UNION OF INDIA & ORS. v.

V.N. SINGH (Civil Appeal No (s). 32 of 2003)

APRIL 08, 2010 [Harjit Singh Bedi and J.M. Panchal, JJ.]

2010 (4) SCR 454

The Judgment of the Court was delivered by

J.M. PANCHAL, J. 1. The instant appeal is directed against Judgment  dated March 15, 2002 rendered by the High Court  of Delhi in C.W.P. No.  

5451 of 1998 by which (1) the order dated October 30, 1996 invoking Section  

123  of  the  Army Act  and  taking  the  respondent  in  close  custody  (2)  the  

findings recorded by General Court Martial holding the respondent guilty of  

some of the charges and imposing punishment of forfeiture of 8 years past  

service of the respondent for the purposes of the pension vide order dated  

April 3, 1997 (3) the order dated June 14, 1997 passed by Mr. K.K. Verma,  

the then Major General, General Officer Commanding, 22 Infantry Division,  

directing the General Court Martial to re-assemble in open Court at Meerut on  

June 28, 1997 for reconsidering its findings on the first, second, third, fourth,  

sixth,  seventh and eighth charges levelled against the respondent and the  

adequacy of  the  sentence of  forfeiture  of  8  years  of  past  service  for  the  

purpose of  pension  awarded to  him by the General  Court  Martial  (4)  the  

revised order dated July 2, 1997 passed by General Court Marital adhering to  

its  earlier  findings but  revoking its  earlier  order  of  sentence and imposing  

sentence of forfeiture of 11 years past service for the purposes of pension  

and severe reprimand subject to he confirmation by Major General, General  

Officer  Commanding  and  (5)  the  communication  dated  April  8,  2000  

addressed by Col. Dy. CDR Mr. P.K.Sharma promulgating the order of the

Confirming Authority by which sentence of forfeiture of 11 years past service  

of the respondent for the purposes of pension, was confirmed and (6) the  

communication dated May 15, 2000 by DDA and QMG Mr. G.Vinod for CDR  

mentioning that  the promulgation order  carried  out  on May 15,  2000 was  

handed over to the respondent and order dated April 17, 2000 promulgating  

punishment  of  forfeiture of  8 years past  service of  the respondent  for  the  

purposes  of  pension  and  severe  reprimand  was  de-promulgated  and  

cancelled, are set aside, on the ground that trial of the respondent by Court  

Martial was time barred in view of the provisions of Section 122 (1)(b) of the  

Army Act, 1950 .

1. The facts emerging from the record of the case are as under:-

The  respondent  i.e.  Mr.  V.N.Singh  who  was  Lt.  Col.  was  posted  as  

Officiating  Commandant  in  4  Reserved  Petroleum Depot  (‘4  RPD’  for  

short),  Delhi  Cantonment.  During  the  inspection  of  4RPD,  certain  

irregularities were noticed with regard to local purchase of the Hygiene  

and Chemicals in the month of May 1993. Therefore, by a letter dated  

May 5, 1993, the then Lt. Col. P.Oomen, who was Additional Director,  

Supply and Transport, Delhi area was directed by the then Brigadier Mr.  

K.S.Bharucha, who was holding the post of Deputy Director, Supply and  

Transport,  Headquarters  Delhi  area  (‘DDST’  for  short),  to  carry  out  

preliminary investigation of local purchase of Hygiene and Chemicals as  

well as other fuel oils and lubricant items by 4 RPD, during the year 1992-

93.  Accordingly,  preliminary  investigation  was  carried  out  by  Lt.  Col.  

P.Oomen.  On  May  17,  1993  he  submitted  his  report  to  Brigadier  

K.S.Bharucha, DDST, who in turn forwarded the report on May 27, 1993  

to Major General of Army Supply Corps (‘ASC’ for short) Headquarters  

Western  Command,  Chandimandir.  In  that  report,  the  DDST  

recommended closure of the case.

