Jammu & Kashmir High Court
Lt. Col. S.K.Singh vs Secretary on 12 November, 2012
Author: Muzaffar Hussain Attar
Bench: Muzaffar Hussain Attar
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. LPA No. 69 OF 2012 LT. COL. S.K.SINGH Petitioners UNION OF INDIA & ORS Respondent !MR. B.S.SALATHIA, Sr.ADV WITH MR. ROHIT-ADV ^MR. TASHI RABASTAN, CGSC. HONBLE MR. JUSTICE Virender Singh- JUDGE HONBLE MR. JUSTICE MUZAFFAR HUSSAIN ATTAR- JUDGE. Date: 12.11.2012 :J U D G M E N T :
(MUZAFFAR HUSSAIN ATTAR) 1/ The petitioner, appellant herein, filed writ petition (SWP 832/2012), wherein he sought following reliefs :
(i) quash the charge sheet dated 7-3-2012 so far it contains the time barred charges on the basis of which the Court Martial proceedings can not be continued as being impermissible in terms of Section 122 of the Army Act.
(ii) quash the order dated 27-03-2012 passed by the General Court Martial whereby the plea in bar offered by the petitioner with respect to time barred charges has been disallowed that too without affording an opportunity of being heard. 2/ The charge sheet dated 07-03-2012 and Court Martial decision dated 27-
03-2012 are taken note of :
CHARGE SHEET The accused, IC-54365H Lieutenant Colonel Sanjeev Kumar Singh of Central Ammunition Depot, Pulgaon attached to 17 RAJPUT Regiment, an officer holding a permanent commission in the regular Army, is charged with:-
First Charge IN A DOCUMENT MADE BY HIM KNOWINGLY
Army Act Section 57(b) MAKING AN OMMISSION WITH INTENT TO
DEFRAUD
in that he,
at New Delhi on or about 04 Jul 2007, which came to the knowledge of the authority competent to initiate action on 01 Apr 2009, while performing the duties of Deputy Director Ordnance Services (Technical Stores) Coordination, Ordnance Services Directorate, Integrated Headquarters of Ministry of Defence (Army) and being concerned with the procurement process of additionalities stores for United Nations Mission Contingent Units, with intent to defraud, knowingly omitted to mention the Last Purchase Price of Generator Set 100 Kilo Volt Amperes Silent Kirloskar in the Spot Allocation Chart with respect to Tender Enquiry Number P/UN/TE- 37/ADG OS TS dated 01 Jun 2007, for items decided in Price Negotiation Committee cum Tender Purchase Committee held on 04 July 2007, in connection with procurement of trade items for 26 MADRAS (Second Rotation).
Second Charge AN OMISSION PREJUDICIAL TO GOOD
Army Act Section 63 ORDER AND MILITARY DISCIPLINE
(Alternative to the first
Charge)
in that he,
at New Delhi on or about 04 Jul 2007, which came to the knowledge of the authority competent to initiate action on 01 Apr 2009, while performing the duties of Deputy Director Ordnance Services (Technical Stores) Coordination, Ordnance Services Directorate, Integrated Headquarters of Ministry of Defence (Army) and being concerned with the procurement process of additionalities stores for United Nations Mission Contingent Units, improperly omitted to mention the Last Purchase Price of Generator Set 100 Kilo Volt Amperes Silent Kirloskar in the Spot Allocation Chart with respect to Tender Enquiry Number P/UN/TE-37/ADG OS TS dated 01 Jun 2007, for items decided in Price Negotiation Committee cum Tender Purchase Committee held on 04 Jul 2007, in connection with procurement of trade items for 26 MADRAS (Second Rotation).
