RAMA JOIS, J. ( 1 ) THE following question of law arises for consideration in this writ petition, presented by an officer of the Indian Air Force. Whether rule 59 (3) of the Air Force rules bars the convening of second court Martial after a special plea of the officer concerned is allowed and the matter is reported back to the Convening authority, if it failed to convene the court Martial forthwith? ( 2 ) THE facts and circumstances of the case in which the above question arises for consideration, are these: The petitioner is a commissioned Officer of the Indian Air force. He has put in more than 1 8 years of service. In February 1987 he was working at chandigarh. On 7-2-1987 one M. P. Singh gave a lecture on non public funds. The audience were the local officers of the Air force. At the end of the lecture, the petitioner posed the following question. Whether the funds raised from letting out a public premises belonging to the defence department could be utilised for running the officers' mess, the expenditure of which is required to be met by the personal funds of the officers'? it appears that Air Officer Commanding c. L. Mago who was among the persons in the audience became angry on the petitioner posing that question and he directed the petitioner to stand up on the Chair, according to the version of the petitioner, and as the petitioner considered that the order was highly humiliating to him, he declined to obey the order. Thereafter, a show cause notice was issued on 7-2-1987. It reads: "1. WHEREAS, you have been on the strength of 3 Base Repair Depot, Air force with effect from 30 Jul 1984. 2 AND WHEREAS, you attended the officers' Lecture on 7 Feb 87 between 1000 hrs to 1045 hours. ( 3 ) AND WHEREAS, you behaved in a disrespectful manner unbecoming of an officer in that you talked back to the Air officer Commanding in an insolent manner. Further, when you were asked by the Air Officer Commanding to stand up beside your seat you did not obey the order and said "i will not obey this order" or words to that effect. ( 4 ) NOW THEREFORE, you are to show cause as to why appropriate disciplinary/ admin action should not be initiated against you for the aforesaid lapse. ( 4 ) NOW THEREFORE, you are to show cause as to why appropriate disciplinary/ admin action should not be initiated against you for the aforesaid lapse. Your reply, if any, to this show cause notice should be submitted, in writing to the Air officer Commanding,"3. B. R. D. A. F. within seven days of the receipt of this notice. If no reply is received within the said period, it will be assumed that you have nothing to urge i'n your defence and action will be taken accordingly. "to the said show-cause notice, the petitioner submitted his reply. In the said reply he stated that as the instruction given by the Air Officer Commanding was intended to humiliate him in the presence of several officers including his juniors, he simply declined to do so and he did not commit any breach of any Rule or regulation. Thereafter, proceedings were held as per Rule 24 of the Air Force Rules 1924 called AFR 24 proceedings. In the said proceedings, a charge was framed against the petitioner, which reads: charge SHEET the accused, Sqn. Ldr. S R. Kohli (12811) AE (M) of CSDO (Dettachment), Bangalore attached to 24 ED Air Force, an officer of the regular Air Force is charged with section 41 (i) a. F. Act 1950. Disobeying in such manner as to show wilful defiance of authority, a lawful command given personally by his superior officer in the execution of his office in that he, at 3 BRD, Air Force on 7 Feb 87 between 1000 hrs to 1045 hrs during an organised officers lecture when asked by Air Commodore CL Mago, AOC, 3 brd, Air Force his superior officer, to stand up beside his seat did not do so in such manner as to show wilful defiance of authority. " in the meanwhile, the petitioner had been attached to Nasik and thereafter to bangalore and subsequently to Allahabad. A court Martial was convened at Allahabad. Before the Court Martial a charge-sheet was served on the petitioner, which reads thus: charge SHEET the accused Sqn. " in the meanwhile, the petitioner had been attached to Nasik and thereafter to bangalore and subsequently to Allahabad. A court Martial was convened at Allahabad. Before the Court Martial a charge-sheet was served on the petitioner, which reads thus: charge SHEET the accused Sqn. Leader SR Kohli (12811 )AE (H) of CSDO Detachment, bangalore, attached to 24 Equipment depot, Air Force, an officer of the regular Air Force, is charged with First charge Sec. 4 1 (I) Air Force Act 1950 disobeying in such manner as to show wilful defiance of authority, a lawful command given personally by his superior officer in the execution of his office in that he at 3 BRD Air Force on 7 Feb 87 during the concluding stages of an organised lecture for officers, when personally ordered by Air Code CL mago (6389) AC (M ). Air Officer commanding 3 BRD AF in his capacity as such officer to stand up and address him properly, did not stand up saying "i will not stand up, why should I do so" or words to that effect. Using insubordinate language to his superior officer in that he. Second charge S. 40 (c) Air Force Act 1950 (Alternative to First Charge) at 3 brd at on 7 Feb 87 during the concluding stages of an organised lecture for officer, when asked by Air Code CL mago (6309) 4e (M), Air Force commanding 3 SRD, AF to stand up and address him properly, said to him "i will not stand up, why should I do so" or words to