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T.A. No. 1288 of 2010 Chandra Bhushan Yadav
AFR RESERVED
ARMED FORCES TRIBUNAL, REGIONAL BENCH, LUCKNOW
COURT NO. 1
(List -A)
T.A. No. 1288 of 2010
Tuesday, this the 18th day of April, 2017
Hon’ble Mr. Justice Devi Prasad Singh, Member (J) Hon’ble Air Marshal Anil Chopra, Member (A)
Chandra Bhushan Yadav son of Shri Vikram Rawat , House No. EWS-4801, Awas Vikas -3, Panki, Kalyanpur Road, District Kanpur (U.P.) - Petitioner
Versus
1. Union of India, through the Secretary to Ministry of Defence, Ministry of Defence, Bharat Sarkar, New Delhi.
2. The Chief of the Air Staff, Air Headquarters (Vayu Bhawan) Rafi Marg, New Delhi.
3. Air Officer Commanding-in-Chief, Headquarters, Maintenance Command, Vayu Sena Nagar, Nagpur.
4. Air Commodore JS Apte, Air Officer Commanding, 402 Air Force Station, Chakeri, Kanpur.
5. Wing Commander MC Singhal, The Presiding Officer, Court of Inquiry, 402 Air Force Station, Chakeri, Kanpur.
6. Wing Commander R Govind, Assistant Provost Marshal, 4 Provost & Security Unit, Air Force, Chakeri, Kanpur.
7. Corporal Mani GS, Equipment Assistance 7 Air Force Hospital, Chakeri, Kanpur.
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T.A. No. 1288 of 2010 Chandra Bhushan Yadav
8. Sqn Ldr RP Singh, Deputy Comd, Judge Advocate, HQ, Maintenance Command, Nagpur.
9. Flt Lt AK Awasthi, HQ, 402 AF Station, Chakeri, Kanpur.
10.AOC, 402 AF Station, Chakeri, Kanpur.
- Respondents
Learned counsel appeared - Shri M.S. Yadav, Advocate for the applicant Learned counsel appeared - Shri Md Zafar Khan, Advocate, for the respondents assisted by Wg Cdr Sardul Singh,
OIC Legal Cell
ORDER
Per Hon’ble Mr. Justice Devi Prasad Singh, Member (J)
1. Being aggrieved with the impugned order of discharge,
petitioner preferred a writ petition, bearing No. 55395 of 2003 in the
High Court of Judicature at Allahabad, which has been transferred to
present Tribunal in pursuance to power conferred by Section 34 of
the Armed Forces Tribunal Act, 2007, now registered as T.A. No.
1288 of 2010.
2. We have heard learned counsel for the petitioner Shri M.S.
Yadav and learned counsel for the respondents Shri Md Zafar Khan,
assisted by Wg Cdr Sardul Singh, OIC Legal Cell and perused the
record.
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T.A. No. 1288 of 2010 Chandra Bhushan Yadav
3. Petitioner was enrolled in the Indian Air Force in the Trade of
Equipment Assistant on 18.01.1988 and later on in August, 1997 he
was posted to 402 Air Force Station, Kanpur. On 02.02.2000 he was
assigned duty in diesel and petrol store. The controversy in question
in brief as borne out from record begins from 02.05.2000 when
representative of 7 AFH, Corporal GS Mani was delivered 2,400 litres
kerosene oil, though without gate pass for the reason that kerosene
oil store is situated out of Technical Area. It is alleged that Corporal
GS Mani demanded 1400 litres of diesel. According to the petitioner a
fresh voucher was raised by Corporal GS Mani for 2400 litres of
kerosene oil and 1400 litres of diesel, which was duly approved by
Warrant Officer Incharge POL Group, SK Singh. Required paper was
signed by petitioner while issuing the kerosene and diesel, which was
duly acknowledged by Corporal GS Mani. He also signed in the Store
Out Book (SOB) Exhibit-AX2, acknowledging the receipt of 2400 litres
of kerosene and 1400 litres of diesel. It is alleged by the petitioner
that four copies of issue vouchers for kerosene oil were destroyed out
of six and two copies (red and blue), which were in possession of
Corporal GS Mani, could not be destroyed. Gate pass was issued for
1400 litres of diesel and 2400 litres of kerosene oil, which were
booked out by Corporal GS Mani from Guard Room A. Later on
Corporal GS Mani was charged with the allegations that he had
drawn 7 barrels of diesel in civil area.
4. It was on 03.05.2000 at about 08.00 hrs 4 Provost in Security
Unit got a tip of two Airman, one of dark complexion and other of
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T.A. No. 1288 of 2010 Chandra Bhushan Yadav
normal complexion, offloaded some barrels at about 14.00 hrs on
02.05.2000 at Pappu Ka Plot, situated in civil area. The informer also
informed that similar theft was committed on 20.04.2000. Assistant
Provost Marshal (APM) went to Senior Logistic Officer (SLO) raising
complaint against the petitioner that he was involved in selling POL
items in civil area. On SLO‘s direction the store under the charge of
the petitioner was checked by Logistics Adjutant and one Corporal
but no deficiency was found. However, a Junior Warrant Officer
Bajwa from P&S Unit went to Pappu Ka Plot and recovered 8 empty
barrels, smelling diesel and kerosene oil.
5. Subject to aforesaid backdrop on 04.05.2000 an identification
parade was conducted in 4 P&S Unit. Corporal GS Mani was
identified by one civilian. Corporal GS Mani is a man of dark
complexion. Thus, it was only GS Mani, who was identified by civilian
in the alleged involvement of selling of diesel/kerosene oil. No effort
was made to find out second man of normal complexion. The report
of identification parade has been filed as Annexure No.3 to the T.A.
The pleading as contained in Para- 7 of the petition has not been
disputed in the counter affidavit under Para-20 with remark that it
requires no comment. Thus, it appears that only Cpl GS Mani was
found to be involved in the racket in accordance to the test
identification parade.
6. It has been pleaded in T.A. under Paras-8, 9, 10 and onwards
that the petitioner was called at 09.00 hrs on 05.05.2000 at P&S Unit
where Wg Cdr R Govind persuaded him for confessional statement
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T.A. No. 1288 of 2010 Chandra Bhushan Yadav
or to sign a blank paper. According to the petitioner when he refused
to concede the demand, respondent no.6 commanded Cpl TB Sarkar
and others to confine him in a room, striped off his uniform, started
beating him with ‗Danda‘ and fist and later on dragged him out and
left in scorching sunlight. While the petitioner was facing this tragic
situation, one Corporal Pandey tried to help him by calling Station
Medic Centre (SMC) but no one turned up to provide medical
treatment. Consequently he informed petitioner‘s parent who
reached there at about 18.00 hrs and admitted him in civil hospital.
Petitioner‘s father lodged an FIR at PS Chakeri, Kanpur but it was not
recorded. After first aid, he was taken to SMC where Wing
Commander RN Pandey, Medical Officer treated the petitioner and
exempted him from duty.
7. After medical examination the Medical Officer prepared an
injury report and sent it to Station Commander in terms of Para
1340(g) of Regulations for AF and Para 183 of Regulations for
Medical Services. Since under the influence of Station Commander,
Police had not registered an FIR, petitioner filed an application under
Section 156(3) of Criminal Procedure Code on 11.05.2000 against
Wing Commander R Govind and others in the Court of CMM Kanpur,
who called for report and later on directed for registration of FIR at
the Police Station concerned. This part of pleading in Paras 8 and 9
of the T.A. has not been denied with reason in Paras 21, 22 and 23
of the counter affidavit. With regard to pleading of Para-9 of the T.A.
only reply given in Para-22 is that the averments contained therein
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T.A. No. 1288 of 2010 Chandra Bhushan Yadav
need no comments from the answering respondents. It means that
the petitioner suffered injury, no medical aid was provided during day
hours and Wing Commander RN Pandey, Medical Officer treated
him, exempted from duty, raised an injury report and forwarded it to
the Station Commander in terms of Para 1340(g) of Regulation for AF
and Para 183 of Regulations for Medical Services and on being not
attended or heard, petitioner further filed a complaint under Section
156(3) Cr. P.C. on 11.05.2000.
8. It has also been stated that Wing Commander R Govind in
collusion with Corporal Mani fabricated the records with unused Gate
pass, created forged evidence and submitted a false report against
the petitioner and used these as Exhibits Q and R during trial. The
false report, based on alleged fabricated record dated 10.05.2000
was relied upon by respondents no.2, 3 & 4 for further action. It has
been alleged by the respondent no.6 that 6200 litres of DHPP and
400 litres of petrol were misappropriated from 402 AF Station and 7
AF Hospital. The corpus-delicti was the subject matter of two Units.
Allegations were raised in spite of the fact that there was no loss or
discrepancy or deficiency in stock of 7 AF Hospital nor in the stock of
SLO, 402 AF Station. Whole stock was complete in itself without any
deficiency but even then convening order dated 16.05.2000 was
issued (Annexure No.4) with regard to alleged loss of diesel and
petrol. Interestingly, averments contained in Para-12 that there was
no deficiency in the stock of diesel and petrol, have not been disputed
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T.A. No. 1288 of 2010 Chandra Bhushan Yadav
while giving reply in Para-24 of the counter affidavit with remark of no
comments.
9. It is alleged that Wing Commander R Govind changed the
mode and direction of inquiry and made it exclusively pertaining to
402 AF Station and accordingly vide SRO No. 57/2000 dated
16.05.2000 Court of Inquiry was convened. The relevant portion of
term of reference as contained in Annexure No.4 to the petition in
view of order dated 16.05.2000 is as under :-
―1. To investigate into the matter of
misappropriation of approximately 6200 ltrs DHPP (N),
400 ltr Petrol and 100 ltr of K‘ oil belonging to Logistic
section of 402 AF Station.‖
10. It is submitted that the Court of Inquiry proceeded with bias
against the petitioner and he was not given opportunity to be present
throughout the inquiry, watch demeanor and cross examine the
witnesses whose evidences in his opinion were affecting his
character and service reputation. Neither the documents were
produced in petitioner‘s presence nor he was allowed to cross
examine the witnesses in accordance with Rule 156(2) of Air Force
Rules and the provisions contained in Para-790 of the Regulations for
Air Force were not followed. The Court of Inquiry suppressed
identification parade dated 04.05.2000 (supra) and testimonies of
civilians Ramu and Umesh, Sgt Vaidya, NC (E) Nanhe Lal and
others. It has been pleaded in Para-16 of T.A. that the Guard Room
records indicate that the quantity booked-out at Guard-Room is in the
agreement with quantity shown in Gate-pass and POL items have
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T.A. No. 1288 of 2010 Chandra Bhushan Yadav
gone out without covering vouchers on Gate-pass for the excess
quantity of POL products as shown in the Gate- pass and Guard-
Room records.
11. It is vehemently argued that Para- 791 of the Regulation for Air
Force has not been complied with while recording finding to ensure
that such findings are supported by evidence. It is categorically stated
in Para- 18 of T.A. that nothing had gone out of POL Group belonging
to the petitioner without proper covering voucher. Interestingly, the
pleadings contained in Para-12 to 18 of the T.A. have not been
denied with categorical averments as is evident from Para-24 of the
counter affidavit and the only remark in it is of no comments.
Accordingly, the pleadings with regard to holding Court of Inquiry in
Paras-8 to 20 seem to be genuine and may be relied upon.
12. The finding recorded by the Court of Inquiry dated 31.05.2000
has been filed as Annexure No. 5 to T.A. and for convenience same
is reproduced as under :-
“ Confidential FINDINGS
The COI having assembled on 20 May 2000 and subsequent days to investigate the misappropriation of POL items found the followings:-
(a) The following items have been misappropriated by Cpl Yadav CB (witness No. 3) and Cpl Mani GS (witness No 4) of 402 Stn and 7 AFH respectively.
(i) DHPP-5800 Ltrs.
(ii) Petrol-200 Ltrs. (b) This act was accomplished by raising gate passes for quantity more than authorized by issue vouchers and obtaining SLO’s signature and issuing the same for taking
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T.A. No. 1288 of 2010 Chandra Bhushan Yadav
out these items from Guard Room. A second set of vouchers was prepared to support gate pass, if needed and destroyed it later, after safe passage.
(c) Items mentioned at Para 1 (a) were made surplus by Group i/c POL Store (402 Stn) with a malafide intention for wrongful gain.
(d) Witness No 5 (Cpl Singh S MTD) of 7 AFH) has helped in taking out these items in his vehicle and obtained monitory gains.
