Ex Hav Bega Ram (Army) vs UOI & Others on 9 September 2025

**ORDER**

**29.11.2024**

In the light of the above mentioned difference in the opinion of the Members of this Bench, the Registry is directed to submit the material on record, at the earliest, to the Hon'ble Chairperson, Armed Forces Tribunal, Principal Bench, New Delhi for taking further necessary action as per the provisions of Section 28 of the Armed Forces Tribunal Act, 2007.


(SANJIV MITTAL) MEMBER (A)

Ssy/-

(Justice Goverdhan Bardhar) Member (J)

**ARMED FORCES TRIBUNAL, REGIONAL BENCH, JAIPUR****S/1.****TA No 24 of 2011 with MA No 172/2024**

**Ex Hav Bega Ram, S/o Shri Bhura Ram, Resident of Village and Post Supka, Tehsil Didwana, District Nagaur, Rajasthan – 341 303**

.... Applicant

Versus

1. 1. UOI, through the Secretary, Ministry of Defence, South Block, Govt of India, New Delhi – 110 011

2. 2. Chief of the Army Staff, COAS Sectt, IHQ of MoD (Army), South Block, DHQ PO, New Delhi – 110 011

3. 3. Lt Col Robin Fernandez, Administrative Battalion Commander, The Maratha Light Infantry Regimental Centre, Belgaum

4. 4. Branch Recruiting Officer, Fort Belgaum

5. 5. The Commanding officer, 8 MADRAS, c/o 56 APO

6. 6. The Station Commander, Station HQ, Belgaum

7. 7. Lt General, General Officer Commanding-in-Chief, Southern Command, Pune – 411 001

..... Respondents

For Applicant

: Mr Amit Ojha, Advocate

For Respondents

: Mr Brij Bhari Sharma, Advocate

**CORAM:****HON'BLE MR. JUSTICE GOVERDHAN BARDHAR, MEMBER (J)****HON'BLE MR. SANJIV MITTAL, MEMBER (A)****O R D E R****29/11/2024**

1. By way of this Application under Article 226 of the Constitution of India, the applicant had initially filed Writ Petition No 23571 of 2009 ((S-DIS) before the Hon'ble High Court of Karnataka at Bangalore (Original Jurisdiction) praying for Issue of a Writ of Certiorari for :-

1. (a) Setting aside the Order dated 10/3/2008 received under letter No 2589280A/BR/Case dated 29/3/2008 received from the Respondent No 3, rejecting the Petitioner (*sic*)/*Petition* on the ground of lack of merit in the Petition, (Annexure A).

(b) Any other direction to the Respondents to consider the application dated 24/4/2008 submitted by the Petitioner to the First and Second Respondent at Annexure 'B'.

(c) Direction to the Respondents to reinstate the Petitioner in service with consequential monetary benefits and restore the pension of the Petitioner since he had already reserved his pension before the trial.

(d) Award adequate compensation to the Petitioner for the illegal punishment and illegal imprisonment in Jail. He has also prayed for calling the entire record of the case of the Petitioner from the 7^th Respondent including complete SCM proceedings alongwith comments of the Judge Advocate General Branch for the kind perusal of this Hon'ble Court.

2. The writ Petition was transferred to Kochi Bench of the Armed Forces Tribunal and was numbered as TA No 192/2010. The applicant, thereafter, submitted an application for transfer of the case to this Tribunal at the Kochi Bench, on the grounds of incurring huge litigation cost and heavy expenses likely to be caused to the applicant to conduct the case there, as the applicant was a resident of Rajasthan. Regional Bench Kochi took up the matter with Principal Bench, Armed Forces Tribunal vide their letter dated 22/12/2010 for appropriate orders by the Hon'ble Chairperson. Eventually the case was transferred to this Bench and was numbered as TA No 24/2011.

3. Facts of the case as enunciated by the applicant and the written submissions made by him are that the applicant was enrolled in the Army on 15/3/1985. After completion of his basic military training, the applicant was posted to Record Office, the Madras Regiment, Wellington. Throughout his service, the applicant had **no red ink entry** and was having Above Average, Outstanding Annual Confidential Reports. From December 1999 to 02/2/2002, the applicant was posted as a Clerk in BRO Belgaum and was assigned the task of Quartermaster Clerk. However, during this period, the applicant was allegedly involved in a false, fabricated, illegal and baseless case of issuing a forged document, ie, a Fake Call letter dated 30/5/2002. The said letter was bearing forged signatures of one Sub Maj and Hon'y Capt Mahaveer Prasad. In this case, the applicant was implicated by two civilians, viz, Smt Chandbi Desai and her accomplice, Shri Mukhtar Ahmed, who are being tried by a local criminal court at JMFC, Shankleshwar. The criminal case was registered against the applicant also by the Yamkanmardi Police Station, Belgaum District in case No 184 of 2002, which is pending for adjudication. During the pendency of the criminal case, the petitioner was called from his Unit, ie, 8 MADRAS, which was located near Dinjan, Assam and was attached for disciplinary purpose on three occasions from 23/12/2002 to 23/3/2003, from Jun 2003 to Aug 2003 and finally from Apr 2006 to 06/9/2007. The fact of the matter is that on 19/8/2002, there was a report submitted in the Police Station Yamkanmardi, District Belgaum by one Shri Babu Ningappa Gadakari of Khanapur, stating that one lady called Smt Chand Bi alias Geeta, wife of Ramjan Desai of M Mallapur Taluk Gogak, cheated him by promising to get his son enrolled in the Army without any interview. It was further alleged by the complainant that the said lady had given xerox copy of a call up letter showing the reporting date as 31/4/2002. On the basis of the said complaint and the material found there was a proper police enquiry into the matter and during search conducted by the Police authorities one fake call letter dated 30/5/2002 was found in the residence of the said Chand Bi and on enquiry just to get out from the clutches of the police, the said culprit told the police authorities in voluntary statement that the said call letter was filled up by the applicant and, thereafter, the petitioner got involved in the case. The police had written a letter to Respondent No 4 on 03/10/2002 to ascertain further details, Annexure C. On 18/10/2002, PSI GM Desur received a letter from Respondent No 4 stating that the petitioner had been posted out on 03/2/2002 to 8 Madras Regiment. Further, PSI Yamkanmardi Police Station sent a requisition vide their letter No 2463/02 dated 21/10/2002 to Respondent No 5 to send the petitioner for interrogation, copy of the letter is annexed at Annexure D. Based on the inputs by the Police authorities, the case was forwarded under covering letter No D/418 dated 23/10/2002 by Respondent No 4 and, subsequently, a Staff Court of Inquiry was ordered by Respondent No 6 to ascertain the facts. On 11/12/2002, the Supdt of Police, Belgaum, vide his letter No 49/DCRB/1048/02 intimated Respondent No 5 that the petitioner may kindly be directed to appear before the jurisdictional Police station at Yamkanmardi for the purpose of investigation in Crime No 184/2002, Appendix 'E'. By that time, the petitioner had already been posted out to the Unit of Respondent No 5. On 23/12/2002, the petitioner was called by the Respondent No 6 and was thereafter attached with the said Unit, Station HQ Belgaum for investigation. During the investigations, the petitioner denied the allegations made against him and it was mentioned by him that the statements made by Smt Chand Bi was just to save herself from the clutches of law and had cooked up the documents. On 29/4/2004, Respondent No 6 recommended disciplinary action to be taken against the petitioner, Annexure 'F'. During the pendency of the criminal case, the applicant was illegally and arbitrarily tried by Summary Court Martial on 23/5/2007 which concluded on 06/9/2007 wherein the applicant was found guilty and was awarded three Punishments, viz, (i) Reduced to Ranks; (ii) One Year Rigorous Imprisonment in civil custody, and (iii) Dismissal from Service. The applicant was, thereafter, sent to civil jail on 06/9/2007. During the custody period, the applicant had filed a Writ Petition No 15146 of 2007 in the Hon'ble High Court of Karnataka. Meanwhile, the applicant had also filed an Appeal to the GOC-in-C, HQ Southern Command on various grounds under the provisions of Para 365 of the Regulations for the Army 1987 (Revised Edition) and Army Act Section 164. The Hon'ble Karnataka High Court stayed the Summary Court Martial proceedings against the applicant on 07/2/2008, till the disposal of the applicant's Appeal to the GOC-in-C, Annexure/J. However, the said Stay Order was of no significance to the Petitioner since the Petitioner had already been sentenced and he had already completed his sentence on 23/2/2008. The Petitioner also received the Order of the GOC-in-C, Southern Command, Pune, rejecting his Appeal. The petitioner, thereafter, submitted another Appeal under the provisions of Army Act Section 26 and Para 364 of the Regulations for the Army 1987, which was also rejected. The petitioner further submits that the criminal case against him was registered at the Yamkanmardi Police Station and they had sent the information to the Respondent No 4 on 03/10/2002 and, hence, the clock of limitation start ticking from the said date, and accordingly, as per law, the SCM must commence from 03/10/2005, but it started on 23/5/2007, ie, it was lately about two years. Therefore, the complete proceedings are legally vitiated and need to be set aside by this Hon'ble Tribunal. A criminal case was already pending against the petitioner at JMFC, Sankeshwar, but the proceedings were not taken over by the Station HQ, Belgaum from the criminal Court, which was mandatory before trying him by

Summary Court Martial, more so, when he was already under Bail and had to report for the Criminal case for proper investigation and the trial. A Charge Sheet was also filed against the Petitioner under Section 324, 468, 471, 420, 504 read with Section 34 of the IPC. Therefore, legally it was mandatory to take over the case from the said Criminal Court under the provisions of Army Act 125. In the instant case, a complete go by was given to this point of Law and the Petitioner was tried for a Civil Offence while the proceedings of the said offence were already in progress in the Criminal Court. Though the Respondent No 3 had decided to try the Petitioner under the Civil Offence, but he failed to apply to take over the proceedings from the concerned criminal court, which he is not even competent unless he applies to the Area or equivalent Commander for the same. The Petitioner was tried twice for the same offence which is against the well nourished principle laid down under Article 21 of the Constitution. The Petitioner has been a victim of conspiracy by two civilian witnesses including the accused Smt Chandbi. The said lady is an accused in criminal proceedings against her as well as the petitioner. Hence, she is not competent to depose against the petitioner, hence, her testimony is not material evidence against the petitioner, unless the competent criminal court says so. No action has been taken against the said witness but the petitioner has been severely punished on the basis of the testimony of an accused person, more so, when the said person has time and again given contradictory statement to various investigating agencies and the said contradiction is not even recorded in the proceedings of the SCM by the officer conducting the SCM. Hence, a serious prejudice has been caused to the petitioner in this respect. Also, the mandatory period of the warning of 96 hours before trial has been denied to the petitioner under the provisions of Army Rule 34. As has been held by the Hon'ble High Court of Karnataka in the case of Shekhrappa Olekar Vs UOI & Ors in WP No 8106 of 2003, the time for the preparation of the defence cannot be denied to the accused and, thus, the SCM proceedings are legally biased, arbitrary, perverse and illegal. The applicant has further submitted that the evidence on which the petitioner's conviction is based, is also contradictory and without any basis. In this regard, two documents, ie, document No 19 and 20 were produced by the petitioner to the first and second Respondent alongwith the complaint. Document No 20 is without marking and it is the part of the Court of Inquiry and when the same documents were produced in the Summary of Evidence it was a different document because there is a distinct marking on the top portion where the petitioner's handwriting is also seen, which was missing in the document produced in the Court of Inquiry. Hence, the complete proceedings are based on a forged document which has been produced with an intention to fix the petitioner in a false and fabricated case and there is no relevance of the said document since the handwriting expert has been issued with a fake call letter document. Further, additional Summary of Evidence in case of the petitioner had commenced on 17/4/2007 and was completed on 21/4/2007, whereas the Commanding Officer, ie, the Third Respondents had sought the opinion regarding the SCM from the JAG Branch, an organization working under the 7^th Respondent on 22/3/2007 itself. Hence, the opinion was sought well in advance before the establishment of the guilt of the petitioner. This is a violation of Army Rule 22. Also, further proceedings of the SCM were biased against the petitioner and there was no independent application of mind by the Commanding Officer who alone constituted the SCM proceedings. The petitioner had been a victim of illegal imprisonment for one year and his reputation in the social circle has been adversely affected. He is still facing the trial in the civil court and, therefore, his status and social standing are in jeopardy and prayed to consider this aspect. Having been aggrieved, the petitioner has filed the WP, praying for relief.

