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2015 DIGILAW 631 (JK)

Union of India v. Ab. Azeez

2015-12-01

B.S.WALIA, MUZAFFAR HUSSAIN ATTAR

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JUDGMENT : B.S. Walia, J. 1. Vide common order, we propose to decide two Letters Patent Appeals, which have been directed against the decision of the learned Single Judge dated 24.05.2000 whereby OWP No. 896/1996 titled as 'Abdul Azeez v. Wing Commander & Ors.' and OWP No. 894/1998 titled as 'Suresh Chander Nath v. Wing Commander & Ors.' were allowed and the sentence & punishment recorded by the Summary Court Martial against the petitioners was set aside. Brief facts of the case necessary for the adjudication of the controversy involved in the instant Letters Patent Appeals are: Vide order of the Summary Court Martial dated 22.07.1996, the petitioners were awarded punishment of six months' rigorous imprisonment as also penalty of dismissal from service. Plea before the learned Single Judge was that the Commanding Officer, who had conducted Summary Court Martial proceedings, was pre-determined to punish the petitioners, that there was no evidence against the petitioners and the petitioners could not have been tried as the trial was time barred in terms of Section 122 of the Army Act. Number of opportunities were granted to the respondents to file counter affidavit to controvert the averments as contained in the writ petition, but despite opportunities, the needful was not done. Likewise, despite direction to produce the relevant record, the same was not produced despite grant of numerous opportunities. However, respondents filed objections stating therein that the Competent Authority came to know about the commission of the offence on 10.11.1993, therefore, the trial, which had commenced on 17.07.1996, had commenced within the period of limitation of three years, therefore, was not barred by time. The learned Single Judge took into account the fact that it was not disputed that the Commanding Officer, who had pronounced the sentence, had disagreed with his predecessor and recommended to constitute the Summary Court Martial and further that it was also not disputed that he had recorded in the aforementioned memorandum that the material part of evidence was not existing to prove the guilt. The learned Single Judge also took into account that the averments in the petition and in the rejoinder that the confession recorded by the respondents had not been read over and explained to the petitioners, therefore, the plea of guilt had wrongly been attributed and recorded and that there was no rebuttal on record to deny the said allegations. The learned Single Judge also took into account that the averments in the petition and in the rejoinder that the confession recorded by the respondents had not been read over and explained to the petitioners, therefore, the plea of guilt had wrongly been attributed and recorded and that there was no rebuttal on record to deny the said allegations. The learned Single Judge also took into account that despite repeated opportunities, record had not been produced, therefore, adverse inference was required to be drawn against the respondents. As regards the plea of the trial being time barred in terms of Section 122 of the Army Act, the learned Single Judge observed that FIR No. 142 was lodged at Police Station Nubra, District Leh, by Subedar Maghan Singh on 16.06.1993 against the petitioners for the alleged offence of their having sold Army Rations to civilians on 03.06.1993 while working in 528 Army Services Corps. Battalion leading to the petitioners being charge-sheeted on 17.07.1996. The learned writ court took into account that the stand of the respondents w.r.t. the trial being time barred, was on the basis of knowledge of the commission of offence having come to the notice of the Competent Authority i.e. Commanding Officer on 10.11.1993 but no explanation with regard to the mode or source of knowledge of the Commanding Officer had been placed on record nor had the same been produced on record. In the aforementioned background, the learned Single Judge concluded that unless the respondents could make out that they had received information of alleged offence on a particular day from a particular source or mode, their plea was devoid of force and the respondents had not made out either from the pleadings or from the record that they had no information of the commission of the offence on 16.06.1993 i.e. the date when the complaint was filed by the Subedar of the Unit, and further that the plea of the respondents that they had received information about the commission of the offence on 10.11.1993 had not been proved by them, therefore, trial being time barred was vitiated. In the light of the above position, both the Writ Petitions were allowed and the sentence & punishment recorded by the Summary Court Martial against the petitioners was set aside. 2. In the light of the above position, both the Writ Petitions were allowed and the sentence & punishment recorded by the Summary Court Martial against the petitioners was set aside. 