HIGH COURT OF JAMMU AND KASHMIR AT

JAMMU

SWP No. 832/2012

CMA Nos. 2394/2012 & 1274/2012

Date of Decision:13.08.2012

________________________________________________________

Lt. Colonel S.K.Singh Vs. Union of India & ors.

Coram:

Mr. Justice J.P.Singh.

Appearing Counsel:

For the Petitioner(s)

: Mr. B.S.Salathia, Sr. Advocate with

Mr. Ashish Sharma, Advocate.

For the Respondent(s) : Mr. Tashi Rabstan, CGSC.

i)

Whether approved for reporting

in Press/Media

:

Optional

ii)

Whether to be reported

in Digest/Journal

:

Yes

______________________________________________________________________________

JUDGMENT

1.

Lieutenant Colonel Sanjeev Kumar Singh of Central

Ammunition Depot, Pulgaon, attached to 17 Rajput

Regiment is facing trial before the General Court Martial

convened by Order of IC-35480N Major General Surinder

Singh, SM, VSM, General Officer Commanding, 26

Infantry Division.

2.

His plea in bar to trial was disallowed by the

General Court Martial holding that subject matter

contained in Charge Nos. 1 & 3 of the Final Charge Sheet

being same as the facts endorsed in the directions of the

General

Officer

Commanding-in-Chief,

Western

Command dated 01 April, 2009 and the Tentative

Charge, the charges were not time barred.

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3.

Questioning

the

Final

Charge

Sheet

dated

07.03.2012 and the orders passed by the General Court

Martial rejecting his plea in bar of trial, the petitioner’s

case, in a nut-shell, as projected by his learned counsel,

is that Charge Nos. 1 and 3 appearing in Charge Sheet

dated 07 March, 2012 being not part of the Tentative

Charge Sheet dated 12^th April, 2010, on which the

petitioner was heard by the Commanding Officer, and

the directions of the General Officer Commanding-in-

Chief, Western Command, his trial was un-warranted

being based on No Evidence and otherwise time barred.

4. Mr. Rabstan, learned Central Government Standing

Counsel submits that the Charges having been framed on

the strength of the evidence collected during recording of

Summary of evidence and pursuant to the directions of

the

General

Officer

Commanding-in-Chief,

Western

Command,

who

had

found

these

justified

after

scrutinizing the evidence and the pre trial advice of the

Deputy Judge Advocate General, the exercise of extra

ordinary jurisdiction may not be warranted in the facts

and circumstances of the case, additionally because the

petitioner had not availed of the alternative remedy

prescribed under Section 164 of the Army Act before

approaching the Court. Learned counsel would submit

that the Charges were otherwise also justified in view of

the provisions of Rule 22 of the Army Rules.

5.

Considered the submissions of learned counsel for

the parties and perused the material brought by them on

records. Copy of the Court Martial Proceedings and the

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pre trial advice of the Deputy

Judge

Advocate

General dated 25^th April, 2011 to the General Officer

Commanding-in-Chief, 26 Infantry Division too have

been perused.

6.

To deal with the issues demonstrated by the learned

counsel for the parties at the Bar, for and against the

petitioner’s trial on the Charges, reference needs to be

made to the Tentative Charge Sheet on which the

petitioner was heard by the Commanding Officer and the

Final Charge Sheet prepared by the Commanding Officer,

17 Rajput Regiment co-signed by the General Officer

Commanding, 26 Infantry Division. The Tentative Charge

Sheet and the Final Charge Sheet are reproduced

hereunder for reference:-

“ TENTATIVE CHARGE SHEET

The accused, IC-54365H Lieutenant Colonel Sanjeev

Kumar Singh of Central Ammunition Depot Pulgaon, attached

with 17 BIHAR, an officer holding a permanent commission in the

regular Army, is charged with:-

First Cha