IC-56663X COL ANIL KUMAR GUPTA versus UNION OF INDIA & ORS. on 7 November 2022

1. The present appeal filed by the appellant under Section 30(1)of the Armed Forces Tribunal Act, 2007 is directed against the impugnedGjudgment and order dated 30.09.2019 passed by the Court No. 2 ArmedForces Tribunal, Principal Bench, New Delhi (hereinafter referred to as“the Tribunal”) in O.A. No. 32 of 2019 with M.A. No. 645 of 2019,whereby the Tribunal has dismissed the said O.A. filed by the appellant.The O.A. No. 32 of 2019 was preferred by the appellant before theHTribunal challenging the charge-sheet dated 19.11.2018 containing three charges pertaining to the appellant having behaved in a mannerunbecoming his position and the character expected of him, under Section45 of the Army Act, 1950, and challenging the order dated 22.11.2018passed by Convening Authority directing the trial of the appellant byway of General Court Martial (GCM).

2. The short facts leading to the present appeal are that theappellant was commissioned as an officer in the Indian Army in 14battalion of the Rajputana Rifles (Infantry) on 07.12.1996. On 13.08.2015,Col. Ramneesh Pal Singh, a close friend and colleague of the appellantwrote a letter to Brig. Ajav Vig which is reproduced hereunder:

“CONFIDENTIAL

Colonel Ramneesh Pal Singh 14[th] Battalion The RajputanaRifles Commanding Officer PIN-912014

C/o 56 APO

RPS156206/Pers

13, Aug 15

Brig Ajav Vig

Cdr

79Mtn Bde

Pin-908079

C/o 56 APO

COMPLAINT IN R/O IC 56663 COL ANIL K GUPTA

1. I am writing, this letter to bring to your notice an act ofstealing brother officer’s affection by LC 56663, Col AnilK Gupta. The officer is presently posted at HQ DG NCC inNew Delhi, tenanting the appt of Dir NCC (PLU) COORD.

2. The offr has been sending indecent msgs to my wife,which sexually explicit in nature and there is reasonablecause to believe it they have indulged in illegitimate physicalrelationship My wife, Mrs. Sugandhi Aggarwal has beenequally involved and has reciprocated positively to thesemsgs. The offr vis my house in Delhi on 13[th] Jul 2015, afterlying to his wife about some official social engagement andwas present there from 2030H, for approx. two hours.

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A3. With regard to my marriage, I intend initiating divorceproceedings in the civ court, based on charges of infidelity.However, I would request you to initiate suitable inquiryinto the incident and take up case for disep action againstthe offr, as deemed fit. May I also request you to initiatethe process for forthwith posting out of Col AK Gupta fromBDelhi.

With warm regards

Sd/-

CONFIDENTIAL

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Sd/-31.10.15

Sd/-31.10.15

Sd/-31/10 XV”

3. Consequent to the said letter, a Court of Inquiry was conductedby the HQ Delhi Area to investigate into the complaint made by Col.Ramneesh Pal Singh. The said Court of Inquiry was finalized onD11.11.2016 with the directions of GOC Delhi Area to initiate disciplinaryproceedings against the appellant. After the hearing of the Charge interms of Army Rule 22, on 24.07.2017 directions were given for recordingthe Summary of Evidence. On the completion of Summary of Evidence,a prima facie case was made out against the Appellant and accordingly,three charges were framed against the appellant with regard to he havingEbehaved in the manner unbecoming his position and character expectedof him, under Section 45 of the Army Act vide the charge-sheet dated19.11.2018. Consequent thereto, on 22.11.2018 the Convening Authoritydirected the trial by General Court Martial.

4. The appellant vide his letter dated 04.01.2019 addressed to theFConvening Authority, raised an issue pertaining to the period of limitationin terms of Section 122 of the Army Act, however, since the directionsfor trial were given, he was advised to raise the issue before the GeneralCourt Martial. The appellant, thereafter on 07.01.2019, filed an OriginalApplication being no.32/2019 before the Tribunal under Section 14 ofthe Armed Forces Tribunal Act, 2007, challenging the charge-sheet datedG19.11.2018 as well as the order dated 22.11.2018 passed by the ConveningAuthority directing trial of the appellant by General Court Martial. Thesaid OA having been dismissed by the Tribunal vide the impugnedjudgment and order, the present appeal is filed. This Court vide the orderdated 02.12.2019, while issuing a notice to the respondents, had stayedH

the disciplinary proceedings as well as the General Court Martialproceedings.

the disciplinary proceedings as well as the General Court Martialproceedings.

5. The learned counsel appearing for the appellant relying uponSection 122 of the Army Act submitted that the trial by Court Martialwas vitiated being barred by the period of limitation prescribed under thesaid provision. According to him the aggrieved person i.e. Col. RamneeshSingh knew about the commission of the alleged offence when he wrotethe letter on 13.08.2015 and the Convening Authority had passed theorder directing the trial by the General Court Martial on 22.11.2018 i.e.three years after the letter written by Col. Ramneesh Singh. Hence theperiod of three years having already expired as contemplated in Section122 of the Army Act, the Tribunal had committed an error in not quashingthe order dated 22.11.2018 passed by the Convening Authority andconsequently the trial proceedings. He also submitted that the charge-sheet dated 19.11.2018 framing three charges against the appellant underSection 45 of the Army Act, based on the said allegations was alsorequired to be quashed and set aside.

