Jammu & Kashmir High Court
Paramjit Singh Kohli vs Union Of India (Uoi) And Ors. on 10 September, 2007
Equivalent citations: 2007(3)JKJ202
JUDGMENT Y.P. Nargotra, J.
1. Through this petition the petitioner, who is a Lt. Colonel in the Army, is questioning the legality of his trial by General Court Martial being held at 39 EME Battalion (Transport), C/O 56 APO, and seeks the quashment of the order of convening of General Court Martial against him.
2. The petitioner was posted as Assistant Director, Supplies & Transport, HQ 21, Sub Area and served there during the period commencing from 4.3.1998 to 25.11.2000. By virtue of his appointment as ADST he was the Contract Operating Officer of HQ 21 Sub Area in relation to the hiring of civil hired transport. While he was serving at ASC Centre (North), Gaya (Bihar) in 2000 after having been transferred, he was attached with 39 EME Bn. C/o 56 APO in January 2003. The Commanding Officer HQ 39 EME Bn. (TPT) vide his Letter No. 21201/PSK/PC/V-1 dated 2.6.2004 conveyed to the petitioner that the competent authority, i.e., the Commander 21 Sub Area had decided to try the petitioner by General Court Martial. The petitioner was also served with the Charge Sheet dated 31.5.2004 and its schedules, whereby he was charged for commission of the offences contemplated by Section 52(f) and Section 63 of Army Act for his various commissions and omissions while serving as Assistant Director, Supplies & Transport, HQ 21, Sub Area. The essence of the charges is that he with an intent to defraud the Army made over payments to different contractors who had provided civil hired transport for transportation of army material on route to Pathankote-Leh/Kargil via Rohtang. The General Court Martial commenced its proceedings on 10.6.2004 and the petitioner was formally arraigned on 30.6.2004, whereafter it was adjourned sine-die and then reassembled on 9.8.2004.
The petitioner after going through the charge sheet found that all the alleged 18 offences related to the period between 1.7.1999 to 14.11.2000, so on 13.8.2004 he raised the 'plea-in-bar' before the General Court Martial in terms of Rule 53 of the Army Rules for submitting that his trial was barred by limitation in view of the provisions contained in Section 122 of the Army Act, 1950. The plea set up by the petitioner was opposed to by the prosecution in its reply filed on 14.8.2004. On the same day the petitioner filed the rejoinder. However, the General Court Martial rejected the plea of petitioner on 14.8.2004 itself and directed the prosecution to lead its evidence. Being aggrieved of the rejection of his plea, the petitioner has filed the present petition.
3. While putting the respondents on notice, this Court by way of interim direction passed the following order on 26.8.2004:
Subject to objections from other side and till next date of hearing, it is directed that the Court Martial may proceed against the petitioner, however final order shall not be passed.
4. In view of the above direction, the General Court Martial proceeded against the petitioner and has ultimately found him guilty and has proposed the sentence also, but the same has not been sent for confirmation to the competent authority.
5. The case of petitioner is that the over payment to civil hired transport contractors as tabulated in the schedules of the charge sheet, which is more than rupees two crores, even if considered to be an offence, which in the circumstances of the case is not, the same stood committed between the period of 1.7.1999 to 14.11.2000. His identity was known to the competent authority and if the competent authority was of the view that he should be tried by the General Court Martial for the alleged offences, it could put him on trial within the period of limitation prescribed by Section 122 of the Army Act. Since he was arraigned as an accused in the General Court Martial only on 30.6.2004, the trial was barred by time and, therefore, the General Court Martial was not justified in rejecting his plea-in-bar.
6. The stand of respondents is two fold. Firstly, the writ petition is not maintainable in view of the fact that the petitioner has not exhausted the remedy available to him under Section 164 of the Act, whereunder he could have presented the petition to the officer or authority empowered to confirm any finding or sentence of such Court martial, for questioning the correctness, legality or propriety of the order. Secondly, it has been submitted that the accused/petitioner was detailed as Contract Operating Officer for civil hired transport. He made over payments to the contractors of civil transport. The matter was investigated by HQ 21 sub-area but the responsibility for making the over payments could not be fixed. However, in the meanwhile CDA Northern Command, Jammu raised observations during their post audit vide letters dated 6/7 December 1999 and 15th February 2000 and brought out the same to the notice of competent authority of 21 sub-area. The CDA Northern Command did not blame anyone and as the observations were general in nature, therefore, a Court of inquiry was ordered by HQ Northern Command vide convening Order No. 24000/35/SIM/Q1(ops) dated 17.1.2001. On 12.6.2002, while finalizing the Court of Inquiry, the petitioner was blamed by GOC-in-C, Northern Command and a prima facie case was found established against him. Subsequently, he was attached with 39 EME Bn. (Tpt) for conducting summary of evidence and based on the summary of evidence a General Court Martial was convened. Therefore, according to the respondents the trial of petitioner through the General Court Martial is not barred by limitation.
