Court Martial Proceedings Quashed and Set Aside

The important order of Armed Forces Tribunal which is covering the the all proceedings of Court martial..

 

This case (registered as TA 14 of 2011) has come

before us by way of transfer under section 34 of the Armed

Forces Tribunal Act, 2007 from the Principal seat of

High Court, wherein it was registered as WP(C) No.4561/2009.

2. The petitioner, Ex IC 25419 W Lt Col Vikas

Vinayak Chandorkar was tried by General Court Martial on

three charges as mentioned in the Charge Sheet dated

09.01.1992 ( Annexue-28 of the petition). The charges were

framed under section 52(a) of the Army Act, 1950 for

committing theft of property belonging to the Govt. viz. 44

Aero Engines valued at Rs.2,75,000.00; under section

57(a) of the Army Act for having signed false statement

stating that the allegations made in the complaint No.F/Int-

93/432 dated 03.06.1993 of Shri Purna Narayan Singh,

Ex. Member of Parliament were unfounded and baseless

and under section 63 of the Army Act, an Act prejudicial

to good order and military discipline inasmuch as he was

unable to ensure proper accounting of the Aero Engines

received at 2 Salvage Sub Depot in accordance with DGDS 

 

Page 4 of 38

Technical Instruction No. 010, Revised 1980 Issue 2 Para

144 read with Appendix ‘B’, Part.

3. The Court had initially found the accused not

“guilty” of fourth charge but “guilty” of first and second

charges” and sentenced as follows- to forfeit nine years post

service for the purpose of pension,

(a) to be severely reprimanded , and

(b) to be put under stoppage of pay and

allowances until he has made good the sum of

Rs.1.75 lakhs ( Rupees one lakh and seventy

five thousand only) in respect of value of 11

aero engines. (Annexure-30).

 The Court was, however, reassembled vide

Revision Order dated 14.07.1997. The relevant portions of

the Revision Order (Annexure-32) are extracted below:

 “REVISION ORDER

ORDERS BY IC139711 MAJOR GENERAL UNIYAL

HARI,GENERAL OFFICER COMMANDING 101 AREA.

1. The General Court Martial which assembled at field on

Twenty Seventh Day of January 1997 and subsequent

days for the trial of accused No. 1 IC25419W Lieutenant

Colonel Chandorkar Vikas Vinayak and accused No. 2 JC-

213238H Naib Subedar (SKT) Hira Lal Jat, both of 222

Advance Base Ordnance Depot, attached to 1 Advance 

 

Page 5 of 38

Base Workshop EME on the eleventh day of August

1997 at 1000 hrs, for the purpose of reconsideration of

their findings on first, fourth and fifth charges and

reconsideration of the sentence awarded to accused No.

1.

2. In thus ordering the court to reassemble for the

purpose of reconsidering their findings of first, fourth

and fifth charges and the sentence awarded to accused

No. 1, I make it absolutely clear that I do not, in any way,

intend to interfere with the judicial discretion vested in

the court and its powers to accept or reject any part of

the evidence in arriving at just and reasonable findings

on the charges and to make a fair and just award.

However, I, as confirming authority, feel that while

appreciating available evidence on record, the court

may not have accorded due weightage and

consideration to certain important aspects thereof and

may have been unduly swayed by legally untenable

pleadings of the defence. I am of the view that the

finding of guilty on the first charge against both accused

persons implies that the value of 11 aero engines has

also been duly proved, which is not properly supported

by the evidence on record. Moreover, the findings of

‘Not Guilty’ on fourth and fifth charges, against accused

No. 1 and accused No. 2, respectively, are against the

weight of overwhelming evidence on record and as 

 

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such, I am of the opinion that the sentences awarded by

the court in respect of accused No. 1 appears to be

inadequate and disproportionate, for the reasons

summarized in the succeeding paragraphs.

3. First charge: The particulars of the first charge include

the value of 11 aero engines amounting to Rs.

2,75,000/- (Rupees two lakhs and seventy five

thousands only). The court found both the accused

persons guilty of the charge without any exception or

variation, which means that the value of aero engines

averred in the particulars of the charge has been duly

proved. However, I find no witness has been examined

at the trial to authentically prove the value of the aero

engines in question. The witnesses who deposed about

the cost of aero engines have only brought out their

view on approximate cost, which greatly varies from

witness to witness. Colonel Aswini Kumar (PW-11) has

brought out that even if salvaged value of aluminum

alloy, copper, tungsten and magnesium (metals which

mainly from the aero engines) is taken as Rs. 100/- per

kg, the value of 11 aero engines should work out to Rs.

8,80,000/- (Rupees eight lakhs eighty thousand only).

However, as per Colonel VA Sastry (PW 12) the value of

mixed metal scrap during auction comes to Rs. 5/- per

kg and therefore, the value of said aero engines would

work out to be Rs. 44,000/- (Rupees forty four thousand 

 

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only). Taking the value of aero engines auctioned earlier

as guide, PW 12 has further brought out that cost of

each aero engine would be Rs. 10,000/-(Rupees ten

thousand only). On the other hand, the accused No. 1

has contended that the value of each aero engine was

not more that Rs. 5,000/- (Rupees five thousand only) to

Rs. 6,000/- (Rupees six thousand only). He also brought

out that the local (not legible) Ordnance Depot has

assessed the value of each aero engine as Rs. 20,000/-

(Rupees twenty thousand only). Even the aforesaid

assessment by the LAO was claimed by accused No. 1 to

be inflated. The evidence on record as above shows that

value of aero engines as averred in particulars of the

first charge has not been proved and therefore, the

finding of guilty thereon is invalid.

