IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6274 OF 2003

J.S. SEKHON          …Appellant

Versus

UNION OF INDIA                                     …Respondent

JUDGMENT

Dr. Mukundakam Sharma, J.  

1. This  Civil  Appeal  is  directed  against  the  judgment  of  the  High  

Court of Jammu & Kashmir dated 2.4.2002.   By the aforesaid order, the  

Division Bench of the High Court upheld the order of the learned Single  

Judge  of  the  High  Court  of  Jammu  & Kashmir,  dismissing  the  Writ  

Petition and upholding the order  of conviction of the appellant by the  

General Court Martial (GCM) for defrauding the Army and sentence of  

one  year  of  rigorous  imprisonment  and  also  of  cashiering  him  from  

service.

2. The appellant  was  a  Commissioned Officer  in  the  Indian Army  

working at  the  relevant  time at  Leh.   He was  working  as  a  Garrison  

Engineer,  865  EWS,  where  he  invited  offers  from  private  parties  to  

supply the garrison with Diesel Generator (DG) sets and to make other  

repairs and replacement.  

3. On 29.11.1994 he entered into an agreement with M/s Surjit Singh  

Sokhi to repair two DG Sets at FRL Powerhouse at Leh for Rs. 2.29 lakh  

and to  repair  LT cables  at  Nimmuy area  Leh for  Rs.  2.49  lakhs.  On  

30.11.1994  he  entered  into  an  agreement  with  M/s  Mohd  Sultan  and  

Bros.  to  replace  LT  cables  and  providing  an  ACR conductor  and  to  

replace  parts  of  two  DG Sets  for  Rs.  2.48  lakhs.  Authorities  noticed  

irregularities  in  these  purchases  and  on  6.12.1994  investigated  the  

contract  agreements.  A  vigilance  check  was  performed  by  the  

Commander Works Engineers (CWE) on 9.12.1994. CWE then asked the  

appellant  for  his  comments  on  the  report  which  were  submitted  on  

6.2.1995.     Discrepancies  detected  in  comparing  the  report  and  the  

comments of the appellant prompted the Technical Board of Officers to  

issue a report on 9.4.1995, which led a court of enquiry being convened  

on  20.9.1995  and  then  to  a  GCM  being  convened  on  9.3.1998.  The  

appellant  was  then  served  a  charge  sheet  on  9.3.1998  that  was  then  

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withdrawn due  to  errors  and thereafter  he  was  re-served  with  a  fresh  

charge sheet on 11.3.1998.  

4. Seven  charges  were  framed against  the  appellant  two  of  which  

could not be proved.  All the charges revolved around the allegation of  

his  defrauding the Army for purchasing services to replace and repair  

items at exorbitant rates which are much higher than what is permissible  

under the standard scheduled rates.  

5. On 14.3.1998 the GCM commenced its proceedings and provided  

the appellant the right to raise objections of being tried by any officer  

sitting on the  court  in accordance with Section 130 of the Army Act,  

1950 read with Rule-44 of the Army Rules, 1954. He raised no objection  

at the time. However, at  a subsequent stage of the trial he objected to  

being tried by the Presiding Officer of the Court. The objection was then  

considered and rejected. The court convicted the appellant and sentenced  

him to one year rigorous imprisonment besides cashiering.  

6. The appellant then challenged this conviction and sentence based  

on several  issues.   The Single Judge of the High Court of Jammu &  

Kashmir at Srinagar dismissed the Writ Petition holding the same to be  

without merit.   The Division Bench of the High Court in the writ appeal  

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filed before it similarly held that there was no “procedural irregularity or  

illegality in the GCM proceedings.” That appeal was also dismissed.  

7. Being aggrieved by both the orders passed by the learned Single  

Judge and the Division Bench of the High Court, a Special Leave Petition  

was filed by the appellant.    After  leave was granted,  the appeal  was  

placed for final hearing in which we heard the learned counsel appearing  

for the parties.    

8. The learned counsel appearing for the appellant mainly raised two  

issues before us during the course of hearing.   The first submission of the  

learned counsel appearing for the appellant was that the convening of the  

General Court Martial on 14.3.1998 was barred under the provisions of  

Section 122 of the Army Act.   The second submission of the learned  

counsel for the appellant was that the convening Officer of the General  

Court Martial in the case of the appellant being the Commanding Officer  

of the appellant, there is violation of the provision of paragraph 449(b) of  

the Army Regulation.

9. The learned counsel appearing for the respondent, however, refuted  

the  aforesaid  submissions  while  contending  inter  alia  that  neither  the  

convening of the General Court Martial was barred by time nor that the  

convening officer of the Court Martial was the commanding officer of the  

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appellant. According to him therefore not only there was no violation of  

Section 122 of  the Army Act,  but  there was also no contravention of  

paragraph 449(b) of the Army Regulation.  

