The non-compliance with the requirements of Rule 15 of the Air Force Act Rules 1950, at the initial stage of the investigation, does not vitiate the trial and conviction of the accused, as the purpose of Rule 15 is to hold a preliminary investigation to ascertain whether a prima facie case exists to justify further detention of the accused in custody, and any error or irregularity at that stage does not affect the jurisdiction of the Court to proceed with the trial.

Hardayal Hardy, J.

( 1 ) THE petitioner S. Sundrarnajan who is under-going a term of imprisonment in Central Jail Kanpur as a result of his conviction by a General Court-martial on charges of criminal mis-appropriation of monies belonging to the Air Force Public Fund Accounts, moved this petition for a writ of habeas corpus under Article 226 of the Constitution and Section 491 Criminal Procedure Code, 1898 through his wife Shrimati Saraswati on the ground that his detention and conviction are illegal.

( 2 ) WHEN Rule nisi was issued by the Motion Bench the petitioner s counsel had cited an unreported decision of the Supreme Court in Som Datt Datta v. Union of India (Writ Petition No. 118 of 1933) decided on September 20, 1968. The case was therefore ordered to be heard by a Full Bench of three Judges. That is how the case was laid before us.

( 3 ) THE petitioner s allegations broadly are that he was working as Senior Accounts Officer at No. 4 Base Repair Depot Air Force, Kanpur since June 1966 under the command of Group Captain A. S. Srivastava. During the course of his employment in the said depot some defalcations came to light whereupon the authorities ordered two Courts of Enquiry to be assembled. The reports submitted by the Courts of Enquiry held Group Captain A. S. Srivastava to be responsible for irregularities in accounts. "however on 15th June, 1968 the petitioner was served with a charge-sheet consisting of 31 charges alleging criminal mis-appropriation of various sums of money totalling Rs. 29. 000 by him.

( 4 ) THE petitioner complains that when he was ordered to appear before the Commanding Officer the charges were merely read over to him and no effective opportunity was given to him to meet those charges. He submits that under sub-rule (a) of Rule 15 of the Air Force Act Rules 1950, it is incumbent on the Commanding Officer to hear the accused in defence of each charge and also to give him full opportunity to cross-examine any witness against him before any further proceedings are taken. But no such opportunity was given to the petitioner ; all that the Commanding Officer did thereafter was to have a Summary of Evidence prepared and to follow it up in due course by the arrangement of the petitioner for trial before a Court-martial.

( 5 ) THE petitioner alleges that he brought this lapse in procedure to the notice of the authorities as soon as the Court-martial was convened and also to the notice of the Court at the commencement of the trial pointing out that the trial could not proceed as the requirement of Rule 15 had not been complied with. The petitioner further alleges that he had also pointed out that in respect of charges 5 and 6 he had not been heard at all. He had also submitted that unless he was tried jointly with Group Captain A. S. Srivastava no justice could be rendered in the case. He however contends that his objections were over-ruled although the Judge-Advocate had clearly directed the members of the Court that if they came to the conclusion that Rule 15 had not been complied with the Court would have no jurisdiction to try the case.

( 6 ) THE petitioner also refers to two other irregularities at the trial; one relates to his alleged confessional statement having been admitted in evidence while the other relates to his defence witness Flt. Lt. S. C. Bhateley having been cross-examined by the Prosecutor although he had been summoned only to prove the records of the Courts of Enquiry.

( 7 ) IN the return to the rule, besides traversing the petitioner s averments on fact, a preliminary objection has been taken to the maintainability of the petition on the ground that the remedy of habeas corpus is not available to a prisoner who is serving a legal sentence passed by a Court martial and that the petitioner s conviction having been properly recorded after a valid trill and confirmation, the matter is entirely within the jurisdiction of the confirming authority and cannot be challenged before this Cou

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