N.C.KOCHHAR,J. - (1.) THIS habeas corpus petition under Article 226 of the Constitution of India, has been filed by Colonel SM Mehta (Retired), for quashing his detention.
(2.) THE brief facts are as under - The petitioner had been serving in the Indian Army and was posted at the relevant time at Jaipur. After he retired from the service, certain irregularities were fund against him by the authorities concerned and, as such, a General Court Martial was ordered for trying the petitioner. He was charged for having committed offences punishable under Section 52 and 63 of the Indian Army Act, 1950 (herein -after to be referred as 'the ACT') and was detained after being taken into the custody by virtue of Section 123 of the Act. General Court Martial proceedings were conducted and after the trial, the petitioner was exonerated of the charges in relation to the offences under Section 52 of the Act, but was found guilty of the charge under Section 63 of the Act, and punishment of forfeiture of four years' service for the purposes of pension, was warded to the petitioner vide the order dated 16th March, 1994. The proceedings were submitted by the General Court Martial Authority to the appropriate authorities, for confirmation of the order dated 16th March, 1994, mentioned above. No final decision has so far been taken by the appropriate authority. In spite of the fact that no senesnce of imprisonment had been awarded to the petitioner by the General Court Martial Authority, he continues to be under detention of the Army Authorities. He has thus filed this writ petition before this Court. A caveat was entered on behalf of the respondents and Shri Rafiq, the learned Counsel for the Union of India, has filed a reply to the writ petition. It is not disputed that the petitioner has been exonerated of the charges under Section 52 of the Act and that according to the finding of the General Court Martial, he has been convicted of the offence punishable under Section 63 of the Act, and the penalty proposed is only forfeiture of four years' service for the purposes of pension and no sentence of imprisonment has been proposed.
(3.) SHRI Rafiq, the learned Counsel for the respondents, has contended that in view of Section 153 of the Act, the proceedings of the Court Martial come to an end only after the finding/sentence is confirmed and promulgated by the appropriate authority, who has the power to accept the finding of the General Court Martial or to order revision by re -trial and, as such, it cannot be said that the petitioner has been finally exonerated of the charges concerned. He has contended that if the petitioner is now released, it would not be possible to apprehend the petitioner, if ultimately the findings of the General Court Martial are not approved by the appropriate authority and in revision the retrial is ordered.;