10. In the light of the aforesaid submissions of the counsel appearing  

for the parties, we have perused the relevant provisions of the Army Act,  

1950 (for  short  “the  Act”)  and the  Army Regulations  as  also  various  

documents and the decisions relied upon and on being fully acquainted  

thereof, we propose to dispose of the present appeal by giving our reasons  

thereof.  But  before  doing  that  it  would  be  appropriate  to  extract  the  

relevant  provisions  of  Section  122  of  the  Army  Act,  and  Paragraph  

449(b) of the Army Regulations.

“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  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.]”

449. Action by Superior Officer

****      ****        ****         ****

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****     ****   **** ****

(b) When  the  superior  office  has  been  the  CO  of  the  accused  at  any  time  between  the  date  on  which  cognizance of offence was taken against the accused  and  the  date  on  which  the  case  is  taken  up  for  disposal, or an officer who has investigated the case,  he cannot exercise the powers detailed in sub-para (a)  (ii) to (v) inclusive”

11. Section 122 of the Army Act provides the period of limitation for  

trial.   In the said section, it is provided that no trial by court martial of  

any person shall be commenced after the expiration of a period of three  

years (a) from 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 by the authority competent to initiate action,  

whichever is earlier.

12. On  going  through  the  records,  we  find  that  it  is  an  admitted  

position between the parties, that what is attracted in the present case is  

clause (b) of sub-Section (1) of Section 122.    The date of limitation for  

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holding a trial by court martial is a period of three years from any of the  

three dates as stated above.

13. Clause (b) is attracted and in that case the limitation of three years  

period  would  commence  from  the  date  of  the  knowledge  of  the  

commission of such offence by the person aggrieved by the offence or by  

the authority competent to initiate action.

14. Learned Counsel appearing for the appellant submitted before us  

that of the two expressions i.e. “person aggrieved by the offence” or “the  

authority competent to initiate action”, what is  attracted in the present  

case is not the knowledge of the authority competent to initiate action but  

the  other  expression  appearing  in  the  section  namely  the  date  of  

knowledge of the person aggrieved of the commission of the offence.

15. The facts disclosed before us reveal that on 6.12.1994, the higher  

authority  noticed  some  irregularity  committed  by  the  appellant  and  

accordingly  made  some  observations  on  the  contract  agreement  

whereupon  on  9.12.1994,  Commander  Works  Engineer  directed  a  

Vigilance Check in terms of which a Vigilance Check was conducted and  

a report to that effect was submitted on 19.12.1994.

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16. It appears that on receipt of the aforesaid Vigilance Check Report,  

Commanding Works Engineer forwarded the report to the appellant and  

asked  for  his  comments  which  were  submitted  by  the  appellant  on  

6.2.1995.    As there were some variations in the vigilance report and the  

comments furnished by the appellant, a Technical Board of Officers was  

constituted  on  29.3.1995  and  the  said  technical  board  of  officers  

submitted  its  report  on  9.4.1995.   Thereafter  on  20.4.1995,  on  

examination of the report, a letter was written by the Commanding Works  

Engineer to HQ 3 Infantry Division for constituting a court of enquiry.  

On 24.4.1995, a court of enquiry was convened and thereafter the court of  

enquiry submitted its report on 11.10.1996.

17. According  to  the  counsel  appearing  for  the  appellant,  when  the  

vigilance check report was submitted, Commander Works Engineer who  

is the person aggrieved came to know that there was a commission of an  

offence and therefore period of limitation as envisaged under Section 122  

of  the  Act  would  commence  from  that  date  and  when  limitation  is  

computed from the said date, convening of the general court martial on  

9.3.1998 was barred by time, as it was beyond the period of three years as  

contemplated under Section 122  of the Army Act.   

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18. The aforesaid factual position as stated above would indicate that  

although  a  vigilance  check  report  was  submitted  on  19.12.1994,  the  

Commanding Works Engineer sought for comments from the appellant  

and on receipt  of the comments of the appellant some variations were  

found while  comparing  the  vigilance  report  and  the  comments  of  the  

appellant and therefore, a Technical Board of Officers was required to be  

constituted which was accordingly constituted on 29.3.1995.  When the  

technical board of officers so constituted submitted its report on 9.4.1995,  

it could be said that the fact of commission of offence by the appellant  

came to be finally recorded, but even thereafter a Court of Enquiry was  

convened so as to make an enquiry with regard to the allegation against  

the  appellant.   The Report  of  the  court  of  enquiry  finally  proved and  

established that the appellant has committed an offence alleged against  

him and therefore the knowledge, if any, regarding the commission of the  

offence by the authority competent to convene the general court martial  

could be said to be on 11.10.1996, when the aforesaid Court of Enquiry  

Report was submitted or at the most it could be said that such knowledge  

was derived by the authority competent to initiate action of convening the  

general court martial on submission of the report by the technical board  

of  officers  which  was dated  9.4.1995.    If  the  period  of  limitation  is  

computed either from 9.4.1995 or 11.10.1996, the convening of the trial  

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by general court martial on 9.3.1998 must be held to be within the period  

of limitation as prescribed under Section 122 of the Act.