The  Major  General,  ASC,  Headquarters  Western  Command,  did  not  

consider the case appropriate for closure. He therefore, forwarded the papers  

to the Headquarters Western Command. The Headquarters suggested to the  

Major  General  by  letter  dated  June  12,  1993  to  seek  explanation  of  the  

respondent. The Major General ASC therefore issued a show-cause notice  

dated June 18, 1993 to the respondent and sought his explanation on the  

point  of  procedural  lapses in  local  purchase.  The respondent  in  his  reply  

dated July 6, 1993 admitted certain procedural lapses on the part of 4 RPD  

and regretted the same, since such lapses were due to practical problems.  

Thereafter, the DDST accepted the explanation given by the respondent and  

again recommended the Headquarters Western Command (ST) Chandigarh  

to  treat  the case as closed if  deemed fit  by communication dated July 9,  

1993.  On  September,  9,  1993,  the  Major  General  ASC,  Headquarters  

Western  Command,  endorsed  certain  remarks  in  the  pen  picture  of  the  

respondent while writing his ACR. On January 8, 1994 a Technical Court of  

Inquiry was convened by Brigadier Narsimhan, who had replaced Brigadier  

K.S.Bharucha, as DDST. The Lt. Col. Ram Darshan of 226 Company ASC  

Supplies was asked to act as the Presiding Officer. The report along with the  

proceedings of Technical Court of Inquiry were forwarded to the DDST. The  

DDST  recommended  to  the  Major  General  ASC,  Headquarters  Western  

Command, vide communication dated March 3, 1994 to go for a thorough  

investigation by Staff  Court  of  Inquiry.  Therefore,  on May 7,  1994 a Staff  

Court of Inquiry was convened pursuant to the orders of the General Officer  

Commanding-in-Chief,  (‘GOC-in-C’  for  short)  Western  Command.  Before  

Staff  Court  of  Inquiry,  (‘S.C.I.’  for  short)  witnesses  were  examined  and  

documents produced. The Staff Court of Inquiry concluded its proceedings  

and  submitted  its  recommendations  on  August  31,  1994  blaming  the  

respondent specifically along with few other personnel for irregularities, in the  

local purchase of Hygiene and Chemicals during the period 1992-93. After  

examining the recommendations of SCI, the GOC, Delhi area, Major General

A.R.K. Reddy, recommended on October 19, 1994, disciplinary action against  

the respondent. Thereafter, the GOCin-C Western Command, Lt. Gen. R.K.  

Gulati,  directed  to  initiate  disciplinary  action  against  the  respondent  vide  

communication dated December 3, 1994. On August 23, 1995 the disciplinary  

action was commenced against the respondent by way of hearing of parties  

as required by Rule 22 of the Army Rules and a direction for recording of  

summary  of  evidence  was  ordered  by  the  Commanding  Officer  i.e.  

Commander 35 Infantry Brigade under whom the respondent was working at  

the relevant  time.  The Commanding Officer,  vide order  dated October 30,  

1996 invoked the provisions of Section 123 of the Army Act 1950, and took  

the respondent into close custody as superannuation of the respondent was  

due on October 31, 1996 and it was apprehended that the respondent would  

flee the course of justice.

The respondent filed Criminal Writ Petition 726 of 1996 before the Delhi  

High Court challenging the order dated October 30, 1996 on the ground that  

Section 123 of the Army Act was wrongly invoked and trial if any by GCM was  

barred by limitation under Section 122 of the Army Act. The respondent also  

prayed to direct the authority to pay compensation at the rate of Rs. 50,000/-  

for each day of illegal detention. By an order dated December 3, 1996, the  

High Court stayed the operation of order dated October 30, 1996 and directed  

the  respondent  to  raise  the  points  mentioned  in  his  Writ  Petition,  before  

