THE DELHI High Court has asked the Army and the BSF to file their reply regarding a question raised in a case on whether a member of the force is to be arrested soon after sentencing in a court martial or Summary Security Force Court (SSFC), or whether it requires further confirmation from an authority.
“Since the matters concern the liberty of individuals, we are concerned that the liberty should not be curtailed, save by a final order. Prima facie, it appears that the order under the Army Act as well as BSF Act does not attain finality till confirmed/countersigned; before that the term of the punishment of imprisonment cannot be commenced,” the division bench of Justices Rajiv Sahai Endlaw and Asha Menon said in an order.
The bench also said it is deemed apposite to address the question in the petitions pending before it “so that if any corrective steps are required to be taken, the same are taken immediately before anyone else is deprived of liberty”.
The court had earlier noted that Regulation 392(l) “prima facie appears to be in conflict” with Section 153 of Army Act, and said it will consider whether it is liable to be struck down.
The order was passed in a former Major’s plea for declaring his 42-day incarceration earlier this year, without confirmation of the Summary General Court Martial’s finding, as illegal. He has also prayed that the Centre and the Chief of Army Staff and General Officer, Commanding-in-Chief of Northern Command, be ordered to pay him Rs 5 lakh in damages for alleged violation of his fundamental rights.
In January this year, he was found guilty on three counts and sentenced to three months rigorous imprisonment and placed under close arrest on January 3 until February 14. The Confirming Authority in March confirmed the findings but remitted the sentence.
In his petition, the ex-Major has argued that the authorities acted in violation of Section 153 of Army Act, which mandates confirmation of any finding or sentence passed by the General, District or Summary General Court Martial, and provides that unless confirmed, it shall not be deemed to be valid.
The Army argued that it had acted in accordance with the Regulation 392(I), which permits custody soon after sentencing.
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