(e) Witness No 6 (NCE R Hasan) and witness No 7 (NCE Rajendra Prasad) both of 7 AFH, has also helped this act by concealing the facts and not disclosed to admin authorities.
(f) Misappropriated items have been disposed of in civil.
(g) WO i/c POL, WO SK Singh has failed to perform his duties out responsibilities properly. However, his direct involvement in misappropriation is not seen. (h) 7 AFH is dependent on 402 Stn, the nodal agency, for POL. Sd/- x x x (MC Singhal) Wg Cdr
31 May 2000 Presiding Officer Sd/- x x x x (BK Sinha) Flt Lt Member
Confidential”
13. A plain reading of the finding recorded by the Court of Inquiry
shows that the petitioner was not permitted to participate in the Court
of Inquiry though statement of Sqn Ldr JK Chakraborty, who
appeared as witness no.1 tarnished petitioner‘s reputation in the Air
Force.
14. It has been alleged that since the proceeding of the Court of
Inquiry was sent to Head Quarters by the Commanding Officer with
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T.A. No. 1288 of 2010 Chandra Bhushan Yadav
remark that the evidence is too weak to stand, hence the trial by
Court Martial not only against the petitioner but also against Cpl GS
Mani is outcome of imagination and surmises. In response to it, Head
Quarters Maintenance Command by letter dated 24.11.2000
(Annexure C.A.2) suggested for severe disciplinary action against the
petitioner under Section 82 of the Air Force Act, after completion of
disciplinary proceedings against the petitioner. The copy of
instructions issued by the Head Quarters, Maintenance Command
has been filed as Annexure No.C.A.2 to the counter affidavit. For
convenience the order dated 24.11.2000 as contained in Annexure
No.C.A.2 is reproduced as under :-
“CONFIDENTIAL
Tele: 526011/2223 HQ Maintenance Command Indian Air Force Vayu Sena Nagar Nagpur-440007
MC/C 5023/1/7/P1 24 Nov 2000
MISAPPROPRIATION/MAKING AWAY OF POL PRODUCTS BY 726592-A CPL YADAV CB EQ/ASST IN
CONNIVANCE WITH OTHERS
1. Reference is made to your letter No 402 Stn/C 2811/1077/P1 dated 26 Jul 2000.
2. The proceedings of C of I have been approved by the AOC-in-C. The following course of action is suggested:-
(a) Severe disciplinary action be initiated against 726592 Cpl Yadav CB Eq/Asst.
(b) Disciplinary action against 702670 Cpl Mani GS Eq/Asst, 721703 Cpl Singh S MTD, 803991 NC(E), Prasad R Lascar and 804195 NC (E) Hasan
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T.A. No. 1288 of 2010 Chandra Bhushan Yadav
R Lascar may be initiated u/s 82 of AF Act, 1950 after completion of disciplinary proceedings against Cpl Yadav CB.
3. Proceedings of Court of Inquiry (in original) enclosed for your further necessary action.
Sd/- x x x (Rakesh Srivastava) Wg Cdr O i/c Pl For SAASO
Encl : As stated. CONFIDENTIAL”
15. In pursuance to instructions issued by the Head Quarter,
Maintenance Command i.e. higher forum, Commanding Officer heard
the case on 19.12.2000 under Rule 24 of the Air Force Rules for 14
charges and directed it to be reduced in writing vide Annexure No. 28
to T.A. However, no reason has been assigned by the Commanding
Officer. In pursuance thereof summary of evidence (SOE) was held
between 21.12.2000 to 03.02.2001. DCM Commanding Officer
reduced the charges from 14 to 9, vide Annexure-29 to T.A. The
convening authority further dropped the charges and added 4 new
charges while convening DCM, vide Annexure No. 30 to T.A. For
convenience the charge-sheet is reproduced as under :-
―CHARGE SHEET
The accused No.1, 726592-A Cpl Yadav CB of 402 AF Station an airman of the regular Air Force, is charged with:-
First Charge COMMITTING CRIMINAL BREACH OF TRUST IN RESPECT OF section 52 (c) PROPERTY BELONGING TO THE GOVT Air Force Act,
1950 In that he,
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T.A. No. 1288 of 2010 Chandra Bhushan Yadav
At 402 AF Station, on 28 Feb 2000, being the NCO i/c POL, stores of 402 AF Station, and in that capacity entrusted with POL stores of the unit , dishonestly misappropriated 400 lrts of DHPP(N) by raising IAFF(Q) 429 No.EX/IV/P/182 (99-2000) for 400ltrs of Petrol 87 MT, but physically issuing to 702670 –K Cpl Mani GS Eqpt Asst of 7 AF Hospital 800 ltrs of DHPP(N) and 400 ltrs of Petrol 87 MT.
Second Charge COMMITTING CRIMINAL BREACH OF TRUST IN RESPECT OF
Section 52(c) PROPERTY BELONGING TO THE GOVT. Air Force Act, 1950
In that he,
At 402 AF Station, on 14 March 2000, being the NCO i/c POL, stores of 402 AF Station and in that capacity entrusted with POL stores of the unit , dishonestly misappropriated 400 lrts of DHPP(N) by raising IAFF(Q) 429 No.EX/IV/P/189 (99-2000) for 800 ltrs of DHPP (N) and 3100 ltrs of Kerosene oil, but physically issuing to 702670 –K Cpl Mani GS Eqpt Asst of 7 AF Hospital 1200 ltrs of DHPP(N) and 3000 ltrs of Kerosene.
Third Charge COMMITTING CRIMINAL BREACH OF TRUST IN RESPECT OF
Section 52(c) PROPERTY BELONGING TO THE GOVT Air Force Act, 1950
In that he,
At 402 AF Station, on 23 Mar 2000, being the NCO i/c POL, stores of 402 AF Station and in that capacity entrusted with POL stores of the unit , dishonestly misappropriated 1000 lrts of DHPP(N) by issuing to 702670-K K Cpl Mani GS Eqpt Asst of 7 AF Hospital without having raised supporting IAFF(Q) 429 voucher.
Fourth Charge COMMITTING CRIMINAL BREACH OF TRUST IN RESPECT OF
Section 52 (c) PROPERTY BELONGING TO THE GOVT Air Force Act, 1950
In that he,
At 402 AF Station, on 07 April 2000,being the NCO i/c POL, stores of 402 AF Station and in that capacity entrusted with POL stores of the unit , dishonestly misappropriated 1200 lrts of DHPP(N) and 200 ltrs of Petrol 87 MT by raising IAFF(Q) 429 No.EX/IV/P/04 (2000-2001) for 400 ltrs of DHPP (N) and 2400 ltrs of Kerosene oil, but physically issuing to representative of 7 AF Hospital 1600 ltrs of
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T.A. No. 1288 of 2010 Chandra Bhushan Yadav
DHPP(N) and 200 ltrs of Petrol and 2400 ltrs of Kerosene oil.
Fifth Charge COMMITTING CRIMINAL BREACH OF TRUST IN RESPECT OF
Section 52 (c) PROPERTY BELONGING TO THE GOVT Air Force Act, 1950
In that he,
At 402 AF Station, on 20 April 2000,being the NCO i/c POL, stores of 402 AF Station and in that capacity entrusted with POL stores of the unit, dishonestly misappropriated 1400 lrts of DHPP(N), by raising IAFF(Q) 429 No.EX/IV/P/10 (2000-2001) for 200 ltrs of Petrol 87 MT 800 ltrs of DHPP (N), but physically issuing 702670-K Cpl Mani GS Eqpt Asst of 7 AF Hospital 200 ltrs of Petrol 87 MT, 2200 ltrs DHPP(N) and nil Kerosene oil quantity, by writing quantity 200 ltrs of Petrol 87 MT, 800 Ltrs of DHPP(N) and 1400 ltrs of Kerosene Oil on gate pass No. 3129 dated 29 April 2000.
Sixth Charge COMMITTING CRIMINAL BREACH OF TRUST IN RESPECT OF
Section 52 (c) PROPERTY BELONGING TO THE GOVT Air Force Act, 1950
In that he,
At 402 AF Station, on 02 May 2000,being the NCO i/c POL, stores of 402 AF Station and in that capacity entrusted with POL stores of the unit, dishonestly misappropriated 1400 lrts of DHPP(N), by making use of two sets of IAFF(Q) 429 bearing same serial No.EX/IV/P/16 (2000-2001) for a single transaction of issue of POL to 7 AF Hospital first set ( receipted blue ) showing issue of 2400 ltrs of Kerosene oil only and second set ( original black ) showing issue of 2400 ltrs of kerosene oil and 1400 ltrs of DHPP (N), and physically issuing to 702670-K Cpl Mani GS Eqpt Asst of 7 AF Hospital as per second set and gate pass No. 3131 dated 02 May 2000.
-Sd- Place: Kanpur (JS Apte) Air Cmde Date: 14 August 2001 Commanding Officer 402 A F Stn TO BE TRIED BY JOINT DISTRICT COURT MARTIAL -Sd- Place: Nagpur (AK Gurtu)
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T.A. No. 1288 of 2010 Chandra Bhushan Yadav
Group Captain Senior personnel Staff Officer Date: 18 August 2001 for Air Officer Commanding-in-Chief Maintence Command, IAF ‖. From the charges quoted above, we fail to understand as to
how the convening authority added four new charges while convening
the District Court Martial proceedings.
16. The DCM commenced on 27.08.2001 and concluded on
25.10.2001 with the finding that the petitioner is guilty of charges
No.1, 2, 5 and 6 and not guilty of charges No.3 and 4. The DCM
sentenced the petitioner to suffer three months‘ RI with reduction in
rank and dismissal from service.
17. Before confirmation of the sentence by confirming authority,
petitioner was put in Air Force Cell on 25.10.2001 itself in
contravention of Regulation 646 of Regulations of Air Force. The
confirming authority could not find any evidence for two charges i.e.
charges no.1 and 2 and remitted back unexpired portion of
imprisonment. Being aggrieved with the impugned order of
punishment petitioner submitted a statutory complaint under Section
161 (2) of Air Force Act, 1954 in June, 2002 and April, 2002 against
the impugned order of dismissal. During pendency of statutory
complaint, petitioner filed Writ Petition No.55395 of 2003 in the High
Court of Allahabad to quash the finding and sentence recorded by
DCM on 25.10.2001. However, High Court directed to dispose of the
representation, directing the competent authority to decide the
statutory complaint of the petitioner in accordance with law, which
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T.A. No. 1288 of 2010 Chandra Bhushan Yadav
later on was rejected being devoid of merit. The impugned order
dated 02.09.2003 has been filed as Annexure No.32 to T.A., which is
being reproduced hereunder in its totality :-
―No.Air HQ/C.23405/3597/PS/1393/DS(Air.III)/2003
Government of India Ministry of Defence New Delhi, the 02nd September, 2003
Ex-Cpl Yadav CB E. W.S.4801, Awas Vikas -3 Panki Kalyanpur Road Kanpur – 208017 Subject :- PETITION UNDER SECTION 161 (2) OF AF Act, 1950
I am directed to refer to your petition dated 19 April, 2002 and
application dated 28 January, 2002, submitted to the Secretary,
Ministry of Defence against the Findings and Sentence of District
Court Martial held at 402 AF Stn on 27 August, 2001 and subsequent
days.
2. The petition has been considered by the Central Government
alongwith relevant records and the same has been rejected being
devoid of merit.
Sd-
(Gurdial Singh)
Deputy Secretary to the Government of India‖
18. A plain reading of the impugned order shows that the petitioner
had submitted a complaint on 28.01.2002, followed by petition dated
19.04.2002 with regard to finding and sentence of District Court
Martial dated 27.08.2001. The petition was rejected by passing a
cryptic and unreasoned order (supra).
19. The learned counsel for the petitioner Shri M.S. Yadav while
assailing the impugned order of punishment submitted that the Court
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T.A. No. 1288 of 2010 Chandra Bhushan Yadav
of Inquiry was not held in accordance with Para- 786 of the
Regulations for the Air Force read with Rule 156(2) of Air Force
Rules, Para 790 (a),(b) and (c) of the Regulations of Air Force. The
material civilian witness, like Ramu and Sgt Vaidya, JWO Bajwa,
who recovered the empty barrels were not examined, which is
patently in violation of Para 786 (a) of the Regulations for the Air
Force. The identification report and APM report were suppressed,
which is also in violation of Para 792(c) of Regulation for Air Force.
