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Maj. Gen. V. K. Sharma vs C.B.I. on 16 November, 2018

HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU

CRR No.23/2015 IA No.21/2015
Date of order: 16.11.2018
Maj. Gen.V.K.Sharma Vs. C.B.I
Coram:

Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:

For the Petitioner(s) : Mr. Sunil Sethi, Sr. Advocate with
Mr. Ravi Abrol, Advocate.
For the Respondent(s): Mrs. Monika Kohli, Advocate.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal

1. In the instant criminal revision, the petitioner inter alia seeks quashing
of order dated 31.03.2015 read with order dated 01.04.2015 passed by
the court of learned Special Judge Anti Corruption (CBI Cases),
Jammu whereby charges under Section 161 RPC and 5(2) read with
Section 5(1)(d) of the JK Prevention of Corruption Act Samvat
2006, have been framed.

2. Brief facts of the case are that the petitioner had served the Indian
Army and has retired on attaining the age of superannuation as Major
General on 30 April 2014. The petitioner had at his credit outstanding
service career and his service remained commendable throughout and
he has earned various medals and awarded Vashist Seva Medal (VSM)
on 26 Jan 2009 for distinguishes services. It is further stated that

CRR No. 23/2915 Page 1 of 20
while serving as Major General, Army Service Corps (ASC) Northern
Command, Udhampur, the petitioner came to be wrongly and falsely
implicated in a highly vexatious case.

3. The facts of this case which led to holding of Court of Enquiry under
the Army Act, registration of F1R, holding of investigation and finally
presentation of criminal challan against him, are as under :-
“That complainant Inder Singh proprietor Bee Ess Transport Company
was registered with the Supply and Transport Branch Headquarters
Northern Command as “B” Class contractor for load carrier, water
Brower, tipper and JCB since 21.12.2007 though he had earlier been
registered for contract upto capacity of 1.80 Crore since 31.01.2003.
On the basis of some complaint filed by Manjit Singh and Harjeet
Singh with regard to sale/transfer of one of the vehicles by the
complainant, the petitioner in his capacity as Major General ASC,
after holding a thorough probe with regard to these allegations alleged
against the complainant and after affording full opportunity of being
heard to the complainant, de-registered the firm of the complainant as
contractor from the rolls of ASC on 25 June 2010. That the
complainant Inder Singh feeling aggrieved of de-Registration of his
firm, approached this Hon’ble court through the medium of writ
petition OWP No.1312/2010 and OWP No. 145/2012 assailing the
orders pertaining to de-registration of his firm and non-issuance of
tenders to him, which writ petitions are still pending consideration
before this Hon’ble court. That the complainant due to de-registration
of his firm entertained hostility, grudge, bias and wreck, vengeance
false, concocted and vexatious complaint against the petitioner in
collusion with the army officials, before the GOC Northern Command

CRR No. 23/2915 Page 2 of 20
Udhampur alleging that the petitioner is resorting to malpractices on
the ground that the petitioner is not issuing tender notice for the year
2012-13 to him which he admittedly never applied for. That
subsequent to filing of first complaint dated 04.05.2012, the
complainant filed yet another complaint dated 09.06.2012 before the
GOC-in-C NC HQ. ln the said complaint it was alleged that the
complainant had already written one letter dated 4th May 2012 against
the petitioner for harassment made to him and alleged demand of
money for reinstating his firm. It needs mention that in the earlier
complaint dated 04.05.2012 there was no mention of demand of any
money by the petitioner. The complainant further proceeded to
mention in this complaint dated 09.06.2012 that he visited the office
of the petitioner on 14.05.2012 for the relief so that he can work
alleged to have asked some money and the petitioner is alleged to have
asked him to come to his office with some money and the petitioner
will reinstate his firm after 1st week of June. It was further alleged in
the said complaint that on 09.06.2012 (Saturday), the complainant on
the alleged directions of the petitioner, visited his office and is alleged
to have given a packed of money and thereafter filed the complaint
dated 9.6.2012 before the GOC NC Hq annexing with photocopy of
some 500/-currency notes alleged to have been given by the
complainant to the petitioner. That it is pertinent to mention at this
stage that all the firms which were registered with ASC Northern
Command were to re-register due to change of parameters and policy
by the Government of India, Ministry of Defence w. e. f. 30.03.2012
and all the registered firms were required to get themselves registered
afresh under the new policy being (MR-83/131). As per the records

