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Friday, 17 February 2012

Supreme Court interprets Section 122 of the Army Act

In a yet another judgement on the subject, the Hon’ble Supreme Court has quashed the directions for assembly of a General Court Martial (GCM) against an officer and has also set aside the judgement of the Lucknow Bench of the Armed Forces Tribunal which had dismissed the said officer’s petition.

The officer was accused of irregularities in procurement of stores for a Central Ordnance Depot. The Commanding Officer hearing the charge had initially dismissed the charges under Rule 22 of the Army Rules as not having been proved, however the order was not accepted by the competent authority which directed recording of additional summary of evidence. Again it was found by the Commanding Officer that none of the charges stood. Yet again, setting aside the findings of the CO, the competent authority directed that the officer be tried by a GCM. The offence came to the knowledge of the authority competent to convene the Court Martial in May 2007 while the final orders convening the Court Martial were passed by the said authority in August 2010.

The Court Martial was convened but challenged on limitation under Section 122 by the accused officer. The plea was accepted by the Court Martial. However, the convening authority once again set aside the findings and directed the Court Martial to proceed with the trial. The AFT also ultimately upheld the decision to convene the Court Martial based on earlier judgements of the Supreme Court in the cases of VN Singh and JS Sekhon.

The SC has however distinguished the said judgements and has held in a detailed judgement rendered yesterday (15 Feb 2012) that in those cases the dispute was as to who was the competent authority to order the Court Martial, which was not the controversy in the case at hand and hence the GCM was clearly barred by limitation.

The Court in its judgement has also observed the light punishment handed to other accused in the same case including a non-recordable censure awarded to a Major General.
Source : Indian Military Service benifits & Issues

2 comments:

  1. Supreme court is the last refuge of the scoundrels. Once the disciplinary process had started that itself is the starting point for the court martial and there was no time limit there after.We need complete overhaul of our Supreme Court first.
    Supreme Court should have gone beyond Army Act 122 on time limit in this case allowing the outcome of the General Court Martial.
    Now will the ministry of Defence takes note and initiate actions to amend the provision of AA Sec 122?

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  2. Here is the another from the earlier verdict of the same Supreme Court interpretaing differently the provision of Army Act 122 . Check it out for yourself :-
    IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH NEW DELHI O.A NO. 161 OF 2010 IC 34650A BRIG. (RETD) R.R SINHA S/O SHRI S.D SINHA P-264, SECTOR 21, NOIDA, UP. THROUGH : MR. S.S PANDEY, ADVOCATE ...PETITIONER VERSUS 1. UNION OF INDIA THROUGH THE SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, DHQ P.O., NEW DELHI-110 011. 2. CHIEF OF THE ARMY STAFF, THROUGH ADDITIONAL DIRECTOR GENERAL (DV), INTEGRATED HQ OF MINISTRY OF DEFENCE (ARMY), DHQ P.O., NEW DELHI-110 011. 3. GENERAL OFFICER COMMANDING IN CHIEF, HQ WESTERN COMMAND, CHANDIMANDIR. THROUGH : MR. ANKUR CHIBBER, ADVOCATE WITH LT COL NAVEEN SHARMA ...RESPONDENTS

    Reliance in this regard is placed on the decision of the apex Court in Union of India and others v. V.N Singh (C.A No. 32 of 2003 decided on 8.4.2010), wherein the date of passing of the convening order was held to be the decisive date for the purpose of limitation. 5. Learned counsel for the petitioner has submitted that as per Army Act 122, ‘no trial by court-martial of any person subject to the Act for any offence shall be commenced after the expiration of a period of three years.’ Army Act Section 122 reads as follows:

    “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)”

    “………. A meaningful reading of the provisions of Section 122(1)(b) makes it absolutely clear that in the case of Government organisation, it will be the date of knowledge of the authority competent to initiate the action, which will determine the question of limitation. …………… 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 plea that the date of submission of the report by Technical Court of Inquiry should be treated as the date from which period of limitation shall commence has no substance. ……… On the facts and in the circumstances of the case this Court finds that the period of limitation for the purpose of trial of the respondent commenced onDecember 3, 1994 when the GOC-in-C Western Command being the competent authority directed disciplinary action against the respondent in terms of Section 122(1)(b) of the Army Act. The period of three years from the direction dated December 3, 1994 would expire on December 2, 1997 whereas the GCM commenced the trial against the respondent on December 17, 1996 which was well within the period of limitation of three years. …….”

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