The main legal point established in the judgment is that the availability of a statutory remedy of appeal to a higher court is a relevant factor in determining the maintainability of a writ petition, and the power of judicial review should be exercised having due regard to the legislative intent and the availability of an alternative remedy.

ORDER :

1. Heard Shri O.P. Thakur, Senior counsel assisted by Shri R.K.S. Thakur learned counsel for the petitioner and Shri Vishal Sharma, learned Assistant Solicitor General of India for the respondents.

2. The petitioner has preferred this writ petition challenging the Judgment and order dated 02.05.2019 passed by the Armed Forces Tribunal Regional Bench Srinagar, at Jammu in T.A. 42/2017 (Previously SWP No. 1144/2011) rejecting the Bail Application of the petitioner.

3. Shri Vishal Sharma, at the very outset took a preliminary objection that the petitioner has a statutory remedy of appeal against the aforesaid order and therefore the writ petition is not maintainable and is not liable to be entertained.

4. The facts of the case reveal that the petitioner was appointed in the Indian Army as Gunner (Driver Mechanical Transport). He was convicted and sentenced vide order dated 15.01.2011 by the General Court Martial. He was awarded sentence of dismissal from service and to undergo 13 years of rigorous imprisonment for charges under Sections 63 and 69 of the Army Act, 1950 read with Section 3(1)(C) of the Official Secret Act, 1923 on the allegation that as on 03.08.2009, he had crossed over the International Border and went to Pakistan where he allegedly divulged vital information to the Pakistani Intelligence officials.

5. The aforesaid order of the General Court Martial was challenged by the petitioner by filing a writ petition in the High Court which ultimately on the establishment of the Armed Forces Tribunal (AFT for short) was transferred to it.

6. It is in the aforesaid proceedings, the petitioner moved an application on 03.11.2017 for enlarging him on bail on the ground that he has already undergone more than the half of the sentence awarded which has been rejected by the order impugned.

7. Under challenge is the order of the AFT rejecting the bail application of the petitioner by the AFT.

8. Section 30 of the Armed Forces Tribunal Act, 2007 (herein after referred to as ‘the Act’) in clear terms provides that an appeal shall lie to the Supreme Court against the final decision or order of the Tribunal.

9. In view of the above, the petitioner has a statutory remedy of appeal to the Supreme Court available to him against the order impugned which is of the final nature rejecting the bail application. The petitioner has undoubtedly not availed the said remedy and has considered it appropriate to straight away invoke the writ jurisdiction.

10. Shri Thakur on behalf of the petitioner contends that alternate remedy is not an absolute bar in maintaining a writ petition and that in a given case the court has ample jurisdiction to exercise its extra ordinary jurisdiction to avoid miscarriage of justice. He also submitted that it is not always feasible for persons like the petitioner to approach the Supreme Court and as such it is a fit case where in view of the decision of the Apex Court in the case of Balkrishna Ram vs. Union of India and Another, AIR 2020 SC 341, the writ petition ought to be entertained.

11. In the present case, there is no dispute that the order impugned in the writ petition is appealable under Section 30 of the Act before the Supreme Court but instead of availing the said statutory remedy, the petitioner has invoked the writ jurisdiction of this court.

12. No doubt, judicial review is a part of basic structure of the Constitution of India and the power of judicial review vested in the High Court and the Supreme Court cannot be taken away by means of any legislation nor the provisions of any Act can override it so as to curtail the said jurisdiction. [L. Chandra Kumar vs. Union of India and Others, (1997) 3 SCC 261] The said jurisdiction of judicial review however is exercisable having due regard to the legislative intent of the enactment and when a statutory forum is created in law for redressal of grievance, a writ petition ought not to be entertained ignoring the same.

13. It is trite to mention that High Court do not