4. In view of the foregoing, the court should examine the

concerned Local Audit Officer or any other competent

witness (es) to establish the exact value of 11 aero

engines.

9. After the revision order is read in the open Court, the

Court should proceed to record Additional evidence as

advised in paragraph 4 above. After additional evidence

is taken, the accused person should be given an

opportunity to make additional statement and to put

forward evidence in their defence, if they so desire. The

prosecutor/prosecution counsel and the defending 

 

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officers/defence counsels for both the accused persons

may be given further opportunity to address the Court, if

they so desire. The Judge Advocate at the trial should

then given his further summing up on the additional

evidence. The Court should then reconsider its findings

and sentence on the first, fourth and fifth charges in

closed court, in the light of the additional evidence and

the aforesaid observations as also the entire evidence on

record.

10. If the Court find the value of 11 aero engines as

mentioned in the particulars of the first charge to be

proved, the Court may record the fresh findings

accordingly on the first charge or if the court finds that

the value of 11 aero engines proved in evidence differs

from the value averred in the particulars of first charge,

it may record the finding with statement of exceptions or

variations.

11. The Court should then record revised findings and in

case the revised findings entail revision of sentence, the

Court should do so and pass sentence commensurate

with nature and gravity of offences. The Court should

also reconsider the sentence awarded to accused No.1 in

the light of my observations given at Para B above. The

Court must ensure that the sentence commensurate with

nature and gravity of offences.

 

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12. The findings on revision on first and fourth charges

and any consequential or otherwise revision of sentence

in respect of accused No.1 and in the case of accused

No.2, the findings on the first and fifth charges on

revision and any consequential revision of sentence

based thereon shall be announced in the open court as

being subject to confirmation.

13. The attention of the Court is drawn to section 160

of the Army Act, Army Rule 60 and the form of

proceedings as given on Page 421-422 of MML 1983,

which should be suitably amended to confirm to the

provisions of Army Rule 62,64 and 67.

14. After revision, the proceedings of which four copies

are required should be forwarded to HQ 101 Area

through Deputy Judge Advocate General, HQ Eastern

Command.

 Signed at Shillong this fourteenth day of July, 1997.”

4. On reassembly, the Court found as follows:-

“The Court having attentively considered the

observations of the confirming authority and the whole

of the proceedings do now respectfully adhere to their

finding with respect to the first charge and revoke their

finding w.r.t.fourth charge, in respect of accused No.1 IC -

 

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25419W Lt Col VV Chandorkar of 222 ABOD att to 1 Adv

Base wksp EME and find accused No.1 guilty of the

fourth charge.

Brief Reasons in support of Findings w.r.t. first and

fourth charges in respect of accused No.1 First Charge

(Additional reasons)

The Court did not find the accused No.1 Guilty of the first

charge with statement of exception and variations as

regards value of 11 aero engines, and adhered to their

earlier finding, because, apart from the brief reasons of

the Court mentioned at pages 327 and 328 of GCM

proceedings, the Court is now convinced from the

additional evidence of Shri SB Ghosh (CW-2), Asstt.

Accounts Officer that value of 11 aero engines was

correctly authenticated by LAO, 222 ABOD, Mr. BU

Maheshwara Rao, before authenticating the value had

visited 2 salvage sub Depot Missamari and seen aero

engines of similar description lying on ground.

The Court is not convinced of the contention that LAO

had inflated the value of 11 aero engines due to some

vested interests.

Fourth charge

The Court found accused No.1 ‘Guilty’ of the fourth

charge because of the following reasons :-

 

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(a) Between 01 May 93 and 23 Sep 93, accused

No.1 was in the ‘knowledge’ of the receipt of aero

engines at 2 Salvage Sub Depot Missamari.

(b) As per DGOS tech instr 010, Para 144, read with

Appx ‘B’ Part I thereof, Aero engines were required to be

accounted for, on separate account cards, both in

numbers and weight whereas these were taken on

charge as mixed metal scrap in violation of the said DGOS

tech instr O10.

(c) The accused being Dy.Comdt. was responsible for

proper accounting of stores. He had, however, failed in

his duty to ensure correct accounting of stores.

 ACCOUNCEMNT OF FINDIGNS

 Court re-opened

The Court being re-opened, the accused is again

brought before it. The findings and reasons thereof are

read in the open Court. The findings are announced as

being subject to confirmation.

 Signed at Narangi on this 14th day of Aug 1977.”

5. The Court then revoked its earlier sentence dated

18.03.1997 (Annexure-31) whereby the accused was

sentenced as follows:

 

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(c) to forfeit nine years post service for the

purpose of pension,

(d) to be severely reprimanded , and

(e) to be put under stoppage of pay and

allowances until he has made good the sum of

Rs.1.75 lakhs ( Rupees one lakh and seventy

five thousand only) in respect of value of 11

aero engines.

