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Judgment
This Court while passing order dated 23.3.2018 in S.B. Civil Writ Petition No.3770/2018, passed the following directions :
(i) This writ petition is transferred to learned Armed Forces Tribunal while exercising the powers under Section 34 of the Armed Forces Tribunal Act,
2007 to be heard at Jodhpur on 9th April, 2018 as per the scheduled sitting.
(ii) Learned DJAG assures this Court that sentence of petitioner no.2Â shall be suspended by the Authorities after imposing stringent terms and
conditions in accordance with law and it is directed that the assurance shall be complied with in terms of Section 182 of the Army Act, 1950 by the
respondents. This Court wanted the release of the petitioner no.2 within 24 hours, but the Officer informed the Court that General Officer
Commanding is not in town, thus, consideration shall be possible only after his return, therefore, the consideration is directed to be completed on or
before 27.03.2018.
(iii) This Court is constitutionally empowered under Article 226 of the Constitution of India to make any intervention for granting suspension of
sentence to the petitioner and the Court is convinced that such wide powers to adjudicate dispute pertaining to the respondents cannot be curtailed but
have to be utilized with great care and caution in rare circumstance in the subject matter of Armed Forces Tribunal Act, 2007, however, this Court
restrains from passing any direct order to suspend the sentence while exercising the powers under Article 226 of the Constitution of India in light of
the assurance given by the learned DJAG present in person.
(iv) The respondents shall pass orders of application seeking suspension of sentence in accordance with the aforementioned observations while
exercising powers under Section 182 of the Army Act, 1950 on or before 27.03.2018.
(v) This Court believes that the assurance given by the DJAGbefore this Court shall be honoured in right spirit, thus, the present petition is transferred
to Armed Forces Tribunal with a direction to the petitioner to take up all the issues pertaining to his Army service before the Armed Forces Tribunal.
This order shall not prejudice either of the parties when the matter is taken up by the Tribunal.
 (vi). The respondents shall be free to impose whatever conditions and restrictions permitted in law upon petitioner no.2 while exercising powers of
suspending sentence under Section 182 of the Army Act, 1950.
(vii) While taking note of the fact that in the jurisdiction of Armed Forces Tribunal, Jodhpur (Western Rajasthan) there resides a heavy population of
armed forces personnel and nonavailability of the Armed Forces Tribunal for last six months here has caused grave misery to such armed forces
personal, which is contrary to the spirit of legislation of Armed Forces
Tribunal Act, 2007 and the precedent law laid down by the Hon`ble Apex Court to ensure appropriate redressal mechanism for the armed force
personnel, we direct the Defence Secretary of Union of India alongwith all concerned in the Union of India to ensure that there shall be sitting of
Armed Forces Tribunal for minimum two weeks in every month of the Gregorian calendar henceforth at Jodhpur, which is also the Principal Seat of
Rajasthan High Court.â€
In light of these directions, the learned Authoritypassed appropriate orders regarding suspension of sentence of petitioner’s husband on
26.3.2018.
This Court records satisfaction upon the necessary orders being passed by the learned Authority, as mentioned above.
The reason for limited adjudication by this Court under Article 226 of the Constitution of India was low medical category of petitioner’s husband
and lack of consideration of the application for suspension of sentence of one year’s rigorous imprisonment. This Court was extremely concerned
that the petitioner had been virtually rendered remedyless due to non-availability of Armed Forces Tribunal for last six months at Jodhpur. This
Court has already directed Defence Secretary to ensure sitting of Armed Forces Tribunal at Jodhpur as there is good number of armed forces
personnel in Jodhpur and its surrounding areas. Condition (vii) of para-38 pertains to the said direction. Since learned Armed Force Tribunal is
sitting today, this Court does not find any reason to keep the proceedings pending before it any long, hence, Registry of Hon’ble High Court is
directed to ensure that the record of case is transferred to learned Armed Forces Tribunal, Circuit Bench, Jodhpur today itself. The Deputy Registrar
(Judl.) of this Court shall ensure that complete record is handed-over to concerned staff of learned Armed Forces Tribunal at Jodhpur for further
adjudication of the matter.
It is expected from learned Armed Forces Tribunal, Jodhpur that the matter shall be heard at an earliest possible date. We further take note of
the fact that the order of suspension of sentence passed by the learned Authority dated 26.3.2018 carries following observation :
“(a) The sentence of one year of rigorous imprisonment awarded to the above named convict is hereby suspended with immediate effect till 1700h
on 09 April, 2018 only by which time the said convict may have either obtained a bail from the Hon’ble Armed Forces Tribunal, Jodhpur or any
other such relief in his favour. In case the convict fails to get any such order in his favour, he shall be required to surrender to the Army Authorities so
as to be committed back to the Central Jail, Jodhpur for undergoing the balance of the sentence. However, the sentence of ‘Dismissal’ awarded
to the said convict shall remain intact.â€
Thus, it is clear that the learned Authority has exercised its jurisdiction of suspending the sentence uptil 1700 Hours on 09 April, 2018 only vide the
aforesaid order. Since learned Armed Forces Tribunal, Jodhpur is sitting today onwards, therefore, while sending whole matter to learned Armed
Forces Tribunal, we deem it appropriate to direct the respondents that the order dated 26.3.2018 of suspending the sentence shall remain in
currency until learned Armed Forces Tribunal, Jodhpur passes an appropriate order after adjudication on the application seeking suspension of
sentence. It is further made clear that until the learned Armed Forces Tribunal, Jodhpur adjudicates and passes appropriate orders on suspension of
sentence granted by the learned Authority vide order dated 26.3.2018 the same shall remain in currency. Further, the order passed by
Superintendent, Central Jail, Jodhpur dated 06.4.2018 to the extent of requiring petitioner’s husband to surrender after availing sentence
suspension shall remain stayed till appropriate orders are passed by the learned Armed Forces Tribunal regarding the sentence.
With the aforesaid observations, the application is disposed of.