ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR -.- TA 821 of 2010 (arising out of CWP 946 of 2009)
Col (Retd) Jaswant Singh …… Petitioner(s) Vs Union of India and others …… Respondent(s) -.- For the Petitioner (s) : Brig (Retd) Rajinder Kumar, Advocate For the Respondent(s) : Mr. Sandeep Bansal, CGC.
Coram: Justice Prakash Krishna, Judicial Member. Air Marshal (Retd) SC Mukul, Administrative Member. -.- ORDER 31.03.2014 -.-
The petitioner being aggrieved by the order dated 17.2.2004 passed by General Court Martial awarding sentence of cashiering to the petitioner and holding that the charge levelled against the petitioner is proved, filed writ petition No. 946 of 2009 before the Himachal Pradesh
High Court at Shimla seeking the relief to issue a writ of certiorari for quashing Annexures P-20, P-21 and P-29 to the writ petition and a writ of mandamus for issuance of directions to the respondents to reinstate the petitioner in service and be given all the incidental benefits. The writ petition remained pending before the High Court and has been transferred, on commencement of Armed Forces Tribunal Act, 2007 to this Tribunal vide order dated 18.12.2009.
The background facts may be noticed in brief. The petitioner claims that in the year 1976, he was commissioned as Second Leiutenant in the Indian Army and became full Colonel in the year 1996. He was part of elite Special Forces (Parachute Commando) and took active part in various wars and other Army operations such as Blue Star, IPKF
(Indian Peace Keeping Force) in Sri Lanka and also tackled insurgency in -2- the North-East and Jammu & Kashmir and participated in the Kargil War for which he was awarded various Honours like Sena Medal etc.
There is one landed property along with its superstructure known as Rose Villa at Nahan in the State of Himachal Pradesh. The said property belongs to one Sh. N.M. Bam. The said property is in the
Cantonment area and was in the tenancy of the Army authorities (MES) since July, 1955. In pursuance of court‟s order, the Army authorities were compelled to vacate it in the month of September, 1979. The then
Station Commander, Station Headquarters, Nahan wrote a letter dated
10.9.1980 to the owner namely Sh. N.M. Bam that due to reasons of security, the Army authorities are taking steps for acquisition of the said property which consists of plot and house known as Rose Villa in Nahan
Cantt.; the case is with the Army Headquarter and will be finalised shortly. The owner was informed that Army Headquarter has asked the
Station Headquarter, Nahan to request the landlord/owner not to sell any portion of the land until the case is finalised. It appears that the steps were taken by the Army authorities to acquire the aforesaid property in dispute. In that connection, measurements of the land (Rose Villa) involved for acquisition and determining its market value, were done. A long correspondence was entered into by the Army authorities at different levels including with civil authorities to acquire the land in question. The
No Objection Certificate was granted by the Civil Authorities with regard to the said acquisition. The matter was being processed.
It appears that while the matter was being processed with the
Ministry of Defence through DGDE, the DGDE asked for:-
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“To reconcile the variation in the area proposed for acquisition preferably by convening a proper Board of Officers to bring out the upto date market value along with other ground facts and latest NOC from the Collector. The existing NOC of the D.C. Sirmour dated 24.10.1966 is more than 30 years old.”
Vide letter dated 28.10.1997 of the then Station Commander, it was informed that the Board of Officers was convened by this
Headquarter to ascertain details/information as was asked for. The Board of Officers has been completed and the details as required are as under:-
“(a) The exact area of the Rose Villa is 0-90-97 Hectors as per DRO. (b) The current value of Rose Villa area is Rs.5,67,784.14 as per DRO. (c) No Objection Certificate (NOC) from the DC Nahan(H.P) is attached.”
It was requested that the case be taken up with the Army HQ for early finalisation of the case.
Thereafter, the petitioner herein came to be posted at Nahan and being the senior most Army official at Nahan was Station Commander of
Adhoc Station Headquarters Nahan (H.P). By means of letter dated
27.10.2000 addressed to DEO Ambala Cantt. for the first time, he recommended that Khasra Nos. 1073 to 1078 alongwith two other plots, parts of Rose Villa property, now has been excluded from the acquisition proposal on its being unsuitable for Army from the administrative point of view as well as from the buildability factors. The said letter is signed
-4- by the petitioner as Station Commander. Along with the letter, the petitioner enclosed a sketch of Rose Villa showing the proposed acquired area and left out area. The recommendations of the petitioner were acted upon. However, in the month of March, 2002, Lt Colonel S.K.
Saharawat visited Nahan and found that the recommendations given by the petitioner were wrong. The non-acquisition of portion of land will leave civil pocket in the defence land which will create security problem.
It also transpired that Mrs. Anjana Thakur wife of the petitioner had already purchased the plots No. 1073 to 1078 earlier in the year 1999, a fact which was concealed by the petitioner. He re-recommended the acquisition of non-recommended area also be undertaken and case be processed. In this fact situation, in September, 2002, a Court of Inquiry was ordered in the matter. The petitioner participated in the Court of
Inquiry. The evidence and material was collected and witnesses were examined. The witnesses were cross-examined by the petitioner. Based on the material collected in the Court of Inquiry, it was decided by the competent authority to initiate General Court Martial proceedings against the petitioner. The GCM was ordered and its convening order dated
16.9.2003 came to be passed. The following charge-sheet dated
28.6.2003 was served on the petitioner :-
“QRM of order for the Assembly of a General Court Martial under the Army Act.
Charge Sheet
The accused IL-31665X Colonel Jaswant Singh SM, Branch, Recruting Office, Truchirapalli, attached to headquarters 474 Engineer Brigade, an officer holding a permanent commission in the regular Army, is charged with.
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Army Act, Sec 52(f): Such an offence as is mentioned in Clause(f) of Sec. 52 of the Act, with intent to defraud.
At Nahan on 27 Oct. 2000, while Station Commander, Nahan, when entrusted with progressing the case for acquisition of Rose Villa land by the Govt. with intent to defraud, recommended exclusion of part of the said land comprising of Khasra Nos. 1073 to 1078 from the proposed acquisition, without disclosing that the said land had already been purchased by his wife Mrs. Anjana Thakur.
The said officer to Sit. Sd/-(Salil Prabhakar) Brigadier Commander 474 Engineer Brigade Place: Zirakpur Date: 18 Jun, 2003 To be tried by General Court Martial Sd/-(B.S.Thakur) Lt Gen General Officer Commanding 2 Corps Place: Ambala Date: 28 Jun, 2003.”
The G.C.M. was assembled on 25.9.2003, the petitioner filed objections to the charge and time upto 13.10.2003 was allowed to the prosecution to file the reply to the objections. On 13.10.2003, the
G.C.M. was reduced to below the minimum number of members and was adjourned sine die. The matter was not proceeded further.
Thereafter a fresh GCM was constituted. The convening order is dated 11.11.2003. Lt Colonel Rajiv Mehrotra, Additional Officer
Headquarter 10 Corps was appointed as Judge Advocate. The GCM thus convened proceeded to try the petitioner on a fresh charge-sheet dated
11.11.2003 which is reproduced below:-
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“Charge Sheet
The accused IC-31665X Colonel Jaswant Singh SM, Branch Recruiting Office, Truchirapalli, attached to Headquarters 474 Engineer Brigade, an officer holding a permanent commission in the regular Army, is charged with:-
Army Act, Sec 52(f):
Such an offence as is mentioned in Clause(f) of Sec. 52 of the Army Act, with intent to defraud.
In that he
At Nahan on 27 Oct. 2000, which came to the knowledge of the authority competent to initiate action on 07 Dec 2002, while Station Commander, Nahan, when entrusted with progressing the case for acquisition of Rose Villa land by the Govt. with intent to defraud, recommended exclusion of part of the said land comprising of Khasra Nos. 1073 to 1078 from the proposed acquisition, without disclosing that the said land had already been purchased by his wife Mrs. Anjana Thakur.
Place: Zirakpur Sd/-(YC Chhibber) Colonel Date: 11 Nov 2003 Officiating Commander 474 Engineer Brigade
“To be tried by General Court Martial”
Place: Ambala Sd/-(G.D.Singh) Lt Gen Date: 11 Nov 2003 General Officer Commanding 2 Corps”
The General Court Martial held that the above charge stands proved and passed the impugned order.
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Before proceeding further, it may be noted that there is no variation in respect of accusation in the two charge-sheets. In the second charge-sheet on which the petitioner has been tried and convicted, the following bracketed words find mentioned additionally:-
“At Nahan, on 27.10.2000, (which came to the knowledge of the authority competent to initiate action on 07th Dec 2002) while Station Commander, Nahan when entrusted with progressing the case for acquisition of Rose Villa land by the Govt. with intent to defraud, recommended exclusion of part of the said land comprising of Khasra Nos. 1073 to 1078 from the proposed acquisition, without disclosing that the said land had already been purchased by his wife Mrs. Anjana Thakur.”
