While strictly adhering to the law of limitation, the Supreme Court in a most laudable, learned, landmark and latest judgment titled IC-56663X Col Anil Kumar Gupta vs Union of India & Ors in Civil Appeal No. 8968 of 2019 and cited in 2022 LiveLaw (SC) 931 that was pronounced as recently as on November 7, 2022 has set aside a court martial proceedings against an army officer on the ground that it was barred under limitation prescribed under section 122 of the Army Act.

We must note here that in this case a colleague of Col Anil Kumar (appellant), wrote a letter to his superior on 13.08.2015 in which he alleged that the appellant was sending indecent messages to his wife which were sexually explicit in nature and that he had reasonable cause to believe that they had indulged in illegitimate physical relationship with each other.

It must be noted that the aggrieved person i.e. Col. Ramneesh Singh knew about the commission of the alleged offence when he wrote the letter on 13.08.2015 and the Convening Authority had passed the order 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 the period of three years having already expired as contemplated in Section 122 of the Army Act, the Tribunal had committed an error in not quashing the order dated 22.11.2018 passed by the Convening Authority and consequently the trial proceedings.

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Ms Justice Bela M Trivedi for a Bench of the Apex Court comprising of Hon’ble Mr CJI UU Lalit and herself sets the ball rolling by first and foremost putting forth in para 1 that:
The present appeal filed by the appellant under Section 30(1) of the Armed Forces Tribunal Act, 2007 is directed against the impugned judgment and order dated 30.09.2019 passed by the Court No. 2 Armed Forces 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 the Tribunal challenging the charge-sheet dated 19.11.2018 containing three charges pertaining to the appellant having behaved in a manner unbecoming his position and the character expected of him, under Section 45 of the Army Act, 1950, and challenging the order dated 22.11.2018 passed by Convening Authority directing the trial of the appellant by way of General Court Martial (GCM).

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

CONFIDENTIAL
Colonel Ramneesh Pal Singh Commanding Officer 14th Battalion The Rajputana Rifles 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 of stealing brother officer’s affection by LC 56663, Col Anil K Gupta. The officer is presently posted at HQ DG NCC in New 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 reasonable cause to believe it they have indulged in illegitimate physical relationship My wife, Mrs. Sugandhi Aggarwal has been equally involved and has reciprocated positively to these msgs. The offr vis my house in Delhi on 13th Jul 2015, after lying to his wife about some official social engagement and was present there from 2030H, for approx. two hours.
3. With regard to my marriage, I intend initiating divorce proceedings in the civ court, based on charges of infidelity. However, I would request you to initiate suitable inquiry into the incident and take up case for disep action against the offr, as deemed fit. May I also request you to initiate the process for forthwith posting out of Col AK Gupta from Delhi.

With warm regards

Sd/-

CONFIDENTIAL

Sd/-31.10.15 Sd/-31.10.15 Sd/-31/10 XV.

As it turned out, the Bench then points out in para 3 that:
Consequent to the said letter, a Court of Inquiry was conducted by the HQ Delhi Area to investigate into the complaint made by Col. Ramneesh Pal Singh. The said Court of Inquiry was finalized on 11.11.2016 with the directions of GOC Delhi Area to initiate disciplinary proceedings against the appellant. After the hearing of the Charge in terms of Army Rule 22, on 24.07.2017 directions were given for recording the 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 having behaved in the manner unbecoming his position and character expected of him, under Section 45 of the Army Act vide the charge-sheet dated 19.11.2018. Consequent thereto, on 22.11.2018 the Convening Authority directed the trial by General Court Martial.

As we see, the Bench then observes in para 4 that:
The appellant vide his letter dated 04.01.2019 addressed to the Convening Authority, raised an issue pertaining to the period of limitation in terms of Section 122 of the Army Act, however, since the directions for trial were given, he was advised to raise the issue before the General Court Martial. The appellant, thereafter on 07.01.2019, filed an Original Application being no.32/2019 before the Tribunal under Section 14 of the Armed Forces Tribunal Act, 2007, challenging the charge-sheet dated 19.11.2018 as well as the order dated 22.11.2018 passed by the Convening Authority directing trial of the appellant by General Court Martial. The said OA having been dismissed by the Tribunal vide the impugned judgment and order, the present appeal is filed. This Court vide the order dated 02.12.2019, while issuing a notice to the respondents, had stayed the disciplinary proceedings as well as the General Court Martial proceedings.

