Sr. No. 102

HIGH COURT OF JAMMU AND KASHMIR

AT JAMMU

CJ Court

Case: WP (C ) No. 1424 of 2020

(Through Video Conferencing)

Sudesh Kumar

…Petitioner(s)

Through: Mr. O.P.Thakur, Sr. Advocate with

Mr. R.K.S.Thakur, Advocate

v/s

Union of India and Others

…. Respondent(s)

Through: Mr. Vishal Sharma, ASGI

CORAM:

HON’BLE THE CHIEF JUSTICE

HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

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

2 WP (C ) No. 1424 of 2020

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 8the Act9) 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.

3 WP (C ) No. 1424 of 2020

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 v. Union of India and another, AIR 2020 Supreme Court

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