4. The Respondents have filed a detailed Reply Statement and at the outset stated that it has emerged in Page No 148 of SCM proceedings Question No 437 and in response to the query raised by the petitioner to the commanding officer, Col Arjun Gupta, whether any complaints had been received by him, the officer had stated that several anonymous complaints had been received against the petitioner during his tenure at the Branch Recruiting Office. However, no disciplinary action was taken against the petitioner due to lack of concrete evidence against the petitioner. Further, Army prides itself on its discipline. Even the Generals with outstanding service are punished, if found guilty. However, a system of appeal and adequate checks and balances are in place to ensure that justice is neither delayed nor denied. In the instant case, the petitioner was found guilty by three different Military Tribunals comprising different Presiding Officers and members. And, he had appealed against the conviction to Superior Military Authorities, but since his petition lacked merit it was not accepted. The petitioner might have been a sincere and dedicated soldier throughout his career, but after being proved guilty of forgery with an intention to cheat civilians especially at the fag end of his service career to facilitate recruitment, he has tarnished the reputation of the Army and, hence, was punished in accordance with the Military Law. Although the petitioner was posted at the Branch Recruiting Office as a 'Q' Clerk, he did proceed on recruitment rallies and did handle documentation of the recruitment due to shortage of clerical staff. One of the witnesses, Mr Bhimappa Ramankatti, has also deposed in the SCM, that he had personally observed the presence of the petitioner in a recruitment rally and engaging in malpractices, (Page No 117 of SCM, Question & Answer No 331). With regard to the second allegation that he had been falsely implicated in the case merely on the complaint of two civilians and that his case is still pending for adjudication, the Respondents had stated that the army authorities had followed the laid down procedures and had indeed taken up a case with civil authorities and had the case transferred to army authorities for trial, which was duly certified by the then PSI, Yamkanamardi PS, vide letter No 083/06 dated June 2006. With regard to the statement of the petitioner that on 23/11/2002 he was called by Respondent No 6 and thereafter attached to Station HQ, Belgaum for investigation and the army authorities did not investigate the matter and he was returned to his unit since no case was found against him, is factually incorrect as the Army had started the process of investigation and had ordered a Court of Inquiry as per procedure which had gone into the merits of the case, examined several witnesses and subsequently found him guilty. Further, Handwriting Expert's opinion was given due weightage, other facts to include testimony of the witnesses, circumstantial evidence, police investigation reports and documents produced as evidence before the Court were all considered before the Court pronounced the petitioner guilty and recommended disciplinary action against him. As the case was a criminal one involving civilians and which was being handled by the Police/Judiciary, but due to huge backlog of the cases in the civil court, the case of the petitioner could not be processed quickly and realizing the implications of the long pending civil case on the military career of the petitioner, the army authorities had decided to expedite his case by trying him under military law and after getting due permission in June 2006, has the army finally proceeded in the case. The Respondents have also stated that the name of the petitioner had not figured in the FIR No 184/02 lodged under Section 154 of CrPC, which had been registered against Smt Chandbi and her driver, Shri Mukhtar Ahmed, for criminal assault on a prospective candidate who had paid an amount of Rs 70,000/- to Smt Chandbi to get recruited in the Army. Subsequently, after detailed investigation and after receiving the handwriting expert's opinion wherein it was stated that the hand writing samples of Hav Clerk Bega Ram matched with the writing on the disputed documents, ie, Call letter, recovered from Smt Chandbi's house, the then PSI Yamkanmardi Police Station, Shri Kamaraswamy, made the noting in the case diary bearing the No CD 29, dated 10/11/2003.

5. In addition to Reply Statement, the Respondents have also filed Written Arguments and further elaborated as follows :- (a) The Petitioner, Hav Clerk Bega Ram, while posted at Branch Recruiting Office, Belgaum, wef 23/12/2001 (*sic*) and during his tenure he was involved in a case under Section 468 of IPC, ie, Forgery and was tried by Summary Court Martial from 23/5/2007 to 06/9/2007 for the offence under Section 69 of the Army Act, 1950, "committing a civil offence, that is to say, forgery for the purpose of cheating, contrary to section 468 of IPC", and sentenced him to, "reduced to ranks, (ii) to suffer rigorous imprisonment for one year in civil prison and (iii) dismissed from service wef 06/9/2007.

(b) With regard to the contention of the counsel for the applicant that he had been falsely implicated in the civil case as he was not connected with the incident but due to the mala fide intention his name was impleaded, the Respondents stated that the offence against the applicant is under Section 69 of the Army Act, 1950. Further, it is clear that the charges on which the applicant was arraigned, was referred to the authority competent in terms of Section 120 (2) of the Army Act, 1950, ie, the Commandant, Maratha Light Infantry Regimental Centre, who had ordered the trial of the accused by Summary Court Martial on 19/5/2007 and the provisions of Section 120

(2) of the Army Act were complied with fully. Hence, the judgments relied upon by the counsel for the applicant are not relevant in the case.

(c) As regards the contention that the SCM was barred by Limitation as provided under Section 122 of the Army Act, 1950, in that the First Information Report was lodged on 19/8/2002 at Yadkanmari Police Station by one Kedari Gadagari for allegedly issuing fabricated Call Letter for enrolment in the Army, whereas the applicant was put to trial by the SCM on 23/5/2007, as per Section 122 and 125 of Army Act as also the provisions of Section 468 of CrPC, there is no limitation for offence punishable with more than three years sentence and in the instant case, the applicant was tried for offence under Section 468 IPC, where sentence is upto seven years. In view of this, name of the accused applicant was dropped on the ground that the competent authority has initiated action by way of Court Martial against him and the case was deemed to have been taken over by the competent Army authority in terms of Section 125 of the Army Act.

(d) Contention raised by the counsel for the applicant that the SCM proceedings are vitiated on account of there being two Commanding officers applying their mind before punishing the applicant, the argument is totally misconceived and misplaced, as Lt Col Robin Fernandes, commanding the Administrative Battalion, the Maratha Light Infantry Regiment Centre, Belgaum, who had conducted the trial of the accused applicant being his Commanding Officer, whereas Col MA D'Souza, ordered his trial by SCM on reference under Section 120 (2) of the Army Act being Officiating Commandant, the Maratha Light Infantry Regimental Centre, Belgaum. Also, the applicant was not charge sheeted by the Police, the question of his two trial does not arise and, hence, provisions of Article 20 of the Constitution of India have not been violated.

(e) Record of the SCM proceedings indicate that the Hearing of the Charge was conducted by the Commanding Officer of the accused on 26/9/2006 who ordered recording of Summary of Evidence. The trial was conducted from 23/5/2007 to 06/9/2007 wherein the accused applicant was represented by a civil advocate and sufficient adjournments were also given to prepare the defence and produce the evidence.

(f) Respondents have also admitted that the applicant had rendered 22 years and 6 months of service and was of the age of 41 years and 8 months on the day of sentence and his character has been Exemplary and also he had no previous history of punishment. However, considering the gravity of the offence committed by him, he is not entitled to get any relief from this Hon'ble Tribunal.

**Per Hon'ble Mr Sanjiv Mittal, Member (A)**

6. I have heard the counsels for the parties and perused the material placed on record including the original Court of Inquiry and Summary Court Martial Proceedings. The following facts germane to the case of the Applicant emerge :- (a) The applicant, ie, Hav Clerk Bega Ram, was enrolled in the Army on 15/3/1985. He was posted to Branch Recruiting Office, Belgaum, wef 05/12/1999 and was SOS wef 03/2/2002 consequent to his posting to 8 MADRAS.

(b) As per Summary Court Martial Proceedings, the applicant was charge sheeted on 19/5/2007 by Lt Col Robin Fernandes, Administrative Battalion Commander, The Maratha Light Infantry Regimental Centre, which was further recommended to be tried by 'Summary Court Martial' by Col MA D'Souza, the then Officiating Commandant of the Regimental Centre. The Charge Sheet of the applicant, reads as under :- *"Army Act Section 69, committing a civil offence, that is to say, Forgery for purpose of cheating, contrary to Section 468 of the Indian Penal Code, 1860. In that, on or around 30/5/2002, which came to the knowledge of the authority competent to initiate action on 27/5/2004, a forged Branch Recruiting Office, Belgaum Call Letter dated 30/5/2002, titled, 'Enrolment in the Army, Qualified Candidates' in the name of Shri Kedari Gadakari, intending thereby that the said call letter be used for the purpose of cheating the said Shri Kedari Gadakari.*

(c) Shri M Shankarappa, Scientific Office, Forensic Science Laboratory, Bangalore, has deposed before the Summary Court Martial Proceedings and had stated that Yamakanmardi Police Station had sent some sealed covers/envelopes pertaining to the case of the applicant in Crime Nos 184/2002 and 186/2002 which pertained to the writings and seal impressions in a Xeroxed proforma of Branch Recruiting Office, Belgaum and he was called to give evidence in this case during the Court of Inquiry held on 20/3/2003, Summary of Evidence in Nov 2006, Additional Summary of Evidence in Apr 2007 as also during Summary Court Martial Proceedings. These documents had been recovered from the custody of Smt Chandbi alias Geeta.

(d) Prosecution Witness No 2, ie, Mr Babu Ningappa Gadakari, deposed that on 19/8/2002, he had lodged a complaint in Yamakanmardi Police Station against Smt Chandbi alia Geeta, wife of Ramajan Desai, resident of M Mallapur, Tehsil Gokak District Belgaum, in that she had come to his house on 25/1/2002 and stated that his son, Mr Kedari Babu Gadakari, would be enrolled directly in the Army without participating in any test or interview, if he pays her a sum of Rs 70,000/- (Rupees Seventy Thousand only), to which he had stated that due to his financial state the entire amount could not be paid in one lumpsum, but he agreed to pay in instalments and paid Rs 10,000/- as advance. She left her house assuring that she would contact them soon. On 28/4/2002, the said lady handed over a Xerox Copy of the Admit Card which advised his son to report to BRO, Belgaum on 31/4/2002. When he pointed out the error of date as 31^st Apr, as no such date exists, as mentioned in the Call letter, she stated that date might have been mistakenly mentioned as 31/4/2002 because the person who had issued the Call Letter might have been under the influence of alcohol. Thereafter, another call letter asking Mr Kedari Babu Gadakari to present himself at BRO on 20/7/2002 was handed over by Smt Chandbi. She was paid the amount in lumpsum and based on the advice, his son reported to BRO, Belgaum and on presenting the Call Letter, he was informed that the Call Letter was not genuine, but a fake/bogus one. On his complaint to Smt Chandbi on 17/8/2002, the said Kedari Babu Gadakari was beaten up by Smt Chandbi and her goons, however, the boy somehow escaped from their clutches. During Questioning by the Court, he had stated that Smt Chandbi had informed him that she had contacts with the personnel of BRO, Belgaum, viz, Hav/Clk Begaram, Ravi Singh and Sub Maj Mahabir Prasad. He had also stated that a complaint had been registered with the Police Station, Yamakanmardi, against the lady and her companion for assaulting his son.

(e) The Third Prosecution Witness, Mr Kedari Babu Gadakari, son of Shri Babu Ningappa Gadakari has also deposed before the SCM proceedings and narrated entire episode including beating him up by Smt Chandbi and her accomplice in the case but the name of Havildar Bega Ram was not taken by him.

(f) The fifth Prosecution Witness, PSI Shri GM Desur, Circle Police Inspector, Yamakanmardi Police Station has deposed that at the instance of Babu Ningappa Gadakari, an FIR with committing an offence under Sections 420, 468, 471, 324, 504 read in conjunction with 34 IPC was lodged against Smt Chandbi alias Geeta. Based on her voluntary statement, the Police recovered a Rubber Stamp and some other documents from her possession. During interrogation, she had stated that the Call Letters had been given to her by Hav/Clk Begaram in the last week of Jun (04 days prior to 30/6/2002). She had been called by the Hav/Clk Begaram near Military Hospital and was given the document. Subsequently, the lady was sent to the Court. He further stated that BRO Belgaum vide their letter dated 18/10/2002 informed that Hav/Clk Begaram had been posted out from BRO Belgaum wef 03/2/2002 to 8 MADRAS Regiment and that he had been posted in BRO Belgaum wef 13/09/1999 to 03/02/2002 and he had reported to 8 MADRAS on 20/2/2002. Further, they have confirmed that the call letter had not been issued by them and the seal, signature and the JC No of Sub Maj Mahabir Prasad was not tallying with the original documents available with them. On 21/10/2002, the police authorities had sent a requisition to Commanding Officer, 8 MADRAS, to send Hav/Clk Begaram for interrogation in this case.

(g) The 14^th Prosecution Witness, Smt Chandbi Desai, wife of Shri Ramjan Desai, has deposed that she had lodged a complaint in Jul 2002 at the Police Station Yamakanmardi, against her husband for non maintenance of her and her son by her husband, he being a retired person from the Army. She also stated that she was tutored by the Police authorities as to the statements which she would have to give to the army authorities. It would be prudent to observe that during questioning when asked by the Court as to whether Smt Chandbi Desai recognizes Hav/Clk Begaram, who was sitting in the Court, she had categorically stated that, "Yes, I recognize Hav/Clk Begaram after the police have told me". With regard to her statement made on 30/8/2003 in the Court of Inquiry held on 30/6/2003, about her knowledge about the Fake Recruitment Case investigated by the PSI GM Desur, she had stated that PSI Desur had told her to go the Army and say 'Yes' to any question that the army authorities might ask. She had also made a false statement in that she had initially stated that her husband was serving in the Army, whereas at the time of lodging a complaint with the Police Station her husband had already retired from service. She has further stated that her husband, Nb Sub Ramjan Ammu Saheb Desai (Retd) and her brother in law, Hav Mulla Saheb Desai had introduced her to Hav Begaram and she came in contact with him. She had further alleged that part payment of Rs 30,000/- that she had received from two prospective civilian candidates for enrolment in the Army was handed over to Hav/Clk Begaram at the Kolhapur Bus Stand, Belgaum. Later she was asked by Hav Begaram to deposit the balance amount of Rs 15,000/- in the Bank Account given by Begaram. When the recruitment of these two candidates did not materialize, they had filed a case against the lady. She has also stated in the cross examination that she was in possession of the receipt for the amount deposited in the bank account of Hav Begaram. However, no details of the same are available in the SCM Proceedings, nor is there any mention of her having produced the said receipt.

(h) The SCM was ordered based on the opinion of the Court of Inquiry which states :- *"...The court now is the opinion that No 2589280A Hav/Clk Bega Ram is involved (as mentioned in FIR att as Appx 'F') in issuing Fake Call letters alongwith civilians, as investigated by PSI, Yamakanmardi Police Station, District Belgaum".*

7. I have carefully analysed the facts and the deposition made by various witnesses in the Court of Inquiry and the Summary Court Martial. It has been observed that the main accused in the Police case, ie, Smt Chand Bi has made a lot of contradictory statements. It is a fact that the entire case against the Applicant has been made on the basis of a statement made by Smt Chand Bi, ie, the actual doer of the criminal act in defrauding the victim Shri Kedari Babu Gadakari of Rs 70,000/- for handing over a fake letter of recruitment of the victim into Army without any examination, etc. However, the testimony of this witness, who herself is an accused person, cannot be relied upon for the following reasons :-

(i) On her apprehension by the Police on a complaint filed by the victim's father with the Police authorities, she is stated to have taken the name of the Applicant as the provider of the alleged fake letter of recruitment.

