JUDGMENT

1. The background to the present order by this Court is set out in the order dated 20th February 2009 passed by the Full Bench which reads as under: “Vide order dated 21st October 2003, a Division Bench comprising B.A.Khan and B.N.Chaturvedi, JJ., made a reference to a third Judge on the following issue: “Whether the petitioner’s trial by GCM was time-barred or not in the facts and circumstances of the case and in the light of the Rule position?”

The issue of interpretation of Section 122 of the Army Act fell for consideration of the Division Bench. Difference of opinion had arisen on the issue whether the petitioner’s trial by GCM was time-barred. B.A. Khan, J has held that the trial as time- barred whereas B.N. Chaturvedi, J has held that it was within time. The matter was accordingly referred to third Judge in accordance with Clause 26 of the Letters Patent. Justice P.N. Nandrajog who heard the reference, felt that the reference as framed require appreciation of facts and circumstances of the case and the counsel for the respondent was handicapped in making submission if it was to be understood that the opinion of the third Judge has to be one

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