As many as 13 witnesses were examined by the prosecution side.
The petitioner examined himself as DW1 and closed the evidence.
Although counsel for the petitioner has not referred any specific portion from any deposition, he submitted that the statement of witnesses PW-3,
PW-9, PW-11 and PW-13 may be treated as read in support of the present petition. We think it appropriate to notice the gist of the statements of the witnesses very briefly so that it may given an idea about the gravity of the charge. We may place on record that no attempt was made before us to challenge the finding of guilt recorded by the General
Court Martial on the merits. The challenge of the court martial proceedings have been made on certain other grounds which we will notice in the subsequent part of the judgment.
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Col S.C. Goel of 1 PARA (SF) working with Station HQ, Nahan was examined as PW-1. The witness produced the documents concerning the case before the General Court Martial. He produced six files. The documents produced by the witness have been exhibited from
Ex. No. 9 to 34. These documents are in the nature of correspondence with regard to acquisition of Rose Villa property. Ex. 10 dated 10.9.1980 is the letter addressed to Sh. N.B. Bam with subject, Acquisition of Rose
Villa land at Nahan. Ex. 28 is the letter bearing No. 1111/RV/SHQ dated
27.10.2000of the Adhoc Station HQ, Nahan signed by the petitioner. It consists of two pages with two sketches. This is the letter which is the sheet anchor of the prosecution case, also referred in the charge. The witness was cross-examined by the petitioner.
Col JS Manral of Para Regiment Training Centre, Bangalore has been examined as PW-2. He was posted to SFTW (Special Force
Training Wing) at Nahan w.e.f. 25.12.2001 to 31.7.2003 and was the
Station Commander, Military Station, Nahan. He has deposed that the house known as Rose Villa is located within the Military Station, Nahan area and was initially hired by the MES on 1.7.1955 which was extended on yearly basis and it was de-hired on account of the order passed by the
Civil Court for its vacation. He further deposed that he took over as
Station Commander, Nahan in October, 1999. The Jamabandi record shows that part of land of Rose Villa measuring 777 sq mtrs comprising of Khasra Nos. 1073 to 1078 have been mutated on 28.12.1999 in favour of Mrs. Anjuna Thakur, wife of Col Jaswant Singh. He proved the signatures of Col. Jaswant Singh as Station Commander on the letter -9- dated 27.10.2000 recommending exclusion of Khasra Nos. 1073 to 1078 purchased by his wife and Khasra Nos. 1214 and 1215 from acquisition being unsuitable for Army from administrative point of view as well as due to build-ability factors. In the year 1997, acquisition of 9097 sq mtrs of land was recommended. However, vide letter dated January 24, 2000,
777 sq mtrs of land has been subtracted. In October, 2000, further reduction in the area of land acquisition was done by the Station
Headquarter, Nahan. The witness stated that on 25.12.2001, he took over the charge as Station Commander, Nahan, when mobilisation of „OP
PRAKARAM‟ has started. Military Station Nahan has a fair population of different communities as also of Gorkhas and from the security point of view, it was essential that the area around the Cantonment be kept under watch. Notices under Section 4 of Public Premises Eviction Act to all the encroachers on the military land were issued. He first concentrated on Gorkha Basti which was a potential threat to security being right next to the living lines of Army Units in Military Station,
Nahan. Chief of the Staff, Headquarter Western Command visited
Military Station, Nahan on 18.4.2002 and asked him about the reasons for the delay in acquiring the Rose Villa property and why it has not been forwarded to HQ Western Command. He further deposed that he sent a report to HQ Western Command with regard to the acquisition of
Rose Villa at Military Station Nahan, stating the correct facts. The said report has been exhibited as Ex. 34.
The next witness examined is Lt Colonel K Sudershan Singh
(Retd) as PW-3 who after retirement from HQ Western Command on -10-
31.3.1996 took re-employment in the Army w.e.f. 10.6.1996 till 7.3.2000 and was posted at Station HQ Nahan around February, 1999 to 7th March,
2000. During his posting at Nahan, he was on the strength of 1 PARA and to work at Station HQ Nahan and was one out of two SSOs and was assigned the task to look after court cases and in available time, the land cases. The witness handled three important land cases during his tenure as SSO, Station HQ Nahan and one of them was acquisition of Rose
Villa land. He deposed that Rose Villa is situated at beginning of the
Cantonment, close to SFTW Officers Mess and Officers accommodation as such it has its security value with regard to entrance and exit from the area. He was cross examined by the petitioner with regard to Khasra No.
1079 which is recorded in the revenue record as “gair mumkin rasta”.
Suggestion by the defence that on 27.12.1999, the process of acquisition of Rose Villa land was on as correct path has been accepted by the witness. He also endorsed the suggestion that Gorkha Basti is very near to Khasra Nos. 1073 to 1078 and 1079 and deposes that Gorkha Basti is an encroachment on defence area at Nahan and they are using Khasra No.
1079 as Raasta although the said Khasra No. belongs to Mr Bam. He has proved certain documents.
Shri Baljeet Singh, Sub Divisional Officer, Grade-I of the Defence
Estate Office, Ambala Circle, Ambala Cantt. has been examined as PW-4 who was handling the case files of acquisition concerning land matters including that of Rose Villa land and produced in original, the Adhoc
Station HQ convening order No. 1111/RV/SHQ dated 9/31.8.2000 received in his office marked as Ex. 35. He also filed documents which -11- were exhibited such as Ex. 36 and stated that his office never gave any concurrence to Station HQ Nahan for the fresh Board of Officers proposed by them to be convened and produced the original letter dated
27.10.2000 as contained in the file of DEO Ambala Circle which is exhibited 29. He states that the Station HQ Nahan did not reply to the queries raised by his office vide letter dated 12.9.2000 Ex. 32 but recommended for exclusion of the above mentioned Khasra Nos. (1073 to 1079) of Rose Villa land from the acquisition. The following portion of the statement of the witness is relevant:-
“We have intimated to Stn. HQ, Nahan from time to time that the case had been taken up with higher HQs about the Rose Villa land acquisition and sanction for same might come any time. However, recommendations for exclusion of certain Khasra Nos of Rose Villa land from Stn HQ Nahan, were recd for the first time in year 2000.”
Lt Col S.K. Saini (Retd) has been examined as PW-5. He was posted to Station HQ, Nahan in October, 2001 and was released from
Nahan on 25.9.2003. He was posted with 1 PARA and place of functioning/utilisation was at Adhoc Station HQ, Nahan. Col Jaswant
Singh was the Station Commander when the witness joined the posting.
He was performing the duties of Station Staff Officer (SSO). He proved certain documents and the signatures of Col Jaswant Singh on them. He has stated that the entire land of Rose Villa measuring around 10 Bighas was proposed to be acquired due to security reasons. The witness states that he was surprised to see the recommendations of Col Jaswant Singh -12- about exclusion of certain portion of Rose Villa from acquisition which are very near to the SFTW Officers Mess and lies between the Officers
Mess and the Single Officers quarters. Rose Villa land is surrounded by defence area all around and exclusion of the plots could result in access to it by the civilians who can be any one and they could have watched each action of Special Training Forces in the SFTW or listened to the any communication thus, posing a threat to defence area. This witness has also proved certain documents and was cross-examined by the defence counsel, who could not elicit anything.
Major Lokesh Singh has been examined as PW-6. This witness was examined before S of E relating to Rose Villa land in the capacity as
DAQMG, HQ, PH & HP(I) Sub Area.
Major Sanjay Bakshi, DAQMG, HQ, PH & HP(I) Sub Area has been examined as PW-7 to produce certain documents desired by the prosecution. He has filed Ex. 46 which is a letter dated 4.11.1999 addressed to HQ 2 Corps (Q) and Ex. 47, Ex. 48, Ex. 49, Ex. 50, Ex. 51,
Ex. 52 in original.
Lt Col SK Saharawat of 2 Maratha Light Infantry who was attached to HQ, PH & HP(I) Sub Area has been examined as PW-8 and deposed that he while performing the duties as DAQMG (Land) was dealing with land cases of 14 Stations including Nahan, Rose Villa acquisition in particular. He has proved documents Ex. 46, Ex. 48 etc.