6. And the Court on reconsideration sentenced

the accused No.1,IC-25419W Lieutenant Colonel

Chandorkar Vikas Vinayak of 222 Advance Base Ordnance

Depot attached to 1 Advance Base Workshop EME, to be

dismissed from the service.

7. Aggrieved by the charge sheet dated

07.11.1994(Annexure-23), the petitioner had filed Civil Rule

No.3895/1995 in the Gauhati High Court with a prayer that

an opportunity may be provided to the writ petitioner to

prefer an appeal before the authority as per provisions of

Section 164 of the Army Act,1950. This petition was

dismissed on withdrawal by the Hon’ble High Court on

15.6.2007 with liberty to the petitioner to prefer an appeal

before the appropriate authority within a period of one

month from today and as and when such appeal is filed, the

appropriate authority shall consider the prayer for

condonation of delay by taking into consideration the period 

 

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spent before this Court inadvertently and also the claim of

the petitioner that he was suffering from nervous disorder.

8. Earlier, the petitioner had filed WP(C) No.3895/1995

before the Gauhati High Court challenging the Charge Sheet

dated 07.11.94 (Annexure-23) and instructions given by the

Respondents Nos. 3 and 4 ‘of getting the summary of

evidence recorded and getting the same recorded by

cancelling the earlier summary of evidence recorded on

4.7.1995 and 13.8.1995 and also prayed for issuance of

appropriate or direction’. This petition was dismissed by the

Hon’ble High Court with the remark ‘….. In that view of the

matter I find no merit in the petition. Accordingly, the petition is

dismissed…..’.

9. Whilst dismissing the petition the Hon’ble High Court

had observed in Para 8 of the Judgment and order :

“8. In the present case, one Commanding Officer after

recording the evidence found that there was no material for

sending the case for trial. But that does not mean that the next

officer will have no power to take up evidence afresh and

consider the same. Besides, in the present case the earlier

Commanding officer was junior to the petitioner and therefore,

it was not proper on his part to initiate a proceeding or drop it.

Considering all this if the next Commanding Officer decides to

record evidence afresh, I find that no illegality had been

committed. Under the Rules, in my opinion, recording of 

 

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evidence afresh will not amount to double jeopardy. In the

present case, the trial has not yet commenced. In view of the

above, I find no merit in the petition. Accordingly, the petition

is dismissed. However, recording of evidence and initiation of

proceeding thereafter are to be done within a time bound

period as per Rules. Because of the stay order granted by this

Court the authorities could not take up the matter. Therefore,

the authorities are directed to take up the matter and complete

the same within a period of two months from the date of

receipt of this judgment.”

 It is seen from the above that the Hon’ble High

Court has already decided the plea of ‘double jeopardy’ as

raised in the petitioner’s representation as well as in the

present writ petition being WP(C) No.4561/2009.

10. It is relevant to note at this juncture that the

petitioner had filed a petition dated 04.07.2007 against the

findings and sentence of the General Court Martial before

the Chief of the Army Staff. This petition was examined and

disposed of vide a detailed order (Annexure-40) which runs

into four pages. By this order, the Chief of the Army Staff

rejected the petition with the observations, “ 6. The

contentions of the petitioner are bereft of any merit. The findings of

the Court are based on cogent and reliable evidence. The sentence

awarded is just and commensurate with the gravity of the offence

committed by the petitioner. 7. I, therefore, reject the petition dated 

 

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04 July 2007 submitted by ex IC 25419W Lt Col Vikas Vinayak

Chandorkar being devoid of merit and substance.”

11. Earlier, consequent upon his dismissal on the

basis of the findings and sentence of the General Court

Martial, the Govt. of India (Ministry of Defence) had issued

the petitioner a show cause notice (Annexure-36) in terms

of Regulation 16(a) of Pension Regulations for the Army

(Part-1), 1961. By this notice, the petitioner was intimated

as follows, “ to urge reasons, if any, against the proposed

forfeiture of your pensionary benefits. If no reply is received from

you within 30 days from the date of receipt of this Show Cause

Notice, it would be assumed that you have no cause to show and

action as deemed fit shall be taken in your case without affording any

further opportunity to you in this regard.” The petitioner

submitted his explanation dated 26.05.1999 (Annexure-37)

to the Government stating, inter alia, the following:

“Humanitarian Grounds”

12. Sir, besides my innocence and clean record of

service, my present plight also calls for your sympathy

and mercy. I have a 20 year old unmarried daughter and

a 17 year old son who are yet to complete their

education. Me and my wife and children are living in

abject poverty due to my dismissal from service. Since

Nov 1997 I have been running from pillar to post in

search of a job. But due to the stigma of dismissal from 

 

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service I have remained jobless till today. Since 1979 I

have been suffering from hypertension and ischemic

heart disease due to which I was placed in an additional

low medical category in 1981. As it is I was permanently

disabled in 1971 war as stated earlier. My heart disease

and joblessness due to which I am unable to feed and

support my wife and children. Not only the pension and

gratuity even my leave encashment amount to Rs.1.25

Lakhs has been denied to me. Had this unfortunate

episode not taken place, I would have received the

pension of a full Colonel with war injury benefits. In

spite of all the trauma and agony I still have faith in your

sense of justice. Grant of pensionary benefits would go a

long way in ameliorating the miseries of my family, for

which we shall forever remain grateful to you. “

12. This petition was disposed of vide Govt. of India

(Ministry of Defence) letter No. B 19020/393/AG/PS-

4(c)/675/A/D/Pen/Sers) dated 13.09.1999 (Annexure-38)

which is extracted below:

“To

The Chief of the Army Staff.