(ii) However, it has emerged that two fake letters were handed over to the victim, the first one for his appearance at BRO Belgaum for recruitment on 31/4/2002. On being pointed out by the victim that there was no such date as 31^st April, she handed over another fake letter asking the victim to appear on 20/8/2002. Such a glaring error of putting date as 31^st April cannot be normally expected from the applicant having been doing such duties all through, as he was a Clerk in the Army.

(iii) Both the above call letters were provided by Smt Chandbi to the victim, long after the applicant had been posted out from the BRO on 3/2/2002. Hence, he could not have been in possession of these documents after he had left the BRO on permanent posting and had no access to the official record. Also, nowhere has the victim or his father taken the name of the applicant as a contact of Smt Chandbi for such recruitment based on a call letter, which she knew was fake/forged.

(iv) Even though Smt Chandbi had taken the name of the applicant as the provider of fake letters of recruitment, it was deposed by her in her testimony in SCM that for the first time she had seen the applicant at the time of Court of Inquiry and not prior to that day. In such circumstances, how these fake letters could have been handed over by the applicant to said Smt Chandbi, who had not even seen the applicant prior to the Court of Inquiry? She is also stated to have told that she could recognize the applicant only after the Police told her, which was long after the fake call letters were handed over to the complainant in the case.

(v) Smt Chandbi is also stated to have remitted money received illegally from the victim(s) in the bank account of the applicant. However, no evidence of the same was provided nor the account details showing payments therein were provided before the Court of Inquiry or the SCM or the Police authorities during their investigation. Strangely enough, even the Court of Inquiry or the SCM authorities also did not seek these details from this witness. Thus there is no proof that the applicant was paid money for the alleged offence.

(vi) Smt Chandbi and her accomplice had beaten up the victim in a jungle when he demanded refund of the amount paid to her for his recruitment into Army. There was no involvement of the applicant and was not even aware of such happenings. Pursuant to this episode only has the matter come to light in August 2002 when the victim lodged an FIR and Smt Chandbi was apprehended by the Police.

(vii) The fake call letter and stamps were recovered from the custody of Smt Chandbi and not from the applicant which clearly shows that it was the said lady who was the mastermind of the operation and not the applicant.

(viii) Smt Chandbi, the main witness has also stated that she was tutored by the Police to say 'Yes' to all the questions put to her by the Military authorities including that the applicant gave certain papers to her and she having paid money to the applicant. Since Smt Chandbi's complaint against her husband, filed in July 2002 was pending with the Police authorities, the influence of Police in dictating terms to Chandbi in the hope of getting a favourable response on the complaint filed by her, cannot be ruled out. In fact, even Smt Chandbi has also stated so.

(ix) Smt Chandbi had also taken the names of one Mr Ravi Singh and Subedar Major Mahabir Prasad in addition to the applicant as her contacts in the BRO. However, probably the Court of Inquiry/SCM were held against the applicant only. It is not known whether the other contacts were investigated to find out their direct or indirect involvement in the alleged offence.

8. Another piece of evidence on the basis of which the SCM had come to a conclusion that the applicant was guilty, is the opinion of the Handwriting Expert who was provided with fake call letters and the handwriting samples of the applicant, Smt Chandbi and Subedar Major Mahabir Prasad. However, on perusal of the opinion and the testimony of the Handwriting Expert, the following contradictions and procedural fallacies are observed :-

(i) While taking the specimen writing from the applicant, Sub Inspector of Yamkanmardi Police Station had failed to make a proper Panchnama/Memo as mandated by the law.

(ii) Prosecution Witness No 6 & 7, viz, Hav/Clk Chandrashekhar Balayya and Ex Hav/Clk Ganeshappa Mukappa, purported to have taken the specimen writing from the applicant in the presence of Police official, deposed during the proceedings of SCM that the specimen signatures and writings of the applicant were not taken in their presence and they just signed the memo without reading the contents of the same. This raises strong doubt/suspicion about the specimen signatures/writing taken by the police official from the applicant. These witnesses also denied that the papers/documents allegedly taken/collected by the said police official were properly enveloped and sealed in front of them.

(iii) Moreover, the opinion of the Handwriting Expert has not been corroborated to complete the chain of circumstantial evidence. It could also be safely concluded that opinion of the handwriting expert forwarded by the Police authorities to the Respondents was a weak link, not corroborated by other cogent evidence. It has been held by various High Courts that mere opinion of a Handwriting expert is not enough as it is not scientifically proven technique. It has been held by the Judgment passed by the Hon'ble High Court of Chhattisgarh, Bilaspur, in CRA No 239/2004 in the case of Baldau Sharma Vs State of Chattisgarh, that, ***"an expert opinion, being an opinion only and not a substantive evidence, is also not sufficient to rest conviction unless necessary corroboration is available to complete the chain of circumstantial evidence".***

Thus the testimony of the handwriting expert cannot be relied upon as the procedure for taking the specimen handwriting and the relevant document was not followed, as is proved by the statements made by the witnesses in whose presence the specimens were stated to have been collected. Moreover, no original documents were stated to be examined by the Expert, the samples were stated to be photocopies of the documents, produced none of these were produced in the SCM Proceedings.

9. It may be mentioned here that Court Martial proceedings are not merely a departmental enquiry proceedings, as understood in terms of CCS (Conduct) Rules, but an alternative for Judicial proceedings where a Member of the Armed Forces person commits some offence under Indian Criminal Law or the Army Act and it is decided that for reasons of expediency and faster finalization of the case, the accused (serviceman), who is alleged to have committed an offence, is to be subjected to Court Martial, where the Army authorities are also empowered to sentence the accused to imprisonment in Army or Civil Jail, as may be decided by them, in addition to other punishments including dismissal/cashiering of the concerned person from the service for his omission/commission. As such it is expected that the Army Court must come to its conclusions based on establishment of 'guilt' having been proved beyond reasonable doubt and not merely on suspicion. Moreover, all the laid down rules, regulations and the provisions of Indian Evidence Act have to be followed once an accused is arraigned before it and the 'guilt' must be established beyond doubt as in such cases, the entire Military career of the accused is at stake.

10. As regards commencing of SCM within a period of three years from the date when the offence/alleged act comes to the knowledge of the competent authority as ordained by Section 122 of Army Act, 1950, the following chronology of events relating to this case has been noted :-

<tbody> <tr> <td>(a)</td> <td>19 Aug 2002</td> <td>: FIR is lodged for receiving a fake Call Letter for enrolment of his son in Indian Army by Shri Babu Ningappa Gadakari.</td> </tr> <tr> <td>(b)</td> <td>03 Oct 2002</td> <td>: Army authorities informed by Police Authorities regarding the alleged offence by the applicant.</td> </tr> <tr> <td>(c)</td> <td>18 Oct 2002/<br/>21/10/2002</td> <td>: Another letter issued to Army Authorities by Police Authorities</td> </tr> <tr> <td>(d)</td> <td>05 Nov 2002</td> <td>: Instructions for holding Staff Court of Inquiry issued.</td> </tr> <tr> <td>(e)</td> <td>20 Mar 2003</td> <td>: Court of Inquiry ordered.</td> </tr> <tr> <td>(f)</td> <td>29 Apr 2004</td> <td>: Recommendation made for proceeding with Disciplinary action against the applicant.</td> </tr> <tr> <td>(g)</td> <td>22 Nov 2006</td> <td>: Summary of Evidence is recorded.</td> </tr> <tr> <td>(h)</td> <td>17 Apr 2007</td> <td>: Additional Summary of Evidence is recorded</td> </tr> <tr> <td>(i)</td> <td>19 May 2007</td> <td>: Notice to the applicant alongwith a copy of the Charge Sheet</td> </tr> <tr> <td>(j)</td> <td>23 May 2007</td> <td>: SCM commences.</td> </tr> <tr> <td>(k)</td> <td>06 Sep 2007</td> <td>: Conclusion of SCM and Punishment/Sentence announced.</td> </tr> </tbody> </table>

11. From the above, it is clear that the Army authorities had been duly informed of the alleged commission of an offence by the applicant as early as 03/10/2002. However, it took the Army authorities nearly four years and seven months to commence the SCM despite the fact that the entire information pertaining to the case was available with them. Filing of a Charge Sheet dated 31/3/2005 is not relevant as army authorities had already started investigations/ inquiry with the alleged offence by the applicant. Moreover, the applicant was not even charge sheeted by the Police as Army authorities were getting the matter investigated in accordance with their laws. Hence, commencement of SCM more than three years after the knowledge of army authorities of the offence allegedly committed by the applicant is clearly violative of Section 122 of the Army Act 1950. The contention of the Respondents that it was validly conducted within the limitation does not hold water and is liable to be rejected.

12. Section 122 of Army Act 1950 states as follows :- **"122. Period of limitation for trial.**

(1) *Except as provided by sub- section (2), no trial by court- martial of any person subject to this Act for any offence shall be commenced after the expiration of a period of three years and such period shall commence,*

(a) *on the date of the offence; or*

(b) *where the commission of the offence was not known to the person aggrieved by the offence or to the authority competent to initiate action, the first day on which such offence comes to the knowledge of such person or authority, whichever is earlier; or*

(c) *where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the authority competent to initiate action, whichever is earlier.*

(2) *The provisions of sub- section (1) shall not apply to a trial for an offence of desertion or fraudulent enrolment or for any of the offences mentioned in section 37.*

(3) *In the computation of the period of time mentioned in sub- section (1), any time spent by such person as a prisoner of war, or in enemy territory, or in evading arrest after the commission of the offence, shall be excluded.*

(4) *No trial for an offence of desertion other than desertion on active service or of fraudulent enrolment shall be commenced if the person in question, not being an officer, has subsequently to the commission of the offence, served continuously in an exemplary manner for not less than three years with any portion of the regular Army".*

Thus, it is clear that SCM against the applicant should not have commenced wef 23/5/2007 as it started much after the limitation period of three years was over as in this case the alleged offence is not covered under the exception provided in Sub Section (2) of Section 122 of Army Act and the identity of the person who was to be arraigned before Court Martial was known to Army authorities from the very beginning. Hence, the entire trial is considered as **void ab initio**.

13. The very opinion of the Court of Inquiry based on which the SCM was conducted is not free from doubt. The opinion of the Court of Inquiry at Para 68 states :

".... The court now is of the opinion that No 2589280A Hav/Clk Bega Ram is involved (as mentioned in FIR attached as Appendix 'F') in issuing Fake Call letter alongwith Civilians, as investigated by PSI, Yamakanmardi Police Station, District Belgaum".

This revised opinion is stated to have been based on Hand Writing Expert's opinion at Appendix 'K'.

On the other hand, the original opinion of the Court of Inquiry at Para 67 of Court of inquiry proceedings states, as follows :-

*"The Court is of the opinion that since the case is at present being actively pursued by the Police the outcome of the case be based on the findings of the Police/judiciary".*

14. It has been seen that Appendix 'K' is dated 30/6/2003 and it was available all along to the Court of Inquiry. It is not known what led to the opinion of the Court of Inquiry being changed. Moreover, both the opinions are undated, hence, the dates on which the above mentioned two divergent opinions were made, cannot be established. Nor have the Paras been renumbered after insertion of revised recommendations of the Court of Inquiry. Nor any explanation has been provided that how the Court of Inquiry has changed its opinion - was it working under pressure of some authority which was working behind the scenes to ensure that the applicant - Hav Bega Ram - is fixed somehow? The outcome of the Police case vis-à-vis other accused person(s) has also not been brought out anywhere.

15. From the records, it is clear that the Applicant herein had no history of misconduct in his entire Army career in the past. He had never been punished for any offence in his approximately 23 long years of service. His clean and unblemished service record of 23 years provides confidence that he would not have resorted to such an offence at the fag end of his career in the rank he was holding/at the cusp of his promotion to the next rank, as he had already been posted out of the Recruiting Office much before the offence was committed by Smt Chandbi and her accomplice(s), if any.

16. As the name of the applicant was not included in the Charge sheet dated 31/3/2005, since the Respondents had already initiated action by way of Court of Inquiry, etc, the plea of the applicant that he could not have been tried by two agencies and twice over for the same offence is rejected.

17. In view of the foregoing and taking into consideration the entire gamut of the episode, I am of the considered view that Havildar Bega Ram, the Applicant herein, was falsely implicated by the main perpetrator of the offence of issuing Fake Call letters to the gullible simple villagers with an objective to enrich herself, ie, Smt Chandbi, by indulging in cheating and forgery, and that the unblemished service career of the applicant was sullied to no redemption and his career as a Havildar Clerk in the Army and further progression was suddenly put to an abrupt end by the verdict of the SCM based on evidence which cannot be relied upon at all in view of lot of contradictory statements made by the witness/accused – Smt Chandbi – in her testimony and the evidence of other witnesses and what has been noted above including the way the handwriting samples of the accused were submitted to Handwriting Experts without following any procedure by the Police authorities.

18. Accordingly, the SCM proceedings dated 06/9/2007 in respect of the Applicant are set aside and the applicant is honourably acquitted of all the charges framed against him. It would be in the fitness of things and in the interest of justice, that the Respondents are ordered to reinstate the applicant notionally for a term till completion of his normal tenure in the rank held by him at the time of SCM and grant him all pensionary benefits as per his entitlement on completion of his service tenure in the rank of Havildar alongwith pay and allowances for such notional period as he was wrongly punished for the said offence.