19. In our considered opinion, the expression ‘person aggrieved by the  

offence’ is irrelevant in the facts and circumstances of the present case  

and what  is  relevant  is  the  ‘knowledge  of  the  authority  competent  to  

initiate  action’.  The  aforesaid  acts  were  committed  against  the  

Government and not a natural person.   In the facts of the present case no  

single person can be said to be aggrieved person individually due to the  

act of defrauding the Army.  What is applicable to the facts of the case is  

the  expression  when  it  comes  to  the  knowledge  of  the  competent  

authority to initiate action.   In coming to the aforesaid conclusion, we are  

fortified by a recent decision of this Court in Union of India and Others  

Vs. V.N. Singh reported in  (2010) 5 SCC 579 wherein it was held thus:-

32….It is only the natural persons who can be hurt, angry,  upset  or  wronged  or  maltreated,  etc.  If  a  government  organisation is treated to be an aggrieved person then the  second part of Section 122(1)(b) i.e. “when it comes to the  knowledge  of  the  competent  authority  to  initiate  action”  will  never come into play as  the commission  of  offence  will always be in the knowledge of the authority who is a  part of the organisation and who may not be the authority  competent to initiate the action. A meaningful reading of  the  provisions  of  Section  122(1)(b)  makes  it  absolutely  clear that in the case of a government organisation, it will  be  the  date  of  knowledge  of  the  authority  competent  to  initiate  the  action,  which  will  determine  the  question  of  limitation….

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20. The action contemplated by Section 122 must be the action it seeks  

to limit – namely a trial. The power of investigation and trial or the power  

to  convene  a  court  of  inquiry  is  vested  in  officers  in  the  chain  of  

command and not with staff officers. It is therefore clear from Section  

122(1)(b)  that  the  expression  “person  aggrieved”  necessarily  means  a  

natural  person  and  what  would  be  relevant  is  the  knowledge  of  the  

competent  authority  to  convene  a  general  court  martial  against  the  

appellant who in the present case is the general officer commanding.  His  

date of knowledge of the commission of offence becomes material as he  

is the competent authority to convene a general court martial against the  

appellant.

21. Since,  the  authority  competent  to  initiate  action  has  derived his  

knowledge about the commission  of the offence on submission of  the  

report of the Court of Enquiry 11.10.1996 or at the most on submission of  

the report by the technical board of officers on 9.4.1995 and the date of  

the convening of the trial by general court martial is 9.3.1998, the trial is  

not  barred  by  limitation  as  sought  to  be  submitted  by  the  counsel  

appearing for the appellant, and therefore, the submission of the counsel  

appearing for the appellant fails and is rejected.

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22. Having held thus so far as the first issue is concerned, let us now  

turn  to  the  second  issue,  which  was  urged  before  us.  We  have  very  

carefully analysed the scope and applicability of paragraph 449(b) of the  

Army Regulation.

23. On consideration of the records placed before us, we find that in  

the present case, the General Court Martial, which was held against the  

appellant was convened by the general officer commanding who was of  

the  rank  of  a  Major  General.   The  appellant  was  a  lieutenant  Col.,  

whereas  the  commanding  officer  was  Col.  R.K.  Rana.    The  General  

officer commanding in the case of the appellant was a Major General who  

is much higher in rank than the commanding officer and therefore, there  

is no violation of paragraph 449(b) of the Army Regulation.    

24.  Learned counsel appearing for the appellant submitted before us  

that  here  the  convening  officer  of  the  General  Court  Martial  was  his  

commanding  officer  and  therefore  there  was  violation  of  regulation  

449(b).    The said allegation is found to be factually incorrect.   Even  

otherwise,  the  appellant  was  attached  to  603  ASC  Battalion,  for  the  

purpose  of  investigation  and  progress  of  the  disciplinary  case,  and  

therefore,  commanding  officer  on  603  ASC  Battalion  became  his  

commanding officer.  It could not be disputed by the counsel appearing  

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for the appellant that the said commanding officer is the one who has  

filed  the  charge  sheet  against  the  appellant  and  the  appellant  has  not  

objected  that  the  commanding  officer  603  ASC  Battalion  was  the  

commanding officer.   That being the position, there is no violation at all  

of Paragraph 449(b) of the Army Regulation.

25. Therefore,  all  the issues urged by the  appellant  are found to be  

without  any  merit.  Consequently,  the  appeal  has  no  merit,  and  is  

dismissed, but we leave the parties to bear their own costs.

     ...........………………………J.            [Dr. Mukundakam Sharma]

…...........………….....……..J.                  [Anil R. Dave]

New Delhi, August 10, 2010

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