TA 152 of 2010 1

IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH

NEW DELHI.

T.A.No. 152 of 2010

[Arising out of WP(C)No. 4575 of 2005 of Delhi High Court]

Major Anand Kumar …Petitioner

Versus

Union of India & Ors. …Respondents

For the Petitioner : Mr. G.K.Sharma, Advocate

For the Respondents: Mr. Ajai Bhalla, Advocate.

C O R A M:

HON’BLE MR. JUSTICE A.K.MATHUR, CHAIRPERSON

HON’BLE LT.GEN. S.S.DHILLON, ADMINISTRATIVE MEMBER

JUDGMENT

(13.7.2011)

Justice A.K.Mathur, Chairperson:

1. This Writ Petition has been transferred from Delhi High Court.

2. The petitioner was commissioned in the Army Ordnance

Corps on 5.3.1988 and on 16.1.1988 petitioner was posted to

23 Infantry Division Ordnance Unit then commanded by Col.

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H.C. Chawla. Petitioner was appointed as Administrative

Officer and also Officer-in-Charge Ammunition Technical

Services. It is alleged that petitioner took charge of his duties

from Maj.R.K. Gosain of the same unit.

3. It is alleged that in March, 1998 Sep Rajan Babu of the same

unit was apprehended by Civil Police carrying service Hand

Grenade. The matter was reported by Civil Police to the unit

and in preliminary inquiry the petitioner found huge quantity of

unaccounted Ammunition and explosives of dangerous nature,

which petitioner was not informed by his predecessor Maj.RK

Gosain. Petitioner verbally brought this to the notice of his

Commanding Officer, Col. HC Chawla. The ammunition was

seized and was taken in charge and was brought to the notice

of CO whose instructions were sought. The petitioner

reported the matter in writing to GOC 23 Inf Div. (Resp. No.3)

through Resp No.4. Respondent No.4 did not like it and

removed the Petitioner from the appointment of Administrative

Officer and starting harassing the petitioner. The petitioner

also reported the matter to the Local Audit Officer and a

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special Audit was carried out by a team of CDA Patna. The

petitioner applied for 28 days leave to attend his ailing father

at Delhi and he was allowed to proceed to Delhi. Though

petitioner proceeded without waiting for the leave certificate,

however, he was assured that it will be sent to his Delhi

address, but when he came back after availing the leave, he

was served with a notice for absenting himself without leave

and GCM was convened for trial of the petitioner. The

petitioner filed a Writ Petition before the Hon’ble Patna High

Court which was disposed of with direction that petitioner shall

raise preliminary objection by filing appropriate representation

to the convening authority. A GCM was convened and

petitioner was punished by forfeiting two years past service for

the purpose of promotion and to be severally reprimanded.

The petitioner filed a pre-confirmation petition before GOC-in-

C which was rejected. Thereafter, he filed a Writ Petition in

Jharkhand High Court and it is alleged that petition was not

disposed of, however, petitioner requested that his petition be

transferred to the AFT, Principal Bench at Delhi and it has

TA 152 of 2010 4

been registered at TA No.544 of 2010. It is alleged that on

7.8.2000 when petitioner was called in office of Resp No.4 in

the presence of major Anil Vishnoi and Major KS

Gunasekaran, he was abused and beaten up for sending a

complaint to Respondent-3, resulting in an inquiry by

Controller of Defence Accounts (CDA) Patna, for misuse of

govt. Explosives and Ordnance Stores and for which the Local

Audit Officer (LAO) had complimented the petitioner. It is

alleged that R-4 used criminal force against the petitioner by

hitting him with a cane stick, causing injury on petitioner’s

body. The petitioner became sick and he was sent to MH

Namkum. However, petitioner was not permitted to visit

Military Hospital Nankum for investigation and treatment but

petitioner was placed under arrest by Col HC Chawla, without

informing the Petitioner of any charge against him.