Third Charge IN A DOCUMENT MADE BY HIM KNOWINGLY
Army Act Section 63 MAKING AN OMISSION WITH ITNENTION TO
DEFRAUD
in that he,
at New Delhi on or about 28 February 2008, which came to the knowledge of the authority competent to initiate action on 01 April 2009, while performing the duties of Deputy Director Ordnance Services (Technical Stores) Coordination, Ordnance Services Directorate, Integrated Headquarters of Ministry of Defence (Army) and being concerned with the procurement process of additionalities stores for United Nations Mission Contingent Units, with intent to defraud, knowingly omitted to mention the Last Purchase Price of Power Cable 95 Square Millimeter 3 Core(Havels/Finolex) in the Spot Allocation Chart with respect to ender Enquiry Number PC/15318/5/1 GR (1ROT) UN/TE-75/ADG OS TS dated 15 January 2008, for items decided in Price Negotiation Committee cum Tender Purchase Committee held on 28 February 2008, in connection with procurement of trade items for 5/1 GORKHA Rifles (First Rotation).
Fourth Charge AN OMISSION PREJUDICIAL TO GOOD
Army Act Section 63 ORDER AND MILITARY DISCIPLINE
(Alternative to the
Third charge)
in that he,
at New Delhi on or about 28 February 2008, which came to the knowledge of the authority competent to initiate action on 01 April 2009, while performing the duties of Deputy Director Ordnance Services (Technical Stores) Coordination, Ordnance Services Directorate, Integrated Headquarters of Ministry of Defence (Army) and being concerned with the procurement process of additionalities stores for United Nations Mission Contingent Units, improperly omitted to mention the Last Purchase Price of Power Cable 95 Square Millimeter 3 Core (Havels/Finolex) in the Spot Allocation Chart with respect to Tender Enquiry Number PC/15318/5/1 GR (1ROT) UN/TE-
75/ADG OS TS dated 15 January 2008, for items decided in Price Negotiation Committee cum Tender Purchase Committee held on 28 February 2008, in connection with procurement of trade items for 5/1 GORKHA Rifles (First Rotation).
Place : Jammu Sd/-
Dated: 07 Mar 2012 ( Ritesh Bahl)
Colonel
Commanding Officer
17 RAJPUT Regiment
Court Decision dated 27-03-2012.
(1) The Court has heard the preliminary objections by the defence and reply thereto by the
prosecution and advice of the Judge Advocate. The main points of contention are :
(a) Whether charge NO.1 and 3 of the charge sheet B-2 are time barred by limitation as these are not part of the tentative charge sheet.
(b) Whether charge No.1 and 3 of the charge sheetB-2 have any co-relation with the directions of General Officer Commanding-in-Chief, Western Command dated 01 April 2009 on the Court of Inquiry.
(c) Applicability of the Army Act section 122 to the charge/charge sheet or the offence per se (2) The Court decides that the plea of the defence to raise preliminary objections in respect of plea in bar under Army Rule 53 read with Army Act Section 122 is disallowed as the subject matter contained in the charge No.1 and 3 of the charge sheet B-2 are same as the facts endorsed in the directions of the General Officer Commanding-in-Chief, Western Command dated 01 April 2009 and tentative charge. 3/ In order to appreciate the controversy raised in the writ petition and in this LPA, the tentative charge sheet dated 12-04-2010 is taken note of :
TENTATIVE CHARGE SHEET The accused, IC-54365H Lieutenant Colonel Sanjeev Kumar Singh of Central Ammunition Depot Pulgaon, attached with 17 BIHAR, an officer holding a permanent commission in the regular Army, is charged with:-
First Charge AN OMISSION PREJUDICIAL TO GOOD
Army Act Section 63 ORDER AND MILITARY DISCIPLINE
in that he,
at Delhi, between June 2007 to February 2008 while performing the duties of Deputy Director Ordnance Services (Technical Services) Coordination at Ordnance Services Directorate, Integrated Headquarters of Ministry of Defence (Army) Delhi, and being concerned with the procurement process of additionalities stores for United Nations Mission Contingents Units, improperly omitted to include Last Purchase Price and Original Equipment Manufacturer rules in respect of Kirloskar 100 Kilo Volt Ampere Generator Sets and Power Cables in the concerned documents.
Second Charge AN OMISSION PREJUDICIAL TO GOOD
Army Act Section 63 ORDER AND MILITARY DISCIPLINE
in that he,
at Delhi, between June 2007 to February 2008 while performing the duties of Deputy Director Ordnance Services (Technical Services) Coordination at Ordnance Services Directorate, Integrated Headquarters of Ministry of Defence (Army) Delhi, and being concerned with the procurement process of Kirloskar 100 Kilo Volt Ampere Generator Sets with accessories as additionalities stores for United Nations Missions Contingents Units, failed to ensure maintenance of records of dispatch of Tender Enquiries and receipts and the same were transacted with the vendors by hand, contrary to Para 9.16 of Defence Procurement Manual 2006.
Third Charge AN OMISSION PREJUDICIAL TO GOOD
Army Act Section 63 ORDER AND MILITARY DISCIPLINE
in that he,
at Delhi, between June 2007 to February 2008 while performing the duties of Deputy Director Ordnance Services (Technical Services) Coordination at Ordnance Services Directorate, Integrated Headquarters of Ministry of Defence (Army) Delhi, and being concerned with the procurement process of additionalities stores for United Nations Mission Contingents Units, improperly omitted to maintain a written record of processing and approval of Additional Directorate General Ordnance Services (Technical Services) for purchase of Generator Sets and Power Cables at various stages.
Fourth Charge AN OMISSION PREJUDICIAL TO GOOD
Army Act Section 63 ORDER AND MILITARY DISCIPLINE
in that he,
at Delhi, between June 2007 to February 2008 while performing the duties of Deputy Director Ordnance Services (Technical Services) Coordination at Ordnance Services Directorate, Integrated Headquarters of Ministry of Defence (Army) Delhi, and being concerned with the procurement process of additionalities stores for United Nations Mission Contingents Units, improperly omitted to bring the irregularities and illegalities being practiced in the procurement process of additionalities stores for United Nations Mission Units to superior authorities.
Fifth Charge AN OMISSION PREJUDICIAL TO GOOD
Army Act Section 63 ORDER AND MILITARY DISCIPLINE
in that he,
at Delhi, between 27 October 2008 and 18 November 2008, while being a witness in the Court of Inquiry proceedings, convened vide Headquarters Western Command Order No. 00337/C of I/ADG OS (TS)/UN Stores/DV-2 dated 15 October 2008, did not disclose the irregularities and illegalities being practiced in the procurement process of additionalities stores for United Nations Mission Units, thereby misleading the investigation before the Court of Inquiry.
Place : Jammu Sd/-
Dated: 12 April 2010 ( MS Sidhu)
Colonel
Commanding Officer
17 BIHAR .
4/ The appellants plea before the writ Court was that the
Court-Martial proceedings were barred by time in view of the mandate contained in section 122 of the Army Act 1950 (for short Act of 1950). It was further case of the appellant before the writ Court that Ist. and 3rd charge in the charge sheet dated 07-03-2012 were different from those which were contained in the tentative charge sheet and raised plea of time bar in respect of these charges also. 5/ The respondents filed reply affidavit in the writ petition and controverted claim of the petitioner appellant, set up in the writ petition. The writ Court, vide its order and judgement dated 13-08-2012 dismissed the writ petition. It is this judgement which is called in question in this LPA.