Court of Inquiry was held in utter disregard to principles of natural
justice without petitioner‘s participation. It is further submitted that the
proceedings were initiated in contravention of Rule 24 of Air Force
Rules at the instructions of superior authority. The Commanding
Officer himself has not applied mind independently to initiate the
proceedings against the petitioner because of binding instructions
issued by the higher forum as there was no option with Commanding
Officer except to send the case for summary of evidence in terms of
order passed by Head Quarters, Maintenance Command.
20. According to petitioner‘s counsel, petitioner was not provided
the material documents, like charge-sheet, copy of Court of Inquiry in
full, report of identification parade, copy of APM report. All the
charges were based on documents but documents were not
provided. Only particulars of witnesses had been written and not the
entire proceedings in terms of Rule 24 of Air Force Rules. Petitioner
has not been given option to avail opportunity provided by Section 26
of Air Force Act, which confers statutory right. Petitioner‘s application
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T.A. No. 1288 of 2010 Chandra Bhushan Yadav
was forwarded to Air Force Head Quarters, respondents no.2 on
14.06.2001 without any comment in violation of Para- 621(k) of
Regulation for the Air Force. Petitioner‘s statutory complaint has been
rejected without assigning any reason.
21. The convening order has been signed by Staff Officer without
any authority in contravention of Rule 43(4) on 14.08.2001. On the
date of approval of DCM i.e. 17.07.2001, charge-sheet dated
19.02.2001 was before him and not the charge sheet dated
14.08.2001 but the final order was passed referring the charge-sheet
dated 14.08.2001 on the basis of two charge-sheets in violation of
Rule-43(1) of Air Force Rules and Para-732 of Regulations for the Air
Force. The complete proceedings of the Court of Inquiry and
additional inquiry report and list of defending officers were not given
in violation of principles of natural justice.
22. Defending Officer was not provided in accordance with
petitioner‘s choice in contravention of Rule 102 of Air Force Rules.
Petitioner was not allowed to rejoin six times in violation of Rule-94 of
Air Force Rules. DCM while recording the finding of guilt has not
recorded any finding as to how he reached to the conclusion of guilt.
23. Petitioner was put in Air Force Cell immediately after
pronouncement of DCM on 25.10.2001 though NCO cannot be put in
Cell as provided in Para-646(a)(ii) of Regulations for Air Force.
Petitioner could not have been put to Cell without confirmation of the
punishment as provided under Sections 152 and 164 of AIR Force
Act, 1950 read with Rule 147. Since PW6, PW7 and PW8 all are
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T.A. No. 1288 of 2010 Chandra Bhushan Yadav
accomplice, the evidence led by them is not admissible in view of
illustration (b) to Section 30 of Indian Evidence Act. Otherwise also
the evidence as accomplice may not be relied upon unless supported
by other record. The evidence of PW6 has not been corroborated by
even another accomplice and suffers from major contradictions.
24. On the other hand the learned counsel for the respondents has
vehemently defended the impugned order of punishment and submits
that the petitioner is guilty of commission of theft of Government
property, charges have been proved and no lenient view can be
taken.
Court of Inquiry
25. It has been vehemently argued by petitioner‘s counsel that in
spite of the fact of involvement of petitioner‘s character and service
reputation, copy of the Court of Inquiry was not given and also he
was not permitted to remain present and cross-examine the
witnesses. Attention has been invited to Sub-Rules (2),(6), (7), (8), (9)
and (10) of Rule 156 of Air Force Rules, 1969, for convenience which
are reproduced hereunder :-
―156. Courts of inquiry other than those held under section
107. –
(1) ………
(2) Save in the case of a prisoner of war who is still absent,
whenever any inquiry affects the character or service reputation
of a person subject to the Act, full opportunity must be afforded
to such person of being present throughout the inquiry and of
making any statements and of giving any evidence he may wish
to make or give, and of cross-examining and witness whose
evidence, in his opinion, affects his character or service
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T.A. No. 1288 of 2010 Chandra Bhushan Yadav
reputation, and producing any witnesses in defence of his
character or service reputation.
(6) The proceedings of a court of inquiry, or any confession or
statement or answer to a question made or given at a court of
inquiry, shall not be admissible in evidence against a person
subject to Air Force Law, nor shall any evidence respecting the
proceedings of the court be given against any such person
except upon the trial of such person for wilfully giving false
evidence before that court.
(7) Any person subject to the Act whose character or service
reputation is, in the opinion of the Chief of the Air Staff, affected
by anything in the evidence before or in the report of a court of
inquiry, shall be entitled to a copy of the proceedings of such
court unless the Chief of the Air Staff sees reason to order
otherwise.
(8) Any person subject to the Act who is tried by a Court-
Martial in respect of any matter or thing which has been
reported on by a Court of inquiry shall be entitled to a copy of
the proceedings of such Court, including any report made by
the Court:
Provided that if the Chief of the Air Staff considers that it
is against the interests of the security of the State or friendly
relations with a foreign State to supply a copy of the
proceedings or any part thereof, such person shall not be
furnished with such copy, but in such cases he shall, subject to
suitable precautions as to security, be permitted inspection of
such portions of the proceedings of the Court of inquiry, on the
basis of which the charges, on which he is arraigned before the
Court-Martial, have been framed.
(9) A copy of the proceedings of the Court of inquiry shall be
furnished under sub-rules (7) and (8) on payment for the same
of a sum calculated at the rate of fifty paise for every two
hundred words or part thereof.
(10) A person subject to the Act before he is, under sub-rule
(7) or sub-rule (8), furnished with a copy of the proceedings of
the Court of inquiry or is permitted to inspect any portion of the
proceedings shall be required to render certificate that he is
aware that he may render himself liable to prosecution under
the Official Secrets Act, 1923 (19 of 1923) for any breach of the
provision of the said Act, in relation to such proceedings or
portion thereof.‖
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26. Regulation 790 of Air Force Regulations deals with the Court of
Inquiry, which is reproduced as under :-
― 790. Action when Character, etc. of persons is affected
(a) As soon as it appears to the court that the character or
professional reputation of an officer or airman is affected by the
evidence recorded, or that he is to blame, the affected person is
to be so informed by the court. All the evidence recorded up to
that stage is to be read over to the affected person, and the
court is to explain to the person, if so required by him, how, in
its opinion, it appears that the officer's or airman's character or
professional reputation is adversely affected, or how he
appears to be to blame.
(b) From the time an officer or airman is so informed, in
accordance with sub-para (a) above he has the right to be
present during all the ensuing proceedings, except when the
court is deliberating privately. The fact that an officer or airman
to whom this para applies is or is not present will be recorded in
the proceedings.
(c) The affected officer or airman may, if he so desires,
cross-examine any witness whose evidence was recorded prior
to the action taken under sub-para (a) above. He may, likewise,
cross-examine subsequent witnesses after their statements
have been recorded. He may also request the court to record
the evidence of any witness in his defence. The officer or
airman may make any statement in his defence.
(d) In case the officer or airman affected cannot, for any
reason be present to exercise his privilege under sub-paras (a),
(b) and (c) above, the court is to inform him by letter (or
otherwise as may be convenient) of the reasons why, in the
opinion of the court, his character or professional reputation
appears to be affected, or he appears to be to blame. The
affected person may make a statement in writing in denial,
exculpation, or explanation. This statement is to be attached to
the proceedings, and the court is to endeavour, by examining or
recalling witnesses, to accord, to the affected person, such
protection as is intended in sub paras (a), (b) and (c) above.
(e) If, after recording all the evidence, and after taking such
action under sub-paras (a) to (d) above as may be called for in
the circumstances the court is of the opinion that an officer or
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airman is to blame, or that his character or professional
reputation, is affected, the entire proceedings are to be shown
to the affected person, and he is to be asked whether he
desires any further statement to make. Any such statement is to
be recorded, and fresh points are to be fully investigated by the
court.
(f) The findings, and recommendations, if called for, of the
court may then be made in accordance with the terms of
reference.
(g) An officer or airman to whom sub-para (a), (b), (c) or (d)
applies does not have the right to demand that the evidence be
taken on oath or affirmation, or, except so far as the assembling
authority or the court may permit, to be represented by a
solicitor or other agent.
(h) If the assembling authority attributes blame to an officer
or, an airman other than the officer or airman held to blame by
the court, or attributes blame in a way substantially different
from that of the court, the proceedings will be returned to the
presiding officer of the court (without any endorsement on the
proceedings) by the assembling authority together with a
statement from the assembling authority as to why that
authority considers that blame should be attributed to such
officer or airman or in a way substantially different from that of
the court. This statement will form part of the court of inquiry
proceedings. The court of inquiry will be reconvened and the
court will show to the affected person the entire proceedings
and statement of the assembling authority. The court will then
obtain from the person any statement that he may wish to make
and record the evidence of any witnesses he may wish to call in
cross-examination or of any fresh witnesses. When complete,
the proceedings will be forwarded to the assembling authority
together with any additional findings and or recommendations
that the court may wish to record. The assembling authority will
endorse its remarks on the proceedings only after completion of
action under this para.
(j) If blame is attributed by any authority higher than the
assembling authority to an officer or airman other than the
officer or airman held to blame by the court or the assembling
authority, the proceedings will be returned to the assembling
authority together with such authority's statement for action as
per sub para (h). The concerned higher authority will endorse
its remarks on the proceedings, only after the proceedings are
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received back from the assembling authority after completion of
action. When forwarding the proceedings to higher authority
after taking action under this para, the assembling authority or
any other intermediary authority may append remarks on any
additional findings recommendations made.
(k) The same court which originally investigated the particular
occurrence will, as far as possible, be reconvened for purposes
of sub-paras (h) and (j). A fresh court is to be assembled only in
exceptional circumstances.‖
27. Hon‘ble the Supreme Court while considering the right of the
accused to be present during the course of inquiry, has specifically
held that in case the character or military reputation is affected of the
charged officer, then he or she shall be permitted to remain present
during recording of evidence and will also be permitted to cross-
examine the witnesses and lead evidence in defence, vide 1997(9)
SCC 1 Maj Gen Indrajit Kumar vs. Union of India, 1991 (2) SCC 382
Maj G.S. Sodhi vs. Union of India and 1982 (3) SCC 14 Lt Col Prithivi
Pal Singh Bedi vs. Union of India. Their Lordships of the Hon‘ble
Supreme Court held that Court of Inquiry or other similar proceedings
are statutory for collecting evidence.
28. In the case of Maj G.S. Sodhi (supra) it was held that in case
there is violation of mandatory rule (supra), the benefit of same shall
be given to the delinquent. For convenience Paras-22, 25, 26 from
the judgment of Maj G.S. Sodhi are reproduced as under :-
22. The next submission is in respect of the alleged unfair
manner in which the general court-martial was conducted. It is
submitted that the witnesses cited as D.Ws were examined as
PWs. However, according to the petitioner Maj. B.N.
Lawerence, Capt. R. Choudhury and Capt. Pranvir Singh gave
false evidence and the Judge advocate failed in his duties.
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According to the petitioner when his Kurta was torn Maj. B.N.
Lawerence, Lt. Col. Sukhdev Singh and Capt. R. Choudhury
were present. It is also his submission that S.S. Bisht, Maj. B.N.
Lawerence and Capt. Gandhi denied having seen the
petitioner's head hitting Capt. Shukla's face and that this aspect
has not been taken into consideration by the general court-
martial. It must be noted that under Rule 77(1) "it is the duty of
the prosecutor to assist the court in the administration of justice,
to behave impartially, to bring the whole of the transaction
before the court, and not to take any unfair advantage of, or
suppress any evidence in favour of the accused." On perusal of
record it would be seen that the witnesses were examined only
from the point of view of bringing the whole transaction before
the court. Therefore, there cannot be any grievance against
examination as prosecution witnesses of the persons
requisitioned as defence witnesses. Coming to the version of
the witnesses examined we cannot re-appreciate the evidence
and that is not the scope of this Writ Petition, in any event all
the necessary evidence have been brought on record and the
defence has cross-examined the witnesses effectively and it
cannot be said that there is no evidence against the accused.
Therefore, it was for the GCM to arrive at a conclusion on the
basis of the evidence. The next submission is that there is
discrimination in award of punishment. It is submitted that Maj.