CRR No. 23/2915 Page 3 of 20
available in ASC Northern Command, Udhampur the complainant had
never applied afresh for registration of his firm, therefore, there was
no occasion for the petitioner to even assure him of registration of his
firm. Even otherwise, after the firm of the complainant was de-
registered on 25.06.2010, the same firm under rules cannot be re-
registered prior to 24.06.2012 i.e., within a period of two years (MR-
98/13). It is further stated that the GOC Northern Command upon
receipt of the said complaint dated 09.06.2012 constituted a team of
Lt. General B. S. Pama (COS) and Col. A.S.Sehgal Deputy Provost
Marshal for carrying out check/search of the office of the petitioner.
Conspicuously it is a mystery, which remained unsolved uptill now
that as to how the said complaint reached to the GOC Northern
Command notwithstanding the fact that in such a big organization, the
said complaint has not been diarized anywhere in the entire Sectt of
GOC. Another suspicion which came to fold is that the complainant is
alleged to have visited the office of the petitioner on 09.06.2012, the
complaint was made on 09.06.201 and the said complaint travelled to
the GOC on 11. 06. 2012. In the Northern Command, every person
desirous of visiting any office, proper Gate-Pass is issued and proper
entry of the said person is recorded in the registers maintained at
different gates and mobiles are deposited at the gate. The complainant
had visited many a times the HQ Northern Command and his name
stood duly entered in the relevant entry registers, but for 09.06.2012,
there is no record with regard to visit of the complainant to the Hq
Northern Command where the office of Major General was located
besides various other offices including the office of GOC Northern
Command. It is further contended that the petitioner was under

CRR No. 23/2915 Page 4 of 20
transfer during the period the complainant started filing complaints
against him, therefore, the petitioner otherwise also, was not in a
position to pass any effective orders being under transfer. Otherwise
also there was no occasion for registration of the firm of the
complainant due to pendency of the writ petitions filed by him before
this Hon’ble Court and the complainant had not at all applied for
registration of his Firm. On 11.06.2012, when the team constituted by
the GOC alongwith the petitioner visited the office of Major General
ASC, from which post the petitioner was under transfer and his
reliever was also present in the office room, the same was inspected.
From the drawers of the table, a brown cover envelope containing Rs.
5000 was alleged to have been recovered. Besides, this Rs. 35000
from briefcase and Rs. 1430/- alongwith two canceled Railway
reservation tickets were alleged to have been recovered. It is further
stated that during the inspection and recovery, no independent witness
was associated. Even the reliever of the petitioner who was present in
the office chambers of Major General ASC was also not associated
rather he was asked to leave the room during the course of inspection
and recovery. No seizure memo on spot was prepared as is the
requirement of basic law nor any inventory of the seized article was
prepared in presence of any independent witness as also in presence of
the petitioner. It is further averred that thereafter on the report
submitted by the Team of officers constituted by GOC, Court of
Inquiry was ordered against the petitioner, which held the proceedings
and after recording the statements of the witnesses projected, nothing
was proved against the petitioner regarding the complaint of the
complainant dated 09.06.2012 and thereafter the GOC HQ NC came

CRR No. 23/2915 Page 5 of 20
to the conclusion that the case be handed over to the CBI for
conducting investigation. On the basis of these findings of Court of
Inquiry, an FIR No. 0042013A0002 dated 27.04.2013 for commission
offences under section 161 RPC and 5 (2) read with Section 5 (1) (d)
of J K Prevention of Corruption Act Samvat 2006 was registered
against the petitioner. The respondent after registration of FIR which
was registered after the alleged incident which occurred in the year
2012, proceeded with the investigation by completely relying upon the
data and evidence which was part of the Court of Inquiry and no
independent and impartial investigation in the matter was conducted
by the respondent, On completion of so called investigation which was
totally a sham exercise and prima facie illegal and which was not
liable to be conducted by the CBI at that juncture, a criminal challan
titled CBI vs. Maj. Gen. V. K. Sharma came to be presented before the
Court of Ld. Special Judge Anti Corruption (CBI Cases), Jammu. On
presentation of the challan, the Court of Ld. Special Judge Anti
Corruption (CBI Cases), Jammu not only entertained the same but also
proceeded to commence trial in the case. The arguments on framing of
charge were heard on 19. 03. 2015 and finally vide order impugned
dated 31.03.2015, charges under section 161 RPC and 5 (2) read with
Section 5 (1) (d) of the JK Prevention of Corruption Act Samvat
2006 have been framed against the petitioner.”

