C.M.Nos.20176/2021 & 20177/2021 (both for exemption)

1. Allowed, subject to just exceptions and as per extant rules.

2. The applications are disposed of.

W.P.(C) 6418/2021 & C.M.No.20175/2021 (for stay)

3. The petitioner, a Junior Commissioned Officer in the respondents Indian Army and against whom, on 25th May, 2021 a General Court Martial has been convened, earlier filed W.P.(C) No. 6204/2021, inter alia impugning the convening of the General Court Martial against him on the ground that the trial of the offence for which the petitioner was being tried, was barred by time, under Section 122 of the Army Act, 1950. The said petition came up before us on 7th July, 2021, when it was found that the petitioner, in OA No.1258/2020 preferred before the Armed Forces Tribunal (AFT) and which is listed next on 23rd July, 2021, had taken the same plea and sought stay of the General Court Martial proceedings against him but which application for stay was rejected by AFT vide order dated 28th May, W.P.(C) 6418/2021 Page 1 of 4 2021. The petitioner, in W.P.(C) No. 6204/2021 had however not challenged the order dated 28th May, 2021. W.P.(C) No. 6204/2021 was thus disposed of, with liberty to the petitioner to file a fresh petition impugning the order dated 28th May, 2021 declining the interim relief of stay of the General Court Martial proceedings. The petitioner has now filed this petition, impugning the order dated 28th May, 2021.

4. The General Court Martial proceedings against the petitioner have been initiated for an offence under Section 45 of the Army Act i.e. of the petitioner, between 25th August, 2014 to 7th March, 2016, while posted at Meerut, having indulged in an inappropriate relationship with the wife of a Havaldar of the Indian Army also posted there. The said Havaldar complained against the petitioner on 7th April, 2016 and a Court of Inquiry was initiated against the petitioner on 3rd June, 2016, which submitted its report in May, 2017.

5. Section 122 of the Army Act bars the trial by Court Martial, inter alia after the expiration of three years, commencing from the date of the offence or where the commission of 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 came to the knowledge of such person or authority, whichever is earlier. The convening order dated 25th May, 2021 mentions that the offence came to the knowledge of the authority competent to initiate action, only on 13th September, 2018.

6. The questions which arise for consideration are, (i) whether the three years are to be counted from the date when the complaint of the Havaldar aforesaid was submitted or from the date when the authorities of the respondents Indian Army, after complying with the prescribed procedure, W.P.(C) 6418/2021 Page 2 of 4 put up the complaint before the authority competent to convene the Court Martial; and, (ii) whether the time taken in the Court of Inquiry proceedings or other proceedings required to be conducted before convening a Court Martial, is to be excluded in computing the period of limitation.

7. The counsel for the respondents Indian Army appearing on advance notice states that he has not received the copy of this petition.

8. Issue notice.

9. Notice is accepted by the counsel for the respondents Indian Army.

10. Affidavit in response, also answering the aforesaid questions, be filed within three weeks from today. Short time is given, since the General Court Martial proceedings are still underway, and making it clear that no further time shall be granted.

11. In the meanwhile, we request the AFT to, on merits, on 23rd July, 2021, proceed to consider the O.A of the petitioner and pass orders thereon, so that on the next date of hearing we have the benefit thereof.

12. List on 9th August, 2021.

13. The counsel for the petitioner has also drawn our attention to Annexure P-7 to the petition, being an internal letter dated 24th March, 2017 of the Chief Record Officer, in which it is stated that no disciplinary case was pending against the petitioner. The counsel for the petitioner, on the basis thereof states that the order convening the General Court Martial against the petitioner is bad for this reason also.

14. However the counsel for the petitioner himself also on enquiry states that the respondents Indian Army have explained that the said letter was wrongly issued.

15. We, in exercise of powers under Article 226 of the Constitution of W.P.(C) 6418/2021 Page 3 of 4 India, would not interfere on such grounds with the General Court Martial proceedings underway against the petitioner and hence dismiss the said ground of challenge.

RAJIV SAHAI ENDLAW, J AMIT BANSAL, J JULY 13, 2021/ak W.P.(C) 6418/2021 Page 4 of 4