2. Learned counsel for the appellants has argued that the trial against the respondents/petitioners was not time barred as the Competent Authority had come to know about the commission of offence only on 10.11.1993. In order to substantiate this plea learned counsel has referred to Annexure-P1 i.e. FIR No. 142 of 16.06.1993 got registered by Lt. Col. S.K. Gawari, Presiding Officer Court of Inquiry, through Subedar Maghan Singh. The same reveals that rations were dishonestly misappropriated en route while the same were despatched by ASC Company of Army near Thoise to Base Camp on 03.06.1993 in some military vehicles and the custodian of these ration items sold the same to some civilian shopkeepers of village Diskit on cash payment, whereupon the said rations were loaded in civil tipper bearing No. JKE/7062, which was caught by the police while going from Khaiser to Diskit and, that custodian of the said rations who had misappropriated the same were government servants and in view thereof, it was requested that F.I.R. be lodged, case be investigated and the culprits be brought to book. 3. A perusal of the aforesaid FIR i.e. Annexure-P1 does not disclose identity of the military vehicles from which the rations were misappropriated nor the names of the army personnel from whose custody the said rations were misappropriated. Therefore, it stands established from FIR No. 142 dated 16.06.1993 that the identity of the accused involved in the misappropriation of the defence rations was not to the knowledge of the Army Authorities as on 16.06.1993. 4. Learned counsel for the appellants has further given the relevant sequence of events:- 1. 03.6.1993 Date of incident 2. 05.6.1993 Date of which army authorities informed by the police of confiscation of defence rations 3. 12.06.1993 Date of convening of Court of inquiry 4. 16.6.1993 Date of lodging of FIR 5. 26.10.1993 Completion of Court of Inquiry 6. 30.10.1993 Recommendation of Brigade Commander, 102 Infantry Brigade 7. 10.11.1993 Directions of GOC 3 Infantry Division 8. 08.01.1994 Hearing of charge under Army Rule 22 9. 08.1.1994 to 01.07.1994 and 08.1.1994 to 28.7.1994 Summary of evidence 10. 09.11.1995 1st Additional Summary of Evidence 11. 12.01.1996 2nd Additional Summary of Evidence 12. 17.7.1996 Charge sheet 13. 30.10.1993 Recommendation of Brigade Commander, 102 Infantry Brigade 7. 10.11.1993 Directions of GOC 3 Infantry Division 8. 08.01.1994 Hearing of charge under Army Rule 22 9. 08.1.1994 to 01.07.1994 and 08.1.1994 to 28.7.1994 Summary of evidence 10. 09.11.1995 1st Additional Summary of Evidence 11. 12.01.1996 2nd Additional Summary of Evidence 12. 17.7.1996 Charge sheet 13. 22.7.1996 SCM held 5. Perusal of order dated 11.06.1993 convening Court of Inquiry reveals that Court of Inquiry had been directed to be constituted to investigate the circumstances under which on 03.06.1993 at 1215 hours a civil truck bearing registration No. JKE/7062 (Tipper) driven by Sri Rehmatullah was caught by the civil police while carrying unauthorised army rations and the Court was required to identify the personnel involved with Sri Rehmatullah in the deal of unauthorised disposal of government rations. Witness No. 18 i.e. Tashi Samphal identified two accused namely L/Nk SC Nath No. 13881461H and Sep (MT) A Azeez No. 13881750X out of a group often army personnel lined up in front of him in presence of members of the Court as the personnel who were driving the two Tata vehicles on 03.06.1993 and from whom the purchase of defence rations was effected by him by paying cash. This statement was recorded on 18.06.1993 and Lt. Col. S.K. Gawari, Presiding Officer on the same date certified that identification parade had been carried out as per para 406 of DSR at Police Station, Diskit on 18.06.1993 at 1730 Hrs when ten persons were paraded wherein Mr. Tashi Samphal identified L/Nk SC Nath No. 13881461H and Sep (MT) A Azeez No. 13881750X, and that fair chance was given to both identified individuals by rotating their position within the personnel, and further that the personnel identified did not make any statement. 6. From the statement of Tashi Samphal recorded on 18.06.1993 during the Court of Inquiry it is clear that the commission of the offence by L/Nk SC Nath No. 13881461H and Sep (MT) A. Azeez No. 13881750X was to the knowledge of Sh. S.K. Gawari, Lt. Col. on 18.06.1993. However, it is the stand of the appellants that the Court of Inquiry was completed on 26.10.1993 and was submitted to the CDR 102 INF BDE who forwarded the same to the GOC, 3 Infantry Division on 30.10.1993 who agreed with the recommendations for disciplinary action against the respondents/petitioners on 10.11.1993. S.K. Gawari, Lt. Col. on 18.06.1993. However, it is the stand of the appellants that the Court of Inquiry was completed on 26.10.1993 and was submitted to the CDR 102 INF BDE who forwarded the same to the GOC, 3 Infantry Division on 30.10.1993 who agreed with the recommendations for disciplinary action against the respondents/petitioners on 10.11.1993. Respondents by relying on the decision of the Hon'ble Supreme Court in case titled as' J.S. Sekhon v. Union of India' reported as AIR 2010 SC 2887 have contended that in the circumstances, limitation would begin from 10.11.1993, accordingly, the Summary Court Martial held on 22.07.1996 was within three years, therefore not barred by limitation u/s. 122. 