4. The petitioner being aggrieved of the presentation of challan,
challenged the same on the following grounds:-

1. That the impugned order passed by the learned Court below is against
law, therefore, the same deserves to be set aside at the very threshold. That
the whole of the proceedings including the registration of FIR, investigation

CRR No. 23/2915 Page 6 of 20
conducted and filing of challan are highly vitiated as the same are violative of
provisions of law. On this ground also, the same deserve to be quashed.

2. That when the matter was allegedly reported to GOC Northern
Command and it disclosed prima facie commission of cognizable offence,
then the GOC Northern Command ought to have reported the matter to the
Police/CBI and could not have continued with investigation on himself. This
goes to the root of the case to suggest that the petitioner has been purposely
framed into the alleged occurrence notwithstanding the fact that the
petitioner has not committed any such offence as has been alleged against
him in the impugned FIR which culminated into the presentation of the
impugned challan against him and framing of charges. That seizures and
recoveries allegedly made from the office of the petitioner by the team of
officers is not admissible in law as no such power is vested with the Army
Authorities to make such seizures and recoveries. Such seizures and
recoveries cannot, therefore, be taken to be seizures and recoveries made by
the “Police official” as per the provisions of the J K Code of Criminal
Procedure.

3. That the seizures and recoveries made by the army officers namely Lt.
General B. S. Pama (COS) and Col. A. S. Sehgal Deputy Provost Marshal
being illegal any subsequent action taken on the basis of that seizure and
recovery is also illegal and not sustainable in the eyes of law. That when
the matter went to the court of Inquiry, the Court of Inquiry had given
findings of no offence triable under the provisions of the Army Act, there lies
no justification with the CBI to rely upon the evidence which was collected by
the army authorities. This crucial and significant legal aspect of the matter
though vehemently projected during the course of arguments on framing of
charges, have not been considered by the learned Trial Court, which renders
the entire challan presented against the petitioner and order framing the
charge highly vitiated and liable to be quashed.

4. That a reference to the challan, which has been presented by the CBI
against the petitioner, clearly shows that whole case is based upon recovery of
amount and document from the office of the petitioner by the Army officers
and beyond that there seems to be no case made up against the petitioner.
The investigation as such based upon illegal search and seizure is non-est in
the eyes of law and cannot be made basis for prosecuting the petitioner.

5. That on merits also, the impugned challan presented against the
petitioner and order impugned framing charges against the petitioner is not
legally sustainable in as much as there is no allegation from the complainant
with regard to demand of a specific amount by the petitioner. Even in the
complaint dated 09.06.2012 which led to creation of entire wrong and false
story against the petitioner the complainant has not at all mentioned the
specific amount which he is alleged to have given to the petitioner. In the
absence of specific amount given to the petitioner as illegal gratification, the
money which was recovered from the office of the petitioner cannot be said to
be the amount given by the complainant.

6. That another crucial fact which goes to the root of the case to suggest
that the entire case framed against the petitioner is highly motivated and

CRR No. 23/2915 Page 7 of 20
maneuvered is that the petitioner has obtained from the records of the Army
authorities copies of two complaints of same date i.e 09.06.2012. Although the
two copies of the complaint dated 09.06.2012 are exactly identical, but on one
complaint dated 09.06.2012 at the top of the same there is handwritten
figures as “0191” over the telephone numbers and at the bottom the name of
the proprietor i.e., Inder Singh is hand written besides there is a name in the
shape of a signature “B.S.Negi” is scribed. However, in another copy of the
same very complaint, the figures “0191”are not omitted nor were there
mention of name of the proprietor at the bottom and there is no name of B. S.
Negi, rather an endorsement is made on this complaint made by the GOC.
The purpose of mentioning the details of these two copies of a same complaint
is to demonstrate that the complaint dated 09.06.2012 was never ever
prepared and received by the GOC but the same was later on prepared after
the office of the petitioner was searched and currency notes seized. Out of the
currency notes seized, four currency notes were photocopied and kept as part
of the complaint. The entire exercise was done with a specific purpose of not
only maligning the reputed image of the petitioner, but involved in totally
false and frivolous behest of the complainant who was having good rapport
with the other army officers/officials.