that effect. Place: 24 ED AF date: 1 2 Sep 87 t. K. Doso, group Captain commanding Officer no. 24, ED Air Force" the petitioner raised a special plea of jurisdiction before the Court Martial, which he was entitled to do under Rule 59 of the rules. The special plea of the petitioner was that the Court Martial had no jurisdiction to inquire into any charge which was different from the charge framed in AFR 24 proceedings. This plea of the petitioner was allowed by the Court Martial and together with its reasons it made a report to the convening authority. The special plea of the petitioner was that the Court Martial had no jurisdiction to inquire into any charge which was different from the charge framed in AFR 24 proceedings. This plea of the petitioner was allowed by the Court Martial and together with its reasons it made a report to the convening authority. It reads:"consideration: The court has carefully considered the objection of the accused to the charges and that the court has no jurisdiction, to try the accused on the two charges as contained in the charge sheet which is 'b-2' in the proceedings. The court has also carefully considered the reply of the prosecutor, rejoinder by the accused and the evidence of Gp Capt TK Bose and Air Cmde NX Mathur and also the address of the accused and the advice given by the Judge Advocate. The accused has objected to the charges on the ground that AFR 24 has not been complied with on these two charges as contained in the charge sheet which is 'b. 2' in the proceedings. Decision: The court in terms of AFR 59 (3) allows the objection of the accused for the reasons as given below: reasons First Charge as contained in b 2 in the proceedings. The Court finds that: (a) The charge framed under Section 4 1 (i) AFA 1950 on which AFR 24 was complied with and the first charge on which trial has been ordered (B 2) is the same and the statement of the offence of the two charges is also the same. (b) The particulars of the charge on which AFR 24 was complied with and the particulars of first charge us contained in 'b 2' of the proceedings differ materially as under: (I) The word "asked" appearing in the charge sheet on which AFR 24 was complied with, has been replaced by the word "ordered" appearing in the charge sheet which is 'b. 2' in the proceedings. (II) The words "to stand up beside his seat did not do so in such manner as to show wilful difiance of authority" appearing in the charge sheet on which afr 24 was complied with have been replaced by the words "to stand up and address him properly, did not stand up. saying 'i will not stand up. why should 1 do so, or "words to that effect" in the chargesheet which is 'b-2' in the proceedings. saying 'i will not stand up. why should 1 do so, or "words to that effect" in the chargesheet which is 'b-2' in the proceedings. Second Charge: The second charge, which is under Section 40 (c), AFA. 1 950, as contained in the' chargesheel which is 'b 2' in the proceedings, is alternative to the first charge and AFR 24 has not been complied with on this charge. Report: The court decides to report to the convening authority and adjourns sine die. The court is opened and the above decision is announced to the accused. Signed at 24 ED. AF this fifth day of december 1987. " immediately after the receipt of the above decision, the petitioner who was in custody was released but a fresh Court martial was not convened. On 8-3-1988 vide Annexures K and L, the petitioner was attached to Madras for continuing the disciplinary proceedings. At this stage, the petitioner presented this petition contending that when the convening authority did not convene a fresh Court Martial immediately after the decision of the Court Martial allowing the special plea of the petitioner, there was no jurisdiction in the convening authority to continue the disciplinary proceedings. This stand of the petitioner is contested by the respondents. It is in* these circumstances, the question set out first arises for consideration. 3. In order to appreciate the contention, it is necessary to set out the provisions of rule 59. It reads: "59. SPECIAL PLEA TO THE jurisdiction: (1) The accused, before pleading to a charge, may offer a special plea to the general jurisdiction of the court; and if he does so, and the court considers that anything stated in such plea shows that the court has no jurisdiction, they shall receive any evidence offered in support, together with any evidence offered by the prosecutor in disproof or qualification thereof, and any address by the accused and reply by the prosecutor in reference thereto. (2) If the court overrule the special plea, they shall proceed with trial. (3) If the court allow the special plea, it shall record its decision and the reasons for it, and report it to the convening authority and adjourn; such decision shall not require any confirmation, and the convening authority shall either forthwith convene another court for the trial of the accused or order the accused to be released. (3) If the court allow the special plea, it shall record its decision and the reasons for it, and report it to the convening authority and adjourn; such decision shall not require any confirmation, and the convening authority shall either forthwith convene another court for the trial of the accused or order the accused to be released. (4) If the court is in doubt as to the validity of the plea, it may refer the matter to the convening authority and may adjourn for that purpose, or may record a special decision with respect to such plea and proceed with the trial. " the learned counsel for the petitioner contended that sub-rule (3) of Rule 59 prescribes the following conditions (I) If the Court Martial allows the spacial plea of the delinquent officer concerned, it should record its reasons and report it to the convening authority and adjourn the matter; (II) Such a decision allowing the special plea does not require confirmation of higher authority; (III) The convening authority has the power to forthwith convene any other Court martial for the trial of the accused; (iv) If the Court Martial is not convened, the Accused has to be released forthwith. 