J.S. Sekhon vs Union Of India & Ors

1. This Civil Appeal is directed against the judgment of the High

Court of Jammu & Kashmir dated 2.4.2002. By the aforesaid order, the

Division Bench of the High Court upheld the order of the learned Single

Judge of the High Court of Jammu & Kashmir, dismissing the Writ

Petition and upholding the order of conviction of the appellant by the

General Court Martial (GCM) for defrauding the Army and sentence of

one year of rigorous imprisonment and also of cashiering him from

service.

2. The appellant was a Commissioned Officer in the Indian Army

working at the relevant time at Leh. He was working as a Garrison

Engineer, 865 EWS, where he invited offers from private parties to

supply the garrison with Diesel Generator (DG) sets and to make other

repairs and replacement.

3. On 29.11.1994 he entered into an agreement with M/s Surjit Singh

Sokhi to repair two DG Sets at FRL Powerhouse at Leh for Rs. 2.29 lakh

and to repair LT cables at Nimmuy area Leh for Rs. 2.49 lakhs. On

30.11.1994 he entered into an agreement with M/s Mohd Sultan and

Bros. to replace LT cables and providing an ACR conductor and to

replace parts of two DG Sets for Rs. 2.48 lakhs. Authorities noticed

irregularities in these purchases and on 6.12.1994 investigated the

contract agreements. A vigilance check was performed by the

Commander Works Engineers (CWE) on 9.12.1994. CWE then asked the

appellant for his comments on the report which were submitted on

6.2.1995. Discrepancies detected in comparing the report and the

comments of the appellant prompted the Technical Board of Officers to

issue a report on 9.4.1995, which led a court of enquiry being convened

on 20.9.1995 and then to a GCM being convened on 9.3.1998. The

appellant was then served a charge sheet on 9.3.1998 that was then

2 withdrawn due to errors and thereafter he was re-served with a fresh

charge sheet on 11.3.1998.

4. Seven charges were framed against the appellant two of which

could not be proved. All the charges revolved around the allegation of

his defrauding the Army for purchasing services to replace and repair

items at exorbitant rates which are much higher than what is permissible

under the standard scheduled rates.

5. On 14.3.1998 the GCM commenced its proceedings and provided

the appellant the right to raise objections of being tried by any officer

sitting on the court in accordance with Section 130 of the Army Act,

1950 read with Rule-44 of the Army Rules, 1954. He raised no objection

at the time. However, at a subsequent stage of the trial he objected to

being tried by the Presiding Officer of the Court. The objection was then

considered and rejected. The court convicted the appellant and sentenced

him to one year rigorous imprisonment besides cashiering.

6. The appellant then challenged this conviction and sentence based

on several issues. The Single Judge of the High Court of Jammu &

Kashmir at Srinagar dismissed the Writ Petition holding the same to be

without merit. The Division Bench of the High Court in the writ appeal

3 filed before it similarly held that there was no "procedural irregularity or

illegality in the GCM proceedings." That appeal was also dismissed.

7. Being aggrieved by both the orders passed by the learned Single

Judge and the Division Bench of the High Court, a Special Leave Petition

was filed by the appellant. After leave was granted, the appeal was

placed for final hearing in which we heard the learned counsel appearing

for the parties.

8. The learned counsel appearing for the appellant mainly raised two

issues before us during the course of hearing. The first submission of the

learned counsel appearing for the appellant was that the convening of the

General Court Martial on 14.3.1998 was barred under the provisions of

Section 122 of the Army Act. The second submission of the learned

counsel for the appellant was that the convening Officer of the General

Court Martial in the case of the appellant being the Commanding Officer

of the appellant, there is violation of the provision of paragraph 449(b) of

the Army Regulation.

9. The learned counsel appearing for the respondent, however, refuted

the aforesaid submissions while contending inter alia that neither the

convening of the General Court Martial was barred by time nor that the

convening officer of the Court Martial was the commanding officer of the

4 appellant. According to him therefore not only there was no violation of

Section 122 of the Army Act, but there was also no contravention of

paragraph 449(b) of the Army Regulation.