Subject : Grant/Forfeiture of Pensionary benefits- IC-

25419 W Ex.Lt Lt Col VV Chandorkar.

Sir,

I am directed to refer to letter No.GI/M/59019 dated 9th

February, 1999 from the Office of the CCDA(P),Allahabad 

 

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addressed to Army Hqrs,AG’s Branch and to state that

after considering the explanation dated 26th May, 1999 in

response to this Ministry’s Memorandum

No.B/39020/393/ AG/PS-4(c))272/A/D(Pen/Sers) dated

22nd April,1999 and having regard to the circumstances of

the case leading to the dismissal of the officer from

service, the President is pleased to decide to forfeit entire

pensioinary benefits to ex-Lt Col V V Chandorkar to which

he would have been entitled to had he retired in the

normal manner on date of dismissal from service.

2. This issues with the concurrence of Finance Division of

this Ministry vide their UO No.5211/Pen/99 dated

24.8.1999.

 Yours faithfully,

 Sd/ Amrit Lal

 Deputy Secretary to the Govt. of India.”

13. Coming now to the present petition, it is seen that

the petitioner whilst in military service participated in 1971

War which resulted in his prolonged hospitalization and

down grading of medical category. The petitioner has raised

various contentions, some of which may be summarized as

below :

 

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13.1. The petitioner was appointed as Deputy

Commandant,222 ABOD ( Advance Base Ordinance Depot)

located at Narangi Cantt ( Guwahati) on 24.6.1992 when

Col VA Sastry was the then Commanding Officer. The

petitioner was based at Narangi. The Depot is a huge

organization holding an inventory of approximately 27,000

items with a total value of approximately Rs.350 Crores and

that No.2 Salvage Sub Depot ( 2 SSD) being located about

250 kms away at Missamari, near Tezpur. Naib Subedar

HL Jat was the then the Commandant of 2 SSD between

05.12.1992 to 16.06.1993. He received vouchers with 8800

kgs of materials of scarp of ferrous metal of 11 Aero Engines

from No.11 Wing Air Force but took the same on charge as

‘Mixed Metal Scrap’ and Havaldar K.G.Krishnaiah, the then

responsible Store Keeper (Technical) of Mechanical

Transport Stores/SKT (MT) recorded the same accordingly.

On 10.5.1993, Shri J.B.Poddar, a scrap dealer came to 2

SSD to lift the lots purchased by him in auction. In addition

to his lots, Nb. Sub HL Jat allowed him to take away the

scrap of unserviceable 11 Aero Engines without any

authority and proper Gate Pass. Subsequently, Nb Subedar

HL Jat deposed before the Court of Inquiry on 9.12.1993

that this was done as per the instructions of the petitioner.

He further stated that, “ He allowed Shri Poddar to take the

scrap of 11 Aero engines because of a telephone call

purportedly made by the petitioner to him on 09.05.1993 

 

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ordering him to handover the said engines to Shr Poddar to

cover up certain deficiencies which had occurred in the

past.”

13.2 On 14.05.1993, a complaint dated 03.06.1993

written in Hindi by a businessman residing in Assam was

received by MG AOC Eastern Command, Fort William,

Calcutta ( Respondent No.2) about certain malpractices

allegedly going on in No.1 and No.2 SSDs for last four years.

This complaint styled as Public Interest Petition was

forwarded to the Commander IV Corps C/o.99 APO by Dr.

P.N.Sinha, Ex Member of Parliament. The complaint dated

14.05.1993 (Annexure-2) was investigated by Lt.Col

S.M.Kareir of 5 Mountain Division Ord. Unit who visited 2

SSD on 7.6.1993. The report is at Annexure-4. The Officer

had concluded that the complaint was baseless, which was

by some local bidders who had differences in their business

dealings with bidders from Guwahati, Calcutta and Delhi. A

complaint dated 03.06.1993 (Public Interest Petition) was

directed by the Commanding Officer, Col. VA Sastry to be

investigated by the petitioner. His report it at Annexure-5.

The petitioner claims that after satisfying himself that the

allegations in the complaint were baseless, he submitted the

report dated 10 Jul 93 which is at Anexure-6. In the report

he had mentioned that he had checked certain lots and

found the quantity of stores in numbers as well as in weight

to be correct. It is the Commanding Officer who had 

 

Page 20 of 38

forwarded his comment to Respondent No.4 with the

observation, “…….. as alleged if stores are illegally dumped in the

lots already sold, a huge deficiency in stocks would arise which is not

so as there are no deficiency in the stocks of the Salvage Sub Depot

found during the investigation.”. He, therefore, recommended,

“In view of the above, I recommend that the complaint lacks

substance and needs no further follow up

action.”(Annexure-7).