7. That the complaint which led to initial search and search, holding of
Court of Inquiry against the petitioner, then registration of FIR and
presentation of challan against the petitioner contained the allegations as
regards registration of the firm of the complainant. Neither the army
authorities nor the CBI at any point of time appreciated a crucial aspect of
the matter that the Petitioner was totally incapacitated for grant of
registration to the firm of the complainant on the date when it was alleged
that he has obtained money on the ground that the petitioner was already
under transfer, the registration of the firm of the complainant was otherwise
not required to be granted before completion of two years from the date of
de-registration and moreover the matter with regard to the de-registration of
the firm of the complaint was subjudice before the Hon’ble Court. Further, a
new policy with regard to registration of all the firms came to into being on
30.03.2012 and as per that policy all the firms including the complainant was
required to apply afresh, which he has admittedly never applied, therefore,
there was no occasion for the petitioner to demand any money and
consequently there was no occasion for the complainant to pay any money to
the petitioner for registration of his firm. The allegations in the complaint are
highly bailed and not only unbelievable but also inconceivable.

8. That the complaint filed against the petitioner is manipulated and
maneuvered one. On 09.06.2012, the complainant has never visited the
Northern Command as the records maintained at the entry gates of the
Northern Command there is no entry of the name of the complainant that he
has visited Northern Command on 09.06.2012. Prior to 09.06.2012 whenever
the complainant visited the Northern Command, there is proper entry of his
name, but on 09.06.2012 there is no entry with regard to visit of the
Complainant to Northern Command. Even in the Court of Inquiry as also in
the investigation conducted by the CBI, there is no evidence or proof of the

CRR No. 23/2915 Page 8 of 20
complainant visiting Northern Command on 09.06.2012 or his visit to the
office of the petitioner. That the findings returned by the Ld. Trial Court
while passing the order impugned dated 31. 03. 2015 framing charges against
the petitioner are totally perverse, contrary to the factual and legal position
and against the law laid down by Hon’ble Supreme Court of India which is
quite evident and apparent from the perusal of the order impugned.

5. I have heard counsel for petitioner as well as State counsel. Counsel
for petitioner has reiterated all grounds taken in memo of petition;
whereas counsel for respondent has taken a preliminary objection that
revision petition against the order of framing of charge is not
maintainable as it is interlocutory order.

6. I have given my thoughtful consideration to whole aspects of the
matter and perused the record.

7. Learned counsel for the petitioner in support of his argument has
relied upon the judgments of Hon’ble the Supreme Court in case titled
Union of India vs Prafulla Kumar Samal and anr, reported in 1979
AIR 366; in case titled Asian Resurfacing of Road Agency Pvt. Ltd.
another vs Central Bureau of Investigation, reported in 2018 (5)
Scale 269 and in case titled Dilawar Balu Kurane vs State of
Maharashtra. (Appeal (crl.) 8 of 2002) decided 08.01.2002

8. Learned counsel for the respondent in support of her arguments, has
also relied upon the judgments of Hon’ble the Supreme Court in case
titled Suresh Chand Mehra vs Defence Secretary, Union of India,
reported in 1991 AIR (SC) 483 and in case titled State of Rajasthan
vs Shambhoogiri, reported in 2005 AIR (SC).

9. The facts of the case, as evident from challan, are as under;-

“That the complainant Inder Singh, proprietor Bee ESS Transport
Company was registered with the supply and transport Branch
Headquarters Northern Command as B-Class Contractor for load
carrier, water browser, tipper and JCB on 21.12.2007, though he had

CRR No. 23/2915 Page 9 of 20
earlier been registered for contract upto Capacity of 1.80 crores since
31.1.2003. He had declared two vehicles including Water browser
bearing No. JK02C-1254, as required under rules for registration of the
firm. However, a dispute arose between Inder Singh and one Harjeet
Singh with regard to the browser JK02C-1254. Harjeet Singh had
allegedly, got the said bowser fraudulently transferred in his name and
claimed to be owner of the same. The accused, being Executive Officer
concerned, proceeded against complainant for having disposed of the
Browser, without his prior permission. However, it was clarified by the
RTO that the vehicle had got fraudulently been transferred b said
Harjeet Singh, who had made misrepresentation, and that registration
in his favour stood cancelled later under Section 55 of the Motor
Vehicles Act. Notwithstanding this the Firm of the Complainant was
removed vide Removal Order on 25.6.2010 on the ground that he had
sold of one of the Browser without permission from MG ASC and the
security deposit of the Firm was forfeited under the rules. Thereafter
the complainant sought the reinstatement of his firm on 14.5.2012 and
Accused demanded money for doing the needful.

The complainant sent a complaint to Lt.Gen. K.T. Parnaik, the then
GOC in-C, on 09.06.2012. This complaint was received by Lt.
Gen.Parnaik on 11.6.2012.

