Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8968 OF 2019
IC-56663X COL ANIL KUMAR
GUPTA .... APPELLANT
VERSUS
UNION OF INDIA & ORS. .… RESPONDENTS
J U D G M E N T
BELA M. TRIVEDI, J.
1. The present appeal filed by the appellant under Section
30(1) of the Armed Forces Tribunal Act, 2007 is directed
against the impugned judgment and order dated
30.09.2019 passed by the Court No. 2 Armed Forces
Tribunal, Principal Bench, New Delhi (hereinafter referred
to as “the Tribunal”) in O.A. No. 32 of 2019 with M.A. No.
645 of 2019, whereby the Tribunal has dismissed the said
O.A. filed by the appellant. The O.A. No. 32 of 2019 was
preferred by the appellant before the Tribunal challenging
the charge-sheet dated 19.11.2018 containing three
Signature Not Verified
Digitally signed by
Neetu Khajuria
Date: 2022.11.07
21:49:28 IST
Reason:
charges pertaining to the appellant having behaved in a
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manner unbecoming his position and the character
expected of him, under Section 45 of the Army Act, 1950,
and challenging the order dated 22.11.2018 passed by
Convening Authority directing the trial of the appellant by
way of General Court Martial (GCM).
2. The short facts leading to the present appeal are that the
appellant was commissioned as an officer in the Indian
Army in 14 battalion of the Rajputana Rifles (Infantry) on
07.12.1996. On 13.08.2015, Col. Ramneesh Pal Singh, a
close friend and colleague of the appellant wrote a letter
to Brig. Ajav Vig which is reproduced hereunder:
“CONFIDENTIAL
th
Colonel Ramneesh Pal Singh 14 Battalion The Rajputana
Rifles
Commanding Officer PIN-912014
C/o 56 APO
RPS156206/Pers 13,Aug 15
Brig Ajav Vig
Cdr
79Mtn Bde
Pin-908079
C/o 56 APO
COMPLAINT IN R/O IC 56663 COL ANIL K GUPTA
1. I am writing, this letter to bring to your notice an act
of stealing brother officer’s affection by LC 56663, Col Anil K
Gupta. The officer is presently posted at HQ DG NCC in New
Delhi, tenanting the appt of Dir NCC (PLU) COORD.
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2. The offr has been sending indecent msgs to my wife,
which sexually explicit in nature and there is reasonable cause
to believe it they have indulged in illegitimate physical
relationship My wife, Mrs. Sugandhi Aggarwal has been
equally involved and has reciprocated positively to these msgs.
th
The offr vis my house in Delhi on 13 Jul 2015, after lying to
his wife about some official social engagement and was present
there from 2030H, for approx. two hours.
3. With regard to my marriage, I intend initiating
divorce proceedings in the civ court, based on charges of
infidelity. However, I would request you to initiate suitable
inquiry into the incident and take up case for disep action
against the offr, as deemed fit. May I also request you to
initiate the process for forthwith posting out of Col AK Gupta
from Delhi.
With warm regards
Sd/-
CONFIDENTIAL
Sd/-31.10.15 Sd/-31.10.15 Sd/-31/10 XV”
3. Consequent to the said letter, a Court of Inquiry was conducted by the
HQ Delhi Area to investigate into the complaint made by Col.
Ramneesh Pal Singh. The said Court of Inquiry was
finalized on 11.11.2016 with the directions of GOC Delhi
Area to initiate disciplinary proceedings against the
appellant. After the hearing of the Charge in terms of
Army Rule 22, on 24.07.2017 directions were given for
recording the Summary of Evidence. On the completion of
Summary of Evidence, a prima facie case was made out
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against the Appellant and accordingly, three charges were
framed against the appellant with regard to he having
behaved in the manner unbecoming his position and
character expected of him, under Section 45 of the Army
Act vide the charge-sheet dated 19.11.2018. Consequent
thereto, on 22.11.2018 the Convening Authority directed
the trial by General Court Martial.
4. The appellant vide his letter dated 04.01.2019 addressed to the
Convening Authority, raised an issue pertaining to the period of
limitation in terms of Section 122 of the Army Act, however, since the
directions for trial were given, he was advised to raise the issue before
the General Court Martial. The appellant, thereafter on 07.01.2019, filed
an Original Application being no.32/2019 before the Tribunal under
Section 14 of the Armed Forces Tribunal Act, 2007, challenging the
charge-sheet dated 19.11.2018 as well as the order dated 22.11.2018
passed by the Convening Authority directing trial of the appellant by
General Court Martial. The said OA having been dismissed by the
Tribunal vide the impugned judgment and order, the present appeal is
filed. This Court vide the order dated 02.12.2019, while issuing a notice
to the respondents, had stayed the disciplinary proceedings as well as the
General Court Martial proceedings.
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5. The learned counsel appearing for the appellant relying upon Section 122
of the Army Act submitted that the trial by Court Martial was vitiated
being barred by the period of limitation prescribed under the said
provision. According to him the aggrieved person i.e. Col. Ramneesh
Singh knew about the commission of the alleged offence when he wrote
the letter on 13.08.2015 and the Convening Authority had passed the
order directing the trial by the General Court Martial on 22.11.2018 i.e.
three years after the letter written by Col. Ramneesh Singh. Hence the
period of three years having already expired as contemplated in Section
122 of the Army Act, the Tribunal had committed an error in not
quashing the order dated 22.11.2018 passed by the Convening
Authority and consequently the trial proceedings . He also
submitted that the charge-sheet dated 19.11.2018 framing three charges
against the appellant under Section 45 of the Army Act, based on the said
allegations was also required to be quashed and set aside.