Sh. D.R. Verma, Tehsildar, Nahan District Sirmour has been examined as PW-9 being Tehsildar in the Revenue Department, Nahan -13- since October, 1999. The witness has stated that Rose Villa is situated within the Nahan Cantonment area and Khasra No. 1079 is part of Rose
Villa land and is presently owned by Narender Bahadur and 8-10 other persons. There is a path on Khasra No. 1079 as per the revenue records.
He further deposed that there is no mention in the revenue record as to whether the said path has been constructed by any Govt. agency and it is mainly used by the individuals of Gorkha Basti. As per record, Khasra
Nos. 1073 to 1078 were purchased by Mrs. Anjuna Thakur on 3.3.1999 who has gifted Khasra No. 1078 to Col Jaswant Singh vide Gift Deed dated 23.3.2001. In cross-examination, witness reasserts that the ownership of path way is still with Narender Bahadur Bam and ownership has not been changed.
Lt Col R.K. Bhatnagar has been examined as PW-10. He was performing the duties of DAAG, HQ 474 Engr Bde and produced documents marked Ex. 53 to Ex. 55.
Major A.R. Panwar has been examined as PW-11 who has stated that all legal correspondence of „A‟ Branch at HQ 2 Corps is dealt with by him. He has deposed that Court of Inquiry was ordered in the instant case in September, 2002. Based on Court of Inquiry, the disciplinary action was directed against Col Jaswant Singh by the GOC 2 Corps on
7.12.2002. The petitioner declined to cross-examine the witness.
Col RKS Mann of Counter Insurgency and Jungle Warfare School
(CIJW) Vairngte was examined as PW-12 who stated that he has been posted to Nahan quite a number of times and Col Jaswant Singh is from his unit i.e. 1 PARA. He has deposed that Nahan is an old Cantonment -14- and used to be administered by State Forces. Later it was taken over by the Indian Army. The case of Rose Villa acquisition was going on since
1979 and during his time as Station Commander, he got the No Objection
Certificate (NOC) from the District Collector, Nahan, District Sirmour.
NOC meant; the civil administration had no objection to Army acquiring
Rose Villa land property. During his tenure, one of the representatives of
Directorate General, Defence Estate from Delhi visited Nahan to see the
Rose Villa land during his tenure as Station Commander. He left Nahan in the month of August, 1999 and Chief of Staff, HQ Western Command and Major General General Staff, HQ Western Command visited Station
HQ Nahan and the case of Rose Villa acquisition was in concluding stage. The witness was shown certain exhibits/documents and he proved them. He has further deposed that “the basic consideration for acquisition of Rose Villa was security.” He was cross-examined in detail by the present petitioner. In cross-examination, he has stated that he had seen Ex. 46 while as Station Commander, Nahan. The Board proceedings annexed to exhibit 46 were completed before his joining at
Station Nahan. He has stated that it is correct that prior, the case for
Rose Villa land acquisition was for lesser area of it, but later on due to threat perception after Blue Star Operation, the case was processed for entire land of Rose Villa.
The last witness examined by the prosecution is Major Ranjeet
Kumar as PW-13, of PARA Field Ambulance who was posted at Nahan to Special Forces Training Wing (SFTW) from 19.1.1999 to 3.9.2002 as
Officer Commanding, Medical Skills. He was assigned besides medical -15- duties, other non-medical duties and he performed the duties as Station
Staff Officer, Station HQ, Nahan for about four to five months from time to time.
The defence examined the petitioner as DW-1. His statement has been recorded as per Army Rule 58(1)(a)(c) in the question-answer form, also. The court has put the questions for answering by the petitioner.
The witness states that he was Station Commander, Nahan since
29.10.1999 till November, 2001. He has stated that he has gone through the Board of Officers proceedings with regard to acquisition of Rose
Villa. The Board of Officers proceedings were completed in the year
1997 and from the documents, he came to know that the land of Rose
Villa is required for security purposes. Station HQ, Nahan put up fence after Blue Star Operation at Rose Villa land except Khasra No. 1079 and
Khasra Nos. 1073 to 1078 were kept out of the fence. After answering the questions put by the GCM, the witness expressed his desire to be examined and has been examined as DW-1 wherein he has stated that his wife is not fully dependent upon him and she has been also earning on her own. He has filed certain documents which were taken on record as
Ex. 60 to Ex. 65. He states that he has gone into the Board of Officers proceedings and found certain defects therein. He admits that acquisition of Rose Villa was going on during the period 1985 to 1986 when he was earlier posted at Nahan. He further agrees to the suggestion given by the prosecution that he had signed correspondence as Station Staff Officer,
Adhoc Station HQ, Nahan during the period of 1985-87. He also remembers that the reason for acquisition of Rose Villa was security as -16-
Military Station was not having surplus of land for its KLP (Key
Location Plan) for one unit. He admits that he did not tell any of his seniors visiting Officers/CDRs that his wife has purchased Khasra Nos.
1073 to 1078 which was a portion of the Rose Villa land, the Station HQ
Nahan wanted to acquire it for security purposes. The relevant portion is extracted below:-
“I did not tell any of the senior visiting Officers/CDRs that my wife, my dependent has purchased Khasra Nos. 1073 to 1078 which was a portion of the land that the Stn HQ Nahan wanted to acquire for security purposes. The witness adds that he did not do so because this is not an established service procedure to inform about such facts to the visiting senior dignitaries. The witness further adds, that while briefing various Cdrs on ground, he had pointed out that the land beyond Khasra No. 1079 has been sold out by the owner.
I have not told any visiting dignitary that Khasra No. 1078 has been gifted by my wife to me. The witness further adds just after the gift, I have applied for the house building loan to HQ 2 Corps and the visit which I have referred in my statement were from Jan 2002 to Aug 2000 whereas the gift was recd by me in year 2001.
xxx xxx xxx
The cross-examination of DW-1 continues.
xxx xxx xxx
The purchase of Khasra Nos 1073 to 1078 did not fit in the context of the letter written on 27 Oct 2000 (Exhibit 29)”
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He admits that mutation of Khasra Nos 1073 to 1078 in the name of his wife was done on 28.12.1999 and Khasra No. 1078 was gifted to him by his wife on 23.3.2001. But this fact was not informed. The relevant portion is extracted below:-
“I have not informed anyone about my acquiring Khasra No 1078 through the gift deed in relation to the proposed acquisition of said Rose Villa by the Government. I wish to add that Army/Ministry of Defence will acquire this land through State Govt and not directly from the owner of the land.”
….. …. …..
“I will not be able to tell as to how the Army fencing is there on private land of Rose Villa bisecting it beyond Khasra No. 1079 and the otherside. I wish to add that since it was the security fencing and Army had control of Rose Villa land area east of Khasra No. 1079.”
The General Court Martial after appraisal of the evidence oral and documentary and hearing the prosecution and defence versions found that the charge against the petitioner stands proved.
No infirmity or irregularity could be pointed out by the learned counsel for the petitioner in the said finding on merits.
The question of limitation in the light of Section 122 which provides period of limitation for trial was also raised before the General
Court Martial. The General Court Martial has negated the said plea on the finding that the period of limitation will start when the offence committed by the accused came to the knowledge of GOC 2 Corps i.e. on
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7.12.2002 who was competent authority to initiate action against the accused.
Learned counsel for the petitioner submitted the following points for our consideration :-
(1) The General Court Martial Court was not properly constituted in as much as Judge Advocate who was appointed was not competent person to act as Judge Advocate. (2) The charge is vague and it discloses no offence under Section 52(f) of the Army Act. (3) The convening order of GCM passed on 11.11.2003 is barred by time in view of Section 122 of the Army Act. (4) The GCM proceedings is barred by principle of double jeopardy. (5) The petitioner has got 27 years of unblemished service record and looking to the exemplary service record of the petitioner, the punishment of cashiering is harsh and excessive.
We take them in seriatim.
Point No.1:
Taking the first question first, the submission of the learned counsel for the petitioner is that in view of Sections 113, 128 and 129 of the Army Act and Army Rule 40(2), the GCM was not properly constituted. Elaborating the argument, it was submitted that through the convening order dated 11.11.2003, Lt Col Rajiv Mehrotra Additional
Officer Headquarter of 10 Corps was appointed as Judge Advocate who being lower in rank to the petitioner, could not have been appointed as
Judge Advocate. He thus submits that the General Court Martial was not -19- properly constituted and as such the proceedings taken out by it is null, void and without jurisdiction.
We have given careful consideration to the above submission of the learned counsel for the petitioner. Section 3 of the Army Act (herein after referred as the Act) which contains definition clauses, in Clause
(vii) defines that Court Martial means a court martial held under this Act.
