Lt. Col. Sp. Sharma v. Union of India — 1990 DIGILAW 124 (MAD)

Judgment :- The petitioner, who retired on 31.12.1989, after serving as Lt. Colonel in the Army, prays in this petition, his release on bail, pending, trial before the Court Martial, St.Thomas Mount, Madras, by invoking the inherent powers of this Court under Sec.482, Cr.P.C., read with Secs.437 and 439, Cr.P.C., relating to powers of this Court to grant bail. 2. A short summary of facts leading to the filing of this petition will have to be necessarily narrated. The petitioner at the time of his retirement of Lt. Colonel in Indian Army. He appears to have served in various capacities for over 30years in the Indian Army. From about 1986, the petitioner was the Commandant of the Supply Depot at Fort St. George, Madras-9 and he was in charge of supplying provisions to Indian Army stationed in and around Madras. After the Indian Peace Keeping Force (IPKF) was sent to Colombo, a committee was formed consisting of the petitioner and two others to supervise the purchase and supply of various articles to I.P.K.F. at Colmbo. Some of the items required, had to be purchased locally. On receipt of certain complaints regarding local purchase of tea and phenyl, a Court of Enquiry was ordered by the first respondent (Union of India) in or about March/April, 1988, to investigate the matter. Evidence appears to have been recorded by an officer appointed by the first respondent. Subsequently, the Southern Command ordered a High Power Committee to investigate the same matter against the petitioner and three others. The said Court of Enquiry, examined a number of witnesses, but in view of the stay of proceedings obtained by some of the Officers, except the petitioner, there could be no further progress in the enquiry. 3. However, the first respondent in or about October, 1988, directed the commencement of the enquiry against the petitioner alone which had been stopped about a year ago. The petitioner then filed W.P.No.15661 of 1989 on the file of this Court, to quash the proceedings and in W.M.P.No. 22604 of 1989 prayed for stay of all further proceedings in the said enquiry. The main writ petition was admitted and rule nisi was ordered, but stay of further proceedings was not granted, as prayed for. The petitioner filed W.M.P.No.8 of 1990for directions, to the respondents in the writ petition to permit him to stay with his family inside Fort St. George. The main writ petition was admitted and rule nisi was ordered, but stay of further proceedings was not granted, as prayed for. The petitioner filed W.M.P.No.8 of 1990for directions, to the respondents in the writ petition to permit him to stay with his family inside Fort St. George. This Court passed the following order in W.M.P.No.8 of 1990: “It is considered that in the interest of justice such a result can be granted. The petitioner may take his residence along with the members of his family in his house in “Fort St. George, Madras”. The respondents can take safety measures to secure his presence whenever necessary”. During the pendency of the writ petition on 30.12.1989 the second respondent served on the petitioner an order, placing him under close arrest which, according to the petitioner, would oblige him to stay in the place located by the second respondent and kept virtually as a prisoner. The order served on the petitioner was purported to be under Sec.123 of the Army Act. According to the petitioner, in pursuance of the order dated 30.12.1989 he was kept as a prisoner in a room in the officers mess, Ordnance Depot, Avadi. On 8.1.1990, the petitioner was transferred to the custody of the Officer Commanding, Military Hospital, St. Thomas Mount, the fifth respondent herein. The petitioner was then taken to St. Thomas Mount under armed escort and kept under guard. On 12.1.1990a General Court Martial was constituted and the petitioner was questioned as to whether he was pleading guilty or not guilty to the six charges framed for non-observance of rules in the local purchase of tea and phenyl. It appears that on 13.1.1990 the petitioner was taken to his house in Fort St. George and thereafter kept inside his house with two sentries armed with rifle guarding his house, day and night. The petitioner was not allowed to move out of the house. The outer door of the petitioners house was locked during night and a sentry was made to sleep in the room, where the petitioner usually takes rest, for the night. The petitioner, in view of his arrest and confinement in his house, restricting his movements, was unable to contact his lawyer or any of his friends to facilitate his seeking for help for defending himself in the trial before the General Court Martial, which was adjourned to 29.1.1990 on 12.1.1990. 4. The petitioner, in view of his arrest and confinement in his house, restricting his movements, was unable to contact his lawyer or any of his friends to facilitate his seeking for help for defending himself in the trial before the General Court Martial, which was adjourned to 29.1.1990 on 12.1.1990. 