31.03.2015 MA 226/2015 This is an application under Section 22 of the Armed Forces Tribunal Act, 2007 for condonation of delay of 1642 days in filing the accompanying application (MA 225/2015) for leave to appeal. Although the prayer has been vehemently opposed on the ground that by virtue of sub-section (2) of Section 31 of the Armed Forces Tribunal Act, 2007, such an application has to be made within a period of thirty days beginning with the date of the decision of the Tribunal, yet the fact remains that the condonation petition has been moved in the light of the observations made by Honble the Supreme Court in paragraph 39 of the judgment dated 11.03.2015, passed in Civil Appeal No. 7400/13 titled UOI and others vs. Major General Shri Kant Sharma and another. It is also well settled that while considering the question of condonation of delay the words sufficient cause should receive a liberal construction as to advance substantial justice. Accordingly, the MA is allowed and the delay in filing the leave application is hereby condoned. Arguments heard. MA 225/2015 This is an application, under sub-section (1) of Section 31 of the Armed Forces Tribunal Act, 2007, for grant of leave to appeal to the Supreme Court against the common order dated 23.09.2011, passed by this Tribunal in OA No.40/2010 and OA No.41/2010. Out of these petitions, the first one, numbered as 40/2010, was filed by the applicant here calling in question the findings and opinion of the Board of Inquiry leading to the disciplinary proceedings against him inter alia on the ground of violation of Regulation 205,Regulations of the Navy Part-II (Statutory). However, for the reasons recorded in the order dated 23.09.2011, both the OAs were dismissed on merits. Being aggrieved, the applicant moved the High Court of Delhi by filing a Writ Petition (No.8267/2011), under Article 226 of the Constitution of India. An application for staying the disciplinary proceedings was also submitted but the High Court, on 13.12..2011, while declining to stay the disciplinary proceedings, passed the order in the following terms: Considering the facts and circumstances, till the next date of hearing, any order passed in the Court Martial proceedings which is initiated consequent to the Board of Inquiry challenged in this petition, shall be subject to the outcome of the present writ petition." Thereafter, the applicant was subjected to trial by Court Martial in respect of as many as 31 charges. However, upon conclusion of the trial, the Court Martial, found him guilty of six charges viz: (a) Charge No.1 (under section 408 of the IPC); (b) Charge No.11 (under section 420 of the IPC) (c) Charge No.17(Under section 462 of the IPC) all read with Section 77(2) of the Navy Act, 1957 (d) Charge Nos.13,14 and 15 (under section 60(a) of the Navy Act 1957) and sentenced him to
(i) undergo Rigorous Imprisonment for two years
(ii) be dismissed from navy service and
(iii) pay fine of Rs.4,90,055/- and in case of default to suffer RI for an additional period of one year
(iv) to suffer the consequential penalties involved. The applicant has already preferred an OA (No.79/2012), under section 15 of the Armed Forces Tribunal Act, 2007, which in essence and substance, is an appeal against the findings and sentences recorded by Court Martial and the same has been pending for consideration on merits. It is relevant to note here that the proceedings before the High Court have been terminated by order dated 20.03.2013 in the wake of the judgment in UOI and others vs. Major General Shri Kant Sharma and another(above). Highlighting the instances of violation of Regulation 205, as enumerated in the application, learned counsel for the applicant has strenuously contended that a question of law of general public importance touching the nature and scope of the right conferred by the Regulation is involved in the order dated 23.09.2011(supra). Elucidating the contention, he has pointed out that order was based on the following principles emerging from decisions of the Supreme Court in Maj GS Sodhi Vs Union of India & Ors (1991) 2 SCC 382, Union of India & Ors Vs Maj A Hussain, (1998) 1SCC 537, and Maj Gen Inderjit Kumar Vs UOI & Ors (1997)
9 SCC 1 that
(i) mere want of proper and adequate pre-trial investigation would not, in absence of prejudice to the accused or violation of a mandatory provision, vitiate the court martial;
(ii) procedural defects unless vital and substantial will not affect the trial
(iii) the Court of Inquiry and participation in the Court of Inquiry is at a stage prior to the trial by court-martial. It is the order of the court martial which results in deprivation of liberty. Principles of natural justice are not attracted to such a preliminary inquiry. whereas, according to him, after considering these decisions, the Supreme Court in Union of India & Ors Vs Sanjay Jethi (2013) 16 SCC 116 has taken a view that in the case of violation of a mandatory provision such as Army Rule 180, the question of prejudice would not be material. However, the contention is apparently misconceived simply because the Court in Sanjay Jethi's case does not appear to have dissented from the view taken in any of the earlier decisions. The decision in the case of Sanjay Jethi basically relates to Army Rule 180, whereas for the reasons recorded in the order dated 23.09.2011, this Tribunal has rejected the arguments advanced on behalf of the applicant that the provisions of Army Rule
180 and Regulation 205 are in pari materia. Further, ordinarily the leave application has to be decided primarily on the facts existing on the date of the final order but, as indicated already, the disciplinary proceedings have already been culminated into an order of conviction and sentence by the Court Martial. Faced with such a situation, learned counsel for the applicant has submitted that in the appeal against the findings and sentence recorded by the Court Martial, he has deliberately not raised the ground of violation of the Regulation 205. Having considered these factual aspects of the matter and well settled position of law on the subject as discussed by a Division Bench of Bombay High Court in Ranjit Kumar Sinha Vs Union of India & Ors1991 Cri LJ 1729, we are of the considered opinion that no point of law of general public importance has arisen from the order dated 23.09.11 deserving consideration by the Supreme Court. The MA, for leave to appeal, therefore, stands rejected. A copy of this order be given DASTI to both the parties. (R.C. MISHRA) MEMBER (J) (S.K. SINGH) MEMBER (A) Chanana/31.03.2015