V.K. Anand vs Union Of India & Ors.
2009 Latest Caselaw 3949 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                               W.P. (Civil) No. 1210 of 2003

                                           Reserved on: 11th September 2009
                                           Decision on: 25th September 2009

       V.K. ANAND                                          ..... Petitioner
                               Through: Mr. Sandeep Sethi, Senior Advocate
                               with Mr. S.M. Dalal and
                               Mr. C.M. Khanna, Advocates.

                      versus

       UNION OF INDIA & ORS.                      ..... Respondents
                     Through: Ms. Anjana Gosain with
                     Ms. Veronica Mohan, Advocates.

       CORAM:
       HON'BLE DR. JUSTICE S.MURALIDHAR

       1. Whether reporters of the local newspapers be allowed to
         see the judgment?                                                No

       2. To be referred to the Reporter or not?                          Yes

       3. Whether the judgment should be reported in the Digest? Yes

                                  JUDGMENT

25.09.2009

1. The background to the present order by this Court is set out in the order

dated 20th February 2009 passed by the Full Bench which reads as under:

"Vide order dated 21st October 2003, a Division Bench comprising B.A.Khan and B.N.Chaturvedi, JJ., made a reference to a third Judge on the following issue:

"Whether the petitioner‟s trial by GCM was time- barred or not in the facts and circumstances of the case and in the light of the Rule position?"

The issue of interpretation of Section 122 of the Army Act fell for consideration of the Division Bench. Difference of opinion had arisen on the issue whether the petitioner‟s trial by GCM was time-barred. B.A.Khan, J has held that the trial as time-

W.P.(C) No.1210 of 2003 page 1 of 19 barred whereas B.N.Chaturvedi, J has held that it was within time. The matter was accordingly referred to third Judge in accordance with Clause 26 of the Letters Patent.

Justice P.N.Nandrajog who heard the reference, felt that the reference as framed require appreciation of facts and circumstances of the case and the counsel for the respondent was handicapped in making submission if it was to be understood that the opinion of the third Judge has to be one of the two views taken by B.A.Khan, J and B.N.Chaturvedi, J. According to the learned Judge possibility of a third view emerging was surfacing during the arguments. Therefore the learned judge opined that the matter needs to be heard and decided by a Full Bench and directed the Registry to place the papers before the learned Chief Justice for constitution of a Full Bench.

We are unable to agree with the view taken by the learned Judge. When the two judges decided the writ petition under Article 226, which is in the nature of original proceedings, differed on a question of fact or law, reference to a third Judge as contemplated is required to be made for disposal of the matter as per the majority opinion of the three judges. (See: Reliance Industries Limited v. Praveenbhai Jasbhai Patel AIR 1997 SC 3892). The issue referred to the third Judge is whether the petitioner‟s trial by GCM was time-barred or not. While deciding this issue the line of reasoning which may be adopted by the third Judge may not be the same as adopted by either of the learned Judges who made the reference. But that cannot be a reason for making a reference to a Full Bench. We are afraid such a course is not permissible under the Rules. We, therefore, remit the matter back to the learned single Judge with a request to decide the reference expeditiously."

W.P.(C) No.1210 of 2003 page 2 of 19

2. The submissions of Mr. Sandeep Sethi, learned Senior counsel for the

Petitioner and Ms. Anjana Gosain, learned counsel for the Respondents have

been heard.

3. The Petitioner, a Brigadier in the Army, was in 1996-97 commanding the

9th Artillery Brigade, which was under Headquarter (HQ) 11 Corps (the

GOC of which is Respondent No.4). The HQ 11 Corps was under the HQ

Western Command headed by its GOC (Respondent No.3). An anonymous

complaint was received against the personnel of the 16 Field Regiment/45

Field Battery by Respondent No.4. This complaint was forwarded to the

Petitioner for investigation through the HQ 9th Infantry Division the GOC of

which is Respondent No.5 herein. By his report dated 5 th November 1997

the Petitioner recommended closure of the said complaint. Thereafter on

20th November 1997 the Petitioner relinquished command of the 9 th Artillery

Brigade.