6. Per contra , the learned senior advocate Mr. R. Balasubramanian
appearing for the respondents vehemently submitted that from the letter
dated 13.08.2015 written by the aggrieved person Col. Ramneesh Singh
it could not be construed that he had the knowledge about the
commission of the alleged offence by the appellant. According to him,
after the completion of Summary of Evidence, a prima facie case was
made out against the appellant and hence the charge-sheet was issued on
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19.11.2018 and consequently the Convening Authority had directed
the trial by the General Court Martial vide order dated 22.11.2018. He
also drew the attention of the Court to the letter dated 03.11.2000 written
by the Lt. General, Adjutant General’s Branch, Army Headquarters DHQ
PO, New Delhi containing the policy dealing with disciplinary aspect of
matrimonial affairs of officers, which mentioned as to what constituted
the alleged misbehavior amounting to adultery, to submit that it was only
after conducting a court inquiry, it could be concluded that an alleged
offence of stealing the affection of the officer’s wife has been committed
by the officer or not, and in the instant case, the said offence was prima
facie made out only after the completion of Summary of Evidence. He
further submitted that since the department has initiated the departmental
proceedings against the appellant for the charges which are of serious
nature, the Tribunal had rightly not interfered with the said proceedings.
7. In order to appreciate the rival contentions raised by the learned counsel
for the parties, it would be apposite to reproduce the relevant provision
contained in Section 122 of the Army Act, which reads as under:
“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
commenced after the expiration of a period of three
years and such period shall 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
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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…”
8. From the bare reading of the said provision, it clearly transpires that no
trial by Court Martial of any person subject to the Army Act, for any
offence could be commenced after the expiration of a period of three
years, and such period would commence on the date of offence or 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. Hence for the purpose of Section 122, the
two dates will be relevant i.e., the date when the alleged offence comes to
the knowledge of the person aggrieved and the date on which the
authority competent to initiate action comes to know about the alleged
offence. As per Section 3(xvii) “offence” means any act or omission
punishable under the said Act and includes a civil offence as defined in
Section 3(ii) which means an offence triable by a criminal court. Chapter-
VI of the Army Act deals with the offences. Section 45 which falls under
the said Chapter states that Army officer, junior commissioner officer or
warrant officer who behaves in a manner unbecoming his position and
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the character expected of him shall be liable to suffer punishment as
prescribed therein.
9. In the instant case, having regard to the contents of the letter dated
13.08.2015 written by the aggrieved person i.e., Col. Ramneesh Singh to
the concerned authority, it clearly transpires that he was aware of the
alleged act of the appellant having stolen the affection of his wife on the
date of the said letter. He had specifically mentioned in the said letter that
it was for bringing to the notice of the concerned authority about the
appellant’s act of stealing affection of his wife. He had further alleged
therein that the appellant was sending indecent messages to his wife
which were sexually explicit in nature and that he had reasonable cause
to believe that the appellant and his wife had indulged in illegitimate
physical relationship with each other. Therefore, the date 13.08.2015
would be the crucial date on which the aggrieved person had the
knowledge about the commission of the alleged offence. Therefore the
time had started running from the said date for the purpose of Section
122 of the said Act. In that view of the matter, the submission of the
learned senior advocate appearing for the respondents that date of
aggrieved person’s knowledge about the commission of the alleged
offence by the appellant, should be construed as the date when the
respondents prima facie concluded after the Court of Inquiry that the
appellant had committed the offence, cannot be accepted. The date
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13.08.2015 therefore would be the date on which the aggrieved persons
i.e., Col. Ramneesh Pal Singh had the knowledge about the commission
of the alleged offence by the appellant. The Convening Authority having
directed the trial by General Court Martial vide order dated 22.11.2018,
the same was clearly beyond three years and therefore barred under
Section 122 of the Act.
10. We are therefore of the opinion that the trial by the General Court
Martial directed vide the order dated 22.11.2018 was clearly barred under
Section 122 of the Army Act. The said proceedings deserve to be quashed
and set aside and are accordingly set aside.
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11. However, we hasten to add that as per the well settled legal position , the
power of judicial review in the matter of disciplinary proceedings is
extremely limited. It is circumscribed by the limits of correcting errors of
law or procedural errors leading to manifest injustice or violation of
principles of natural justice. The power of judicial review is an evaluation
of the decision-making process and not of the merits of the decision
itself. It is therefore clarified that the disciplinary proceedings initiated
against the appellant pursuant to the chargesheet issued on 19.11.2018
shall continue in accordance with law.
12. The appeal stands partly allowed accordingly.
1 Regional Manager, UCO Bank and Anr. vs. Krishna Kumar Bhardwaj , (2022) 5 SCC 695
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………………………CJI
[UDAY UMESH LALIT]
NEW DELHI; …………………………J.
07.11.2022 [BELA M. TRIVEDI]
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