Jammu & Kashmir High Court
Lt. Col. J.S. Sekhon vs Union Of India (Uoi) on 21 November, 2000
Equivalent citations: 2002CRILJ783
ORDER O.P. Sharma, J.
1. The petitioner a commissioned officer in the Indian Army was tried by a General Court Martial. He was convicted and sentenced to undergo one year rigorous imprisonment besides cashiering. The sentence was pronounced by the General Court Martial on 24-9-1998. The proceedings and the findings returned by the General Court Martial have been challenged by the writ petitioner on various grounds. Few facts necessary before dealing with the grounds of challenge are that the petitioner was commissioned in the Army in December, 1975. He remained posted at Leh from June, 1993 to February, 1995 as Garrison Engineer. The charge against the petitioner is that during his tenure as Garrison Engineer, Leh, he with an intent to defraud entered into contract agreement with M/s. Surjeet Singh Sokhi on 29-11-94 for carrying out repairs of two DG sets installed at FRL Power House, Leh at the cost of Rs. 2.49 lakhs and for repair and replacement of parts of DG sets located at Nimmu at the cost of Rs. 2.49 lakhs and also for carrying out repairs and replacement of LT Cables, service connections and security lights at Nimmu area Leh, amounting to Rs. 2.49 lakhs. Another charge against the petitioner is that on 30-11 -1994, he with an intent to defraud entered into contract agreement with M/s. Mohd. Sultan and Brothers, Leh for replacement of items such as LT Cable providing ACR conductor etc. at an exorbitantly higher cost than permissible under the standard schedule-rates. He also entered into another contract on 30-11-1994 with M/s. Mohd. Sultan and Brothers, Leh at the cost of Rs. 2.48 lakhs for repair and replacement of parts of two Kirloskar, Cummins DG Sets. He also charged on two more accounts but these were not proved, therefore, it is not necessary to deal with them.
2. The General Court Martial found --the above charges proved and after holding him guilty passed the order of conviction subject to confirmation.
3. The proceedings and the order of sentence passed by the General Court Martial on September 24, 1998 has been challenged by the petitioner on the following grounds :--
1. That the trial was barred under Section 122 of the Army Act;
2. That the charge-sheet was not approved by the convening authority as required under Rule 37 of the Army Rules;
3. That the Court lacked jurisdiction because (i) that it was not convened by competent authority; and (ii) that the presiding officer was disqualified to be a member of the Court;
4. That the charge did not disclose any commission of offence;
5. That the finding is based on hear-say evidence which is admissible;
6. That the reasons recorded by the Court do not justify the finding; and
7. That the manner the trial was conducted shows bias, thus the trial was unfair.
4. All these grounds of challenge have been controverted by the respondents in their counter affidavit.
Ground No. 15. The contention of Mr. Randhava is that no trial by General Court Martial of any person subject to the Army Act can be commenced after the expiration of a period of three years. Since the offence of which the petitioner is charged is said to have been committed in November, 1994 while the Court martial was convened in March, 1998, the trial of the petitioner according to Mr. Randhava was clearly barred by limitation. However, according to Mr. Subhash Bhat, Sr. CGSC, the period of limitation commences from the date the commission of offence comes to the knowledge of the authority competent to initiate action. Since the commission of offence in this case came to the knowledge of the competent authority on 24-4-1995, therefore, Section 122 of the Act was not attracted. His further argument is that plea of bar is a question of fact and this plea was raised before the General Court Martial which stands rejected. The finding of fact returned by the General Court Martial argued the learned counsel cannot be challenged except when it is based on no evidence or any procedural infirmity.
Section 122(1) reads as under :--
122(1) : 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 initiative 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 identify of the offender is known to the person aggrieved by the offence or to the authority competent to initiate action, whichever is earlier.
