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TMI Blog2010 (4) TMI 1241X X X X Extracts X X X X X X X X Extracts X X X X ..... y Division, directing the General Court Martial to re-assemble in open Court at Meerut on June 28, 1997 for reconsidering its findings on the first, second, third, fourth, sixth, seventh and eighth charges levelled against the respondent and the adequacy of the sentence of forfeiture of 8 years of past service for the purpose of pension awarded to him by the General Court Martial (4) the revised order dated July 2, 1997 passed by General Court Marital adhering to its earlier findings but revoking its earlier order of sentence and imposing sentence of forfeiture of 11 years past service for the purposes of pension and severe reprimand subject to he confirmation by Major General, General Officer Commanding and (5) the communication dated April 8, 2000 addressed by Col. Dy. CDR Mr. P.K. Sharma promulgating the order of the Confirming Authority by which sentence of forfeiture of 11 years past service of the respondent for the purposes of pension, was confirmed and (6) the communication dated May 15, 2000 by DDA and QMG Mr. G. Vinod for CDR mentioning that the promulgation order carried out on May 15, 2000 was handed over to the respondent and order dated April 17, 2000 promulgating pun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... September, 9, 1993, the Major General ASC, Headquarters Western Command, endorsed certain remarks in the pen picture of the respondent while writing his ACR. On January 8, 1994 a Technical Court of Inquiry was convened by Brigadier Narsimhan, who had replaced Brigadier K.S. Bharucha, as DDST. The Lt. Col. Ram Darshan of 226 Company ASC Supplies was asked to act as the Presiding Officer. The report along with the proceedings of Technical Court of Inquiry were forwarded to the DDST. The DDST recommended to the Major General ASC, Headquarters Western Command, vide communication dated March 3, 1994 to go for a thorough investigation by Staff Court of Inquiry. Therefore, on May 7, 1994 a Staff Court of Inquiry was convened pursuant to the orders of the General Officer Commanding-in-Chief, ('GOC-in-C' for short) Western Command. Before Staff Court of Inquiry, ('S.C.I.' for short) witnesses were examined and documents produced. The Staff Court of Inquiry concluded its proceedings and submitted its recommendations on August 31, 1994 blaming the respondent specifically along with few other personnel for irregularities, in the local purchase of Hygiene and Chemicals during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent from some of the charges and decide whether the punishment imposed on the respondent was lenient or not. Thereupon, the respondent filed Writ Petition No. 5451 of 1997 challenging aforementioned order dated June 14, 1997 as well as validity of Sections 153, 154 and 160 of the Army Act, 1950. Writ Petition No. 5451 of 1997 was filed by the respondent without prejudice to the contentions and averments made in Criminal Writ Petition No. 726 of 1996. In view of the directions from the Confirming Authority, GCM was convened. The GCM submitted its report dated July 2, 1997. The report indicates that the GCM adhered to its earlier finding but passed a fresh order of sentence forfeiting 11 years of past service of the respondent for the purpose of pension as well as the punishment of severe reprimand. A copy of the order dated July 2, 1997 was also forwarded to the respondent. On receipt of the order dated July 2, 1997 the respondent brought to the notice of the Court hearing Criminal Writ Petition No. 726 of 1996, the subsequent developments which had taken place. The Court noticed that order dated June 14, 1997 passed by the Competent Authority, was subject matter of challenge, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondent who learnt about the offence having been committed by the respondent for the first time on receipt of the report of Staff Court of Inquiry submitted on December 3, 1994 and as the G.C.M. commenced the trial on December 17, 1996 the same could not have been treated as time barred under Section 122(1)(b) of the Army Act. It was asserted that the Technical Court of Inquiry could not come to a definite conclusion about the correct details of purchase of Hygiene and Chemicals nor any definite conclusion could be reached about the persons responsible for the irregularities but the involvement of the respondent came to the light only in August 1994 when the Staff Court of Inquiry submitted its report and therefore the High Court was not justified in quashing the proceedings of G.C.M. on the ground that they were time barred. What was highlighted by the Learned A.S.G. was that in the letter dated May 27, 1993 addressed by Brigadier K.S. Bharucha to MG ASC Headquarter Western Command, there was no mention whatsoever about the respondent being the person who had committed the irregularities except a reference to the fact that certain procedural lapses had taken place on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me evident and therefore the proceedings initiated against him should be treated as time barred. The Learned Counsel for the respondent drew the attention of the Court to the communication dated May 5, 1993 addressed by DDST Brigadier K.S. Bharucha on behalf of the Headquarter Delhi Area to Lt. Col. P. Oomen, ADST asking him to conduct the inquiry into the lapses found in local purchase by 4 RPD, pursuant to which report was submitted to Headquarter Delhi Area, wherein it was concluded that irregularities were committed in purchase of Hygiene and Chemicals and therefore the period of limitation would start running from May 27, 1993 when the said report was submitted by Mr. K.S. Bharucha, DDST to Major General, Army Service Corps at Headquarter Western Command. According to the Learned Counsel for the respondent, the DDST issued a notice dated June 18, 1993 calling upon the respondent to explain procedural lapses in local purchase of Hygiene and Chemicals by 4RPD wherein there is reference to instructions of Headquarter Western Command dated June 12, 1993 and therefore the relevant period for the purpose of deciding the question whether the proceedings were time barred or not should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held by this Court. 6. Section 122 of the Army Act, 1950 prescribes period of limitation for trial by Court Martial of any person subject to the provisions of the Act for any offence committed by him. The said Section reads as under: Section 122. Period of limitation for trial - (1) Except as provided by Sub-section (2), no trial by court-marital 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l commence. It provides that the period of three years shall commence on the date of the offence or 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. In view of the provisions of Section 122(1)(b) a question arises as to who is the person aggrieved within the meaning of the said Section. According to the respondent Brigadier K.S. Bharucha was the person aggrieved and the period of three years shall commence from the date when commission of offence by the respondent came to his knowledge on May 17, 1993 when Lt. Col. P. Oomen submitted his report to Mr. Bharucha. The contention of the Union of India is that in terms of Army Act, Mr. K.S. Bharucha was neither the person aggrieved nor authority competent to initiate action and therefore the date on which the Lt. Col. P. Oomen submitted report would not be relevant for the purpose of determining the question whether the trial commenced against the respondent was time barred. The term "the person aggrieved by the offence" would be attracted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adier K.S. Bharucha had only technical control of 4RPD and had therefore recommended to his higher authority to close down the case but himself had not taken a decision to close down the case or to continue the case against the respondent. The power to initiate action in terms of Section 122(1)(b) of the Army Act was only with GOC Delhi Area who is next superior authority in chain of command. The record shows that even the power to convene a Court of Inquiry was available only with GOC Delhi Area and GOC-in-C Western command since they are the authorities in command of body of troops and the power to convene a Court of Inquiry in terms of Army Rule 177 is vested only with an Officer in command of body of troops. The facts of the present case establish that the Technical Court of Inquiry was convened by DDST Headquarter Delhi Area on January 8, 1994 which recommended examination of certain essential witnesses for bringing into light the correct details and the persons responsible for the irregularities by a Staff Court of Inquiry and accordingly the Staff Court of Inquiry was ordered on May 7, 1994 by GOC-in-C Western Command which concluded in its report dated August 31, 1994, ment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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