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2013 DIGILAW 623 (HP)

Major Vikalp Purohit v. Union of India

2013-07-01

SURINDER SINGH

body2013
Judgment : Surinder Singh, J: - 1. By means of present petition, the petitioner seeks to protect his fundamental rights under Article 14, 16, 21 of the Constitution of India and for that purpose, inter alia, prays mainly the following reliefs: "1. To set aside the impugned order dated 21.6.2012 (Annexure P/1) passed by the learned Special Judge, Shimla; and 2. To pass an order, direction or writ in the nature of 'Prohibition', forbidding Respondents No.3, 4 and 5 jointly and severally from trying the petitioner by a Court martial on the same cause of action which was found by them to be untenable in law for prosecution of the petitioner by the Special Judge, Shimla." 2. The petitioner herein is a Major in the Army. He was posted at Koksar in the area of Lauhal Spiti, performing the duties at 397 Road Maintenance Platoon. (ii) CBI, Shimla branch received information with respect to the illegal sale of diesel at less price by the persons of Road Maintenance Platoon to the civil contractors involved with the road and construction work. (iii) Thereafter, a team of CBI led by Head Constable Amar Singh Rathour impersonating as a decoy civil contractor, laid a trap on 20.8.2010 at the location of 397 Road Maintenance Platoon, Koksar. The petitioner herein was caught red-handed accepting the money from Head Constable Amar Singh Rathour for the sale of Government diesel at a lesser price. Accordingly, a case bearing No. RCSML 2010 A 0005, was registered on 27.8.2010 for having committed offences punishable under Section 13(1) (C) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Section 409 of the Indian Penal Code. (iv) Since the petitioner is alleged to have committed the offence in his capacity as public servant, CBI applied for sanction from the competent authority under Section 19 of the Prevention of Corruption Act to launch prosecution, which was not accorded. According to respondents No.1 to 5, the competent authority in 'Integrated Headquarters of Ministry of Defence (Army)' decided to request CBI to hand over the case to the Army to initiate further disciplinary proceedings against the petitioner under the Ministry of Defence. According to respondents No.1 to 5, the competent authority in 'Integrated Headquarters of Ministry of Defence (Army)' decided to request CBI to hand over the case to the Army to initiate further disciplinary proceedings against the petitioner under the Ministry of Defence. The case of the petitioner is that the CBI's zeal to prosecute the petitioner was clearly motivated by reasons other than professional, which was allegedly, evident from the hurried, stage- managed operation that has omitted all other investigations which could have indicated the extent and depth of the alleged mal-practice of diverting Government diesel for personal gain by the Government servants, as revealed by the CBI source. 3. The perusal of the record requisitioned from the Court of Special Judge reveals that the Director Vigilance of the Ministry of Defence vide letter endorsed on 2.4.2012 to CBI requested to hand over the case to the Army to initiate further proceedings against the petitioner under the Army Act. This letter was processed at the appropriate level as is revealed from the office noting dated 1.2.2012 available in the file requisitioned from the learned Special Judge, the Deputy Legal Advisor was of the view that Army authorities may be advised to file an application under Section 475 (1) of the Code of Criminal Procedure before the Court of Special Judge, directing the CBI to hand over the case file alongwith all the material. He also submitted that after handing over the case file there is no need to file any report under Section 173 of the Code of Criminal Procedure. Thereafter on 3.2.2012, Incharge HOZ CHG agreed to this proposal of the Army and proposed to permit the initiation of action under the relevant provisions of the Army Act, which was approved. 4. Thereafter the matter was deliberated upon inter se the Director Vigilance and the Ministry of Defence, which resulted into the preparation of the report under Section 173 of the Code of Criminal Procedure by the CBI mentioning the entire facts and stating therein that the prosecution sanction was not accorded by the competent authority against the petitioner. Accordingly on 21.6.2012, an application was moved before the Special Judge, CBI, Shimla for taking over the case by Brigadier R.K. Gupta, Commander through his authorized agent Lt. Col Vinod Sharma to receive documents from the Court of learned Special Judge. 