19. Resultantly, the OA is allowed. The Respondents are directed to pay the entire arrears of pay and allowances and pension accruing thereof by notional reinstatement in service of the applicant within a period of six months from the date of receipt of a certified copy of this Order. In default thereof, the applicant shall be entitled to receive interest @6% pa till the date of its actual payment. The applicant shall also be entitled to ECHS, CSD and ESM status and all consequential benefits in accordance with the extant rules and regulations. The applicant shall also be eligible for grant of maturity benefits out of his contribution made towards AFPP Fund and AGIF, if not already paid to him.

20. Before parting, I have no hesitation to mention that keeping in view the long legal fight which the applicant had to undergo and the untold trauma and disrepute which he and his family had to endure not to speak of the social stigma inflicted upon him and stain on his long unblemished career of 23 years cannot be compensated or erased so easily. In view of this, I award an amount of Rs 20,000/- (Rupees Twenty Thousand only) to be paid to the applicant as cost of litigation. I am also mindful of the fact that no amount of monetary compensation can compensate or undo the mental trauma, the societal ridicule and stigma that the applicant had to endure for the last 17 years for his disgraceful exit from Army service with an impeccable service of 23 years and the relief now granted by me is quite meagre as compared to the suffering of the applicant all these years.

21. The TA is disposed off accordingly.

22. Pending application(s), if any, also stand disposed off.

**(SANJIV MITTAL)** **MEMBER (A)** *Cda/-*

**[Per Hon'ble Mr Justice Goverdhan Bardhar, Member (J)]**

1. Based on a Police Report dt 05.01.2004, a permission from Superintendent of Police, Belgaum for issue of arrest warrant of Hav/Clk Begaram of 8 Madras was sought by Police Sub Inspector GM Desur of Yamakanmardi Police Station (now Police Circle Inspector) (**Exhibit X-10**), which reads as under:- *"For the above stated subject I request before you that, on 20.08.2002 the complainant Bhimappa Parasappa Ramankatti and as per his complaint given before the Police that, he is the resident of U. Khanapur Village, and 1) Chandbi @ Geeta W/o Ramzan Desai R/o M. Mallapur, 2) Muktarahamed Azamsab Desai, R/o Akkatangerhal were came to our village and stated that, without any interview we will recommend for direct recruitment (Direct selection) in Army as we know a higher officials and have influence with these words they have canvassed. And I had also completed S.S.L.C. I am very poor and with an intention to join Army I asked them. For that, they have negotiated to give Rs. 70,000/- for a direct order, which will be delivered to home. And accordingly, they have taken Rs. 35,000/- to place the interview and to give the amount to the officers. And accordingly, I came to know that, by hear say that, they have received Rs. 70,000/- from one Kedhari Babu Gadakari stating before him the same words as stated before and they have cheated and beaten them. And giving the false clarification with provocation they have cheated us. Therefore, I filed a complaint as stated in subject column mentioned above registered under Crime number as regards stating the false clarification and for provocation and creating the false documents and taking the money by cheating me.*

*After arresting the accused No 1) Chandbi Desai, 2) Muktarahmed Desai and after enquiry accused were stated that, one military Hawaldar known as Begaram is used to give call letters.*

*Therefore, the above stated accused and apprehended Begaram S/o Buraram Military Hawaldar and a person who said to have signed one call letter Mahabir Prasad these four peoples form of handwriting and signature had been sent to the handwriting experts Bangalore and accordingly the handwriting experts Bangalore have submitted their opinion in that, the call letter given to the son of the complainant by the apprehended accused Begaram S/o Buraram Military Hawaldar were tallied.*

*Therefore, it reveals that the matter of involvement of accused Begaram is involved in this case.*

*Therefore, I request for the arrest of apprehended accused Begaram S/o Buraram who is serving in Military as Hawaldar 8 Madras C/o 56 APO, Army Battalion.*

*I am annexing in this case, the copy of the handwriting expert's opinion and submitting the same."*


2. Based on the aforesaid Police reports from Police Station, Yamakanmardi, Court of Inquiry (C of I) was ordered vide Station HQ, Belgaum letter No 109/7/A2 dt 11 Nov 2002, to investigate into the circumstances under which the alleged use of fake stamp and forged signature on photocopies of call letters by a civilian and a service accomplice were made. A C of I was held on 20.03.2003 and subsequent days till 30.08.2003 at MLIRC, Belgaum, wherein following witnesses were examined:-

- (a) Witness -1 : Hav/Clk Begaram, Applicant.

- (b) Witness -2 : Col YS Garewal, SC.

- (c) Witness -3 : Sub Maj SN Yadav.

- (d) Witness -4 : Sub Maj Mahabir Prasad.

- (e) Witness -5 : Babu Ningappa Gadakari.

- (f) Witness -6 : GM Desur, PSI Yamakanmardi Police Station.

- (g) Witness-7 : Mrs Chandbi Desai alias Geeta.

3. The Court of Inquiry, initially opined as under:- *"62. The Court is of the opinion that the involvement of No-2589280A Hav Begaram in issuing fake call letters cannot be established since the individual denies his involvement and there is no other evidence to establish the facts.*

*63. Based on circumstantial evidence prima-facie it appears that a nexus does exist between Mrs Chandbi Desai and No-2589280A Hav Begaram. But in order to have conclusive legal evidence opinion of handwriting expert and other allied matters needs to be ascertained.*

*64. As per the police FIR the involvement of Hav Begaram in issuing fake call letters cannot be ruled out. He might have issued these call letters while on leave at Belgaum.*

*65. The fake call letters have not been issued by any member of the staff posted at BRO, Belgaum.*

*66. Since the case is being investigated by the Police and there is involvement of civilians, it is opined that the case be dealt by the Police as also this being a criminal case, the police is better equipped to handle it.*

*67. The Court is of the opinion that since the case is at present being actively pursued by the police/judiciary."*

4. Thereafter, on receipt of the opinion dated 30.06.2003 from handwriting experts by the Police Authorities, the same was provided to the Army Authorities vide their letter dt 29.01.2004 (Appendix K to Court of Inquiry).

5. Additional Summary of Evidence was recorded from 17 April 2007 to 21 April 2007 in presence of Hav Begaram. During Additional Summary of Evidence, Mr. M. Shankarappa, Scientific Officer, Forensic Science Laboratory, Bangalore (Handwriting expert) reiterated that the handwriting of Hav Begaram tallied with the writing and signatures on fake call letters. Since, the opinion of the handwriting expert in its report dt 30.06.2003 was reiterated during the Additional Summary of Evidence, the Court of Inquiry made additional opinion, which reads as under:- *"68. In reference to para 63 and 64. Based on circumstantial evidence and Hand Writing Expert opinion (copy attached as Appendix K). The Court now is of the opinion that No 2589280A Hav/Clk Begaram is involved (as mentioned in FIR attached as Appendix F) in issuing fake call letters along with civilians, as investigated by PSI, Yamakanmardi Police Station, Distt-Belgaum."*

6. In the aforesaid background of the facts and opinion of the Hand-writing Expert, the Competent Authority ordered to hold Summary Court Martial of the Applicant.

7. In the Summary Court Martial, following witnesses were examined:-

- (a) PW-1 : Shree M Shankarappa, Scientific Officer, Forensic Science Laboratory, Bangalore (Handwriting expert)

- (b) PW-2 : Shri Babu Ningappa Gadakari.

- (c) PW-3 : Shri Kedari Babu Gadakari.

- (d) PW-4 : Shri Ningappa Babu Gadakari.

- (e) PW-5 : Shri GM Desur, PSI Yamakanmardi Police Station.

- (f) PW-6 : Ex Hav/Clk Chandrashekar Balayya Y.

- (g) PW-7 : Ex Hav/Clk Ganeshappa Mukappa.

- (h) PW-8 : Ex Nb Sub Ramjan Desai, husband of Mrs Chandbi Desai

- (i) PW-9 : Sub Maj (Hony Capt) Mahabir Prasad (Retd).

- (j) PW-10 : Sub Maj & Hony Capt SN Yadav (Retd).

- (k) PW-11 : Shri Muktar Ahmed Azamsab Desai.

- (l) PW-12 : Shri MA Kazi.

- (m) PW-13 : Sub Maj Devi Singh.

- (n) PW-14 : Smt Chandbi Desai, W/o Nb Sub Ramjan Desai.

- (o) PW-15 : Shri Bhimappa P Ramankatti.

- (p) PW-16 : Shri Dundappa A Jarali.

- (q) PW-17 : Shri Sanjeev Mustagi.

- (r) PW-18 : Shri Raju A Veerbhadrannavar.

- (s) PW-19 : Col Arjun Gupta, Ex Adm Comdt, Stn HQ Belgaum and Ex BRO, Belgaum.

- (t) PW-20 : Shri Pareshgouda Hanumant Gowda Patil.

**Defence Witnesses:**

- (u) DW-1 : Shri Ibrahim Abdul Makandar.

- (v) DW-2 : Shri Altaf Dadahayat Shahpuri.

- (w) DW-3 : Shri Chandrakant Tipanna Timare.

- (x) DW-4 : Shri Maruti Shankar Nandgadkar.

**Court Witness.** Sub MA Desai of 877 AT Bn ASC (Brother-in-Law of Chandbi Desai and Brother of Nb Sub Ramjan Desai) was also called for Summary Court Martial and he deposed at Court Witness No 1.

8. During the Summary Court Martial proceedings, Shri M Shankarappa, Scientific Officer, Forensic Science Laboratory, Bangalore (PW-1) deposed as under:- *"1. I Shree M Shankarappa, am presently employed as Scientific Officer, Forensic Science Laboratory, Bangalaore. My task involves the study of the handwriting of persons with a view to ascertain the character trains of various individuals. I am mostly employed by the police whenever they require my assistance with regard to disputed documents and verification of the authenticity of documents. I became involved in this case of No-2589280A Hav/Ck Begaram on 17 Apr 2003 when Yamakanmardi Police Station had sent some sealed covers/envelopes pertaining to Crime Nos 184/2002 and 186/2002. The said document contained writings and seal impressions in a Xeroxed proforma pertaining to the Office of Branch Recruiting Office, Belgaum. Subsequently I have been called to give evidence in this case, during the Court of Inquiry (20 Mar 2003), Summary of Evidence (Nov 2006) Additional Summary of Evidence (Apr 2007) and the present Summary Court Martial proceedings.*

**Questions By the Court**

Q. 2. What is the procedure adopted by you for carrying out the hand writing analysis?

*A.2. The work is mostly comparison work-tallying like with like, impression with impression, signature with signature and printing with printing, with the help of scientific instruments available in the laboratory to magnify them. We study the writing habits of the person along with a sample of the individual in comparison with the disputed and supplied standard.*

Q.3 How accurate is the handwriting analysis? Elucidate.


A.3 It is a scientific study and a hundred percent perfect science. Our institute is Government run and so no bias or unfair practice can take place and the opinion rendered is 100% fair.

Q.4 During the Court of Inquiry proceedings, you had stated that, on examination, you found out that the handwriting in two different cases presented to you were written by the same person. Do you still maintain that?

A.4 Yes. Both the writings were written by one and the same person.

Q.5 How were the samples received by you and how long did you take to formulate and forward your opinion on them?

A.5 On 17 Apr 2003, Yamakanmardi Police Station had sent some sealed covers/envelopes pertaining to **Crime No 184/2002 and 186/2002**. It was sent 'By Hand' through a police constable who brought it personally and the same was registered in our registers as per procedure. The said document contained writings and seal impressions in a Xeroxed Proforma pertaining to the office of Branch Recruiting Office, Belgaum. Investigating Officer had sent seal impression of Sub Maj Mahabir Prasad, as Assistant Recruiting Officer, Belgaum, along with admitted document bearing date 05 Nov 2001 written by Sub Maj Mahabir Prasad. He also sent writings from No 2589280A Hav/Clk Begaram bearing date 16 Jan 2002 and 23 Jan 2002. These documents contained writings said to be of normal office correspondence. The IO also sent specimen writings along with signature patterns which were found in the disputed documents. This was on six sheets and said to be of No 2589280A Hav/Clk Begaram. **Here, I must inform the Court that as per police procedures, when any documents pertaining to a crime are received by any department connected to the police department, it is stated that the particular document is 'admitted'.** The Investigating Officer had also sent six Xerox proforma of intimation letters and a seal impression recovered from the custody of Smt Chandbi alias Geeta in three sheets. I compared all the above mentioned disputed documents along with all writings, signatures and seal impressions with the help of scientific instruments available in our laboratory. I then formulated my opinion in the form of a detailed letter along with my reasoning for the same and forwarded all the documents to Yamakanmardi Police Station through Dy SP Gokak, Belgaum District on **30 Jun 2003**. The Investigation Officer had sent one more case file vide Crime No 186/2002 which was also received by my office on the same date as the previous one ie **17 Apr 2003**. It contained the disputed document, a proforma Xerox intimation letter said to be issued from the Office of BRO, Belgaum dated 30 Jun 2002. To compare the above disputed document, the IO had sent across signature and seal impressions said to be of Sub Maj Mahabir Prasad ARO, Belgaum. He had also sent admitted English writing said to be of No 2589280A Hav/Clk Begaram on one sheet. The IO also sent specimen writings in six Xeroxed proforma of intimation letter said to be written by Hav Clk Begaram. Investigation Officer also sent specimen signature of English writing and signature patterns said to be from Smt Chandbi alias Geeta which was on six Xerox proforma and on 14 sheets.

Q.6 How long does it take you to carry out analysis of a document?

A.6 It depends on the No of exhibits available to be analysed, No of written pages, availability of time and priority of case. For example for murder, rape, fake currency and other sensitive cases, the time limit is sixty days. In other cases, it might take any where between two months to two years. Where the arrest of accused is not warranted, the cases get delayed. In special cases, if orders are received from our superior authorities to examine the case immediately, then, we process it on priority.