10. In the light of the aforesaid submissions of the counsel appearing

for the parties, we have perused the relevant provisions of the Army Act,

1950 (for short "the Act") and the Army Regulations as also various

documents and the decisions relied upon and on being fully acquainted

thereof, we propose to dispose of the present appeal by giving our reasons

thereof. But before doing that it would be appropriate to extract the

relevant provisions of Section 122 of the Army Act, and Paragraph

449(b) of the Army Regulations.

"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.]"

449. Action by Superior Officer

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5 **** **** **** ****

(b) When the superior office has been the CO of the accused at 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, or an officer who has investigated the case, he cannot exercise the powers detailed in sub-para (a)

(ii) to (v) inclusive"

11. Section 122 of the Army Act provides the period of limitation for

trial. In the said section, it is provided that no trial by court martial of

any person shall be commenced after the expiration of a period of three

years (a) from 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 by the authority competent to initiate action,

whichever is earlier.

12. On going through the records, we find that it is an admitted

position between the parties, that what is attracted in the present case is

clause (b) of sub-Section (1) of Section 122. The date of limitation for

6 holding a trial by court martial is a period of three years from any of the

three dates as stated above.

13. Clause (b) is attracted and in that case the limitation of three years

period would commence from the date of the knowledge of the

commission of such offence by the person aggrieved by the offence or by

the authority competent to initiate action.

14. Learned Counsel appearing for the appellant submitted before us

that of the two expressions i.e. "person aggrieved by the offence" or "the

authority competent to initiate action", what is attracted in the present

case is not the knowledge of the authority competent to initiate action but

the other expression appearing in the section namely the date of

knowledge of the person aggrieved of the commission of the offence.

15. The facts disclosed before us reveal that on 6.12.1994, the higher

authority noticed some irregularity committed by the appellant and

accordingly made some observations on the contract agreement

whereupon on 9.12.1994, Commander Works Engineer directed a

Vigilance Check in terms of which a Vigilance Check was conducted and

a report to that effect was submitted on 19.12.1994.

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16. It appears that on receipt of the aforesaid Vigilance Check Report,

Commanding Works Engineer forwarded the report to the appellant and

asked for his comments which were submitted by the appellant on

6.2.1995. As there were some variations in the vigilance report and the

comments furnished by the appellant, a Technical Board of Officers was

constituted on 29.3.1995 and the said technical board of officers

submitted its report on 9.4.1995. Thereafter on 20.4.1995, on

examination of the report, a letter was written by the Commanding Works

Engineer to HQ 3 Infantry Division for constituting a court of enquiry.

On 24.4.1995, a court of enquiry was convened and thereafter the court of

enquiry submitted its report on 11.10.1996.

17. According to the counsel appearing for the appellant, when the

vigilance check report was submitted, Commander Works Engineer who

is the person aggrieved came to know that there was a commission of an

offence and therefore period of limitation as envisaged under Section 122

of the Act would commence from that date and when limitation is

computed from the said date, convening of the general court martial on

9.3.1998 was barred by time, as it was beyond the period of three years as

contemplated under Section 122 of the Army Act.

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18. The aforesaid factual position as stated above would indicate that

