1. Allowed, subject to just exceptions and as per extant rules.

2. The application is disposed of.

3. The petitioner, an Ex-Major of the respondents Indian Army, has filed this petition, seeking (i) declaration that the incarceration of the petitioner, for a duration of 42 days, even without the finding of the General Court Martial (GCM) being confirmed, was illegal, unwarranted and otiose and bad in law; and, (ii) mandamus, directing the respondents Union of India, The Chief of Army Staff and General Officer, Commanding-in-Chief, W.P.(C) 7926/2020 Page 1 of 12 Northern Command, to pay an amount of Rs.5,00,000/- to the petitioner, as damages for abrogation and violation of the fundamental rights of the petitioner guaranteed under Article 21 of the Constitution of India.

4. Though the facts as set out in the writ petition are long winded but we are culling out only those facts which are relevant for adjudication of this petition. It is the case of the petitioner, (a) that on the complaint of the estranged wife of the petitioner, disciplinary proceedings were initiated against the petitioner and the petitioner was tried by Summary General Court Martial (SGCM) and arraigned for three charges i.e. First Charge-- under Section 45 of the Army Act, 1950, of inspite of being an officer, behaving in a manner unbecoming of his position and the character expected of him (in that, despite being a serving married officer, indulging in an illicit relationship with Major Rubina Kaur Keer, a serving woman officer); Second Charge--under Section 45 of the Army Act, of inspite of being an officer, behaving in a manner unbecoming of his position and the character expected of him (in getting himself videographed in sexually explicit act with Major Rubina Kaur Keer, a serving woman officer); Third Charge-- under Section 69 of the Army Act, of committing a civil offence, that is to say, criminal intimidation, contrary to Section 506 of the Ranbir Penal Code (in threatening Major Rupa Saxena, a witness for the prosecution and another serving officer, with injury to her reputation by sending messages through Short Message Service (SMS) to her from his mobile number 7708406854, with intent to cause alarm to her); (b) that the SGCM, on 3rd January, 2020, found the petitioner guilty of all the three charges and sentenced the petitioner to suffer rigorous imprisonment for three months W.P.(C) 7926/2020 Page 2 of 12 and to be cashiered from service; (c) that the petitioner was then immediately placed under close arrest; (d) that the petitioner filed OA No.151/2020 before the Armed Forces Tribunal (AFT) impugning the order dated 3rd January, 2020 and seeking suspension of sentence, along with a separate application seeking enlargement on bail; (e) that the AFT vide its order dated 6th February, 2020 directed the petitioner to be released on bail but did not suspend the sentence of the petitioner; (f) that in pursuance to the order aforesaid of the AFT, the petitioner was released from military custody with effect from 14th February, 2020; (g) that the petitioner filed W.P.(C) No.1921/2020 before this Court and vide order wherein, the finding and sentence of the SGCM were directed to be decided by the Confirming Authority in a stipulated time; and, (h) that the Confirming Authority vide its order dated 16th March, 2020 remitted the sentence of the petitioner but otherwise confirmed the findings and sentence of the SGCM.

5. This petition has been filed, contending (i) that before the sentence imposed on the petitioner by the SGCM had been confirmed, the petitioner was immediately placed under close arrest; (ii) that the effect of the order passed by the Confirming Authority makes the pre-confirmation detention of the petitioner otiose, unwarranted and illegal; (iii) that the illegal detention of the petitioner is a gross violation of the Fundamental Right to Liberty of the petitioner guaranteed under Article 21 of the Constitution of India; (iv) that the respondents acted in violation of the rights of the petitioner; (v) that the powers of the respondents are circumscribed by the Army Act and cannot be exercised arbitrarily and in abrogation of the fundamental rights of the citizens of India; (vi) that the respondents acted in violation of Section W.P.(C) 7926/2020 Page 3 of 12 153 of the Army Act which mandates the confirmation of any finding or sentence that has been passed by the General, District or Summary General Court Martial and provides that unless the same has been confirmed, it shall not be deemed to be valid; a necessary corollary of such a provision is that unless a sentence of the Court Martial has been confirmed, it has not attained finality; (vii) that however the petitioner was detained on 3rd January, 2020, even before the Confirming Authority had passed an order confirming the sentence passed against the petitioner; (viii) that such violation of the fundamental rights of the petitioner would have continued if not for the bail granted by the AFT; (ix) that the respondents had no valid or legal ground whatsoever to place the petitioner under close arrest prior to confirmation of his sentence; (x) that there could not have been any apprehension as to the escape of the petitioner, as the petitioner had already approached the AFT against the order of the SGCM, thereby not evading the process of law; (xi) that even after the AFT had granted bail to the petitioner on 6th February, 2020, the petitioner was released only on 14th February, 2020; (xii) that the confirmation order records that the petitioner was put in military prison, after SGCM had passed the sentence and that the same had been done in accordance with the provisions of the Army Act and the Rules but a bare perusal of the Army Act and the Rules would show that the said detention was not warranted; (xiii) that the detention of the petitioner from 3rd January, 2020 to 14th February, 2020 was in clear contravention of Section 153 of the Army Act; (xiv) that the relief of monetary compensation as exemplary damages in proceedings under Article 226 of the Constitution of India is an established mode for protection of infringement of rights guaranteed under Article 21 of the Constitution of India; (xv) that this Court, W.P.(C) 7926/2020 Page 4 of 12 in exercise of powers under Article 226 of the Constitution of India has the power of judicial review in respect of proceedings of court martial as well as the proceedings subsequent thereto, even though to a limited extent; and, (xvi) that this Court, in appropriate cases can grant relief, where there has been denial of the fundamental rights or if the proceedings before the Court Martial suffer from a jurisdictional defect or any other substantive error of law.