Q.7 In the case of forgery, what would be the minimum time you would take to sort out the case if no pressure is brought on you by your higher authorities?

A.7 We will take a minimum of two months and a maximum of one to two years depending on the circumstances of the case.

Q.8 Did you receive and dispatch the samples in a sealed condition?

A.8. Yes. The documents were received by me in a sealed condition and sent back by me in a sealed condition using a sample seal as per departmental procedure.

Q.9 How long would it take to carryout analysis of a handwriting sample of No 2589280A Hav/Clk Begaram if it is provided to you today and we take up a case with your higher authorities to speed up the case?

A.9 Considering our present work load it would take a minimum of two months. Hence, I would request you to send the sample to Chief Examiner of Questionable Documents, Ministry of Home Affairs, Bureau of Police Research and Development, Ramanathpuram, Hyderabad. It has offices in Calcutta, Shimla and Chandigarh as well.

Q.10 Is your physical presence required when police take handwriting samples from the Accused and seal the documents for onward dispatch to your office?

A.10 No. As per police procedures, my presence is not required. For authority, please refer Police Manual Vol-II."

9. Mr M Shankarappa (PW-1) was cross-examined by the accused, Hav Begaram, which he replied accordingly and he maintained that both the writings were written by one and the same person. The opinion expressed by him in Criminal Case No 184/2002 and 186/2002 is annexed as **Exhibits F & G**, which reads as under:- **Exhibit F (Criminal Case No 184/2002)**

<thead> <tr> <th data-bbox="278 506 421 531"><u>Writing Questioned<br/>Material Examined</u></th> <th data-bbox="421 506 920 531"></th> </tr> </thead> <tbody> <tr> <td data-bbox="278 531 421 568"></td> <td data-bbox="421 531 920 568">1. Red enclosed questioned signature, writings and seal impression on a Xeroxed Performa in respect of <b>intimation from the Branch Recruiting Office, Belgaum</b> marked as <b>Q1 to Q3</b> by the I.O. and also by me.</td> </tr> <tr> <td data-bbox="278 568 421 634"></td> <td data-bbox="421 568 920 634">2. Red enclosed <b>admitted signature on seal impression said to be of Sri Mahabir Prasad</b>, JC-171223W Sub Major Assistant Recruitment Officer, Belgaum, dtd: 5.1.1.2001 in the name of Mahadev Pujer S/o Dundappa Pujer marked as <b>E1, E2</b> by the I.O. and also by me.</td> </tr> <tr> <td data-bbox="278 634 421 698"></td> <td data-bbox="421 634 920 698">3. Red enclosed <b>admitted English writings said to be of Sri Begaram</b> S/o Boraram, Havaladar Clerk No. 2589280A, 8 Madras C/o 56 APO on Bagalakot Rally, dtd 16 to 23 January 02 on one sheet marked as <b>B1, B2</b> by the I.O. and also by me.</td> </tr> <tr> <td data-bbox="278 698 421 774"></td> <td data-bbox="421 698 920 774">4. Red enclosed specimen <b>English writings and signature pattern as that of questioned signature said to be of Sri Begaram</b> S/o Boraram Havaladar Clerk on 6 specimen Xeroxed performa of recruits intimation letter, on 3 sheets marked <b>B3 to B16</b> by the I.O. and also by me.</td> </tr> <tr> <td data-bbox="278 774 421 845"></td> <td data-bbox="421 774 920 845">5. Red enclosed specimen English writings, signatures and signatures pattern said to be of <b>Smt Chandbi @ Geetha</b> w/o Ramajan Desai as that questioned text on 6 Xeroxed specimen performa on 14 sheets marked as <b>A1 to A8, S1 to S14 and D1 to D6</b> by the I.O. and also by me.</td> </tr> </tbody> </table>

<tr> <td data-bbox="291 88 438 131"></td> <td data-bbox="438 88 937 131">6. Red enclosed specimen <b>seal impressions said to be taken from Smt. Chandbi @ Geetha</b>, w/o Ramajan Desai by the I.O. on 3 sheets marked <b>C1 to C3</b> by the I.O. and also by me.</td> </tr> <tr> <td data-bbox="291 131 438 251"></td> <td data-bbox="438 131 937 251"> <p><b><u>OPINION</u></b></p> <p>1. The person who wrote the red enclosed standard signature stamped and marked <b>E1</b> did not write the red enclosed questioned signature similarly stamped and marked <b>Q2</b>.</p> <p>2. The person who wrote the red enclosed standard writings stamped and marked <b>B1 to B10</b> also wrote the red enclosed questioned writings similarly stamped and marked <b>Q1</b>.</p> </td> </tr> <tr> <td data-bbox="291 251 438 301"></td> <td data-bbox="438 251 937 301">3. It has not been possible to express opinion on authorship of questioned signature marked Q2 in comparison with B11 to B16, D1 to D6.</td> </tr> <tr> <td data-bbox="291 301 438 331"></td> <td data-bbox="438 301 937 331">4. Disputed seal impression marked <b>Q3</b> do not tally with the specimen seal impression marked <b>E2</b>.</td> </tr> <tr> <td data-bbox="291 331 438 361"></td> <td data-bbox="438 331 937 361">5. Disputed seal impressions marked <b>Q3</b> tally with the specimen seal impressions marked <b>C1 to C3</b>."</td> </tr> </table>

**Exhibit G (Criminal Case No 186/2002)**

<tr> <td data-bbox="301 408 448 438"><u>Writing Questioned Material Examined</u></td> <td data-bbox="448 408 947 481">1. Red enclosed questioned writings, signatures and seal impression on a Xeroxed intimation letter addressed to Bhimappa Ramankatti S/o Parasappa, dt 30.06.2002, said to be <b>issued from the Office of the Branch Recruiting Office, Belgaum</b> marked <b>Q1 to Q4</b> by the I.O. and also by me.</td> </tr> <tr> <td data-bbox="301 481 448 561"></td> <td data-bbox="448 481 947 561">2. Red enclosed <b>admitted signature on Office seal said to be of Sri Mahabir Prasad</b>, JC-171223W Sub Major Assistant Recruitment Officer on admission ticket issued in the name Raghavendra Prabhu S/o Vasanth R. Prabhu of Belgaum, dt 6.11.2001 marked as <b>E1, E2</b> by the I.O. &amp; also by me.</td> </tr> <tr> <td data-bbox="301 561 448 626"></td> <td data-bbox="448 561 947 626">3. Red enclosed <b>admitted English writings said to be of Sri Begaram</b> S/o Boraram, Havaldar Clerk No. 2589280A, 8 Madras C/o 56 APO on sheet of Official document in respect of Gokak Rally-period October &amp; November 2001 as <b>B1, B2</b> by the I.O. and also by me.</td> </tr> <tr> <td data-bbox="301 626 448 691"></td> <td data-bbox="448 626 947 691">4. Red enclosed specimen <b>English writings said to be of Sri Begaram</b> S/o Boraram on 6 Xeroxed specimen intimation performa of recruiting Office and on 2 sheets marked as <b>B3 to B10</b> by the I.O. and also by me.</td> </tr> <tr> <td data-bbox="301 691 448 741"></td> <td data-bbox="448 691 947 741">5. Red enclosed specimen signatures in the pattern of questioned signatures said to be of <b>Sri Begaram</b> S/o Boraram on a sheet marked <b>B1 to B16</b> by the I.O. and also by me.</td> </tr> <tr> <td data-bbox="301 741 448 821"></td> <td data-bbox="448 741 947 821">6. Red enclosed specimen signatures, English writings and signatures as that of questioned signature pattern said to be of <b>Smt Chandbi @ Geetha</b> w/o Ramajan Desai R/o M. Mallapur on 6 Xeroxed performa of Recruiting Office in English on 14 Sheets in English marked <b>A1 to A7, S1 to S14 and D1 to D6</b> by the I.O. and also by me.</td> </tr> <tr> <td data-bbox="301 821 448 882"></td> <td data-bbox="448 821 947 882">7. Red enclosed specimen <b>seal impressions said to be taken from Smt. Chandbi @ Geetha</b>, w/o Ramajan Desai R/o M. Mallapur on 3 sheets marked as <b>C1 to C3</b> by the I.O. and also by me.</td> </tr> </table>

<thead> <tr> <th colspan="2"></th> <th><u>OPINION</u></th> </tr> </thead> <tbody> <tr> <td></td> <td></td> <td>1. The person who wrote the red enclosed standard writings stamped and marked <b>B1 to B10</b> also wrote the red enclosed questioned writings similarly stamped and marked <b>Q1</b>.</td> </tr> <tr> <td></td> <td></td> <td>2. The person who wrote the red enclosed standard signature stamped and marked <b>E1</b> did not write the red enclosed questioned signature similarly stamped and marked <b>Q2</b>.</td> </tr> <tr> <td></td> <td></td> <td>3. It has not been possible to express opinion on authorship of questioned signature marked <b>Q2</b> in comparison with <b>B11 to B16</b> and <b>D1 to D16</b>.</td> </tr> <tr> <td></td> <td></td> <td>4. Disputed seal impression marked <b>Q3, Q4</b> do not tally with the specimen seal impression marked <b>E2</b>.</td> </tr> <tr> <td></td> <td></td> <td>5. Disputed seal impressions marked <b>Q3, Q4</b> tally with the specimen seal impressions marked <b>C1 to C3</b>."</td> </tr> </tbody> </table>

10. During the Summary Court Martial proceedings, Police Sub Inspector GM Desur (PW-5) deposed that based on the complaint by Babu Ningappa Gadakari of Ullagaddi Khanapur village, he registered Crime Case No 184/2002 under Sections 420, 468, 471, 324 and 504 read in conjunction with 34 IPC. On 20.08.2002, he went to village Ullagaddi Khanapur and conducted Panchnama regarding transaction of money and signatures of two Panchas taken. He also went to PHC, Ullagaddi Khanapur and recorded the statement of Shri Kedari Babu Gadakari who was allegedly tried on his life by Smt Chandbi alias Geeta Desai and Mukhtar Ahmed. After taking statements of other personnel, he arrested Chandbi Desai and Mukhtar Ahmed on the same day and interrogated in Police Station where Chandbi Desai given her voluntary statement (Exhibit X-2) that the fake documents were given to her by one Begaram of BRO, Belgaum near Military Hospital, Belgaum in last week of Jun 2002 (04 days prior to 30.06.2002). She also stated that some boy's records were in her possession. Therefore, she was taken to her house in village M Mallapur village from where some documents and rubber stamp etc were seized in the presence of Panchas and the statements of Laxmibai Kambhar and Jaibunabi Desai were recorded and brought her in the Police Station and in the presence of Panchas her signatures and handwriting samples were taken, the details of which are as under:- (a) Smt Chandbi was made to fill up six Xerox enrolment forms on similar lines as that of the enrolment form ie questioned document which had been recovered from her possession on 20 Aug 2002 and marked it as **Q1 to Q3 (Exhibits-5)** Writing written in the enrolment forms by Smt Chandbi were marked as **A1 to A6 (Exhibit X-6, pages 267 to 272)** and her signatures on them were marked as **S1 to S6 (Exhibit X-6, pages 267 to 272)**.


(b) On six white papers, taken her signatures and marked it as **S-9 to S-14 (Exhibit X-6, pages 281 to 286)**.

(c) On two half six white papers taken her English handwriting samples and marked it as **A-7 and A8 (Exhibit X-6, pages 273 to 274)**. Two signatures were also taken on two white papers and marked as **S-7 and S-8 (Exhibit X-6, pages 273 to 274)**.

(d) On one ¼ size white paper, affixed the Seal recovered from her house and marked it as **C-1 to C-3 (Exhibit X-7, pages 287 to 289)**.

(e) On six ¼ size white papers, taken her signatures, akin to that of Sub Maj Mahabir Prasad and marked as **D-1 to D-6 (Exhibit X-6, pages 275 to 280)**.

11. Police Sub Inspector GM Desur (PW-5) also stated that on 03.09.2002, Police took Shri Kedari Gadakari to the spot where he was assaulted by Chandbi and her driver in the presence of two Panchas. On 03.10.2002, Injury Report (Wound Certificate) was received from PHC, Ullagaddi Khanapur (**Exhibit 'O'**). He got handwriting samples of Hav Begaram at Station HQ, Belgaum in the presence of Panchas, Hav/Clk Chandrashekar and Hav/Clk Ganeshappa in English on six Xerox copies of enrolment forms on the lines similar to that of the disputed call letters recovered from the house of Chandbi @ Geeta and marked as **B-3 to B-8 (Exhibit-X-4, pages 256 to 260)**, on two half white papers, handwriting samples of Begaram and marked it as **B-9 and B-10 (Exhibit-X-4, pages 261 to 262)**, on six half-sized white papers, specimen of Mahabir Prasad's signatures and marked as **B-11 to B-16 (Exhibit- X-4, Page No 263)**. He made Panchnama in the presence of two Panchas and also got their signatures. Thereafter, on 21.02.2003, he visited BRO, Belgaum and took previous two letters signed by Sub Maj Mahabir Prasad, Assistant Recruiting Officer of BRO, Belgaum. On the first letter (Admit Card dt 25.11.2001, signed by Mahabir Prasad), he marked signatures of Mahabir Prasad as **E-1** and Rubber Stamp as **E-2 (Exhibit- X-5)**. The second letter was in English writing and it had contained certain writings. The writing on the front page of this letter was marked as **B-1** and back side was marked as **B-2 (Exhibit- X-3)**. These two documents were also seized under Panchnama in front of two Panchas of BRO, Belgaum.