4. The GOC 9th Infantry Division on 16th June 1998 ordered a General Staff

Court of Inquiry on the basis of the complaint against the personnel of the 16

Field Regiment/45 Field Battery. In those proceedings one Subedar

P.R.Sharma made certain accusations against one Colonel A.K. Thakur (who

was commanding the 16 Field Regiment) and against the Petitioner on 6th

August 1998 and 9th August 1998.

5. During the annual administrative inspection of the HQ 9th Infantry

Division by the GOC 11Corps (Respondent No.4) a discussion took place

between Respondent No.4 and the GOC of HQ 9th Infantry Division W.P.(C) No.1210 of 2003 page 3 of 19 (Respondent No.5). It was noticed that in the Court of Inquiry that had

commenced on 16th June 1998 the witnesses were not ready to divulge facts

in front of Col A.K.Thakur who was present in the Unit as CO. However

after Col A.K.Thakur relinquished command of the 16 Field Regiment, three

officials voluntarily approached the Court of Inquiry and revealed the acts of

commission and omissions pertaining to misappropriation of funds, stores

and property by Col A.K.Thakur. Consequent upon the discussions between

the GOC 11Corps (Respondent No.4) and GOC 9th Infantry Division

(Respondent No.5) the GOC 11th Corps decided that the case be submitted to

the HQ11 Corps by the GOC 9th Infantry Division for calling the said officer

(Col A.K.Thakur) as an essential witness before the Court of Inquiry by

invoking Army Rule 180. Consequently, Respondent No.5 on 4th November

1998 addressed a letter to the Headquarter 11Corps referring to the

discussion he had had with the GOC 11Corps on 31st October 1998

concerning Col A.K.Thakur. Importantly in para 7 of this detailed letter the

prima facie findings arrived at by the Staff Court of Inquiry, which were

supported by the witnesses and the documentary evidence, were set out. Para

7 (s) made a special mention to the role attributed to the Petitioner Brigadier

V.K.Anand as under:

"(s) Col.A.K.Thakur made available about 840 bottles of liquor to Sub PR Sharma and ordered him to sell them to civs. The profit earned was utilized in constr. of an additional room of a pvt. House of Brig VK Anand ex Cdr Arty Bde in Delhi and for purchase of a brass double bed from Moradabad for Brig VK Anand."

6. Following the above letter, on 17th November 1998 a confidential W.P.(C) No.1210 of 2003 page 4 of 19 communication was sent on behalf of the GOC 11 Corps (Respondent No.4)

to the HQ Western Command (Respondent No.3) setting out again in para 3

of the said letter the prima facie findings. Para 3(s) was a reproduction of

para 7(s) of the letter written on 4th November 1998 by Respondent No.5 to

Respondent No.4.

7. The proceedings of the Court of Inquiry ordered by the GOC 9 th Infantry

Division against the personnel of the 16 Filed Regiment/45 Field Battery

were finalized on 30th March 1999 by Respondent No.5 and forwarded to

Respondent No.4 who received them on 1st April 1999. The proceedings

were returned by Respondent No.4 to Respondent No.5 on 29th April 1999

for revisions. The revised proceedings were sent by Respondent No.5 to

Respondent No.4 on 8th May 1999. Respondent No.4 then endorsed the

directions for disciplinary actions against Col A.K.Thakur and others of the

16 Field Regiment. However no action was proposed against the Petitioner

on the findings of the Court of Inquiry.

8. When the findings of the Court of Inquiry were forwarded to the HQ

Western Command (Respondent No.3), it was noticed that the Court of

Inquiry had not commented upon the involvement of the Petitioner despite

clear evidence having emerged. By a communication dated 8th September

1999 from Respondent No.3, the Court of Inquiry was reassembled.

However the Court of Inquiry could not convene. On 20 th October 1999

Respondent No.3 directed the convening of an independent Court of Inquiry

to investigate the allegations against the Petitioner after complying with the

Army Rules 180 and 181 and Regulation 518. Following this on 3 rd W.P.(C) No.1210 of 2003 page 5 of 19 November 1999 a Court of Inquiry was ordered against the Petitioner.