The Complainant Inder Singh alleged, in the said complaint that the
accused had demanded money from him. He got made Photostat copies
of four currency notes of Rs.500/- denomination each, out of the total
five thousand bribe money, as a proof that these are same notes which
were handed over to the accused, He handed over Rs. 5000/- to accused,
including those four marked notes in his office, as illegal gratification.
Lt. Gen. Parnaik, GOC-in-C, upon receipt of this complaint constituted
a team of Lt. Gen. B.S. Pama, (COS) and Col. A.S. Sehgal Deputy
Provost Marshal (Army Police) for carrying out check/search of the
office of the accused V K Sharma. They, requested V K Sharma to
accompany them to his office. The drawers of the table of the accused
were found locked. The accused Maj.Gen V. K. Sharma was in
possession of the Keys, which he had kept to brown leather pouch. The
accused was asked to open the drawer of the said table. He opened the
drawer with one of the Keys. A brown colored envelope containing
Rs.5000/- was recovered from the drawers. Besides this, some currency
notes in the amount of Rs.1430/- two canceled Railway reservation
tickets and maroon colored Pouch containing stack of credit/debit cards
were recovered from the said drawer. Four currency notes of Rs.500/-
denomination each out of Rs.5000/- recovered from the drawer kept in
the envelop tallied the numbers of the Photostat of the marked currency
notes. Col. A.S. Sehgal also requested Maj. Gen. V K Sharma to open
his Brief Case, which was locked. It was opened by the accused from the

CRR No. 23/2915 Page 10 of 20
Keys contained in the aforesaid brown leather Pouch. Rs.35,000/- was
recovered from the white envelope found in the said Brief Case.
The List of the recovered articles was prepared. Col A. S. Sehgal and Lt.
Gen. B S Pama endorsed the certificate at the back of the Photostat
copy of the currency notes to the effect that four notes of Rs.500/-
denomination bearing distinct Nos.1LM711526, 1LK414285, 6LB163744
and 3LB809741 which were found in the brown envelope during the
search tallied with the Photostat copies of the currency notes annexed
with the complaint dated 9.6.2012 made by Inder Singh to GOC-IN-
Command. The items so recovered remained in the custody of Lt. Gen.
B S Pama; which later, however, were handed over to the accused on his
assurance that he would produce the same as and when required.

However, it transpired later that out
of four said currency notes two currency notes of Rs.5000/-
denomination
were found missing, which showed that the accused had tried to destroy
part
of the evidence. However, the accused represented that he may have
spent
those currency notes.

The Court of Inquiry proceedings were initiated against the
accused on 21-06-2912. However, during the Court of Inquiry
proceedings a
complaint also came to be made by Sh. Moti Singh, Power of Attorney
holder of M/s Marshal Road Lines that the accused had been harassing
him that in case he did not pay 1% of the contract amount, he would not
be award same to him, as the firm had committed a delay in depositing
the security. The accused demanded Rs.40,000/, being one percent of the
contract amount of Rs.44,18,700/-. He paid illegal gratification of
Rs.40,000/- on 05.06.2012 to the accused in his office, He also, further,
stated that he had to earlier pay Rs.20,ooo/ as illegal gratification to
accused Maj. Gen. V K Sharma as a bribe as he was harassing them to
remove the name of their firm from the list of Vendors, as they had not
done any work contract for the last three years. The accused then issued
them a tender document for the year 2011-12. It is further stated that
amount of Rs.20,000/- and Rs.40,000/- was handed over to the accused
in presence of Charanjt Singh. These alleged incidents, have been set up
in challan to show that the accused had earlier too been indulging in
corrupt practices.

The Court of inquiry authorities came to the conclusion that
besides the case for the acceptance of illegal gratification aforesaid,
there are also material for disproportionate assets case etc. it was
deemed appropriate to hand over the case to CBI for conducting the
investigation. The CBI, as such, registered the FIR No: 0042013A0002
dated 27.4.2013 for offences under section 161 RPC r/w 5(1)(d) of PC
Act, against the Accused.”

CRR No. 23/2915 Page 11 of 20

10. Court below on 31.03.2015 by way of detailed order, held that there is
prima facie material to proceed against the accused/petitioner. Vide
order 01.04.2015, Trial Court has framed charges against
petitioner/accused, which read as under:-

“That on 6th June 2012, you were posted as Maj.Gen. ASC, HQ,
Northern Command, Udhampur. While, posted as such you were a
competent Authority, being Executive Officer concerned to reinstate
the firm of the complainant which had been removed vide Removal
order dated 25.6.2010, you demanded and accepted an illegal
gratification of Rs.5000/- on 6th June 2012, at your office, situated at
Udhampur from complainant Inder Singh s/o S. Laiq Singh R/o House
No:153, Gali No:5, Sector No:7, Nanak Nagar, Jammu Proprietor Bee.
Ess Transport Company, for reinstatement of the firm of the
complainant.

