UNION OF INDIA Vs. MAJOR GENERAL MADAN LAL YADAV [RETD ]

JUDGEMENT

(1.) This appeal on reference to this Bench raises an interesting question of law. The respondent while working as Major General, Army Ordnance Corps., Southern Command, Pune between December 1, 1982 and July 7, 1985 was in-charge of purchase. The Controller General of Defence Accounts in special audit on the local purchase sanctioned by the respondent prima facie found that respondent had derelicted his duty and action under the Act was initiated against him. At that time, the respondent was attached to College of Military Engineering, Pune and was promoted as Major General. After initiation of the proceedings he was ordered to retire which he had challenged by filing Writ Petition No. 3189 of 1986 in the Bombay High Court which stood dismissed on August 29, 1986.

(2.) On August 30, 1986, action was initiated against the respondent under Section 123 of the Army Act, 1950 (for short, the 'Act'). He was kept under open arrest from that date onwards and retired from service on August 31, 1986 as Major General. On September 22, 1986, the respondent was issued a charge-sheet and recording of the summary evidence commenced on September 25, 1986. The respondent filed habeas corpus petition in this Court under Article 32 of the Constitution on September 26, 1986 and refused to cross-examine witnesses examined at preliminary enquiry between October 20 and 25, 1986. He sought for, and the proceedings were adjourned to November 3, 1986, on the ground that his lawyer from Delhi was to come to Pune for cross-examination of the witnesses. Due to non-availment of the opportunity given to the respondent to cross-examine the witnesses between November 20, 1986 and December 8, 1986. The respondent sought 14 days' time to prepare his case which was duly allowed. However, the respondent did not give list of his defence witness till November 30, 1986. Consequent upon it, on December 26, 1986, the Controller General of Defence Accounts directed the Controller, Defence Accounts. Southern Command to carry out special audit for the period in question. The respondent had sought permission to go to Delhi in connection with his writ petition which was granted between December 16 and 18, 1986. The writ petition was dismissed by this Court on December 18, 1986 against which he filed special leave petition. On January 3, 1987, the recording of summary evidence against the respondent was concluded. He sought permission to go to Delhi in connection with his special leave petition which was granted between January 12 and February 5, 1987. The summary evidence was considered and GOC in Command, Southern Command submitted his report on February 2, 1987. The special leave petition came to be dismissed by this Court on February 5, 1987. Pursuant thereto, general Court-martial (for short, 'GCM') was ordered on February 24, 1987; the GCM assembled to try the respondent on February 25, 1987. On perusal of the report, it was found that the respondent should be tried for the offence. He was directed to be produced on February 26, 1987 but it transpired that the respondent had escaped lawful military custody on the intervening night of February 15 and 16, 1987. Warrant was issued for his arrest. The respondent voluntarily surrendered on March 1, 1987 and was placed under closed arrest w. e. f. 2130 hours on the said day. The Court-martial assembled on March 2, 1987 but is appears that the respondent had, in the meanwhile, filed writ petition in the Bombay High Court challenging the jurisdiction of the Court-martial to try him. In W. P. No. 123 (2) of the Act, the Division Bench had held that the trial of the accused had not commenced within six months of his ceasing to be subject to the Act. The trial by the Court-martial was, therefore, held to be illegal and accordingly writ was issued. Calling in question this order, this appeal has been filed.

(3.) It is undisputedly clear that the respondent had retired from service on August 31, 1986. He was kept under open arrest from August 26, 1986 and had escaped from lawful military custody on the intervening night of February 15 and 16, 1987 and voluntarily surrendered on March 1, 1987. Though the respondent has pleaded in the High Court that he had gone with prior permission of the authorities, the same has been denied by the officer concerned. The High Court has recorded, as a fact, that the respondent had absconded himself. Section 123 of the Act fastens culpability of the offender who ceased to be subject to the provisions of the Act. Sub-section (1) postulates that where an offence under the Act had been committed by any person while subject to the Act, and he has ceased to be so subject, he may be taken into and kept in military custody, and tried and punished for such offence as if he continued to be so subject. Sub-section (2) which stands amended by Army Act (Amendment) Act, 37 of 1992, prescribed limitation on such action, at the relevant time, that no such person shall be tried for an offence, unless his trial commences within six months after he had ceased to be subject to the Act. The amended sub-section (2) is not relevant for our purpose since the offence in question was indisputedly committed prior to the Amendment came into existence. The proviso and other sub-sections are also not relevant for our purpose.