9. A few more dates are relevant. On finalisation of the Court of Inquiry

proceedings against the Petitioner by Respondent No.4 on 20th October

2000, an administrative action of censure was recommended against the

Petitioner. The proceedings of this Court of Inquiry were forwarded to

Respondent No.3 who deferred action to await the outcome of the General

Court Martial („GCM‟) proceedings against Colonel A.K.Thakur. The GCM

proceedings against Colonel A.K.Thakur concluded on 8th August 2001. On

12th November 2001 Respondent No.3 asked Respondent No.4, to revise the

directions in relation to the Petitioner‟s Court of Inquiry. The earlier

recommended action of censure was replaced with the recommendation for

disciplinary action against the Petitioner. Respondent No.5 then gave the

Petitioner a hearing on charge on 13th February 2002. He ordered summary

of evidence against the Petitioner on 15th February 2002 and closed the

summary of evidence proceedings on 10th April 2002.

10. On 17th April 2002 the Petitioner was served with a charge sheet signed

by Respondent No.5 and co-signed by Respondent No.4. The said charge

sheet which is relevant to the present proceedings reads as under:

"The accused, IC-19149W Brigadier (Substantive) Anand, Vinod Kumar of HQ 10 Corps Arty Bde, attached to HQ 9 Inf Div, an officer holding a permanent commission in the regular Army is charged with:-

First Charge Army Act Section 69: Committing a civil offence that is to say, by abusing his position as a

W.P.(C) No.1210 of 2003 page 6 of 19 public servant, obtains for himself a valuable thing, contrary to Section 13 (1) (d) (ii) of the Prevention of Corruption Act, 1988 In that he, at Meerut Cantt, between August 1997 and November 1997, which came to the knowledge of the authority competent to initiate action on 08 May 1999, while Commander 9 Arty Bde, a public servant, obtained for himself a brass double bed valued at Rs.14,500/-

(Rupees fourteen thousand and five hundred only) from IC-34180A Col Arvind Kumar Thakur, the then Commanding Officer 16 Field Regiment through JC-

190661N Sub Prithvi Raj Sharma of 16 Field Regiment.

Second Charge Army Act Section 63: An act prejudicial to good order and military discipline In that he, at Meerut Cantt, between July 1997 and October 1997, which came to the knowledge of the authority competent to initiate action on 08 May 1999, while Commander 9 Arty Bde, improperly misused Army personnel of 16 Field Regiment and 52 Engineer Regiment for construction of a room at his residence at Vijay Nagar, New Delhi, contrary to para 347 of the Regulations for the Army (Revised Edition) 1987, which prohibits employment of Government servant for private purposes." (emphasis supplied)

11. On 20th April 2002, a GCM was ordered against the Petitioner by

Respondent No.4. The GCM assembled on 26th April 2002. The Petitioner

raised a "plea in bar" with regard to limitation on 28th May 2002. On 10th

August 2002 the GCM accepted the plea of limitation and submitted its W.P.(C) No.1210 of 2003 page 7 of 19 recommendations to Respondent No.4 for confirmation. However by an

order dated 31st October 2002 Respondent No.4 ordered that further

evidence should be recorded. Consequently, on 18 th November 2002 the

GCM reassembled and took additional evidence. For a second time the

GCM allowed the plea in bar entered by the Petitioner and sent its findings

to Respondent No.4 for confirmation. On 1st February 2003 Respondent

No.4 passed a non-confirmation order and asked the GCM to assemble on

17th February 2003. This order dated 1st February 2003 has been challenged

in the present writ petition.

12. By an order dated 17th February 2003 this Court stayed the GCM

proceedings. By separate orders dated 21st October 2003 the two learned

Judges of this Court constituting the Division Bench which heard the case

differed in their opinion whether the Petitioner‟s trial by GCM was time

barred. While B.A.Khan J held the trial to be time barred, B.N.Chaturvedi J.

held that it was not. Consequently, a reference was made by the Division

Bench to a third Judge was made on the following question:

"Whether Petitioner‟s trial by GCM was time barred or not in the facts and circumstances of the case, and in light of the Rule position?"