appearing for the respondents vehemently submitted that from the letterdated 13.08.2015 written by the aggrieved person Col. Ramneesh Singhit could not be construed that he had the knowledge about the commissionof the alleged offence by the appellant. According to him, after thecompletion of Summary of Evidence, a prima facie case was made outagainst the appellant and hence the charge-sheet was issued on19.11.2018 and consequently the Convening Authority had directed thetrial by the General Court Martial vide order dated 22.11.2018. He alsodrew the attention of the Court to the letter dated 03.11.2000 written bythe Lt. General, Adjutant General’s Branch, Army Headquarters DHQPO, New Delhi containing the policy dealing with disciplinary aspect ofmatrimonial affairs of officers, which mentioned as to what constitutedthe alleged misbehavior amounting to adultery, to submit that it was onlyafter conducting a court inquiry, it could be concluded that an allegedoffence of stealing the affection of the officer’s wife has been committedby the officer or not, and in the instant case, the said offence was primafacie made out only after the completion of Summary of Evidence. Hefurther submitted that since the department has initiated the departmentalproceedings against the appellant for the charges which are of seriousnature, the Tribunal had rightly not interfered with the said proceedings.

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A7. In order to appreciate the rival contentions raised by the learnedcounsel for the parties, it would be apposite to reproduce the relevantprovision contained in Section 122 of the Army Act, which reads asunder:“122. Period of Limitation for trial– (1) Except as providedBby sub-section (2), no trial by court-martial of any personsubject to this Act for any offence shall be commenced afterthe expiration of a period of three years and such periodshall commence-

(a) on the date of the offence or,C(b) where the commission of the offence was not known tothe person aggrieved by the offence or to the authoritycompetent to initiate action, the first day on which suchoffence comes to the knowledge of such person or authority,whichever is earlier orD(c) where it is not known by whom the offence wascommitted, the first day on which the identity of the offenderis known to the person aggrieved by the offence or to theauthority competent to initiate action, whichever isearlier…”E8. From the bare reading of the said provision, it clearly transpiresthat no trial by Court Martial of any person subject to the Army Act, forany offence could be commenced after the expiration of a period ofthree years, and such period would commence on the date of offence orwhere the commission of the offence was not known to the personFaggrieved by the offence or to the authority competent to initiate action,the first day on which such offence comes to the knowledge of suchperson or authority, whichever is earlier. Hence for the purpose of Section122, the two dates will be relevant i.e., the date when the alleged offencecomes to the knowledge of the person aggrieved and the date on whichthe authority competent to initiate action comes to know about the allegedGoffence. As per Section 3(xvii) “offence” means any act or omissionpunishable under the said Act and includes a civil offence as defined inSection 3(ii) which means an offence triable by a criminal court. Chapter-VI of the Army Act deals with the offences. Section 45 which fallsunder the said Chapter states that Army officer, junior commissionerofficer or warrant officer who behaves in a manner unbecoming hisH

position and the character expected of him shall be liable to sufferpunishment as prescribed therein.

9. In the instant case, having regard to the contents of the letterdated 13.08.2015 written by the aggrieved person i.e., Col. RamneeshSingh to the concerned authority, it clearly transpires that he was awareof the alleged act of the appellant having stolen the affection of his wifeon the date of the said letter. He had specifically mentioned in the saidletter that it was for bringing to the notice of the concerned authorityabout the appellant’s act of stealing affection of his wife. He had furtheralleged therein that the appellant was sending indecent messages to hiswife which were sexually explicit in nature and that he had reasonablecause to believe that the appellant and his wife had indulged in illegitimatephysical relationship with each other. Therefore, the date 13.08.2015would be the crucial date on which the aggrieved person had theknowledge about the commission of the alleged offence. Therefore thetime had started running from the said date for the purpose of Section122 of the said Act. In that view of the matter, the submission of thelearned senior advocate appearing for the respondents that date ofaggrieved person’s knowledge about the commission of the allegedoffence by the appellant, should be construed as the date when therespondents prima facie concluded after the Court of Inquiry that theappellant had committed the offence, cannot be accepted. The date13.08.2015 therefore would be the date on which the aggrieved personsi.e., Col. Ramneesh Pal Singh had the knowledge about the commissionof the alleged offence by the appellant. The Convening Authority havingdirected the trial by General Court Martial vide order dated 22.11.2018,the same was clearly beyond three years and therefore barred underSection 122 of the Act.

10. We are therefore of the opinion that the trial by the GeneralCourt Martial directed vide the order dated 22.11.2018 was clearly barredunder Section 122 of the Army Act. The said proceedings deserve to bequashed and set aside and are accordingly set aside.

11. However, we hasten to add that as per the well settled legalposition[1], the power of judicial review in the matter of disciplinaryproceedings is extremely limited. It is circumscribed by the limits ofcorrecting errors of law or procedural errors leading to manifest injustice 1 Regional Manager, UCO Bank and Anr. vs. Krishna Kumar Bhardwaj, (2022) 5SCC 695

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Aor violation of principles of natural justice. The power of judicial reviewis an evaluation of the decision-making process and not of the merits ofthe decision itself. It is therefore clarified that the disciplinary proceedingsinitiated against the appellant pursuant to the chargesheet issued on19.11.2018 shall continue in accordance with law.

B12. The appeal stands partly allowed accordingly.

Devika Gujral

Appeal partly allowed.

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