S.C. Mehra tried in a similar offence was awarded "severe
reprimand" and in the case of Maj. Sen Verma only loss of six
month seniority was awarded. We see no merit in the
submission. It is for the general court-martial to decide as to
what sentence should be awarded in the given circumstances
of the case. We are unable to hold that the sentence awarded
is wholly disproportionate. The further submission is that the
findings of the general court-martial have not been confirmed
as required under the rules. Section 154 of the Act deals with
this aspect and lays down that the findings and sentence cf
general court-martial may be confirmed by the Central
Government or by an Officer empowered in this behalf by
warrant of the Central Government. As per Section 156 such a
warrant issued under Section 154 by the Central Government
may contain restrictions, reservations or conditions as the
Central Government may deem fit. It is submitted that the
alleged confirmation was on 18th August, 1989. On 19th
August, 1989, 5 Power of Attorney copies were asked from the
petitioner and on 26th" August, 1989 the petitioner is
purportedly dismissed from service without any promulgation.
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The submission is that the powers so conferred should be by
way of notification and until so notified the powers cannot be
exercised. Therefore the alleged confirmation is defective.
25. The petitioner has also contended that he submitted a
petition under Section 154(1) of the Act and the same was not
disposed of before confirmation. As per this section any person
aggrieved by findings of any general court-martial can present a
petition to the Central Government or the Chief of Army Staff or
any prescribed officer. In the instant case, the petition dated 5th
July, 1989 is admittedly received on 14th July, 1989. It is stated
on behalf of the respondents that the same was forwarded to
the Headquarters 9 Infantry Division which in turn forwarded the
same to the Headquarters 11th Corps who further forwarded
the same to the Command Headquarters and while processing
the petition it was observed that the said petition was not
accompanied by power of attorney and the petitioner was
apprised of the same and that in the meantime the Army
Commander confirmed the findings. It is also submitted by the
respondents that the petitioner was apprised of the same and
was advised to submit a petition under Section 164(2) of the
Act. The said provision lays down that any person subject to the
Act, aggrieved by a finding or sentence of any court-martial
which has been confirmed may present a petition to the Central
Government or the Chief of Army Staff or to any prescribed
officer superior in command to the one who confirmed such
findings, as the case may be. We have perused the petition
dated 5th July, 1989. It is a very lengthy one. The main prayer
in the petition is that the petitioner's posting at Dharandhera
may be carried through and that the court-martial proceedings
may be annulled and that guilty be court-martialled. It can
therefore be seen that this petition in substance is a post
confirmation one though dated 5th July, 1989 and the same
cannot vitiate the verdict passed by the court-martial and the
confirmation thereupon even if this petition is not disposed of.
26. Relying on these above-mentioned so-called irregularities
from the point of view of the petitioner, the learned Counsel in a
general way relied on the two judgments of this Court. In Ranjit
Thakur's case it is observed that:
―The procedural safe-guards contemplated in the Act
must be considered in the context of and corresponding
the plenitude of the Summary jurisdiction of the Court
Martial and the severity or the consequences that visit the
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T.A. No. 1288 of 2010 Chandra Bhushan Yadav
person subject to that jurisdiction. The procedural safe-
guards shall be commensurate with the sweep of the
powers.‖
In Capt. Virendra Kumar v. Union of India the termination order
passed in non-compliance of the procedural requirements of
either Rules 15 or 15-A was held to be invalid. We have
examined Rules 15 and 15-A and they deal with a different
situation. In the instant case the general and main complaint is
about the non-observance of certain rules particularly Rules 22
to 25 of the Army Rules. We have already considered this
aspect and we are firmly of the view that there is no flagrant
violation of any of the provisions of the Act and the Rules
dealing with the procedure which has caused prejudice to the
petitioner. For all these reasons, this Writ petition is dismissed.
However, in the circumstances of the case, there will be no
order as to costs. ‖
29. In view of above, since the provisions contained in Sub-Rule
(2) of Rule 156 read with Sub-Rules (6) & (7) of Rule 156 have not
been followed at the face of record the subsequent proceeding as a
follow up action after Court of Inquiry shall be vitiated.
Production of documents
30. Regulation 792(c) of Regulations for Air Force makes it
mandatory for production of material documents, like identification
parade, APM report etc., which appears to have been suppressed
and not brought during the course of inquiry. Regulation 792(c) is
reproduced as under:-
―792(c) The court will attach to the original proceedings all
relevant document produced before the court, including
exhibits, maps, plans, sketches, copies of any standing orders
shown to have been material, and correspondence relating to
the investigation, and police or other reports, copies of such
exhibits will be provided for each copy of the proceedings.‖
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31. It has not been disputed by the respondents while filing the
counter affidavit that identification parade was held to find out the
persons who were seen lifting the barrels from the premises. In the
identification parade only one person, namely, Cpl GS Mani was
found to be involved (Annexure No.3). Non production of documents,
which goes to the root of the allegation, appears to be fatal.
MATERIAL EVIDENCE
32. It has not been disputed by the respondents while filing the
counter affidavit that identification parade was held to find out the
persons who were seen lifting the barrels from the premises. In the
identification parade only one person, namely, Cpl GS Mani was
found to be involved (Annexure No.3) and identified by witness.
33. Further it is not denied that the witnesses who saw lifting the
kerosene/diesel oil barrels were civilian, namely, Ramu and Umesh,
Sgt Vaidya, NC (E) Nanhe Lal and concerned IAF (P) personnel at
Sub-Guard-Room ‗A‘ 7 AF Hospital Gate. Why these persons were
not produced either during Court of Inquiry or during Court Martial
proceedings is not understandable and shakes the trust and
genuineness of the proceedings convened and held against the
petitioner. Non production of material witnesses and material
documents make the trial arbitrary and violative of principles of
natural justice, vide Ramaswamy vs. Muthu {Madras High Court
1976-MAD LJ-1-282} Para-5 and 8, Supreme Court in State of U.P.
vs. Jaggo (1971-AIR(SC)-0-158 and Supreme Court in Ishwar Singh
vs. State of U.P. (AIR 1976 SC 2423), Para-6.
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F.I.R.
34. Allegation of charges against the petitioner is of theft and
misappropriation of kerosene and diesel oil (supra). Para-804(b) of
Regulations for Air Force provides that such incidents should be
reported to the Police through F.I.R. For convenience Para-804(b) is
reproduced as under :-
―A loss which is supposed to be due to theft will be reported at
once to the civil police, when the circumstances warrant the
course of action. In any court of inquiry which may
subsequently be held, evidence will be taken to show the date
on which the loss was so reported.‖
When it was transpired that there are allegations of theft or
misappropriation of material (supra) against the petitioner then in
accordance with the provisions of Para-804(b) of Regulations for Air
Force an FIR should have been lodged. Such slackness or illegality
creates reasonable doubt over the fairness of the respondents to
prosecute the petitioner.
35. Apart from Para-804(b) of the Air Force Regulations (supra),
Section 154 of Cr.P.C. makes it mandatory to register an F.I.R. in
case a cognizable offence is made out. Section 154 of Cr.P.C. is
reproduced as under :-
―154. Information in cognizable cases.- (1) Every information
relating to the commission of a cognizable offence, if given
orally to an officer in charge of a police station, shall be reduced
to writing by him or under his direction, and be read over to the
informant; and every such information, whether given in writing
or reduced to writing as aforesaid, shall be signed by the
person giving it, and the substance thereof shall be entered in a
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book to be kept by such officer in such form as the State
Government may prescribe in this behalf.
36. Hon‘ble Supreme Court in a case reported in 1972 (4) SCC 773
Sheikh Hasib alias Tabarak vs State of Bihar held that the principal
object of the first information report from the point of view of the
informant is to set the criminal law in motion and from the point of
view of investigating authorities is to obtain information about the
alleged criminal activities so as to take suitable steps for tracing and
bringing to book the guilty party.
37. Their Lordships in the case reported in 1972 (1) SCC page-107
Damodarprasad Chandrikaprasad vs. State of Maharashtra held
that in certain cases the first information report can be used under
Section 32(1) of the Evidence Act as to informer‘s conduct.
38. A Constitution Bench of Hon‘ble Supreme Court in a case
reported in (2014) 2 SCC 1 Lalita Kumari vs. Government of Uttar
Pradesh and others held that in case the cognizable office is made
out then in such situation the registration of F.I.R. is mandatory. For
convenience Para-119 from the judgment of Lalita Kumari (supra) is
reproduced as under :-
―119. Therefore, in view of various counterclaims
regarding registration or non- registration, what is necessary is
only that the information given to the police must disclose the
commission of a cognizable offence. In such a situation,
registration of an FIR is mandatory. However, if no cognizable
offence is made out in the information given, then the FIR need
not be registered immediately and perhaps the police can
conduct a sort of preliminary verification or inquiry for the
limited purpose of ascertaining as to whether a cognizable
offence has been committed. But, if the information given
clearly mentions the commission of a cognizable offence, there
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T.A. No. 1288 of 2010 Chandra Bhushan Yadav
is no other option but to register an FIR forthwith. Other
considerations are not relevant at the stage of registration of
FIR, such as, whether the information is falsely given, whether
the information is genuine, whether the information is credible,
etc. These are the issues that have to be verified during the
investigation of the FIR. At the stage of registration of FIR, what
is to be seen is merely whether the information given ex facie
discloses the commission of a cognizable offence. If after
investigation, the information given is found to be false, there is
always an option to prosecute the complainant for filing a false
FIR.‖
39. In the case of Lalita Kumari (supra) Hon‘ble Supreme Court in
Para- 120 concluded with their finding with regard to registration of
F.I.R. and variety of cases dealing with different circumstances. For
convenience Para-120 to 120.8 are reproduced as under :-
―120. In view of the aforesaid discussion, we hold :
120.1 The registration of FIR is mandatory under Section
154 of the Code, if the information discloses commission of
a cognizable offence and no preliminary inquiry is permissible
in such a situation.
120.2 If the information received does not disclose a
cognizable offence but indicates the necessity for an inquiry, a
preliminary inquiry may be conducted only to ascertain whether
cognizable offence is disclosed or not.
120.3 If the inquiry discloses the commission of a
cognizable offence, the FIR must be registered. In cases whee
preliminary inquiry ends in closing the complaint, a copy of the
entry of such closure must be supplied to the first informant
forthwith and not later than one week. It must disclose reasons
in brief for closing the complaint and not proceeding further.
120.4 The police officer cannot avoid his duty of
registering offence if cognizable offence is disclosed. Action
must be taken against erring officers who do not register the
FIR if information received by him discloses a cognizable
offence.
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120.5 The scope of preliminary inquiry is not to verify the
veracity or otherwise of the information received but only to
ascertain whether the information reveals any cognizable
offence.
120.6 As to what type and in which cases preliminary
inquiry is to be conducted will depend on the facts and
circumstances of each case. The category of cases in which
preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/latches in initiating
criminal prosecution, for example, over 3 months' delay in
reporting the matter without satisfactorily explaining the reasons
for delay.
The aforesaid are only illustrations and not exhaustive of all
conditions which may warrant preliminary inquiry.
120.7 While ensuring and protecting the rights of the
accused and the complainant, a preliminary inquiry should be
made time- bound and in any case it should not exceed 7 days.
The fact of such delay and the causes of it must be reflected in
the General Diary entry.
120.8 Since the General Diary/Station Diary/Daily Diary is
the record of all information received in a police station, we
direct that all information relating to cognizable offences,
whether resulting in registration of FIR or leading to an inquiry,
must be mandatorily and meticulously reflected in the said diary
and the decision to conduct a preliminary inquiry must also be
reflected, as mentioned above."
40. The judgment of Lalita Kumari (supra) has been reiterated by
Hon‘ble Supreme Court in a case reported in (2015) 6 SCC 287
Priyanka Srivastava and another vs. State of U.P. It was a case
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where ambit of Section 156(3) Cr.P.C. was considered by Hon‘ble
Supreme Court, reiterating the principles flowing from the judgment
of Lalita Kumari (supra).
41. In a recent judgment reported in (2017) 2 SCC 779 State of
Telangana vs. Habib Abdullah Jeelani and others Hon‘ble
Supreme Court reiterated and followed the Constitution Bench
judgment of Lalita Kumari (supra) and held as under :-
―6. Having stated what lies within the domain of the
investigating agency, it is essential to refer to the Constitution
Bench decision in Lalita Kumari v. Government of Uttar
Pradesh and Ors[2]. The question that arose for consideration
before the Constitution Bench was whether "a police officer is
bound to register a first information report upon receiving any
information relating to commission of a cognizable offence
under Section 154 CrPC or the police officer has the power to
conduct a 'preliminary inquiry' in order to test the veracity of
such information before registering the same"?
