A writ petition is not maintainable when an alternative remedy exists, and jurisdiction is determined by constitutional provisions.

JUDGMENT

1. This application has been filed by the applicant-petitioner for recalling of the order dated 29.09.2021 of this Court whereby the above Criminal Writ Petition filed on behalf of the petitioner was dismissed.

2. The applicant-petitioner by way of above writ petition challenged the General Court Martial (GCM) proceedings conducted against him for the charges under Section 69 of the Army Act, 1950 read with Section 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act, 2012). Wherein he was held guilty of the charges and sentenced to suffer rigorous imprisonment for five years and dismissal from service.

3. After hearing both the sides on the preliminary objections as to maintainability of the petition and jurisdiction of this Court, above writ petition was dismissed vide order dated 29.09.2021 with the finding that the same is not maintainable before this Court for want of territorial jurisdiction and availability of alternative efficacious remedy to the petitioner to challenge the GCM proceedings before the concerned Armed Forces Tribunal. The present application has been filed for recalling of above order dated 29.09.2021 of this Court.

4. Heard learned counsel for the petitioner and perused the material made available on record.

5. Mr. Ved Prakash, learned counsel for the petitioner submits that this Court vide order dated 29.09.2021 has dismissed the writ petition assuming that the petitioner has filed an appeal before he Armed Forces Tribunal, Lucknow, challenging the GCM proceedings on merits before it. But the fact remains that before confirmation of the decision of GCM, the petitioner has filed this criminal writ through his wife before this Court. He has not filed any appeal before any Armed Forces Tribunal including AFT, Lucknow. Only a bail application was filed before the AFT, Lucknow wherein interim bail was granted on sad demise of the petitioner's father and afterwards this interim bail was also withdrawn. The petitioner has challenged the jurisdiction of the GCM to try the offence punishable under the POCSO Act. This issue can only be decided by a Constitutional Court i.e. High Court and the AFT cannot exercise the powers under Article 226 of the Constitution, therefore, the petition should be decided on merits. He further submits that the GCM proceedings against the armed personnel can be conducted anywhere in the country, therefore, on the same analogy, the same can be challenged before any of the High Court in the country. Thus, the writ petition is very well maintainable before this Court and the order dated 29.09.2021 dismissing the writ petition deserves to be recalled.

6. Heard. Considered.

7. This Court in the Order dated 29.09.2021, has categorically held that the Criminal Writ petition is not maintainable before this Court in view of an alternative efficacious remedy available to the petitioner to challenge the GCM proceedings before the concerned Armed Forces Tribunal, wherein he may raise all his objections.

8. This Court has nowhere recorded that the petitioner has filed an appeal before the AFT, Lucknow but the fact remains that the petitioner was in jail pursuant to the GCM proceedings. He filed a petition before AFT, Lucknow seeking bail. The AFT, Lucknow released the petitioner on interim bail. It is clear from the subsequent order of AFT, Lucknow that it was not competent to entertain the bail plea without filing of appropriate appeal and accordingly the interim bail was withdrawn.

9. Though, instead of filing statutory appeal before AFT, Lucknow, the petitioner has filed an application seeking bail but it cannot be disputed in any stretch of imagination that the petitioner has got statutory right to file an appeal before the Armed Forces Tribunal against the GCM proceedings. Therefore, there has not been any error in the finding arrived at by this Court that the writ petition is not maintainable before this Court in view of alternative efficacious remedy available to the