4. Mr.K.Ramaswami, learned counsel appearing for the petitioner contended that the object of Sec.123 of the Army Act was to secure the presence of the petitioner before the General Court Martial, to attend his trial, since he has retired from the Armed Service, which purpose could be achieved, by calling upon the petitioner to execute bonds or offer suitable guarantees for his presence during trial. It was submitted that subjecting the petitioner to humiliating treatment, was totally unnecessary and, therefore, release on bail of the petitioner, pending trial, may have to be directed by this Court. 5. When this petition came up for hearing on 19.1.1990, both the learned counsel were not ready to argue on the question of jurisdiction of this Court, to grant bail to the petitioner, under the provisions of the Code of Criminal Procedure. Therefore, on 19.1.1990, after hearing both the learned counsel, the following order was made: “Without going into the merits of this petition, which will be decided after hearing the arguments of both the counsel on 25.1.1990, at this stage, considering the order passed by S.Ramalingam, J., in W.M.P.No.8 of 1990 in W.P.No.15661 of 1989, that the petitioner may take his residence along with the members of his family in his house in Fort St. George, Madras, and the respondent could take safety measures to secure his presence whenever required, I am of the view that the following directions can be given to the respondents. 1. The respondents shall not interfere with the privacy of the petitioner inside the house, where he is detained. 2. When the petitioner is taken out to consult his lawyer, the petitioner will be permitted to have conference with his lawyer without the interference of the Officer accompanying him, who will position himself at sufficient distance to do his guarding duty, without interfering with the right of the petitioner to consult his legal adviser. 3. The respondents shall not lock the outer door of the house where the petitioner is staying, between 7 a.m., in the morning and 9 p.m. in the night. 3. The respondents shall not lock the outer door of the house where the petitioner is staying, between 7 a.m., in the morning and 9 p.m. in the night. Both parties through their counsel have accepted these conditions which will remain in force till a final decision is referred in this petition. Post on 25.1.1990. Mr.C.Krishnan, learned counsel appearing for the respondents, shall immediately inform the concerned Authorities, to put this order into effect forthwith”. Subsequently arguments were advanced by either counsel and each of them relied upon certain decisions, which will be referred to, at the relevant context. Both the learned counsel have taken me through the relevant provisions of the Army Act and the Army Rules. It is better to look into the provisions of the Act and the Rules before scrutinizing the contentions of the learned counsel, who have divergent submissions to make, on the jurisdiction of this Court to release the petitioner on bail, under provisions of the Code of Criminal Procedure. 6. Sec.101 of the Army Act provides for the custody of offenders. Any person subject to the Army Act charged with an offence may be taken into military custody on the orders of the superior officer. Sec.102 of the Act casts a duty on every Commanding Officer, to take care that a person under his command, when charged with an offence, was not detained in custody for more than forty-eight hours, after the committal of such person into custody was reported to him, without the charge being investigated, unless investigation within that period seemed to him, to be impracticable, having regard to the public service. The case of every person detained in custody beyond forty-eight hours and the reasons therefore, should be reported by the Commanding Officer, to the general or other officers, to whom application would be made to convene a general or district Court martial for the trial of the person charged. However, in reckoning the period of forty-eight hours, Sundays and other public holidays should be excluded. It is also possible for the Central Government to make rules providing for the manner in which and the period for which any person subjected to this Act, could be taken into and detained in military custody, pending the trial by any competent authority, for any offence committed by him. 7. It is also possible for the Central Government to make rules providing for the manner in which and the period for which any person subjected to this Act, could be taken into and detained in military custody, pending the trial by any competent authority, for any offence committed by him. 7. Defence Services Regulation 391 states that any person subject to military law, when charged with an offence punishable under the Army Act, maybe taken into military custody under Sec.101 of the Act, which meants that the offender was placed under arrest. Arrest is stated to be either close arrest or open arrest. When arrest is not described