Chapter X of the Act deals with Courts-Martial. Its Section 108 provides that for the purposes of the Army Act, there should be four kinds of courts martial, that is to say (a) general courts-martial; (b) district courts- martial; (c) summary general courts martial; and (d) summary courts- martial. Power to convene a general court-martial has been given to the
Central Government, the Chief of the Army Staff or by any officer empowered in this behalf by warrant of the Chief of the Army Staff.
The composition of GCM has been provided for in Section 113 of the Act. It reads as follows :-
“113. Composition of general court-martial. – A general court-martial shall consist of not less than five officers, each of whom has held a commission for not less than three whole years and of whom not less than four are of a rank not below that of captain”.
Procedure for courts martial is contained in Chapter XI of the Act and the provision for appointment of Judge Advocate is contained therein in Section 129. It says that every general court-martial shall, and every district or summary general court-martial may, be attended by a judge- advocate, who shall be either an officer belonging to the department of -20- the Judge-Advocate General, or if no such officer is available, an officer approved of by the Judge Advocate General or any of his deputies.
The Army Rules, 1954 (herein after referred called as Army Rule) provides ineligibility and disqualification of officers for courts-martial.
Army Rule 40 provides for composition of General Court-martial.
Its Sub-rule (2) provides that the members of a court-martial for the trial of an officer shall be of a rank not lower than that of the officer unless, in the opinion of the convening officer, officers of such rank are not (having due regard to the exigencies of the public service) available. Such opinion shall be recorded in the convening order. Laying emphasis on
Army Rule 40(2), the learned counsel for the petitioner submits that a conjoint reading of Section 113 of Army Act with Rule 40 of the Army
Rules would show that the members of court-martial for the trial of an officer shall be of a rank not lower than that of the charged officer.
However, exception has been provided that if in the opinion of the convening officer, officers of such rank are not (having due regard to the exigencies of the public service) available and such opinion shall be recorded in the convening order. Meaning thereby on fulfilment of two conditions as provided for in Rule 40(2), in certain situation, specified in
Sub-rule(2), Member of court-martial for the trial, officer may be of a rank lower than that the rank of the officer under trial. A perusal of the convening order dated 11.11.2003 would show that the general court martial consisted of five members, Brig. Sharma Yash Narian and four
Colonels mentioned therein. One Brigadier Anil Kumar and two
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Colonels were waiting members. Obviously the Presiding Officer of the
General Court Martial namely Brig. Sharma Yash Narian is higher in rank of the petitioner and the other members of the court martial, if not higher, were of the rank of the petitioner. None of the members of the court martial was below the rank of petitioner‟s rank who was Colonel.
However, the argument proceeds on the footing that the Judge
Advocate being Lt Colonel is also part of General Court Martial and no reason having been recorded in the convening order, therefore the composition of General Court Martial is illegal. The basis of the argument of the petitioner‟s counsel is Rule 102 of the Army Rule which says that an officer who is disqualified for sitting on a court-martial, shall be disqualified for acting as a judge-advocate at that court-martial. There are two aspects of the matter. Firstly, on a plain reading of Section 113 of the Act, it is difficult to accept the argument that Judge Advocate is a member of GCM. A plain reading of Section 113 of the Act makes it clear that GCM shall consist of not less than five officers having the prescribed qualifications. In the composition of GCM, Judge Advocate does not find place either in Section 113 of the Act or in Rule 40 of the
Rules. Secondly, factually reasons for not appointing Judge Advocate of the petitioner‟s rank, has been recorded, in the convening order itself.
The opening part of the convening order is reproduced below :-
“IC-31665K Colonel Jaswant Singh, SM, Branch Recruiting Office, Tiruchirapalli attached with Headquarters 474 Engineer Brigade.
-22- The detail of officers as mentioned below will assemble at 65 Engineer Bridge Regiment (PMS) at Ambala Cantonment on the seventeenth day of November 2003 for the purpose of trying by a General Court Martial, the accused person named in the margin (and such other person or persons as may be brought before them). In the opinion of the convening officer, an officer of equal or superior rank to the accused is not, having due regard to the exigencies of the public service, available to sit as the Judge Advocate.” (emphasis supplied)
The afore quoted portion is the complete reply of the point in issue.
It contains the reason as per requirement of Army Rule 40(2). The argument of the petitioner‟s counsel besides being factually incorrect is devoid of any substance on legal plane also.
In addition to above, the learned counsel for the respondents submitted that no such plea was raised by the petitioner before the
General Court Martial. The petitioner having failed to show the prejudice if any caused to him for non appointing a Judge Advocate of
Colonel rank, cannot after the end of the trial, question the appointment of Judge Advocate. Rule 103 does not permit so. It cannot be said that the said argument of the respondents is without any substance. As envisaged in Rule 41(2), the GCM ascertained before proceeding further in the matter that the Judge Advocate is duly appointed and is not disqualified for sitting on that court-martial. Before the G.C.M., there was no such objection from the defence side that Lt Colonel Rajiv
Mehrotra who was appointed Judge Advocate and was Additional
Officer, Headquarters 10 Corps could not being a Colonel, act as Judge
Advocate. The submission of the petitioner that the General Court -23-
Martial has usurped the power to try the petitioner by making illegal appointment of Lt Colonel Rajiv Mehrotra as Judge Advocate who was junior in rank of the petitioner, lacks merit and therefore is rejected. In any case, any illegality in the appointment of Judge Advocate, in view of
Rule 103 of Army Rule, shall not invalidate the court-martial proceedings, is the end of the matter.
Point No. 2:
Under Point No. 2, the submission of the petitioner‟s counsel is that the charge is vague and it discloses no offence under Section 52(f) of the Army Act. Elaborating the argument, the learned counsel submitted that the Rose Villa land along with construction has not been acquired as yet. Under the Land Acquisition Act, a land can be acquired by issuing notifications under Sections 4 and 6 thereof. The letter dated 10.9.80 written by Station Staff Officer Headquarter to the owner of Rose Villa does not amount to acquisition of the land and it also does not debar the owner of the land to transfer the land to a person of his choice. Our attention was invited to the letter dated 23.3.95 written by the owner of the land addressed to the Defence Ministry that during all these years, no action has been taken to acquire the Rose Villa land by the officials of
Defence. There being no illegal gain to the petitioner, the ingredients of offence as envisaged in Section 52(f) of the Army Act are not fulfilled.
We have already reproduced the charge under Section 52(f) of the
Act in the earlier part of the judgment. The charge against petitioner is that on 27.10.2000 at Nahan while he was Station Commander, Nahan when entrusted with progressing the case for acquisition of Rose Villa land by the Govt. with intent to defraud, recommended exclusion of part -24- of the said land comprising of Khasra Nos. 1073 to 1078 from the proposed acquisition, without disclosing that the said land had already been purchased by his wife Mrs. Anjana Thakur.
At this juncture, it is apt to have Section 52 which deals with offences in respect of property. The Section 52 is reproduced below in its entirety :-
“52. Offences in respect of property. – Any person subject to this Act who commits any of the following offences, that is to say, - (a) Commits theft of any property belonging to the Government, or to any military, naval or air force mess, band or institution, or to any person subject to military, naval or air force law; or (b) Dishonestly misappropriates or converts to his own use any such property; or (c) Commits criminal breach of trust in respect of any such property; or (d) Dishonestly receives or retains any such property in respect of which any of the offences under clauses (a), (b) and (c) has been committed, knowing or having reason to believe the commission of such offence; or (e) Wilfully destroys or injures any property of the Government entrusted to him; or (f) Does any other thing with intent to defraud, or to cause wrongful gain to one person or wrongful loss to another person, shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as is in this Act mentioned.”
