LexCHIEF OF THE ARMY STAFF AND OTHERS versus MAJOR DHARAM PAL KUKRETY
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,· ) • ... .. CHIEF OF THE ARMY STAFF AND OTHERS v. »· MAJOR DHARAM PAL KUKRElY March 21, 1985 [Y.V, CllANDRACHUD, C. J., D.P. MADON, AND RANGANATH MISRA, J.J.} . ,, ~·Constitution of India Article 226-Mairttainab/lity of writ petition at the , .stage Of show cau.Se notice to terminate the services of a service personnel by the Chief of the Army staff when the finding of a court martial even on revision ·. is perverse or ogaist the weight of-evidence on record-Army Act, 1950 sect!oru ·· 18 to 24, .108, 121, 127, 153, 154, 160(1),)91and1he Army Rules 1954 Rules i 14 arid 68 to 71, scope of-Competency of the Chief of the Army Staff to have recourse to Rule 14 of the Army Rules, when the general court martial orlginOl/y ~and on re11ision returned a verdict of '"Not gui/ty''-Principle of double jeopardy -: Aufrefois Acquit applicability-Constitution of India Article 20(2} read rt.'ith ; Army Act, section 121. · · The r~spOndent, a permanent Commissi~ned officer. of the Indian Army holding the . substantive rank of captain and the acting rank of major, as a result of certain incidentS which are alleged to have taken p13.ce on November '5_ a~d 6, 1975 was Ordered to be tried by a general court martial. · Oq March :. 13, · 1976, the court martial announced its finding subject to confirmation, ibe - finding being "'Not guilty of all the charges." The General Officer COminin- "ctiD~ Madhya Pradesh, Bihar and OrissaArea, the third .. appel13:Dt,'~WliCi-Was · : the' Confirming authority, did not confirm the verdict and b)t 0 his order dated : April 3, 1976, sent back.the finding for revision.· :Tue· ·same'- generar cO~rt inartial, therCfore, reassembled on April 14, 1976, and after hearing both sides ·-and taking into consideratiOn the observations made by the third appeltant : in his said ordef dated April 3, 1976, adhered to .its original' view and ·once .iga~ annouDced the finding subject to confifmation, that the resPondent ·was .·'·Not iuilty- of all the charges". ·The third appellant· reserved·· confirmation .::of ihe finding on revision by a superior authority, namCty; the General Officer, ·.'~minanding-in-Chief, Central_ Comm3.n~ Lucknow,.: .the second appeJiaD.t, :.and forwarded the papers to him. ·By his order dated May 2S, ·1976, 'the :A :;JI ".F · second apPellant ·did not confirm the finding on revision Of thC ge.D.eral cciurt· martial. The charges made against the respondent, the finding and the DOD· confirmation thereof were promulgated as required by Rule 71 of the Army ·Rules. Ther~ter, the Chief. of the Anny Staff under Rule 14 · of the Army ~Rules 1954 issued· the impugned. show cause notice dated November 12 1976 4 - stating that the Chief of the Anny Staff had carefully considered . the fa.;ts . of I lH· 7. the 'Case aS also .the respondent's, defenCe at the trial and . being satisfied that a ... ; .. • ·,.' ' . , • E F Ji 416 !lui>Rili.iil co\JR t RJli>oa ts [t9S~j 3 S.C:.lt fresh trial by a court martial for the said offences· was inexpddicnt, he was of the opinion that the respondent's misconduct as disclosed in the proceedina;s rendered his further retention in the service undesirable. and called upon th• respondent to submit his explanation and defence, if any, within twenty-five days of the receipt of the said notice. Along with the said notice copies of abstracts of evidence and the court~n1artial proceedings were forwarded to tbe respondent. The 'respondent, thereupon, filed in the Higli Court of Allahabad a writ petition under Article 226 of the Constitution of India being Civil Miscellaneous Writ No. 84 of 1.976, which was allowed by a Division Bench ef the said High Court. Hence the appeal by special leave. Allowing the appeal, the Court HELD : 1. Where the threat of a prejudicial action is wholly without jurisdictic'>ri, a person cannot be asked to wait for the injury to be ca.used to him before seeking the Court's protection. If, on the other hand, the Chief of the· 'Army Staff had the power in law to issue the said notice, it would not be open to the respondent to approach the court under Article 226 of the Constitution at the stage of notice only and in such an event his writ petition -could be said to be premature. This was, however, not a contention which cOuld have been decided at the threshold until the co,urt had comC to a finding with respect to the jurisdiction of the Chief of the Army Staff to
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