6/ Mr. B.S.Salathia, learned Senior Counsel, appearing for the appellant, submitted that the proceedings initiated against the appellant are barred by section 122 of the Act of 1950, same having been initiated after the expiration of the period of three years from the date of knowledge of the competent authority. Learned counsel further submitted that the Ist. and 3rd charges, as are reflected in the charge sheet dated 07-03-2012, are new and different from that of tentative charge sheet dated 12-04-2010. Learned counsel, accordingly, prayed that the proceedings against the appellant would not continue in view of the bar contained in section 122 of the Act of 1950 read with Rule 53 of the Army Rules, 1954 (for short Rules of 1954). Learned counsel, in support of his contention, referred to and relied upon the judgement of the Honble Supreme Court in case titled Rajvir Singh, appellant versus Secretary, Ministry of Defence and others, respondents in Civil Appeal 2107 of 2012, arising out of SLP(Civil) No. 26892 of 2011, judgement of the Delhi High Court in case titled Col. Gajraj Singh (Retd.) versus Union of India and others, decided on 03-03-2000, reported in 2000(54)DRJ 765, judgement of the Honble Supreme Court in case titled Satish Mehra versus Delhi Administration and another, judgement of the Bombay High Court in case titled Priya Sharan Maharaj versus State of Maharashtra decided on 06-02-1995 reported in 1995 Cr.LJ, 3683, judgement of the Punjab & Haryana High Court in case titled Sudharshan Chemical Industries versus Sate of Punjab decided on 14-05-2003 reported in (2003) 135 PLR 89 and judgement of the Honble Supreme Court in case titled S.N.Mukerjee versus Union of India, reported in (1990) SCC 594 and submitted that the appeal as also the writ petition deserve to be allowed.
7/ Mr. Tashi Rabastan, learned counsel for the respondents, invited attention of the Court to rule 22(4) of the Rules of 1954 and submitted that the Commanding Officer is within his rights to frame the charges on the basis of material available before it. He also submitted that the issue of misconduct committed by the appellant came to the knowledge of the competent authority on 01-04-2009 when he ordered for initiation of proceedings against the appellant. He further submitted that the proceedings have been initiated within the period of three years, therefore, contention of the learned counsel for the appellant would fail. Mr. Rabastan also referred to rule 37 of the Rules of 1954 and submitted that no substantial change has been made in Ist. and 3rd charge in the charge sheet dated 07-03-2012 and it is on the basis of material available and facts disclosed in the tentative charge sheet that the impugned charge sheet was framed. He further submitted that neither is there any change in the Ist. and 3rd charge nor any fresh charge has been added in the impugned charge sheet. Learned counsel also referred to Regulation 451(c) of the Army Regulations, Vol. I, and submitted that the words with intent to defraud in charge 3rd could be reflected in view of the mandate contained in the aforementioned Regulation. In support of his contention, he referred to section 63 of the Act of 1950.
8/ In order to appreciate the issue raised, it is appropriate to take note of section 122 of the Act of 1950, rule 22(4), rule 53 of the Rules of 1954 and Regulation 451(c) of the Army Regulations, Vol. I. Section 122 of Army Act of 1950 :
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 to initiate action, the first day on which such offence comes to the knowledge of such person or authority, which ever 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. Rule 22(4) of Army Rules, 1954 :
22(4) Where the evidence taken in accordance with sub-rule (3) of this rule discloses an offence other than the offence which was the subject of the investigation, the commanding officer may frame suitable charge(s) on the basis of the evidence so taken as well as the investigation of the original charge. Rule 53 of Army Rules, 1954 :
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 ;
(c) the period of limitation for trial as laid down in section 122 has expired.
(2) If he offers such plea in bar, the court shall record it as well as his general plea, and if it considers that any fact or facts stated by him are sufficient to support the plea in bar, it shall receive any evidence offered, and hear any address made by or on behalf of the accused and the prosecutor in reference to the plea.
(3) If the court finds that the plea in bar is proved, it shall record its finding and notify it to the confirming authority, and shall either adjourn, or if there is any other charge against the accused, whether in the same or in a different charge-sheet, which is not affected by the plea in bar, may proceed to the trial of the accused on that charge.
