Sudesh Kumar V. Union of India and Others

WP(C)/1424/2020

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Sudesh Kumar, a former Gunner in the Indian Army, was convicted by a General Court Martial and sentenced to dismissal and 13 years of rigorous imprisonment for crossing into Pakistan and allegedly divulging sensitive information. His conviction and subsequent bail application were initially challenged in the High Court but were transferred to the AFT following its establishment. The AFT rejected his bail application, leading to the current writ petition in the High Court, which was dismissed on the grounds of the availability of an alternative statutory remedy to appeal to the Supreme Court.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 811269 (HC-JAMMU_AND_KASHMIR)
• Appeal Type: Others
• Pronouncement Date: 29-01-2021
• Assessment Year: misc
• Other Referred Cases: Balkrishna Ram v. Union of India and another, L. Chandra Kumar v. Union of India and Others, Whirlpool Corporation v. Registrar of Trademarks, Mumbai and Others, Champalal Binani v. Commissioner of Income Tax, Best Bengal
• Laws Referred To: Army Act, 1950, Official Secret Act, 1923, Armed Forces Tribunal Act, 2007, Cr.P.C.
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: VISHAL SHARMA
• Assessee Lawyers: O P THAKUR; R K S THAKUR
• Keywords: Bail application; Extraordinary jurisdiction; Judicial review; Statutory remedy; Writ petition; Security of the nation
• Section: 69; 63; 30; 3(1)(c); 436-A

Judgement Text

" 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 ‘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. 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 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 *1. 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. *1 (L. Chandra Kumar v, Union of India and Others, (1997) 3 SCC 261). 4 WP (C ) No. 1424 of 2020 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*2. 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). 5 WP (C ) No. 1424 of 2020 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 6 WP (C ) No. 1424 of 2020 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*3. 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 *3 AIR 1970 SC 645 Champalal Binani v. Commissioner of Income Tax, Best Bengal 7 WP (C ) No. 1424 of 2020 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 "