The central legal point established in the judgment is that the provisions of Rule 51 of the Army Rules, 1954, regarding the release of an accused when a special plea to the jurisdiction is accepted, must be adhered to by the convening authorities.

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 Keeping in view such statement made by the respondents, the writ petition was withdrawn with a liberty to file a fresh one.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. 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 th