-25-
It is clause (f), as interpreted in a recent case by the Apex Court in Union of India through the Secretary, Ministry of Defence Vs Rabinder Singh, 2011(4) RCR (Criminal) 522 is in two parts. The offence with which the petitioner was charged, was doing something with intent to defraud. When the acquisition proceedings to acquire Rose Villa was in advanced stage the petitioner being Station Commander at Nahan abruptly wrote the letter dated 27.10.2000 for exclusion from acquisition of certain plot numbers which were already purchased by his wife. It is not in dispute that the said letter was written by him. For the sake of convenience, the said letter which is Ex. 29 before the General Court Martial is reproduced below :- “Tele: 256 Adhoc Station Headquarters Nahan (H.P) – 173 001 1111/RV/SHQ 27 Oct, 2000 DEO Ambala Cantt. ACQN of Rose Villa at Nahan (a)Refers: (a) Station HQ Nahan letter No. 1111/RV/SHQ Dt 24 Jan 2000 (copy atta.) (b) Your office letter No. HP/73/ACQ/DEO/C/60 dated 12 Sep 2000. (c) This headquarter letter No. 1111/RV/SHQ dated 10 Oct 2000. 2. Physical verification of the Rose Villa land is carried out jointly by rep DEO, Ambala Cantt. Revenue Deptt from DC Nahan and SSO on 20 Oct 2000. It is revealed that the land available for acqn is as under:- Ser No. Khasra No. Total Area in Sq Mtrs. (a) 1080 0006 (b) 1081 0119 (c) 1082 0054 (d) 1083 6673 (e) 1216 0005 (f) 1217 0012 (g) 1218 0366 (h) 1223 0060 (i) 1224 0455 ------Total 7750 sq mtrs -26- 3. The following khasra Numbers which are west of Municipal path and out side Military fencing in gorkha Basti has now been excluded from the acqn proposal being unsuitable for Army from the Adm point of view as well from the building factors. Ser No. Khasra No. Total Area in Sq Mtrs (a) 1073 0008 (b) 1074 0002 (c) 1075 0009 (d) 1076 0045 (e) 1077 0052 (f) 1078 0661 (g) 1079 0353 (h) 1214 0057 (i) 1215 0160 Total 1347 Sq Mtrs
4. The sketch of Rose Villa (Tatima) showing area proposed for acqn and the left put area is att for perusal please. 5. It is also certified that land available for acqn will be sufficient for Military purpose. 6. You are therefore requested to please progress the case accordingly. Sd/- (Jaswant Singh) Col Station Commander Encls: As above HQ 2 Corps (3L) c/o 56 APO HQ PH & HP(I) Sub Area Ambala Cantt. For info please.”
Undisputedly the petitioner is the author of the letter as he admits his signatures thereon. Para 3 of the afore quoted letter recites that the -27-
plot No. 1073 to 1079 and Plot No. 1214 and 1215 have been excluded from the acquisition proposal being unsuitable for Army from administrative point of view as well as from building factors.
Importantly the petitioner‟s wife had already purchased the Khasra Nos.
1073 to 1079 on 3.11.1999 much before the aforesaid letter. Knowing fully well that plots No. 1073 to 1079 have been purchased by his wife, the letter was written with a view to defraud the Government not to acquire those plots, on non-existing grounds. Exclusion of those plots from acquisition has been claimed from the administrative point of view as well as from the building factors. From the day one, the object for acquiring Rose Villa land is its geographically situation being in the cantonment area and at the gate of cantonment. To maintain the secrecy for security purposes, the proposal to acquire the land was mooted. The petitioner is charged with the first part of Section 52(a)(f) of the Act which is „doing something with intent to defraud‟. The concealment of fact that Khasra Nos. 1073 to 1079 have already been purchased by the petitioner‟s wife by the petitioner amounts doing something with intent to defraud the Army.
In case of Union of India Vs Rabinder Singh (supra), the Apex
Court has noticed its earlier judgment given in the case of Dr. Vimla Vs
Delhi Administration, AIR 1963 SC 1572 wherein the Apex Court with reference to Section 464 I.P.C. has held that the expression fraudulent is wider and includes any kind of injury/harm to body, mind, reputation inter alia. The term injury would include non-economic, non-pecuniary loss also. The Court has summarised therein proposition in the following manner :- -28- “14. To summarize the expression “defraud” involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss……”
Reverting back to the facts of the present case, there is a voluminous unrebutted evidence on record to show that the NOC from the civil authorities was obtained and sanction from the Central
Government to acquire the entire Rose Villa was also in the offing. The
Board of Officers had already met in the year 1997 and all the modalities, such as area of the Rose Villa, its market value etc., all were already working out. The proposal to exclude certain plots mooted through the letter of the petitioner Ex. 29 put the clock back which caused a de novo exercise in the matter resulting wastage of time and energy spent. It has frustrated the acquisition proposal, resultantly it is fizzled out. The argument that even if some plots were purchased by the petitioner‟s wife, the Government could still acquire those plots, is neither here nor there.
The said argument ignores the fact and escalation of price rise of immovable properties day by day. It has been judicially laid down with regard to question of determination of market value of the acquired land that price rise @ 10% per year for the acquired land, should normally be taken into account. Look from any angle, the letter dated 27.10.2000, has caused financial injury to the Central Government/Defence Department and the charge that the letter dated 27.10.2000 was written with intent to defraud, stands proved. The petitioner has fully participated in the -29- proceedings and it is not shown that any prejudice has been caused, the plea that the charge is vague, is untenable and is liable to be rejected.
Point No. 3:
Now we take up point No. 3 with regard to limitation for setting the court martial proceedings in motion through the convening order dated 11.11.2003, allegedly barred by time. The petitioner contends that the offence under Section 52(f) of the Act was committed on 27.10.2000 when the letter dated 27.10.2000 proposing exclusion of Khasra Nos.
1073 to 1078 from acquisition of Rose Villa land by the Government, was written by him. The submission is that the period of limitation of three years as prescribed under Section 122 of the Act, would commence from the date of the letter and since the General Court Martial was convened through the order dated 11.11.2003 beyond the period of three years from that date, the proceedings are barred by time.
Section 122 of the Act provides the period of limitation for trial.
Its Sub-section(1) is material for the purposes of the case. Therefore, it is reproduced below:-
“(1) Except as provided by sub-section (2), no trial by court-martial of any person subject to this Act for any offence shall be commenced after the expiration of a period of three years and such period shall commence, - (a) On the date of the offence; or (b) Where the commission of the offence was not known to the person aggrieved by the offence or to the authority competent to initiate action, the first day on which such offence comes to the
-30- knowledge of such person or authority, whichever is earlier; or (c) Where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the authority competent to initiate action, whichever is earlier.”
The material clause is Clause (b) of Section 122(1) of the Act which provides that where the commission of the offence was not known to the person aggrieved by the offence or to the authority competent to initiate action, the first day on which such offence comes to the knowledge of such person or authority, whichever is earlier, no trial by court martial shall be commenced after the expiration of the period of three years. The important fact which is required to be determined is the day from which it can be said that the period of three years has commenced. According to the petitioner, either it is the date of the letter i.e. 27.10.2000 or when the Court of Inquiry was ordered. The contention of the respondents/prosecution on the other hand is that a
Court of Inquiry was ordered and after the conclusion of the Court of
Inquiry, it transpired to the competent authority that a prima facie case for court martial has been made out against the petitioner, the period of limitation thus would commence from that date which is 7th of
December, 2002. On this day, GOC 2 Corps who is the competent authority to take action against the petitioner came to know that the petitioner has committed offence under Section 52(f) of the Army Act.
Therefore, 7th December, 2002 is the relevant date.
-31-
In the charge itself, it is mentioned that on 7th December, 2002, it came to the knowledge of the competent authority that the petitioner as
Station Commander with intent to defraud, recommended exclusion of part of land to be acquired comprised of Khasra Nos. 1073 to 1078 from the proposed acquisition.
We may also note one objection seriously raised by the petitioner‟s counsel that the Court of Inquiry proceedings are not admissible in evidence and that there is no material to show that the competent authority came to know of the alleged offence on 7.12.2002. There cannot be any dispute that Court of Inquiry is not admissible in evidence.
Rule 182 of the Army Rules itself provides that the proceedings of Court of Inquiry, is not admissible in evidence. It says that the proceedings of a
Court of Inquiry, or any confession, statement, or answer to a question made or given at a Court of Inquiry, shall not be admissible in evidence against a person subject to the Act, nor shall any evidence respecting the proceedings of the court be given against any such person except upon the trial of such person for wilfully giving false evidence before that court. There is proviso to it which says that nothing in this rule shall prevent the proceedings from being used by the prosecution or the defence for the purpose of cross-examining any witness. The object of
Court of Inquiry is to collect the evidence and if so required to report with regard to any matter as per Army Rule 177. A Court of Inquiry records the statements of the witnesses. Army Rule 180 provides the procedure when character of a person subject to the Act is involved. The provision is in consonance with the general principle of natural justice and provides that when character of a person subject to the Army Act, is -32- involved, full opportunity must be afforded to such person of being present throughout the inquiry and for making any statement or may give any evidence he may wish to make or give, and of cross-examining any witness whose evidence in his opinion, affects his character or military reputation and producing any witnesses in the defence of his character in military reputation. The Court of Inquiry is primarily ordered on getting information that some incident has taken place, to enquire as to how and under what circumstances, the incident has taken place and the person or the persons involved in the incident. Here the prosecution is not placing reliance or referring any evidence which was before the Court of Inquiry but not before the General Court Martial. The submission of the prosecution/respondents is that on the finding recorded by the Court of
Inquiry, the competent authority took a conscious decision to initiate
General Court Martial against the petitioner to find out the truth.