While interpreting Section 154 CrPC, the Court
addressing itself to various facets opined that Section 154(1)
CrPC admits of no other construction but the literal
construction. Thereafter it referred to the legislative intent of
Section 154 which has been elaborated in State of Haryana
and Ors. v. Bhajan Lal and Ors.[3] and various other
authorities. Eventually the larger Bench opined that
reasonableness or credibility of the information is not a
condition precedent for the registration of a case. Thereafter
there was advertence to the concept of preliminary inquiry. In
that context, the Court opined thus:-
"103. It means that the number of FIRs not registered is
approximately equivalent to the number of FIRs actually
registered. Keeping in view the NCRB figures that show that
about 60 lakh cognizable offences were registered in India
during the year 2012, the burking of crime may itself be in the
range of about 60 lakhs every year. Thus, it is seen that such a
large number of FIRs are not registered every year, which is a
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T.A. No. 1288 of 2010 Chandra Bhushan Yadav
clear violation of the rights of the victims of such a large number
of crimes.
104. Burking of crime leads to dilution of the rule of law in
the short run; and also has a very negative impact on the rule of
law in the long run since people stop having respect for the rule
of law. Thus, non- registration of such a large number of FIRs
leads to a definite lawlessness in the society.
105. Therefore, reading Section 154 in any other form
would not only be detrimental to the scheme of the Code but
also to the society as a whole. It is thus seen that this Court has
repeatedly held in various decided cases that registration of FIR
is mandatory if the information given to the police under Section
154 of the Code discloses the commission of a cognizable
offence."
42. While dealing with the question with regard to misuse of the
provision, Hon‘ble the Supreme Court again reiterated Lalita Kumari
(supra) and observed as under :-
―7. While dealing with the likelihood of misuse of the
provision, the Court ruled thus:-
"114. It is true that a delicate balance has to be
maintained between the interest of the society and protecting
the liberty of an individual. As already discussed above, there
are already sufficient safeguards provided in the Code which
duly protect the liberty of an individual in case of registration of
false FIR. At the same time, Section 154 was drafted keeping in
mind the interest of the victim and the society. Therefore, we
are of the cogent view that mandatory registration of FIRs
under Section 154 of the Code will not be in contravention of
Article 21 of the Constitution as purported by various counsel."
43. Subject to aforesaid observations in the case of Habib
Abdullah Jeelani (supra) Hon‘ble Supreme Court has also
considered the exceptions given in Lalita Kumari and some of its
earlier judgments. It shall be appropriate to reproduce the same as
under :-
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―8. The exceptions that were carved out in Lalita Kumari
case 3 pertain to medical negligence cases as has been stated
in Jacob Mathew v. State of Punjab5. The Court also referred to
the authorities in P. Sirajuddin v. State of Madras6 and CBI v.
Tapan Kumar Singh7 and finally held that what is necessary is
only that the information given to the police must disclose the
commission of a cognizable offence. In such a situation,
registration of an FIR is mandatory. However, if no cognizable
offence is made out in the information given, then the FIR need
not be registered immediately and perhaps the police can
conduct a sort of preliminary verification or inquiry for the
limited purpose of ascertaining as to whether a cognizable
offence has been committed. But, if the information given
clearly mentions the commission of a cognizable offence, there
is no other option but to register an FIR forthwith. Other
considerations are not relevant at the stage of registration of
FIR, such as, whether the information is falsely given, whether
the information is genuine, whether the information is credible,
etc. At the stage of registration of FIR, what is to be seen is
merely whether the information given ex facie discloses the
commission of a cognizable offence.
9. Be it noted, certain directions were issued by the
Constitution Bench, which we think, are apt to be extracted:-
"120.5. The scope of preliminary inquiry is not to verify the
veracity or otherwise of the information received but only to
ascertain whether the information reveals any cognizable
offence.
120.6. As to what type and in which cases preliminary
inquiry is to be conducted will depend on the facts and
circumstances of each case. The category of cases in which
preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in
initiating criminal prosecution, for example, over 3 months'
delay in reporting the matter without satisfactorily explaining the
reasons for delay.
The aforesaid are only illustrations and not exhaustive of all
conditions which may warrant preliminary inquiry.
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120.7. While ensuring and protecting the rights of the
accused and the complainant, a preliminary inquiry should be
made time-bound and in any case it should not exceed 7 days.
The fact of such delay and the causes of it must be reflected in
the General Diary entry.
120.8. Since the General Diary/Station Diary/Daily Diary
is the record of all information received in a police station, we
direct that all information relating to cognizable offences,
whether resulting in registration of FIR or leading to an inquiry,
must be mandatorily and meticulously reflected in the said diary
and the decision to conduct a preliminary inquiry must also be
reflected, as mentioned above."
44. Thus, the only exception given to withhold the registration
of first information report relates to matrimonial/family disputes,
commercial offences, medical negligence cases, corruption
cases and cases where there is abnormal delay/laches in
initiating criminal prosecution i.e. 3 months’ delay or over in
reporting the matter without satisfactorily explaining the
reasons for delay and with other cases having reasonable
explanation and justified circumstances.
In the cases referred to herein above, as a matter of
exception in view of Habib Abdullah Jeelani’s case (supra), the
preliminary inquiry should be done in time bound frame and in
any cases it should not exceed 7 days and causes of delay must
be explained in the General Diary and in the event of Army in its
proceedings. It means, a court of inquiry must be conducted in
7 days, if required, to lodge an F.I.R.
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Abuse of power
45. Lodging of first information report may not be abused against
the innocent hence in Habib Abdullah Jeelani (supra) Hon‘ble
Supreme Court discussed the remedy. The relevant Paras 11,12 and
13 from the aforesaid judgment are reproduced as under :-
―11. Once an FIR is registered, the accused persons can
always approach the High Court under Section 482 CrPC or
under Article 226 of the Constitution for quashing of the FIR. In
Bhajan Lal (State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC
335) the two-Judge Bench after referring to Hazari Lal Gupta v.
Rameshwar Prasad [(1972) 1 SCC 452], Jehan Singh v. Delhi
Administration [(1974) 4 SCC 522], Amar Nath v. State of
Haryana [(1977) 4 SCC 137], Kurukshetra University v. State of
Haryana, [(1977) 4 SCC 451], State of Bihar v. J.A.C. Saldanha
[(1980) 1 SCC 554], State of West Bengal v. Swapan Kumar
Guha [(1982) 1 SCC 561], Nagawwa v. Veeranna
Shivalingappa Konjalgi [(1976) 3 SCC 736], Madhavrao
Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1
SCC 692], State of Bihar v. Murad Ali Khan [(1988) 4 SCC 655]
and some other authorities that had dealt with the contours of
exercise of inherent powers of the High Court, thought it
appropriate to mention certain category of cases by way of
illustration wherein the extraordinary power under Article 226 of
the Constitution or inherent power under Section 482 Cr.P.C.
could be exercised either to prevent abuse of the process of
any court or otherwise to secure the ends of justice. The Court
also observed that it may not be possible to lay down any
precise, clearly defined and sufficiently channelized and
inflexible guidelines or rigid formulae and to give an exhaustive
list of myriad cases wherein such power should be exercised.
12. The illustrations given by the Court need to be
recapitulated: [State of Haryana v. Bhajan Lal, 1992 Supp (1)
SCC 335, SCC pp.378-79, para 102)-
―(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their face
value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the accused.
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(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do not
disclose a cognizable offence, justifying an investigation by
police officers under Section 156(1) of the Code except under
an order of a Magistrate within the purview of Section 155(2) of
the Code.
(3) Where the uncontroverted allegations made in the FIR
or complaint and the evidence collected in support of the same
do not disclose the commission of any offence and make out a
case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer without
an order of a Magistrate as contemplated under Section 155(2)
of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis of which
no prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act (under which
a criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific
provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to private and
personal grudge.‖
It is worthy to note that the Court has clarified that the said
parameters or guidelines are not exhaustive but only illustrative.
Nevertheless, it throws light on the circumstances and
situations where court‘s inherent power can be exercised.
13. There can be no dispute over the proposition that
inherent power in a matter of quashment of FIR has to be
exercised sparingly and with caution and when and only when
such exercise is justified by the test specifically laid down in the
provision itself. There is no denial of the fact that the power
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under Section 482 CrPC is very wide but it needs no special
emphasis to state that conferment of wide power requires the
court to be more cautious. It casts an onerous and more diligent
duty on the Court.‖
46. Right from Lalita Kumari (supra) to Habib Abdullah Jeelani,
Hon‘ble Supreme Court has not carved out any exception, like
incident or crime committed in the Armed Forces. Accordingly, the
judgment of the Apex Court is binding on the Members of Armed
Forces also in view of Article 141 of the Constitution of India. It shall
be appropriate for Armed Forces to take note of these developments
in law while dealing its subject matters.
47. Section 379 read with 409 of the Indian Penal Code is
cognizable offence under First Schedule of Code of Criminal
Procedure, hence in view of provisions contained in Regulations for
Air Force (supra) read with 154 of Cr.P.C., it was incumbent on the
appropriate authority to lodge the first information report, being
mandatory (supra).
Interference by higher authorities
48. It is vehemently argued and pressed that under Air Force Rule-
24 only Commanding Officer is competent to decide as to whether
the Air Force should proceed against an incumbent or not and
independent application of mind is necessary. For convenience Rule-
24 of Air Force Rules is reproduced as under :-
― 24. Disposal of the charge of adjournment for taking down the summary of evidence. -
(1) Every charge against a person subject to the Act shall be heard in the presence of the accused. The accused shall have full liberty to cross-examine any
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witness against him, and to call any witnesses and made any statement in his defence.
(2) The commanding officer shall dismiss a charge brought before him if, in his opinion, the evidence does not show that some offence under the Act has been committed, and may do so if, in his discretion, he thinks the charge ought not to be proceeded with.
(3) At the conclusion of the hearing of a charge, if the commanding officer is of opinion that the charge ought to be proceeded with, he shall, without unnecessary delay, either: -
(a) Dispose of the case summarily; or
(b) Refer the case to the proper superior air force
Authority for sanction under section 83; or
(c) Adjourn the case for the purpose of having the
evidence reduced to writing.
(4) Where the case is adjourned for the purpose of having the evidence reduced to writing, at the adjourned hearing the evidence of the witnesses who were present and gave evidence before the commanding officer, whether against or for the accused, and of any other person whose evidence appears to be relevant shall be taken down in writing in the presence and hearing of the accused before the commanding officer or such officer as he directs.
(5) The accused may put questions in cross-examination to any witness, and the questions with the answers shall be added in writing to the evidence taken down.
(6) The evidence of each witness when taken down, as provided in sub-rules (4) and (5), shall be read over to him, and shall be signed by him, or if he cannot write his name, shall be attested by his mark and witnessed. Any statement of the accused material to his defence shall be added in writing and read over to him.
(7) The evidence of the witnesses and the statement, if any,of the accused shall be recorded in the English
language. If the witness or accused, as the case may be, does not understand English the evidence or statement; as recorded; shall be interpreted to him in a language which he understands.
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(8) If a person cannot be compelled to attend as a witness, or if owning to the exigencies of service or any other grounds (including the expense and loss of time involved), the attendance of any witness cannot, in the opinion of the commanding officer or the officer taking the summary (to be certified in writing by the commanding officer or such officer), be readily procured, a written statement of his evidence purporting to be signed by him may be read to the accused and included in the summary of evidence.
(9) (a) Any witness who is not subject to the air force
law may be summoned to attend by order under
the hand of the commanding officer of the
accused. The summons shall be in Form C. I as
provided in the Third Schedule.
(b) The summons shall be in Form ―C-I‖ as provided
in the Third Schedule.‖
49. A plain reading of the aforesaid rule shows that every charge
shall be heard in the presence of accused and will have full liberty to
cross-examine witnesses and to call any witnesses and make any
statement in his defence. It is the Commanding Officer who has been
conferred the jurisdiction to dismiss the charge brought before him or
proceed ahead.
50. In the present case at the face of record the Commanding
Officer seems to have not applied his mind. In pursuance to report
the decision to proceed against the petitioner on the basis of
evidence and material on record was taken by Rakesh Srivastava,
Wing Commander on behalf of SAASO. No decision has been taken
by Commanding Officer with a finding to proceed against the
petitioner, after recording satisfaction. A power conferred by Act or
Statute may be exercised by same officer or authority to whom such
power has been conferred. The right of Commanding Officer to take a
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decision by his independent mind cannot be delegated in writing or
impliedly unless the Statute permits so. No option was left over to the
Commanding Officer to take contrary decision than the order dated
24.11.2000 (supra) passed by the Head Quarter, Maintenance
Command, except to charge the petitioner.
