MAJOR CHANDRA KUMAR Vs. STATE

JUDGEMENT

(1.) Criminal Writ Petition 590/91 seeks to challenge the proceedings of a General Court martial, its order and sentence dated 4.6.1990. The grievance of the petitioner is that the Court Martial is void ab-initio on the grounds that it has been convened by an officer against whom statutory complaint was pending and that the officers manning the Court are subordinate to the Convening Officer, therefore, the proceedings were biased. He, further, challenges the Court Martial on the ground that the defence was not allowed to lead evidence, inasmuch as he was not allowed to produce the transporter who transported his luggage and Maruti Car No.DDU 4101 from Bangalore to Udhampur. As also no one was produced from the check-post to establish that truck Nos. JKQ 3285 and JKR 9587 crossed the barrier carrying the baggage as also the car of this petitioner. Another grievance of the petitioner is that the charge framed against him qua receiving LTC twice in the same year has already been adjudicated upon and this petitioner was punished. Therefore, he could not have been tried for the same offence again.

(2.) . The facts of this case are that the petitioner was sought to be tried by a General Court Martial on the following charges: First charge "SUCH AN OFFENCE AS IS MENTIONED IN CLAUSE Army Act (f) OF SECTION 52 OF THE ARMY ACT WITH INTENT TO Section 52(f) DEFRAUD, in that he, at field, on 30th Jan.89, with intent to defraud submitted a claim of Rs. 35/270.00 in respect of transportation of his household luggage and car in civil truck Nos.JKQ 3285 and JKR 0587 respectively on permanent posting from Bangalore to Udhampur well knowing that his such luggage and car had not been so transported. Second charge "SUCH AN OFFENCE AS IS MENTIONED IN CLAUSE ArmyAct (f) OF SECTION 52 OF THE ARMY ACT WITH INTENT TO Section 52(f) DEFRAUD, in that he, at field, on 18th Jan. 89, with intent to defraud submitted Leave Travel Concession (LTC) claim for year 1988 to CDA (O) Pune, well knowing that he had already availed the LTC for the year 1988. Third charge "ANACTPREJUDICIAL TO GOOD ORDER AND MILTTARY Army Act DISCIPLINE. Section 63 in that he, at field, on 17th Nov.1988, improperly utilised for himself IAFT-1752-PA/53- 869651 dated 15th Nov. 1988, single/return journey railway warrant from Jammu to New Delhi and back."

(3.) . The petitioner at the first instance made a grievance as to the constitution of the Court saying that the officers manning the same were subordinate to the Convening Officer against whom the petitioner had filed a statutory complaint and, therefore, he had no confidence in the Court. This objection was adjudicated upon by the Court and over-ruled vide its order dated 15/03/1990. The petitioner chose not to carry his grievance any further instead participated in the proceedings till the very end. He challenged the same only by way of this writ petition in 1991, where inter alia he took grounds of bias based on his objections taken by him earlier before the Court.