4. He alleged that wife of petitioner filed a Writ Petition in Hon’ble

Patna High Court. The Hon’ble Patna High Court directed

that this aspect of bias, harassment and torture be examined

by higher authorities and quashed the order being illegal.

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Thereafter, respondent filed a review petition which was

dismissed on 26.10.2000 by the Hon’ble Court. On

7.11.2000, the petitioner was released from close arrest. The

petitioner rejoined 23 Inf. Div Ord Unit and thereafter the

Respondents filed SLP No.4585 and 4586 of 2000 in the

Hon’ble Supreme Court against judgement dt.6.9.2000 of

Hon’ble Patna High Court. The petitioner’s wife also filed an

SLP against the illegal arrest of the Petitioner. However, the

SLP filed by the petitioner was disposed by the Hon’ble

Supreme Court and left question of law raised by the parties

open for decision in an appropriate case. And thereafter the

SLPs were dismissed as infructuous.

5. It is alleged that petitioner filed another petition before Hon’ble

Jharkhand High Court (writ petition No.2455 of 2001) in which

an interim order was passed that in case no final order has

been passed in the departmental proceedings, the operation

of the order of transfer dated 13.3.2001 shall remain stayed till

next date, if the petitioner has not yet been relieved.

However, since the petitioner was already relieved, the

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Hon’ble Court on 18.07.2001 directed the respondents to

allow the Petitioner to attend the proceedings at Ranch at

Govt. expense. Petitioner was admitted thereafter to the

Command hospital, Western Command at Chandi Mandir for

psychiatric treatment.

6. It is alleged that petitioner was not reposted to 23 DOU to

perform his normal military duty and impugned attachment

order dated 27.11.2001 under Army Instruction 30/86 was

issued until finalisation of disciplinary case against him. It is

further alleged that petitioner was a whistle blower and

performed his duty honestly by bringing to the notice of the

superiors that Resp No.4 was holding dangerous, surplus

ammunition, without taking it on charge, obviously with

dishonest intention. The petitioner reported on attachment to

23 Inf. DOU, however, disciplinary proceedings against the

petitioner for using criminal force to his superior officer namely

Resp No.4 were not initiated till a judicial magistrate Ranchi

took cognizance of following offences against Respondent

No.4.:

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(a) Punishment for Voluntarily causing hurt (b) Punishment for Wrongful restraint and (c) Punishment for Assault or criminal force otherwise on

grave provocation (on a complaint filed by the wife of the petitioner to the said Judicial Magistrate)

7. However, on 24.10.2002, six charges were framed against the

petitioner by Col.B.M.Sharma. It is alleged that when these

charges which were framed were time barred vide Army Act

Section 122. The summary of evidence was completed and

same was forwarded to the Army HQ and Resp. No.3 wrote a

DO letter to the officiating ADG DV for attachment of the

petitioner to 5/9 Gorkha Unit, in a remote area, where there

was no psychiatric treatment facilities available. This order of

attachment to 5/9 GR was sought to be served on petitioner

and this gave rise to this court martial because the petitioner

did not comply with the order & resisted the service of this

order. He behaved in a manner unbecoming of an officer &

attacked the serving party physically which resulted in

initiating present court martial proceedings. The following

three charges were framed against the petitioner which reads

as under:

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(1) Committing a civil offence that is to say, attempt to murder, contrary to Section 307 of the Indian Penal Code

(2) Resisting an escort whose duty it was to apprehend him (3) Disobeying a lawful command given by his superior officer

8. The Court Martial was convened and petitioner was not found

guilty for charge No.1 and a benefit of doubt was given that he

has no intention to cause voluntary hurt to Col. Ashok

Prabhakar and Major Prashant Pachouri. So far as Charge

No.2 is concerned, the petitioner was found guilty that he

resisted Col. Prabhakar and Major Prashant Pachouri on

13/14 Nov. 2003 to apprehend him by firing 2 shots from pistol

9 mm and he is also found guilty in disobeying a lawful

command given by superior officer. The accused was found

guilty for charge No.2 & 3 reads as under:

“The Court being re-opened, the accused is again brought before it. The findings together with the brief reasons in support thereof as read in open Court and announced, the findings as being subject to confirmation”

9. He was sentenced to fine and to suffer imprisonment for three

years. This punishment was given by Court Martial on

11.8.2004. The petitioner filed a pre-confirmation petition and

same was rejected. Hence petitioner filed a present petition

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before a Delhi High Court challenging his sentence and

confirmation and same has been transferred to this tribunal

from Delhi High Court.