That in pursuance of a complaint made by Inder Singh S/o S. Laiq
Singh R/o House No:153, Gali No.5, Sector:7, Nanak Nagar, Jammu,
Proprietor Bee. Ess Transport Company, the said amount of Rs.5000/-
was recovered from drawer of your office table, the key of which were
in your custody, by a team of Lt. Gen. B. S. Pamma (COS) and Col. A.
S. Sehgal, Deputy Provost Marshal constituted by Lt. Gen. K. T.
Parnaik.

That you being a public servant and by acting in the aforesaid manner
obtained for yourself undue pecuniary gain, by corrupt and illegal
means and by abusing your position as a public servant. Thus you have
committed offences punishable under Section 161 RPC and 5(2) r/w
5(1)(d) of JK Prevention of Corruption Act Samvat 2006, which are
within the cognizance of this Court.

And, I hereby direct that you be tried for the above said charges in this
Court.”

11. Firstly I will deal with one preliminary objections raised by counsel
for respondent that order of framing of charges by Special Judge
Anticorruption Court, is an interlocutory order and revision is not
maintainable. He has shown various judgments. But now law has been
finally settled by three judges bench of Apex court in 2018 (5) Scale
269 in case titled Asian Resurfacing of Road Agency Pvt. Ltd
Anr. Vs. CBI, wherein it is held as under;-

CRR No. 23/2915 Page 12 of 20

“36. Thus, we declare the law to be that order framing
charge is not purely an interlocutory order nor a final order.
Jurisdiction of the High Court is not barred irrespective of
the label of a petition, be it under Sections 397 or 482 Cr.P.C.
or Article 227 of the Constitution. However, the said
jurisdiction is to be exercised consistent with the legislative
policy to ensure expeditious disposal of a trial without the
same being in any manner hampered. Thus considered, the
challenge to an order of charge should be entertained in a
rarest of rare case only to correct a patent error of
jurisdiction and not to re-appreciate the matter. Even where
such challenge is entertained and stay is granted, the matter
must be decided on day-to-day basis so that stay does not
operate for an unduly long period. —————–”

12. In view of above latest law, the preliminary objection is overruled.

13. Next argument of counsel for petitioner is that complainant (Brig
Sanjeev Grover, Brig Admn for GOC-in-C, Northern Command ) was
not a aggrieved person and could not maintain complaint and so FIR
lodged by him before CBI and all subsequent proceeding/
investigation conducted by CBI are void and consequential challan is
required to be dismissed. This argument has no legal footing as any
person can set criminal proceeding/law in motion. In AIR 2005 SC
1643 in case titled State of Rajasthan v Shambhoogri, it has been
held as under:-

“Every citizen is competent and entitled to detect crimes and report
and, if any, information regarding the commission of any crime is
known to any person, such information can be passed on to the police or
any other competent authority for taking appropriate action, for
example, under the Food Adulteration Act, an ordinary citizen is
competent to collect samples and send to public analysis and based on
the report of the public analyst, the complaint can be filed before the

CRR No. 23/2915 Page 13 of 20
appropriate authority. The collection of the samples and the analysis by
the public analyst do not amount to investigation. If a crime is
committed in the presence of any citizen, he can very well ascertain the
truth of the fact and make all efforts to bring home the guilt of the
accused. The Sub-Divisional Magistrate had only discharged his duties
as a law abiding citizen and the allegation that SDM had conducted
investigation of the case is incorrect and the High Court seriously erred
in holding that the trial was vitiated owing to the investigation having
been conducted by the SDM. The acquittal of the accused was improper
and we set aside the Judgment of the High Court as the High Court had
not considered the criminal appeal filed by respondent on merits and
the same is remitted to the High Court for proper consideration in
accordance with law.”

14. Next argument of counsel for petitioner is that once a court of inquiry
has been held, the FIR in question could not have been lodged. He has
further argued that by lodging FIR, the petitioner has been double
jeopardized.

15. I have gone through these aspects of the matter. The double
jeopardy clause bars second prosecution after either acquittal or
conviction, and prohibits multiple punishments for the same offense.
Article 20(2) of the Indian Constitution is a guarantee against
double jeopardy. It is fundamental guarantee granted to every
citizen of India under Constitution of India. This means that: No
person shall be PROSECUTED AND PUNISHED for the SAME
OFFENCE more than ONCE. It is important that prosecution and
punishment co-exist in order for this article to be operative. This
means that suppose if a person has been prosecuted for an offence but
acquitted then he can be prosecuted for the same offence again and
punished. It is based on the maxim: NEMO DEBET BIS VEXARI –
Man must not be put twice in peril for the same offence.