7. I have heard learned Counsel for the parties and perused the record.
8. Undisputedly, the trial of petitioner by the General Court Martial has been ordered by the competent authority, i.e., the Commander 21 sub-area on 31.5.2004 and the petitioner has formally been arraigned as an accused by the General Court Martial on 30.6.2004. The convening of the Court Martial and arraignment of the petitioner as an accused has been preceded by a Court of inquiry, by which prima facie the case against the petitioner is stated to have been established. The Court of inquiry as per the stand of respondents was concluded and finalized on 12.6.2002. Section 122 of the Army Act reads as follows:
122. Period of limitation for trial.--(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 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.
(2) The provisions of Sub-section (1), shall not apply to a trial for an offence of desertion or fraudulent enrolment or for any of the offences mentioned in Section 37.
(3) In the computation of the period of time mentioned in Sub-section (1), any time spent by such person as a prisoner of war, or in enemy territory, or in evading arrest after the commission of the offence, shall be excluded.
(4) No trial for an offence of desertion other than desertion on active service or of fraudulent enrolment shall be commenced if the person in question, not being an officer, has subsequently to the commission of the offence, served continuously in an exemplary manner for not less than three years with any portion of the regular Army.
9. From the bare reading of Section 122 it is manifest that the period of limitation of three years commences from the date of the offence, and in case the commission of the offence was not known to the person aggrieved by the offence or to the authority competent to initiate action, it commences to run from the first day on which such offence comes to the knowledge of such person or authority, whichever is earlier and, in case where it is not known by whom the offence was committed, it commences from the first day on which the identity of the offender comes to be known to the person aggrieved by the offence or to the authority competent to initiate action, whichever is earlier.
10. Section 122 is a complete code in itself so far as the period of limitation is concerned. The terms of the section are absolute and there is no provision made under the Act for extension of time. Therefore, it is obvious that any trial commenced after the period of limitation would be patently illegal. Undoubtedly such a provision of limitation cannot be over-ridden or circumvented by an administrative act. In the present case the person aggrieved of the offence as well as the authority competent to initiate action in respect of the offence committed is the Commander 21 sub-area.
11. Now the question arising for consideration is from which date the period of limitation (3 years) would start running. In case Clauses (b) & (c) of Section 122 do not apply, then the period of limitation would run from the date of offence, i.e., at the most from 14.11.2000 and if it is held to run from that date, the trial of petitioner would be barred by limitation. So it is to be seen whether the case is covered by Clauses (b) & (c) of Section 122 and, if so, then from which date the competent authority can be said to have acquired the requisite knowledge.
12. The contention of Mr. Gupta, learned Counsel for petitioner is that the fact of making of over payments to the civil hired transport contractors on number of occasions prior to and upto March 2001 was in the knowledge of competent authority and, therefore, the requisite knowledge of commission of the offence as well as identity of the person, who had committed the offence, can be attributed to the competent authority upto the month of March 2001. He submits that as the arraignment of petitioner before the General Court Martial was made on 30.6.2004, therefore, the trial was barred by time. In support of his contention he seeks to rely on three definite instances/communications to show that the competent authority had acquired the knowledge of commission of the offence as well as identity of the person who committed the offence upto the period of March 2001.
13. His first instance is Letter No. 31552/CAO/ST11 dated 10.4.2000 of H.Q. Northern Command received by the competent authority on 16.4.2000, by which it was brought its knowledge regarding the alleged over payments having been made by the petitioner. In the said letter written by one Col. P.S. Mehta it has been stated:
CDA (NC) have intimated that during the course of scrutiny of CHT docus in r/o your fmn, they have detected that certain over payments have been made to CGT contractors for carriage of sup/stores to the fwd 'Z'. However, despite raising of the objn. States as per para 1 (a) and (b) above, there appears to have been no action taken at the level of ADST, HQ 21 Sub Area (the contract operating officer/s), to rectify and set the objns verified settled/dropped.
You may like to institute remedial measures and direct the concerned staff to take imdt action to resolve the issue on priority. In the event of non-rectification and early settlement of objns, you may consider taking appropriate action against the defaulting dealing staff/officer.
