P.S.Gill, Ex.Capt. vs Chandigarh Administration

H.S. Bedi, J.

The petitioner Ex. Capt. P.S. Gill, who stands convicted by a Court Martial and is presently undergoing sentence in the Burail Jail, Chandigarh, by this petition, challenges Annexures P.6 and P.7 vide which the Army Authorities had refused to grant parole to the petitioner on the ground that he was undergoing imprisonment in civil jail and there was no provisions of law by which he could be released by the Army authorities. The petitioner has also averred in para 14 of the petition that a similar request made to the U.T. Administration was declined on the ground that as the petitioner had been convicted by the Court Martial, the civil authorities had no jurisdiction to release him. Aggrieved by the aforesaid contradictory stand the present petition has been filed seeking a direction from this court.

This case was adjourned time and again on the request of the counsel for the respondent, but no reply has been filed so far. As the petitioner seeks release on ground of emergency, I deem it proper that the matter be disposed of.

Mr. D.S. Rajput, learned counsel for the petitioner has relied upon sections 123(3) and 179(D) of the Army Act, 1950, which read as under :

"123. Liability of offender who ceases to be subject to Act :

xxx xxx xxx

(3) When a person subject to this Act is sentenced by a court martial to transportation or imprisonment, this Act shall apply to him during the terms of his sentence, though he is cashiered or dismissed from the regular Army, or has otherwise ceased to be subject to this Act and he may be kept, removed, imprisoned and punished as if he continued to be subject to this Act."

"179. Pardon and remission :

When any person subject to this Act has been convicted by a courtmartial of any offence, the Central Government or the Chief of the Army Staff or, in the case of a sentence, which he could have confirmed of which did not require confirmation, the officer commanding the army corps, division or independent brigate in which such person at the time of conviction was serving, or the prescribed officer may (a) to (c) xxx xxx xxx

(d) either with or without conditions which the person sentenced accepts, release the person on parole."

A reading of the aforesaid sections indicate that parole can be granted by the authorities mentioned in section 179 to a prisoner, who is subject to the Army Act. Section 123(3) quoted above by operation of law makes a prisoner who has been dismissed from service as a result of Court Martial, subject to the provisions of the Army Act although he had ceased to be as such on dismissal from the Army. It is, therefore, apparent that the opinion rendered in Annexure P.7 that as the petitioner had been handed over to civil police, he could not be released by the Army authorities, is without foundation.

The present petition is accordingly allowed. A direction is issued to the respondents to release the petitioner on parole for a period of four weeks to the satisfaction of the District Magistrate, Chandigarh.