General  Court  Martial.  On  December  11,  1996,  the  General  Officer  

Commanding, 22 Infantry Division issued an order convening General Court  

Martial (‘GCM’ for short). Accordingly, GCM was convened. By order dated  

April 3, 1997, the GCM found the respondent guilty of some charges and not  

guilty  of  some  other  charges.  By  the  said  order,  the  GCM  imposed  the  

punishment of forfeiture of 8 year’s past service for the purpose of pension on  

the respondent subject to the confirmation of the same by the Major General,  

General  Officer  Commanding.  This  report  of  the  GCM  was  sent  to  the  

Confirming  Authority.  The  Confirming  Authority  vide  order  dated  June14,

1997, sent back the report to GCM, under the provisions of Section 160 of the  

Army Act to revise/reconsider the exoneration of the respondent from some of  

the charges and decide whether the punishment imposed on the respondent  

was lenient or not. Thereupon, the respondent filed Writ Petition No. 5451 of  

1997  challenging  aforementioned  order  dated  June  14,  1997  as  well  as  

validity of Sections 153, 154 and 160 of the Army Act, 1950. Writ Petition No.  

5451 of 1997 was filed by the respondent without prejudice to the contentions  

and averments made in Criminal Writ Petition No. 726 of 1996.

In  view  of  the  directions  from  the  Confirming  Authority,  GCM  was  

convened.  The GCM submitted  its  report  dated  July  2,  1997.  The report  

indicates that the GCM adhered to its earlier finding but passed a fresh order  

of  sentence  forfeiting  11  years  of  past  service  of  the  respondent  for  the  

purpose of pension as well as the punishment of severe reprimand. A copy of  

the  order  dated  July  2,  1997  was  also  forwarded to  the  respondent.  On  

receipt of the order dated July 2, 1997 the respondent brought to the notice of  

the Court  hearing Criminal  Writ  Petition No.  726 of  1996,  the subsequent  

developments which had\ taken place. The Court  noticed that order dated  

June 14, 1997 passed by the Competent  Authority,  was subject matter of  

challenge,  in  Writ  Petition  No.  5451  of  1997  which  was  pending.  On  

subsequent events being brought to the notice of the Court, the Court was of  

the opinion that keeping Criminal Writ Petition No. 726 of 1996 pending was  

of no use and ends of justice would be met if liberty is reserved to amend  

memorandum of Writ Petition No. 5451 of 1997 and to raise all questions in  

the  said  pending  Writ  Petition.  After  reserving  necessary  liberty  to  the  

respondent, the Court disposed Criminal Writ Petition No. 726 of 1996 by an  

order dated August 19, 1998. The order dated July 2, 1997 passed by GCM  

was  considered  by  the  Confirming  Authority.  The  Confirming  Authority  

approved the finding of GCM and imposition of sentence of forfeiture of 11  

years past service of the respondent for the purpose of pension. However,  

the Confirming Authority did not approve/confirm the punishment of severe

reprimand imposed by the GCM on the respondent. By communication dated  

April  8,  2000  the  order  of  the  Confirming  Authority  was  promulgated.  

Thereafter, vide communication dated May 15, 2000 promulgation of order  

was handed over to the respondent. Thereafter, the respondent moved an  

application  for  amendment  of  Writ  Petition  No.5451  of  1997  which  was  

allowed. By way of amendment the respondent challenged validity of orders  

dated April 3, 1997, July 2, 1997, October 30, 1996, April 8, 2000 and May  

15,  2000  over  and  above  claiming  compensation.  The  High  Court  by  

Judgment dated March 15, 2002 has allowed the Writ Petition and quashed  

GCM proceedings as well  as the sentence imposed upon the respondent  

after holding that GCM proceedings were initiated after expiry of the period of  

limitation prescribed by Section 122(1) (b) of the Army Act, 1950, which has  

given rise to the instant appeal.

3.  This  Court  has  heard  Ms.  Indira  Jaisingh,  the  Learned  Additional  

Solicitor  General  for  the  appellants  and  Mr.  Yatish  Mohan,  the  learned  

advocate for the respondent at great length and in detail. This Court has also  

considered the documents forming part of the instant appeal.