13.3. In the above backdrop, the petitioner has

claimed that Col Ashwini Kumar (Respondent No.7) who

was to be the new Commanding Officer had arrived at the

station one month in advance and had started interfering in

various matters pertaining to the Unit. Respondent No.4

had, in fact, managed to post him to the Unit replacing Col

V.A.Sastry. Respondent No.7 had a personal grudge

against the petitioner on account of certain differences that

had arisen when the petitioner was serving with him in

COD Dehu Road, Pune. During the process of handing

over/taking over between Col V.A.Sastry and Col Ashwini

Kumar, the new incumbent, the latter visited 2 SSD and

created some false evidence of deficiency of stores against

the petitioner and Col. V.A.Sastry. In this regard, the

deposition of PW - Subedar R.D.Ram refers.

 

 

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 14. We have heard the rival contentions advanced by

the learned counsel for the parties and examined the

pleadings and records produced before us. The petitioner

has in this case assailed the Court Martial proceeding on

the ground that there is no case made out against him. He

was implicated by Col Ashwini Kumar on account of

personal grudge that he had against him since the time they

had served together at Dehu Road, Pune. During that

appointment there was a Court of Inquiry against Col

Ashwini Kumar in which the petitioner was a member. As a

result thereof Col Ashwini Kumar had a feeling of animosity

towards him and had thus framed him by illegally obtaining

deficiency report from the SKTs during his visit at the time

of handing/taking over of charge. He further invited/

projected false story and induced the respondents No. 2, 3

and 4 to take action against the petitioner. In doing so he

threatened his subordinates and compelled them to make

false statements before respondents No. 4 as well as during

the Court of Inquiry. This is evident from the deposition of

Subedar (SKT) RD Ram. As against this the respondents

have submitted in their affidavit-in-opposition dtd.

12.9.2011 that the petitioner was informed by Commander

of No. 2 Salvage Sub Depot of the illegal transaction of 11

aero engines, but the petitioner did not bring the matter to

the knowledge of his superior officer/Commandant 222

ABOD, Col V.A. Sastry. He did not do so as he could have 

 

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ended up incriminating himself. It is submitted that the

appointment of respondent No. 7(Col Ashwini Kumar) was

made by Military Secretary Branch at Army Headquarter

and not by respondent No. 4 as alleged. The respondents

have contended that Col Ashwini Kumar had no personal

grudge against the petitioner. Whilst denying the

statements made in Para 64 of the TA, the respondents

have submitted that it is not correct to state that the

findings of GCM were not based on evidence and it was

perverse. The respondents have contended that the GCM

proceeded with legally qualified officer of Judge-Advocate

General Branch. Further the GCM took into account the

circumstantial evidence and demeanor of witnesses. It is

also not correct on the part of the petitioner to state that

the GCM did not appreciate the entire evidence on record

with reference of Para 66 of the Writ petition wherein the

reference was made to Subedar (SKT) RD Ram. The

respondents have submitted that he (Subedar (SKT) RD

Ram) gave statement against Col Ashwini Kumar as he had

been earlier punished by Col Ashwini Kumar and also as

Ashwini Kumar no longer exercised any control over him.

The GCM considered his statement along with testimony of

other witnesses so denying the statements made in para 69

and 70 of the Writ petition that the convening authority did

not apply his mind to the fact of the case as was evident

from the fact that the charge-sheet is dated 9th Jan, 1997 

 

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and the convening authority ordered trial on 10th Jan, 1997.

The respondents have submitted that the case against the

petitioner was registered on 4th Nov, 1994 and the

convening authority was aware of the fact of the case before

formal charge-sheet was put up to him. Besides, ordering

the GCM was on the basis that there was prima-facie case

against him. It was finally for the GCM to determine the

accused guilty or otherwise. The contentions of the accused

would have been valid if the GCM has only lasted one day

which is not in the case. In controverting the statement

made in Para 73 of the Writ petition, the respondents have

submitted that forfeiture of pensionary benefits was within

the jurisdiction of the President and justified in view of theft

of 11 aero engines which were high-value items. Further the

punishment awarded was also just and in accordance with

the gravity of the offence.

15. It is thus seen that the challenge to the Court

Martial proceeding is basically on facts. In the present case,

the petitioner was charged on 3 (three) counts which are as

follows:-

 (a) Under Section 52(a) of the Army Act, 1950 for

committing theft of property belonging to the Government viz 44

Aero Engines valued at Rs. 2,75,000.00.

 (b) Under Section 57(a) of the Army Act for having signed

false statement stating that the allegations made in the complaint 

 

Page 24 of 38

No. F/Int-93/432 dated 03.06.1993 of Shri Purna Narayan Singh,

Ex. Member of Parliament were unfounded and baseless.

 (c) Under Section 63 of the Army Act, an Act prejudicial to

good order and military discipline inasmuch as he was unable to

ensure proper accounting of the Aero Engines received at 2

Salvage Sub Depot in accordance with DGDS Technical

Instruction No. 010, Revised 1980 Issue 2 Para 144 read with

Appendix ‘B’, Part.

 16. The Court Martial with reference to the first

charge has relied on the statement of the PW No. 2 No.

6915230M Hav SKT (MT) KG Krishnaiah, PW No. 3 No.

6281634H Hav (DSC) S Roy (Retd), PW 10 JC-187090p

Sub (SKT) RD Ram (Retd) and PW 11 IC-32167K Col

Ashwini Kumar. It would be necessary to extract the

entire findings of the GCM with reference to charge (a) in

respect of accused No. 1.

“Brief reasons of the Court in support of their

findings in respect of accused No. 1.