Hearing of charges
51. The submission of petitioner‘s counsel that before hearing of
charges under Rule- 24 (supra), the copy of material documents, like
charge sheet, copy of Court of Inquiry in full, copy of identification
parade and copy of APM report were not provided hence framing of
charges is hit by Article 14 of the Constitution of India, being violative
of principles of natural justice.
52. During the course of trial on behalf of the prosecution 10
witnesses appeared, namely, witness no.1 Cpl MK Sharma, witness
no.2 Sgt L Singh, witness no.3 WO SK Singh, witness no.4 Wg Cdr
JK Chakravary, witness no.5 Flt Lt Arvind Kumar, witness no.6 Cpl
GS Mani, witness no.7 Cpl S Singh, witness no.8 NC(E) Hasan R
Lascar , witness no.9 NC(E) Rajendra Prasad Lascar and witness
no.10 Sahab Dayal Lascar .
53. On behalf of defence (petitioner) 3 witnesses appeared,
namely, defence witness no.1 Flt Lt SM Moorthi, defence witness
no.2 WO PS Bajwa and defence witness no.3 Sgt Shakya PK. One
witness was got examined under Section 143 of the Air Force Act,
1950, namely, Flt Lt KC Biswas.
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54. During the trial number of documents were exhibited and a list
of exhibits was also prepared, in column no.2 of which particulars of
exhibits were noted. Some of the Annexures attached with the Court
Martial Proceedings are medical fitness certificate of Cpl CB Yadav
(Annexure No.1), summary of evidence of Cpl CB Yadav (Annexure
No.2), medical fitness certificate of Cpl GS Mani. The summary of
evidence was recorded from 21st December, 2000 to 03rd February,
2001. During course of arguments attention has not been invited by
the learned counsel for the petitioner with regard to any irregularity
and evidence, hence same need not be discussed elaborately.
55. The proceeding of the District Court Martial, in short DCM,
begins on 27.08.2001 in pursuance to order of Air Marshal SS Gupta,
ADC Air Officer Commanding–In-Chief, Maintenance Command,
Indian Air Force dated 18.08.2001. It continued for some time and
concluded with finding of sentence on 07.10.2001.
56. A perusal of the DCM proceedings shows that number of
objections were raised by the accused at the beginning of trial and
finding has been recorded thereon. Learned counsel for the petitioner
argued that the convening order was not passed by the competent
authority, hence subsequent trial becomes bad. The second objection
raised by the accused/ petitioner was that DCM may not continue on
account of pendency of ROG application dated 30th March, 24th April
and 24th July, 2001. Being not satisfied with the disposal given by HQ
MC, petitioner requested to forward his ROG applications dated 30th
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March, 24th April and 24th July, 2001 to next higher authority but no
response was received.
Convening Order
57. So far as convening order is concerned, from the material on
record it appears that the convening order has been signed by Group
Captain AK Gurtu, SPSO, Head Quarters MC IAF though according
to the petitioner ‗s counsel the convening authority in terms of Section
111 of Air Force Act, 1950 is AOC –in-C Maintenance Command,
Indian Air Force. This plea against the convening authority was
rejected by the DCM with its finding, which is reproduced as under :-
―The issue relating to signing of convening order has
been explicitly dealt with under rule 43(4) of the AF Rule, 1969
(rule 43(4) read and explained). As per this sub-rule convening
order of the Court Martial and endorsement on the charge
sheet for trial of the accused by Court Martial may either be
signed by the convening officer or by staff officer on his behalf.
In view of the above provisions of the AF Rules it is for
the consideration of the Court whether or not the order
convening the District Court Martial is properly signed and the
Court has jurisdiction to try the accused.
The Court may now sit in close court to consider its
decision.‖
The Court is closed to consider its decision.
The Court considers submission of the Accused No.1, reply by the Prosecutor and advice of Judge Advocate and overrules the plea.‖
58. It may be noted that the convening order was passed for joint
trial of two persons, namely, petitioner and Cpl GS Mani but later on,
on objection raised by the petitioner, the Court (DCM) decided to try
the petitioner separately. However, convening order refers to both the
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accused. For convenience convening order dated 18.08.2001,Exhibit
‗ G‘ is reproduced as under :-
―ORDERS BY AIR MARSHALL SS GUPTA, PVSM,AVSM,VSM,ADC AIR OFFICER COMMANDING-IN-CHIEF, MAINTENANCE COMMAND
Nagpur 18 August 2001
726592A Cpl Yadav CB Eq Asst of 402 AF Stn And 702670K Cpl Mani GS Eq Asst of 7 AF Hospital attached To 402 AF Stn
The detail of officers as mentioned below will assemble at 402 AF Stn at 1000 hrs on the twenty seventh day of August, 2001 for the purpose of trying by a Joint District Court Martial, the accused persons named in the margin.
The senior offi cer to sit as Presiding Officer. MEMBERS Wg Cdr SS Sandhu (13713) AE(L) - 3 BRD, AF Sqn Ldr DV Shukla (16450) Lgs - 7 BRD, AF Sqn Ldr BN Kanaujia(19759) AE(L) - AMSE WAITING MEMBER One Wg Cdr/Sqn Ldr is to be de tailed by AOC, 402 AF Stn as waiting member. JUDGE ADVO CATE Sqn Ldr RP Singh (19474) Adm/Lgl of HQ MC, IAF is appointed Judge Advocate. PROSECUTOR Flt Lt AK Awasthi (21685) Adm of 402 AF Stn is appointed Prosecutor. The accused will be warned, and all witnesses duly required, to attend.
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The proceedings, (original and four copies) will be forwarded to HQ MC, IAF in a confidential cover marked for personal attention of ―Senior Personnel Staff Officer.‖
Signed this Eighteenth day of August 2001
Sd/- ( AK Gurtu ) Group Captain Senior Personnel Staff Officer For Air Officer Commanding-in-Chief Maintenance Command, IAF ‖
59. A plain reading of the convening order shows that it has been
signed by AK Gurtu, Group Captain SPSO, Head Quarters for Air
Officer, Commanding-In-Chief.
60. While defending the impugned convening order, it has been
submitted by the learned counsel for the respondents that the
competent authority had delegated the power and in any case on the
basis of instructions issued by the competent authority, it could have
been signed by the officer concerned.
Two questions cropped up, firstly, as to whether the power
could have been delegated by AOC-In-Chief, Maintenance
Command, Indian Air Force to Group Captain AK Gurtu, SPSO, Head
Quarters, Maintenance Command, IAF and secondly whether as held
by DCM in view of provisions contained in Rule 43(4) of the Air Force
Rules convening order could have been issued by Group Captain
Gurtu.
61. Section 111 of the Air Force Act deals with the authority who
passes the convening order, which refers to Section 110, by which
power has been conferred to appropriate authority to convene GCM.
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For convenience Section 109, which provides different court martials
and section 110 for GCM and also section 111 for DCM are
reproduced as under :-
― 109. Different kinds of courts-martial.—For the purposes of this
Act there shall be three kinds of courts-martial, that is to say,—
(a) general courts-martial;
(b) district courts-martial; and
(c) summary general courts-martial.
110. Power to convene a general court-martial.—A general
court-martial may be convened by the Central Government
or [the Chief of the Air Staff or by any officer empowered in this
behalf by warrant of the Chief of the Air Staff.
111. Power to convene a district court-martial.—A district court-
martial may be convened by an officer having power to
convene a general court-martial, or by any officer empowered
in this behalf by warrant of any such officer.‖
62. A plain reading of the aforesaid statutory provisions, which
have got mandatory force, shows that a convening order may be
passed by the Central Government or the Chief of the Air Staff. The
statutory provision does not empower to delegate the power to other
subordinate authority.
63. Accordingly, the DCM proceedings could have been convened
only by AOC-in- C, Maintenance Command, Indian Air Force and not
by the Group Captain AK Gurtu. Convening order does not show that
some decision was taken at the hands of AOC-in-C, Maintenance
Command, Indian Air Force and the Group Captain Gurtu is only the
communicating authority. Accordingly, it may be safely inferred that
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AOC-in-C, Maintenance Command, Indian Air Force had not
convened the DCM but it was convened by Group Captain AK Gurtu.
Hence all subsequent proceedings proceeded on its basis seem to
have been vitiated because the convening order has been passed by
incompetent person.
64. Now let us consider the second limb of argument advanced by
the learned counsel about finding recorded in DCM proceedings with
regard to Rule 43. For convenience Rule 43 is reproduced as under :-
―43 Convening of general and district court-martial. — 1
(1) An officer before convening a general or district Court-
Martial shall first satisfy himself that the charges to be tried by
the Court-Martial are for offences within the meaning of the Act,
and framed in accordance with law, and that evidence justifies
a trial on those charges he may amend the charges if he deems
fit, and if not so satisfied order 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 description of court-martial 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) After the convening officer has appointed or detailed
the officer to form a Court-Martial under sub-rule (3), convening
order of the Court-Martial and endorsement on the charge-
sheet for trial of the accused by court-martial may either be
signed by convening officer or by a staff officer on his behalf.
The charge sheet on which the accused to be tried, the
summary of evidence and the convening order for assembly of
Court-Martial shall then be sent to the senior officer of Court-
Martial and the Judge Advocate, if appointed.‖
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65. A plain reading of Sub-Rule (1) shows that the convening order
shall first satisfy himself that the charges to be tried by the Court-
Martial are for offences within the meaning of the Act. It is the
convening authority who has got power to amend the charges if he
deem fit and even release the accused, if not satisfied with the
charges against the accused or may refer it to the higher authority.
66. Legislature to their wisdom have used the words ―satisfy
himself that the charges to be tried by Court-Martial‖. Satisfaction
means the convening authority himself satisfy that there exists
substantial probable cause for believing that prima facie charges are
made out to try the accused for court martial, vide (2012) 10 SCC 561
State of Maharashtra v. Vishwanath Maranna Shetty.
67. Hon‘ble Supreme Court in a case reported in AIR 1960 SC 7
C.S.D. Swamy vs. State considered the word ‗satisfactorily‘ and held
that it casts burden on the accused (in the present case convening
authority) to offer a plausible explanation as to how he came to the
conclusion that the charges are made out.
68. The word ‗satisfied‘ has been defined in shorter Oxford
dictionary 3rd Edition as under :-
―The word "satisfied" has been defined in Shorter Oxford English Dictionary (3rd Edn. at p. 1792) :
"4. To furnish with sufficient proof or information, to set free from doubt or uncertainty, to convince; 5. To answer sufficiently (an objection, question); to fulfill or comply with (a request); to solve (a doubt, difficulty); 6. To answer the requirements of (a state of things, hypothesis, etc.); to accord with (conditions)."
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69. In S.R. Bommai vs. Union of India (1994) 3 SCC 1, Hon‘ble
Supreme Court consider the word ‗satisfactorily‘ and relied upon the
meaning given in Oxford Dictionary and held that it is not the personal
whim, wish, view or opinion or the ipse dixit of the authority dehors
the material but a legitimate inference must be drawn from a material
placed before the President, which is relevant for the purpose.
70. The provisions contained in Sub-Rule (1) of Rule 43 requires
that the convening authority must be satisfied and a satisfaction must
be borne out from the record that he has applied his mind. This duty
of the convening authority is further strengthened by Sub-Rule (2) of
Rule 43 (supra), which casts a duty on the convening authority to
decide the description of Court Martial he proposes to convene. As a
follow up action, it is the convening authority who shall detail the
officers to form the court and not any other person.
71. Sub-Rule (4) of Rule 43 has been amended and substituted by
SRO 127 dated 27.07.1995, which provides that the convening
authority after detailing the officers to Court Martial under Sub-Rule
(3) shall make endorsement on the charge-sheet for accused, which
either may be signed by convening authority or by Staff Officer on his
behalf.
72. Thus, the legislature to its wisdom has conferred power only on
the convening authority to pass the convening order and not on the
Staff Officer, of course he can delegate his power to the Staff Officer
to sign the charge-sheet on his behalf.
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73. Thus, the power to pass the convening order falls in exclusive
domain of competent authority under his own signature by application
of his mind in view of mandate contained in Sub-Rules (1) and (2) of
Rule 72. It cannot be delegated for any reason whatsoever in the
absence of enabling provision in this behalf in the Act itself.
74. It is well established that judicial or quasi judicial power
conferred by a statute cannot be delegated except when specifically
permitted, vide AIR 1956 SC 285, Pradyat Kumar vs. Chief Justice
of Calcutta High Court, AIR 1965 SC 1486 Bombay Municipal
Corporation vs. Dhondu, AIR 2000 SC 2008 Skypak Couriers Ltd.
Vs. Tata Chemicals Ltd.
