(Through Video Conferencing) vs Union Of India And Others
2021 Latest Caselaw 22 j&K

                                                                    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

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 'the Act') 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.

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 the Act before the Supreme

Court but instead of availing the said statutory remedy, the petitioner has

invoked the writ jurisdiction of this court.

12. No doubt, judicial review is a part of basic structure of the

Constitution of India and the power of judicial review vested in the High Court

and the Supreme Court cannot be taken away by means of any legislation nor

the provisions of any Act can override it so as to curtail the said jurisdiction * .

The said jurisdiction of judicial review however is exercisable having due

regard to the legislative intent of the enactment and when a statutory forum is

created in law for redressal of grievance, a writ petition ought not to be

entertained ignoring the same.

13. It is trite to mention that High Court do not ordinarily entertains a

writ petition under Article 226 of the Constitution of India if an effective

alternative remedy is available to the aggrieved person or if the statute itself

provides for a mechanism for redressal of the grievance.

* (L. Chandra Kumar v, Union of India and Others, (1997) 3 SCC 261).

14. It is also well settled that alternative remedy does not act as an

absolute bar for entertaining a writ petition where the vires of any statutory

provision is under challenge or the order impugned is completely without

jurisdiction or has been passed in clear violation of the principles of natural

justice* .

15. None of the above exceptions are attracted in the instant case so as

to permit us to exercise extra ordinary jurisdiction more particularly, in a case

where statutory remedy is/was available to the petitioner.

16. In Balkrishna Ram (Supra), cited on behalf of the petitioner, it

has been observed as under:

"14. It would be pertinent to add that the principle that the High Court should not exercise its extraordinary writ jurisdiction when an efficacious alternative remedy is available, is a rule of prudence and not a rule of law. The writ courts normally refrain from exercising their extra ordinary power if the petitioner has an alternative efficacious remedy. The existence of such remedy however does not mean that the jurisdiction of the High Court is ousted. At the same time, it is a well settled principle that such jurisdiction should not be exercised when there is an alternative remedy available Union of India v. T. R. Varma AIR 1957 SC

882. The rule of alternative remedy is a rule of discretion and not a rule of jurisdiction. Merely because the Court may not exercise its discretion, is not a ground to hold that it has no jurisdiction. There may be cases where the High Court would be justified in exercising its writ jurisdiction because of some glaring illegality committed by the AFT. One must also remember that the alternative remedy must be efficacious and in case of a Non-

Commissioned Officer (NCO), or a Junior Commissioned Officer (JCO); to expect such a person to approach the Supreme Court in

*2 (Whirlpool Corporation v. Registrar of Trademarks, Mumbai and Others, 1998) 8 SCC 1).

every case may not be justified. It is extremely difficult and beyond the monetary reach of an ordinary litigant to approach the Supreme Court. Therefore, it will be for the High Court to decide in the peculiar facts and circumstances of each case whether it should exercise its extraordinary writ jurisdiction or not. There cannot be a blanket ban on the exercise of such jurisdiction because that would effectively mean that the writ court is denuded of its jurisdiction to entertain such writ petitions which is not the law laid down in L. Chandra Kumar (AIR 1997 SC 1125)."

17. The aforesaid decision simply lays down that judicial review of

any decision is not absolutely prohibited under Article 226/32 of the

Constitution of India but falls short of saying that it can be exercised in every

case or as of right even if there is a statutory remedy available. On the contrary,

it lays down that the same should not be exercised where an efficacious

alternative remedy is available, as a rule of law, but there may be cases of

glaring illegality which may compel the court to exercise the said power.

18. Shri Thakur at this stage to emphasize that it is a case of gross

illegality of rejection of bail, submitted that in view of the various

pronouncements of the Supreme Court that ordinarily under trial prisoners

should be enlarged on bail if they have undergone more than half of the

sentence.

19. The aforesaid dictum of law has been laid down in context with

cases under Cr.P.C. The said principle cannot be applied to cases of conviction

under the Army Act, 1950 and violation of the Official Secrets Act, 1923

relating to involvement of security of the nation as in the case at hand.

20. Section 436-A Cr.P.C inserted with effect from 23.06.2006 do

provides that a person who has undergone detention for a period of extending

up to half of the maximum period of imprisonment shall be released by the

court on his personal bond with or without sureties. However, the aforesaid

provision is applicable where the person has undergone detention during the

period of investigation, inquiry or trial under the Code. In the case at hand, the

petitioner has already been convicted after trial. Moreover, his trial was not

under the Code, rather under the provisions of the Army Act, 1950. Therefore

also, ex-facie, the petitioner may not be entitled for the benefit of release on

bail in accordance with the provisions of Section 436-A Cr.P.C.

21. Shri Thakur has placed reliance upon a Division Bench decision

of this Court dated 4th February 2019 passed in original writ petition no.

148/2019 Major Bobade Avinash Narayanrao vs. Union of India and others,

wherein the sentence imposed upon the petitioner therein was directed to

remain suspended till the final decision by the AFT on his furnishing a

personal bond and a surety. The facts of the said case reveal that the petitioner

therein had been in and out of custody under various orders and his conviction

was pending confirmation whereas in the present case the conviction is final

subject to the decision of the AFT.

22. The Constitution does not place any fetter on the power of the

High Court in exercising writ jurisdiction but leaves it to the discretion of the

court to exercise or not to exercise in the given set of facts and circumstances

viz. the availability of alternate remedy. Thus in exercising the same, the court

has to balance the competing interest keeping in mind the interest of justice,

public interest and the interest of the security of the nation. The extra-ordinary

discretionary power cannot be exercised merely because it is lawful to do so* .

23. In view of the above discussion, a writ petition assailing the order

impugned may be maintainable, nonetheless, the Court is not bound to exercise

* AIR 1970 SC 645 Champalal Binani v. Commissioner of Income Tax, Best Bengal

its extra ordinary jurisdiction in every case, more particularly, in the facts of

the present case where the security of the nation is involved. It has to be

remembered that exercise of extra ordinary jurisdiction is a discretionary

jurisdiction and the petitioner cannot claim it as a matter of right. The statutory

remedy of appeal under Section 30 of the Act is not an illusory remedy rather

is an efficacious one. The petitioner is not a person within the meaning of „little

Indian‟ who cannot avail the said remedy. He has not pleaded his financial

status or disclosed any reason why he is unable to approach the Supreme Court.

24. In view of the above, we do not deem it to be a fit case where the

court should be compelled to exercise its discretionary power when a clear

statutory remedy is/was available to the petitioner and dismiss the petition on

the ground of alternative statutory remedy with the hope and trust that the AFT

will do its best to expedite the final disposal of the petitioner's case pending

before it.

                    (RAJNESH OSWAL)                          (PANKAJ MITHAL)
                              JUDGE                            CHIEF JUSTICE
Jammu
29.01.2021
Tilak
                          Whether the order is speaking?     Yes
                          Whether the order is reportable?   Yes