5. Accordingly on 21.6.2012, an application was moved before the Special Judge, CBI, Shimla for taking over the case by Brigadier R.K. Gupta, Commander through his authorized agent Lt. Col Vinod Sharma to receive documents from the Court of learned Special Judge. 5. On this application, CBI in their reply filed through Kamal Kishore Inspector of police (CBI), Shimla submitted that it was a case of sale of 800 liters, i.e., 4 barrels of diesel at the rate of '.5,750/- per barrel to Shri Amar Singh Rathour. An amount.23,000/- was also recovered from the petitioner. The aforesaid facts disclosed the commission of the aforesaid offences. It was also submitted that the competent authority had declined the sanction for prosecution on the plea that they would initiate proceedings against the petitioner under the provisions of Army Act. Thus, a complete report under Section 173 of the Code of Criminal Procedure mentioning the entire sequence of events and evidence collected alongwith original records as mentioned in the enclosed list of documents and list of witnesses was submitted for the perusal of the Special Judge. According to them, CBI had no objection if the competent authority of the Indian Army were willing to take over the case to initiate proceedings against the petitioner under the provisions of Army Act. B- Impugned order. 6. The above submission led the learned Special Judge to pass the following order: "21.06.2012 Present: Sh. T.P. Negi, P.P. CBI with Inspector Kamal Kishore, Inspector, CBI. Heard. ORDER C.B.I. had caught red handed accused person Vikalp Purohit, Officer-in-Charge, 70 RCC, Koksar Circle selling illegally diesel meant for RCC use. Crime vide R.C. No.5/2010 stood registered against captain aforesaid. After completion of investigation, the CBI had prepared final report under Section 173 Cr.P.C. against the accused person Vikalp Purohit, Officer-in-Charge, 70 RCC, Koksar. The CBI had sought sanction of prosecution of the accused person from the army authorities. The army authorities had refused to accord sanction of the prosecution of the accused person and had exercised option under Section 475 Cr.P.C. for trial of the accused personby the army authorities. Sh. R.K. Gupta, Brig. 612(1), Mechanized Air Defence Brigade had authorized Lt. Col. Vinod Sharma to take the charge-sheet and accompanying documents from the CBI. Lt. Col. Vinod Sharma has been handed over the final report under Section 173 Cr.P.C. and accompanying documents. Sh. R.K. Gupta, Brig. 612(1), Mechanized Air Defence Brigade had authorized Lt. Col. Vinod Sharma to take the charge-sheet and accompanying documents from the CBI. Lt. Col. Vinod Sharma has been handed over the final report under Section 173 Cr.P.C. and accompanying documents. The accused person Viklap Purohit, Officer-in-Charge, 70 RCC, Koksar Circle shall be tried by the army authorities. Application filed by the CBI sic (Army Commander) is disposed of. A copy of this order be forwarded to Sh. R.K. Gupta, Brig. Commander, 612(1), Mechanized Air Defence, Brigade, C/O 56 APO as also to Superintendent of Police, CBI, Shimla. Announced sd/- Shamsher Singh 21.06.2012 Sessions Judge (Special Judge), Shimla." C- Follow-up action. Consequent upon this order, the entire record was handed over to the duly authorized Army Officer Lt. Col. Vinod Sharma. Thereafter, the proceedings under the Army Act were initiated, as is evident from Annexure P-5 wherein the charges were framed and put to the petitioner to which he appears to have denied. As per the proceedings recorded on 23.7.2012, the Court Martial had recorded the statement of Head Constable Amar Singh Rathour, who placed the final report under Section 173 of the Code of Criminal Procedure (13 pages) alongwith other documents including the statements of other witnesses, further Shri Ravinder Kumar BR-II was also examined. The evidence stood closed. The petitioner was left at liberty to make statement and call any witness in defence. A brief statement made by the petitioner was also attached as Annexure-II to this form (Annexure P-5). The petitioner was at liberty to adduce his evidence to be reduced into writing. 7. As is evident from the aforesaid document (Annexure P-5), these proceedings were conducted in the presence of the independent witnesses as envisaged under Army Rule 22(1), at Ambala Cantt. D- Findings by this Court on the present petition under Article 226/227 of the Constitution. 