4.  Ms.  Indira  Jaisingh,  Learned  ASG argued  that  in  terms  of  Section  

122(1)(b)  of  the  Army  Act,  the  then  Brigadier  K.S.Bharucha  was  not  the  

person aggrieved by the offence and neither the then Brigadier K.S.Bharucha  

nor Major General BS Suhag were competent to initiate action against the  

respondent  but  G.O.C.  Delhi  area  was  Disciplinary  Authority  of  the  

respondent  who  learnt  about  the  offence  having  been  committed  by  the  

respondent for the first time on receipt of the report of Staff Court of Inquiry  

submitted on December 3, 1994 and as the G.C.M. commenced the trial on  

December 17, 1996 the same could not have been treated as time barred  

under Section 122 (1)(b) of the Army Act. It was asserted that the Technical  

Court  of  Inquiry could not come to a definite conclusion about the correct  

details of  purchase of  Hygiene and Chemicals nor any definite conclusion  

could be reached about the persons responsible for the irregularities but the

involvement of the respondent came to the light only in August 1994 when the  

Staff Court of Inquiry submitted its report and therefore the High Court was  

not justified in quashing the proceedings of G.C.M. on the ground that they  

were time barred. What was highlighted by the Learned A.S.G. was that in  

the letter dated May 27, 1993 addressed by Brigadier K.S.Bharucha to MG  

ASC  Headquarter  Western  Command,  there  was  no  mention  whatsoever  

about the respondent being the person who had committed the irregularities  

except a reference to the fact that certain procedural lapses had taken place  

on the part of 4RPD and as the said letter was apparently addressed with a  

view to closing the case in total disregard of the facts and circumstances of  

the case, the said letter could not have been taken into consideration for the  

purpose of coming to the conclusion that the proceedings of G.C.M. were  

time barred. After referring to the A.C.R. of the respondent written by Major  

General BS Suhag it was argued that what becomes apparent therefrom is  

that the respondent had failed to monitor the local purchase of Hygiene and  

Chemicals  but  there  was  no  mention  that  the  respondent  was  himself  

involved in it  and therefore the date on which the A.C.R. was written also  

could not have been taken into consideration for the purpose of determining  

whether  the  proceedings  of  G.C.M.  were  time  barred.  The  Learned  ASG  

stressed that the period of limitation for the purpose of trial of the respondent  

commenced on December 3,  1994,  when the then GOC-in-Chief  Western  

Command who is competent authority came to know about the commission of  

offence by the respondent and directed to take disciplinary action against the  

respondent  and as  period  of  limitation  of  three  years  in  terms of  Section  

122(1)(b)  expired  on  December  2,  1997  the  same  could  not  have  been  

treated as time barred. The Learned Counsel asserted that the Judgment of  

the High Court questioned in the appeal is not only erroneous on the facts  

brought on the record of the case but also misinterprets the provisions of the  

Army Act and therefore the same should be set aside.

5. The Learned Counsel for the respondent argued that after scrutinising  

the entire documentary evidence the High Court has rightly reached to the  

conclusion  that  the  trial  of  the  respondent  by  GCM was time barred  and  

rightly allowed the Writ Petition filed by him. It was maintained that during the  

inspection of 4RPD, certain irregularities were noticed with regard to the local  

purchase of  Hygiene and Chemicals by 4RPD Delhi  in the month of  May  

1993 and the respondent who was Officiating Commandant of said 4 RPD  

was immediately removed from the said post and was placed as Officiating  

Commandant of 5033 Army Service Corps battalion functioning directly under  

Headquarters  33  Corps,  which  indicates  that  in  May  1993  the  so-called  

involvement of the respondent in the irregularities noticed with regard to the  

local  purchase  of  the  Hygiene  and  Chemicals,  had  become  evident  and  

therefore  the  proceedings  initiated  against  him should  be treated  as  time  

barred. The Learned Counsel for the respondent drew the attention of the  

Court to the communication dated May 5, 1993 addressed by DDST Brigadier  

K.S.Bharucha on behalf of the Headquarter Delhi Area to Lt. Col. P. Oomen,  

ADST  asking  him  to  conduct  the  inquiry  into  the  lapses  found  in  local  

purchase by 4 RPD, pursuant to which report was submitted to Headquarter  

Delhi  Area,  wherein it  was concluded that irregularities were committed in  

purchase of  Hygiene and Chemicals and therefore the period of  limitation  

would start running from May 27, 1993 when the said report was submitted by  

Mr.  K.S.Bharucha,  DDST  to  Major  General,  Army  Service  Corps  at  

Headquarter Western Command. According to the Learned Counsel for the  

respondent, the DDST issued a notice dated June 18, 1993 calling upon the  

respondent to explain procedural  lapses in local purchase of Hygiene and  

Chemicals by 4RPD wherein there is reference to instructions of Headquarter  

Western Command dated June 12, 1993 and therefore the relevant period for  

the  purpose  of  deciding  the  question  whether  the  proceedings  were  time  

barred or not should be taken to be June 12, 1993. What was asserted was  

that  while  writing  the  ACR of  the  respondent  on  September  6,  1993  the

Headquarter  Western  Command,  Chandigarh  in  the  column  of  brief  

comments  had  mentioned  that  the  respondent  needed  to  exercise  more  

discretion and caution while dealing with funds and therefore the said date  

would also be relevant for the purpose of determining the question whether  

the proceedings were time barred. It was argued that the order dated October  

30, 1996, taking the respondent into close custody under Section 123 of the  

Army Act, 1950, was passed because the respondent was charged for the  

offence of  procedural  lapses in local  purchase of  Hygiene and Chemicals  

during  his  tenure  as  Officiating  Commandant  of  4RPD  Delhi  Area  

Cantonment and therefore the date on which the respondent was taken into  

close  custody  would  also  be  relevant  for  the  purpose  of  determining  the  

question whether the proceedings initiated against the respondent were time  

barred. What was asserted was that the respondent was identified as the  

offender firstly in May 1993 after the report of Lt. Col. P. Oomen and secondly  

on May 27, 1993 when DDST Headquarter Delhi Area on behalf of GOC had  

submitted the report of inquiry to Headquarters ASC Western Command at  

Chandigarh concluding that,  there was certainly procedural  lapses in local  

purchase of Hygiene and Chemicals on the part of 4RPD which was under  

the control of the respondent and therefore the proceedings have been rightly  

treated as time barred by the High Court. According to the Learned Counsel  

for  the  respondent  the  competent  authority  of  the  respondent  was  his  

Commanding  Officer  i.e.  Brigadier  K.S.Bharucha,  DDST  and  as  the  

competent authority had initiated action on October 30, 1996 by detaining the  

respondent, the proceedings in question should be treated as time barred.  

The Learned Counsel argued that the person aggrieved within the meaning of  

Section  122  of  the  Act,  means  the  person  should  be  answerable  to  the  

superiors in chain of command for the act, commission or omission done by  

his  subordinate  and  as  DDST  was  aggrieved  person  under  whom  the  

respondent  was  discharging  duties,  the  period  of  limitation  would  start  

running from the date of report of the Court of Inquiry, when identity of the

offence  and  offender  was  ascertained  and  therefore  the  well  reasoned  

judgment of the High Court should be upheld by this Court.

6. Section 122 of the Army Act, 1950 prescribes period of limitation for  

trial by Court Martial of any person subject to the provisions of the Act for any  

offence committed by him. The said Section reads as under:-

“Section 122. Period of limitation for trial  (1) Except as provided by sub-

section (2), no trial by court-marital 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.

(2)  The  provisions  of  sub-section  (1)  shall  not  apply  to  a  trial  for  an  

offence of desertion or fraudulent enrolment or for any of the offences  

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 on 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.”