75. The principle against sub-delegation is reasoned from the
maxim ‗delegatus non potest delegare‘ i.e. means a discretion
conferred by statute is prima facie intended to be exercised by the
authority on which the statute conferred it and by no other authority,
vide AIR 1967 SC 295 Barium Chemicals Ltd vs. Company Law
Board.
76. Even discretionary power entrusted by Statute to a particular
authority cannot be further delegated, except as otherwise provided
in the Statute. If any decision is taken by a statutory authority at the
behest or on the suggestion of a person who has no statutory role to
play, the same would be ultra vires. In (2004) 2 SCC Page-65 (at
page 74-75) Bahadursingh Lakhubhai Gohil vs. Jagdishbhai M.
Kamalia their Lordships of Hon‘ble Supreme Court held as under :-
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―24. The impugned order was preceded by a direction of the Home Minister on 7.9.1996. A change in the opinion came into being only upon change in the holder of the office and that too within a few days. Not only had the matter not been admittedly placed on the agenda of the meeting dated 25.7.1997, the same was considered showing undue haste.
25. In S.P. Kapoor (Dr.) v. State of H.P. this Court held that ;when a thing is done in a post-haste manner, mala fide would be presumed, stating : 71 Page 71 of 85
26. It is also well settled that if any decision is taken by a statutory authority at the behest or on the suggestion of a person who has no statutory role to play, the same would be ultra vires. (See Commr. of Police v. Gordhandas Bhanji and Mohinder Singh Gill v. Chief Election Commr.)‖
The aforesaid proposition of law also emerges out from the
judgment of Hon‘ble Supreme Court, reported in AIR 2003 SC 146,
Union of India vs. D.N. Jha.
77. In view of above, the order dated 24.11.2000 (supra) passed by
Head Quarter, Maintenance Command to take severe disciplinary
action against the petitioner and in pursuance thereof action taken by
the competent authority i.e. Commanding Officer to proceed with
DCM without applying own mind and exercising discretion seems to
be an incident suffering from want of jurisdictio9n and it vitiates the
trial in view of provisions contained in Sub –Rule (2) and (3) of Rule
24 of Air Force Rules, 1969, as the Commanding Officer should have
formed the opinion to proceed with the trial by passing convening
order.
78. Sub Rule (3) of Rule 24 of Air Force Rules, 1969 provides that
after hearing of charges, Commanding Officer should form the
opinion that the charges ought to be proceeded with but the letter
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dated 24.11.2000 had taken away the discretion of the Commanding
Officer, provided by Sub Rule (2) and (3) of Rule 24 of Air Force
Rules, 1969, which seems not permissible and hits the very root of
proceedings.
79. In view of above, since under Section 111 the convening
authority has not been conferred power to delegate his own power
with regard to convening of court martial and no finding has been
recorded and material has been placed before the Tribunal that the
convening authority has recorded his satisfaction to convene DCM,
keeping the mandate of Sub-Rules (2) and (3) of Rule 43, the
convening order suffers from the lack of jurisdiction, hence
subsequent DCM proceedings vitiates.
Charge Sheet
80. A perusal of the charge sheet shows that though it has been
signed by the Commanding Officer but the direction for trial by District
Court Martial has been signed by Gp Captain A.K. Gurtu, Senior
Personnel Staff Officer on behalf of Air Officer Commanding-in-Chief.
It shall be appropriate to consider Rules-37 and 38, which deal with
regard to signature on charge-sheet and follow up action. Question
cropped up whether the Staff Officer could have passed an order on
behalf of AOC-in-C for trial by Joint District Court Martial ?.
Provisions contained in Rules 37 and 38 deal with the signature on
the charge sheet. For convenience the same are reproduced as
under :-
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―37. Signature on charge-sheet.—The charge-sheet shall
be signed by the commanding officer of the accused or by the
officer who, in respect of the accused, is an officer empowered
under section 82 to exercise the powers of a commanding
officer, and shall contain the place and date of such signature.
38. Validity of charge-sheet.—
(1) A charge-sheet shall not be invalid by reason only of any
mistake in the name or description of the person charged, if he
does not object to the charge-sheet during the trial, and it is not
shown that injustice has been done to the person charged.
(2) In the construction of a charge-sheet or charge, there shall
be presumed in favour of supporting the same every
proposition which may reasonably be presumed to be impliedly
included though not expressed therein.‖
81. A plain reading of the aforesaid provisions shows that the
charge sheet may be signed by an Officer duly authorized in
pursuance to power conferred by Section 82 of the Air Force Act and
shall not be invalid for the facts and the ground given in Rule
38(supra).
82. Section 82 of the Air Force Act, 1950 deals with the power of
punishment, other than officers and warrant Officers. It confers power
on a Commanding Officer or an officer authorized with the consent of
Central Government. For convenience Section 82 is reproduced as
under :-
―82. Punishment of persons other than officers and
warrant officers.—Subject to the provisions of section 84, a
commanding officer or such other officer as is, with the consent
of the Central Government, specified by 15 [the Chief of the Air
Staff], may, in the prescribed manner, proceed against a person
subject to this Act otherwise than as an officer or warrant officer
who is charged with an offence under this Act and award such
person, to the extent prescribed, one or more of the following
punishments, that is to say,—
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(a) detention up to twenty-eight days;
(b) confinement to the camp up to fourteen days;
(c) extra guards or duties not exceeding three in number;
(d) deprivation of acting rank;
(e) forfeiture of badge pay;
(f) severe reprimand or reprimand;
(g) fine upto fourteen day‘s pay in any one month;
(h) penal deductions under clause (g) of section 92;
(i) admonition;
(j) any prescribed field punishment upto twenty-eight
days, in the case of a person on active service.‖
83. Coming to the facts of the present case, as we have observed
the charge-sheet (page-32) of the DCM proceedings (Exhibit B-2) has
been signed by the Commanding Officer but order for trial (convening
order) by joint District Court Martial has been signed by AK Gurtu,
Group Captain, hence the trial vitiates.
Defence Counsel
84. One of the objections raised by the learned counsel for the
petitioner is that the defence counsel was not given of petitioner‘s
choice. However, objection raised by the petitioner ‘ counsel with
regard to defence counsel seems to be incorrect for the reason that
initially the respondents very fairly provided the service of a defence
counsel from the list submitted by the petitioner and later on agreed
to change him, by providing the service of an Advocate. Respondents
have been fair enough while dealing with the present case, so far
allocation of defence counsel is concerned.
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Evidence
85. PW 1 Cpl MK Sharma has not identified the signatures
appended on the vouchers being not familiar with it.
86. Second witness Sgt L Singh is the Record Keeper in Security
Section, working in Pass Section. He is the person who was in
custody of gate pass and produced the same before the court. He
identified the accused and produced the gate passes. He stated that
he was not aware as to who was responsible for issue of kerosene oil
since he never went for collection of kerosene oil. He also stated that
he is not familiar with the hand writing or signature of persons
working in guard room. Specimen signature of Flt Lt AK Singh given
to guard room was not found to tally with the signatures of the person
taking item as mentioned in gate pass register of guard room.
87. Third witness WO SK Singh appeared for prosecution, who
identified the accused and stated that he was working as WO i/c
POL. He does not seem to have made any statement assailing the
petitioner‘s conduct though he stated that he was responsible to O i/c
POL for receipt, safe custody and issue of POL. He also admits to be
responsible to ensure the position held with Group i/c was in
agreement with SSRC. He also does not remember various dates
and datas with regard to deficiency on particular dates. After perusal
of record he stated that:
―no deficiency was found in POL during the weekly snap checks
from February to May, 2000.‖
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88. One important statement given by this witness is that during
February to May 2000 Cpl VK Yadav was NCO i/c kerosene oil and
the accused was in no way related to issue of kerosene oil. During
that time telephonic demand used to come to NCO i/c POL for issue
of POL. During cross-examination he admitted in summary of
evidence that he stated with regard to transaction of 14 March, 2000
that thereby 400 litres of DHPP(N) was reflected in the gate pass and
in gate pass register.
89. Wg Cdr JK Chakraborty appeared as PW 4, who was posted to
402 AF Station since 15.02.2000 and stated that POL group was
handled by WO SK Singh as WO i/c POL and under him diesel and
petrol was looked after by Cpl CB Yadav. He also stated that Group
i/c is responsible for unauthorized issue of diesel and petrol. He
submits that the accused had handed over charge to Cpl Sidharthan
(page-97). He submits that WO SK Singh was responsible to ensure
correctness of gate passes and he never reported any irregularity in
issuance of gate passes. He further agreed with the defence‘s
suggestion that there was no deficiency of diesel at the time of
handing and taking over of duty by the accused (page-99). He failed
to identify the hand writing of the accused/petitioner.
90. PW 5 Flt Lt Arvind Kumar, who was posted to 402 AF Station
from 14.09.1998 stated that from June 1999 till 14th February, 2000
he was functioning as SLO in absence of Wg Cdr and from
15.02.2000 he functioned as Lgs Offr and looked after LP Section,
POL and Tech Stores. He stated that in POL WO i/c SK Singh was
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WO i/c POL and Cpl CB Yadav was Group i/c POL for petrol and
diesel. He categorically stated that he proceeded on leave some time
in April, 2000 and returned in May, 2000. When he came back after
leave he was informed by SLO that APM had apprehended some
barrels of Air Force in civil area and taken Cpl CB Yadav, the then
Group i/c of POL for interrogation. Thereafter SLO ordered check of
POL. However, on checking of POL no surplus or deficiency was
found (Page 104).
91. PW 6 Cpl GS Mani happens to be co-accused, who was initially
tagged for joint trial but later on separated. He stated that on
14.03.2001 he came to POL store with 19 empty barrels for collection
of 800 litres of diesel and 3000 litres of kerosene oil. He collected 800
litres of diesel and gone to Kerb side pump outside Sub-Guard Room
‗B‘ for kerosene oil. The kerosene oil was filled as per meter reading.
He stated that there was various about dip reading of the barrel and
meter reading of pump which was minimum 10 litres per barrel. It was
supplemented by filling from the pump. The voucher was accordingly
amended to 3100 litres to make it agree with the Kerb side pump
reading (page 116). He stated that he was not having gas pass and
went out through Sub-Guard Room ‗B‘ where POL store was checked
by WO PS Chauhan. On 23.03.2000 he again came to POL store for
kerosene oil collection but without gate pass. On 06.04.2000 the
witness came to POL store of 402 AF Station with 14 empty barrels
for collection of 2400 litres of kerosene. That day also he was not
having gate pass. POL store was checked by WO PS Chauhan. It is
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stated by the witness that on 19.04.2000 he gave a ring to the
accused and told him about requirement of 200 litres of petrol and
800 litres of diesel. He stated that on that day accused came to 7
AFH and requested him to pickup seven empty barrels from civil
area. According to him accused informed him that the barrels were
sent to civil area for repairs. Witness declined the request. On
20.04.2000 accused again came to the section of the witness and
requested to pick up the empty barrels. On this time the witness
accepted the request and requested him to meet him on the way. On
20.04.2000 on the way to 402 AF Station from 7 AFH witness alleged
to see four or five people alongwith the accused at the place called
Pardevanpurwa (page117). Seven empty barrels were loaded with
the help of civilians at POL store. It is alleged that accused requested
to carry back seven barrels filled with diesel in civil area. It is also
alleged that vehicle was permitted to go out after the barrels were
checked by the watchman. The filled up barrels of diesel were off
loaded by the civilians who had loaded the empty barrels at
Pardevanpurwa. Thereafter witness gone to POL where WO PS
Chauhan checked POL as per store vouchers. He stated that similar
request was made on 30.04.2000 but declined by the witness. An
amount of Rs.1500/- was forcibly given to him. On 02.05.2000, on
request made by the accused/ witness again he carried twelve empty
barrels from 7 AFH for collecting 2400 litres of kerosene oil and again
collected seven barrels from same place (supra) and loaded with the
aid of civilians seven empty barrels and thereafter 7 AFH vehicle was
parked in front of POL office at 402 AF Station. Thereafter seven
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empty barrels were off loaded from the vehicle and another seven
barrels with DHPP(N) were loaded. The barrels were counted by the
Watchman and after counting the vehicle was allowed to go out. On
the way of 7 AFH the vehicle was stopped at Pardevanpurwa where
same four-five civilians who loaded the seven empty barrels, off
loaded the seven barrels filled with DHPP(N).
92. During cross-examination PW 6 admitted that he committed
offence while loading and off loading the barrels of diesel (supra).
