T.A. No. 174 of 2010 Writ Petition Civil No. 7366 of 2003 and T.A. No. 137 of 2010 Writ Petition (Civil) No. 21907 of 2005. Case: Capt. Kulwant Singh Vs Union of India & Ors.. Armed Forces Tribunal
| Case Number | T.A. No. 174 of 2010 Writ Petition Civil No. 7366 of 2003 and T.A. No. 137 of 2010 Writ Petition (Civil) No. 21907 of 2005 |
| Judges | Mr. A.K. Mathur, Chairperson and Lt. Gen. S.S. Dhillon, Member |
| Issue | Army Act, 1950 - Sections 169A, 52(b), 57(a), 63 |
| Judgement Date | September 11, 2012 |
| Court | Armed Forces Tribunal |
Judgment:
S.S. Dhillon, Member, (Principal Bench At New Delhi)
1. T.A. 174 of 2010 has been filed by the Petitioner wherein he seeks quashing of the findings and sentence of the GCM of 31st August 2001, whereby the Petitioner was sentenced to two years' rigorous imprisonment and cashiering. The Petitioner also seeks to be reinstated in service with all consequential benefits. T.A. No. 137 of 2010 has been filed with a view to seek protection from being placed in any kind of custody, as the sentence awarded to the Petitioner had already run out and any further custody after 22nd November 2003 would be illegal. Both these petitions were filed in the Hon'ble Delhi High Court and have been transferred to this Tribunal. Both these petitions have been clubbed together and are being dealt with by a common order. The Petitioner was a Commissioned Officer in the Indian Army and over a short span of ten years of service he had an excellent and outstanding record of service. During his posting in Jammu & Kashmir sector, because of the gallantry and bravery displayed by him in fighting militants, he had been awarded the of 'Sena Medal', which is considered to be a distinguished landmark in the career of an Army Officer and something which is achieved by very few officers. Because of his excellent service profile the Petitioner had been promoted to the rank of a Major.
2. At the time of the incident in 1998, the Petitioner was performing the duties of Adjutant of 312 Field Regiment which was on that point of time located at Allahabad. He was also the imprest, or public money account holder of his Unit, by virtue of which he signed the various cheques for public money which was drawn from the bank. On 7th September 1998, the Petitioner was detailed by his CO to collect an amount of Rs. 26.25 lakhs as salary for disbursement to troops. Accordingly, the Petitioner went to State Bank of India, Cantonment Branch of Allahabad with the cheque which was duly collected by him in the afternoon of 7th September 1998. The salary was to be distributed on 7th and 8th September 1998. After collecting the money from the State Bank, the Petitioner alongwith his army escort went to his house to take lunch since it was already about 2 pm. While the Petitioner was having lunch, to his shock he discovered that an amount of Rs. 10.5 lakhs had been stolen and despite his best efforts he could not trace the money. He immediately informed his Officiating CO Lt. Col., then Major, N.V. Dhas who advised him to arrange for the shortfall of the money within 24 hours otherwise he would have to face serious consequences. It was argued that the Officiating CO also advised the Petitioner not to disclose the loss to anybody else he could land up in trouble. Accordingly the Petitioner contacted his father who was a leading Advocate in Haryana, and his father-in-law who was an Ex-Member of Parliament from Delhi, and his brother to arrange for an amount of Rs. 10.5 lakhs so that he could deposit this money. His family members were able to put together this money and the amount of Rs. 10.5 lakhs was made good within 24 hours. Therefore, on 7th September 1998 he deposited Rs. 15.75 lakhs with his Unit and on 8th September 1998 he deposited Rs. 10.5 lakhs thereby putting the entire amount of Rs. 26.25 lakhs which he had drawn from the bank. Since the pay was scheduled to be distributed on 7th and 8th September 1998 and in actual fact it was distributed on these dates, and the entire amount of Rs. 26.25 lakhs which he had collected had been handed over to the Unit, there was no offence which had been committed, therefore, according to him this chapter was closed. All the officers of the Unit were aware to the developments and extended their whole hearted cooperation and he had made good the shortfall of Rs. 10.5 lakhs.