A fair reading of the abovementioned Section makes it clear that after the  

expiry  of  the  period  of  limitation,  the  Court  Martial  will  ordinarily  have  no  

jurisdiction to try the case. The purpose of Section 122 is that in a civilised  

society a person should not live, for the rest of his natural life, under a Sword  

of Damocles and the prosecution be allowed to rake up any skeleton from  

any cupboard at any time when the accused may have no further materials,  

oral or documentary, to prove that the skeleton is not from his cupboard. If the  

device is left open to the prosecution to convene a Court Martial at its leisure  

and  convenience,  Section  122  will  lose  all  significance.  Section  122  is  a  

complete Code in itself so far as the period of limitation is concerned for not  

only it provides in Sub-section (1) the period of limitation for such trials but  

specifies  in  Sub-section  (2)  thereof,  the  offences  in  respect  of  which  the  

limitation clause would not apply. Since the Section is in absolute terms and  

no provision has been made under the Act for extension of time, it is obvious  

that any trial commenced after the period of limitation will be patently illegal.  

The question of limitation to be determined under Section 122 of the Act is  

not  purely  a  question  of  law.  It  is  a  mixed question  of  fact  and  law and  

therefore in exercise of Writ Jurisdiction under Article 226 of the Constitution,  

ordinarily the High Court will not interfere with the findings of court Martial on  

question of limitation decided under Section 122 of the Army Act.  

7. Section 122 of the Army Act in substance prescribes that no trial by  

Court  Martial  of  any  person  subject  to  the  provisions  of  the  Act  for  any  

offence shall be commenced after the expiration of a period of three years. It  

further explains as to when period of three years shall commence. It provides  

that the period of three years shall commence on the date of the 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. In view of the provisions of Section 122(1)(b) a question  

arises  as  to  who is  the  person aggrieved within  the meaning  of  the  said  

Section. According to the respondent Brigadier K.S.Bharucha was the person  

aggrieved and the period of three years shall commence from the date when  

commission of offence by the respondent came to his knowledge on May 17,  

1993 when Lt.  Col.  P.  Oomen submitted his  report  to  Mr.  Bharucha.  The  

contention  of  the  Union  of  India  is  that  in  terms  of  Army  Act,  Mr.  

K.S.Bharucha was neither the person aggrieved nor authority competent to  

initiate action and therefore the date on which the Lt. Col. P.Oomen submitted  

report  would  not  be  relevant  for  the  purpose  of  determining  the  question  

whether the trial commenced against the respondent was time barred. The  

term “the  person  aggrieved  by  the  offence”  would  be attracted  to  natural  

persons i.e. human beings who are victims of an offence complained of, such  

as offences relating to a person or property and not to juristic persons like an  

organisation as in the present case. The plain and dictionary meaning of the  

term “aggrieved” means hurt, angry, upset, wronged, maltreated, persecuted,  

victimised etc. 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 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  

Government organisation,  it  will  be the date of  knowledge of the authority  

competent to initiate the action, which will determine the question of limitation.  

Therefore, the finding of the High Court that Brigadier K.S.Bharucha was an  

aggrieved person is legally and factually incorrect and unsustainable. Further,  

neither  Brigadier  Mr.  K.S.Bharucha,  nor  Major  General  BS  Suhag  were  

competent  to  initiate  action  against  the  respondent  because  the  term

“competent  to  initiate  action”  refers  to  the competency  of  the  authority  to  

initiate  or  direct  disciplinary  action  against  any  person  subject  to  the  

provisions of the Army Act. When an offence or misconduct is alleged to have  

been committed by a person subject to the Army Act, then the Officer in chain  

of command is required to take action for investigation of the charges and trial  

by court martial as per Section 1 Chapter V of the Army Rules or order Court  

of  Inquiry  and  subsequently  finalise  the  Court  of  Inquiry  under  Section  2  

Chapter VI of the Army Rules. These powers are vested in the officers in  

chain of command. Those powers are not vested with staff Officers. Since the  

respondent was commanding 4 RPD, his next officer in command was GOC,  

Delhi Area and the power to take disciplinary action was vested with him in  

terms  of  para  16(a)(i)  of  the  Defence  Service  Regulations,  read  with  the  