13. In order to answer the question posed a reference may be first made to

Section 122 of the Army Act which reads as under:

"Section 122. Period of limitation for trial.--(1) Except as provided by sub-section (2), no trial by court-martial of any person subject to this Act for any offence shall be committed after the explanation of a period of three years and such period shall

W.P.(C) No.1210 of 2003 page 8 of 19 commence.-

(a) on the date of the offence; or

(b) where the commission of the offence was not known to the person aggrieved by the offence or to the authority competent to initiate action, the first day on which such offence comes to the knowledge of such person or authority, whichever is earlier; or

(c) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the authority competent to initiate action whichever is earlier.

(2) The provisions of sub-section (1) s hall not apply to a trial for an offence of desertion or fraudulent enrolment or for any of the offense mentioned in section 37.

(3) In the computation of the period of time mentioned in sub-section (1), any time spent by such person as a prisoner of war, or in enemy territory, or in evading arrest after the commission of the offence, shall be excluded.

(4) No trial for an offence of desertion other than desertion of active service or of fraudulent enrolment shall be commenced if the person in question, not being an officer, has subsequently to the commission of the offence, served continuously in an exemplary manner for not less than three years with any portion of the regular Army."

14. For Section 122 (1) (b) to apply, the knowledge of the commission of

the offence as well as the identity of offender should have been known to the

competent authority. If there was knowledge only of the offence and the

identity of the offender limitation would begin to run from "the first date on W.P.(C) No.1210 of 2003 page 9 of 19 which the identity of the offender is known." The further question that has

been raised by the Respondent is whether the word "knowledge" connotes

"actionable knowledge" or in other words knowledge of which cognizance

could be taken by the competent authority. A reference is made to the

guidelines issued by the AG‟s Branch in the Army HQ on 12 th April 2001 in

terms of which the knowledge for the purposes of Section 122 of the act

must amount to actionable information i.e. it should relate to the offence and

the identity of the offender with reasonable precision and certainty to

warrant action."

15. It is submitted by the Respondents that such "actionable knowledge" can

emerge only upon the conclusion of a Court of Inquiry against the person

accused of the offence and not on any earlier date. This is because,

according to the Respondents, the holding of a Court of Inquiry against the

offender has to mandatorily precede the convening of a GCM, and without

such Court of Inquiry the trial by GCM would stand vitiated. Therefore,

according to the Respondents the time from which the limitation for

commencing of trial by GCM would begin to run would be the date of

conclusion of the Court of Inquiry.

16. The date of commencement of the trial of the Petitioner by the GCM was

26th April 2002. The Petitioner‟s case is that this was beyond the period of 3

years after the date on which the commission of the offence was known to

the authority competent to initiate action. However, the stand taken by the

Respondents as to the date on which the authority competent to initiate

action knew of the commission of the offence has not been consistent. In the W.P.(C) No.1210 of 2003 page 10 of 19 charge sheet served on the Petitioner, which was signed by Respondent No.5

on 17th April 2002 and co-signed by Respondent No.4 on 18th April 2002, it

is stated that the knowledge of the offence constituting both the first and the

second charges "came to the knowledge of the authority competent to

initiate action on 8th May 1999." In the counter affidavit in the present

petition it is contended by the Respondents that the knowledge envisaged by

Section 122 of the Act is "actionable information" which should relate to the

offence as well as the identity of the offender "with reasonable precision and

certainty to warrant action." It is accordingly contended that the "General

Officer Commanding 11 Corps acquired knowledge of the offence and the

offender on 20th October 2000, the date he directed administrative action

against the Petitioner." This according to the Respondents in the counter

affidavit would be the date when the period of limitation would begin to run.

17. It further appears that the Deputy Judge Advocate General (DJAG) of

the HQ 11 Corps whose advise was sought on the issue of limitation opined

as under:

"Brig VK Anand was the beneficiary by receiving the brass double bed from Col AK Thakur through Sub PR Sharma during Jul 97-Jun 98 which matter came to the knowledge of GOC 9 Inf Div while finalizing the court of inquiry on 08 May 99. Thus for the purpose of limitation the date of authority coming to know the offence be taken as 08 May 99 and not the date when the second Court of Inquiry was finalised."