14. The second letter relied upon by the petitioner is a DO letter dated 15.1.2001 written by one Mr. D.K. Bakshi, Deputy Director of Audit Defence Survey, Northern Command, Jammu to Brig. R.A. Singh, Commander, 21 Sub Area, saying:
I am enclosing a Draft Paragraph regarding 'Overpayment of Rs. 2.49 crores to transport contractor' for its proposed inclusion in Report of Comptroller and Auditor General of India, Union Government Defence Services (Army & Ordnance Factories) for the year March 2001. It is requested that sentencewise reply to Draft Paragraph may please be arranged to be furnished within stipulated period of six weeks.
15. Along with this letter the draft paragraph was also submitted in which it stood observed:
Major General ASC, HQrs Northern Command, accepted the audit contention and directed 21 Sub Area to effect the recoveries from the contractors the actual recovery, however, remains to be effected (January 2001).
16. The third letter on which the petitioner seeks to rely is a DO letter dated 15.3.2001 written to HQ Northern Command (ST) by one T.S. Durga, Lt. Col. ADST. While giving parawise comments with reference to PCDA Northern Command's DO Letter No. SC/III/013/HT/Vol-X dated 19.2.2001 forwarded vide ADST letter dated 12.3.2001, it was stated:
In view of the above and a Staff Court of Inquiry already having been ordered vide HQ Northern Comd (Q/Ops) convening order No. 24000/35/SIM/Q1 (Ops) dt 17 Jan 2001, please advise further action.
17. In terms of Clauses (b) & (c) of Sub-section 1 of Section 122 of the Army Act, the period of limitation would start to run from the date the competent authority acquires the knowledge of commission of the offence or of the person who committed the offence. As to when the competent authority can be deemed to have acquired such knowledge would depend upon the nature of offence committed. If the nature of alleged offence is such in which no further investigation is necessary to find out whether any offence has been committed or the fact as to who has committed the same, then there would be no difficulty in attributing such knowledge of commission of the offence or of the person who committed the same to the competent authority from the date it was informed about the same. But it would not be so where the nature of offence involved is such that some investigation is necessarily required to be made for finding out as to whether the facts, which are in the knowledge of competent authority, constitute the offence or on such facts liability for the commission of an offence can be fixed on any person. In such a case the date of knowledge contemplated by Clauses (b) & (c) would be the date on which after investigation the commission of offence is disclosed or the date on which the identity of the offender is established before the competent authority.
18. In the present case the petitioner has been charged for the offences as contemplated by Section 52(f) and Section 63 of the Army Act on the allegation of having made the over payments to the contractors who provided civil hired transport for transportation of army goods. Section 52 reads:
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) willfully 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.
Section 63 provides:
63. Violation of good order and discipline.-Any person subject to this Act who is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and military discipline shall, on conviction by Court-martial, be liable to suffer imprisonment for a term which may extent to seven years or such less punishment as is in this Act mentioned.
19. From the bare reading of above two sections it is manifest that for constituting the offence it is necessary that the accused must be shown to have done the particular acts with the requisite criminal intention. Without requisite criminal intention the particular act may not constitute an offence. The allegation against the accused that he made over payments per se does not constitute the offence as contemplated by either of the sections. Prima facie the offences would have been constituted against the petitioner only if he was found to have actuated by the requisite criminal intention. Therefore, it was necessary for the competent authority to go into the question as to whether the petitioner possessed the requisite criminal intention at the time when he made the over payments despite the fact it was within the knowledge of competent authority that the petitioner had made the over payments. As per the stand of respondents the matter was investigated by HQ 21 sub area but the responsibility for making the over payments could not be fixed. However, in the meanwhile, CTA Northern Command, Jammu raised observations during their post-audit vide letter dated 6/7 December 1999 and 15.2.2000 and brought out the same to the notice of competent authority of 21 sub-area. The CDA Northern Command did not blame anyone and as the observations were general in nature, therefore, a Court of inquiry was ordered by HQ Northern Command vide convening Order No. 24000/35/SIM/Q1(Ops) dated 17.1.2001. On 12.6.2002 while finalizing the Court of inquiry the petitioner was blamed by GOC-in-C Northern Command and a prima facie case was found established against him. So he was attached with 39 EME Bn. (TPT) for conducting summary of evidence and based upon the summary of evidence a General Court Martial was convened. Thus, according to Mr. Magoo, learned ASG, for the first time the competent authority came to know about the commission of offence by the petitioner on 12.6.2002 and, therefore, the limitation started to run from the said date. As the petitioner was arraigned on 30.6.2004 within a period of three years, his trial by the General Court Martial cannot be said to be barred by time.