12. Perusal of material indicates following incriminating documentary as well as circumstantial evidence against the Applicant, Hav Begaram:- 

(a) Hav Begaram was posted to BRO, Belgaum for the period from 05.12.1999 to 02.02.2002 and thereafter posted out to 8 Madras wef 03.02.2003, which was located in Chennai. In the month of March 2002, the Unit of the Applicant, 8 Madras, moved to Op Parakram in Rajasthan. At the time of posting to 8 Madras, Hav Begaram had requested for retention of married accommodation on academic grounds of his children which was granted upto 20.05.2002. Since the unit of Hav Begaram, 8 Madras was deployed in Op Parakram, case was taken up by his unit for further extension of government married accommodation and allow him to retain government married accommodation till de-induction of the unit from Op Parakram, which was allowed. After being posted to 8 Madras, he availed leave thrice in the year 2002 from **28.03.2002 to 06.04.2002, 25.06.2002 to 17.07.2002 and 08.11.2002 to 19.11.2002** and during the leave period, he stayed with his family in Government married accommodation in Belgaum.

(b) Though Hav Begaram was posted as 'Q' Clerk, but the alleged fake documents pertaining to enrolment were also prepared and handled by him while going out on rallies (PW-9).

(c) Blank forms of call letters were being printed in MLIRC printing press (PW-9 & PW-10). However, the printed forms received from MLIRC printing press were not printed with serial/registration numbers (PW-10 & PW-13). Since the forms were being printed outside the BRO and no registration/serial numbers are printed on them and also no mechanism was available to have check on the counting of the forms, there was a possibility to have easy access to these forms/ getting photocopies of these forms by unauthorized personnel.

(d) There was no mechanism available in the BRO, Belgaum to have a check on its personnel having contacts with outside personnel after office hours, especially those who are residing outside with families (PW-13).

(e) The original documents/exhibits were brought before the Court by Mr MA Kazi of JMFC, Sankeshwar (PW-12) and were photocopied by the

Court. At the request of Hav Begaram, xeroxed CTCs of all the documents were also provided to him and no objection on the authenticity of signatures/writings, etc was raised by Hav Begaram or his friend. Moreover, Shri GM Desur (PW-5) produced relevant documents before the court from the case file and shown to the Court in presence of Hav Begaram. The court also verified the signatures of PSI GM Desur on each samples along with the signatures of Panchas, wherein one of the Panchas, Hav/Clk Ganeshappa had also endorsed date of his signatures as 20.02.2003. These documents were also perused by the Applicant as well as his friend (Civil Advocate SS Patil) and no objection was raised on the authenticity.

(f) Hav Begaram was provided copies of Summary of Evidence, Charge Sheet and Convening Order on 19.05.2007 and receipt obtained from him. Though, Hav Begaram had signed on the certificate the different times for receipt of Summary of Evidence, Charge Sheet and Convening Order, but the same has been countersigned by Sub Maj/Clk R Sarathi with endorsement that the receipt obtained from Hav Begaram at 1335 hours on 19.05.2007 (Page No 309 of SCM proceedings).

(g) Col Arjun Gupta (former BRO, Belgaum) (PW-19) deposed before the Court that several anonymous complaints were received against Hav/Clk Begaram, but the same could not be verified due to time constraints and lack of concrete evidence.

(h) Shri Bhimappa P Ramankatti (PW-15) identified Hav/Clk Begaram and in answer to Question No 331, he deposed as under:- *"In Jan 2001, I had come for enrolment at the BRO at Fort, Belgaum. In that, I had passed in Running, Push ups and Chin ups. We were called the next day for the rest of the Physicals at BRO, Belgaum. I stood in a line along with others who had cleared the tests earlier. On the same day, one candidate was made to stand in the same line along with us by Hav/Clk Begaram. That candidate (I don't recollect the name) was in my group when tested for Running but had failed in the Running Test on the day prior. I don't know how he managed to put him through then. The said candidate's marks cards were also available with the RO there.*

*The candidate later was declared medically unfit while I was declared medically fit. I kept wondering thereafter as to how all this had happened and how his marks card reached the Branch Recruiting Officer. Some candidates reporting for enrolment were staying at Devaki Lodge and Ashok Lodge at Kaktives, Belgaum.*

*There were about 10 candidates in my group who got through in one go. I was told that their agent was one Billa (He's no more as he died recently of a heart attack) who had links with some body at the BRO. When I realized that one could get enrolled through such means that is the time I got in contact with Smt Chandbi who I knew was one such agent dealing with enrolment of candidates.*

*I would also like to add that the son of Hav/Clk Begaram had come to Shri Kedari Gadakari's house along with 2-3 others in connection with striking a deal/compromise and to seek withdrawal of the case against Hav/Clk Begaram....."*

(i) Nb Sub Ramjan Desai (husband of Smt Chandbi Desai) (PW-8), identified Hav Begaram and deposed that Hav Begaram had come to his house in Jan/Feb 2002 on his Bajaj Scooter and asked about the payment of balance money (Statements 1 to 4). He also admitted that his wife, Smt Chandbi knows Hav Begaram.

(j) Sub Maj & Hony Capt SN Yadav (Retd) (PW-10) deposed that after posting out from BRO, Belgaum, Hav Begaram had visited BRO, Belgaum in connection with government married accommodation allotted to him while he was on leave in May/Jun 2002.

13. It is pertinent to note that after an offence is committed or information is received by the Army where involvement of Army personnel is alleged, the first step is Court of Inquiry. Thus, the process of Court Martial under Army Act begins with the report of Court of Inquiry set up by the Army authorities for the purpose to investigate the allegations against its personnel. However, the Court of Inquiry does not have the authority to award any punishment nor the material collected during proceedings of Court of Inquiry are admissible in evidence as per Rule 182 of Army Rules, 1954, which reads as under:- ***"182. Proceedings of Court of Inquiry not admissible in Evidence.*** – *The proceedings of a Court of Inquiry, or any confession, 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 the Act, 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:*

*Provided that nothing in this rule shall prevent the proceedings from being used by the prosecution or the defence for the purpose of cross-examining any witness."*

Thus, the purpose of Court of Inquiry is to gather evidence and record the statements of witnesses. Once the Court of Inquiry completes its investigation, the Commanding Officer of the accused officer on the basis of satisfaction that prima-facie case is made out and the offences are triable under the Army Act and that the prima-facie evidence justifies the charges, provides a tentative charge sheet. The charges are then heard and the Summary of Evidence is recorded in the presence of its personnel. Thereafter the Court Martial is ordered in order to conduct a fair trial.

14. In the matter in hand, in a criminal case registered at Police Station, Yamakanmardi, it was found during the investigation that for the purpose of cheating, fake call letters for enrolment in the Army were issued and the complainants had been cheated. During the investigation, the Police recovered fake call letters bearing forged signatures of Sub Maj & Hony Capt Mahabir Prasad. During investigation it was also found that the call letters had been given to one Smt Chandbi Desai @ Geeta by Hav/Clk Begaram and further on confirmation from BRO, Belgaum it was also found that the call letters had not been issued by BRO, Belgaum and the seal/signatures and JC No of Sub Maj & Hony Capt Mahabir Prasad not tallied with the original documents available with them. Based on the aforesaid Police Report from Police Station, Yamakanmardi, Court of Inquiry was ordered vide Station HQ, Belgaum letter No 109/7/A2 dt 11 Nov 2002 to investigate into the circumstances under which the alleged use of fake stamp and forged signatures on photocopies of call letters by a civilian and a service accomplice were made. On perusal of records, during the Summary Court Martial, as per the opinion of Hand-writing Expert, the Applicant-Hav Begaram, was the person who wrote the red enclosed standard writings stamped and marked B1 to B10 also wrote the red enclosed questioned writings similarly stamped and marked Q1 (Opinion 2 in Criminal Case No 184/2002).

15. As regards the contention of the Applicant that he was tried by Summary Court Martial on 23.05.2007 without giving mandatory warning time of 96 hours, the Respondents have clearly submitted that the Applicant was informally interviewed by the Commanding Officer on **18.05.2007 wherein he was shown a copy of the Charge Sheet against him and an unsigned copy was handed over to the Applicant. He was also informed that he would be officially marched up at 1000 hours on 19.05.2007, the entry of which had been maintained in the**

**interview register.** On 19.05.2007, at 1000 hours, the Applicant was marched up to the Commanding Officer and a signed copy of the Charge Sheet was handed over to him for his perusal and further action. He requested to allow him to consult his Lawyer before appending his signatures on the receipt acknowledging the receipt of the same for which he was allowed and the receipt was received at 1335 hours on 19.05.2007 and the same has been endorsed by the Applicant in the certificate. Thereafter, trial by Summary Court Martial of the Applicant was commenced on 23.05.2007 at 1355 hours, after elapsing clear 96 hours after handing over the Charge Sheet to the Applicant. Rule 182 of Army Rules, 1954 provides that the proceedings of a Court of Inquiry is not admissible in evidence, so from 17.04.2007 to 21.04.2007, Additional Summary of Evidence was recorded in the presence of Hav Begaram. Thereafter, Summary Court Martial against the Applicant-Hav Begaram commenced from 23.05.2007.

16. It is pertinent to note that the petitioner was found Guilty. As per the Military Law, the Applicant appealed against the conviction to the superior military authorities but his petition was rejected, being devoid of merit. In the instant case, the Applicant failed to produce cogent evidence on record in order to protect his career wrecked by the aforesaid scandal whereas he was given full opportunity to participate in the disciplinary proceedings at all levels. There is no material on record which goes to suggest that the Applicant, Hav Begaram was falsely implicated with an ulterior motive. It is also pertinent to note that the action initiated on the basis of first information received at Police Station, Yamakanmardi during investigation, the concerned Investigating Officer procured opinion of the handwriting expert with regard to fake call letter which goes against the Applicant, Hav Begaram, the expert's opinion is based on the scientific studies. Therefore, there is no reason to disbelieve the findings of the experts, especially when the same has been corroborated with the statements of the other witnesses during the Summary Court Martial. Moreover, there is no material which reflects that the trial by Court Martial was influenced by any biasness or malafide intentions.

17. On the issue of judicial review, the Hon'ble Supreme Court in its judgment dt 21.09.2021 (Para 23) in Civil Appeal No 5848/2021 in the case of ***UOI & Ors Vs Dalbir Singh*** held as under:- "23. In another Judgment reported as **B.C Chaturvedi v. UOI & Ors, (1995) 6 SCC 749**, it was held that the power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. The Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. The Court is to examine as to whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. This Court held as under:-

"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. **The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence.** The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to re-appreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In *UOI Vs H.C. Goel* [(1964) 4 SCR 718 : AIR 1964 SC 364 : (1964) 1 LLJ 38], this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."

18. In the case **State Bank of Patiala & Ors Vs S.K. Sharma, (1996) 3 SCC 364**, the Hon'ble Apex Court summarized the legal position relating to violation of procedural provisions in the disciplinary proceedings and orders of punishments as under:- "We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee):

(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal 

should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.

(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.

(3) In the case of violation of a procedural provision, the position is this: **procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/ employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice, including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for.** In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/ government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.

(4) (a) In the case of a procedural provision which is not of a mandatory character the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.

(b) In the case of violation of a procedural provision which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirements either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/ employee has not it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in *B. Karunkar, (1993) 4 SCC 727*. The ultimate test is always the same viz., test of prejudice or the test of fair hearing, as it may be called.

(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action **the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing"/"no fair hearing".**

(a) In the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). In such cases, normally, liberty will 

be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (*audi alteram partem*).

(b) But in the latter case, the effect of violation (of a facet of the rule of *audi alteram*) has to be examined from the standpoint of prejudice; in other words, **what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/ employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query.** (It is made clear that this principle [No.5] does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.)

(6) While applying the rule of *audi alteram partem* (the primary principle of natural justice) the Court/ Tribunal/ Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.

(7) There may be situations where the interests of state or public interest may call for a curtailing of the rule of *audi alteram partem*. In such situations, the Court may have to balance public/ State interest with the requirement of natural justice and arrive at an appropriate decision."

19. Perusal of records reveals that the due process was followed by the Court of Inquiry as well as Summary Court Martial proceedings and no rules/regulations were violated by the Respondents. The accused, Hav Begaram was provided Friend of the accused (Civil Advocate SS Patil) and he was given full opportunity to cross-examine the witnesses. The proceedings of Summary Court Martial was time and again adjourned, assembled and re-assembled as per the request of the Applicant or the friend of the accused in consonance with the procedures laid down in the Army Act and Army Rules and the compliance of rules/regulations were also endorsed in the proceedings in view of the right of the accused to a fair trial, right to Counsel, right to present evidence and right to confront witnesses. The statements of Witnesses in Court of Inquiry as also Summary Court Martial proceedings clearly establish that Hav Begaram had acquaintance with Smt Chandbi Desai. Hav Begaram had visited residence of Smt Chandbi Desai and Smt Chandbi had also visited the government married accommodation where Hav Begaram along with his family was residing. Smt Chandbi Desai and Nb Sub Ramjan Desai also identified the model and colour of the Scooter of Hav Begaram. Blank call letter forms were being got printed from MLIRC printing press without any serial number/registration number endorsed on them and no mechanism was available in the BRO, Belgaum to check on the misuse of these blank forms by other personnel.