6. Being prima facie of the view that by entertaining this petition, this Court would be overlapping its jurisdiction with the jurisdiction of the AFT already informed to have been invoked by the petitioner for impugning the final order/sentence passed against the petitioner, we have heard the counsel for the petitioner as well as the counsel for the respondents Indian Army appearing on advance notice, at length.

7. The counsel for the petitioner has contended that the AFT does not have the jurisdiction of grant of damages for violation of the fundamental rights of the petitioner and which public remedy is available to the petitioner only before this Court. The counsel for the petitioner has drawn our attention to Section 153 of the Army Act as under:

and has vehemently contended that once in accordance therewith, the sentence imposed on the petitioner, is not actionable till confirmed by the Confirming Authority, the sentence could not have been executed by W.P.(C) 7926/2020 Page 5 of 12 incarcerating the petitioner. It is further argued that since the Confirming Authority has remitted the sentence of three months rigorous imprisonment imposed by the SGCM on the petitioner, the incarceration of the petitioner from 3rd January, 2020 to 14th February, 2020 is without authority of law. Reliance is placed on paragraphs 34 and 35 of Nilabati Behera (Smt.) Alias Lalita Behera Vs. State of Orissa (1993) 2 SCC 746 to contend that there is a distinction under the private law remedy i.e. the appeal before the AFT and the public law remedy of compensation for the violation of fundamental rights under Article 226 of the Constitution of India.

8. We have enquired from the counsel for the petitioner, whether not grant by us of the first relief claimed in the petition, of declaration that the incarceration of the petitioner was bad in law, would require us to look into the orders of the SGCM and Confirming Authority and statutory challenge to which orders is pending before the AFT.

9. The counsel for the petitioner has fairly stated that though the first relief claimed in the petition may be overlapping with the jurisdiction invoked of the AFT and may be this Court will not have jurisdiction but the AFT is unable to go into the question of violation of constitutional rights of the petitioner and to award compensation for violation thereof to the petitioner and which can be done only in the public law remedy availed of by the petitioner under Article 226 of the Constitution of India.

10. We have next enquired from the counsel for the petitioner, whether not a finding of award of compensation by us would also be dependent on the finding of the illegality of the incarceration of the petitioner and qua which illegality the counsel for the petitioner has fairly admitted that the W.P.(C) 7926/2020 Page 6 of 12 jurisdiction is of the AFT.

11. The counsel for the petitioner has then contended that the illegality is writ large from the admitted factum of incarceration of the petitioner as evident from the release order of the petitioner, copy of which is filed as annexure P-4 to the petition and from a bare reading of Section 153 of the Army Act.

12. Per contra, the counsel for the respondents has drawn our attention to Regulation 392(l) of the Regulations for the Army and which is as under:

"(l) Where the sentence awarded in the open Court is imprisonment or higher, the accused, if already under close arrest, will remain under close arrest, and if not under close arrest, will be taken into custody, unless the convening or confirming officer or an authority superior to him directs otherwise. Where the sentence announced in open Court is lower in the scale of punishment's than imprisonment, the accused, if under arrest, will normally be released from arrest immediately after the trial without prejudice to re-arrest, provided that--

(i) Where the sentence is or includes forfeiture of seniority of rank or reduction in rank, he shall not, unless the exigencies of the service demand it or unless the confirming authority or an authority superior to the confirming authority so directs, be placed on any duty until the sentence has been promulgated.

(ii) Where the punishment, in the case of an OR, is or includes field punishment, the accused may continue to be kept in custody, if it is necessary for the purpose of carrying out this sentence."

and has contended that the action of the respondents of taking the W.P.(C) 7926/2020 Page 7 of 12 petitioner into custody immediately after promulgation of the sentence by the SGCM is in accordance with the aforesaid Regulation. It is further argued that once the action of the respondents is in accordance with the Regulations aforesaid, the question of violation of any right or fundamental right or constitutional right of the petitioner does not arise.

13. The counsel for the petitioner, faced therewith has contended that the Regulation cited by the counsel for the respondents have no statutory or other force and are obviously contrary to the statute i.e. Section 153 of the Army Act and thus no credence can be given thereto.

