J S BRAR Vs. UNION OF INDIA

JUDGEMENT

(1.) FOR proper understanding of the case it is necessary to give a brief resume of the facts as set out in the pleadings of the parties.

(2.) THE petitioner is said to have been posted as Major in Central Ordnance Depot, Agra and he was assigned the duties of Security Officer. THEre were other officers also besides the petitioner who were assigned their respective duties. One Captain Tony George was the Officer Incharge of salvage store and the branch of Director General of Ordnance store. He is said to have made a statement that a theft was committed in the department of salvage on 27-9-1983 and 9-2-1984. On 15-2 1984 a FIR was also lodged against the civilian persons said to have been involved in the commission of theft. Besides the petitioner a number of officers were implicated whose names are given in para 7 of the writ petition. THE matter was taken up against the petitioner and three officers only and all others were left out. Mr. Tony George, who is said to have accepted Rs. 20,000/- and a cooler for supplying additional material to the Kabadis was not impleaded as an accused. He was however, reprimanded. A tentative charge sheet was given after the Staff Court enquiry In the said charge sheet the petitioner was chargesheeted for criminal breach of trust and for negligence of duty. Rules 22 and 23 of the Army Rules consequently were attracted in the case which would mean that the charge against the petitioner was to be heard in his presence and the petitioner was at liberty to cross examine any witness against him and he could also call any witness in defence and make his own statement in defence. THE Commanding Officer at this stage is empowered to dismiss the charge it there is no evidence to substantiate the same. If there are grounds for proceeding further, the Commanding Officer has to refer the case to the superior Military authority or could adjourn the case for recording evidence in writing. Rule 23 prescribes the procedure for taking down the summary evidence. THE Commanding Officer, para Training Centre, Agra was asked to hold enquiry, who collected evidence. At this stage he was bound to follow the mandates of Rules 22 to 24 of the Army Rules. After collection of evidence which consisted of 300 pages the Commanding Officer seems to have taken decision on 17-5-1984. He declared on 18-5-1984 that the case was a fit one for being tried by the General Court Martial. THE petitioner alleges that the Commanding Officer while doing so has committed infraction of rules 22 to 25 of the Army Rules.

(3.) IN pursuance of the directions and observations made by the revisional authority the general court marital was again constituted and proceedings against the petitioner and other accused were started afresh. The proceedings commenced on 25th June, 1985 and concluded by the pronouncement of the judgment on 8-7-1985. After the remand additional evidence and the statements of Brig. S. C. Chatrath, Capt. Raghunandan, Sri Bhojraj and some others were recorded. The petitioner was found guilty of both the charges.