18. During the GCM, the minutes sheet of the HQ 9th Infantry Division dated

30th and 31st March 1999 were produced. This showed that Major General W.P.(C) No.1210 of 2003 page 11 of 19 AJB Jaini the then GOC 9th Infantry Divisions was the proceedings of the

Court of Inquiry against the personnel of the 16 Field Regiment/45 Field

Battery on 30th March 1999. He amended the draft directions and signed

them on 31st March 1999. In the GCM, Major General AJB Jaini stated: "I

acquired the knowledge with regard to the allegations made against the

accused when the proceedings of C&I were put up for my directions on 30th

March 1999." However, he added: "I could not have taken cognizance in

respect of the accused unless he was called as a witness and statutory

provisions applied in his respect. Moreover nothing stated in respect of the

accused by any witness before the Court of Inquiry was immaterial to me as

he was neither serving under my command nor I have any jurisdiction over

him."

19. The question which then arises is whether the stand of Respondent No.5,

the GOC 9th Infantry Division, was legally tenable. The letter addressed by

him to the GOC 11 Corps (Respondent No.4) on 4th November 1998 clearly

shows that both Respondent No.4 and Respondent No.5 knew not only about

the commission of the offence on account of the statement of P.R.Sharma

during the Court of Inquiry against the personnel of the 45 Field Battery, but

also the identity of the two persons namely Col A.K.Thakur and the

Petitioner. The mere fact that on 8th May 1999 Respondent No.5 finalised

the revised directions and sent them to Respondent No.4 for confirmation of

the directions for commencement of disciplinary action against Col A.K.

Thakur cannot somehow postpone the date of acquisition of knowledge of

the offence and the offender by Respondent No.4 or Respondent No.5 from

30th March 1999 to 8th May 1999.

W.P.(C) No.1210 of 2003 page 12 of 19

20. In Union of India v. Major P.B. Pandurangi Mil LJ 2004 MP 179 (DB)

Section 122 Army Act was interpreted by the Supreme Court as laying

"emphasis on date of knowledge with regard to the offence and identity of

offender." In the said case although the name of the offender was not

mentioned, the designation of the officer was mentioned in the investigation

report. That was held to be sufficient for attributing knowledge. In the

present case however as is seen from the letters dated 4 th November 1998

and 17th November 1998 both the offence as well as the identity of the

offenders were known to both Respondents 4 and 5. What is significant is

that Respondent No.4 and Respondent No.5 met and discussed the issue on

31st October 1998. Then on 4th November 1998 Respondent No.5 sent a

confidential communication to Respondent No.4. Based on this, on 17th

November 1998 a further letter was sent by the GOC 11 Corps (Respondent

No.4) to Respondent No.3. Both officers therefore had knowledge of both

the commission of the offence and the offender when these letters were

written.

21. In any event when the Court of Inquiry proceedings were finalised and

signed by Respondent No.5 on 30th March 1999, he obviously knew of the

offence and the offender. In Union of India v. Hav/Pham S.P.Shukla Mil

LJ 2008 UP 111 it was held by the Allahabad High Court that the

"limitation of three years as provided in Section 122 of the Army Act will

run from the date when the competent authority takes a decision to initiate

the disciplinary proceedings against the offender." This Court finds that the

said conclusion is not preceded by an analysis of the said provision. It also

makes no reference to the decision of the Supreme Court in Radha Krishan W.P.(C) No.1210 of 2003 page 13 of 19 v. Union of India AIR 1996 SC 3091 where after terming Section 122 of the

Act as "a complete code in itself," it was emphasised that "the terms of the

above Section are absolute and no provision has been made under the Act

for extension of time" like Section 473 CrPC, it was "obvious that any trial

commenced after the period of limitation would be patently illegal. Such a

provision or limitation prescribed under the Act cannot be overridden or

circumvented by an administrative act, done in exercise or powers conferred

under a Rule." In other words, merely because on the administrative side

Respondents 4 and 5 between themselves took time to finalise the

recommendations for commencement of disciplinary action pursuant to the

Court of Inquiry, it could not give them the benefit of extended period of

limitation. The „actionable‟ knowledge must be held in the facts and

circumstances of the case to have been acquired by both Respondents 4 and

5 on 4th November 1998 itself and in any event on 30th March 1999 when the

proceedings were finalised.

