J.S. SEKHONversusUNION OF INDIA

                     [2010] 9 S.C.R. 1025


                         J.S. SEKHON                                A
                               v.
                       UNION OF INDIA
               (Civil Appeal No. 6274 of 2003)
                      AUGUST 10, 2010
                                                                    B
   [DR. MUKUNDAKAM SHARMA AND ANIL R. · DAVE,
                     JJ.]

       Army Act, 1950 - s.122 - Conviction by General Court
 Martial (GCM) of Garrison Engineer for defrauding the Army C
 - Conviction challenged on ground that the convening of the
 GCM was barred by time in view of s. 122 - Held: The
 limitation period for holding a trial by court martial is three
 years - In the instant case, what is relevant is the knowledge
 of the competent authority to convene a general court martial D
 against the delinquent - Since the authority competent to
 initiate action derived its knowledge about the commission of
 the offence on submission of the report of the Court of Enquiry
 on 11-10-1996 or at the most on submission of the report by
 the technical board of officers on 9-4-1995 and the date of E
 convening of the trial by general court martial was 9-3-1998,
 the trial was not barred by limitation.

       Army Regulations - Paragraph 449(b) - Scope and
  applicability of - C~nviction by General Court Martial (GCM)
  of Garrison Engineer for defrauding the Army - Conviction         F
  challenged on ground that the Convening Officer of the GCM
  being the Commanding Officer of the delinquent, there was
  violation of the provision of paragraph 449(b) - Held: The
  submission made by the appellant that the convening officer
  of the General Court Martial,was his commanding officer and,      G
. therefore, there was violation of Paragraph 449(b) is factually
  incorrect- There was no violation at all of Paragraph 449(b).

      Words and Phrases - "person aggrieved by the offence"
                           1025                                     H
    1026    SUPREME COURT REPORTS               [2010] 9 S.C.R.


A   and "knowledge of the authority competent to initiate action
    [in s.122(1)(b) of the Army Act, 1950] - Meaning of

      General Court Martial (GCM) proceedings were held
  against appellant-Garrison Engineer on the ground that
  he defrauded the Army by entering into agreements with
8
  private parties for purchasing services to replace and
  repair items at rates much higher than permissible under
  the standard scheduled rates .. The GCM convicted the
  appellant and sentenced him to one year rigorous
C imprisonment. The conviction of appellant was upheld by
  the High Court.

       In the instant appeal, the appellant challenged his
  conviction on two grounds; 1) that the convening of the
  GCM was barred by time in view of s.122 of the Army Act,
D 1950 and 2) that the Convening Officer of the GCM being
  the Commanding Officer of the. appellant, there was
  violation of the provision of paragraph 449(b) of the Army
  Regulations.

        Dismissing the appeal, the Court
E
        HELD:1.1. Section 122 of the Army Act, 1950 provides
  the period of limitation for trial, and prescribes that no trial
  by court martial of any person shall be commenced after
  the expiration of a period of three years (a) from the date
F 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
G 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 by the authority
  competent to initiate action, whichever is earlier. In the
  present case, clause (b) of sub-Section (1) of Section 122
H
         J.S. SEKHON v. UNION OF INDIA               1027


is applicable and hence the limitation of three years        A
period would commence from the date of the knowledge
of the commission of such offence by the person
aggrieved by the offence or by the authority competent
to initiate action. [Paras 11, 12, 13] [1033-H; 1034-~·D]
                                                              B
     1.2. The factual position of the instant case indicates
that although a vigilance check report was submitted on
19.12.1994, the Commanding Works Engineer sought for
comments from the appellant and on receipt of the
comments of the appellant some variations were found C
while comparing the vigilance report and the comments
of the appellant and, therefore, a Technical Board of
Officers was required to be constituted which was
accordingly constituted on 29.3.1995. When the technical
board of officers so constituted submitted its report on
9.4.1995, it could be said that the fact of commission of D
offence by the appellant came to be finally recorded, but
even thereafter a Court of Enquiry was convened so as
to make an enquiry with regard to the allegation against
the appellant. The Report of the court of enquiry finally
proved and established that the appellant committed the E
offence alleged against him and, therefore, the
knowledge, if any, regarding the commission of the
offence, to the authority competent to convene the
general court martial could be said to be on 11.10.1996,
when the Court of Enquiry Report was submitted or at F
the most it could be said that such knowledge was
derived by the authority competent to initiate action of
convening the general court martial on submission of the
report by the technical board of officers which was dated
9.4.1995. If the period of limitation is computed either from G
9.4.1995 or 11.10.1996, the convening of the trial by
general court martial on 9.3.1998 must be held to be
within the period of limitation as prescribed under
 Section 122 of the Act. [Para 18] (1035-F-H; 1036-A-C]
                                                              H
    1028   SUPREME COURT REPORTS                 [2010] 9 S.C.R.
                                             •

