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2006 Supreme(P&H) 3314
2006 (4) LAW HERALD 3320 (P&H) (DB)
PUNJAB AND HARYANA HIGH COURT
(DIVISION BENCH)
Before
M.M. KUMAR, M.M.S. BEDI, JJ.
CIVIL WRIT PETITION NO. 14744 OF 2003
18.08.2006
A.S. Dhillon
Petitioner
Vs.
Union of India and others
Respondents
For the Petitioner:Mr. Gurnam Singh, Advocate.
For the Respondents:Mr. Gurpreet Singh, Advocate, C.G.S.C.
IMPORTANT POINTS
Court of Inquiry - The Court of inquiry is merely in the nature of preliminary inquiry - Cannot be equated with trial.
Army - Disciplinary Action - Limitation - For the purpose of reckoning the period of limitation for the purpose of trial by Court Martial.
It will be premature at the stage when merely an order of attachment has been issued.
Headnote:Army - Disciplinary Action - Limitation - Scope and the extent of plea of limitation in various eventualities summed up.
Army Act, 1950 - Section 122 - Army Rules - Rule 22 to 24, 53, 49, 51 - Army Instructions 30 of 1986 - Limitation - Summary Evidence - Order of attachment - Disputed question of facts - C.B.I. conducted surprise check on supply depot on 19.11.1999 - Certain discrepancies detected - Investigation by way of Court of inquiry ordered recommended Administrative action - Court martial proceedings - Gap of about three years - Attachment of petitioner - Validity of order - Held; For the purpose of reckoning the period of limitation for the purpose of trial by Court Martial, it will be premature at the stage when merely an order of attachment has been issued, to enter into the disputed question of fact regarding the period of limitation having expired for the purpose of trial. (Para 16)
Army Act, 1950 - Section 122 - Constitution of India, 1950 - Article 226 - Existence of alternative remedy - When the disputed question of fact is to be determined by statutory forum, High Court would certainly refrain from exercising extra ordinary jurisdiction - Petitioner to raise the issue of limitation and other defenses before the statutory authorities. (Para 23 and 23)
Constitution of India, 1950 - Article 226 - Army Act, 1950 - Section 122 - Army Rules - Rules 22, 24, 49, 51, 53 - Period of limitation - Writ jurisdiction - Disputed questions of facts - Statutory remedy available with petitioner - Writ petition against anticipated Court martial proceedings not maintainable. (Para 25)
Army Act, 1950 - Section 122 - Period of limitation - Provisions of Section 122 of the Army Act are mandatory in nature - Said provisions create an absolute statutory bar to commence a trial of any person subject to the Army Act for any offence. (Para 5)
Army Act, 1950 - Section 122 - Period of Limitation - Question of fact - Scope and the extent of plea of limitation in various eventualities summed up as follows: -
(i) The commencement of the period of limitation will depend on the facts of the each case and the period from which the period of limitation is to be calculated would be a question of fact to be determined with regard to facts and circumstances of each case.
(ii) The knowledge, necessary before the limitation begins to run must amount to “actionable information” relating to the offence and the identity of the offender with reasonable precision and certainty to warrant action.
(iii) For the purpose of clause-c of Section 122 of the Army Act the period of limitation will start when the victim of the crime identified the offender to the competent authority to initiate disciplinary proceedings.
(iv) In case where disciplinary action proceeds on the basis of the directions and the competent statutory authority under Army Rule 22, the period of limitation shall reckon from the date the said authority acquires requisite knowledge of commission of offence by the accused of the relevant offence and not from the date the C.O. initiates process of disciplinary action by hearing the charge in pursuance of the such direction.
(v) In cases of complaint the period of limitation would commence from the date of its receipt by the competent authority. In CBI cases the period of limitation would commence from the date of receipt of a copy of the preliminary inquiry, provided it disclose the offence and the identity of the offender. In case where such reports do not disclose the offence and the identity of the offender, the period of limitation shall commence from the date of receipt of final report of the CBI, if it contains such disclosures.
