- 1 - HC-KAR NC: 2025:KHC-D:9723-DB WA No. 100339 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4TH DAY OF AUGUST 2025 PRESENT THE HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE AND THE HON'BLE MR. JUSTICE C.M. POONACHA WRIT APPEAL NO. 100339 OF 2022 (S-DIS) BETWEEN: 1. THE UNION OF INDIA, BY ITS SECRETARY, MINISTRY OF DEFENCE, NEW DELHI. 2. THE CHIEF OF ARMY STAFF, ARMY HEADQUARTERS, SENA BHAVAN, NEW DELHI. 3. THE GENERAL COURT MARTIAL, IN RESPECT OF NO.15167255, N GUNNER (DMT), PARAGOUDA PATIL OF 206 SATA BATTERY, BY ITS PRESIDING OFFICER, COLONEL UPPAL KULDEEP SINGH, C/O. 56APO, PIN-926206. …APPELLANTS (BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE) AND: SRI. PARAGOUDA BASANTAGOWDA PATIL, AGED ABOUT 39 YEARS, OCC: EX-SERVICEMAN, R/AT. PANT BALEKUNDRI, TQ: BELAGAVI, DIST: BELAGAVI-590001. …RESPONDENT (BY SRI. VYAS DESAI FOR SRI. JAGADISH PATIL, ADVOCATES) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SETASIDE THE ORDER PASSED BY THE HON’BLE COURT DATED 08.09.2020 PASSED IN W.P.60938 OF 2010 AND DISMISS THE WRIT PETITION BY ALLOWING THE PRESENT WRIT APPEAL IN THE INTEREST OF JUSTICE AND EQUITY. YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD - 2 - HC-KAR NC: 2025:KHC-D:9723-DB WA No. 100339 of 2022 THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS MADE THEREIN AS UNDER: CORAM: THE HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE AND THE HON'BLE MR. JUSTICE C.M. POONACHA ORAL JUDGMENT (PER: THE HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE) 1. The present appeal is filed by the appellants impugning an order dated 08.09.2020 passed by the learned Single Judge of this Court in W.P.No.60938/2010, whereby the said writ petition is allowed in part and the orders dated 27.06.2008 and 13.08.2009 impugned in the writ petition were modified to restrict the sentence of imprisonment only to the period already undergone viz., approximately 21 months as of that date. 2. The respondent had filed the said petition impugning an order dated 27.06.2008 passed in the General Court Martial [the GCM] and an order dated 13.08.2009 was passed by the Chief of Army Staff. By the order dated 27.06.2008, passed in GCM, the respondent was found guilty of taking advantage of a boy aged about five years and sodomizing him. Consequently, the GCM sentenced the - 3 - HC-KAR NC: 2025:KHC-D:9723-DB WA No. 100339 of 2022 respondent to undergo imprisonment of three years and also dismissed him from service. The respondent had appealed the decision before the Chief of Army Staff. The said appeal is rejected in terms of the impugned order dated 13.08.2009. The impugned order indicates that the respondent sought to challenge the finding of the GCM that he was guilty of the offence for which he was charged as well as the quantum of sentence imposed. 3. The learned Single Judge examined various considerations including the age of respondent and modified the sentence awarded to the respondent to imprisonment already undergone i.e., about 21 months as on the date of the impugned order. 4. The learned Senior Central Government Counsel appearing for the appellants submits that considering the term of sentence already served by the respondent and the fact that the respondent was released about five years ago, it may not be apposite to require him to surrender for undergoing the balance sentence. However, he submits that the learned Single Judge ought to have refrained from exercising the jurisdiction - 4 - HC-KAR NC: 2025:KHC-D:9723-DB WA No. 100339 of 2022 under Article 226 of the Constitution of India on two principal grounds. First, that the respondent had an alternate remedy of filing an appeal before the Armed Forces Tribunal, that was constituted prior to the disposal of the respondent’s petition. And second, the punishment awarded to the respondent is not one that would shock the conscience of the Court and was commensurate with gravity of the offence. 5. Insofar as the question whether the learned Single Judge ought to have refrained from exercising jurisdiction on the ground of respondent having alternate remedy is concerned, we find that the decision of the learned Single Judge must be viewed in the backdrop that the Armed Forces Tribunal had not been constituted on the date when the writ petition is filed. The Court having once assumed jurisdiction, the question whether the Court should refrain from continuing the proceedings is materially different from the question whether the Court should refrain from entertaining a writ petition on the ground of alternate remedies. In several instances, the Courts have declined to reject the petitions on the ground of alternate remedy, where the petitions have been - 5 - HC-KAR NC: 2025:KHC-D:9723-DB WA No. 100339 of 2022 pending for a considerable period of time before the Court. In our view, a somewhat similar consideration is required in cases where there was no alternate remedy when the jurisdiction of the Court was invoked. In such circumstances it may not be apposite to drop the proceedings and relegate the parties to an alternate forum. 6. The apprehension that the impugned order would be taken as a precedent to entertain writ petitions against the orders passed by the GCM or Army Authorities, is unfounded. The Hon’ble Supreme Court in the case of UNION OF INDIA AND OTHERS Vs. PARASHOTAM DAS : (2025) 5 SCC 786, has amply clarified that the power under the Article 226 of Constitution of India in matters relating to Armed Forces, where an alternate remedy exists before the Armed Forces Tribunal, should not be exercised ordinarily. Since specialized forum is available for redressal of grievances, the Court should refrain from exercising jurisdiction under Article 226 of Constitution of India without the parties exhausting their alternate remedy. 7. We also find merit in the appellants’ contention that the Court cannot exercise jurisdiction to reduce or modify the - 6 - HC-KAR NC: 2025:KHC-D:9723-DB WA No. 100339 of 2022 sentence under Article 226 of Constitution of India, unless the Court finds some procedural irregularity; contravention of any law; the order is vitiated by malafides or extraneous considerations; or that the punishment imposed is excessively disproportionate. In the facts and circumstances of the present case, none of the said grounds are established. 8. Having stated the above, we also consider it apposite to bind the appellant to the statement made on its behalf to the effect that it may not be apposite to require the respondent to surrender or undergo the balance sentence. Whilst we agree with the contentions advanced on behalf of the appellants, we are not disturbing the operative part of the impugned order for the aforesaid reason. 9. The appeal is disposed of accordingly. Sd/- (VIBHU BAKHRU) CHIEF JUSTICE Sd/- (C.M. POONACHA) JUDGE PMP