A      1.3. It is clear that the expression 'person aggrieved
  by the offence' in clause (b) of sub-Section (1) of Section
  122 is irrelevant in the facts and circumstances of the
  present case and what is relevant is the 'knowledge of
  the authority competent to initiate action'. In the instant
B case, the alleged acts were committed against the
  Government and not a natural person. Thus, no single
  person can be said to be aggrieved person individually
  due to the act of defrauding the Army. What is applicable
  to the facts of the case is the expression when it comes
c to the knowledge of the competent authority to initiate
  action. [Para 19) [1036-D-E]

       1.4. The action contemplated by Section 122 must be
  the action it seeks to limit - namely a trial. The power of
  investigation and trial or the power to convene a court
D of inquiry is vested in officers in the chain of command
  and not with staff officers. It is, therefore, clear from
  Section 122(1)(b) that the expression "person aggrieved"
  necessarily means a natural person and what would be
  relevant is the knowledge of the competent authority,
E who in the present case is the General Officer
  Commanding, to convene a general court martial against
  the appellant. His date of knowledge of the commission
  of offence becomes material as he is the competent
  authority to convene a general court martial against the
F appellant. [Para 20) [1037-B-D]

        1.5. In the instant case, since the authority competent
  to initiate action has derived its knowledge about the
  commission of the offence on submission of the report
G of the Court of Enquiry on 11.10.1996 or at the most on
  submission of the ·report by the technical board of
  officers on 9.4.1995 and the date of the convening of the
  trial by general court martial is 9.3.1998, the trial is not
  barred by limitation as sought to be submitted by the
H ap:)ellant. [Para 21) [1037-E]
          J.S. SEKHON v. UNION OF INDIA              1029


    Union of India and Others v. V.N. Singh (2010) 5 SCC     A
579 - relied on.

     2.1. As regards, the scope and applicability of
paragraph 449(b) of the Army Regulation, it is found, on
consideration of the records placed before this Court,       8
that in the present case, the General Court Martial, which
was held against the appellant was convened by the
General Officer Commanding who was of the rank of a
Major General, while the appellant was a lieutenant Col..
The General Officer Commanding in the case of the            C
appellant was a Major General who is much higher in rank
than the commanding officer and therefore, there is no
violation of paragraph 449(b) of the Army Regulation.
[Paras 22, 23] [1037-G-H; 1038-A]

     2.2. The submission made by the appellant that the      D
convening officer of the General Court Martial was his
commanding officer and, therefore, there was violation of
regulation 449(b) is factually incorrect. Even otherwise,
the appellant WCJS attached to 603 ASC Battalion, for the
purpose of investigation and progress of the disciplinary    E
case, and, therefore, commanding officer of 603 ASC
Battalion became his commanding officer. It could not be
disputed by the appellant that the said commanding
officer is the one who has filed the charge sheet against
the appellant and the appellant did not object that the      F
commanding officer of 603 ASC Battalion was the
commanding officer. That being the position, there is no
violation at all of Paragraph 449(b) of the Army
Regulations. [Paras 24] [1038-B-E]

                    Case Law Reference:                      G

    (201 o) 5 sec 579         relied on          Para 19
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6274 of 2003.
                                                             H
    1030    SUPREME COURT REPORTS                [2010] 9 S.C.R.


A        From the Judgment and order dated 02.04.2002 of the
    High Court of Jammu and Kashmir at Jammu in LPA No. 302
    of 2000.

        Seeraj Bagga and Sureshta Bagga for the Appellant.
B        Indira Jaising, ASG, Ashok K. Srivastava, R.
    Balasubramanian, Harish Khinchi, Anil Katiyar and Sushma
    Suri for the Respondents.

        The Judgment of the Court was delivered by
c
        DR. MUKUNDAKAM SHARMA, J. 1. This Civil Appeal
  is directed against the judgment of the High Court of Jammu
  & Kashmir dated 2.4.2002. By the aforesaid order, the Division
  Bench of the High Court upheld the order of the learned Single
  Judge of the High Court of Jammu & Kashmir, dismissing the
D Writ Petition and upholding the order of conviction of the
  appellant by the General Court Martial (GCM) for defrauding
  the Army and sentence of one year of rigorous imprisonment
  and also of cashiering him from service.