20. Indisputably, Hav Begaram, being a Clerk, was also involved in the recruitment process and had access to blank call letter forms. It is also not in dispute that after being posted out to 8 Madras from BRO Belgaum wef 03.02.2002, Hav Begaram was on leave for the period from 28.03.2002 to 06.04.2002, 25.06.2002 to 17.07.2002 and 08.11.2002 to 19.11.2002 and availed his leave at Belgaum itself where his family was residing. Statement of PW-8 (Nb Sub Ramjan Desai) proves that Hav Begaram had contacts with Smt Chandbi Desai and he had gone to her residence for collection of balance money in the month of Jan/Feb 2002, i.e., immediately before his posting out to 8 Madras. Statements of PW-15 (Bhimappa P Ramankatti) and Col Arjun Gupta (PW-19) corroborates the fact that there was nexus between Hav Begaram and the recruitment racket and in order to cheat innocent civilians, he had links with some touts. Statement of Court Witness No 1 (Sub MA Desai of 877 AT Bn ASC) also establishes that Hav Begaram had links with Smt Chandbi Desai. Smt Chandbi Desai had also deposed that the fake call letters were given to her by Hav Begaram itself. The opinion of handwriting expert also confirmed that the writings on the fake call letters tallied with the writings of Hav Begaram.

21. Attempting to cast doubts on transparency and fairness of recruitment process in Army also falls under the category of serious misconduct. Section 64 (e) of Army Act, 1950 provides as under:- **"64. Miscellaneous offences.** Any person subject to this Act who commits any of the following offences, that is to say, - (e) directly or indirectly accepts or obtains, or agrees to accept or attempts to obtain, for himself or for any other person, any gratification as a motive or reward for procuring the enrolment' of any person, or leave of absence, promotion or any other advantage or indulgence for any person in the service; shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.

22. Section 68 of Army Act, 1950 provides for abetment of offences punishable with imprisonment and not committed, which reads as under:- **"68. Abetment of offences punishable with imprisonment and not committed.**

– Any person subject to this Act who abets the commission of any of the offences specified in sections 34 to 64 inclusive and punishable with imprisonment shall, on conviction by Court-Martial, if that offence be not committed in consequence of the abetment, and no express provision is made by this Act for the punishment of such abetment, be liable to suffer imprisonment for a term which may extend to one-half of the longest term provided for that offence or such less punishment as is in this Act mentioned."

23. Further, Section 69 of Army Act, 1950 deals with Civil Offences, which provides:- "69. **Civil offences.** Subject to the provisions of section 70, any person subject to this Act who at any place in or beyond India commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be tried by a court-martial and, on conviction, be punishable as follows, that is to say,- (a) if the offence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and (b) in any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned."

24. The Military Court Martial is a serious and formal process which is designed to ensure that military personnel are held accountable for their actions and that the military maintains its standards of conduct and discipline, a charge of misconduct has to be established on a preponderance of probabilities. The rules of evidence which applied to a criminal trial are distinct from those which govern a disciplinary proceeding. In a case reported in **2020 (2) SCC 130, The State of Bihar Vs Phulpari Kumari**, the Hon'ble Supreme Court held as under:- "6. The criminal trial ..... **It is settled law that interference with the orders passed pursuant to a departmental inquiry can be only in case of 'no evidence'. Sufficiency of evidence is not within the realm of judicial review. The standard of proof as required in a criminal trial is not the same in a departmental inquiry. Strict rules of evidence are to be followed by the criminal Court where the guilt of the accused has to be proved beyond reasonable doubt. On the other hand, preponderance of probabilities is the test adopted in finding the delinquent guilty of the charge.** The High Court ought not to have interfered with the order of dismissal of the Respondent by re-examining the evidence and taking a view different from that of the disciplinary authority which was based on the findings of the Inquiry Officer."

25. Further, in a case decided on 22.03.2022 in Civil Appeal No 1763-1764 of 2022 in the case of **The State of Karnataka & Anr Vs Umesh**, the Hon'ble Apex Court held that the principles which govern a disciplinary enquiry are distinct from those which apply to a criminal trial. The relevant paragraphs of the judgment reads as under:- "13. The principles which govern a disciplinary enquiry are distinct from those which apply to a criminal trial. In a prosecution for an offence punishable under the criminal law, the burden lies on the prosecution to establish the ingredients of the offence beyond reasonable doubt. The accused is entitled to a presumption of innocence. The purpose of a disciplinary proceeding by an employer is to enquire into an allegation of misconduct by an employee which results in a violation of the service rules governing the relationship of employment. Unlike a criminal prosecution where the charge has to be established beyond reasonable doubt, in a disciplinary proceeding, **a charge of misconduct has to be established on a preponderance of probabilities. The rules of evidence which apply to a criminal trial are distinct from those which govern a disciplinary enquiry.** The acquittal of the accused in a criminal case does not debar the employer from proceeding in the exercise of disciplinary jurisdiction.

14. In a judgment of a three judge Bench of this Court in **State of Haryana v. Rattan Singh (1977) 2 SCC 491**, Justice VR Krishna Iyer set out the principles which govern a disciplinary proceedings as follows:

"4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. **All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility.** It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair-play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiates the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence - not in the sense of the technical rules governing regular court proceedings but in a fair common-sense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the Flying Squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground." (emphasis supplied) These principles have been reiterated in subsequent decisions of this Court including *State of Rajasthan v. B K Meena (1966) 6 SCC 417*, *Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh (2004) 8 SCC 200*, *Ajit Kumar Nag v. Indian Oil Corporation Ltd (2005) 7 SCC 764* and *CISF v Abrar Ali (2017) 4 SCC 507*."

26. In the alternative argument/prayer, the Applicant has submitted that the punishment of dismissal from service may be modified to discharge from service. In the case of **Union of India Vs RK Sharma, (2001) 9 SCC 592** Hon'ble Apex Court held that in exercise of powers of judicial review interfering with the punishment of dismissal on the ground that it was disproportionate, the punishment should not be merely disproportionate but should be strikingly disproportionate. As observed and held that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Article 226 or 227 or under Article 32 of the Constitution. Applying the law laid down by Hon'ble Apex Court in the aforesaid decision to the facts of the case on hand, it cannot be said that the punishment of dismissal from service can be said to be strikingly disproportionate warranting interference.

27. In view of the above and based on the corroboration of the opinion of handwriting expert, statement of witnesses and circumstantial evidence, I am of the considered opinion that **the Applicant-Hav Begaram had connections and links with the recruitment racket and by any stretch of imagination the matter in hand does not fall under the category of "no evidence case"**. Moreover, it cannot be ignored that the national security depends on the shoulders of armed forces and the high standards of the morale of the armed forces have to be maintained at all costs. Tolerance of such serious activities, especially related to fairness of recruitment process in the armed forces will serve as leveraging of such nefarious activities which, in long turn, would have cascading effect of the morale of the armed forces in particular and the national security as a whole, where prima-facie it appears that a nexus does exist.

28. Taking note of gravity of the offence of cheating with unemployed youths, I am of the opinion that the conviction of the accused by Summary Court Martial under Section 69 of Army Act, 1950 for committing the offence, that is to say, forgery for purpose of cheating, contrary to Section 468 of the Indian Penal Code, 1860 is justified and legally sustainable. In view of the above, there is no scope of interference in the findings of the Summary Court Martial proceedings in finding him "Guilty" as recorded by the Competent Authority.

29. The OA is devoid of merit on all counts, and hence, is dismissed.

30. No order on costs.

**(Justice Goverdhan Bardhar) Member (J)**

Ssy/-

**ARMED FORCES TRIBUNAL, REGIONAL BENCH, MUMBAI**

**TRANSFER APPLICATION NO. 24 OF 2011**

<tr> <td>Bega Ram Ex- Havildar No.2589280A</td> <td align="right">]</td> </tr> <tr> <td>S/o Shri Bhuraram, aged about 56 years,</td> <td align="right">]</td> </tr> <tr> <td>Presently residing at Village and Post Supka,</td> <td align="right">]</td> </tr> <tr> <td>Tehsil- Didwana, District- Nagpur,</td> <td align="right">]</td> </tr> <tr> <td>Rajasthan – 341 303.</td> <td align="right">] .. Applicant</td> </tr> </table>

**Versus**

<tr> <td>1. Union of India</td> <td align="right">]</td> </tr> <tr> <td>Presented by the Secretary, Ministry of Defence,</td> <td align="right">]</td> </tr> <tr> <td>South Block, DHQ PO, New Delhi – 110 001.</td> <td align="right">]</td> </tr> <tr> <td>2. Chief of the Army Staff,</td> <td align="right">]</td> </tr> <tr> <td>COAS Secretariat, Integrated Headquarters,</td> <td align="right">]</td> </tr> <tr> <td>Ministry of Defence (Army),</td> <td align="right">]</td> </tr> <tr> <td>South Block, DHQ PO, New Delhi – 110.</td> <td align="right">]</td> </tr> <tr> <td>3. Lt. Col. Robin Fernandez,</td> <td align="right">]</td> </tr> <tr> <td>Administrative Battalion Commander,</td> <td align="right">]</td> </tr> <tr> <td>The Maratha Light Infantry Regimental Centre,</td> <td align="right">]</td> </tr> <tr> <td>Belgaum.</td> <td align="right">]</td> </tr> <tr> <td>4. Branch Recruiting Officer,</td> <td align="right">]</td> </tr> <tr> <td>8 Madras, C/o 56 APO.</td> <td align="right">]</td> </tr> <tr> <td>5. The Station Commander,</td> <td align="right">]</td> </tr> <tr> <td>Station Headquarter, Belgaum.</td> <td align="right">]</td> </tr> <tr> <td>6. Lieutenant General,</td> <td align="right">]</td> </tr> <tr> <td>General Officer Commanding-in-Charge,</td> <td align="right">]</td> </tr> <tr> <td>Southern Command, Pune- 411 001.</td> <td align="right">] .. Respondents</td> </tr> </table>

.....

**Present through**

Applicant in person.

**Video Conferencing -**

Mr. Brij Bhari Sharma, Central Govt. Pleader for the Respondents.

.....

**ORDER ON REFERENCE**

1. 1. Consequent to making over the matter under Section 28 of Armed Forces Tribunal Act, 2007 by Hon'ble Chairperson of Armed Forces Tribunal, Principal Bench at New Delhi, this order shall answer the reference which has arisen in view of difference of opinion between the Hon'ble Members of Armed Forces Tribunal, Regional Bench at Jaipur.

2. 2. In this matter (T.A. No. 24/2011), the applicant had challenged his conviction and sentence in Summary Court Martial (SCM). While the Hon'ble Administrative Member allowed the prayer of the applicant on the ground of SCM proceedings being time barred, as also on merits, the Hon'ble Judicial Member upheld the SCM proceedings and order of conviction and dismissed the O.A.

3. 3. In note of reference, the points of difference were submitted by quoting paragraph No.19 written by Hon'ble Administrative Member and paragraph Nos. 28 and 29 written by Hon'ble Judicial Member. These paras are reproduced as under:- **Para 19 by Hon'ble Administrative Member-**

*"19. Resultantly, the OA is allowed. The Respondents are directed to pay the entire arrears of pay and allowances and pension accruing thereof by notional reinstatement in service of*

*the applicant within a period of six months from the date of receipt of a certified copy of this Order. In default thereof, the applicant shall be entitled to receive interest @ 6% pa till the date of its actual payment. The applicant shall also be entitled to ECHS, CSD and ESM status and all consequential benefits in accordance with the extant rules and regulations. The applicant shall also be eligible for grant of maturity benefits out of his contribution made towards AFPP Fund and AGIF, if not already paid to him."*

**Paras 28 and 29 by Hon'ble Judicial Member-**

*"28. Taking note of gravity of the offence of cheating with unemployed youths, I am of the opinion that the conviction of the accused by Summary Court Martial under Section 69 of Army Act, 1950 for committing the offence, that is to say, forgery for purpose of cheating, contrary to Section 468 of the Indian Penal Code, 1860 is justified and legally sustainable. In view of the above, there is no scope of interference in the findings of the Summary Court Martial proceedings in finding him "Guilty" as recorded by the Competent Authority.*

*29. The OA is devoid of merit on all counts, and hence, is dismissed."*

4. The facts of the case as narrated in O.A. were that the applicant was enrolled in Indian Army on 15.03.1985. From December 1999 to 02/02/2002, the applicant was posted as Clerk in BRO Belgaum and was assigned the task of Quartermaster Clerk. During this period, a complaint was filed before the Police by the complainant that one Smt. Chand Bi alias Geeta and Shri Mukhtar Ahmed ensured direct recruitment in Army without interview due to their ability to influence the Recruitment Authority. The Complainant was thus, induced into giving them money for recruitment, however he found himself to have been cheated. Thereafter he filed a complaint. On investigation, it was found that the complainant had been given a fake Call Letter containing forged signatures of Sub Major and Honorary Captain. The entries in the Call Letter were found to have been filled in by the applicant. Criminal case was registered against the applicant by Yamkanmardi Police Station, Belgaum. During the pendency of Criminal case, the applicant was called from his unit and was attached for disciplinary purpose. Respondent No.6 i.e. Station Commander at Station, HQ Belgaum recommended disciplinary action against the applicant on 29.04.2004. Applicant was tried in SCM on 23.05.2007 which concluded on 06.09.2007; wherein he was found guilty and was awarded punishments of, (i) Reduction to Ranks; (ii) One Year Rigorous Imprisonment in Civil custody, and (iii) Dismissal from service. Applicant was sent to Civil Jail on 06.09.2007.

5. Applicant filed Writ Petition No. 15146 of 2007 before the Hon'ble High Court of Karnataka, and the High Court stayed the SCM proceedings against the applicant till the disposal of applicant's Appeal to the GOC-in-C, HQ Southern Command. However, the stay order was rendered inoperative because applicant has already completed his sentence. Meanwhile, his Appeal was also rejected. In the Criminal case registered against the Petitioner, the charge sheet was filed against the applicant under Section 324, 468, 471, 420, 504 r/w Section 34 of the IPC. Amongst many ground taken in the O.A., one of the ground was that the SCM was barred by limitation period under Section 122 of Army Act, 1950. It was stated that the local Police authorities of Yamkanmardi Police Station, Belgaum had registered a Criminal case against the Petitioner and had sent information to respondent No.4 on 03.10.2002. Therefore, the SCM ought to have commenced on or before 03.10.2005, whereas it has commenced on 23.05.2007 i.e. about two years later. Hence, the SCM proceedings are vitiated.