CRR No. 23/2915 Page 14 of 20

16. But in present case only Court of Inquiry was previously conducted
against the petitioner as per Rule-177 of Army Rules 1954. There was
no prosecution conducted so far. This rules reads as under:-

“[177. Courts of Inquiry.–

(1) A court of inquiry is an assembly of officers or of junior
commissioned officers or of officers and junior commissioned
officers, warrant officers or non-commissioned officers, directed to
collect evidence, and if so required to report with regard to any
matter which may be referred to them.

(2) The court may consist of a Presiding Officer, who will either be an
officer or a junior commissioned officer, and of one or more
members. The Presiding Officer and members of court may belong to
any Regt or Corps of the service according to the nature of the
investigation.

(3) A court of inquiry may be assembled by the officer in command of
any body of troops, whether belonging to one or more corps.]”

17. The court of inquiry is merely in the nature of fact finding enquiry
committee and this will be evident from sub rule (1) of rule 177 which
provides that court of inquiry is an assembly with a view to collect
evidence and to report with regard to any matter which may be
referred to it. Therefore the opinion of the court of inquiry helps the
officer commanding to mere satisfy himself whether there is any
prima facie material for proceeding with investigation of charges and
trial by court martial as per army rules.

18. In AIR 1991 SC 483 in case titled Suresh Chand Mehra v Defence
Secretary, UOI , it is held as under:-

“The provisions of sub-rule (i) of the Rule 177 show that the inquiry
must be by an assembly of officers of the ranks described in sub-
rule (1) and the purpose of this inquiry is merely to collect evidence
and if so required, to report with regard to any matter which may
be referred to the said officers. This is merely in the nature of a
preliminary investigation and cannot be equated with a trial.”

CRR No. 23/2915 Page 15 of 20

19. In view of above, this argument also does not hold good.

20. Another argument of counsel for petitioner is that CBI did not conduct
any fresh investigation, but has only collected the papers of court of
inquiry and filed the challan; this arguments of counsel for petitioner
is also not tenable as from perusal of file, it is evident that, after
registration of formal FIR on the complaint of Sanjeev Grover Brig.
Adm. for GOC Northern command by CBI, investigation was started.
This complaint was made on the conclusion of court of inquiry
pertaining to petitioner; in inquiry it was found that during court of
inquiry, beside proving acceptance of illegal gratification,
petitioner/accused has been found possessing assets beyond his known
source of income, which court of inquiry could not ascertain in full
and only partial assets beyond known source have been established; it
has further been held in report of court of inquiry that detail of assets
of wife and children could not been ascertained; prima facie from
bank record it was proved that petitioner possesses nearly Rs.65 Lakh
beyond known source; in addition he has sold shares of
Rs.34,14,755.75/- between 24th July 2012 to 27th July 2012 during
course of inquiry. During investigation statements of relevant
witnesses, who are acquainted with case, under section 161/162 Cr.PC
have been recorded by I/O.

21. One more argument in the end has been advanced that court below
was required to follow the provisions of section 125 of Army Act
before taking cognizance in the matter, as petitioner is army officer.

CRR No. 23/2915 Page 16 of 20

22. To resolve this conflict, reference would be essential to the provisions
of Section 125 of the Army Act, which makes a provision for
resolving this conflict, where there is a choice between criminal court
and the court-martial. It reads as under:-

“125. Choice between criminal court and court- martial.- When a
criminal court and a court-martial have each jurisdiction in respect
of an offence, it shall be in the discretion of the officer commanding
the army, army corps, division or independent brigade in which the
accused person is serving or such other officer as may be prescribed
to decide before which court the proceedings shall be instituted, and
if that officer decides that they should be instituted before a court-
martial, to direct that the accused person shall be detained in
military custody.”

23. Thus, when a criminal court and court-martial each have a jurisdiction
in respect of an offence, it is in the discretion of the officer
commanding the army, army corps, division or independent brigade in
which the accused person is serving or any such officer as may be
prescribed to decide before which court the proceedings shall be
instituted. The term prescribed “officer” used in Section 125 is further
regulated by Rule 197-A of Army Rules, 1954, which provides that
the prescribed officer for the purpose of Section 125 of the Act shall,
except in cases falling in Section 69 of the Act in which death has
resulted, be the officer commanding the brigade or station in which the
accused person is serving.

