Section 122 of the Army Act bars trial by court martial on expiry of three years from the date the offence comes to the knowledge of the disciplinary authority concerned or the person aggrieved by the offence, whichever is earlier

Vijay Mohan

Chandigarh, November 8

The Supreme Court has set aside the General Court Martial (GCM) proceedings against a colonel who was facing allegations of being involved with another officer’s wife, on the grounds that the charges have become time-barred.

Section 122 of the Army Act bars trial by court martial on expiry of three years from the date the offence comes to the knowledge of the disciplinary authority concerned or the person aggrieved by the offence, whichever is earlier.

On August 13, 2015, a colonel had sent a complaint to his brigade commander alleging improper relationship between his wife and the accused officer, following which a court of inquiry was ordered. On November 22, 2018, the Army issued orders that the accused officer be tried by GCM.

While the accused officer had contended that the day on which the complaint had been sent was the date on which the alleged offence came to the knowledge of the aggrieved party, the Army had averred that it was only after the completion of the summary of evidence at a later stage that a prima facie case was made out against the accused..

In its order on November 7, the apex court’s Bench comprising Chief Justice Uday Umesh Lalit and Justice Bela M Trivedi observed that in the instant case, having regard to the contents of the letter on August 2015 written by the aggrieved person to the authority concerned, specifying certain details, it clearly transpires that he was aware of the alleged act of the accused officer. Therefore, the date August 13, 2015 would be the crucial date on which the aggrieved person had the knowledge about the commission of the alleged offence and the time had started running from the said date for the purpose of Section 122.

“We are, therefore, of the opinion that the trial by the General Court Martial directed vide the order dated November 2, 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,” the Bench ruled.

“The apex court’s judgement has implications for a number of disciplinary cases under way in the three services where the authorities have considered the date of the finalisation of the court of inquiry or summary of evidence as the commencement of the period of limitation,” the officer’s counsel, Col Indra Sen Singh (retd), said..

The apex court’s Bench, however, added that 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 November 19, 2018 shall continue in accordance with law,” the Bench said.