Be it noted, the Bench then points out in para 7 that:
In order to appreciate the rival contentions raised by the learned counsel for the parties, it would be apposite to reproduce the relevant provision contained in Section 122 of the Army Act, which reads as under:

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:
   1. on the date of the offence or,
   2. 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
   3. 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…

Most significantly, the Bench then mandates in para 8 what constitutes the cornerstone of this learned judgment holding that:
From the bare reading of the said provision, it clearly transpires that no trial by Court Martial of any person subject to the Army Act, for any offence could be commenced after the expiration of a period of three years, and such period would commence on the date of offence or 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. Hence for the purpose of Section 122, the two dates will be relevant i.e., the date when the alleged offence comes to the knowledge of the person aggrieved and the date on which the authority competent to initiate action comes to know about the alleged offence.

As per Section 3(xvii) offence means any act or omission punishable under the said Act and includes a civil offence as defined in Section 3(ii) which means an offence triable by a criminal court. Chapter VI of the Army Act deals with the offences. Section 45 which falls under the said Chapter states that Army officer, junior commissioner officer or warrant officer who behaves in a manner unbecoming his position and the character expected of him shall be liable to suffer punishment as prescribed therein.

Most rationally, the Bench then goes on to hold in para 9 that:
In the instant case, having regard to the contents of the letter dated13.08.2015 written by the aggrieved person i.e., Col. Ramneesh Singh to the concerned authority, it clearly transpires that he was aware of the alleged act of the appellant having stolen the affection of his wife on the date of the said letter. He had specifically mentioned in the said letter that it was for bringing to the notice of the concerned authority about the appellant’s act of stealing affection of his wife. He had further alleged therein that the appellant was sending indecent messages to his wife which were sexually explicit in nature and that he had reasonable cause to believe that the appellant and his wife had indulged in illegitimate physical relationship with each other. Therefore, the date 13.08.2015 would be the crucial date on which the aggrieved person had the knowledge about the commission of the alleged offence.

Therefore the time had started running from the said date for the purpose of Section 122 of the said Act. In that view of the matter, the submission of the learned senior advocate appearing for the respondents that date of aggrieved person’s knowledge about the commission of the alleged offence by the appellant, should be construed as the date when the respondents prima facie concluded after the Court of Inquiry that the appellant had committed the offence, cannot be accepted. The date 13.08.2015 therefore would be the date on which the aggrieved persons i.e., Col. Ramneesh Pal Singh had the knowledge about the commission of the alleged offence by the appellant. The Convening Authority having directed the trial by General Court Martial vide order dated 22.11.2018, the same was clearly beyond three years and therefore barred under Section 122 of the Act.

Needless to say, the Bench then observes in para 10 that:
We are therefore of the opinion that the trial by the General Court Martial directed vide the order dated 22.11.2018 was clearly barred under Section 122 of the Army Act. The said proceedings deserve to be quashed and set aside and are accordingly set aside.

As a note of caution and for sake of clarity, the Bench then further states in para 11 that:
However, we hasten to add that as per the well settled legal position Regional Manager, UCO Bank and Anr. vs. Krishna Kumar Bhardwaj, (2022) 5 SCC 695, the power of judicial review in the matter of disciplinary proceedings is extremely limited. It is circumscribed by the limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. The power of judicial review is an evaluation of the decision-making process and not of the merits of the decision itself. It is therefore clarified that the disciplinary proceedings initiated against the appellant pursuant to the chargesheet issued on 19.11.2018 shall continue in accordance with law.

Finally, the Bench then concludes by holding in para 12 that:
The appeal stands partly allowed accordingly.

In sum, we thus see that the Apex Court has made it clear going by the rule book that the court martial proceedings against an Army Officer has to be set aside if the limitation period of three years has expired as we observe in this leading case also. Of course, it therefore merits no reiteration that all the courts must act accordingly in similar such cases. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh