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Vijai Shankar Rai v. Union Of India And Others - WRIT - A No. 3020 of 2007 [2007] RD-AH 1236 (18 January 2007)


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Court No. 38

Civil Misc. Writ Petition No. 3020 of 2007

Vijai Shankar Rai


Union of India and others

Hon'ble V.K. Shukla, J.

Petitioner had been performing and discharging duties as soldier (clerk general duty) in Indian Army. During his continuance in service, petitioner had been accorded placement at various places.  Complaint was made regarding involvement of recruiting staff at Branch Recruiting Office, Jamnagar, Gujrat in malpractice while adjusting enrolled candidates to the recruiting centre. On the said complaint being made, Station Head Quarter Jamnagar vide order dated 11.03.2003 took decision for holding Court of Inquiry. The Court of Inquiry was held  and therein  evidence had been adduced and then finding was recorded after hearing the witnesses and perusing the documents in support of charges. Opinion of the Court of Inquiry  was as follows:


1.After taking into consideration of the facts derived from the statement of the witnesses and verifying the docus the Court opinion that:-

(a) No 4265333H Hav clk VS Rai has asked illegal gratification to the tune of Rs.30,000/- (Rupees thirty thousand) only) and Rs. 5,000 (Rupees five thousand only)  from No 4004769N Rect clk  Prem Nath Singh of Dogra Regt1 Centre and No 2700087L Rect clk Vijay Prasad of GRENADIERS Regtl Centre respectively during their desp from BR Jmnagar on10 Jul, 2002 and 09 July 2002 respectively.

(b)   No other staff of BRO Jamnagar  other than  No 4265333H Hav clk VS Rai is involved in any malpractice during enrolment of candidates during the period from 07-10 Jul 2002.

(c)  Necessary discp action to be taken against  No 4265333H Hav clk VS Raifor seeking illegal gratification  from the candidates during enrolment into the army.

         Presiding Officer:      Sd/- x  x  x  x  x

                                           (IC-37940H Col S Raman)

                                           8       MARAHTHA     LI

        Members   1  :                     Sd/- x  x  x  x  x

                                          (IC-46074N Maj Isaac P Therattil)

                                          130    AD Regt.

                2  :                     Sd/- x  x  x  x  x

                                         (SC-0004 of Cap Johny Joseph)

                                         8       MARAHTHA     LI"

After the said Court of Inquiry was held, the competent authority on 22.12.2003 directed for disciplinary action to be taken against petitioner and other  incumbents for illegal gratification. Thereafter tentative charge sheet had been issued on 14.07.2006. Recording of summary evidence commenced on 12.07.2006 in presence of petitioner and thereafter summary of evidence consisting of 15 pages  was transmitted by Major Mahim Kumar. Thereafter sanction has been accorded on 16.09.2006 and charge sheet has been issued on 27.11.2006. At this juncture present writ petition has been filed, questioning the validity of of proceeding .

Sri V.P. Shukla, learned counsel for petitioner, contended that in the present case proceedings are barred by Section 122 of the Army Act and Court Martial Proceedings are liable to be dropped. In this connection, learned counsel for petitioner placed reliance on a judgment of the Hon'ble Apex Court in the case of Major Radha Krishna v. Union of India and others, (1996) 3 SCC 507, for the proposition that things which cannot be done directly, cannot be permitted to be done indirectly.

Sri Ajeet Kumar Singh, learned counsel representing respondents, on   the other hand, contended that proceedings are well within time and the petitioner is unnecessarily dragging the proceedings, and further Army Act and the Rules framed thereunder are self contained, and plea sought to be raised here can be very will raised before authorities concerned.

In order to appreciate the respective arguments, the provisions as contained under Section 122 of the Army Act are being quoted below:

"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 fist 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 identify 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 fundamental 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 commission of the offence, shall be excluded.

(4) No trial for an offence of desertion other than desertion on active service or 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."