Reverting to the pleadings of the petitioner in the writ petition, it is evident that the respondents informed the petitioner in October, 2002 that inquiry has been ordered against him on the ground that the matter pertaining to acquisition of Rose Villa along with its superstructure at
Nahan has not been progressed by him as required, vide Para 9 of the writ petition. In the subsequent para 10 of the writ petition, the petitioner states that he thereafter faced the Court of Inquiry proceedings headed by
Brigadier M.C. Badhani and two officers of the Colonel rank who recorded the statements of witnesses, which were cross-examined by him and nothing happened thereafter. The complete copy of the Court of
Inquiry proceedings has been annexed as Annexure P-10 to the writ petition which is from page 39 to 137-A of the paper book. -33-
A perusal of the Court of Inquiry proceedings would show that it was assembled to investigate into the circumstances under which (a) Part land of „ROSE VILLA‟ measuring 777 Sq mtrs Khasra Nos 1073, 1074,
1075, 1076, 1077 & 1078 at Military Station Nahan has been mutated in favour of Mrs. Anjuna wife of Col Jaswant Singh, SM on 28 Dec. 1999 and (b) the views of the Military Station Nahan were changed with respect to acquisition proceedings of private land measuring 9097 Sq
Mtrs called „ROSE VILLA‟ of which 777 Sq mtrs of land was declared as un-buildable by and subsequently transferred in the name of the recommending authority and his family which led to delay in submission of acquisition proceedings and the allied issues as contained in HQ
Western Comd Q (Wks) letter No. 57418/6/Q3 (B) dated 20 May 2002.
Further it would show that Court of Inquiry was ordered by HQ 2
Corps Q/Wks convening order No. 1641/Nahan/Q3 dated 9.8.2002. The argument of the petitioner‟s counsel that the competent authority came to know about the alleged offence committed by the petitioner the day on which Court of Inquiry was ordered is fallacious being against the very concept of Court of Inquiry. In the Court of Inquiry, evidence is collected and thereafter a prima facie view as to whether the offence has been committed or not is formed by the competent authority. Army Rule
179(6) provides that the whole of the proceedings of the Court of Inquiry shall be forwarded by the presiding officer to the officer who assembled the court. There is no provision empowering Court of Inquiry to either charge or acquit any person. Assuming for the sake of argument that the period of limitation would start running from the date of ordering the
Court of Inquiry, even then the plea that the General Court Martial -34- proceedings were barred by time, is unsustainable. The Court of Inquiry was ordered on 9.8.2002 and the General Court Martial was convened vide order dated 11.11.2003, well within the statutory prescribed period of three years.
Then reliance was placed on a recent judgment of Apex Court in
Rajvir Singh Vs Secretary, Ministry of Defence and others, decided by the Apex Court on 15.2.2012 reported in (2012) 3 SCC 167.
The learned counsel tried to impress on us that the earlier judgments of the Apex Court interpreting Section 122(1)(b) of the Act in the cases of Union of India and others Vs V.N. Singh, (2010) 5 SCC
579 and J.S. Sekhon Vs Union of India and another, (2010) 4 SCT
246 are no longer good law. It would be appropriate to notice the interpretation put by the Apex Court in the cases V.N. Singh and J.S.
Sekhon (Supra) first.
Section 122 of the Army Act in substance prescribes that no trial of court martial of any person subject to the provisions of the Act for any offence shall be commenced after the expiration of a period of three years. It further explains as to when period of three years shall commence. It provides that period of three years shall commence on the date of the offence or where the commission of the offence is not known to the person aggrieved by the offence or to the authority competent to initiate action, the first day on which such offence comes to the knowledge of such person or authority, whichever is earlier. The Apex
Court was called upon to interpret the words „person aggrieved‟ within the meaning of Section 122(1)(b). It has been held that the term “the person aggrieved by the offence” would be attracted to natural persons -35- i.e. human-beings who are victims of an offence complained of, such as offences relating to a person or property and will not include juristic person like an Organization as in the present case. The relevant portion from the aforesaid judgment is reproduced below:-
“Section 122 of the Army Act in substance prescribes that no trial of court martial of any person subject to the provisions of the Act for any offence shall be commenced after the expiration of a period of three years. It further explains as to when period of three years shall commence. It provides that period of three years shall commence on the date of the offence or where the commission of the offence is not known to the person aggrieved by the offence or to the authority competent to initiate action, the first day on which such offence comes to the knowledge of such person or authority, whichever is earlier. In view of the provisions of Section 122(1)(b) a question arises as to who is the person aggrieved within the maning of the said Section. According to the respondent Brigadier K.S. Bharucha was the person aggrieved and the period of three years shall commence from the date when commission of offence by the respondent came to his knowledge on May 17, 1993 when Lt Col P. Oomen submitted his report to Mr. Bharucha. The contention of the Union of India is that in terms of Army Act, Mr. K.S. Bharucha was neither the person aggrieved nor authority competent to initiate action and therefore the date on which the Lt Col P. Oomen submitted report would not be relevant for the purpose of determining the question whether the trial commenced against the respondent was time barred. The term “the person aggrieved by the offence” would be attracted to natural persons i.e. human- beings who are victims of an offence complained of, such as offences relating to a person or property and will not include juristic person like an Organization as in the present case. -36- The plain and dictionary meaning of the term “aggrieved” means hurt, angry, upset, wronged, maltreated, persecuted, victimised etc. It is only the natural persons who can be hurt, angry, upset or wronged or maltreated etc. If a Government organisation is treated to be an aggrieved person then the second part of Section 122(1)(b) i.e. “when it comes to the knowledge of the competent authority to initiate action” will never come into play as the commission of offence will always be in the knowledge of the authority who is part of the organisation and who may not be the authority competent to initiate the action. A meaningful reading of the provisions of Section 122(1)(b) makes it absolutely clear that in the case of Government organisation, it will be the date of knowledge of the authority competent to initiate the action, which will determine the question of limitation. Therefore, the finding of the High Court that Brigadier K.S. Bharucha was an aggrieved person is legally and factually incorrect and unsustainable. Further, neither Brigadier Mr. K.S. Bharucha, nor Major General BS Suhag were competent to initiate action against the respondent because the term “competent to initiate action” refers to the competency of the authority to initiate or direction disciplinary action against any person subject to the provisions of the Army Act.”
The judgment would further show that in that case also, technical
Court of Inquiry was convened on 8.7.1994 re-recommending of the examination of certain witnesses for bringing into light the correct details and the persons responsible for the irregularities by a Staff Court of
Inquiry and accordingly Staff Court of Inquiry was ordered. The Court of Inquiry was concluded through its report dated 31.8.1994 and the said report came to the knowledge of the competent authority to initiate action -37- against the concerned person. In this background, the Apex Court made the following observations :-
“On the facts and in the circumstances of the case, this Court finds that the period of limitation for the purpose of trial of the respondent commenced on December 3, 1994 when the GOC-in-C Western Command being the competent authority directed disciplinary action against the respondent in terms of Section 122(1)(b) of the Army Act. The period of three years from the direction dated December 3, 1994 would expire on December 2, 1997, whereas the GCM commenced the trial against the respondent on December 17, 1996 which was well within the period of limitation of three years. Therefore the impugned judgment is legally unsustainable and will have to be set aside.”
The aforesaid decision has been followed by the Apex Court in the case of J.S. Sekhon (Supra) wherein it has been held that since the authority competent to initiate action has derived his knowledge about the commission of the offence on submission of the report of the Court of
Inquiry 11.10.1996 or at the most on submission of the report by the technical board of officers on 9.4.1995, the trial is within time.
Now comes for our consideration the relied upon decision. A reading of the judgment of the Apex Court in the case of Rajvir Singh
(Supra) which has been relied upon by the learned counsel for the petitioner, would show that the afore stated two judgments were placed before the Apex Court but have been distinguished. While pointing out the distinguishing nature, the Apex Court has observed that in both the cases, the authority competent to initiate action against the delinquent
-38- officer had passed the direction for taking action against the delinquent officer on the same day it came to know about the commission of the offence and identity of the offender. On the peculiar facts involving in the case of Rajvir Singh, the Apex Court found that so far as culpability of the appellant is concerned, the competent authority had already formed the opinion on the basis of the report of the Court of Inquiry and the recommendation of the GOC, MB Area. In Para 23 of the judgment, the
Court opined that the competent authority was in knowledge of the offence and the identity of the appellant therein as one of the alleged offenders on 7.5.2007. Reckoning from that date, the order passed to convene the General Court Martial on August 23/26, 2010 is clearly barred by time. It is one thing to say that earlier judgments of the Apex
Court on given facts, is not applicable but altogether a different thing to say that the law laid down by the Apex Court in the cases of V.N. Singh
(Supra) and J.S. Sekhon (Supra) have been over-ruled. A meaningful reading of the judgment of the Apex Court in the case of Rajvir Singh
(Supra) leaves no doubt that it no where expresses a dissenting note or their non-approval or reversal of law as propounded in the earlier cases by the Apex Court. The judgment in the case of Rajvir Singh is based on the peculiar facts of that case. The competent authority had occasion to peruse the proceedings of Court of Inquiry on7th May, 2007. Therefore, it concluded that the period of limitation will start from that date. In the absence of any such material before us, we are of the opinion that Rajvir
Singh‟s case (supra) does not advance the petitioner‟s case any further.