Command  and  Control  instructions  dated  January  1,  1991  issued  by  the  

Headquarter Western Command. Therefore, Brigadier K.S.Bharucha had only  

technical  control  of  4RPD and  had  therefore  recommended  to  his  higher  

authority to close down the case but himself had not taken a decision to close  

down the case or to continue the case against the respondent. The power to  

initiate action in terms of Section 122(1)(b) of the Army Act was only with  

GOC Delhi Area who is next superior authority in chain of command. The  

record shows that even the power to convene a Court of Inquiry was available  

only with GOC Delhi Area and GOC-in-C Westernc ommand since they are  

the authorities in command of body of troops and the power to convene a  

Court of Inquiry in terms of Army Rule 177 is vested only with an Officer in  

command of body of troops. The facts of the present case establish that the  

Technical Court of Inquiry was convened by DDST Headquarter Delhi Area  

on January  8,  1994 which recommended examination  of  certain  essential  

witnesses  for  bringing  into  light  the  correct  details  and  the  persons  

responsible for the irregularities by a Staff Court of Inquiry and accordingly  

the Staff Court of Inquiry was ordered on May 7, 1994 by GOC-in-C Western  

Command which concluded in its report dated August 31, 1994, mentioning

for the first time the involvement of the respondent in the offence. The GOC  

Delhi  Area i.e.  the next  Authority  in chain of  command to the respondent  

recommended on October 19, 1994 initiation of disciplinary action against the  

respondent  whereas the GOC-in-C Western Command gave directions on  

December  3,  1994,  to  initiate  disciplinary  action  against  the  respondent.  

Therefore,  the  date  of  commencement  of  the  period  of  limitation  for  the  

purpose of GCM of the respondent, commenced on December 3, 1994 when  

direction was given by GOCin-C Western Command to initiate disciplinary  

action against the respondent. The plea that the date of submission of the  

report by Technical Court of Inquiry should be treated as the date from which  

period of limitation shall commence has no substance. It is relevant to notice  

that  no  definite  conclusion  about  the  correct  details  and  the  persons  

responsible for the irregularities were mentioned in the report of  Technical  

Court of Inquiry. On the facts and in the circumstances of the case, this Court  

is  of  the  view  that  the  High  Court  wrongly  concluded  that  the  period  of  

limitation expired on March 4, 1996. It is relevant to notice that the contents of  

the letter  dated May 27,  1993 written by Brigadier  K.S.Bharucha to Major  

General  ASC Headquarter  Western  Command  do  not  mention  at  all,  the  

respondent as the person who had committed the irregularities except for a  

reference that there had been certain procedural lapses on the part of 4RPD.  

The said letter was addressed by Brigadier K.S.Bharucha apparently with a  

view to closing the case in total disregard to the facts and the circumstances  

emerging  from  the  case.  This  fact  has  been  observed  by  the  GOC-in-C  

Western Command who while giving direction to initiate administrative action  

against Major General K.S.Bharucha ordered initiation of departmental inquiry  

against the respondent. Even the reference to ACR of the respondent written  

by Major  General  Suhag only  mentions  that  the  respondent  had failed  to  

monitor the local purchase of Hygiene and Chemicals but there is no mention  

therein  that  the  respondent  was  himself  responsible  for  the  irregularities  

found to have been committed in the purchase of Hygiene and Chemicals. It

was only  after  the detailed investigation by Staff  Court  of  Inquiry that  the  

irregularities committed by the respondent and his role in the purchase of  

Hygiene and Chemicals came to light. On the facts and in the circumstances  

of the case this Court finds that the period of limitation for the purpose of trial  

of  the respondent commenced on December 3, 1994 when the GOC-in-C  

Western Command being the competent authority directed disciplinary action  

against the respondent in terms of Section 122(1)(b) of the Army Act. The  

period of three years from the direction dated December 3, 1994 would expire  

on December 2, 1997, whereas the GCM commenced the trial against the  

respondent  on  December  17,  1996  which  was  well  within  the  period  of  

limitation  of  three  years.  Therefore  the  impugned  Judgment  is  legally  

unsustainable and will have to be set aside.  

8. For the foregoing reasons it is held that the GCM commenced trial, against  

the respondent within the period of limitation as prescribed by Section  

122(1)(b) of the Army Act. The impugned Judgment is set aside. Appeal  

accordingly stands allowed. There shall be no orders as to cost.