by the authority ordering it, as open arrest, it meants close arrest. Regulation 392 reads that an officer may be placed under arrest by a competent authority, when charged with an offence, but he will not ordinarily be placed under arrest by an authority other than his Commanding Officer, unless the needs of discipline so require, nor will he be kept under arrest unless his Commanding Officer is satisfied, on investigation, that it will be necessary to proceed with the case and report it to the superior authority. Regulation 39(k) provides for the accused being placed under close arrest before the commencement of the Court-martial. During the course of his trial he would remain under close arrest except where the convening officer or an authority superior to him directed otherwise. 8. Regulation 394(c) and (d) deals with close arrest and open arrest. A person under close arrest will be placed under the charge of an escort consisting of another officer, JCO and WO of the same rank, if possible, and will not leave his quarters or tent except to take such exercise, under supervision, as the medical officer considers necessary. An Officer, JCO or WO may, however, if circumstances so require, be placed for custody under the charge of a guard, piquet, patrol, sentry or provost-marshal. 9. A person under open arrest, may take exercise at stated periods and within stated limits, which usually be the precincts of the barracks or camp of his unit; these limits may be enlarged at the discretion of the Officer Commanding on the spot. The said person will not appear in any place of amusement or entertainment or at public assemblies. He will not also appear outside his quarters or tent dress otherwise than in uniform. The said person will not appear in any place of amusement or entertainment or at public assemblies. He will not also appear outside his quarters or tent dress otherwise than in uniform. 10. Sec.123 of the Army Act provides for the military custody and trial of any person for an offence under the Act, committed, while subject to this Act, and who has ceased to be so subject, as if he continued to be so subject, except the limitation that his trial should commence within six months after he had ceased to be subject to this Act. This provision applies to the case of the petitioner. 11. Rule 82 of the Army Rules prescribes continuity of trial and provides for adjournment of Court proceedings. The rule states, that once the Court had assembled and the accused had been arraigned, the Court should continue the trial day to day, in accordance with Rule 81, unless it appeared to the Court that an adjournment was necessary for the ends of justice, or that such continuance was impracticable. 12. Therefore, the Army Act, Rules and Regulations contemplate speedy procedure in trials by Court Martials. The liberty of a subject under the Army Act appears to have been taken note of, while these provisions, were formulated. 13. The Army Regulation 420, deals with duties of certain subjects contemplated therein, while released on bail and awaiting trial by the civil power. It is, therefore, apparent that the concept of bail for a subject governed by the Army Act was in contemplation while the Army Act, the Army Rules and the Regulations were brought into existence. 14. Thiru K.Ramaswami, the learned counsel appearing for the petitioner contended, that the exercise of independent discretion by the Officer Commanding gets restricted under Regulation 392 (k) which provided for the close arrest of the subject, pending trial, unless the convening officer or an authority superior to him directed otherwise. It was also contended that a pre-trial confinement, for an unknown period, deprived the liberty of the petitioner guaranteed under Art.21 of the Constitution of India. It was also contended that a pre-trial confinement, for an unknown period, deprived the liberty of the petitioner guaranteed under Art.21 of the Constitution of India. According to the learned counsel, the Courts have interfered under Art.226 of the Constitution, whenever they felt, that the vigor of military trial should give way and in cases where the Court felt that the procedure adopted by the Court Martial was violative of the principles of natural justice and that in such instances the Army Authorities, were not immune from courts jurisdiction. The learned counsel would further contend that if the Army Act, has no provision for bail, the provisions of the Criminal Procedure Code would come into play and automatically this Court would then have jurisdiction to release the petitioner on bail, pending his trial. He also contended that under the relevant clauses of the Letters Patent Act this Court has jurisdiction to try any case and if that be so, the exercise of powers to grant bail to the petitioner, would fall within that fold. He finally contended that extreme hardship would result to the persons in the army, who are also citizens of India, if it was to be held by this Court, Sec.428, Cr.P.C., would not be applicable to them, to set off the period of detention undergone against the sentence of imprisonment, especially when there is no time limit prescribed in the Army Act for the termination of the trial, though for commencement certain guidelines have been prescribed. 