E        2. The appellant was a Commissioned Officer in the Indian
    Army working at the relevant time at Leh. He was working as
    a Garrison Engineer, 865 EWS, where he invited offers from
    private parties to supply the garrison with Diesel Generator
    (DG) sets and to make other repairs and replacement.
F
       3. On 29.11.1994 he entered into an agreement with M/s
  Surjit Singh Sokhi to repair two DG Sets at FRL Powerhouse
  at Leh for Rs. 2.29 lakh and to repair LT cables at Nimmuy area
  Leh for Rs. 2.49 lakhs. On 30.11.1994 he entered into an
G agreement with M/s Mohd Sultan and Bros. to replace LT cables
  and providing an ACR conductor and to replace parts of two
  DG Sets for Rs. 2.48 lakhs. Authorities noticed irregularities
  in these purchases and on 6.12.1994 investigated the contract
  agreements. A vigilance check was performed by the
  Commander Works Engineers (CWE) on 9.12.1994. CWE
H
            J.S. SEKHON v. UNION OF INDIA                      1031
           [DR. MUKUNDAKAM SHARMA, J.]

then asked the appellant for his comments on the report which           A
were submitted on 6.2.1995. Discrepancies detected in
comparing the report and the comments of the appellant
prompted the Technical Board of Officers to issue a report on
9.4.1995, which led a court of enquiry being convened on
20.9.1995 and then to a GCM being convened on 9.3.1998.                     B
The appellant was then served a charge sheet on 9.3.1998 that
was then withdrawn due to errors and thereafter he was re-
served with a fresh charge sheet on 11.3.1998.

     4. Seven charges were framed against the appellant two
of which could not be proved. All the charges revolved around           C
the allegation of his defrauding the Army for purchasing
services to replace and repair items at exorbitant rates which
are much higher than what is permissible under the standard
scheduled rates.
                                                                        ,o
                                                                        I
     5. On 14.3.1998 the GCM commenced its proceedings
and provided the appellant the right to raise objections of being
tried by any officer sitting on the court in accordance with
Section 130 of the Army Act, 1950 read with Rule-44 of the Army
Rules, 1954. He raised no objection at the time. However, at a              E
subsequent stage of the trial he objected to being tried by the
Presiding Officer of the Court. The objection was then
considered and rejected. The court convicted the appellant and
sentenced him to one year rigorous imprisonment besides
cashiering.                                                                 F

     6. The appellant then challenged this conviction and
sentence based on several issues. The Single Judge of the
High Court of Jammu & Kashmir at Srinagar dismissed the Writ
Petition hqlding the same to be without merit. The Division
Bench of ttie High Court in the writ appeal filed before it similarly       G·
held that there was no "prqcedural irregularity or illegality in the
GCM proceedings." That appeal was also dismissed.

     7. Being aggrieved by both the orders passed by the
learned Single Judge and the Division Bench of the High Court,              H
    1032    SUPREME COURT REPORTS                  (2010] 9 S.C.R.


A   a Special Leave Petition was filed by the appellant. After leave
    was granted, the appeal was placed for final hearing in Which
    we heard the learned counsel appearing for the parties.

        8. The learned counsel appearing for the appellant mainly
  raised two issues before us during the course of hearing. The
8
  first submission of the learned counsel appearing for the
  appellant was that the convening of the General Court Martial
  on 14.3.1998 was barred under the provisions of Section 122
  of the Army Act. The second submission of the learned counsel
  for the appellant was that the convening Officer of the General
C Court Martial in the case of the appellant being the
  Commanding Officer of the appellant, there is violation of the
  provision of paragraph 449(b) of the Army Regulation.

        9. The learned counsel appearing for the respondent,
D however, refuted the aforesaid submissions while contending
  inter alia that neither the convening of the General Court Martial
  was barred by time nor that the convening officer of the Court
  Martial was the commanding officer of the appellant. According
  to him therefore not only there was no violation of Section 122
E of the Army Act, but there was also no contravention of
  paragraph 449(b) of the Army Regulation.

        10. In the light of the aforesaid submissions of the counsel
  appearing for the parties, we have perused the relevant
  provisions of the Army Act, 1950 (for short "the Act") and the
F Army Regulations as also various documents and the decisions
  relied upon and on being fully acquainted thereof, we propose
  to dispose of the present appeal by giving our reasons thereof.
  But before doing that it would be appropriate to extract the
  relevant provisions of Section 122 of the Army Act, and
G Paragraph 449(b) of the Army Regulations.

