1982 Supreme(Del) 15

High Court Of Delhi
HARBANS SINGH - Appellant
Versus
MINISTRY OF DEFENCE - Respondent
Civil 204 of 1975
Decided On : 01/25/1982

Headnote:Army Act - Section 122, Army Rules - Nos. 14, 177, 179 and 180 — The petitioner was charged with having purchase rum direct from manufacturers and illegal disposal of some bottles of rum A court of enquiry was held in which he was not allowed to summon witnesses. He was told that the chief of Staff was satisfied that trial by court Martial was not particable and his retention in service was undersiable. He denied the charges and desired to be tried by court Martial. But his representation was rejected and he was dismissed from service.

       Held:

       that the court Martial had become time barred under Section 122 of the Army Act is an irrelevant consideration for deciding whether it was practicable to hold an enquiry unless it is shown that the attempts were made in due deligencc to institute court Martial proceedings within time. The word "impracticable" in Rule cannot be interpreted so as to destroy the express provision of the Principal Act under which Rules arc framed.

       The object of Section 122 is to ensure that the delingnet officer is not kept in suspense and uncertaninly for more than 3 years. The period of limitation is for benefit of the accused. But if the delingnet officer is ready to undergo a trial by Court Martial, I do not think that Section 122 will come into play. Being only a statutory right, the same can be waived by the charged officer.