15. Mr.C.Krishnan and Mr.Baladhandapani, learned counsel appearing for the respondents, contended that the offences alleged against the petitioner are under Secs.52(f) and 63 of the Army Act, punishable with imprisonment for ten years or seven years respectively. The Court Martial proceedings had commenced within the time prescribed under Sec.123 of the Army Act and they are bound to be terminated, as provided under Army Rule 82 by holding day to day sittings and, therefore, the contention of the petitioner, that there was no time limit fixed for termination of the trial, would not be justified. It was strenuously contended that the Army Act is a special law to which the Criminal Procedure Code does not apply by virtue of Sec.5 of the Code. It was strenuously contended that the Army Act is a special law to which the Criminal Procedure Code does not apply by virtue of Sec.5 of the Code. It was further contended that the non-extension of the benefit of bail provisions under the Army Act was not discriminatory and was not violative of Arts.14, 19 and 21 in view of Art.33 of the Constitution. The petitioner, according to the learned counsel for the respondents, had not challenged the provisions of the Act and if he had any regard for procedure he has to invoke the powers of this Court under Art.226 of the Constitution and could not circumvent it by approaching the criminal Court for bail, pending trial. It was also contended, that if the petitioner was desirous of relaxation of the conditions of his arrest, he must approach the convening officer of an authority superior to him for relief under Regulation 392(k) and the proper forum cannot by this Court. The intention of the Army Act was to exclude the provisions relating to bail keeping in view the discipline of the armed forces. The learned counsel contended that Art.311 of the Constitution would also not be applicable to the person governed by the Army Act and, therefore, pleading for bail of the petitioner, when it has been deliberately excluded, cannot be sustained. 16. To this argument, Mr.K.Ramaswami, the learned counsel for the petitioner contended that if bail were to be abrogated for army men, it must be specific and cannot be inferential. 17. I have carefully considered the contention put forth by the learned counsel appearing on either side in the light of the provisions of law brought to my notice and the case law placed before me. The decisions of the Supreme Court and the Kerala High Court reported in Prithi Pal Singh v. Union of India Prithi Pal Singh v. Union of India A.I.R. 1982 S.C. 1413 and Satyan v. State Satyan v. State (1979) 1 S.C.R. 393;A.I.R. 1979 S.C. 1675 were relied upon for the proposition that the legislature had made a liberal approach in the matter of granting bail and had shown its disapproval in the matter of keeping an accused person in custody in cases wherein he is ordinarily entitled to bail. The purpose of keeping a person in custody is to ensure his appearance in Court at the time of trial and also for his availability for the purpose of execution of the sentence. Specific reference was made to paragraph 45 of judgment of the apex Court in Prithi Pal Singh v. Union of India Prithi Pal Singh v. Union of India A.I.R. 1982 S.C. 1413 which runs as hereunder: Reluctance of the apex Court more concerned with civil law to interfere with the internal affairs of the Army is likely to create a distorted picture in the minds of the military personnel that persons subject to Army Act are not citizens of India. It is one of the cardinal features of our Constitution that a person by enlisting in or entering armed forces does not cease to be a citizen so as to wholly deprive him of his rights under the Constitution. More so when this Court held in Sunil Batra v. Delhi Administration Sunil Batra v. Delhi Administration 1982 Crl.L.J. 1313 that even prisoners deprived of personal liberty are not wholly denuded of their fundamental rights. In the larger interest of national security and military discipline Parliament in its wisdom may restrict or abrogate such rights in their application to the Armed Forces but this process should not be carried so far as to create a clause of citizens not entitled to the benefits of the liberal spirit of the Constitution. Persons subject to Army Act are citizens of this ancient land having a feeling of belonging to the civilized community governed by the liberty oriented Constitution. Personal Liberty makes for the worth of human being and is a cherished and prized right. Deprivation therefore must be proceeded by an inquiry ensuring fair, just and reasonable procedure and trial by a Judge of unquestioned integrity and wholly unbiased. A marked difference in the procedure for trial of an offence by the Criminal Court and the