6. The expression "The First day on which such offence comes to the knowledge of such person or authority whichever is earlier", the authority means the authority competent to initiate action. In this case it is an admitted fact that investigation by Vigilance Check were carried out in December, 1994. This was an in-house inquiry to find out whether there was any violation of Rule and Regulation by the petitioner. Subsequently, the matter was referred to the Technical Board and thereafter a court of inquiry was held. The charge was framed on the basis of finding of the Court of Inquiry. Whether the authority competent to initiate action came to know about the commission of offence on the basis of the report of the Technical Board or the findings of court of inquiry is a question of fact. It is not disputed that the petitioner had raised the plea of bar to trial before the court martial and produced evidence also. The proceedings of the General Court Martial reveals that Col. Ashok Madan and Lt. Col. Jagjit Singh Sikhon were examined as witnesses in support of plea in bar. The prosecution in rebuttle examined MES-311094 Sh. Sukhdev Singh and Major P.K. Sehgal as witnesses. The General Court Martial after hearing the argument and appreciating the evidence returned a finding, rejecting the plea in bar of trial under Section 122 of the Army Act and ruled that the trial is within limitation. The question arises whether these findings can be interfered in exercise of power of judicial review. This question was considered by the Apex Court in Union of India v. Himmat Singh Chahar (1999) 4 SCC 521 : (1999 Cri LJ 2894). While setting aside the judgment of the Bombay High Court. Their Lordships held as under :--
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 authorities 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.
7. Similar view was expressed in "Union of India v. Major A. Hussain", (1998) 1 SCC 537 : (AIR 1998 SC 577). 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.
Ground No. 2.
8. The argument of Mr. Randhava is that some defects were noticed in the Original charge-sheet and an attempt was made to get the charge-sheet back from the petitioner which he refused. Upon this the charge-sheet issued earlier was cancelled and thereafter few pages of the charge-sheet were typed afresh at Chandigarh and substituted for the original charge-sheet without obtaining the approval from the competent authority which was located at Leh. It is, however, admitted by the learned counsel that a witness was examined to prove that the charge-sheet had been approved by the competent authority. The argument proceeds on the basis that the Court martial declined permission to the petitioner to examine Major Virender Sharma as witness to prove that the charge-sheet was not approved. Under Rule 37, the charge-sheet had to be approved by the competent authority, in the absence of which the trial by Court Martial gets vitiated. The petitioner did raise this objection before the Court Martial but the same was rejected after holding that the charge-sheet had been approved by the competent authority. This finding has been returned on the basis of evidence produced by the prosecution and accepted by the Court martial. Moreover it is the statement of Lt. Col. S.K. Garg that after the charge-sheet dated 9-3-1998 was issued to the petitioner, some type mistakes were noticed and these were brought to the notice of Convening Authority. The Convening Authority examined the charge-sheet and directed rectification of the typing errors. The Convening Authority specified the typing errors at pages 1, 2 and 4 of the charge-sheet which were rectified which the convening authority approved. This emphatic statement of the witness was accepted by the Court martial. This is a finding of fact returned on appreciating the evidence which cannot be reversed in exercise of powers of judicial review in view of the law laid down in 'A. Hussain's case (AIR 1998 SC 977) (supra).
Ground No. 3.
9. It has been argued on behalf of the petitioner that the charge on which the petitioner was tried pertain to 865 EWS. This Unit according to Mr. Randhava was under Headquarter Infantry 3 Division. Since General Officer Commanding, 3-Infantry Division was also his Commanding Officer, therefore, it is argued he could not be the convening authority in view of para 449 (b) of the Army Regulations. This objection was raised before the General Court Martial but it has been wrongly rejected. The argument of Mr. Bhat, Sr. CGSC, is that General Officer Commanding-3 Infantry Division was not the Commanding Officer over the petitioner because he had been attached to 603-ASC Battalion, so the Commanding Officer -603 ASC Bn. alone exercised the control of the Commanding Officer on the petitioner.
10. The expression Commanding Officer is defined in Section 3(v) of the Army Act which reads as under :--
Commanding Officer", when used in any provision of this Act, with reference to any separate portion of the regular Army or to any department thereof, means the officer whose duty it is under the regulations of the regular Army, or in the absence of any such regulations, by the custom of the service, to discharge with respect to that portion of the regular army or that department, as the case may be, the functions of a Commanding Officer in regard to matters of the description referred to in that provision.
11. It is clear that with the attachment of the petitioner he was subject to the control of Commanding Officer of the Unit to which he was attached. There is thus no infringement of Rule 22 or 23 of the Army Rules and the General Court Martial has rightly rejected this objection. In view of this the bar of para 449(b) is not attracted because the Presiding Officer has never been the Commanding Officer of the petitioner any time between the date on which cognizance of offence was taken against the accused and the date on which the case is taken up for disposal. So this argument also fails and is rejected.
Ground-4. Disqualification to be the Presiding Officer and bias.