22. There is no question of any "cognizance" having to be taken of the

commission of any offence. The stand of Major General AJB Jaini to this

effect during his deposition was plainly misconceived. Section 122 does not

talk of cognizance but knowledge of the commission of offence by the

competent authority. Even if one were to go by the repeated submissions

made that at the relevant point in time it was only GOC 11 Corps

(Respondent No.4) who was competent to initiate action against the

Petitioner, it does not in any manner help the Respondents. Respondent No.4

had knowledge of the commission of offence as well as the identity of the

offender on 17th November 1998 itself when a letter was addressed by him to W.P.(C) No.1210 of 2003 page 14 of 19 Respondent No.3 mentioning the information concerning the alleged offence

involving the Petitioner. The argument as to whether it was Respondent

No.5 or Respondent No.4 that was the authority competent to take action is

really to no avail. If it was Respondent No.4 and not Respondent No.5 who

was the competent authority as was sought to be argued by the respondents,

both of them had knowledge of the offence and the offender on 4 th and 14th

November 1998 and later on 30th March 1999.

23. The distinctions sought to be drawn between knowledge and "actionable

knowledge" does not help extend limitation. Section 122 does not talk of

"actionable knowledge" but "knowledge". Even if the holding of the Court

of Inquiry prior to convening a GCM is considered to be mandatory, the

steps taken to translate the knowledge into „actionable knowledge‟ are

expected to be taken within the period of limitation that has already begun to

run from 30th March 1999. Consequently it is not necessary to examine

whether it was mandatory for the Court of Inquiry to have first concluded its

proceedings before the competent authority could be said to have had

actionable knowledge in regard to the offence and the identity of the

offender. It was argued that the holding of the Court of Inquiry was a step

protective of the Petitioner and that the Respondents were being extra

cautious before arraigning the Petitioner before the GCM. While that may be

true, that step cannot suspend the limitation for the commencement of the

trial by GCM which begins to run from the date of the "knowledge" of the

offence first by the competent authority.

24. In the considered view of this Court Section 122 which is a penal W.P.(C) No.1210 of 2003 page 15 of 19 provision admits of a strict construction. The said penal provision prescribes

a period of limitation for commencement of trial by GCM. If one were to

draw an analogy with the general criminal law, for computing the period of

limitation for the purposes of Section 468 CrPC, it is not the date of the

charge sheet which is reckoned. Section 122 is a virtual reproduction of

Section 469 CrPC. When an FIR is registered and both the commission of

the offence and the name of the offender are known, that would be reckoned

as a date on which the limitation is said to commence since it was certainly

within the knowledge of the police officer in question. Perhaps it is only

after investigation that the police is confident that the person named in the

FIR is the person likely to have committed the offence. There is a whole

process that has to be undertaken before a charge sheet is finally signed by

the Investigating Officer and filed in Court. These processes might take

some time but cannot suspend the period of limitation which has already

begun to run in terms of Section 468 CrPC. As pointed out by the Supreme

Court in Radha Krishan, inasmuch as there is no provision in the Army Act

corresponding to Section 473 CrPC, there is no possibility of extension of

the period of limitation. In V.N.Singh (Lt.Col) v.Union of India 2002 (64)

DRJ 379 it was observed: "Law of limitation in the context of court martial

proceedings must be interpreted strictly. The criminal justice system

necessarily interferes or encroaches upon the fundamental rights guaranteed

under Part III of the Constitution of India, and thus, in case of doubt or

dispute, the interpretation must lean in favour of the accused."