 First charge:

 The Court found accused No. 1 guilty of the first charge

because of the following reasons:-

(a) On 07 May, 93, 11 aero engines were received at 2

Salvage Sub Depot from 11 Wing Air Force and were

taken on charge as mixed metal scrap (Exhibit ‘Z’) PWs

2 and 3 had deposed that 11 aero engines were given 

 

Page 25 of 38

to Mr JB Poddar on 10 May 93 without proper voucher

and gate pass and on being asked accused No. 2 told

them that these were given to Mr Poddar on the

telephonic instructions of accused No. 1.

(b) Accused No. 1 was informed of the transaction of 11

aero engines on 08 Jul 93 by PW 2 and 10 and he had

asked PW 10 to make up the deficiency.

(c) Col Ashwini Kumar (PW-11) informed accused No. 1

on 18 Oct 93 that accused No. 2 had given away 11

aero engines to Mr. Poddar. Accused No. 1 called

accused No. 2 to his house and when accused No. 2

informed him he had given aero engines to Mr Poddar,

he did not take his statement in writing.

(d) The Court has reasons to believe in view of the

aforesaid facts and circumstances on record that

accused No. 1 had prior knowledge of receipt of 11

aero engines and he did instruct accused No. 2 to hand

over the same to Mr Poddar and thus they had prior

meeting of minds in this regard.

(e) Aero engines, the property belonging to the Govt were

given to Mr JB Poddar without these being auctioned

and sold, contrary to all the rules and regulations on

the subject.”

 17. Examination of the reasons given by the

GCM in support of their findings on first charge

shows that the finding/conviction is based on fact 

 

Page 26 of 38

that the Court had “reasons to believe in view of the

aforesaid facts and circumstances on record that accused

No. 1 had prior knowledge of receipt of 11 aero engines and

he did instruct accused No. 2 to hand over the same to Mr

Poddar and thus they had prior meeting of minds in this

regard.” The basis for recording this finding is

against the very basic principle of criminal

jurisprudence which warrants that a person should

be convicted only when the charge against him is

proved beyond reasonable doubt. When the facts

and circumstances of the present case are examined

in the light of the above discussion we find that the

Govt property viz.11 aero engines which were

reported stolen were infact given away by accused

No. 2 Nb Sub HL Jat who was the Commander of 2

Salvage Sub Depot to Mr Poddar, civil contractor

who had come to collect his lots of ‘mixed metal

scrap’ that he had purchased in auction. The

evidence of Sri Poddar reveals that when he came to

the Depot and examined his lots he found that the

lot was deficient. When he brought this to the notice

of accused No. 2 Nb Sub HL Jat, he offered him

‘mixed metal scrap’ in the form of 11 aero engines to

make up the deficiency. There is no mention in

Poddar’s statement about accused No. 2 having

given them at the behest of accused No. 1 or of Sri 

 

Page 27 of 38

Poddar having taking them directly at the behest of

accused No. 1.

 The giving of the items was objected to by

PW 2, 6915230M Hav SKT (MT) KG Krishnaiah. He

(Krishnaiah) states that accused No. 2 told him that

he was doing so on the telephonic instruction of

accused No. 1. His statement that accused No. 2

told him so is hearsay with reference to the alleged

transaction between accused No. 1 and accused No.

2 viz telephonic conversation. There is no record of

telephonic conversation. It is also important to note

that during his cross-examination by learned

defence counsel No. 1 he stated, “It is correct to

suggest that, I have falsely stated before the court that,

accused No. 2 had told me that, he got telephonic

instructions from accused No. 1 about disposal of 11 aero

engines and floating of vouchers to main, whereas, no such

instructions were passed and that I am falsely implicating

accused No. 1 in connivance with accused No. 2. I did not

ask accused No. 2 as to what type of balance Mr Poddar had

against which 11 aero engines were being given to him”

(Para 84 of GCM). This statement of his has clearly

discredited the witness.

 Moving on to PW 3, No 6281634H Hav

(DSC) S Roy (Retd) it is seen that this witness 

 

Page 28 of 38

accepted before the Court that he had signed on

each page of statement in the summary of evidence

when it was read over to him. He also accepted that

he had understood and accepted it as correct. He

was then contradicted on the basis of the following

question- “At about 1300 hrs Mr Poddar with stores

loaded in the truck along with Nb Sub HL Jat and Nk BL

Barman came to the depot gate. On checking the document

found that 11 aero engines were being taken without gate

pass or voucher and I questioned Nb Sub HL Jat about it. Nb

Sub HL Jat informed me that Mr Poddar had some previous

balance of stores to be lifted and aero engines be allowed to

pass. I was not satisfied as the stores were being taken

without authority and did not permit the vehicles from

going out. Thereafter, Nb Sub HL Jat insisted on letting the

vehicles go out and told that he was the Cdr No. 2 Salvage

Sub Depot and that it was his responsibility to give the

stores. He also showed me some documents and papers

which I could not follow being in English to show that Mr

Poddar had previous balance and ordered me to let the

vehicle pass out. Under pressure I had no alternative and

permitted the vehicle to go out.”(Page 97 of GCM)

Although this witness stated that he had not stated

so at the summary of evidence and he did not

understand English and he had signed as correct

whatever was told to him in Hindi by the Officers 

 

Page 29 of 38

recording summary of evidence, it is relevant to note

that his statement stands directly in contradiction

to the statement that he made before the Court.

