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Thursday, February 16, 2012

Supreme Court interprets Section 122 of the Army Act


In a yet another judgement on the subject, the Hon’ble Supreme Court has quashed the directions for assembly of a General Court Martial (GCM) against an officer and has also set aside the judgement of the Lucknow Bench of the Armed Forces Tribunal which had dismissed the said officer’s petition.

The officer was accused of irregularities in procurement of stores for a Central Ordnance Depot. The Commanding Officer hearing the charge had initially dismissed the charges under Rule 22 of the Army Rules as not having been proved, however the order was not accepted by the competent authority which directed recording of additional summary of evidence. Again it was found by the Commanding Officer that none of the charges stood. Yet again, setting aside the findings of the CO, the competent authority directed that the officer be tried by a GCM. The offence came to the knowledge of the authority competent to convene the Court Martial in May 2007 while the final orders convening the Court Martial were passed by the said authority in August 2010.

The Court Martial was convened but challenged on limitation under Section 122 by the accused officer. The plea was accepted by the Court Martial. However, the convening authority once again set aside the findings and directed the Court Martial to proceed with the trial. The AFT also ultimately upheld the decision to convene the Court Martial based on earlier judgements of the Supreme Court in the cases of VN Singh and JS Sekhon.

The SC has however distinguished the said judgements and has held in a detailed judgement rendered yesterday (15 Feb 2012) that in those cases the dispute was as to who was the competent authority to order the Court Martial, which was not the controversy in the case at hand and hence the GCM was clearly barred by limitation.

The Court in its judgement has also observed the light punishment handed to other accused in the same case including a non-recordable censure awarded to a Major General. 

15 comments:

ninihala said...

This is a typical case of senior offrs conniving with accused pers to defeat the purpose of justice. This is not the only case, they are a galore in our Army. Case of violence by one offr upon other in CQA in 2009 is one more such example where to shield the guilty offr, proceedings were delayed for 3 years and now the tormentor and the victim are on same pedestal; both are being subjected to adm action. It would be funny if the outcome was not so tragic.

BTW, can any senior offr direct the CO to refer the case for GCM once CO has dismissed the charge after hearing under AR22? This itself would be irregular. Maj Navdeep to please throw some light on this.

Moreover, should the Army now not initiate discp action against offrs, incl those involved in monitoring prog of such cases, who caused this delay leading to main accused getting away scot free. Such lethargy, if it is that only, itself amounts to dereliction of duty.

Lastly, this accused offr should now be dismissed from service by withdrawing presidential pleasure.

Anonymous said...

But what if he wasnt guilty? Wasnt this the finding of the CO?

macpub1972 said...

Comments would be strictly moderated and those with personal or generalised slants and harsh language would not be published.

What is that? Censorship?

Abe said...

This has been a problem in the Army high and mighty. The commanding officer is best person to initiate a charge. If he has dismissed the charge what is the problem of the "(IN)competent authority". He has proved himself incompetent. Obvoiuosly the competent authority has made it a personal issue and trying to throw his weight around. Poor show. This competent authority must be tried by a GCM.

Navdeep / Maj Navdeep Singh said...
This comment has been removed by the author.
Navdeep / Maj Navdeep Singh said...

@macpub1972

I am responsible for this blog and what is placed on it, and if not publishing contemptuous and irresponsible comments amounts to 'censorship' in your opinion, then yes, this is censorship.

Also, on your comment that has been 'censored' - you think the SC is not aware of the amended provisions of Section 122? We are living in a democracy and not a banana republic and please be assured that the Judges of the SC can be trusted with at least reading the Section before rendering a judgement.

You yourself are a blogger. If you are not happy with the 'censorship' rules on this blog, you are more than welcome to place your comments on the judgement on your own blog.

Yes, I did not like the tone and tenor of your sarcastic comment.

Thanks

corona8 said...

@ninihala: "This is a typical case of senior offrs..."

I don't think any of the contents in the main blog post make a case for such a sweeping generalisation.

If there is any indication of any connivance, I am sure there are adequate provisions in the Army/Navy/Air Force acts to address such omississions or commissions even if the original charge stays unproven.

ninihala said...

@Corona: "..adequate provisions in the Army/Navy/Air Force acts to address such omississions or commissions.."

This exactly is the problem with justice delivery sys in the AF. All provisions of law and rules are treated as mere enabling provns. These are invoked by competent authority, who invariably happen to be sr offrs, as per their own whims and fancies. Provns of law are meant to get triggered automatically, whenever there is any breach of it. Alas, that does not happen. When pressed for action, they read such meanings into provns of law that would suprise even law makers. Witness provn in RA for offrs not being beneficiaries of regtl funds. But sr offrs have twisted it to provide for expenditure on Flag Staff Houses by cunning use of the instrument of an AO.
Popular feelings on travesty of justice have been captured by a Hindi poet Sh Hari Om Panwar. Visit the link
http://mmusicz.com/video/QbLEABYq_0o/Dr_Hariom_Pawar_Mai_Bharat_Ka_Samvidhan_Hu.html

Please listen till the end to get the flavour. We all will be enlightened.

Anonymous said...

you said:

This is a typical case of senior offrs conniving with accused pers to defeat the purpose of justice.

No, the case is senior officer thinking that the law is personal property that is bequeathed with rank, the higher the rank, the bigger is law of a matter of personal choice.

The SC has ruled that only the CO has got to make up his mind if a case exists or not. In doing so, the CO can only be influenced by evidences in front of him and not directions from anyone higher ups.

LT.COL.HS DHAM( MAHARS ) said...

BAA BAA BLACK SHEEP HAVE YOU ANY WOOL. THE GENERAL HAS USED THE TRADITIONAL TOOL ( THE ART OF DODGING )BUT MY DEAR FRIENDS KHUDA KE GHAR DER HAI ANDHER NAHIN. BILLI KAB TAK KHAIR MANAYEGI. WAIT AND WATCH. GURBANI SAYS " YOU WILL REAP WHAT YOU SHALL SOW ' IN THIS JANAM ONLY

swamy said...

The most worrying case is not about the verdict of honourable supreme court but of the comments I went through your blog. All these days I've been reading the blog and growing bigger and bigger, but the comments of few made me sadder that sarcasm has really peeped in the blogs. I request the readers to kindly refrain themselves from paining others.

kanchan said...

There are few spam mails doing the rounds regarding grant of highest grade pay to civil services officers after putting on 18 - 20 yrs of service, whereas the armed forces personnel have been left out.Can you please throw some light on the issue.

Thank you.

preeti said...

thousands of wards of army personnel are wating for this college. this army institute is the ray of hope for fulfilling their dreams. can't civilans let this college for army candidates. only 100 seats for army candidates in a population of 121 crore. indian army that is dedicating itself for this nation can't we afford 100 seats for them.

Rahul joon said...

indian medical association and some of the students took only some time to file a case against ACMS but they have not thought how much time it has taken to open this institute. apni roti bnane me to muskil hoti hai lakin jab roti bani bnaayi mil rahi ho to use chinne me kya jata hai.

Anonymous said...

I have seen a couple of cases wherein the single man inquiry, CoI, Addl CoI, SoE, Addl SoE have found nothing against an accused. Still the Competent Authority has gone ahead & convened a GCM.

Further, when even the GCM has found nothing against the accused the conforming authority has set aside the verdit of the court.

Were the decisions taken in the above two cases not autocratic /dictatorial in nature ???