1. Military officer — Procurement irregularities — General Court Martial conviction for intent to defraud under Army Act — Challenge to conviction and sentence. (Para 1 , 2 , 4 , 5 , 6 , 13 , 14 , 30 , 31 )
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2022 Supreme(SC) 237
SUPREME COURT OF INDIA
(From the Armed Forces Tribunal)
L. NAGESWARA RAO, B.R. GAVAI, JJ.
UNION OF INDIA AND OTHERS – APPELLANT(S)
VERSUS
LT. GEN. (RETD.) S.K. SAHNI – RESPONDENT(S)
CRIMINAL APPEAL NO. 2169 OF 2014 WITH TRANSFERRED CASE (CRIMINAL) NO. 1 OF 2017
Decided On : 23-03-2022
Important Points
IMPORTANT POINT
There are inherent limitations on jurisdiction of Apex Court and it will not be permissible to reappreciate evidence as recorded by GCM unless Apex Court finds that material factors have been either ignored or evidence that has come on record, has been appreciated in a totally erroneous manner.
There are inherent limitations on jurisdiction of Apex Court and it will not be permissible to reappreciate evidence as recorded by GCM unless Apex Court finds that material factors have been either ignored or evidence that has come on record, has been appreciated in a totally erroneous manner.
Subject
Military Law - COURT MARTIAL
Act Referred
Headnote
Army Act, 1950 – Section 52(f) – Armed Forces Tribunal Act, 2007 – Section 71(e) – Dismissal from service – There are inherent limitations on jurisdiction of Apex Court and it will not be permissible to reappreciate evidence as recorded by GCM unless Apex Court finds that material factors have been either ignored or evidence that has come on record, has been appreciated in a totally erroneous manner – Though nine charges have been framed against respondent, they are interconnected and are related to three transactions – Findings of AFT that there was intention on part of respondent to defraud, would not be sustainable – Court of Inquiry was directed to examine all associated issues and pin point responsibility for lapses – Finding that respondent had failed to take cognizance of complaint and direct an inquiry with that regard, is contrary to material placed on record – AFT has specifically come to a finding that respondent has not committed any fraud or did not commit any act which resulted in actual loss or wrongful gain to any person – Finding as recorded by AFT is totally contrary to material placed on record – Orders passed by AFT as well as GCM are not sustainable in law – Appeal of appellants deserves to be dismissed and Transferred Case (Criminal) No. 1 of 2017 filed by petitioner (respondent in Criminal Appeal No. 2169 of 2014) be allowed. (Paras 28, 31, 35, 37, 45, 46 and 47)
Facts of the case:
Criminal Appeal No.2169 of 2014 is filed by Union of India and others challenging the orders passed by Armed Forces Tribunal, Chandigarh Regional Bench at Chandimandir dated 10th October 2013 in MA No. 1871 of 2012 and OA No. 262 of 2011 to the effect that it reduces the sentence of three years rigorous imprisonment and cashiering imposed on the respondent herein Lt. Gen. (Retd.) S.K. Sahni to dismissal from the service as provided in Section 71(e) of the Armed Forces Tribunal Act, 2007 and 21st March 2014 in MA Nos. 3201 and 3202 of 2014 in OA No. 262 of 2011, whereby AFT refused to grant leave to appeal.
Findings of Court:
AFT has come to a conclusion that it cannot be said that the respondent has actually committed fraud or did any such act, which resulted in actual loss or wrongful gain to any person. However, in the same breath, AFT observes that the acts lead to an inference that attempts were made to cause a wrongful gain, and therefore, the respondent cannot escape his liabilities.
Result : Criminal Appeal dismissed and Transferred Case allowed.
Legal Category Hierarchy
Advocates appeared:
For the parties : Mr. K.K. Tyagi, Adv. Mr. Sarvam Ritam Khare, AOR Mr. Mukesh Kumar Maroria, AOR Mr. Sanjay Jain, Ld. ASG, Mr. R. Balasubramanian, Sr. Adv. Mr. Sanjay Kumar Tyagi, Adv. Mr. Anukapl Jain Adv. Mr. Arvind Kumar Sharma AOR Mr. Mukesh Kumar Maroria, AOR Mr. P. Narasimhan, AOR
For the parties : Mr. K.K. Tyagi, Adv. Mr. Sarvam Ritam Khare, AOR Mr. Mukesh Kumar Maroria, AOR Mr. Sanjay Jain, Ld. ASG, Mr. R. Balasubramanian, Sr. Adv. Mr. Sanjay Kumar Tyagi, Adv. Mr. Anukapl Jain Adv. Mr. Arvind Kumar Sharma AOR Mr. Mukesh Kumar Maroria, AOR Mr. P. Narasimhan, AOR
Table of Contents
2. Constitution of General Court Martial under Rule 40(2) Army Rules — Validity of findings regarding intent to defraud and procurement irregularities. (Para 19 , 20 , 24 , 25 , 26 )
3. GCM constitution valid due to recorded exigencies — Procurement decisions caused no loss and saved public money — Inference of intent to defraud without actual loss is unsustainable. (Para 21 , 22 , 23 , 29 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 )
4. Conviction for intent to defraud under Section 52(f) Army Act is unsustainable where no actual fraud, wrongful gain, or loss is established. (Para 44 , 45 )
5. General Court Martial and Armed Forces Tribunal orders quashed — Respondent acquitted of all charges — Entitlement to pensionary and consequential benefits. (Para 46 , 47 )