Court-Martial is apt to generate dissatisfaction arising out of this different treatment. Deprivation therefore must be proceeded by an inquiry ensuring fair, just and reasonable procedure and trial by a Judge of unquestioned integrity and wholly unbiased. A marked difference in the procedure for trial of an offence by the Criminal Court and the Court-Martial is apt to generate dissatisfaction arising out of this different treatment. Even though it is pointed out that the procedure of trial by Court-Martial is almost analogous to the procedure of trial in the ordinary criminal Courts we must recall what Justice William O’Douglas has observed that civil trial is held is an atmosphere conducive to the protection of individual rights while a military trial is marked by the age-old Manifest destiny of retributive justice. Very expression ‘Court-Martial’ generally strikes terror in the heart of the person to be tried by it. And somehow or the other the trial is looked upon with disfavour “Though test for Military Justice”, Time Magazine pp.42 and 43. In Reid v. Covert Reid v. Covert (1957)1 Law. ed. 2d. 1148 Justice Black observed at p.1174 as under: “Courts-martial are typically ad hoc bodies appointed by a military officer from among his subordinates. They have always been subject to varying degrees of “command influence”. In essence, these tribunals are simply executive tribunals whose personnel are in the executive chain of command. Frequently, the members of the Court-martial must look to the appointing officer for promotion, advantageous assignments and efficiency ratings in short, for their future progress in the service. Conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, the members of a Court-martial in the nature of things, do not and cannot have the independence of jurors drawn from the general public or of civilian Judges. Conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, the members of a Court-martial in the nature of things, do not and cannot have the independence of jurors drawn from the general public or of civilian Judges. Absence of even one appeal with power to review evidence, legal formulation, conclusion and adequacy or otherwise of punishment is a glaring lacuna in a country where a counter part civilian convict can prefer appeal after appeal to hierarchy of Courts…” In that case, the Supreme Court was dealing with the non-providing of an appeal or review under the Act, for punishment imposed and held that with the expanding horizons of fair play in action even in administrative decision, the universal declaration of human rights and retributive justice being relegated to the uncivilised days, a time had come when a step was required to be taken for at least one review and it must truly be a judicial review as and by way of appeal to a body composed of non-military personnel or civil and that it must be realised that an appeal from Ceaser to Ceasers wife has been condemned as injudicious and merely a lip sympathy to form. The Kerala case did not deal with the provisions of the Army Act, for it related to grant of bail for offences under the Indian Indian Indian Penal Code. In the Supreme Court case, the observations in paragraph 15 of the judgment, which is extracted hereunder, cannot be over-looked: “Art.33 confers power on the Parliament to determine to what extent any of the rights conferred by Part III shall, in their application to the members of the Armed Forces, be restricted or abrogated so as to ensure the proper discharge of duties and maintenances of discipline amongst them. Art.33 does not obligate that Parliament must specifically adumbrate each fundamental right enshrined in Part III and to specify in the law enacted in exercise of the power conferred by Art.33 the degree of restriction or total abrogation of each right. That would be reading into Art.33 a requirement which it does not enjoin. In fact, after the Constitution came into force, the power to legislate in respect of any item must be referable to an entry in the relevant list. That would be reading into Art.33 a requirement which it does not enjoin. In fact, after the Constitution came into force, the power to legislate in respect of any item must be referable to an entry in the relevant list. Entry 2 in List I, Naval, Military and Air Force and any other Armed Forces of the Union, would enable Parliament to enact the Army Act, and armed with this power the Act was enacted in July, 1950. It has to be enacted by the Parliament subject to the requirements of Part III of the Constitution read with Art.33 which itself forms part of Part III. Therefore, every provision of the Army Act enacted by the Parliament, is in conflict with the fundamental rights conferred by Part III, shall have to be read subject to Art.33 as being enacted with a view to either restricting or abrogating other fundamental rights to the extent of in consistency or repugnancy between Part III of the Constitution and the Army Act…..” The Supreme Court in the said decision referred to its earlier decision in Ram Sarup v. Union of India Ram Sarup v. Union of India A.I.R. 1965 S.C. 247 In A.I.R. 1965 S.C. 247 the Supreme Court while considering the provisions of the Army Act held that the provisions in the Act did not become void, because it affected fundamental rights under Art.III of the Constitution. Reference was made to Art.33 of the Constitution. The Supreme Court held that each and every provision of the Act (Army Act) was a law made by Parliament under Part III of the Constitution, the provision did not, on that account, become void, as it must be taken that the Parliament had thereby in the exercise of its power under Art.33 of the Constitution made the requisite modification to affect the respective fundamental right. 