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At the cost of repetition, it has been noted above that even from the date of the ordering of Court of Inquiry i.e. 9.8.2002, the initiation of proceedings, by no stretch of imagination can be said to be beyond three years from that date. The order to convene the General Court Martial was passed on 11.11.2003, which is an accepted fact. Therefore, the point No. 3 is decided by holding that there is no substance that G.C.M. was convened beyond the prescribed period.
Point No. 4
Now, we take up Point No.4 with regard to plea of double jeopardy raised by the petitioner.
The petitioner submits that proceedings of GCM commenced w.e..f. 25.09.2003 when the petitioner arraigned before Brig Gurjit Singh
Dhillon along with a team of four officers of the rank of Colonel, who were made Members of GCM. The petitioner objected to the framing of charge against him, for which the prosecutor requested GCM to file reply to the objections raised by the petitioner. The matter was adjourned to
13.10.2003. On 13.10.2003, the GCM re-assembled and thereafter adjourned sine die and till date the petitioner has not been informed for not convening the same very GCM. Thereafter, the petitioner was again handed over another convening order dated 11.11.2003 informing him that now the GCM proceedings will be presided over by Brig Yash
Narayan and his team of four officers. He has been served with a copy of charge sheet. The petitioner having been tried by the GCM presided over by Brig Yash Narayan and his team of officers, the submission is that conviction is bad due to doctrine of double jeopardy. -40-
On careful consideration of the matter, we find that the trial of the petitioner is not barred and the plea of double jeopardy is not available to the petitioner.
Under Article 20(2) of the Constitution of India, a fundamental right is guaranteed which is known as double jeopardy i.e. a person must not be put in peril twice for the same offence. The doctrine is based on ancient maxim nemo debet bis punire pro uno delicto which means that no one ought to be punished twice for one offence. The plea pre- supposes that a person has been previously convicted or acquitted of a charge for the same offence as that in respect of which he is arraigned.
The doctrine of double jeopardy is also contained in Section 26 of the
General Clauses Act and Section 300, Cr.PC. Both the provisions imply the expression, “same offence.” Army Rule 53 provides that an accused may offer a plea in bar of trial on three grounds mentioned in clauses (a),
(b) and (c) thereof. For the same of convenience, Rule 53 (1) (a) and (b) are produced below:-
53. Plea in bar.- (1) The accused, at the time of his general plea of “Guilty: or “Not Guilty” to a charge for an offence, may offer a plea in bar of trial on the ground that –
(a) he has been previously convicted or acquitted of the offence by a competent criminal court or by a court-martial, or has been dealt with summarily under sections 80, 83, 84 and 85, as the case may be, for the offence, or that a charge in respect of the offence has been dismissed as provided in sub-rule (2) of rule 22; or
(b) the offence has been pardoned or condoned by competent military authority……” -41-
A bare reading of the afore-quoted provisions would show that to press plea in bar under clause (a) or (b), the accused has to prove –
(i) He has been previously convicted or acquitted of the offence by a competent criminal Court or by Court Martial; or (ii) That a charge in respect of the offence has been dismissed as provided in sub-rue (2) of Rule 22; (iii) The offence has been pardoned or condoned by a competent authority.
On the scrutiny of material on record, we find that there is nothing on record to show that the petitioner has been previously convicted or acquitted of the offence by the first GCM which commenced w.e.f.
25.09.2003 and adjourned sine die on 13.10.2003.
Reverting to the pleadings in this regard, the petitioner has averred that he objected to the framing of the charge against him and the case was adjourned to enable the prosecutor to file reply to the objections raised by the petitioner till 13.10.2003 on which date the GCM was adjourned sine die. On these facts, it is difficult to draw a conclusion that the petitioner has been acquitted of the offence. There is, admittedly, no acquittal order or any such order of that kind on record to show that, as a matter of fact, the petitioner was acquitted. It is petitioner‟s own inference that since
GCM was adjourned sine die, he stands acquitted. The said inference of the petitioner is not legally correct. The ingredients of clauses (a) and (b) are lacking.
Our above view finds support from a judgment of the Apex Court given in Chief of Army Staff and others versus Major E. P. Chadha,
AIR 1991 (SC) 460. In this case, the Apex Court was called upon to deal -42- with the prohibition of second trial in view of Section 121 of the Act.
Para 15 is relevant for present purposes is reproduced below:-
“15. In our opinion, Section 121 of the Act, which deals with the prohibition of second trial, has no application to the present case before us as the respondent was neither acquitted nor convicted by the Court Martial or by a Criminal Court nor has he been dealt with Under Sections 80, 83, 84 or 85 of the Act. Section 127 of the Act deals with successive trials by a criminal court and court martial and sub-section (1) of Section 127 thereof specifically provides that a person convicted or acquitted by a court-martial may, with the previous sanction of the Central Government, be tried again by a criminal court for the same offence or on the same facts. A perusal of the provisions of this section clearly shows that there is no general bar as such prohibiting successive trials by a court-martial and by a criminal court and that even where a person has been convicted or acquitted by a court-martial of the offence in question, he can be tried for the same offence by a criminal court, with the previous sanction of the Central Government. In the case before us, the question of sanction of the Central Government never arose because, as we have already pointed out, the respondent was neither convicted nor acquitted by the court- martial or dealt with under any of the sections set out earlier. In our opinion, therefore, the aforesaid submission of learned Counsel for the respondent must be rejected.”
The learned counsel for the petitioner submitted that the earlier
GCM presided over by Brig Gurjit Singh Dhillon continues to exist and, therefore, the second GCM presided over by Brig Yash Narayan and his team of officers was wrongly constituted. He submits that no reason has been assigned for the discontinuance of the first GCM presided by Brig
Gurjit Singh Dhillon. -43-
We find that the said plea has been raised for the first time before us as an afterthought. It is interesting to note that in Para 12 of the Writ
Petition, which is a long Para, the petitioner himself has provided the answer to the above argument that “ xx xx xx that the GCM re- assembled and thereafter adjourned sine die. Since that date, as the Court was reduced below the minimum number as one Member was absent and till date, the said Court did not meet xxx xxx. “
The case of the respondents is that Brig Gurjit Singh Dhillon received paralytic stroke and in view of his long hospitalization and medical treatment, the said GCM was dissolved. At this juncture, the learned counsel for the petitioner submits that the said plea has been raised by the respondents in their written statement filed before the
Tribunal and the proceedings being appeal before the Tribunal should not be taken into consideration. Before addressing the said objection, we may take note of Section 117 of the Act which reads as follows:-
“117. Dissolution of courts-martial. – (1) If a court-martial after the commencement of a trial reduced below the minimum number of officers required by this Act, it shall be dissolved.
(2) If, on account of the illness of the judge-advocate or of the accused before the finding, it is impossible to continue the trial, a court-martial shall be dissolved.
(3) The officer who convened a court-martial may dissolve such court-martial if it appears to him that military exigencies or the necessities of discipline render it impossible or inexpedient to continue the said curt-martial.
(4) Where a court-martial is dissolved under this section, the accused may be tried again.” -44-
The aforesaid quoted section statutorily provides that if a court after commencement of trial reduced to the minimum number of officers required by the Army Act, it shall be dissolved and its sub-section (4) provides, where a Court Martial is dissolved under this Section, the accused may be tried again. This being the legal position, we find no illegality in convening the G.C.M. in question.
