Satya Pal Sud, Ex-Brigadier vs Union Of India (Uoi), Through The ...
2003 Latest Caselaw 288 Del

JUDGMENT

Vijender Jain, J.

1. This appeal has been filed aggrieved by the order dated 5th July, 1999 passed by the learned Single Judge. Mr. E.X. Joseph, learned senior counsel for the appellant has contended that in view of the extreme penalty imposed by the General Court Martial of cashiering and sentence for rigorous imprisonment for one year, the finding of General Court Martial as confirmed by the confirming authority is liable for strict judicial review.

2. At the outset it was contended that there was non-compliance of Rule 97 (2) by the General Court Martial as notice of seven days, was not given to the appellant to engage a counsel, although the prosecution had engaged a lawyer. It was contended before us that the appellant was under arrest from the day on which the trial started and no opportunity, much less an opportunity of seven days notice, was given to the appellant. It was also contended that non-compliance of Rule 97 of the Army Rules has resulted in serious prejudice which was caused to the defense of the appellant and that aspect of the matter was not taken note of in the impugned judgment. It was also contended before us that other officers who were working under the appellant had not been proceeded against and only the appellant was singled out for that purpose. It was further contended that the appellant was a meritorious officer. He became a Brigadier on his merit and he was re-employed for two years and an officer who was a meritorious officer and on selection became a Brigadier and no adverse finding was ever recorded against him, overnight he could not have become a corrupt officer. In support of his arguments, Mr. Joseph relied upon a judgment of Supreme Court in the case M.S. Bindra Vs. Union of India & Ors. . Learned counsel for the appellant had vehemently contended that there was no means rea, i.e. intent to defraud as was the charge on which the appellant was tried by General Court Martial. He had contended that there was no evidence on record to show that the appellant was benefited by approving the higher rates as charged by the respondent. It was also contended before us by counsel for the appellant that there was no material or evidence on record that on account of any action of the appellant the State was put to a loss. In support of his contention, Mr. Joseph relied upon A.L.N. Narayan Chettyar and Anr. Vs. Official Assignee, High Court Rangoon & Anr. and Anil Kumar Bose Vs. State of Bihar .

3. On the other hand, Ms. Jyoti Singh, learned counsel for the respondent has contended that it was the appellant who himself had refused to take the help of a defense counsel. She has contended that the appellant wanted to have a counsel at the expense of the State. However, as there was provision for the army authorities to provide the help of a counsel only in cases where the penalty is death or the person so charged is incapable to defend himself, no counsel at State expense could be provided for the defense of the charged officer in view of defense Services Regulation 479. It was also contended by Ms. Singh that officers who were junior to the appellant were also charge-sheeted and criminal proceedings were held against them. It was contended that there was over-whelming evidence on record from which it could be inferred that the appellant was involved with the other junior officers in approving higher rates.

4. We have heard the learned counsel for the parties and perused the records in detail. The arguments advanced by the learned counsel for the appellant that opportunity in terms of Rule 97 (2) was not given, may not hold good in the facts and circumstances of this case. At page 12 of the record of the General Court Martial proceedings the Judge Advocate inquired from the appellant that as the prosecution was being conducted by a counsel whether the appellant would like to have an adjournment to enable him to engage a defense counsel to defend him so that no prejudice is caused to him. To this, there was a specific reply by the appellant that he would not like to engage a defense counsel and that the trial may continue. Mr. Joseph tried to explain that there was no other choice before the appellant as he was under open arrest and even if he would have taken the adjournment for engaging a counsel that would not have served any purpose in view of his continuance under open arrest. Notably when an opportunity was afforded to the appellant to engage a defense counsel, he did not plead that he was unable to do so on account of being under open arrest. He rather clearly stated that he did not wish to engage a defense counsel and voluntarily allowed trial to continue. In the circumstances, no grievance can be made out later by the appellant that he was not given the opportunity in terms of Rule 97 sub-rule (2) of the Army Rules.

5. There is a controversy with regard to the other limb of arguments advanced before us by Mr. Joseph that the junior officers, who were Officer Commandants and others of the Ordinance Maintenance Corps were not proceeded against. The fact that the Officer Commandants were not proceeded against has been denied and refuted by the counsel for the respondent by making a specific assertion that General Court Martial proceedings were initiated. Be that as it may, if a person is guilty he cannot take shelter under the argument that other co-accused or accomplice have not been prosecuted or tried and, therefore, he could also not be tried for the offence.

6. Lastly reverting to the argument of the counsel for the appellant that it was a case of no evidence and in the alternative that the evidence which was available on record did not fulfill the requirement of Section 52 sub-section (f) of the Army Act as there was no means rea, from the perusal of the evidence, we find that this argument is also not available to the appellant. At page 53 of the record of the proceedings of the General Court Martial, Lt. Col. Rajinder Kumar (PW 3) has specifically stated that Jack Screw lifting 5 Ton was purchased from Hissar at the rate of Rs.425/- by 88 Mechanised Brigade, one of the units under 2 Corps located at Hissar. While similar Jack Screw 4 Ton has been purchased at a higher rate of Rs.680/- by the Ordnance viz 88 Mechanised Brigade ordnance unit. The ordnance unit has better knowledge about the prevalent market rate compared to a common user unit. It was specifically mentioned that normally the local purchase is made from the local market but in this case the Mechanical Jack Screw approved by the accused was purchased at Jullunder while the unit was at Hissar. With regard to the purchase of rectifier negative and rectifier positive it was also stated that the last paid rate for both the items is Rs.25/- each, whereas the price quoted for rectifier negative was Rs.32.50 and for rectifier positive was Rs.33/-. Similarly on 9th November, 1982 Net Camouflage 24' X 24' was purchased at the rate of Rs.122/- and subsequently Net Camouflage 25' X 30' has been sanctioned at the rate of Rs.475/- from M/s Talwar Brothers, another favored contractor of the appellant.

7. We may quote from evidence which was tendered by prosecution witness (testimony of Ashok Kumar Gupta) that after arrival of the appellant some time during August, 1982, he had come to know that a group of seven firms had been formed and business was being monopolised by them. He also stated that tender inquiry Nos. 17, 20, 24 and 25 were exclusively floated to these seven dealers only. It was also stated in the evidence that he saw Deepak Talwar supplying double cone ring to the OMC and the rates were quoted Rs.65/- per ring though the market price of the ring was about Rs.1.50.

8. From such an overwhelming evidence a reasonable person can well infer that the inflated prices which were approved by the appellant was for ulterior motives. It was contended before us by Mr. Joseph that the role of the appellant was only to approve the rates and the matter was only to come to the appellant as a Deputy Director Ordnance. Once firm has been registered, tender has been issued, offer has been received, same is opened by a Board and an officer of the rank of Lt. Colonel had scrutinised, the appellant had no role to play. We cannot accept this argument of the learned counsel for the appellant. In view of the over-whelming evidence pointing out towards him, he was the person who was to ensure at the higher level that these kinds of inflated prices were not to be sanctioned.

9. We find no merit in this appeal. Same is dismissed with no order as to costs.