4. The learned counsel submitted that once the special plea is allowed for recorded reasons and it is communicated to the convening authority it has the power to continue the proceedings by convening a new Court Martial provided it does so forthwith, in which event the accused has to face the proceedings and would also continue in custody. But if the convening authority failed to convene the Court martial forthwith, not only the Accused has to be released but the convening authority would also have no power to constitute a court Martial subsequently. ( 5 ) SRI Dharmakumar, the learned counsel for the respondent, however, submitted that the only obligation of the convening Authority in the event of not convening the Court Martial forthwith was to release the accused officer and not that the convening authority had no jurisdiction to convening the Court Martial after a lapse of time. Having, due regard to the language of Rule 59 (3) it appears to me that the construction suggested by the learned counsel for the respondent is correct. Having, due regard to the language of Rule 59 (3) it appears to me that the construction suggested by the learned counsel for the respondent is correct. What the last portion of sub rule (3) of Rule 59 requires is that in the event of the convening authority not convening another Court martial forthwith, the accused should be released. In other words, the power to continue the accused in detention till the completion of the Court Martial would exist if only the Court Martial is convened forthwith and if not the Rule casts a duty to release the accused officer forthwith. The rule which provides that the Accused should be released, if the Court Martial is not convened forthwith, means the Officer has the option to convene a new Court martial forthwith and to continue the officer in detention, but if for any reason he does not convene the Court Martial forthwith, he must release the Accused forthwith. In fact, the rule has been complied within this case, in that as the Court Martial was not convened immediately after the acceptance of the special plea of the petitioner, he has been released. ( 6 ) THE next contention of the petitioner is that in view of the acceptance of the special plea, any Court Martial convened thereafter can go into the charge as formulated in the proceedings under AFR 24 proceedings. This contention of the petitioner is well founded. The very fact that the special plea of the petitioner has been allowed on the ground that the charge in court Martial proceedings were different from the one in AFR 24 Proceedings, is sufficient to hold that the charges which were formulated in the earlier Court Martial cannot be repeated because it would be subject to the same objection of the petitioner, which has already been allowed. Therefore, the only option available to the respondents is to convene a new Court martial to enquire into the charges as formulated in the proceedings under AFR 24. " ( 7 ) THE learned counsel for the petitioner also submitted that the officer who is now the Air Officer Commanding in Chief, HQ maintenance Command, Air Force, Nagpur respondent No. 3, is biased against the petitioner and therefore he cannot function as the convening authority. I do not think that such a question can be gone into in this writ petition. I do not think that such a question can be gone into in this writ petition. The petitioner is at liberty to raise that plea before the said officer or higher officers, if he is so advised. ( 8 ) THERE are two other aspects, in respect of which a mention has to be made. One of the grievance was that the petitioner is stationed at Bangalore; but he was asked to face the enquiry at Madras. The learned counsel for the respondent submitted that if a new Court Martial is convened it would be held in Bangalore. Another grievance of the petitioner has been that he should be given the assistance of defending officer of his choice. The learned counsel for the respondent submitted that the request of the petitioner will be considered in accordance with the Rules. ( 9 ) IN the result, I answer the question set out First, as follows: rule 59 (3) of the Air Force Rules docs not bar the convening of a second Court martial after a special plea of the officer concerned is allowed and the matter is reported back to the Convening authority, if it failed to convene the court Martial forthwith. and make the following order: (i) The writ petition is allowed in part; (ii) A direction shall issue to the respondents that if a new Court martial is convened, the charge in the Court Martial proceedings shall be the same as was the charge formulated in AFR 24 proceedings vide Annexure-F, which is extracted in this order; (iii) The other pleas of the petitioner are left open to be urged before the competent authority. Writ Petition partly allowed. --- *** --- .