although a vigilance check report was submitted on 19.12.1994, the

Commanding Works Engineer sought for comments from the appellant

and on receipt of the comments of the appellant some variations were

found while comparing the vigilance report and the comments of the

appellant and therefore, a Technical Board of Officers was required to be

constituted which was accordingly constituted on 29.3.1995. When the

technical board of officers so constituted submitted its report on 9.4.1995,

it could be said that the fact of commission of offence by the appellant

came to be finally recorded, but even thereafter a Court of Enquiry was

convened so as to make an enquiry with regard to the allegation against

the appellant. The Report of the court of enquiry finally proved and

established that the appellant has committed an offence alleged against

him and therefore the knowledge, if any, regarding the commission of the

offence by the authority competent to convene the general court martial

could be said to be on 11.10.1996, when the aforesaid Court of Enquiry

Report was submitted or at the most it could be said that such knowledge

was derived by the authority competent to initiate action of convening the

general court martial on submission of the report by the technical board

of officers which was dated 9.4.1995. If the period of limitation is

computed either from 9.4.1995 or 11.10.1996, the convening of the trial

9 by general court martial on 9.3.1998 must be held to be within the period

of limitation as prescribed under Section 122 of the Act.

19. In our considered opinion, the expression `person aggrieved by the

offence' is irrelevant in the facts and circumstances of the present case

and what is relevant is the `knowledge of the authority competent to

initiate action'. The aforesaid acts were committed against the

Government and not a natural person. In the facts of the present case no

single person can be said to be aggrieved person individually due to the

act of defrauding the Army. What is applicable to the facts of the case is

the expression when it comes to the knowledge of the competent

authority to initiate action. In coming to the aforesaid conclusion, we are

fortified by a recent decision of this Court in Union of India and Others

Vs. V.N. Singh reported in (2010) 5 SCC 579 wherein it was held thus:-

32....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 a 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 a government organisation, it will be the date of knowledge of the authority competent to initiate the action, which will determine the question of limitation....

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20. The action contemplated by Section 122 must be the action it seeks

to limit - namely a trial. The power of investigation and trial or the power

to convene a court of inquiry is vested in officers in the chain of

command and not with staff officers. It is therefore clear from Section

122(1)(b) that the expression "person aggrieved" necessarily means a

natural person and what would be relevant is the knowledge of the

competent authority to convene a general court martial against the

appellant who in the present case is the general officer commanding. His

date of knowledge of the commission of offence becomes material as he

is the competent authority to convene a general court martial against the

appellant.

21. 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 Enquiry 11.10.1996 or at the most on submission of

the report by the technical board of officers on 9.4.1995 and the date of

the convening of the trial by general court martial is 9.3.1998, the trial is

not barred by limitation as sought to be submitted by the counsel

appearing for the appellant, and therefore, the submission of the counsel

appearing for the appellant fails and is rejected.

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22. Having held thus so far as the first issue is concerned, let us now

turn to the second issue, which was urged before us. We have very

carefully analysed the scope and applicability of paragraph 449(b) of the

Army Regulation.

23. On consideration of the records placed before us, we find that in

the present case, the General Court Martial, which was held against the

appellant was convened by the general officer commanding who was of

the rank of a Major General. The appellant was a lieutenant Col.,

whereas the commanding officer was Col. R.K. Rana. The General

officer commanding in the case of the appellant was a Major General who

is much higher in rank than the commanding officer and therefore, there

is no violation of paragraph 449(b) of the Army Regulation.

24. Learned counsel appearing for the appellant submitted before us

that here the convening officer of the General Court Martial was his

commanding officer and therefore there was violation of regulation

449(b). The said allegation is found to be factually incorrect. Even

otherwise, the appellant was attached to 603 ASC Battalion, for the

purpose of investigation and progress of the disciplinary case, and

therefore, commanding officer on 603 ASC Battalion became his

commanding officer. It could not be disputed by the counsel appearing

12 for the appellant that the said commanding officer is the one who has

filed the charge sheet against the appellant and the appellant has not

objected that the commanding officer 603 ASC Battalion was the

commanding officer. That being the position, there is no violation at all

of Paragraph 449(b) of the Army Regulation.

25. Therefore, all the issues urged by the appellant are found to be

without any merit. Consequently, the appeal has no merit, and is

dismissed, but we leave the parties to bear their own costs.

......................................J. [Dr. Mukundakam Sharma]

.......................................J. [Anil R. Dave] New Delhi, August 10, 2010

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