1995 Supreme(Del) 115

High Court Of Delhi
J.S.PUNIA - Appellant
Versus
UNION OF INDIA - Respondent
CRIMINAL APPEAL 209 of 1993
Decided On : 02/01/1995

Headnote:1. Air Force Act, 1950 - Section 107 — Purpose of enquiry under, discussed — Whether minor irregularities will effect the court Martial ?

       2. Air Force Act, 1950 — Court of Inquiry — Nature of proceedings discussed.

       3. Air Force Act, 1950 — Air Force Rules — Rule 22 & 34 — Need to inform delinquent of charge/Charges under Rule, discussed.

       4. Constitution of India - Article 226 — When writ of prohibition and writ of mandamus will issue discussed. — Whether Court will interfere if there is an alternate remedy ? — When Court will interfere in exercise if writ jurisdiction with Court Marital proceedings ?

       In this writ petition the petitioner challenged the inquiry proceedings under the Air Force Act for having abandoned his service by escaping from the hospital. The petitioner also sought a writ of prohibition restraining the convening of a Court Martial. A number of contentions were raised by the petitioner which the court rejected and while dismissing the petition the court

       Held:

       1. A close scrutiny of the provisions of law would reveal that the purpose of the inquiry is two fold; Firstly, it is held with a view to enquiring in respect of the absence of the person who is absent. The second object behind the said inquiry is to find out with regard to the property of the Government which was entrusted to the said person. After the inquiry is complete the Commanding Officer of the Unit shall in the Court Martial Book of the Unit record a declaration. Secondly, if the person does not turn up in that eventuality he would be declared to be a deserter.

       2. Admittedly, the Court Martial is yet to see the light of the day. It has as yet not assembled. Thus it is beyond the (sic) ken of this Court to visualise at this premature stage as to what would be the reaction of the officers presiding over the Court Martial as and when it is held. Thus to contend he lack of valid inquiry as per the provisions of Section 107 of the Air Force Act would render void and ilegal the proceedings of the Court Martial is without any basis whatsoever. It is a well established principle of law that minor irregularities would not affect the proceedings before the Court Martial, which is as yet to be held in the present case.

       3. Proceeding in a Court of inquiry is in the nature of preliminary investigation. The purpose of the same was to make an inquiry with regard to the absence of the petitioner and with regard to the articles which were entrusted to him and were in his custody. The Commanding Officer has got nothing to do with the Court Martial which is subsequently to be held. Thus the holding of the proposed Court Martial cannot be stayed on the said ground.

       4. The petitioner very well knows that he is to be tried for absenting himself without leave. This is the core of the charge. It is further well within the knowledge of the petitioner that he absented himself from the hospital without the permission which is the basis of the charge. Thus, the omission of the words medical treatment is in no way prejudicial to the petitioner and the same cannot form the basis of his contention that the convening of the Court Martial on the basis of the said charge would be bad in law.

       5. All that is required is that the delinquent should be apprised of the charges that he has to answer so that he is not caught unaware and handicapped in preparation of his defense. The main question is one of prejudice but in this case the chargesheet shows that all the details are mentioned and the trial went on and that the petitioner participated in the trial duly.

       6. A writ of prohibition may be issued in the cases enumerated below: —

       (a) when there is usurpation of jurisdiction;

       (b) when the inferior court proceeds in cases wherein it is prohibited by the statute;

       (c) when the inferior court exceeds its jurisdiction; (d) when the inferior courts have no power to act in the way they did;

       (e) when the inferior court commits an error in procedure which is contrary to the general law of the land or it is so vicious as to violate the principles of natural justice.

       7. It is a well established principle of jurisprudence that in case an alternative efficacious remedy is available then the Court will decline to issue a writ and would direct the petitioner to avail of the said remedy at the first instance.

       8. The petitioner in the instant case has raised certain issues such as with regard to the non-compliance with the provisions of Section 107 of the Air Force Act, tampering with the chargesheet, mala fides on the part of the Commanding Officer. All the above points can be gone into during the Court Martial proceedings. In case the contention of the petitioner is accepted and a writ of prohibition is issued as sought for by him in that eventuality it would tantamount to throttling and doing away with the provisions of the Air Force Act which provide for holding and convening of a Court Martial to try an offence alleged to have been committed by an Air Force Officer."

       9. It is a well established principle of law that a High Court can interfere with the proceedings of the Court Martial only in those discerning few cases where it comes to the conclusion that the Court Martial has over stepped its jurisdiction or has acted without jurisdiction. The Courts can also interfere when they come to the conclusion that there is a violation of the principles of natural justice.

       10. A writ of mandamus, it is well established, can be issued in the following cases: —

       1. There must be in the applicant a legal right to compel the opposite party for the performance of the duties.

       2. The said duty must be of a public nature.

       3. It must be mandatory and not discretionary in nature.