        "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
H       after the expiration of a period of three years[and such
              J.S. SEKHON v. UNION OF INDIA                       1033
             [DR. MUKUNDAKAM SHARMA, J.]

      period shall commence,-                                               A

               (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              B
                      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             c
                      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.]"                                            D
      449. Action by Superior Officer

      ****   ****                     ****                ****

      ****   ****                     ****                ****              E
               (b)"   When the superior office has been the CO
                      of the accused at any time between the date
                      on which cognizance of offence was taken
                      against the accused and the date on which
                      the case is taken up for disposal, or an              F
                      officer who has investigated the case, he
                      cannot exercise the powers detailed in sub-
                      para (a) (ii) to (v) inclusive"

        11. Section 122 of the Army Act provides the period of              G
· limitation for trial. In the said section, it is provided that no trial
  by court mar.tial of any person shall be commenced after the
  expiration of a period of three years (a) from 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          H
    1034    SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A competent to injtiate 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 by the authority
B competent to initiate action, whichever is earlier.

       12. On going through the records, we find that it is an
  admitted position between the parties, that what is attracted in
  the present case is clause (b) of sub-Section (1) of Section 122.
C The date of limitation for holding a trial by court martial is a
  period of three years from any of the three dates as stated
  above.

        13. Clause (b) is attracted and in that case the limitation
  of three years period would commence from the date of the
D knowledge of the commission of such offence by the person
  aggrieved by the offence or by the authority competent to
  initiate action.

        14. Learned Counsel appearing for the appellant submitted
E before us that of the two expressions i.e. "person aggrieved by
  the offence" or "the authority competent to initiate action", what
  is attracted in the present case is not the knowledge of the
  authority competent to initiate action but the other expression
  appearing in the section namely the date of knowledge of the
F person aggrieved of the commission of the offence.

       15. The facts disclosed before us reveal that on 6.12.1994,
  the higher authority noticed some irregularity committed by the
  appellant and accordingly made some observations on the
  contract agreement whereupon on 9.12.1994, Commander
G Works Engineer directed a Vigilance Check in terms of which
  a Vigilance Check was conducted and a report to that effect
  was submitted on 19.12.1994.

      16. It appears that on receipt of the aforesaid Vigilance
H Check Report, Commanding Works Engineer forwarded the
           J.S. SEKHON v. UNION OF.INDIA                  1035
          [DR. MUKUNDAKAM SHARMA, J.]

report to the appellant and asked for his comments which were      A
submitted by the appellant on 6.2.1995. As there were some
variations in the vigilance report and the comments furnished
by the appellant, a Technical Board of Officers was constituted
on 29.3.1995 and the said technical board of officers submitted
its report on 9.4.1995. Thereafter on 20.4.1995, on examination    B
of the report, a letter was written by the Commanding Works
Engineer to HQ 3 Infantry Division for constituting a court of
enquiry. On 24.4.1995, a court of enquiry was convened and
thereafter the court of enquiry submitted its report on
11.10.1996.                                                        c
      17. According to the counsel appearing for the appellant,
when the vigilance check report was submitted, Commander
Works Engineer who is the person aggrieved came to know
that there was a commission of an offence and therefore period
of limitation as envisaged under Section 122 of the Act would      D
commence from that date and when limitation is computed from
the said date, convening of the general court martial on
9.3.1998 was barred by time, as it was beyond the period of
three years as contemplated under Section 122 of the Army
Act.                                                               E

     18. The aforesaid factual position as stated above would
indicate that although a vigilan~e check report was submitted
on 19.12.1994, the Commanamg Works Engineer sought for
comments from the appellant and on receipt of the comments         F
of the appellant some variations were found while comparing
the vigilance report and the comments of the appellant and
therefore, a Technical Board of Officers was required to be
constituted which was accordingly constituted on 29.3.1995.
When the technical board of officers so constituted submitted      G
its report on 9.4.1995, it could be said that the fact of
commission of offence by the appellant came to be finally
recorded, but even thereafter a Court of Enquiry was convened
so as to make an enquiry with regard to the allegation against
the appellant. The Report of the court of enquiry finally proved
                                                                   H
    1036   SUPREME COURT REPORTS                    [2010] 9 S.C.R.


