Rule 37 a competent authority contemplated u/s 109 is required to satisfy itself as to the trial by G. C. M. Major General Jasbir Singh had merely put his initials on the already typed endorsement and this shows non- application of mind by him. Even this was not decided as to whether the petitioner was a man belonging to 15th Infantory Division or 18th Infantory Division. The composition of G. C. M. is required to be made by the authority who is competent to convene G. C. M. as contemplated by s. 109 read with Rule 37 (3)Mr. Garg has placed reliance on the decision of this Court in Major Vijay Bhatnagar V. Union of India (1), Major Radha Krishna v. Union of India and ohers (2), Lt. Col. Har Mohinder Kumar Chawla v. Union of India and Ors. (3) and also on the decision of the Delhi High Court in S. D. Sharma V. Union of India (4) in support of his plea that the procedural violation of the various Rules referred to hereinabove, vitiates the proceedings of G. C. M. Mr. Garg has placed reliance on the decision of the Supreme Court in Menaka Gandhi V. Union of India (5), Prithvipal Singh V. Union of India (6), Chief of Army Staff V. Major Dharam Pal (7) and Prithvi Pal Singh V. Union of India (8 ). Mr. R. M. Lodha learned counsel for the respondents has strenuously urged that this Court shall not adjudicate on the merits of the disputes between the parties at this stage. According to Mr. Lodha, no final order has been passed and no final verdict in the G. C. M. proceedings has been given. After conclusion of the G. C. M. proceedings, the petitioner is free to submit a petition u/s 165 before the confirmation of order passed by the G. C. M. He has also a remedy to file a petition for annulmant of the proceedings u/s 165 of the Act. By placing reliance on the decisions of this Court in Sepoy Devidutt V. Union of India & ors. (9) and Naik (L/hav) Polimati Mohana Rao and others V. Union of India and 6 Others (10), Chief of Army Staff V. Major Dharam Pal (supra) as well as unreported decisions of this court in L. R. Bairwa vs. Rajasthan High Court and another (11) and L. R. Bairwa V. Rajasthan High Court and anr. decided on 30. 11. 90 (12), Mr. Lodha argued that the writ petition should be dismissed only on the ground that it is premature. Mr. Lodha urged that although the Court has got jurisdiction to quash orders passed by G. C. M. in view of the special statutes of the Army Personnel, in whose cases the wisdom has enacted Rule 33, the Court will not readily interfere with the proceedings of G. C. M. before the proceedings are finalised and the remedies available to the aggrieved person are exhausted by him. According to Mr. Lodha, the writ petition filed for quashing of the proceedings of G. C. M. is clearly an attempt to circumvent the statutory remedies available to the petitioner. Mr. Lodha then argued that the order of convening G. C. M. was passed by Maj. General Baljit Singh, who has been authorised to convene G. C. M. u/s 109 of the Act in the face of the document Anx. R/3, of the affidavit of Major General Baljit Singh himself, it cannot be said that the order was not passed by a competent authority for convening of G. C. M. On the procedural aspect Mr. Lodha submitted that the various provisions of Rules have been violated. In respect of Rules 22 to 24 he argued that the provisions are not mandatory and even if there has been any omission that cannot afford a ground for challenging the proceedings of G. C. M. He has referred to the recent decision of the Supreme Court in Major Gen. C. S. Sodhi vs. the Union of India (13 ).
(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. " In Sepoy Devidutt V. Union of India and ors. (supra) and in Naik (L/hav) Polimati Mohana Rao & 10 others V. Union of India & 6 others (supra), two Division Benches of the Court have categorically held that the Court will not investigate into the merits of the G. C. M. proceedings because remedy is available to the aggrieved person u/s 164 of the Army Act. In the second case it has specifically been held that if any finding is recorded by GCM against the petitioners, they can challenge the finding before Central Government or confirming authority. In view of these authorities, I may now examine as to whether the convening of G. C. M. is without jurisdiction inasmuch as order has not been passed by an authority competent to do so. I have given my serious considerations to the arguments advanced by the learned counsel for the parties and I have gone through the various decisions on which reliance has been placed by either parties. Sec. 109 of the Act reads as under: - "109 Power to convene a General Court Martial - A General Court Martial may be convened by the Central Government or the Chief of the Army Staff or by any officer empowered in this behalf by warrant of the Chief of the Army Staff. " ;