3. However, since there had been a theft in his house wherein he had suffered loss of money, his brother Shri Hitesh Kumar lodged an FIR on 9th September 1998 wherein 2 persons namely Vivek Kumar Srivastava and Mansoor Khan were named as the persons who had stolen the money. As a consequence, of this FIR they were arrested and subsequently released on bail. However, criminal cases against them are still pending. Since an FIR had been lodged, the matter of this theft became public and was reported by certain newspapers on 12th September 1998. To avoid any controversy, the officers of the Regiment including the Officiating CO, in order to cover up their own negligence, made the Petitioner a scrape goat. After a lapse of almost three years on 3rd July 2001 he was chargesheeted for committing two offences i.e. under Sections 52(b) and 57(a) of the Army Act i.e. dishonestly misappropriating property belonging to the government and in a letter signed by him knowingly making a false statement, and he was tried by a GCM. The charges are as appended below:
CHARGE SHEET
The accused IC-46947N Captain Kulwant Singh Sena Medal, Headquarters 21 Mountain Artillery Brigade, attached Headquarters 4 Artillery Brigade, an officer holding a permanent commission in the regular Army, is charged with:-
| Section 52(b) Army Act, 1950 | Dishonestly misappropriating property belonging to the Government In that he, at Allahabad, on 07 September 1998, having drawn a sum of Rs. 26.25 lakhs (Rupees Twenty Six Lakhs and Twenty Five Thousand only) as imprest money of 312 Field Regiment from State Bank of India, Cantonment Branch, Allahabad, dishonestly misappropriated a sum of Rs. 10.50 lakhs (Rupees Ten Lakhs and Fifty Thousand only) there from, the property belonging to the | ||
| Government. |
|||
| Section 57(a) Army Act, 1950 | In a letter signed by him knowingly making a false statement, In that he, at Allahabad, on 17 September 1998, in letter No. 100801/140/A, dated 17 September 98, addressed to HQ 4 Artillery Brigade (General Staff), in response to a news item appearing in The Times of India, dated 12 September 98 made the following statement therein, well knowing the said statement to be false:- "The news appeared in the Times of India of 12 Sep. 98 is as per the FIR lodged by my brother. It is, therefore, purely a personal matter of my relatives. Self and Army is in no way involved in this case. However adequate steps have been taken to guard the esteem image of the Army." |
||
| Section 63 (Alternate to Second Charge | An act prejudicial to good order and military discipline, In that he, at Allahabad, on 17 September 1998, in letter No. 100801/1/140/A, dated 17 September 98, addressed to HQ 4 Artillery Brigade (General Staff), in response to a news item appearing in The Times of India, dated 12 September 98 made the following statement therein, well knowing the said statement to be false:- "The news appeared in the Times of India of 12 Sep. 98 is as per the FIR lodged by my brother. It is, therefore, purely a personal matter of my relatives. Self and Army is in no way involved in this case. However adequate steps have been taken to guard the esteem image of the Army." |
||
4. Learned Counsel for the Petitioner argued that there had been non-compliance of Army Rule 37 i.e. before convening the GCM it was mandatory for the convening officer to first satisfy himself that the charges to be tried by the Court are for offences within the meaning of the Act and that the evidence justifies a trial on those charges. In the present case the charge sheet has been signed by the GOC Maj. Gen. Digvijay Pal Singh on 3rd July 2001, whereas the convening order has been signed by the Deputy GOC Maj Gen. M.S. Ruhil on 10th July 2001, therefore in accordance with Army Rule 37 since the convening officer and the officer signing the charge sheet are different, it was mandatory for the officer convening the Court Martial to sign the certificate in accordance with Army Rule 37. Since Army Rule 37 and Regulations for the Army 452(d) were not complied with the entire constitution of the GCM Board is null and void and the findings and sentence so awarded should be set aside. Army Rule 37 is extracted below:
37. Convening of General and District Court Martial-
(1) An officer before convening a general or district court-martial shall first satisfy himself that the charges to be tried by the court are for offences within the meaning of the Act, and that the evidence justifies a trial on those charges, and if not so satisfied, shall order the release of the accused, or refer the case to superior authority.
(2) He shall also satisfy himself that the case is a proper one to be tried by the kind of court-martial which he proposes to convene.
(3) The officer convening a court-martial shall appoint or detail the officers to form the court and, may also appoint, or detail such waiting officers as he thinks expedient. He may also, where he considers the services of an interpreter to be necessary, appoint or detail an interpreter to the court.
(4) The officer convening a court-martial shall furnish to the senior member of the court with the original charge-sheet on which the accused is to be tried and, where no judge-advocate has been appointed, also with a copy of the summary of evidence and the order for the assembly of the court-martial. He shall also send, to all the other members, copies of the charge-sheet and to the judge-advocate when one has been appointed, a copy of the charge-sheet and a copy of the summary of evidence.
5. It was also argued that the Petitioner had not been given a copy of the convening order of the GCM and the names of the Members of the GCM had not been disclosed to him which also tantamounted to non-compliance of Army Rule 37. It was next argued that in terms of Army Rule 28 and 31 the charge sheet and the order for trial must be endorsed and signed by the convening officer. This has not been done in the case of the Petitioner and as such the Petitioner has been tried on a wrong charge. It was next argued that Army Rule 34(3) which deals with a warning to...
To continue reading
Request your trial