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High Court Of Madhya Pradesh
P. K. Tare, G. L. Oza and H. R. Krishnan, JJ.
SUBHASH CHANDRA SARKAR - Appellant
Versus
UNION OF INDIA - Respondents
Misc. Petn. 6 Of 1969
Decided On : 07/26/1971
The petitioner, a Senior Major in the Army Medical Corps, was charged with disobeying a lawful command of his superior officer under Section 41 of the Army Act, 1950. The charge arose from the petitioner's refusal to attend a Court of Inquiry convened to investigate an incident involving the petitioner and a Captain Cyrus Dalai. The petitioner contended that the order to attend the Court of Inquiry was illegal as it violated Rule 25 of the Army Rules, 1954, which gives officers the right to insist on their presence during the investigation of charges against them. The General Court-Martial convicted the petitioner and imposed a punishment of forfeiture of 18 months of service for purposes of promotion and a severe reprimand. The petitioner challenged the conviction and sentence by way of a writ petition under Articles 226 and 227 of the Constitution of India. The High Court held that the order to attend the Court of Inquiry was lawful and that the petitioner's disobedience of the order constituted an offence under Section 41 of the Army Act. The Court also held that the petitioner had an alternative remedy available under Section 164 of the Army Act and that his failure to exhaust this remedy barred him from seeking relief under Article 226. The Court dismissed the petition.
Fact of the Case:
The petitioner, a Senior Major in the Army Medical Corps, was charged with disobeying a lawful command of his superior officer under Section 41 of the Army Act, 1950. The charge arose from the petitioner's refusal to attend a Court of Inquiry convened to investigate an incident involving the petitioner and a Captain Cyrus Dalai.
Finding of the Court:
The High Court held that the order to attend the Court of Inquiry was lawful and that the petitioner's disobedience of the order constituted an offence under Section 41 of the Army Act. The Court also held that the petitioner had an alternative remedy available under Section 164 of the Army Act and that his failure to exhaust this remedy barred him from seeking relief under Article 226.
Issues: 1. Whether the order to attend the Court of Inquiry was lawful? 2. Whether the petitioner's disobedience of the order constituted an offence under Section 41 of the Army Act? 3. Whether the petitioner had an alternative remedy available under Section 164 of the Army Act? 4. Whether the petitioner's failure to exhaust this remedy barred him from seeking relief under Article 226?
Ratio Decidendi: 1. The Court held that the order to attend the Court of Inquiry was lawful as it did not violate Rule 25 of the Army Rules, 1954. Rule 25 gives officers the right to insist on their presence during the investigation of charges against them, but it does not prohibit the commanding officer from directing an officer to attend the investigation. 2. The Court held that the petitioner's disobedience of the order constituted an offence under Section 41 of the Army Act. Section 41 makes it an offence for a person subject to the Act to disobey any lawful command given by his superior officer. The Court found that the order to attend the Court of Inquiry was a lawful command and that the petitioner's disobedience of the order was wilful and defiant. 3. The Court held that the petitioner had an alternative remedy available under Section 164 of the Army Act. Section 164 provides a mechanism for aggrieved persons to petition against findings or sentences of a Court-Martial. The Court found that the petitioner had not exhausted this remedy and that his failure to do so barred him from seeking relief under Article 226. 4. The Court held that the petitioner's failure to exhaust the alternative remedy available under Section 164 of the Army Act barred him from seeking relief under Article 226. The Court noted that the existence of an alternative remedy is not an absolute bar to the issuance of a writ of certiorari, but that it is a factor to be considered in the exercise of the Court's discretion. The Court found that in the present case, the alternative remedy was adequate and that there were no exceptional circumstances that would justify the Court in exercising its discretion to grant relief under Article 226.
Final Decision: The petition was dismissed.
( 1 ) IN this Writ Petition, which is described as a petition under Articles 226 and 227 of the Constitution of India, two questions are mainly involved. So far as Article 227 of the Constitution of India is concerned, it will be out of the picture. Subclause (4) of Article 227 of the Constitution specifically excludes courts martial from the operation of the Article. It is as follows :--"article 227 (4 ).-- Nothing in this article shall be deemed to confer on a high Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces. " therefore, court-martial can in no sense be considered to be a Tribunal subordinate to the High Court. But the said bar does not find place in Article 226 of the Constitution of India. Therefore, although courts-martial may not be considered to be Tribunals subordinate to the High Court or for the purposes of article 136 of the Constitution of India subordinate to the Supreme Court, they will be amenable to the prerogative jurisdiction of the High Court under Article 226 of the Constitution of India and to the jurisdiction of the Supreme Court under Article 32 of the Constitution of India in the matter of exercise of fundamental rights.
( 2 ) THE instant questions came up for consideration before Sankaran, J. , in Vishnukrishnan namboodiri v. K. N. Kripal, AIR 1952 Trav-Co 7, wherein the learned judge held that ordinarily the Civil Court would have no power to interfere with the administration of military law by the properly constituted Tribunals acting within their jurisdiction. Therefore, the matters which are placed within the jurisdiction of military Tribunals or authorities constituted under the Military law must be determined by such authorities themselves and their decisions cannot be reviewed or set aside by Civil Courts. This principle of the common law has been embodied in Clause (4) of Article 227 of the Constitution of India which deals with the High court's power of superintendence over all Courts and Tribunals within its jurisdiction. However, the general power conferred on the High Court under Article 226 of the Constitution has to be construed subject to the limitation imposed by clause (4) of Article 227. It cannot, however, be said that the High Court has no jurisdiction to relieve against unauthorised or illegal acts of military authorities affecting the fundamental rights of persons in military service. The learned Judge relied on the English cases of R. v. Army Council Ex. P. Ravensdroft, (1917) 2 KB 504, and Heddon v. Evans, (1919) 35 TLR 642. In this connection I might observe that the limitation for the High Court to exerciss prerogative powers under Article 226 of the Constitution would be as laid down by Lord Esher, M. R. and as approved by their Lordships of the Supreme Court in Ebrahim Aboobakar v. Custodian General of Evacuee Property, AIR 1952 SC 319, to the following effect :-
"when an inferior Court or Tribunal or body which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give that Tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such Tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things but not otherwise. There it is not for them conclusively to decide whether that state of facts exists and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. 'but there is another state of things which may exist. The legislature may entrust the Tribunal or body with a jurisdiction which includes the jurisdiction, to determine whether the preliminary state of facts exists, as well as the jurisdiction,' on finding that it does exist, to proceed further or do something more. When the legislature are establishing such a Tribunal or body with
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