12. The main thrust of the argument is that some of the charges against the petitioner related to the contracts entered into by him for repairs to D.G. Sets installed at 3 Artillery Brigade located in Nima, Leh. Since the Presiding Officer of the General Court Martial was the Commanding Officer of 3-Artillery Brigade, Nima at the relevant time so he was qualified to be the Presiding Officer of the General Court Martial. Besides as Commanding Officer he had personal knowledge about the facts and therefore was biased and this fact surfaced when he made certain comments during the proceedings. The contention of Mr. Randhawa is that Presiding Officer being possessed of intimate knowledge about the facts on which the charge was founded, he has influenced the course of proceedings and its ultimate decision because of his bias. Let us first examine the Rule position regarding the eligibility of the officer for being members of Court martial. Rule 39(1)(c) reads as under :--
39. Ineligibility and disqualification of officers for Court-martial.-- (1) An officer is not eligible for serving on a Court-martial if he is not subject to the Act.
(c) investigated the charges before trial, or took down the summary of evidence, or was member of a Court of inquiry respecting the matters on which the charges against the accused are founded, or was squadron, battery, company, or other commander, who made preliminary inquiry into the case, or was member of a previous Court-martial which tried the accused in respect of the same offence; or.
13. There is not even a whisper in the petition that the Presiding Officer suffered from any of the aforesaid disqualification, in the absence of which no objection to his being Presiding Officer could be sustained.
14. Moreover, Section 130 of the Army Act provides the procedure for objecting against any officer to be the member of the Court. The petitioner admittedly did not raise any objection in terms of Section 130 read with Rule 44. The objection appears to have been raised during the course of proceedings when the examination of P.W. Sh. Sukhdev Singh was in progress. The objection raised was that "In the course of proceedings certain observations have been made by the Presiding Officer in regard to the manner of trial and leading of evidence and apprehension thereof, which gives strong apprehension to the defence that the issue has been prejudiced." It was submitted by the defence that it had apprehension that the petitioner may not get a fair trial. This plea was rejected by the General Court-martial holding that; (i) the trial was being conducted in fair manner befitting the Court of justice; and (ii) the apprehension of the , defence that it will not have a fair trial was misplaced and thereafter the proceedings continued. (See pages 108 to 116 of the General Court-martial proceedings).
15. In view of the admitted facts that no objection to any officer being member of the Court was raised under Section 130 of the Army Act, the judgment in 'Ranjit Thakur v. Union of India,' AIR 1987 SC 2386 : (1988 Cri LJ 158) has no application. Consequently, the question of bias also does not arise because the Presiding Officer does not fall in the category of Rule 39(1)(c) to suffer the disability of being a member of the General Court-Martial. The argument that Presiding Officer having intimate knowledge of the facts was biased is also without any substance.
Ground No. 5.
16. The learned counsel for the petitioner made an attempt to point-out that the charges do not disclose commission of any offence. However, this argument was later not pressed because the charge is sufficiently disclose the offence committed as defined in the Ranbir Penal Code and the Army Act.
Ground No. 6.
17. The findings of the General Court-martial are based on appreciation of evidence. It is settled law that this Court does not set as Court of appeal in appreciating the evidence on which the finding is returned by the General Court-martial. The powers of judicial review are limited to see whether the procedure laid down has been followed and the General Court-martial has been properly convened. Since the General Court-martial has been properly convened, finding returned by it on the basis of evidence cannot be called in question. Hence this ground is also rejected.
Ground No. 7.
18. The argument put-forth on behalf of the petitioner is that no reasons have been given in support of the findings, Therefore, the conclusion is vitiated. Rule 62 of the Army Rules provides for brief reasoning. These brief reasons have been given while returning finding on each charge or example the finding on fifth charge is as follows :--
The Court find the charge proved from the evidence of witnesses and documents of record that there was no necessity for the repairs since on Set No. 147125 replacement of turbo charger & injectors had been catered for when after repair of the same set in July, 94 it had not been run while in the case of DG Set No. 147135, it had been serviceable and in running condition throughout the period when repairs had been planned and contract was to be executed.
Entering into contract instead of procuring the parts through DG S & D rate contract, manner of entering into contract, high rates of procurement and no mention of retrieved parts, items paid for in RAR on 06 Feb., 95 by the accused without parts being fitted all point to the guilt of the accused.
19. These findings are based on appreciation of evidence which cannot be re-appreciated by this Court. So this argument also fails.
Ground No. 8.
20. The argument has already been rejected while dealing with ground No. 4.
In view of the above this petition is found to be without any merit and is dismissed accordingly. The interim direction, if any, shall stand vacated. However, the operation of this judgment shall stay for two weeks from today.