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ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH at CHANDIMANDIR -.- (1) MA 1204 of 2014 and OA (Appeal) 437 of 2010

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ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH at CHANDIMANDIR -.- (1) MA 1204 of 2014 and OA (Appeal) 437 of 2010 1 OA 437 of 2010 ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR -.- (1) MA 1204 of 2014 and OA (Appeal) 437 of 2010 Yash Paul …… Petitioner(s) Vs Union of India and others …… Respondent(s) -.- For the Petitioner (s) : Col (Retd) NK Kohli, Advocate For the Respondent(s) : Ms Renu Bala Sharma, CGC (2) MA 1203 of 2014 and OA (Appeal) 434 of 2010 Balraj Singh Andotra …… Petitioner(s) Vs Union of India and others …… Respondent(s) -.- For the Petitioner (s) : Col (Retd) NK Kohli, Advocate For the Respondent(s) : Mr Gurpreet Singh, Sr PC (3 ) MA 6431 & 1205 of 2014 and OA (Appeal) 438 of 2010 Balbir Kumar …… Petitioner(s) Vs Union of India and others …… Respondent(s) -.- For the Petitioner (s) : Col (Retd) NK Kohli, Advocate For the Respondent(s) : Mr Ram Chander, Sr PC Coram: Justice Surinder Singh Thakur, Judicial Member. Lt Gen (Retd) Sanjiv Chachra, Administrative Member. -.- ORDER 24.2.2016 -.- APPEAL AGAINST SCM The above titled OA (Appeals) are arising out of the one and the same incident and the verdict, challenging convening of Summary Court Martial and order of conviction on each of the petitioners with the sentence of reduction to ranks and their dismissal from service on a charge under Section 41(2) of the Army Act for disobedience of lawful command in utter contravention of the provisions of Army Act in active insurgency operations during May, 2009. 2 OA 437 of 2010 2. Precisely, the prosecution story which emerges from the record can be stated thus. i)It is the prosecution case that the ‘ Bund Junction post’ is a sensitive post located on Indo-Pak international Border. Post Commander Nb Sub Kewal Singh was given orders regarding timing and location of an ambush at Devak Nala Uncut by Lt. Sudheer Babu.During roll call the accused petitioners Hav. Yash Paul alongwith Hav. Balraj Raj Singh and Nk Balbir Kumar were detailed for duty to lay ambush during the intervening night of 21/22 May, 2009 from 2200 hrs to 0100 hrs to prevent infiltration/ exfiltration of terrorists in J & K. ii). Accused petitioner Hav. Yash Paul was the ambush party Commander. He was briefed about the impending task including ambush occupation drills, springing of ambush, radio signal signifying occupation of ambush site and actions to be taken during contingencies. There was no query or questions by the said ambush party to the post commander during briefing or before proceeding to ambush site. iii). It is alleged that Hav. Yash Paul was having illicit affairs with the wife of a colleague of village ‘Barota Camp’, since the time both of them were posted in the ‘Dogra Regimental Centre’. Since then he was in touch with her and even met her on their way to Bund Junction post. Thus accused petitioners while on their way to the ambush point, planned to visit the house of the said lady at Barota Camp nurturing bad intentions. A villager while returning from nature’s call noticed them in the village in the compound of the lady and questioned their presence. On this Hav.Balraj Singh petitioner fled away from the spot and went towards Bund Junction Post but Nk Balbir Kumar was caught by the villagers and raised alarm, later Hav Yash Paul was also caught. They were disarmed and kept as captives inside the house of Lumbardar. iv). Accused petitioner Hav. Balraj Singh who made an escape, was chased on the motor-cycle by the villagers. He came to the Camp and is alleged to have told the Sentry post Lance Hav. Chaman Lal that petitioner Balbir Kumar was caught by villagers, in the meantime he noticed Ex. Sarpanch Prem Paul, Ex Sub Rattan Lal and Ex. Hav Tilak Raj of village Barota Camp coming towards the post and made escape inside the camp. The aforesaid villagers narrated about the incident to Post Commander Nb Sub. Kewal Singh and admitted that Balbir Kumar was held as captive by them. They gave sequence of events in writing. PW 1 Nb Sub Kewal Singh had also enquired from sentry post. He informed that Hav Balraj Singh 3 OA 437 of 2010 Andorata had come back and that two others were caught in the village by the villagers. This fact was also confirmed by the villagers. v). On this Naib Sub Kewal Singh called Balraj Singh petitioner and asked him about the incident. He told him that they had gone to the village at the instance of petitioner Yash Paul to meet his relative, thereafter they were to fall back to the ambush site. vi). Thereafter PW Nb Sub Kewal