A and established that the appellant has committed an offence
  alleged against him and therefore the knowledge, if any,
  regarding the comr;iission of the offence by the authority
  competent to convene the general court martial could be said
  to be on 11.10.1996, when the aforesaid Court of Enquiry
s Report was submitted or at the most it could be said that such
  knowledge was derived by the authority competent to initiate
  action of convening the general court martial on submission of
  the report by the technical board of officers which was dated
  9.4.1995. If the period of limitation is computed either from
C 9.4.1995 or 11.10.1996, the convening of the trial by general
  court martial on 9.3.1998 must be held to be within the period
  of limitation as prescribed under Section 122 of the Act.

       19. In our considered opinion, the expri:!ssion 'person
  aggrieved by the offence' is irrelevant in the facts and
D circumstances of the present case and what is relevant is the
  'knowledge of the authority competent to initiate action'. The
  aforesaid acts were committed against the Government and
  not a natural person. In the facts of the present case no single
  person can be said to be aggrieved person individually due to
E the act of defrauding the Army. What is applicable to the facts
  of the case is the expression when it comes to the knowledge
  of the competent authority to initiate action. In coming to the
  aforesaid conclusion, we are fortified by a recent decision of
  this Court in Union of India and Others Vs. V.N. Singh reported
F in (2010) 5 SCC 579 wherein it was held thus:-

        32 .... It is only the natural persons who can be hurt, angry,
        upset or wronged or maltreated, etc. If a government
        organisation is treated to be an aggrieved person then the
        second part of Section 122(1)(b) i.e. "when it comes to the
G
        knowledge of the competent authority to initiate action" will
        never come into play as the commission of offence will
        always be in the knowledge of the authority who is a part
        of the organisation and who may not be the authority
        competent to initiate the action. A meaningful reading of
H
           J.S. SEKHON I/. UNION OF INDIA                   1037
          [DR. MUKUNDAKAM SHARMA, J.]

    the provisions of Section 122(1)(b) makes it absolutely          A
    clear that in the case of a government organisation, it will
    be the date of knowledge of the authority competent to
    initiate the action, which will determine the question of
    limitation ....
                                                                     B
     20. The action contemplated by Section 122 must be the
action it seeks to limit - namely a trial. The power of
investigation and trial or the power to convene a court of inquiry
is vested in officers in the chain of command and not with staff
officers. It is therefore clear from Section 122(1)(b) that the      C
expression "person aggrieved" necessarily means a natural
person and what would be relevant is the knowledge of the
competent authority to convene a general court martial against
the appellant who in the present case is the general officer
commanding. His date of knowledge of the commission of
offence becomes material as he is the competent authorityto          D
convene a general court martial against the appellant.

      21. Since, the authority competent to initiate action has
derived his knowledge about the commission of the offence on
submission of the report of the Court of Enquiry 11.10.1996 or       E
at the most on submission of the report by the technical board
of officers on 9.4.1995 and the date of the convening of the trial
by general court martial is 9.3.1998, the trial is not barred by
limitation as sought to be submitted by the counsel appearing
for the appellant, and therefore, the submission of the counsel      F
appearing for the appellant fails and is rejected.

     22. Having held thus so far as the first issue is concerned,
let us now turn to the second issue, which was urged before
us. We have very carefully analysed the scope and applicability
of paragraph 449(b) of the Army Regulation.                          G

     23. On consideration of the records placed before us, we
find that in the present case, the General Court Martial, which
was held against the appellant was convened by the general
officer commanding who was of the rank of a Major General.           H
    1038     SUPREME COURT REPORTS                [2010] 9 S.C.R.


A   The appellant was a lieutenant Col., whereas the commanding
    officer was Col. R.K. Rana. The General officer commanding
    in the case of the appellant was a Major General who is much
    higher in rank than the commanding officer and therefore, there
    is no violation of paragraph 449(b) of the Army Regulation.
B
       24. Learned counsel appearing for the appellant submitted
  before us that here the convening officer of the General Court
  Martial was his commanding officer and therefore there was
  violation of regulation 449(b). The said allegation is found to
  be factually incorrect. Even otherwise, the appellant was
C attached to 603 ASC Battalion, for the purpose of investigation
  and progress of the disciplinary case, and therefore,
  commanding officer on 603 ASC Battalion became his
  commanding officer. It could not be disputed by the counsel
  appearing for the appellant that the said commanding officer
D is the one who has filed the charge sheet against the appellant
  and the appellant has not objected that the commanding officer
  603 ASC Battalion was the commanding officer. That being the
  position, there is no violation at all of Paragraph 449(b) of the
  Army Regulation.
E
        25. Therefore, all the issues urged by the appellant are
  found to be without any merit. Consequently, the appeal has no
  merit, and is dismissed, but we leave the parties to bear their
  own costs.

    B.B.B.                                     Appeal dismissed.