Delhi High Court
Ex. Capt. Salim Zafar Asaad vs Union Of India (Uoi) And Ors. on 16 March, 2007
Author: T Thakur
Bench: T Thakur, S Aggarwal
ORDER
T.S. Thakur, J.
1. The petitioner was serving in the Indian Army as a Captain. He was posted in 162, Military Hospital at Dinjhan in the Eastern Command in the year 1997. He is alleged to have deserted the military service with effect from 18.05.1997. He has now been apprehended pursuant to an apprehension roll issued by the Army and is presently in military custody attached to 16 Jat Regiment located in Delhi area. He has filed the present writ petition for a mandamus directing the respondents to release the petitioner from the custody and to initiate administrative action in stead in terms of Section 19 of the Army Act read with Rule 14 of the Army Rule.
2. Appearing for the petitioner, Major K. Ramesh, submitted that although there is no case for holding any Court Martial against the petitioner, the petitioner is prepared to face any such proceedings provided he is enlarged on bail subject to such terms and conditions as the court may otherwise stipulate. He further submits that the Court Martial could be directed to be held at a place convenient to the petitioner to enable him to engage a defense counsel of his choice in stead of any such trial being held at the place from where the petitioner is alleged to have deserted.
3. On behalf of the respondent Ms. Jyoti Singh, on the other hand, submitted on instructions from Col. T. Prashad and Col. Indra Sen Singh, that the respondents are willing to shift the venue of the trial from Dinjhan to Guwahati. That statement, in our opinion, takes care of the first part of the petitioner's prayer for shifting the trial to a convenient place. Even in regard to the other prayer, namely release of the petitioner from military custody, Ms. Singh has no objection to the petitioner being enlarged on his furnishing surety to the satisfaction of the Registrar of this Court with appropriate directions to the petitioner to ensure that he faces trial before the Court Martial and does not delay or obstruct the said proceedings.
4. In the circumstance, therefore, and having regard to the fact that the petitioner has been arrested after about 10 years of his alleged desertion from army service and also the fact that the petitioner is a doctor by profession, we are inclined to direct the petitioner's enlargement from military custody subject to the following conditions.
i) The petitioner furnishes bail bonds in a sum ofRs. 50,000/- with two sureties in the like amount from Delhi to the satisfaction of the Registrar of this Court.
ii) The petitioner co-operates with the army authorities and faces the Court Martial proceedings to be held at Guwahati.
iii) The petitioner also obeys the directions issued by the Commanding Officer of 16 Jat Regiment or any officer superior to him in relation to the proposed Court Martial/disciplinary proceedings.
iv) In the event of failure of the petitioner to comply with any one of the above conditions the respondents shall be free to seek appropriate directions from this Court for recall of this order and for permission to take the petitioner back into their custody.
5. The writ petition is disposed of with the above directions.
6. Order dusty under the signatures of Court Master.