Singh took petitioner Balraj Singh and one Nk Inderjit with him in ALS vehicle being driven by Hav. Anil Kumar followed by the civilians on their motor bikes to the said village. vii). On reaching village, the villagers showed to Nb Sub Kewal Singh the place where the petitioners were first sighted near the house of lady and one of them was removing an electric bulb from outside her house while other two waited on the road. They also revealed that later petitioner Yash Paul was caught and brought to the village as captive. PW 1Nb Sub.Kewal Singh was, then taken to Ex Sarpanch’s house where petitionesr Yash Paul and Balbir Kumar were found standing without their weapons. Ex- Sarpanch told him that their weapons were kept safe in a separate locked room, so that they might not run away. viii) The house was surrounded by 60/70 persons they were shouting to handover them to the police, as petitioners had no business to enter the village during late hours. Thus to appease them Nb Sub Kewal Singh shouted at the petitioners to calm down the gathering of men and women which worked. He also promised to take strict action on them at unit level. The villagers then assured that they would not to report the matter to the police and released the captive petitioners. ix). Around 0230 hrs on 22.5.2009 PW Nb Sub Kewal Singh along with petitioners reached Bund Junction and called for a central fall-in and sought the verbal explanation of petitioners Balraj and Balbir, the purpose of visiting the village instead of doing the task assigned. But they including Yash Paul petitioner while accepting their fault pleaded to save them from the trouble as they were attending the promotion cadre also. x) PW Kewal Singh aforesaid stated that Yash Paul petitioner during fall in also admitted that he had an affair with a lady of that village who had contacted him earlier on his mobile phone to meet her. Even on 21.5.2009, she met him in Vijaypur Market during the day time and 4 OA 437 of 2010 invited him during night. They also stated that they did not occupy the ambush sight but visited the village instead. xi). Later Lt V. Sudheer Babu and Adjutant, Capt Shekhawat and Officating Adj. Maj NLS Yadav came to know about the incident. PW Lt. V. Sudheer Babu also interacted with the petitioners at evening time on 22.5.2009 as in the morning they had gone for the promotion cadre exam. 3. A Court of Inquiry (CoI) was conducted to investigatge the incident in question. During the COI, Yash Paul petitioner admitted having visited village Barota Camp as he knew a woman since 2004 and other two petitioners readily agreed to accompany him, but to avoid being caught petitioner Balbir Kumar removed the electric bulb from the compound. While Yash Paul proceeded further while handing over his weapon to Balbir Kumar but when they heard voices of villagers behind them, all of them had tried to escape. Other petitioners had also revealed the same story. Some more witnesses were also examined in their presence giving full chance of cross- examination to the petitioners. At the end, the COI indicted all the petitioners on the ground that they did not occupy the ambush site thus willfully defied the orders of post commander and further more that they tried to sneak into the house of a lady where they were caught, whereas PW Nb. Sub. Kewal Singh was indicted for having failed to inform his superior officers at forward area about the incident and gave a false morning OK report to Officiating Adjutant. The CoI recommended disciplinary action against all of them. All of them were accordingly marched before the CO for suitable disciplinary action. 4. A perusal of the record reveals that the CO afforded ample hearing to each of the petitioners and went through the record. After 5 OA 437 of 2010 complying with Rule 22 of the Army Rules, he ordered recording of Summary of Evidence (SOE) on tentative charge(s) under Section 41(2) and 63 of the Army Act against each of them, in the presence of two independent witnesses. The accused petitioners were given opportunity to cross-examine the witnesses. Rule 23 of the Army Rules was extensively complied. Further an Addl.SOE was ordered to record statements of the villagers . The villagers also confirmed the fact of entry of the petitioners in the village and revealed that two of them were held captives but released on assurance of PW Nb.Sub. Kewal Singh that action at unit level would be taken and the matter was thus not reported to the police. 5. After considering the evidence recorded during SOE and Addl. SOE, the CO framed the charge(s) against each of the petitioners and issued an order convening the Summary Court Martial (SCM) against them.
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