14. Major Sonali Tiwari, Officiating Officer-in-Charge, Legal Cell (High Court) of the respondents Indian Army accompanying the counsel for the respondents, has drawn our attention to the preface dated 5th December, 1986 to the Regulations for the Army and which states (i) that the said Regulations were issued under authority of Government of India; (ii) that are in supersession of the "Regulations for the Army in India--Reprint 1945"

15. Major Sonali Tiwari has also drawn our attention to Section 192 of the Army Act, which is as under:

16. Major Sonali Tiwari has also drawn our attention to Section 164(1) of the Army Act to contend that the same provides a remedy against any order passed by any Court Martial, before the Confirming Authority and empowers the Confirming Authority to take such steps as it may consider necessary. It is stated, that the petitioner, if aggrieved from the implementation of the sentence immediately after promulgation of findings and sentence by the SGCM, had remedy before the Confirming Authority but instead approached the AFT.

17. Major Sonali Tiwari has also drawn our attention to Section 15 of the Armed Forces Tribunal Act, 2007, sub-section (1) whereof empowers the AFT to exercise all jurisdiction, power and authority exercisable under the Act in relation to appeal against any order, decision, finding or sentence passed by a Court Martial or any matter connected therewith or incidental thereto and has contended that thereunder, it is the AFT alone which has jurisdiction to go into the grievance as urged by the counsel for the petitioner. She has argued that the arrest of the petitioner on promulgation of the findings and sentence of the SGCM is connected with and/or incidental to the order of the SGCM and the remedy whereagainst before the W.P.(C) 7926/2020 Page 9 of 12 AFT the petitioner has already invoked.

18. It is further the contention of Major Sonali Tiwari that the petitioner is multiplying litigation and is forum hunting. It is stated that the petitioner, besides this petition is pursuing W.P.(C) No.1921/2020 which is stated to be still pending as well as three OAs before the AFT. It is informed that the first OA was preferred when the SGCM was about to be convened, the second OA was preferred after the finding and sentence of the SGCM was announced and the third OA was preferred impugning the entire disciplinary proceedings including the orders of the SGCM and of the Confirming Authority.

19. On enquiry, Major Sonali Tiwari informs that the petitioner, during the SGCM was under open arrest and with effect from 3rd January, 2020 till 14th February, 2020 was under close arrest.

20. The counsel for the petitioner, in response has contended that "the charge of illicit relationship with another officer is not as serious as treason, to warrant the severe sentence of three months rigorous imprisonment which in any case has not been confirmed by the Confirming Authority, as well as of the petitioner being cashiered from the Army". The counsel for the petitioner however states that of the three OAs, two have been withdrawn and only one is pending before the AFT. With respect to W.P.(C) No.1921/2020 of this Court, the counsel for the petitioner states that the same has now become infructuous.

21. We have immediately reacted to the last aforesaid contention of the counsel for the petitioner and have asked him, whether not if no serious view were to be taken of such illicit relationship, the same would play havoc W.P.(C) 7926/2020 Page 10 of 12 with the discipline in the Indian Army, personnel whereof generally live in close proximity to each other, in cantonments or in camps.

22. The counsel for the petitioner though has not responded but has also not withdrawn his aforesaid response.

23. We have considered the contention of the counsels. Though the argument of the close arrest of the petitioner for 42 days, immediately after the promulgation of the sentence by the SGCM and even before confirmation of the said sentence being illegal has merit but at the same time Major Sonali Tiwari also is right in her contention that the said arrest of the petitioner is connected with and/or incidental to the order of the SGCM and the Confirming Authority and challenge whereto made by the petitioner is admittedly pending before the AFT. Any adjudication by us also in exercise of powers vested in this Court under Article 226 of the Constitution of India with respect thereto would have to be necessarily based on findings and conclusions and which may have the potential of conflicting with the findings and conclusions of the AFT with respect to the order. Once it is so, in accordance with the well established Rules of exercise of discretion to entertain or not to entertain a petition under Article 226 of the Constitution of India, even where violation of law or injury is found, it appears apposite to refrain from exercising jurisdiction in the matter.

24. However since Regulation 392(l) supra prima facie appears to be in conflict with Section 153 of the Army Act and has potential of causing mischief in other cases also, though not under challenge in this petition, it is deemed expedient to consider further, whether the same is liable to be struck down vide order in this proceeding, to prevent any further such situations as W.P.(C) 7926/2020 Page 11 of 12 has been presented by the petitioner in this petition.

25. We are also of the prima facie view that as far as the claim of the petitioner for damages for illegal detention is concerned, liberty should be given to the petitioner to, in accordance with law, apply therefor after the challenge before the AFT has attained finality and if thereafter need is felt therefor and to save the period of limitation available to the petitioner therefor by issuing appropriate order in this petition.

26. The counsels are requested to address further on the aforesaid aspects, on 3rd November, 2020.

RAJIV SAHAI ENDLAW, J.

ASHA MENON, J.

OCTOBER 14, 2020 'bs' W.P.(C) 7926/2020 Page 12 of 12