JUDGMENT
K. Ramamoorthy, J.
1. The writ petitioner has challenged the proceedings initiated against him by issuing chargesheet dated 24.06.1997 and also prayed for a mandamus against the respondents for not taking any steps. In view of the fact that the petitioner will have the right to defend himself before the authorities, I do not want to go into the rival contention elaborately argued before me and I do not want to give any finding one way or the other on the merits of the case. The learned Senior Counsel Mr. Madan Lokur on behalf of the petitioner put forth broadly the following submissions:
i) The first submission is that the Rule 180 of the Army Rules is mandatory and that was not complied with and the non-compliance had completely vitiated the entire proceedings and there was no material on the basis of which the chargesheet could be issued by the authority,
ii) The second submission is that the Commanding Officer had given the finding that he referred to page 6 of the reply affidavit filed by the petitioner on 03.12.1997 and the learned Senior Counsel referred to the opinion of the Lt.Col. Deol and Col.A.K. Malhotra.
iii) The third submission is that the proceedings initiated were illegal and mala fide;
iv) The fourth submission is that the Respondents had violated the Army Rules 22 to 24 and
v) The fifth submission is that there was discrepency in the chargesheet ;issued in July 1995 and the present chargesheet.
2. The learned Senior counsel also touched upon the objection raised by the respondents which are in four number. The first submission is that there is no territorial jurisdiction; the second submission is that the the petitioner has alternative remedy; the third submission that the petitioner has approached the Allahabad High Court and withdrew the writ petition filed in the Allahabad High Court on 26.11.1995 and the fourth submission is that the respondents have now stated they will follow the Rule 180 of the Army Rules.
3. I have gone through the records and the learned Senior Counsel citied number of authorities to establish his case against the illegal and mala fide of the respondents.
4. The learned counsel appearing for the respondents submitted that after the Court of Inquiry dated 30.03.1993 conveying order and thereafter summary of evidence was recorded and on 19.1.0.1995 the DIG recommended action to he taken against the
petitioner and on the basis of the materials available on record, chargesheet was is
sued and whatever the discrepency in the chargesheet issued earlier and the present
chargesheet that would not affect the validity of the chargesheet issued by the respondents. :
5. Learned counsel for the respondent referred to number of authorities which would throw light on the scope of Court of Inquiry and other action taken by the authorities under the Army Act and Army Rules. I am of the view that it is not necessary at this stage to deal with rival contentions and I am of the view that the petitioner has not made out any case for interference at this stage. It shall be open to the petitioner to take all pleas before the Court Martial proceedings and the Court Martial shall give all opportunities to the petitioner to defend his case and thereafter if the findings are against the petitioner it shall be open to the petitioner to challenge the same before the appropriate authority in accordance with law.
6. Accordingly, the CW and CM are dismissed. There shall be no order as to costs.
7. Mr. Madan Lokur, Learned Senior Counsel mentioned and submitted 10 days stay of the order may be granted to enable the petitioner to get legal advice. Major A.K. Vashisht opposes the request on the facts and circumstances of the case. I am of the view that no prejudice will be caused to any one if order of arrest is stayed for a period of 10 days. Accordingly there shall be a stay of arrest of the petitioner for a period of 10 days from today. Dasti.