6. When can a Court Martial be composed of members of a rank lower than the officer being tried?
Under Rule 40(2) of the Army Rules, members must not be of a lower rank unless the convening officer records an opinion that officers of such rank are unavailable due to exigencies of public service. (Para 21 , 22 )
7. Can a finding of intent to defraud under Section 52(f) of the Army Act be sustained without evidence of actual loss or wrongful gain?
No. If the court finds that no actual fraud was committed and no actual loss or wrongful gain occurred, an inference that attempts were made to cause wrongful gain is unsustainable in law. (Para 44 , 45 )
8. What is the scope of judicial review regarding the convening officer's decision on the availability of officers for a Court Martial?
The scope is limited. The court will not sit in appeal over the decision unless it is arbitrary, irrational, or unreasonable, checking only if the reasons recorded relate to exigencies of public service. (Para 22 )
JUDGMENT
B.R. GAVAI, J.
1. Criminal Appeal No.2169 of 2014 is filed by Union of India and others challenging the orders passed by Armed Forces Tribunal, Chandigarh Regional Bench at Chandimandir (hereinafter referred to as the “AFT”) dated 10th October 2013 in MA No. 1871 of 2012 and OA No. 262 of 2011 to the effect that it reduces the sentence of three years rigorous imprisonment and cashiering imposed on the respondent hereinLt. Gen. (Retd.) S.K. Sahni to dismissal from the service as provided in Section 71(e) of the Armed Forces Tribunal Act, 2007 (hereinafter referred to as the “AFT Act”), and 21st March 2014 in MA Nos. 3201 and 3202 of 2014 in OA No. 262 of 2011, whereby the learned AFT refused to grant leave to appeal.
2. Transferred Case (Criminal) No. 1 of 2017 is filed by the petitioner therein (respondent herein), originally before the High Court of Punjab and Haryana being Criminal Writ Petition No. 1895 of 2013, challenging the dismissal of MA No. 1871 of 2012 and OA No. 262 of 2011, which was filed challenging the order dated 18th February 2011, passed by the General Court Martial (hereinafter referred to as the “GCM”), vide which the respondent herein was held guilty of first, third, fourth, fifth, seventh and ninth charges and was sentenced as under:
(i) To be cashiered; and
(ii) Rigorous imprisonment for three years subject to confirmation.
3. As such, both, the appeal filed by the Union of India and others, and the transferred case, filed by the respondent herein have been heard together. For the sake of convenience, the facts are taken from Criminal Appeal No. 2169 of 2014.
4. The respondent was commissioned in the Indian Army on 16th December 1967 and earned promotions and was promoted to the rank of Lieutenant General in May 2003. The respondent was thereafter appointed as Director General, Supplies and Transport (hereinafter referred to as “DGST”) with effect from 1st February 2005. He was also awarded the “Ati Vishisht Seva Medal” in January 2005.
5. An anonymous complaint was received in the Directorate of Supplies and Transport (hereinafter referred to as the “Directorate”) on 4th April 2005. On 8th April 2005, the complaint was forwarded and a request was made to the respondent to examine the complaint and forward his comments on the file on priority for perusal of the Directorate. It is contended by the respondent that he replied to the same on 12th September 2005.
6. A Court of Inquiry was ordered against the respondent under the directions of General Officer CommandinginChief, Western Command (hereinafter referred to as “GOCinC”), to investigate into the following seven allegations:
“i. Procurement of Kabuli Chana through contract finalized during April 05 by Army Purchase Organization;
ii. Tendering and procurement of Barley crushed and Gram kibbled during financial year 20052006 by Army Purchase Organization;
iii. Testing and sampling of items of ration by CFL Delhi as per laid down specification arid its subsequent purchase/procurement from various firms/dealers as per approved sample and ASC specifications;
iv. Tendering and procurement of 979 Metric Tonnes of Masoor Whole which was supplied by GRAINFED;
v. Violation, if any, of the laid down quality norms, ASC specifications and other desired parameters with regard to moisture content, number counts per 100 gm weight, system of imposing price reduction of commodities contracted.
vi. Any undue favour granted to any contractor for procurement of meat by HQ Central Command during financial years 20032004 and 20042005
vii. Any irregularity with regard to permitting a civil contractor to dump excavated soil within the compound of ASC Centre and College of any undue favour taken from any contractor by and Army pers at ASC Centre and College.”
7. The Court of Inquiry only recommended for award of recordable censure against the respondent while recommending disciplinary action qua other officials under the Army Act, 1950 (hereinafter referred to as the “Army Act”
