On advice by the Judge Advocate, the companyrt adjourned the case to February 27, 1987.
Though the respondent has pleaded in the High Court that he had gone with prior permission of the authorities, the same has been denied by the officer companycerned.
He sought for, and the proceedings were adjourned to November 3, 1986, on the ground that his lawyer from Delhi was to companye to Pune for cross examination of the witnesses.
The summary evidence was companysidered and GOC in Command, Southern Command submitted his report on February 2, 1987.
The trial by the Court martial was, therefore, held to be illegal and accordingly writ was issued.
On perusal of the report, it was found that the respondent should be tried for the offence.
The Controller General of Defence Accounts in special audit on the local purchases sanctioned by the respondent prima facie found that respondent had derelicted his duty and action under the Act was initiated against him.
Warrant was issued for his arrest.
On January 3, 1987, the recording of summary evidence against the respondent was companycluded.
2130 hours on the said day.
On September 22, 1986, the respondent was issued a chargesheet and recording of the summary evidence companymenced on September 25, 1986.
The writ petition was dismissed by this Court on December 18, 1986 against which he filed special leave petition.
On August 30, 1986, action was initiated against the respondent under Section 123 of the Army Act, 1950 for short, the Act.
At that time, the respondent was attached to College of Military Engineering, Pune and was promoted as Major General.
Due to number availment of the opportunity given to the respondent to cross examine the witnesses between November 20, 1986 and December 8, 1986, the case was closed for prosecution on November 20, 1986.
The High Court has recorded, as a fact, that the respondent had absconded himself.
On February 26, 1987 when it again assembled, the GCM was informed by the prosecutor that despite their diligent steps taken to have the accused traced and produced before the companyrt they were unable to do that and a request for adjourning the proceedings to the next day was made and the defence companynsel also had expressed his inability to know the whereabouts of the respondent.
The respondent sought 14 days time to prepare his case which was duly allowed.
Pursuant thereto, general Court martial for short, GCM was ordered on February 24, 1987 the GCM assembled to try the respondent on February 25, 1987.
The respondent had sought permission to go to Delhi in companynection with his writ petition which was granted between December 16 and 18, 1986.
Calling in question this order, this appeal has been filed.
However, the respondent did number give list of his defence witnesses till November 30, 1986.
The respondent filed habeas companypus petition in this Court under Article 32 of the Constitution on September 26, 1986 and refused to cross examine witnesses examined at preliminary enquiry between October 20 and 25, 1986.
He was kept under open arrest from that date onwards and retired from service on August 31, 1986 as Major General.
On February 25, 1987, the GCM assembled and recorded the proceedings as under Trial of Shri Yadava, Madan Lal formerly IC 5122N Lt.
The special leave petition came to be dismissed by this Court on February 5, 1987.
Similarly, the case was adjourned to February 28, 1987 on which date when it assembled, the proceedings were recorded as under At 1000 h on 28 February 1987, Court re assemble, pursuant to the adjournment present the same members and the Judge Advocate as on 27 February, 1987.
After initiation of the proceedings he was ordered to retire which he had challenged by filing Writ Petition No.3189 of 1986 in the Bombay High Court which stood dismissed on August 29, 1986.
The respondent voluntarily surrendered on March 1, 1987 and was placed under closed arrest w.e.f.
He was directed to be produced on February 26, 1987 but it transpired that the respondent had escaped lawful military custody on the intervening night of February 15 and 16, 1987.
He was kept under open arrest from August 26, 1986 and had escaped from lawful military custody on the intervening night of February 15 and 16, 1987 and voluntarily surrendered on March 1, 1987.
Consequent upon it, on December 26, 1986, the Controller General of Defence Accounts directed the Controller, Defence Accounts, Southern Command to carry out special audit for the period in question.
The Court martial assembled on March 2, 1987 but it appears that the respondent had, in the meanwhile, filed writ petition in the Bombay High Court challenging the jurisdiction of the Court martial to try him.
He sought permission to go to Delhi in companynection with his special leave petition which was granted between January 12 and February 5, 1987.
Southern Command, Pune between December 1, 1982 and July 7, 1985 was in charge of purchase.
It is undisputably clear that the respondent had retired from service on August 31, 1986.
The respondent while working as Major General, Army Ordnance Corps.,
Ramaswamy, J. This appeal on reference to this Bench raises an interesting question of law.