18. In the light of the observations of the Supreme Court, it is apparent that the power to restrict the liberty of a person, subject to the of the Army Act, had been exercised under Art.33 of the Constitution. The restrictions imposed are for the proper discharge of the duties by the Armed Forces and of discipline among them. 19. Therefore, it appears that the system of granting bail as known to civil law cannot be introduced in military law. The restrictions imposed are for the proper discharge of the duties by the Armed Forces and of discipline among them. 19. Therefore, it appears that the system of granting bail as known to civil law cannot be introduced in military law. This cannot be taken to mean that the Court if satisfied, when the provisions of Art.226 are invoked, could not go into the matter of discretion exercised by the Commanding Officer, keeping offenders awaiting trial, in close custody and not in open custody, if it could be established that such procedure not only affected the principles of natural justice, but also was discriminatory and malafide in nature. Sec.4 of the Code of Criminal Procedure deals with trial, of offences under the Indian Indian Indian Penal Code and other laws. This provision makes it clear that all offences under any other law should be investigated, inquired into, tried and dealt with according to the provisions in the Code, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. The Army Act contains provisions for trial of offences and, therefore, Sec.4 of the Code of Criminal Procedure cannot be brought into operation. Sec.5 of the Code of Criminal Procedure reads, that nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law for the time being in force. 20. The Army Act is such a special law to which Criminal Procedure Code does not apply. In the Army Act, the provisions of the Code have not been made applicable, except to a very limited extent The limited extent to which the Code would apply, had been considered by a Division Bench of the Delhi High Court in F. R. Jesuratnam v. Chief of Air Staff F. R. Jesuratnam v. Chief of Air Staff 1976 Crl.L.J. 65 and a Division Bench of this Court in T. S. Ramani v. Superintendent of Prisons T. S. Ramani v. Superintendent of Prisons 1984 Crl.L.J. 892 and therefore, it needs no reiteration. It is apparent that the Army Act is a self-contained Code, prescribing the mode of investigation, trial, sentence, execution etc. It is apparent that the Army Act is a self-contained Code, prescribing the mode of investigation, trial, sentence, execution etc. that is to say, the law regarding procedure to be followed. Therefore, the provisions of the Criminal Procedure Code cannot be made applicable to the subjects, to be dealt with under the Army Act. Art.33 of the Constitution reads as follows: “Parliament may, by law, determine to what extent any of the rights conferred by this part shall, in their application to the members of the Armed Forces or the members of the Forces, charged with the maintenance of the public order, be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them”. The most formidable difficulty for applying the provisions of the Code of Criminal Procedure is Art.33 of the Constitution. As observed by the Supreme Court in A.I.R. 1965 S.C. 247 it must be taken, that in the exercise of its power under Art.33 of the Constitution, the Parliament had made the requisite modification to affect the respective fundamental right. 21. Another Division Bench of this Court in P. P. Chandrasekharan v. Government of India P. P. Chandrasekharan v. Government of India 1977 Crl.L.J. 677 held, that the Navy Act was a special Jaw within the meaning of Sec.5 of the Code of Criminal Procedure and to the sentence awarded by the Court-martial, the benefit of Sec.428 of the Code of Criminal Procedure, would not be available. 22. The Supreme Court in Ranjit Thakur v. Union of India Ranjit Thakur v. Union of India A.I.R. 1987 S.C. 2386 held that the Army Act t and the Rules constituted a self continued Code specifying offences and the procedure for detention, custody and trial of the offenders by the Court-martial. The Supreme Court observed that the procedural safeguards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the summary jurisdiction of the Court-martial and the severity of the consequences that visit the person subject to that jurisdiction. The procedural safeguards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the statute. 