The witness was contradicted with the statement given by P&S
personnel on 03.05.2000 with the following statement :-
―Defence counsel states that have you stated on 03 May 2000 to P&S personnel that ― On 20 Apr 2000 I collected 200 ltrs of Petrol and 800 ltrs of DHPP(N) from 402 AF Station Lgs Section vide EX/IV/P/10 (2000-2001) ltrs of K‘ Oil vide EX/IV/P/16 (2000-2001). The subject items were collected in the 200ltrs sized barrels and further I say that I was not issued with any gate pass on both the occasions‖
The Witness states he gave this statement. In clarification he states ―I had written whatever was dictated by the P&S personnel. From 03 May 2000 for about four days I was being called daily to P&S Unit and whatever they used to say I wrote in order to escape from manhandling. Subsequently I have not given application to the authorities that I was forced to give statement before the P&S personnel‖
The P&S personnel did not manhandle me. I wrote whatever they stated. ‖
93. However, the statement of PW6 seems to be full of
contradiction and when confronted from his previous statement, he
stated that he made earlier statement to P&S personnel in the state
of confusion, rather he proceeded to say that the accused had not
given him any money on another occasion other than what was paid
on 30.04.2000 (supra). The witness has been confronted from the
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statement given during court of inquiry, which seems to suffer from
major contradiction with regard to payment of cash. The statement of
PW 6, who is co-accused does not seem to be reliable being not
corroborated by other evidence required under Section 133 of the
Evidence Act.
94. PW7 Cpl S Singh was detailed on 20.04.2000 for collection of
POL store. He stated that he was stopped by Cpl GS Mani and
brought to a persons who was in Air Force uniform. He stated that
four or five persons loaded few barrels in his vehicle and came to
POL office of 402 AF Station. From where on the asking of Cpl GS
Mani I took the vehicle at the filling point of MT Section, where he
saw Cpl CB Yadav, who was identified by the witness as accused in
the court. He affirmed the occurrence of loading the barrels at POL at
the behest of Cpl GS Mani. He admits that no action was taken
against him though he loaded barrels and off loaded the empty
barrels. Though he had seen accused C B Yadav at filling point but
so far loading and off loading of diesel barrels with or without consent
is concerned, he stated that he did so on the asking of Cpl GS Mani.
95. PW8 Hasan R Lascar was working in the Medical Ward for
cllection of medicines from Lucknow, collection of POL from 402 AF
Station etc. He stated that on 20.04.2000 under the instruction of Cpl
GS Mani he loaded empty barrels in the vehicle, five at one place and
seven empty barrels at another place. According to PW8 empty
barrels were filled up by Cpl CB Yadav. He stated that he filled up the
barrels by holding the filling nozzle of the pump. After filling up of
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seven barrels, he filled up eleven barrels of diesel and one barrel of
petrol and the vehicle left Guard Room ‗A‘, whereafter it was stopped
near Khalsa School and reached to a place where the seven empty
barrels were loaded. It is stated by him that Cpl Mani was alongwith
the accused when barrels were filled up.
96. PW9 Rajendra Prasad Lascar also reiterated with regard to
loading and off loading of barrels of diesel at Pardevanpurwa and
stated that he empty barrels were filled up at the filling station in the
presence of accused and Cpl GS Mani.
97. PW10 Sahab Dayal was posted at 402 AF Station and working
in POL group of 402 AF Station. He stated that on 02.05.2000
accused Cpl CB Yadav told him to off load seven empty barrels from
the vehicle and load seven filled barrels from the store.
98. From the oral evidence led by the prosecution, there appears to
be filling of diesel from Air Force Station and off loading of the same
in civil area. Petitioner CB Yadav seems to be present at the filling
station whereas Cpl GS Mani seems to be actively managing the
things for transporting of diesel barrels in civil area. Though Cpl Mani
seems to have tried to involve the accused/petitioner as the main
culprit but from the evidence on record it appears that entire
management outside the station was done by Cpl GS Mani and being
accused he shifted the entire burden on the petitioner with regard to
alleged theft of oil. No link seems to have been established with
regard to active collusion of petitioner and GS Mani.
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Defence Witness
99. DW1 Flt Lt SM Moorthi stated that he was posted from April to
June, 2000 at 402 AF Station. He conducted the identification parade
memo, which he produced before the court during the trial. The
memo of identification parade was signed by him. Zerox copy of the
memo was taken on record with the consent of parties during trial. It
has been stated by the defence witness during identification parade
that witness Ramu identified Cpl GS Mani.
100. DW2 WO PS Bajwa was posted from April to May, 2000 at the
strength of No.4 P&S Unit. He has been the investigator and
recovered 8 empty barrels smelling of kerosene oil or diesel.
However, he could not recollect the date of recovery. DW2 recorded
the evidence of witnesses and submitted the copy of gate passes,
copy of SOB and stock register etc. He stated that he admits that on
prosecution query during investigation Cpl GS Mani had accepted his
involvement with accused and other people involved in it. He stated
that he has not mentioned the name of accused in the investigation
report in the last column as his name was not reflected in the gate
pass on records. In the second last column of Analysis Chart the
witness mentioned the name of Cpl GS Mani, who seems to be
involved with other persons and also paid to driver and civilians of
Pappu Ka Hata.
101. The third witness produced on behalf of the accused as DW3
is Sgt PK Shakya, who was posted in 402 AF Station during the
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period in question. He stated that he did not find any deficiency in
diesel, except some permissible deficiency of petrol.
Theft and Misappropriation
102. Petitioner has been charged for theft and misappropriation of
kerosene oil. Theft has been defined under Section 378 of Indian
Penal Code, which reproduced as under :-
―378. Theft.—Whoever, intending to take dishonestly any
moveable property out of the possession of any person without
that person‘s consent, moves that property in order to such
taking, is said to commit theft.
Explanation 1.—A thing so long as it is attached to the
earth, not being movable property, is not the subject of theft;
but it becomes capable of being the subject of theft as soon as
it is severed from the earth.
Explanation 2.—A moving effected by the same act which
affects the severance may be a theft.
Explanation 3.—A person is said to cause a thing to
move by removing an obstacle which prevented it from moving
or by separating it from any other thing, as well as by actually
moving it.
Explanation 4.—A person, who by any means causes an
animal to move, is said to move that animal, and to move
everything which, in consequence of the motion so caused, is
moved by that animal.
Explanation 5.—The consent mentioned in the definition
may be express or implied, and may be given either by the
person in possession, or by any person having for that purpose
authority either express or implied.‖
103. In the present case burden was on the prosecution to establish
that the kerosene and diesel oil were taken out by the petitioner
himself from the depot without lawful right. The evidence on record
attributed mainly to GS Mani and petitioner has been seen at the time
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of filling up in barrel, does not seem to constitute offence of theft.
Respondents should have established that it is the petitioner who had
taken out the diesel and in case the petitioner has not taken out the
diesel/ kerosene oil from depot then he could have been charged for
criminal conspiracy or collusive act with the help of Section 34 of
Indian Penal Code or Section 149 of Indian Penal Code as the case
may be but here it is not the case. No evidence has been brough on
record that the petitioner himself has taken out the diesel or kerosene
oil barrels out of depot. The other charge on the petitioner is of
misappropriate of property. Under Indian Penal Code
misappropriation is punishable under Section 403, which is
reproduced as under :-
―Section 403. Dishonest misappropriation of property.-
Whoever dishonestly misappropriates or converts to his own
use any movable property, shall be punished with imprisonment
of either description for a term which may extend to two years,
or with fine, or with both.
Explanation.1-A dishonest misappropriation for a time
only is a misappropriation with the meaning of this section.
Explanation 2. -A person who finds property not in the
possession of any other person, and takes such property for the
purpose of protecting if for, or of restoring it to, the owner does
not take or misappropriate it dishonestly, and is not guilty of an
offence; but he is guilty of the offence above defined, if the
appropriates it to his own use, when the knows or has the
means of discovering the owner, or before he has used
reasonable means to discover and give notice to the owner and
has kept the property a reasonable time to enable the owner to
claim it.
What are reasonable means or what is a reasonable time
in such a case, is a question of fact.
It is not necessary that the finder should know who is the
owner of the property, or that any particular person is the owner
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of it; it is at the time of appropriating it, he does not believe it to
be his own property, or in good faith believe that the real owner
cannot be found.‖
104. From the reading of the material on record (supra) it does not
seem to be borne out that the petitioner has dishonestly
misappropriated or converted the kerosene oil as well as diesel as of
his own property. No evidence has been led that the petitioner has
sold the oil and after selling the kerosene oil/ diesel the petitioner
enriched himself or received cash of the diesel / kerosene oil while
misappropriating the property.
Finding
105. The ingredients as defined by Indian Penal Code with regard to
offence seem to be missing, which fettered the court martial. In view
of above, we conclude our findings as under :-
(I) In every case where a cognizable offence is made out, it shall
be incumbent on the Members of the Armed Forces to lodge a first
information report in police station, subject to preliminary inquiry/
court of inquiry within a week for specified offences as held by
Hon‘ble Supreme Court (supra), like, matrimonial disputes/family
disputes, commercial offences, medical negligence cases, corruption
cases or where there is abnormal delay/latches in initiating criminal
prosecution of over 3 months but that too shall be subject to
appropriate court of inquiry within a week.
(II) In the present case court martial proceedings has not been
passed in conformity with the mandatory provisions(supra), hence
trial under court martial vitiates, in consequence thereof punishment
awarded to the petitioner is not sustainable and is liable to be set
aside.
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(III) The court martial also fails since the material evidence which
includes non production of memo of identification parade, actual eye
witnesses (civilian), who saw lifting of kerosene oil/ diesel barrels and
other material documents (supra).
(IV) There appears to be no evidence to satisfy the ingredients of
theft as well as misappropriation by the petitioner as defined in Indian
Penal Code, for which the petitioner has been charged.
(V) Since trial held on account of direction issued by higher
authorities and non-application of mind by the Commanding Officer
himself to proceed with the charges keeping in view the statutory
mandate (supra), it seems to vitiate the trial.
(VI) The convening order has not been passed by the competent
officer in compliance of mandatory provisions contained in Sections
110 and 111 of the Indian Air Force Act, which goes to the root of the
matter, hence trial vitiates.
(VII) There is no evidence on record, which may indicate that the
convening authority or commander empowered under rule, has
delegated his power to Staff Officer, empowering him to sign the
convening order. Burden was on the prosecution to come forward
with required material, which has not been done, hence also trial
vitiates.
(VIII) The statement given by the defence witnesses as well as
prosecution witnesses indicates that there was no short fall of
kerosene/ diesel oil in the stock of Air Force. A case has been set up
by the respondents that there was extra diesel and kerosene oil in the
stock available on account of short measurement or otherwise, which
was taken away by the petitioner or others. In case it was so then the
charges should have been framed with relevant material and
evidence to establish this fact but it has not been done, hence the
whole trial vitiates.
106. In view of above, T.A. deserves to be allowed. Keeping in view
that Indian Army/ Air Force and Navy sometime do not lodge F.I.R.
even in cognizable offences, in view of binding judgment of Hon‘ble
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Supreme Court and statutory mandate under Section 154 of
Cr.P.C.(supra), it shall be appropriate that the change of law may be
communicated to all the three Chiefs of the armed forces to do
needful and proceed keeping the observations made in the present
order/ judgment based on law laid down by Supreme Court (supra)
while dealing with the offences in their respective branches.
ORDER
(1) T.A. is allowed accordingly. The impugned orders dated
25.10.2001, passed by District Court Martial, contained in
Annexure No.1, in respect of the petitioner on 27.08.2001 and
subsequent days, finding and recommendation recorded by the
COI on 31.05.2000, contained in Annexure No.5 and charge-
sheet IAFF (P)-13 dated 19.12.2000 and subsequent
proceedings initiated in pursuance thereof as contained in
Annexure No. 28 to the petition and the punishment awarded
thereof are set aside with consequential benefits. Petitioner
shall be deemed to have been in continuous service to the full
of his term of the rank from which he has been dismissed for
the pension and other service benefits. However, the payment
of arrears of salary is confined to 50%.
(2) Let the consequential benefits be provided to the petitioner
within four months from the date of communication of order.
(3) A copy of present judgment/ order shall be sent to the Chief of
the Air Force, Chief of the Army Staff and Chief of Naval Staff
by the Registry within a week to bring in their notice with regard
to change of law and appropriate action thereon.
(4) No order as to costs.
( Air Marshal Anil Chopra) (Justice Devi Prasad Singh) Member (A) Member (J) Dated: April 18,2017
JPT