7. Relevant extract of the decision of the Hon'ble Supreme Court in the case of J.S. Sekhon v. Union of India, (2010) 11 SCC 586 is reproduced hereunder: "18. The report of the court of inquiry 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 inquiry 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 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. 20. 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. 20. In coming to the aforesaid conclusion, we are fortified by a recent decision of this Court in Union of India v. V.N. Singh wherein it was held thus: (SCC p. 588, para 32) "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." 21. 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. 22. 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. 22. 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 inquiry on 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." 8. Court of Inquiry was concluded and report submitted on 26.10.1993 to CDR 102 INF Brigade who forwarded it to the GOC 3 Infantry Division on 30.10.1993, who agreed with the recommendations for disciplinary action against the respondents/petitioners on 10.11.1993. However, the respondents/petitioners who belonged to 528 ASC Battalion were attached with Karakoram Wing, Ladakh Scouts vide HQ 102 Inf Bde Signal No. A-1769 dated 12th December 1993 in terms of Army Order 89/91 till finalisation of disciplinary action against them. In terms of Section 116, Summary Court Martial can be held by the Commanding Officer of any Corps, department or detachment of the regular army and he alone shall constitute the Court. In the instant case the officer commanding the Karakoram Wing, Ladakh Scouts to which the respondents/petitioners were attached got knowledge of the involvement of the accused in the offence on the day they were attached to Karakoram Wing, Ladakh Scouts i.e. 12.12.1993 or at best knowledge to the competent authority can be said to be on 10.11.1993 when GOC, agreed with the recommendations dated 30.10.1993 of CDR 102 INF Brigade for disciplinary action against the respondents/petitioners based on the recommendations of the Court of Inquiry which was concluded and submitted to CDR 102 INF Brigade on 26.10.1993 GOC. Thus even if the date for starting point of limitation is taken as 26.10.1993, the Summary Court Martial conducted by Lt. Col. Thus even if the date for starting point of limitation is taken as 26.10.1993, the Summary Court Martial conducted by Lt. Col. PP Singh, Officer Commanding the Karakoram Wing, Ladakh Scouts imposing sentence on 22.07.1996 is within 3 years of attachment of the respondents/petitioners to Karakoram Wing, Ladakh Scouts on 12.12.1993 and in any case within 3 years of submission of report of COL Thus, on the basis of the record referred to by learned counsel and as has been produced before us in court, the finding by the learned single judge of the Summary Court Martial being time barred u/s. 122 is not sustainable and is accordingly set aside. 9. We have also considered the plea that observations recorded by the learned Single Judge that the Commanding Officer, who had conducted Summary Court Martial proceedings, was pre-determined to punish the petitioners, that there was no evidence against the petitioners, that it was not disputed that the Commanding Officer, who had pronounced the sentence, had disagreed with his predecessor and recommended to constitute the Summary Court Martial and further that it was also not disputed that he had recorded in the aforementioned memorandum that the material part of evidence was not existing to prove the guilt, that the averments in the petition and in the rejoinder that the confession recorded by the respondents had not been read over and explained to the petitioners, therefore, the plea of guilt had wrongly been attributed and recorded and there was no rebuttal on record to deny the said allegations. 10. Learned counsel for the appellant has explained that the record could not be produced earlier on account of the same having got mixed up with some other record, therefore even the counter could not be prepared and filed. 11. Respondents have filed additional affidavit that Lt. Col. PP Singh had mentioned in Annexure A dated 17.07.1996 to higher authorities that although there was no evidence against the respondents/petitioners, yet they were required to be punished. The aforementioned plea is without any merit and perusal of the contents of the communication Annexure A dated 17.07.1996 demolishes the plea of there being no material implicating the respondents/petitioners with the offence or of the Commanding Officer who conducted the Court Martial being pre-determined to punish the petitioners. Relevant extract of Annexure A is reproduced below. "1. The aforementioned plea is without any merit and perusal of the contents of the communication Annexure A dated 17.07.1996 demolishes the plea of there being no material implicating the respondents/petitioners with the offence or of the Commanding Officer who conducted the Court Martial being pre-determined to punish the petitioners. Relevant extract of Annexure A is reproduced below. "1. A cvy consisting of four Tata 4 Ton vehs had left 11 Comp P1 (Thoise) for Base Camp on 03 June 93. The accused No. 13881750X NK/Dvr A. Azeez was one of the dvr in the cvy. His veh was loaded with items of dry and tinned rations. 