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2007 DIGILAW 702 (GAU)

Haider Ali v. Union of India

2007-10-12

A.P.SUBBA, TINLIANTHANG VAIPHEI

body2007
JUDGMENT A.P. Subba, J. 1. This is an application filed by Smti. Sahar Bano, wife of Md. Haider Ali, No. 194120K, Rfn./GD for release of her husband now allegedly in illegal custody of the respondents during the pendency of the WP (Cri.) No. 180(SH)2007. 2. It is the case of the petitioner that her husband who is serving in Assam Rifles since 1987 was permitted to grow a beard on religious grounds in 1996. However, when he started growing a beard, the respondents issued a show cause notice for growing a beard on 29.3.97 and in the proceedings that were initiated against him, he was dismissed from service on 5.4.97 by a Summary Court Martial on the ground of growing a beard. The order of dismissal was assailed by the petitioner before the Delhi High Court which quashed the impugned dismissal order and also directed the reinstatement of the petitioner with back-wages. A challenge to the order made by the respondents before the Hon'ble Supreme Court in SLP 12386 of 2003 was also dismissed and consequently the petitioner was reinstated in service on 26.2.2004 and was posted in 19 Assam Rifles. 3. It is the further case of the petitioner that on 16.1.2007 her husband was mercilessly beaten by the respondents' officer following which he was admitted in hospital from where he was forcibly taken away to an unknown location on 21.1.2007. The petitioner being apprehensive of the safety and life of her husband filed a habeas corpus petition which was registered as WP (C) No. 135(SH) 2007 before this Court on 19.6.2007 seeking immediate release of her husband. During the Motion stage, the learned Counsel for the respondents made a statement at the Bar that the petitioner's husband was alive and was in their custody in 1st Assam Rifles. Keeping in view such statement made by the respondents, the writ petition was withdrawn with a liberty to file a fresh one. The fresh writ petition so filed by the petitioner is now pending adjudication before this Court. 4. The specific ground taken by the petitioner in the present application is that in the Court Martial convened on 11.8.2007 to try her husband, the petitioner put in appearance along with her counsel and raised a special plea regarding jurisdiction of the Court Martial as provided under Rule 51 of the Army Rules, 1954. 4. The specific ground taken by the petitioner in the present application is that in the Court Martial convened on 11.8.2007 to try her husband, the petitioner put in appearance along with her counsel and raised a special plea regarding jurisdiction of the Court Martial as provided under Rule 51 of the Army Rules, 1954. The plea raised by the petitioner was upheld by the Court Martial and the Court adjourned sine die on 17.8.2007. It is alleged that the convening authority has neither convened another Court Martial forthwith nor has the husband of the petitioner been released in violation of the provisions contained in Rule 51(3) of the Army Rules, 1954. Hence, the husband of the petitioner is entitled to be released. 5. The respondents in their affidavit-in-opposition did not deny the averment that the petitioner's husband was put on trial by convening a Court Martial on 17.8.2007 and that the convening authority accepted the finding of the General Court Martial and had directed de novo hearing of the charge under Rule 22 of the Army Rules. It was also not denied that no fresh Court Martial has been convened as yet nor the husband of the petitioner has been released. However, it was contended that the acceptance of the special plea to the jurisdiction does not tantamount to either dismissal of the charge or condonation thereof. The release of the petitioner's husband would be warranted in terms of Rule 51 of the Army Rules only in case the charges against him are dismissed or they cannot be preceeded with. It was further contended that the petitioner's husband has been justly kept in military custody under Section 101 of the Army Act considering the seriousness of the charges and in view of violent conduct and also in view of persistent allegations of threat or elimination levelled by the petitioner. 6. We have heard Mr. R. Jha, learned Counsel for the petitioner and Mr. S.C. Shyam, learned Counsel for the respondents. 7. It is the submission of the learned Counsel for the petitioner that once the special plea to the jurisdiction taken by the petitioner in the Court Martial was admitted, the respondent-authorities are under an obligation to convene another Court Martial forthwith or order the accused to be released under the provisions of Rule 51 of the Army Rules, 1954. The contention advanced by Mr. The contention advanced by Mr. S.C. Shyam, learned CGC, on the other hand is, that even though Court Martial was not convened forthwith, the accused is not entitled to be released under the provisions quoted above and relied on by the learned Counsel insofar as that provision applies only in case the charges against him are dismissed or they cannot be proceeded with. In the present case, according to learned Counsel, the charges against the petitioner's husband have not been dropped, rather a denovo hearing of the charge under Rule 22 of the Army Rules has been ordered. 8. We have considered the above rival contentions raised by the learned Counsel for the parties in the light of the provisions contained in Rule 51 of the Army Rules, 1954. The Rule referred to by the parties is as follows: 51. 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 it shall receive any evidence offered in support, together with any evidence offered by the prosecutor in disproof or qualification thereof, and, any address by or on behalf of the accused and reply by the prosecutor in reference thereto. (2) If the court overrules the special plea, it shall proceed with the trial. (3) If the court allows 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. 9. A bare reading of the above provision makes it clear that when a special plea to the jurisdiction of the Court made by an accused is accepted, a duty is cast on the convening authorities to convene another Court Martial forthwith or in the alternative to release the accused. 9. A bare reading of the above provision makes it clear that when a special plea to the jurisdiction of the Court made by an accused is accepted, a duty is cast on the convening authorities to convene another Court Martial forthwith or in the alternative to release the accused. Admittedly, the Court Martial adjourned sine die on acceptance of the special plea raised by the accused on 17.8.2007 and yet no fresh Court Martial has been convened till the date of filing of this petition. In the course of hearing, the learned CGC submitted that the fresh Court Martial might have been convened by now. We, however, find ourselves unable to agree that the fresh Court Martial, even if convened after such a long intervening period would amount to compliance of the above provision particularly keeping in view the fact that the word 'forthwith' occurring in the related Rules cannot leave any scope for such inordinate delay in convening a fresh Court Martial for the trial of the accused. In the same way, we also find ourselves not in agreement with the further submission of the learned CGC that the provisions contained in Rule 51 will come into operation only when charges against the accused are dismissed and cannot be proceeded with. 10. Accordingly, it follows that the continued detention of the petitioner's husband by the respondent-authorities without convening any fresh Court Martial even after the special plea to the general jurisdiction raised by him was accepted comes in direct conflict with the provisions referred to above. It is hardly necessary to say that the Army authorities must act in conformity with the provisions of the Army Act, 1950 and the Army Rules, 1954 including administrative instruction issued, if any, in this regard. 11. In the view that we have taken of the matter, it is evident that a case is made out for release of the husband of the petitioner in terms of Rule 51 (3) of the Army Rules, 1954. 12. Accordingly, we direct the respondent-authorities to release Md. Haider Ali, No. 194120K, Rfn./GD from their custody forthwith. It is made clear that there shall be no bar for the respondents to take the petitioner's husband in closed arrest if the respondents convene any other Court Martial for the trial of the accused. Appeal allowed