20. I am in agreement with Mr. Magoo. As already said because the further investigation for establishing that the accused had the requisite criminal intention was necessary, therefore, the limitation would have started to run from the date on which liability of the petitioner for commission of the offence came to be fixed after Court of Inquiry, i.e., 12.6.2002, as such his trial cannot be held to be barred by time, the same being within the period of three years as contemplated by Section 122 of the Army Act. This is one aspect of the matter.
21. The other aspect of the matter is that the petitioner after having subjected himself to the jurisdiction of General Court Martial took up the plea-in-bar that his trial was barred by time on the basis of documents referred above, which have been relied upon by him before this Court also. The learned General Court Martial after appreciating the contention of parties and having examined the documents relied upon by the petitioner rejected the plea of petitioner. Whether the above decision rejecting the plea of petitioner by the General Court Martial can be made subject matter of judicial review, that is to say whether the finding of General Court Martial can be interfered with in exercise of the power of judicial review by this Court vested under Articles 226 and 227 of the Constitution of India read with Sections 103 & 104 of Constitution of J&K. This question came up for consideration before the Apex Court in UOI v. Himmat Singh Chahar . While setting aside the judgment of Bombay High Court their Lordships observed as follows:
4. Since the entire procedure is provided in the Act itself and the Act also provides for a further consideration by the Chief of the Naval Staff and then by the Union Government then ordinarily there should be a finality to the findings arrived at by the competent authority in the Court-Martial proceedings. It is of course true that notwithstanding the finality attached to the orders of the competent authority in the court-martial proceedings the High Court is entitled to exercise its power of judicial review by invoking jurisdiction under Article 226 but that would be for a limited purpose of finding out whether there has been infraction of any mandatory provisions of the Act prescribing the procedure which has caused gross miscarriage of justice or for finding out that whether there has been violation of the principles of natural justice which vitiates the entire proceedings or that the authority exercising the jurisdiction had not been vested with jurisdiction under the Act. The said power of judicial review cannot be a power of an appellate authority permitting the High Court to reappreciate the evidence and in coming to a conclusion that the evidence is insufficient for the conclusion arrived at by the competent authority in court-martial proceedings. At any rate it cannot be higher than the jurisdiction of the High Court exercised under Article 227 against an order of an inferior tribunal. This being the parameter for exercise of power of judicial review against the findings of a competent authority in Court martial proceedings, and applying the same to the impugned judgment of the High Court we have no hesitation to come to the conclusion that the High Court overstepped its jurisdiction in trying to reappreciate the evidence of Mrs. Nirmala Sharma and in coming to the conclusion that her evidence is not credible enough to give a finding of guilt against the respondent of a charge under Section 354.
22. A similar view had been expressed by the Supreme Court in Union of India v. Maj. A. Hussain . This Court had also the occasion to consider the said question in J.S. Sekhon v. UOI 2002 Cri. L.J. 783. While relying upon the judgment of Supreme Court in Himmat Singh's case (supra) it was held:
So the conclusion is that the plea in bar under Section 122 of the Army Act having been raised before the General Court Martial which the Court Martial rejected after appreciating the evidence, this Court in exercise of power of judicial review cannot re-appreciate the evidence specially when it is not a case of no evidence or wrong application of law. So this challenge to the proceedings is rejected.
The judgment rendered in the case was appealed against before a Division Bench of this Court in LPA 302/2000. The Division Bench while on facts finding that the trial of appellant was within the time upheld the view of learned Single Judge on the question of judicial review. The Division Bench observed:
Learned Single Judge has rightly relied on the judgment of Apex Court in Union of India v. Himat Singh and Union of India v. Maj. Hussain 1998 SC 577. This Court cannot sit in appeal on those findings recorded on appreciation of evidence by the GCM. This proposition of law has been settled by the Apex Court in case titled Union of India v. A. Hussain holding that:
It was not necessary for the High Court to minutely examine the record of the General Court Martial as if it was sitting in appeal.
23. In view of above legal position, in my view the order of rejection of plea-in-bar raised by the petitioner before the General Court Martial cannot be subjected to judicial review.
24. This Court cannot act as a Court of appeal and re-appreciate the facts and law for arriving at a different conclusion than the one arrived at by the General Court Martial.
25. For the reasons stated above, there is no merit in the writ petition. It is as such dismissed. Connected CMP shall also stand dismissed. Interim direction shall stand vacated. The General Court Martial shall proceed further with the case in accordance with law.