6. Respondents in their reply stated that the matter was pending before the Criminal Court and the Army Authorities could not take any action till the case was transferred from the Criminal Court to the Army Authorities and they could not proceed against the Petitioner till the relevant certificate transferring the case to the Army Authorities was received on 27.01.2007 (pg. 92-93 of the reply).

7. Considered. The first question which arises is as to whether the SCM was time barred or not?

8. In its impugned final order dated 29.11.2024, the Hon'ble Administrative Member held that the SCM was time barred. The relevant paragraphs of the opinion of the Administrative Member are as follows:- *"10. As regards commencing of SCM within a period of three years from the date when the offence/alleged act comes to the knowledge of the competent authority as ordained by Section 122 of Army Act, 1950, the following chronology of events relating to his case has been noted:-*

- (a) 19 Aug 2002 : FIR is lodged for receiving a fake Call Letter for enrolment of his son in Indian Army by Shri Babu Ningappa Gadakari.

- (b) 03 Oct 2022 : Army authorities informed by Police Authorities regarding the alleged by the applicant.

- (c) 18 Oct 2002/ 21 Oct 2002 : Another letter issued to Army Authorities by Police Authorities.

- (d) 05 Nov 2002 : Instructions for holding Staff Court of Inquiry issued.

- (e) 20 Mar 2003 : Court of Inquiry ordered.

- (f) 29 Apr 2004 : Recommendation made for proceeding with Disciplinary action against the applicant.

- (g) 22 Nov 2006 : Summary of Evidence is recorded.

- (h) 17 Apr 2007 : Additional Summary of Evidence is recorded.

- (i) 19 May 2007 : Notice to the applicant alongwith a <table> <tr> <td></td> <td></td> <td>copy of the Charge Sheet.</td> </tr> <tr> <td>(j)</td> <td>23 May 2007</td> <td>: SCM commences.</td> </tr> <tr> <td>(k)</td> <td>06 Sep 2007</td> <td>: Conclusion of SCM and<br/>Punishment/Sentence announced.</td> </tr> </table>

11. From the above, it is clear that the Army authorities had been duly informed of the alleged commission of an offence by the applicant as early as 03/10/2002. However, it took the Army authorities nearly four years and seven months to commence the SCM despite the fact that the entire information pertaining to the case was available with them. Filing of a Charge Sheet dated 31/03/2005 is not relevant as army authorities had already started investigations/ inquiry with the alleged offence by the applicant. Moreover, the applicant was not even charge sheeted by the Police as Army authorities were getting the matter investigated in accordance with their laws. Hence, commencement of SCM more than three years after the knowledge of army authorities of the offence allegedly committed by the applicant is clearly violative of Section 122 of the Army Act 1950. The contention of the Respondents that it was validly conducted within the limitation does not hold water and is liable to be rejected.

12. Section 122 of Army Act 1950 states as follows:- **"122. Period of limitation for trial.**

(1) Except as provided by sub- section (2), no trial by court-martial of any person subject to this Act for any offence shall be commenced after the expiration of a period of three years and such period shall commence, (a) on the date of the offence; or (b) where the commission of the offence was not known to the person aggrieved by the offence or to the authority competent to initiate action, the first day on which such offence comes to the knowledge of such person or authority, whichever is earlier; or

(c) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the authority competent to initiate action, whichever is earlier.

(2) The provisions of sub- section (1) shall not apply to a trial for an offence of desertion or fraudulent enrolment or for any of the offences mentioned in section 37.

(3) In the computation of the period of time mentioned in sub- section (1), any time spent by such person as a prisoner of war, or in enemy territory, or in evading arrest after the commission of the offence, shall be excluded.

(4) No trial for an offence of desertion other than desertion on active service or of fraudulent enrolment shall be commenced if the person in question, not being an officer, has subsequently to the commission of the offence, served continuously in an exemplary manner for not less than three years with any portion of the regular Army."

*Thus, it is clear that SCM against the applicant should not have commenced wef 23/5/2007 as it started much after the limitation period of three years was over as in this case the alleged offence is not covered under the exception provided in Sub Section (2) of Section 122 of Army Act and the identity of the person who was to be arraigned before Court Martial was known to Army authorities from the very beginning. Hence, the entire trial is considered as void ab initio."*

1. 9. The Hon'ble Judicial Member, however did not dwell upon the SCM being time barred or not and only considered the merits of the case.

2. 10. Thus, answering the question raised in T.A. regarding the SCM being time barred, which was overlooked by the Hon'ble Judicial Member needs to be gone into in the first place.

3. 11. Section 122 of Army Act has already been reproduced by Hon'ble Administrative Member and the same is not required to be reproduced again. The learned counsel for the respondents, has made submissions through Video Conferencing and submitted that the time during which the matter was pending before the Criminal Court shall have to be excluded.

4. 12. Submission was considered. Regarding the period which can be excluded for computing the limitation period, is given in Section 122(3) of Army Act which reads as under:- **"122. Period of limitation for trial.**

(1) ...

(2) ...

(3) *In the computation of the period of time mentioned in sub-section (1), any time spent by such person as a prisoner of war, or in enemy territory, or in evading arrest after the commission of the offence, shall be excluded.*

(4) ..."

13. Thus, the period during which the matter is pending before the Criminal Court is not liable to be excluded as per the above provisions i.e. Section 122(3) of Army Act. In fact, the concerned Commanding Officer of the Army should himself decide as to whether the proceedings against Army personnel be instituted before the Criminal Court or Court Martial, and after he decides that the proceedings be instituted before Court Martial, the Army personnel shall be detained in military custody. Section 125 of Army Act is relevant for the purpose, which is reproduced as under:- **"125. Choice between Criminal Court and Court-Martial.-** *When a Criminal Court and a Court-Martial have each jurisdiction in respect of an offence, it shall be in the discretion of the officer commanding the army, army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which*

*Court the proceedings shall be instituted, and, if that officer decides that they should be instituted before a Court-Martial, to direct that the accused person shall be detained in military custody."*

14. Above provisions shows that the concerned Army Authorities ought to exercise its discretion regarding subjecting accused to Court Martial or to be prosecuted in Criminal Court as soon as the Army Authorities have become aware about concurrent jurisdiction of Criminal Court and Court Martial.

15. It would be appropriate to go through the chronology of the events as occurring in the present case. The chronology is depicted in table below:-

<thead> <tr> <th><b>Date</b></th> <th><b>Event</b></th> </tr> </thead> <tbody> <tr> <td>03.10.2002</td> <td>The Police Officer, Yamakanamardi Distt Belgaum informs the In-Charge B.R.O Office, Fort Belgaum. (Annx-C, Pg.41).</td> </tr> <tr> <td>05.11.2002</td> <td>Instruction issued by KK sub area to Respondent No.6 to invite Staff for Court of Inquiry.</td> </tr> <tr> <td>29.04.2004</td> <td>Recommendation of the Station Commander, Belgaum for the disciplinary action against the applicant, Annx-"F"; (Pg-48)</td> </tr> <tr> <td>23.05.2007</td> <td>Summary Court Martial commences (Pg-67) of O.A.</td> </tr> <tr> <td>06.09.2007</td> <td>Conclusion of SCM (Annx-K, Pg-65)</td> </tr> </tbody> </table>

16. From the above, it is clear that the BRO Office at Fort Belgaum had got the knowledge about alleged involvement of the applicant on 03.10.2002 and they considered it appropriate to hold Court of Inquiry in this matter. Thus, from the beginning the Authorities (Respondents) were inclined to investigate/inquire the matter as per Army Regulations. On the basis of the staff Court of Inquiry report, respondent No.6 i.e. Station Commander, Station HQ, Belgaum recommended disciplinary action against the applicant on 29.04.2004. The aforesaid recommendation at pg.48 of Writ Petition is being reproduced as under:- *"Recommendation of the Station Commander, Belgaum on the proceedings of the Court of Inquiry convened to investigate into the circumstances under which the alleged use of fake office stamps and forged signatures on the Call Letters were made by a civilian and his service accomplice.*

1. 1. *I agree with the opinion of the court.*

2. 2. *From the evidence on record prima facie involvement of No.2589280A Havaldar/Clk Bega Ram of 8 Madras, C/o 56 APO in issuing fake Call Letter in connivance with Mrs. Chandbee Geeta Desai, w/o Ramjan Desai, Vill-Mallapur, The- Gokak, Belgaum District has been established.*

3. 3. *I therefore recommend that discp action be initiated against No.2589280A Hav/Clk Bega Ram of 8 Madras, C/o 56 APO.*

*Station : Belgaum*

*Date : 29 Apr 2004*

*(Ranjeet Mishra)*

*Col*

*Offg Stn Cdr"*

17. From perusal of the proceedings, it appears that Summary of Evidence was thereafter recorded 1 $\frac{1}{2}$ years later on 22.11.2006. Thereafter additional Summary of Evidence was recorded on 17.04.2007. Subsequently notice was issued to petitioner and copy of charge sheet was handed over to him on 29.05.2007 and the SCM commenced on 23.05.2007. The limitation period shall be counted from 29.04.2004 which was the date when Station Commander recommended that the disciplinary action be initiated against the applicant. From this date, the SCM should have been commenced latest by 29.04.2007 i.e. within 03 years as per Section 122 of Army Act. However, SCM commenced on 23.05.2007. Thus, the SCM was barred by limitation. The period during which the matter was pending before Criminal Court is not liable to be excluded. The Army Authorities had already acquired knowledge about the alleged involvement of the applicant on 03.10.2002 and they had initiated Court of Inquiry soon thereafter. They cannot submit that the period during which the matter was pending before Criminal Court be excluded. It appears that even after obtaining the certificate transferring the case to the Army Authorities on 27.01.2006, no swiftness was shown by Army Authorities and Summary of Evidence was recorded by Army Authorities 10 months later

i.e. 22.11.2006. Unwarranted delay resulted in commencing of SCM after the lapse of limitation period of 03 years. Thus, the conclusion is that SCM is barred by limitation. The order of Hon'ble Administrative Member that the SCM is barred by limitation is appropriate. However, the computation of limitation by Hon'ble Administrative Member, in my view is not as per the statutory provisions. Therefore, there is no doubt about the fact that the SCM is barred by limitation period as stipulated under Section 122 of Army Act.

18. In view of the above conclusion, it would not be appropriate to deal with the merits of the case. The reference is answered as under- *"This SCM proceedings being barred by limitation, conviction and sentence of appellant is liable to be set aside."*

19. In consequence paras 19 and 20 of the order of Hon'ble Administrative Member stand affirmed.

(JUSTICE SHAILENDRA SHUKLA) MEMBER JUDICIAL AFT, RB, MUMBAI

Date – 18.08.2025 NJV/-

**ARMED FORCES TRIBUNAL, REGIONAL BENCH, JAIPUR**

**S2/1.**

**TA No 24 of 2011**

Ex Hav Bega Ram, S/o Shri Bhura Ram, Resident of VPO- Supka, Tehsil-Didwana, District Nagaur, Rajasthan – 341 303

.... Applicant

Versus

1. 1. UOI, through the Secretary, Ministry of Defence, South Block, Govt of India, New Delhi – 110 011

2. 2. Chief of the Army Staff, COAS Sectt, IHQ of MoD (Army), South Block, DHQ PO, New Delhi – 110 011

3. 3. Lt Col Robin Fernandez, Administrative Battalion Commander, The Maratha Light Infantry Regimental Centre, Belgaum

4. 4. Branch Recruiting Officer, Fort Belgaum

5. 5. The Commanding officer, 8 MADRAS, c/o 56 APO

6. 6. The Station Commander, Station HQ, Belgaum

7. 7. Lt General, General Officer Commanding-in-Chief, Southern Command, Pune – 411 001

.... Respondents

For Applicant

: Mr Amit Ojha, Advocate

For Respondents

: Mr Brij Bihari Sharma, Advocate

**CORAM:**

**HON'BLE MR. JUSTICE GOVERDHAN BARDHAR, MEMBER (J)**

**HON'BLE MR. SANJIV MITTAL, MEMBER (A)**

**ORDER**

**09.09.2025**

1. 1. In view of the difference of opinion between the Hon'ble Members of Armed Forces Tribunal, Regional Bench, Jaipur in this matter, consequent to making over the matter under Section 28 of Armed Forces Tribunal Act, 2007 as per the directions of Hon'ble Chairperson, Armed Forces Tribunal, Principal Bench, New Delhi, the Hon'ble Judicial Member of Armed Forces Tribunal, Regional Bench, Mumbai vide Order dt 18.08.2025 has adjudicated as under:- *"18. In view of the above conclusion, it would not be appropriate to deal with the merits of the case. The reference is answered as under:-"*

*"This SCM proceedings being barred by limitation, conviction and sentence of appellant is liable to be set aside."*

1. 19. In consequence paras 19 and 20 of the Order of Hon'ble Administrative Member stand affirmed."

2. The TA is decided according to the opinion of majority and the Order dt 18.08.2025 passed by Hon'ble Judicial Member of AFT (RB), Mumbai shall be read as part of Order dt 29.11.2024 passed by this Tribunal.

(SANJIV MITTAL) MEMBER (A)

(GOVERDHAN BARDHAR) MEMBER (J)

Ssy/-

3. After pronouncement of Order, Learned Counsel for the Respondents made an oral prayer for granting Leave to Appeal to the Hon'ble Supreme Court. As we do not find any point of law of general public importance involved to grant Leave to Appeal, the oral prayer is rejected.


(SANJIV MITTAL) MEMBER (A)

(GOVERDHAN BARDHAR) MEMBER (J)

Ssy/-