DINESH MAHESHWARI J. - (1.) BY way of this intra-court appeal, the appellant seeks to question the order dated 31.05.2012 whereby the learned Single Judge of this Court has dismissed the writ petition filed by him (CWP No.3799/2012) questioning the re-convened Court Martial proceedings.
(2.) THE relevant facts and background aspects of the matter are as follows: On 09.09.2005, a complaint was lodged by one Manaram Choudhary with the Superintendent of Police, Central Bureau of Investigation, Jodhpur alleging demand of gratification by one Havaldar Satyaveer Singh for settling family pension claim. During the course of investigation, the appellant (then holding the rank of Major) was also included in the matter as an accused. Then, an application was moved by the General Officer Commanding, Uttar Bharat Area, Bareilly (U.P.) before the CBI Court, Jodhpur for handing over the case of the appellant and the said Havaldar Satyaveer Singh for trial under the Army Act, 1950. This application was accepted by the Special Judge, CBI, Jodhpur by the order dated 23.01.2007; and the case was handed over, as prayed. It appears that until passing of the said order dated 23.01.2007, the appellant had not been apprehended nor did he appear before the Court. It appears further that the appellant was tried and convicted by General Court Martial held from 17.07.2008 to 12.02.2009; and he was awarded the sentence of cashiering from service and 5 years' rigorous imprisonment in civil jail. Aggrieved, the appellant preferred a writ petition before the Hon'ble High Court of Uttarakhand at Nainital that was transferred to the Lucknow Bench of the Armed Forces Tribunal ('the Tribunal') under the provisions of the Armed Forces Tribunal Act, 2007. The Tribunal, by its order dated 05.10.2010, quashed the conviction recorded and the sentence awarded against the appellant particularly for the reason that the assistance of defence counsel was not provided to him. The Tribunal, however, observed that the appellant could be subjected to re-trial by the General Court Martial. Consequent to the order dated 05.10.2010, a fresh order convening General Court Martial was issued on 29.06.2011 and the Court Martial commenced on 12.07.2011. Though the proceedings in this re-trial were registering progress but, on 09.04.2012, a submission was made by the appellant before the Court Martial that the CBI Court could not have handed over his case under the order dated 23.01.2007 because until then, the investigation had not been completed and he had not been charged. Thereafter, the appellant preferred the writ petition leading to this appeal with the prayer for quashing of the convening order dated 29.06.2011, essentially on the ground that the entire proceedings were wholly without jurisdiction. It was contended before the learned Single Judge of this Court that per Section 475 of the Code of Criminal Procedure, the case of the petitioner-appellant could have been delivered for trial by the Court Martial only after bringing him before the CBI Court and charging him with an offence. It was submitted that the investigation itself having not been completed and the result of the investigation having not been filed, there was no occasion to charge the petitioner- appellant; and hence, handing over of the case by the order dated 23.01.2007 was apparently without jurisdiction. The respondents, however, contended that after handing over of the case by the CBI Court, the petitioner-appellant participated in the General Court Martial that culminated into an order of conviction and sentence that was set aside by the Tribunal; and thereafter, the order for re-convening the Court Martial was issued on 29.06.2011 and the petitioner participated therein too. In essence, it was submitted that substantial proceedings having already taken place, there was no case for interference by the Court under Article 226 of the Constitution of India.
(3.) THE learned Single Judge found no reason to entertain the matter in the writ jurisdiction at the given stage when the re- convened Court Martial proceedings were at the fag end; and when the petitioner failed to raise any such objection at the relevant time and stage before the Courts and authorities, including the Hon'ble Uttrakhand High Court and the Tribunal. The learned Single Judge, therefore, proceeded to reject the writ petition for having been filed at a belated stage but still left it open for the petitioner to agitate all the contentions and grounds, if occasion so arise, in challenge to the final order passed by the General Court Martial. The learned Single Judge observed as under: - "The petitioner, at first instance was subjected to General Court Martial under the order dated 17.6.2008; without raising any objection about handing over of the case to army authorities he participated in entire General Court Martial that resulted into his conviction vide order dated 12.2.2009; no objection in this regard was taken by him even before the Uttarakhand High Court and thereafter before the Armed Forces Tribunal while challenging the order of conviction and sentence. Even subsequent thereto the petitioner did not find it appropriate to raise any grievance about handing over of the case to army authorities and he participated in the reconvened General Court Martial. The proceedings of General Court Martial have substantially travelled and now at the fag end of the freshly convened General Court Martial the petitioner is challenging handing over of the case to army authorities much back in the year 2007. At this belated stage I am not inclined to interfere with the Court Martial proceedings as claimed by the petitioner. The petitioner for writ, therefore, is dismissed. However, the petitioner shall be at liberty to agitate all the contentions and grounds taken in this petition for writ, if any occasion arises for him to challenge the final order passed by the General Court Martial. No order to cost." Seeking to question the order aforesaid, the learned counsel for the petitioner-appellant suggested during the course of arguments that the learned Single Judge has erred in dismissing the writ petition even after recording a finding that handing over of the case to the Court Martial was without jurisdiction. In this regard, the learned counsel has referred to the following sentence, as occurring at page No.1 of the order impugned, in the narration of facts: "Suffice to mention here that till making of the order dated 23.1.2007 neither the petitioner was arrested nor he was produced before the CBI Court". The learned counsel further submitted that the earlier proceedings would not operate as res judicata because the question of jurisdiction could be raised at any stage and even in collateral proceedings. In this regard, the learned counsel has referred to the decision of the Hon'ble Supreme Court in Kiran Singh & Ors. Vs. Chaman Paswan & Ors.: AIR 1954 Supreme Court 340. The learned counsel further submitted that the question of jurisdiction could not have been raised before the Hon'ble Uttrakhand High Court because, it related to the order passed by the CBI Court at Jodhpur. The emphasis of the learned counsel for the petitioner-appellant had been on the submission that as per Section 475 Cr.P.C., the matter can be handed over to the Court Martial only when the concerned person has been brought before the Magistrate and is charged with the offence/s wherefor he is liable to be tried either by the Court or by the Court Martial. The learned counsel has also referred to the decision of the Hon'ble Supreme Court in the case of S.K. Jha Commodre Vs. State of Kerala & Anr.: 2011 STPL (Web) 182 SC and submitted that the petitioner's case could not have been handed over to the Court Martial when the Police had merely stated before the Court that an investigation had commenced. The learned counsel contended that the only option available with the petitioner was to raise the objection before the authority convening the Court Martial and none else could have given a finding on his grievance; and in the given circumstances, he had no option but to approach this Court. The learned counsel further submitted that a fresh cause of action accrued to the appellant upon convening of the Court Martial on 29.06.2011 and hence, his case cannot be said to be suffering from delay and latches. After having given thoughtful consideration to the submissions made, we are unable to find any such error in the order passed by the learned Single Judge as to warrant interference in the intra-court appeal. ;