The main legal point established in the judgment is that in matters falling within the jurisdiction of the Armed Forces Tribunal, a petition under Article 226 of the Constitution of India may not be maintainable.

ORDER : – The present petition is filed under Article 226 of the Constitution of India challenging the Annexure P/7 convening order/Court of inquiry dated 1-2-2022 passed by the respondent Nos. 2 and 3.

2. Contention of the learned counsel for the petitioner is that the said order is beyond jurisdiction and contrary to the section 19, 70, 121, 122, 180 of the Arms Act, 1950 as well as all the judgment of the Apex Court in the case of Union of India and ors. vs. Harjeet Singh Sandhu, reported in (2001) 5 SCC 593.

3. Learned counsel for the petitioner submits that the Court of inquiry is proposed to investigate and conclude the evidence in relation to the allegation which relates to the civil offence in which the petitioner has already been acquitted by the competent authority (criminal Court), and therefore, the aforesaid convening order amounts to reopening/re-initiating the proceedings which has already been done in the form of one man inquiry.

4. The aforesaid order is further contrary to the provisions of section 121 of the Arms Act and the settled preposition that if the officer tried by a criminal Court and acquitted then pronouncement of judicial verdict excluded any independent disciplinary action being taken against the delinquent officer on the same facts.

5. Learned counsel for the respondents raises preliminary objection regarding a maintainability of the writ petition. He submits that the petitioner has an alternative and efficacious remedy of approaching the Armed Forces Tribunal under the provisions of Armed Forces Tribunal Act, 2007 (hereinafter referred as “Act, 2007”). He also submitted that the petition is premature petition as the petitioner has challenged the convening order which is nothing but a kind of fact finding inquiry. The petitioner has remedy under section 14 of the Act, 2007.

6. This Court while issuing notices on 2-3-2022 passed the interim order that the final opinion in the matter may not be given. Learned counsel for the respondents submitted that the inquiry pursuant to the impugned communication Annexure P/7 has already been concluded and only final opinion was not given in view of the interim order passed by this Court.

7. I have heard learned counsel for the parties on the question of maintainability of the petition under Article 226 of the Constitution of India.

8. Learned counsel for the petitioner vehemently argued that since the impugned order passed by the respondents convening Court of inquiry is beyond jurisdiction and is in violation of section 70, 121, 122 of the Arms Act, 1950, therefore, the petition is maintainable and there is no bar in exercising powers under Article 226 of the Constitution of India. In support of his submissions, he referred the judgment passed by the Apex Court in the case of M/s Magadh Sugar and Energy Ltd. vs. State of Bihar and ors., reported in Civil Appeal No. 5728/2021. He referred para No. 20 and 22 of the said judgment. He also relied on the judgment of the Apex Court in the case of Harbanslal Sahnia and anr. vs. Indian Oil Corp. Ltd., reported in AIR 2003 SC 2120. He referred para 7 of the said order. He further cited the judgment of the Apex Court in the case of M/s Radha Krishan Industries vs. State of Himachal Pradesh,  passed in Civil Appeal No. 1155/2021. He referred para 60 to 66. He referred the order dated 21-11-2012 passed in W. A. No. 6365/2012 by High Court of Karnataka at Banglore. He placed reliance on certain orders passed by Delhi High Court.

9. On the basis of the aforesaid judgments, he submitted that since the order passed by the respondents is beyond jurisdiction and there is patent violation of the provisions of the Arms Act, therefore, this Court can exercise its writ jurisdiction as the challenge is on the ground for want of authority and jurisdiction which is pure question of law.

10. Learned counsel for the respondent in support of his submissions that the present petition is not maintainable because of the availability of