25. Even if one were to accept the submissions of the Respondents that in

order to be sure of the identity of the offender a Court of Inquiry prior to the W.P.(C) No.1210 of 2003 page 16 of 19 commencement of the GCM had to be concluded, that is really a matter of

internal administrative convenience of the Respondents. What in effect it

means is that the Court of Inquiry convened for confirming the commission

of the offence and identity of the offender has to conclude its proceedings

well within the three years limitation period which already has begun to run

from the date of acquisition of the knowledge of the offence and the identity

of the offender. The Court of Inquiry is merely a further confirmation. It

does not postpone the time from which the period of limitation for the

purposes of Section 122 has already begun to run. The Army is entitled to

hold as many enquiries it wishes to for it to have "actionable knowledge".

However the army will have to get its act together and conclude all such

enquiries within the three year period from the date of knowledge and a

delay in that process concluding will not have the effect of postponing the

date of commencement of limitation.

26. It was submitted that the question of "actionable knowledge" was a

mixed question of law and fact and therefore in exercise of its powers under

Article 226 of the Constitution should not interfere with the determination of

that question by the Respondents. In Col DD Pawar v. Commander HQ

Andhra Sub-Area 2001(5) ALD 56 a question that arose was whether

knowledge of the offence, without knowledge of the identity of the offender,

was sufficient for the period of limitation to commence. In that case it was

held that in such a situation Section 122 (1) (c) would be attracted. Further

on the question of the factual determination of the identity of the offender, it

was left to the GCM to determine that question on the basis of "proper

evidence that may be let in the proceedings by the proper authorities." In the W.P.(C) No.1210 of 2003 page 17 of 19 present case, there was never a doubt about the identity of the offender.

Nevertheless the issue was examined twice over by the GCM after evidence

was led before it. It twice came to the conclusion on facts that the trial was

time barred and that the plea in bar of the petitioner should be upheld. As to

the finality to be attached to the findings of the GCM, it was held by the

Supreme Court in Delhi Special Police Establishment v. Lt.Col.

S.K.Loraiya 1973 Crl LJ 33 (SC) as under:

"10. Again, sub-section (3) of S. 122 of the Army Act provides that while computing the period of three years specified in sub-section (1), any time spent by the accused as a prisoner of war or in enemy territory, or in evading arrest after the commission of the offence, shall be excluded. On a conjoint reading of sub-ss. (1) and (3) of S. 122, it is evident that the court-martial and not the ordinary criminal court has got jurisdiction to decide the issue of limitation. There is nothing on record before us to indicate that the respondent had not been evading after commission of the offence. As the court-martial has initial jurisdiction to enter upon the enquiry in the case, it alone is competent to decide whether it retains jurisdiction to try the respondent in spite of sub-s. (l) of S. 122. The issue of limitation is a part of the trial before it. If the court-martial finds that the respondent cannot be tried on account of the expiry of three years from the date of the commission of the offence, he cannot go scot free. Section 127 of the Army Act provides that when a person is convicted or acquitted by a court-martial, he may, with the previous sanction of the Central Government, be tried again by an ordinary criminal court for the same offence or on the same facts. So it would be open to the Central Government to proceed against the respondent after the court-martial has recorded a finding that it cannot try him on account of the expiry of three years from the date of the commission of the offence."

27. For all of the aforementioned reasons, this Court concurs with the

conclusion arrived at by B.A. Khan J. that the period of limitation for the

commencement of trial by GCM in terms of Section 122 commenced on 30th

March 1999 is concurred with. It is held that the GCM trial against the

Petitioner commenced beyond the prescribed three years statutory period

under Section 122 of the Act. The GCM trial is, therefore, time-barred and

without jurisdiction.

W.P.(C) No.1210 of 2003 page 18 of 19

28. Consequently, the writ petition is allowed. The impugned orders dated

1st February 2003 of non-confirmation of the findings of the GCM accepting

the plea in bar of the Petitioner and the order dated 4 th February 2003

reconvening the GCM are hereby quashed.

S. MURALIDHAR, J.

SEPTEMBER 25, 2009
dn




W.P.(C) No.1210 of 2003                                       page 19 of 19