This witness was further confronted with the

statement made before the Court of inquiry which

reads “In Dec 93 before I gave my statement Nb Sub HL Jat

coaxed me that I should tell the court that orders to give 11

aero engines had been received telephonically for Dy Comdt

Lt Col VV Chandorkar. If I did not make such statement then

I would along with him will be blamed for irregular

transaction and will result into discp action.

“Unquote”.(Page 98 of GCM). The witness of course denied

the statement. He was again confronted on the basis

of another statement, “After giving wrong statement

earlier before you my conscience did not allow me and even

after false answer I am facing discp action for no fault of

mine. I have now realized that Nb Sub HL Jat actually had

trapped me to save himself.” (Page 99 of GCM). The

witness expectedly denied this statement also. He

was then confronted with his statement in response

to question No. 9 during the Summary of Evidence

which reads-

 “Q:9-Was it not your duty to do so? Then what stopped you

from reporting to me in spite of the fact that I took ‘darbar’ in

the and specially made a mention of reporting any security

lapses/irregular transaction which come to notice?

 

Page 30 of 38

 Ans No. 9:- When 11 aero engines were being taken out Nb Sub

HL Jat showed me No of documents written in English. I did not

understand any one of them as I am only a sixth standard

educated. I was a DR in Signal Regiment prior to joining DSC. I

can only understand simple words like Tyre, tubes etc which I

used to check by numbers. However, nomenclature like

ferrous metal scrap, mixed metal alloys are beyond my

understanding. I did not realise that there was illegal

transaction of 11 aero engines. Later on I came to know that I

was being tricked by Nb Sub HL Jat. As a result I am facing

disciplinary action. Similarly, Sub RD Ram had also made me

give false statement in recording of his own S of E on 27 and 28

Jan 95 which is as under:-

 “To the questions put by him whether I reported to Dy

Comdt about passing out of 11 aero engines on 08 Jul 93 when

Dy Comdt visited 2 SSD.” In the answer I have stated “that I

went to report to Dy Comdt in the office of Cdr 2 SSD, at that

time Dy Comdt himself told me that he had ordered Nb Sub HL

Jat to give away 11 aero engines to Mr Poddar due to some

previous balance and I should not bother about it. “This

answer of mine is totally false and no such things had

happened, to the question as to who were present in the office

when the above incident took place. I have stated “that Sub RD

Ram, Hav Krishnaiah and Hav Yadav were present,” which is

totally incorrect. Similarly, Sub RD Ram also made me 

 

Page 31 of 38

statement “that he showed Dy Comdt the three aero engines

alongwith Hav Krishnaiah and Hav Yadav which I could see

from the main gate”. This statement is also false. ( Unquote.)

(Page 100 & 101 of GCM)

 Most significantly when re-examined by

learned Prosecutor he stated that “Nobody tortured

me before I gave my statement at the C of I, Ss of E and

before the court, I made my statement as per my memory.”

The material contradictions as mentioned in the

statement of this witness render him unreliable. The

statement of PW 1 Col Ashwini Kumar stands

thoroughly discredited by the statement of PW 10

Sub RD Ram which reads, “ On 21 Sep 93 out-going

Comdt, 222 ABOD, Col VA Sastry and incoming Comdt Col

Ashwini Kumar, visited 2 Salvage Sub Depot. Col Ashwini

Kumar took me to one side and asked me to give a list of

deficient items and also told me to include clothing items

which had gone wet and aero tyres which appeared to him,

to be less in weight in the said deficiency list. I told Col

Ashwini Kumar that clothing items which had gone wet

could be dried and aero tyres were correct in number hence

there was no deficiency. Col Ashwini Kumar asked me as to

how many aero engines were on ground. I told him that 11

aero engines were given to Mr JB Poddar by accused No. 2

on the orders of accused No. 1. Thereafter, Hav Narayanan

had shown to him (Col Ashwini Kumar) account card of 

 

Page 32 of 38

mixed metal scrap and Rv of 11 aero engines. The above

transaction took place in the presence of Col VA Sastry in

my office before physical inspection of stores by them. Col

Ashwini Kumar insisted that I should give him the list of

deficient items. I went to the SKTs Hav Narayanan and Hav

HCS Yadav. Hav Narayanan made the list but refused to sign

that list. I then told Col Ashwini Kumar that SKTs had

refused to sign the list. Col Ashwini Kumar told me that list

was only for his personal knowledge. I went to the SKTs and

told them what Col Ashwini Kumar had told me. They then

signed the list. I countersigned the list and handed it over to

Col Ashwini Kumar. In the list of deficiency items given by

me to Col Ashwini Kumar on 21 Sep 93, I had not mentioned

deficiency of mixed metal scrap or 11 aero engines.

 Before I made my statement at the C of I,Col Ashwini

Kumar called me to his office, threatened me and tortured

me to give my statement at the C of I.

 It is incorrect to suggest that there was no talk of 11

aero engines on 21 Sep 93 and that I told Col Ashwini

Kumar about 11 aero engines only of 18 Oct 93 when he

visited 2 Salvage Sub Depot and that I did not know

anything about the transaction of 11 aero engines until Col

Ashwini Kumar told me on 18 Oct 93.