A bare perusal of the provisions quoted above would go to show that period of limitation qua holding of Court Martial proceeding has been provided for and the point of time from when the period of limitation has to commence, has also been provided for by means of clauses (a), (b) and (c) of sub-section (1) of Section 122 of the Army Act. In exercise of power conferred by Section 191 of the Army Act, Central Government has framed Rules known as the Army Rules. 1954. Chapter V of the aforementioned Army Rules deals with "Investigation of Charges and Trial by Court Martial". Section 1 of Chapter V of the Army Rules, deals with investigation of charges and remand for trial. Rule 22 deals with hearing of charge. Rule 23 provides for proceeding for taking down summary of evidence. Rule 24 deals with remand of accused. Rule 28 deals with charge-sheet and charge. Rule 29 provides for the way and manner, as to how charge-sheet has to commence. Rule 30 deals with contents of charge. Rule 31 provides for signature of Commanding Officer on the charge-sheet. Rule 32 provides for the circumstances, even in which charge-sheet cannot be  treated as invalid. Rule 33 deals with right of accused to prepare defence. Rule 34 deals with warning which is to be informed before he is arraigned. Section 2  of Chapter V of the Army Rules deals with General and District Courts Martial. Rule 51 (1) deals with special plea to the jurisdiction. Rule 52 deals with general plea of "Guilty" or "Not Guilty". Rule 53 provides opportunity to accused to plead bar of trial, at the time of his general plea of "Guilty" or "Not Guilty" on the grounds provided for in clauses (a), (b) and (c). Clause (c) of Rule 53 provides for that the period of limitation for trial as laid down under Section 122 has expired. Sub-rule (2) of rule 53 obligates the  Court to deal with such issue, and sub-rules (3), (4) and (5)  of Rule 53 clearly provide that when bar is proved, proceedings cannot commence. Section 3 of Chapter V of the Army Rules deals with summary court Martial. Rule 106 deals with proceedings. Rule 107 deals with situation, when evidence is to be  translated. Rule 108 deals with assembly. Rule 109 deals with swearing or affirming of court and interpreter. Rule 111 deals with arraignment of accused of the charges against him. Rule 112 provides opportunity to accused to raise objection n the charge, on th ground that i6 does not disclose an offence under the Act or the charge is not in accordance with the rules. Rule 113 authorizes the Court to amend charge-sheet, during the course of trial. Rule 114 gives opportunity to accused to raise special plea qua jurisdiction of court/plea of bar of trial, and when such plea is raised, then procedure provided for under Rule 43 has to be  followed, so far as it may be applicable but no finding on this issue would require confirmation. Rule 115 deals with  general plea of "Guilty" or "Not Guilty". Rule 116 deals with the procedure,which is to be followed, when accused pleads "Guilty". Rule 117 provides opportunity to accused to withdraw plea of "Not Guilty" and to plead "Guilty". Rule 118  deals with procedure which is to be adhered to, when plea of "Not guilty" is set up. Rule 119 deals with witnesses, in reply to the defence. Rule 120 deals with opinion of the Court, on the question whether accused is guilty or not guilty, which is known as verdict of court. Rule 121 deals with form and record of finding. Relevant rules namely, Rules 53, 122 and 114, for the purpose of present case are being quoted below:

"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 bu 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 ion 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 o n 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 of in 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 reassembled 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."

"112. Objection by accused to charge.-  The accused when required to plead to any charge, may object of the charge on the  ground that it does not disclose an offence under the Act, or is not in accordance with these rules."

"114. Special pleas.- If a special plea to the general jurisdiction of the court, or a plea in bar of trial, is offered by the accused, the procedure laid down for general and district courts-martial when disposing of such pleas shall, so far as may be applicable, be followed, but no finding by a summary court-martial on either of such pleas shall require confirmation."

On the touchstone of the provisions quoted above, claim of petitioner is being adverted to. Contention of petitioner is that this is virtually case of no evidence, and proceedings are barred in terms of Section 122 of the Army Act. Rules framed are self sufficient. Rule 112 as discussed above provides  opportunity to accused to raise objection to the charge, that it does not disclose offence under the Act or charges are not in accordance with rules, and Rule 114 provides opportunity to accused to raise special plea of bar of trial. Adequate procedural safeguards have already been provided for to the petitioner. Petitioner instead of invoking his rights provided for under the Rules has chosen to approach this Court, there is no reason to permit the petitioner to by-pass such statutory remedy provided for under the Rules and usurp the jurisdiction of the authorities concerned.

The judgment in case of Major Radha Krishna v. Union of India and others, (1996) 3 SCC 507, relied upon by the learned counsel for the petitioner will not come to the rescue of petitioner for the simple reason that on the admitted position in the case before Hon'ble Apex Court. Court Martial proceedings were barred by Section 122 of the Army Act , and thereafter recourse was  sought to be taken of  Rule 14 (2) of the Army Rules, which permitted the authorities to dispense with the services once trial was impracticable or inexpedient. Hon'ble Apex Court took the view that  once period of limitation for such trial  was over, the authorities cannot take action under Rule 14 (2) of the Army Rules. Here, in the present case, as already discussed, the plea which is sought to be raised before this court has to be raised before the competent authority. Consequently, in the facts and circumstances of the present case, there is no occasion to interfere with the ongoing disciplinary proceeding against the petitioner, and it is always open to petitioner to raise such plea as is available to him under law.

Consequently, writ petition is dismissed.  




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