A dispute was raised by the petitioner‟s counsel that we should decide as to whether the transferred Writ Petition to the Tribunal is to be considered as Original Application within the meaning of Section 14 of the Armed Forces Tribunal Act, 2007 (for short, the Act ) or an appeal within Section 15 thereof. Section 14 deals with the original jurisdiction of the Tribunal by providing that the Tribunal shall exercise on or appointed date, all the jurisdiction, powers and authority, exercisable in relation to all service matters by all Courts except that of the Supreme
Court or a High Court exercising writ jurisdiction under Articles 226 and
227 of the Constitution of India. Section 15 is the appellate jurisdiction of the Armed Forces Tribunal against an order, decision, findings or sentence passed by the Court Martial. Sub-section (2) provides remedy to any person aggrieved by an order etc. passed by the Court Martial to file an appeal before the Tribunal. The powers of the Tribunal, on appeal, have been mentioned in Section 17 of the Act, a perusal of Section 17 of the Act would show that the Tribunal while hearing an appeal against the decision of Court Martial against the decision of Court Martial, besides other things, shall have the power to receive evidence. The submission of petitioner‟s counsel is that, along with the written statement filed by the -45- respondents, certain documents have been annexed which cannot be taken into account as they were not part of evidence before the Court Martial.
Even if those documents are ignored, in view of the stand of the respondents, that the strength of the first Court Martial was reduced to minimum number of officers, in view of Section 117 of the Act, the said GCM stands dissolved.
A perusal of the Order Sheet of the Writ Court (High Court) would show that the Writ Petition was admitted by the order dated 01.04.2009. Notices were issued calling upon the respondents to file reply. The matter was taken up thereafter on 18.12.2009 when an order transferring the file of the case to the Armed Forces Tribunal, Chandigarh was passed. Evidently no reply could be filed before the High Court in the Writ Petition. The respondents, after transfer of the file to the Armed Forces Tribunal, have filed reply wherein they have annexed a copy of order dated 15.10.2003 which is titled as “ FORM OF ORDER FOR THE DISSOLUTION OF A GENERAL COURT MARTIAL UNDER THE ARMY ACT. The said order is reproduced below:-
“Orders by IC – 17327P Lieutenant General Gurditar Singh, General Commanding 2 Corps IC-31665K Colonel Whereas the General Court Martial JASWANT SINGH SM, Branch which assembled on 25 Sept 2003 Recruiting Office Tiruchirapalli for the purpose of trying the attached with Headquarters 474 accused person named in the Engineer Brigade margin and adjourned sine die on 13 Oct 2003, has reduced below legal minimum number of officers required by Section 113 of the Army Act, 1950 on account of illness of IC-2469911 Colonel Chhatwal Tarvinder Singh, member of the said court, who as per the opinion of medical officers attending on him, is unlikely to be fit to attend the trial for a period of six months to one year. I as the convening officer, in exercise of powers vested in me under Army Act Section 117 (1), hereby dissolve the said Court Martial.
-46-
Signed at Ambala this Fifteenth day of October 2003
Sd/- ( GD Singh ) Lieutenant General General Officer Commanding 2 Corps
At this juncture, we may take note of one Miscellaneous
Application filed by the petitioner before the Tribunal which is M.A No.
41 of 2010. Through this application, the petitioner has prayed that the respondents be directed to place on record the following information which are necessary for just adjudication of the case:-
(a) Inchoate GCM proceedings convened to try the applicant vide
convening order dated 16 September 2003 and adjourned sine
die on 13 October 2003.
(b) File containing directions of GOC Head Quarter 2 Corp for
ordering Court of Inquiry and on the Court of Inquiry in the
subject matter which assembled on 17 October 2002 and
subsequent days, on the directions contained, the GCMs to try
the applicant were ordered.
Vide order dated 26.05.2010, it was ordered that the aforesaid application shall be considered at the time of final hearing. The petitioner himself prayed for the production of GCM proceedings to try him which was adjourned sine die on 13.10.2003. The respondents have filed copy of the Dissolution Order, which has been reproduced above.
We are of the view that if the said order is taken on record, it will advance the cause of justice and will not prejudice the petitioner in any manner. The plea now sought to be raised before us is a new plea and -47- was not urged before the subsequent GCM. Had such a plea been raised there, the prosecution could have an opportunity to produce the said
Dissolution Order In any view of the above matter, Section 17 of the
AFT Act, 2007 confers very wide powers on the Tribunal while hearing appeal under Section 15. The Tribunal has been empowered to receive evidence and also to determine any question which is necessary to be determined in order to do justice in the case vide clauses (c ) and (g) of
Section 17. This disposes of M.A No. 41 of 2010 accordingly.
Rule 51 of the Army Rules requires the accused to raise the objection in respect of jurisdiction at an early stage of commencement of proceedings. From the objections which were raised by the petitioner before the G.C.M., it does not appear that any such objection in the manner in which it has been sought to be raised before us, was raised before the G.C.M. This is also one of the reasons not to accept the plea of the petitioner on point No. 4.
Before parting with the case, we may note that the position of
Station Commander is akin to that of a trustee. The petitioner being the
Station Commander was duty bound to act for the benefit of the Army and was duty bound to protect the Nation. He, by giving the proposal to exclude certain Khasra Numbers from the acquisition proceedings has betrayed the confidence reposed in him. It is clear that the petitioner wrote the letter dated 27.10.2000, clearly with the intention to defraud the
Central Government and the excuses given by him that those plots were not needed and as such he tried to save the revenue of the Central
Government, is absurd. From the day one, the object of acquiring the
Rose Villa property was for the safety and security of the Cantonment -48- area and Military Station at Nahan. But the petitioner by his wilful action has put the security of the Military Station at its peril. Regrettably, the conduct of the petitioner reminds us one of the situations when a
Legislature becomes the transgressor and fence eats the crops.
Point No. 5:
In the last, the learned counsel for the petitioner submitted that looking to the exemplary service record of the petitioner, the punishment of cashiering is harsh and excessive. He submits that the mitigating circumstances should be taken into consideration The petitioner has got
27 years of unblemished service record
The learned counsel for the respondents, on the other hand, submits that the sentence awarded to the petitioner is most appropriate and in any case it is not shockingly disproportionate. He further submits that in such matters judicial intervention is permissible only on very limited grounds.
Considered the respective submissions of the learned counsel for the parties and perused the records.
The GCM, before awarding the sentence after holding the charge stands proved, got a statement as to the character and particulars of the petitioner. The said statement would show that the accused has been awarded COAS Commending Card vide order dated 13.01.1987 and
Sena Medal vide Government of India Notification dated 26.01.1998. He was not sentenced earlier at any point of time and there are no entries in the Conduct Sheet of the petitioner. The petitioner‟s general conduct is, “exemplary.” He has served the Army for 27 years and about 8 months.
-49- Section 15 (6) (b) (ii) of the Armed Forces Tribunal Act provides that the Tribunal shall have power to mitigate the sentence if sentence is found to be excessive, illegal or unjust. In Ranjit Thakur versus Union of India, AIR 1987 (SC) 2386, the Apex Court observed as follows:-
“But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on the aspect, which is otherwise, within the exclusive province of the Court Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. In the present case, the punishment is so stringently disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review.”
The aforesaid judgment along with other judgments has been considered in a recent decision of the Supreme Court in S. R. Tiwari versus Union of India and others decided on 28.05.2013.
In Union of India vs. R. K. Sharma, 2001 (9) SCC 492, Apex
Court explained the observation in Ranjit Thakur. It clarified that in
Ranjit Thakur, the charge was ridiculous, the punishment was harsh and disproportionate and it was on such gross facts that Apex Court had held that the punishment was so strikingly disproportionate that it called for interference; and the said observations in Ranjit Thakur are not to be taken to mean that a Court can, while exercising the power of judicial review, interfere with the punishment merely because it considers the punishment to be disproportionate. It was held that only in extreme cases,
-50- which on their face, show perversity or irrationality, there could be judicial review and merely on compassionate grounds, Courts should not interfere.
Looking to the long service of the petitioner in Army and the fact that his services have been exemplary, punishment of cashiering is shockingly disproportionate to the gravity of the offence held to be proved. We are not interfering with the finding of guilt, but on the facts and circumstances of the case, we may consider the proportionality of punishment to find out whether it is perverse and irrational. Taking into consideration that the land has not been acquired by the Central
Government, we are of the opinion that the sentence of dismissal from service in terms of Section 71 (e) of the Act will serve the interest of justice. As a consequence of the punishing of cashiering being set aside and substituted by a lesser punishment of dismissal from service, the
T.A/Writ is allowed in part. The petitioner may be entitled to get pension as per Pension Regulations for the Army, 1961 and he may approach the
President of India in terms of Section 16 of the Act for grant of pension.
In the result, the T.A/Writ is allowed in part. No order as to costs.
M.A. No. 41 of 2010 stands disposed of.
M.A. No. 42 of 2010 for permission to place on record certain documents filed by the petitioner was not pressed during the course of arguments and the same stands rejected.
The original record of G.C.M. is returned herewith.
(Justice Prakash Krishna)
(Air Marshal (Retd) SC Mukul) 31.03.2014 „pl‟ Whether the judgment for reference to be put up on website – Yes/No