23. The procedural safeguards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the statute. 23. That a challenge under Art.226 of the Constitution could be made, when the procedure and the mandatory provision are violated or when the legality on the validity of the sentence awarded is questioned or non-exercise of powers, reasonably and expeditiously was patent cannot be doubted, for Courts are constitutionally obligated to take care of such legitimate grievances. Avtar Singh v. Union of India Avtar Singh v. Union of India 1989 Crl.L.J. 1986 24. That Art.311 of the Constitution of India will not be attracted to the members of the Defence services is the purport of the decision of the Division Bench of this Court in K.Shanmugam v. The Officer, Commanding, Madras K.Shanmugam v. The Officer, Commanding, Madras (1984)1 S.L.R. 108. This decision, though cited by the learned counsel for the respondents, has no bearing to the facts of the present case. 25. It is not doubt true that this Court under the letters patent, shall have ordinary original Criminal jurisdiction within the local limits of its ordinary original civil jurisdiction and also in respect of all such persons beyond such limits, over whom this Court shall have criminal jurisdiction on the date of publication of the Letters Patent. This will not solve the problem in view of Art.33 of the Constitution and the Army Act being a Code in itself. 26. Mr.K.Ramaswami, finally relied on the decision of the Jammu and Kashmir High Court, in C.M.P.No.3290 of 1988 in W.P.No. 1296 of 1988, which had directed that the petitioner therein shall not leave his then place of posting without the permission of his immediate Commanding Officer, in view of the provisions contained in Sec.123 of the Army Act. The interim direction was modified by the Jammu and Kashmir High Court, in that the petitioner therein should not leave Srinagar City, without the permission of the Court and the permission of the Commanding Officer for this purpose was not required to be obtained him. The interim direction was modified by the Jammu and Kashmir High Court, in that the petitioner therein should not leave Srinagar City, without the permission of the Court and the permission of the Commanding Officer for this purpose was not required to be obtained him. Therefore, the learned counsel for the petitioner contended that it will be possible for this Court to direct the respondents not to intrude in his privacy and not to humiliate him as was being done under the guise of close arrest. The Jammu and Kashmir High Court in the exercise of powers under Art.226 of the Constitution issued such directions. Certain directions in favour of the petitioner have been issued by S.Ramalingam, J., in W.M.P.No.8 of 1990 by which the petitioner has been directed to take his residence along with the members of his family in his home in Fort St.George, Madras. The respondents were also permitted to take safety measure to secure his presence whenever necessary. 27. Taking into consideration that the petitioner had retired from service and the Court-martial proceedings had been initiated, the convening officer or any authority superior to him may consider the need to keep the petitioner under close arrest till the disposal of the trial. The authorities cannot overlook that the Army Personnel are also citizens of this country and the offenders awaiting trial could be kept under open arrest and not under close arrest, since exercise of such discretion is permissible under the provisions of the Army Laws. It looks to my mind that open arrest is something like bail as certain conditions. The non-exercise of the discretions or mala fide exercise can be scrutinised by this Court under Art.226 of the Constitution of India. The exercise of power under the provisions of the Criminal Procedure Code be it with reference to bail or invoking of inherent powers is not possible. Sec.482, Cr.P.C., only declares that the inherent powers necessary to do the right and to undo a wrong in the course of administration of justice, have not been taken away or abridged by any of the provisions of the Code. However, this power cannot be invoked in respect of any matter covered by the specific provisions of the Code or when its exercise would be inconsistent with such of those specific provisions. However, this power cannot be invoked in respect of any matter covered by the specific provisions of the Code or when its exercise would be inconsistent with such of those specific provisions. Saving of the inherent powers of this Court, is to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The object is to set right the procedural lacunna, when discovered, so that the ends of justice could be secured. This petition cannot be maintained either under Secs.437 and 439 or 482 of the Code of Criminal Procedure. In that view, this petition is dismissed.