 The witness volunteers to add, transaction of 11 aero

engines was discussed by me with Col Ashwini Kumar on 21 

 

Page 33 of 38

Sep 93. Since there was nothing in writing, Col Ashwini

Kumar in his statement at the C of I had stated that I told

him about the transaction of 11 aero engines on 18 Oct 93.

 He also confirmed the statement of accused

No. 1 “During his visit on 08 Jul 93 accused No. 1

mentioned to me about the complaint of an MP and told me

that he had come on the orders of Comdt to investigate that

complaint. Accused No. 1 had also told me that he had come

to make a brief about the court case regarding lot No.

41/91. I had shown him the said lot and also the file

pertaining to the case.

 It is correct to suggest that in the durbar on 8 Jul 93

accused No. 1 had mentioned about Ex. MP’s complaint and

stated that such complaints normally arise due to business

rivalries amongst the scrap dealers and instructed all ranks

to work efficiently and honestly.

 The witness volunteers to add, “I had made a

wrong statement at the C of I because I was under

considerable mental pressure as I was rebuked and

pressurised and threatened by various people. Moreover, I

used to come daily from Missamari to 222 ABOD for C of I.

 I had wrongly stated at the C of I that I had taken one

generator set received from 11 Wing Air Force in the mild

steel account card.

 

Page 34 of 38

 Mr Poddar never told me to give him attractive items

or that Comdt or Dy Comdt had given him permission to

take attractive items.

 It is correct to suggest that when I was sitting in the

waiting room before I gave my statement at the C of I, Maj

KS Deb came to me and told me that in my own interest I

should make statement as was instructed by Col Ashwini

Kumar. He further threatened me that if I did not do so, Col

Ashwini Kumar would sort me out.

 I was charged on three counts. Firstly for not reporting

the deficiency of 11 aero engines in writing, secondly for

wrongly taking on charge generator and Air Craft cockpit

and thirdly for making surplus of aero tyres by cutting the

entry in the voucher.

 I did not state at the C of I that accused No. 1 told me on

telephone on or about 20 Jun 93 that he already had the

knowledge of transaction of 11 aero engines.

 I was threatened and pressurised to state at the C of I

by Col Ashwini Kumar that Dy Comdt and other officers

used to take percentage from dealers, however, it was not

true.”(Page 178 to 187 of GCM).

18. In the above context, it is also relevant to

note the evidence of PW 8 No. 6920510K Hav SKT

SN Yadav. Perusal of page 144 of GCM proceeding 

 

Page 35 of 38

shows that he stated that, “On 21 Sep 93, both incoming

and outgoing Commandant of 222 ABOD visited 2 Salvage

Sub Depot for the purpose of handing/taking over.

 It is correct to suggest that, incoming Comdt Col

Ashiwini Kumar had tricked the then Cdr 2 Salvage Sub

Depot Sub RD Ram and the SKTs into giving him list of items

showing them as deficient without their actually being

deficient by saying that such lists were only for his

information and not for any further action.” His further

evidence as on page 145 of the GCM proceeding

reads, “List of deficiencies in stores were made hurriedly

by the SKTs of the items which were rotting in the depot,

whereas, there was no actual deficiency. I do not know as to

why Hav HCS Yadav did not give deficiency of 11 aero

engines in writing. I was told by Sub RD Ram that, he was

pressurized by Col Ashwini Kumar to tell him the

deficiencies and that he had told him about the deficiency of

11 aero engines.”

 19. It is seen from the charge-sheet that the

present case does not involve any allegation of

direct theft against accused No.1. In fact, he was

located about 225 kms away from the scene at the

time of the alleged theft. The Depot (2SSD) was

under the direct charge of accused No.2, Nb Sub HL

Jat who, in fact, admittedly gave away the Govt 

 

Page 36 of 38

property, in question, to PW 9 Sri Poddar. As per Sri

Poddar, these items were given to him by accused

No 2 to make up the deficiency in his lot. He does

not take the name of accused No.1 at all. It is

accused No.2, who says that he gave away the

items, in question, on the telephonic instructions as

received from accused No.1 on 09 May, 2010. There

is, however, no evidence to substantiate the

telephone call. Moreover, the evidence of PW 2 and

3 whom he has supposed to have stated that he

gave away the property in question on the

telephonic instruction of accused No. 1, is clearly

unreliable on account of material contradictions.

 20. In the light of the above discussion and

upon proper appreciation of evidence and materials

on record, the charge No. 1 must be held as not

proved. The finding of the Court Martial is

considered untenable in law and on facts of this

case and is accordingly set aside. With the setting

aside of this finding, the sentence imposed upon the

appellant/petitioner would also need to be

correspondingly reduced. In the facts and

circumstances of this case and noticing the gravity

of the charge proved, the award of punishment of

forfeiture of seniority in rank for a period of 2 years 

 

Page 37 of 38

would be commensurate with the gravity of the

offences and would meet the ends of justice.

 21. In the light of above discussion, the petition

is partially allowed inasmuch as charge (1) is set

aside and sentence is reduced as mentioned in the

preceding Paragraph. The respondents are

accordingly directed to grant consequential benefits

as would accrue on the basis of the above finding to

the petitioner within 3(three) months of the receipt

of this judgment and order.

22. With the above observations and directions,

the petition stands allowed to the extent indicated

above. There will, however, be no order as to costs.