(4)If the finding that the plea in bar is proved is not confirmed, the court may be re-assembled by the confirming authority, and proceed as if the plea has been found not proved. (5)If the court finds that the plea in bar is not proved, it shall proceed with the trial, and the said findings shall be subject to confirmation like any other finding of the court. Regulation 451(c) of Army Regulations, Vol. I :
451(c): In cases, where, after investigation, deficiencies of funds of stores, or incorrect entries or omissions in accounts are to be made the subject matter of any charge involving fraud that is proposed to try by court-martial, and where there are grounds for supposing that the irregularities may have been due to negligence only, an alternative charge under section 63 of the Army Act will be added, the particulars of which will contain an allegation attributing the loss to neglect of duty by the accused. 9/ The Court, in order to satisfy itself about the contention raised by learned counsel for the appellant that the proceedings initiated against the appellant would suffer collapse on the ground that same have been initiated after the period of limitation fixed by section 122 of the Act of 1950, directed the respondents to produce the original record. Perusal of the record would show that the mater came to the knowledge of the competent authority, the General Officer Commanding-in-Chief , Western Command/Army CDR, on 30-03-2009, in as much as, on this date, for the first time, the matter was discussed with him and it was suggested that fresh draft of charges shall be prepared. The fresh draft charges were prepared and put up before the competent authority on 01-04- 2009 and issued orders for trying the appellant by Court-Martial. The competent authority approved the draft on the said date. The tentative charge sheet was framed on 12-04-2010 and the impugned charge sheet on 07-03-2012. 10/ As already stated, on 30-03-2009, the matter was brought to the knowledge of the competent authority. The initiation of trial by the Court Martial against the appellant, in these circumstances, is within the period of three years. The plea of defence raised by the appellant before the Court-Martial was rightly rejected. The other contention of learned counsel for the appellant that charges Ist. and 3rd of the tentative charge sheet have been substituted and Ist. and 3rd charge in the subsequent charge sheet are new charges, which were not approved by the competent authority and the appellant cannot be tried on the basis of such charges, as same are also time barred. The allegations against the appellant as contained in charges Ist. and 3rd of the tentative charge sheet and charge sheet, are materially and substantially same. In the charge sheet dated 07-03-2012, the Ist. and 3rd charge have been clarified to ensure that no prejudice is caused to the appellant. The purport and intendment of the Ist. and 3rd charge contained in the tentative charge sheet is sufficient to indicate that whatever was done, was done with intent to defraud. In the facts and circumstances of this case, no new charges were framed. In order to be fair to the appellant in the Court- Martial proceedings and in order to enable him to defend himself on all fours, a duty was cast on the respondents to clarify the position. The Ist. and 3rd charge in the charge sheet dated 07-03-2012, in the aforementioned circumstances of this case, are not new charges but are same charges. 11/ The judgments cited at bar by learned counsel for the appellant proceed on their own facts which are materially different from the facts of this case. In Col. Gajraj Singhs case, at paragraph 14, while referring to the earlier case of the same High Court, it has been ruled that power of the authorities under the Act to try any person for any offence, except as provided by sub section(2), is restricted by statutory provision, viz. section 122(1). This is general principle of law emanating from section 122 itself. In Rajvir Singhs case, the competent authority got the knowledge initially on May 07, 2007 but issued the order, for initiating disciplinary action, on May 12, 2008. The order issued for convening General Court- Martial was issued after the period of three years and it is for this reason that the plea of trial being time barred in terms of section 122 was upheld by the Honble Supreme Court in that case. In this case the order for convening of General Court-Martial was issued within three years from the date the competent authority got knowledge of charges against the appellant. This judgement, on facts, is not applicable to the case on hand. The other judgements cited by learned counsel for the appellant deal with the powers of the Court in criminal cases for framing charge or discharging the accused. These judgements also do not support the contention raised by learned counsel for the appellant at the bar. The judgement of the Honble Supreme Court in S.N.Mukerjees case is not based on section 122 of the Act of 1950 read with rule 53 of the Rules of 1954 but is based on section 164 of the Act of 1954 and relates to the confirmation of the findings of the Court-Martial.
12/ For our above recorded reasons, we find no merit in this appeal, which is dismissed along with CMPs. Interim order dated 22-08-2012 shall stand vacated. Registry to return the record and Regulations to the learned counsel for the respondents.
TARIQ MOTA JAMMU.
12 -11-2012 (MUZAFFAR HUSSAIN ATTAR )J (VIRENDER SINGH) J