8. The petitioner thereafter, chose to file the instant petition on 12.9.2012 in this Court seeking the above reliefs, assailing the impugned order Annexure P-1 quoted above, passed by the learned Special Judge, inter alia, precisely on the ground that there is a reference in the order that an application was moved by the CBI to hand over the case to the Army authorities, which is in violation of Section 475 of the Code of Criminal Procedure as there was no request of the Army. But a perusal of the record of the learned Special Judge reveals that a clerical error crept in the order by mentioning CBI, but the application was moved by the Commander as aforesaid. Therefore, this submission is devoid of any merit, as such rejected. Now next question arises whether before passing the impugned order the petitioner was required to be heard. 9. While hearing this petition, vide order dated 10.9.2012, the Division Bench of this Court headed by the then Chief Justice, directed the learned Assistant Solicitor General of India to get instructions and verify as to whether Annexure P-1, above order under challenge, was passed by the learned Special Judge after hearing the petitioner, thereafter vide order dated 18.9.2012 sought further clarification in the reply to be filed, as to whether the proceedings, if any, initiated by respondent No.5 was independent of Annexure P- 1 aforesaid, it was also made clear that the proceedings otherwise also shall be subject to the result of the writ petition. 14. Though no specific reply has been filed to the above directions in this petition, but from requisitioning the record of the learned Special Judge it is gathered that on 21.6.2012 an application was moved for and on behalf of Brigadier R.K. Gupta, by the authorized Officer Lt. Col. Vinod Sharma and simultaneously the CBI appears to have filed the reply. On considering the reply, the learned Special Judge passed the impugned order allowing the application under Section 475 of the Code for trial of the petitioner by the Army authorities and on the same day Lt. Col. Vinod Sharma was handed over the final report under Section 173 of the Code and accompanying documents with the direction that the petitioner be tried by the Army authorities. The record does not show anywhere that the petitioner was present or any notice of this application was sent to him affording any opportunity of hearing. It is sad that the matter was decided in hot haste avoiding the principle of natural justice. It is a settled principle of law that no adverse order can be passed against any person without affording an opportunity of hearing. It is sad that the matter was decided in hot haste avoiding the principle of natural justice. It is a settled principle of law that no adverse order can be passed against any person without affording an opportunity of hearing. The impugned order has a legal consequences as various legal issues and points qua the alleged misconduct of the petitioner have been raised in the application for handing over the matter to the Army authorities for proceedings against the petitioner under the Army Act. E- Final Order. 11. Therefore, on this short ground without touching other issues raised in the petition being unnecessary to ponder over at this stage, the impugned order (Annexure P-1), being in violation of fundamental rights guaranteed under Articles 14, 16 and 21 of the Constitution of India, is unsustainable and is liable to be quashed and set aside. Respondents No.3, 4 and 5 are prohibited jointly and severally from trying the petitioner by a Court Martial, as a follow-up action of Annexure P-1 aforesaid. Thus ordered accordingly. Consequently, the case is remanded back to the learned Special Judge to afford an opportunity to the petitioner to file his reply/objection to the request/application filed by Brigadier R.K. Gupta, Commander and after hearing the petitioner or his Counsel, dispose of the matter in accordance with law. 12. The petitioner is at liberty to take all the points taken in this petition before the learned Special Judge for its decision. The parties are hereby directed to be present before the learned Special Judge on 11.7.2013, on which date the petitioner shall file his objection/reply to the application moved by Brigadier R.K. Gupta, his Commander. There will be a direction to the learned Special Judge to expeditiously dispose of the matter as for as possible on or before 30.9.2013. 13. The Registry is hereby directed to return the record of the learned Special Judge forthwith so as to reach the learned Special Judge CBI, Shimla well before the date fixed. 14. The writ petition is accordingly disposed of.