24. The scheme of the Army Act in respect of offences committed by
person, who is subject to the Army Act, for his trial by court-martial
or ordinary criminal court is governed by various provisions of
the Army Act, which are required to be read and analysed in the light
of the provisions made under the Criminal Procedure Code. Army

CRR No. 23/2915 Page 17 of 20
Act is a special Code made applicable to persons subject to the Act.
The persons, who would be subject to the Army Act, are regulated
by Section 2 thereof and there is no dispute that the petitioner being an
officer would be subject to the Act in terms of Section 2(1)(a), which
provides as under:-

“2. Persons subject to Act.-(1) The following persons shall be subject
to this Act wherever they may be, namely:-

(a) officers, junior commissioned officers and warrant officers of
the regular Army;

(b) to (i) xx xxx xxx xxx”

25. However, Section 2 (2) of Army Act, reads as under:-

“Section 2(2) Every person subject to this Act under
clauses (a) to (g) of sub-section (1) shall remain so subject
until duly retired, discharged, released, removed,
dismissed or cashiered from the service.”

Section 2(2) provides that every person subject to this Act under
clauses (a) to (g) of sub-section (1) shall remain so subject until duly
retired, discharged, released, removed, dismissed or cashiered from
the service. Thus, the subjection of a person subject to the Army Act is
limited upto the date that person is duly retired, discharged, released,
removed, dismissed or is cashiered from service. So every person
subject to this Act under clauses (a) to (g) of sub- section (1) shall
remain so subject until duly retired, discharged, released, removed,
dismissed or cashiered from the service.

26. The question required to be seen in the present case is whether there
was a need for Special Judge to follow this procedure or not.
Undoubtedly, the Special Judge was required to follow this procedure

CRR No. 23/2915 Page 18 of 20
in case the petitioner was subject to dual jurisdiction of a court-martial
as well as of an ordinary criminal court. The petitioner though was
subject to the Army Act when this FIR was lodged against him and
was allowed to be investigated by CBI, but he was not subject to
the Army Act when the cognizance of an offence was taken by the
Special Judge. Challan in this case was presented on 5.8.2014 and the
charges were framed on 31.3.2015 By then, the petitioner had already
been retired from service on 30.4.2014 as per pleading in petition.
Thus, on the date he was produced before the Special Judge, he was
not subject to the Army Act. Reference here may be made to the
provisions of Section 2 (2) of the Army Act, which clearly provide
that person who is subject to the Act under any of the clauses (a) to (g)
shall remain so subject until duly retired, discharged, released etc.
Thus, the subjection of the person to the Act in view of any of the
clauses (a) to (g) of the Army Act of section 2 would cease on his
retirement. Since the petitioner had retired from service on 30.4.2014,
he was no more subject to the Army Act in terms of Section 2 (2) and
hence was not open to be tried by a court-martial. Needless to mention
that for trying a person by court-martial, his subjection to the Army
Act is the legally essential requirement and moment the person ceases
to be subject to the Act, he does not remain amenable to the
jurisdiction of a court-martial for his trial.

27. Hence, this argument also goes in vain.

28. Rest arguments and grounds taken are pertaining to appreciation of
facts, which this court cannot conduct as per law in Asian
Resurfacing of Road Agency Pvt. Ltd Anr. (supra).

CRR No. 23/2915 Page 19 of 20

29. It is not the case of petitioner that there is patent error of jurisdiction in
order of court below in framing charges. The law cited by counsel for
petition is not applicable in present set of case. As in Union of India
vs Prafulla Kumar Samal and anr, reported in 1979 AIR 366, the
apex court has held that interpretation of Section 227 Cr.P.C, apply
mutatis mutandis to proceeding under section P.C Act after the charge
sheet is submitted before special judge. In case titled Dilawar Balu
Kurane vs State of Maharashtra (supra), the alleged accused was
lecturer in a private college, so was not a public servant and apex court
quashed the proceeding under P.C. Act.

30. This court while exercising the power under revision, cannot stifle the
legitimate prosecution. This is a supervisory power vested in High
Court to correct illegality or incorrectness in the order of subordinate
court. High Court cannot re-examine evidence in detail to see as to
whether charge for alleged offence is made put or not.

31. In view of above this petition is dismissed; interim stay is vacated.

File of court below be sent back for conducting trial.

Jammu
16.11.2018 ( Sanjay Kumar Gupta )
Narinder Judge

CRR No. 23/2915 Page 20 of 20

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