A valid conviction in a military trial, even if unconfirmed, prohibits retrial under the Air Force Act.

1. By this petition under Art.226 of the Constitution, Sqn. Ldr. G. B. Singh seeks a direction that the respondents be asked not to convene a second General Court Martial for his trial on any of the ten charges for which he had already been tried by a general Court Martial on August 1, 1971 and subsequent days :

2. During the period September 1968 to October, 1970 the petitioner was posted as Recruiting Officer at the Airforce Station Kanpur. On August 3, 1971 he was served with a charge sheet in which as many as ten charges were levelled against him. These charges related to his duties as Recruiting Officer at the Air Force Station Kanpur. Subsequently a General Court Martial was convened by the Air Officer Commanding - in - Chief, Maintenance Command Nagpur for trying the petitioner. This Court Martial found the petitioner guilty on first five counts but acquitted him of the remaining five charges. The petitioner was sentenced to be dismissed from service. In usual course the finding and sentence awarded against the petitioner were referred to the Air Officer Commanding - in - Chief Maintenance Command for confirmation as required by S.152 of the Air Force Act. The Air Officer Commanding - in - Chief, however, passed an order reserving the same for confirmation by superior authority and forwarded the proceedings to the Chief of the Air Staff. On 10th Dec. 1971 Chief of the Air Staff passed an order not confirming the findings of sentence awarded by the court Martial. The findings and sentence which were not confirmed by the Chief of the Air Staff together with the order of Chief of Air Staff were promulgated to the petitioner on 17th of January, 1972 as required by R.78 of the Air Force Rules, 1969.

3. After a lapse of about ten months, the petitioner was informed by the Headquarters Maintenance Command that a fresh General Court Martial was being convened to retry him. He then sought clarification as to how and in what circumstances he was going to be tried afresh. By a communication dated June 13, 1972 the petitioner was informed that the findings and sentence of the General Court Martial had not been confirmed as it was found that the proceedings were not in order. Thus, there was no valid order of the Court Martial convicting or acquitting him. Since needs of justice and discipline demanded that he should be retried, the retrial had been ordered under the provisions of Air Force Act, 1950 , in particular in the light of the provisions of S.152 of the Act. The petitioner contends that once he has been convicted and sentenced by a court martial the respondents have no jurisdiction to convene a second General Court Martial for his retrial. He pleads that S.120 of the Air Force Act, bars such a trial and therefore a writ of Mandamus be issued to the respondents directing them not to convene the second General Court Martial.

4. The respondents have raised a preliminary objection to the maintainability of this petition. They contend that the second Court martial is being convened under the orders of the Air Officer Commanding in Chief Maintenance Command, who is stationed at Nagpur outside the jurisdiction of this Court. This Court Martial has been convened at Nagpur Under Art.226 of the Constitution this Court cannot issue a writ to an authority situated outside its territorial jurisdiction.

5. Art.226 (1 - A) of the Constitution of India clearly empowers the High Court to issue a writ against any Government Authority or persons situated or residing outside its territorial jurisdiction provided a part of the cause of action