(vi) In cases of continuing offences, a fresh period of limitation begins to run every moment of the time during which the offence continues.
(vii) Depending upon the circumstances of each case, the commencement of the period of limitation for the purpose of Section 122 of the Army Act in each case would be a question of fact to be determined based on the facts and circumstances themselves. (Para 8)
Army Act, 1950 - Section 177 - Court of Inquiry - The Court of inquiry is merely in the nature of preliminary inquiry - Cannot be equated with trial. (Para 12)
M.M.S. BEDI, J.
1. The petitioner has approached this Court under Article 226 of the Constitution challenging order dated 5.9.2003 (Annexure P-2) issuing a direction for his attachment at Chandimandir by orders of Head Quarters, Western Command. The apprehension of the petitioner is that the attachment order under Army Instructions 30 of 1986 has been issued as he is required to be tried by Court Martial. Under the Instructions the officer against whom disciplinary action is contemplated may, where necessary, be attached to other units at the discretion of the Army Head Quarters or GOC-in-C Command concerned for the purpose of investigation and progress of the disciplinary case. The petitioner has sought quashing of order dated 5.9.2003 (Annexure P-2) primarily on the ground that the allegation for which he is sought to be attached for taking disciplinary action has become barred by Limitation under Section 122 of the Army Act,1950 as a period of three years has elapsed between the alleged date of offence and the date of trial.
2. Brief facts, which are necessary for the decision of this case are that the petitioner was posted as Commandant, Supply Depot, Chandimandir from 1999-2000. On 19.11.1999 when the Deputy Director, Supplies and Transport was on inspection to the unit commanded by the petitioner, a surprise check was conducted by C.B.I. on the supplies depot, F.O.L. ( Fuel Oil Lubricant) in the presence of G.O.C. Incharge of F.O.L. The C.B I. team detected certain discrepancies in the rates and quantity of vegetables/fruits available at the fresh point as per the inspection register. It was also observed by the C.B.I. team that 506 liters of petrol and 1000 liters of diesel was found in excess in F.O.L. Report. The statements of the petitioner, NCO IC, JCO IC and SO were recorded by C.B.I. in the month of May 2000. There were neither any allegations against the petitioner nor any other officer. An investigation by way of ‘Court of Inquiry’ was also ordered by the army authorities in which the petitioner and the others had made statements. The Court of Inquiry did not find any blame against the petitioner and it had recommended administrative action against the SO, JCO Incharge and the NCO Incharge of the fresh. Neither Core Commander nor Army Commander directed any disciplinary action against the petitioner. The petitioner was posted out of Chandimandir in routine. While he was serving at HQ 16 Corps for almost three years, he did not hear any thing raising a presumption that the matter had been closed and there was nothing to be processed further. When the matter had already been settled down and no irregularity or illegality had been found in the gap period of about three years, all of a sudden a signal No. A 1660 through a letter dated 5.9.2003 intimating that the case had been taken up by the Head Quarter Western Command with Army Head Quarter for attachment of the petitioner at Chandimandir. The validity of order dated 5.9.2003 (Annexure P-2) has been challenged by the petitioner mainly on the following grounds:
i) The impugned order of attachment has been issued in contemplation of disciplinary proceedings against the petitioner for the purpose of making him to face trial by court martial as per Army Instructions 30 of 1986. Proposed action of trial by court martial is barred by limitation in terms of Section 122 of the Army Act as the inspection had been conducted by C.B.I. on 20.11.1999 and the petitioner could be tried by court martial within three years from the date of offence. The period of three years expired on 19.11.2002, as such the action of attachment for proposed court martial proceedings is violative of Section 122 of the Anny Act.
ii) The action of attachment disciplinary proceedings is not permissible in view of para 12 of letter No. 01086/122/AG/DV- 1(P) dated 12.4.2001, which lays down that cases investigated by C.B.I. the period of limitation would commence from the date of receipt copy