2. Two vehs out of this cvy, i.e. the veh driven by the accused and the veh driven by No. 13881461H Nk/Dvr SC Nath had deviated from the east route near village Diskit and sold govt. rations which they were carrying from 11 Comp P1 to Det Base Camp. 3. The same day, i.e. on 03 June 93, some rations belonging to Army were confiscated from a civil tipper veh JKE-7062 by SHO Police Stn Diskit. These rations valued Rs. 1,16,709.07 (Rupees one lakhs sixteen thousand seven hundred seven and paise seven only) the details of same are given in Appx 'A' att. The rations were sold to civs as stated by witnesses. A C of I was ordered by HQ 102 Inf Bde. During investigation by the C of I, the Presiding Officer Lt. Col. SK Gawari carried out the identification parade at Police Station, Diskit. Through no formal report in this respect has been made but the way the identification parade was conducted and how the accused pers were identified by the civ witnesses are given in the statement of following witnesses in the C of I:- (a) Shri Tsering Stopdan (b) Shri Tashi Samphel (c) Shri Tashi Dorje 4. xxxxxxxxxx 5. Both the dvrs, i.e. NKZDvr SC Nath and the accused had sold the rations together for Rs. 19,650/- (Rupees nineteen thousand six hundred fifty). The entire money was collected by NK/Dvr SC Nath. The share which each one of them had received could not be in S of E. 6-10. xxxx 11. During his entire tenure, i.e. from Mar 91 to Jun 93, the accused had drawn a total of Rs. 39,200/- (Rupees thirty nine thousand and two hundred only) from his salary. The entire money was collected by NK/Dvr SC Nath. The share which each one of them had received could not be in S of E. 6-10. xxxx 11. During his entire tenure, i.e. from Mar 91 to Jun 93, the accused had drawn a total of Rs. 39,200/- (Rupees thirty nine thousand and two hundred only) from his salary. However, he had sent a sum of Rs. 43,000/- (Rupees forty three thousand only) by demand draft/MO to his wife/father. Between 19 Apr. 93 to 15 May 93 itself, Nk/Dvr A Azeez had sent Rs. 40,000/- (Rupees forty thousand only) by bank draft. Whereas during this period he had drawn only Rs. 3,000/- and was not likely to have money from any other legal source as he had availed lve [leave] w.e.f. 06 Feb. to 12 Apr. 93. Thus the accused had sent unaccounted sum of Rs. 37,000/- to his wife which legally did not belong to him. From above it is apparent that the accused had indulged in unfair means to acquire money earlier also which have neither come to light nor can be proved at this belated stage. But the fact that the accused had sent unaccounted money stands proved." 12. Likewise the plea that the confession recorded by the respondents had not been read over and explained to the petitioners, therefore, the plea of guilt had wrongly been attributed and recorded and there was no rebuttal on record to deny the said allegations, is also without merit in view of the signatures of the respondents/petitioners under the certificate recording plea of guilty. The certificate duly signed by the respondents/petitioners is reproduced as under: "Before recording the plea of guilty offered by the accused, the court explains to the accused the meaning of the Charges to which he pleaded guilty and ascertains that the accused understand the nature of charges to which he has pleaded guilty. The Court also informs the accused the general effect of that plea and the difference in procedure which will be followed consequents to the said plea. The Court having satisfied itself that the accused understands the charges(s) and the effect of his plea of guilty accepts and records the same. The provisions of Army Rule 115(2) are complied with. The Court also informs the accused the general effect of that plea and the difference in procedure which will be followed consequents to the said plea. The Court having satisfied itself that the accused understands the charges(s) and the effect of his plea of guilty accepts and records the same. The provisions of Army Rule 115(2) are complied with. Sd/- (Signature) The accused Sd/- (Signature) (The Court) From the position as noted above, it transpires that not only was the Summary Court Martial conducted within period of limitation but even the pleas raised by the respondents/petitioners in their additional affidavit and in respect of which adverse inference was drawn by the learned Single Judge on account of non production of record, are contrary to the record as has been produced before the Court during the course of hearing. Resultantly, for the reasons recorded above, the appeals succeed and are accordingly accepted and judgment of the learned Single Judge is set aside and the writ petitions dismissed.