S L SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) The issue that was argued and arises for my consideration in this writ petition is whether the proceedings of the General Court Martial instituted against the petitioner are barred by limitation under the provisions of section 122 of the Army Act. The petitioner contends that the action of initiation of his Court Martial is barred being beyond the period of limitation.

(2.) While the petitioner was serving as a Garrison Engineer at Danapur a complaint was received regarding certain irregularities on the basis of which an enquiry was conducted under order dated 12.8.1993. It was stated in the said order that a Court of Enquiry would assemble to investigate the irregularities, if any, committed by the Garrison Engineer , Danapur in .execution of works. Subsequent thereto the Staff Court of Enquiry was ordered and the proceedings of the said Court of Enquiry commenced in April, 1995. The said enquiry was completed in October, 1995. On completion of the said Court of Enquiry the records thereof alongwith summary of evidence were forwarded to Deputy JAG, Headquarters Central Command for pre-trial advice. The records of the enquiry were placed before the Competent Authority on 16.4.1996. On 11.1.1999 action was taken by the Competent Authority and order for convening a General Court Martial was passed. The'trial of the General Court Martial was to start on 2.2.1999. In the light of the aforesaid background facts it is stated in the petition that since on 12.8.1993 a Court of Enquiry was ordered to be assembled to investigate the irregularity, if any, committed by the Garrison Engineer in'execution of the works the limitation as prescribed under section 122 would start running from the aforesaid date.

(3.) Counsel appearing for the petitioner during the course of his submissions submitted that if the period of limitation is computed from the aforesaid date the trial is barred by limitation. He further submitted that the report of the aforesaid enquiry was available at any rate in January, 1994 and even thereafter no action was taken by the respondents till January, 1995 when an order was passed for holding a Staff Court of Enquiry. The report of the said enquiry was also available sometime in October, 1995 and therefore, it was known to the respondent by the aforesaid time both regarding the nature of the offence committed and also about the identity and name of the person who had committed the alleged offence and if the limitation is computed even from the said date the trial is barred under the provisions of section 122 of the Army Act. He also submitted that the commanding officer is the competent person who is authorised to initiate action in the present case and, therefore, crucial date from which the limitation would start running is the date of the knowledge of the commanding officer. In support of his contention the learned counsel appearing for the petitioner relied upon the decision of the Supreme Court in Major Radha Krishan Vs. Union of India and others, reported in JT 1996 (3) SC 650 and a Division Bench decision of this court in Lt.Col. (TS) H.C.Dhingra Vs. Union of India and others, reported in 1988(2) Delhi Lawyer page 109.