10. A detailed reply was filed by the respondent and submitted

before us the original proceedings of the court martial

proceedings. Learned Counsel for the petitioner submitted

that finding given by the court martial proceedings is without

jurisdiction and charges for which petitioner was attached was

barred by time that they were beyond the period of limitation

and the movement order issued by the respondent was

without jurisdiction. He also submitted that the evidence

which had been produced before the court martial

proceedings the copies there of were not been given by the

authorities and the order of attachment was not served on the

petitioner, therefore, there was no question of resisting the

arrest.

11. The learned counsel for the respondent submitted that on the

basis of the evidence lead by prosecution the conviction of

petitioner is fully justified. We have heard learned counsel for

TA 152 of 2010 10

both the parties & perused the record. Prosecution in order to

substantiate their case has examined as many as seven

witnesses.

12. The case has been unfolded by the testimony of PW-4

Nk/CST LP Tiwari who perform duties of a clerk in the

Headquarter Section. He alleged that on 31.10.2003, he was

called by Col. Pramod Singh (PW-3) and the Officer-in-charge

HQ Lt. (now Capt) Nitin Palli (PW-1) to his office and ordered

him to prepare a movement order of the petitioner to 5/9

Gorkha Rifles, Last Ration Certificate and a single journey

railway warrant from Ranch to Banbasa and directed him to

handover those documents to the accused at his residence. It

is alleged that he prepared all documents including

attachment of the accused to 5/9 Gorkha Rifles and they are

exhibited 36 and 27 and same were given to him. The Officer-

in-Charge HQ signed all documents with a covering letter,

movement order and gave it to him to serve the same on the

petitioner. He along with the Sipahi Sep/Dvr Akash Kamble

(PW-5)went to the residence of the accused on foot along with

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the Local Dak Receipt Register at around 1445 hrs where he

met the accused and told him that he has got a Dak for him

and asked him to sign in the Dak Receipt Register. The

accused told him that he is going on leave and he will not take

any Dak and also told him that he will receive the Dak after

returning from leave. The petitioner accused asked him to

get his family railway warrant which he has forgotten in his

office. He requested the accused to sign the counterfoil of the

family railway warrants and promised him to bring the family

railway warrants kept in the office. It is exhibited 29 & 30.

He returned back with the covering letter and envelope which

was to be delivered to the accused along with movement

order and reported the matter to Lt. Nitin Palli (PW-1) and

thereafter collected the family railway warrants & left to deliver

the same to the accused. On reaching at the residence at

about 1515 hrs he again offered the envelope for the

movement order, the accused took the family warrants and the

envelope containing movement order for 5/9 Gorkha Rifles,

last ration certificate, the free railway warrant along with the

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covering letter. He again requested the accused to sign the

local Dak Receipt Register but the accused refused to sign.

The accused opened the envelope before him and after

reading few lines of the covering letter, he said “Oh this is

related to leave” and he went back to his unit carrying the local

dak receipt register and the single railway warrant book. He

again informed the officer in-charge HQ. Then Officer-in-

Charge HQ spoke to the Commanding Officer on phone and

thereafter asked him to endorse in the local dak receipt

register that the accused has refused to accept orders & sign

the local dak receipt register.

13. He made an endorsement in the local dak register. He also

depose that he was accompanied by Sep/Dr Akash Kumble

(PW-5) and he also came in the witness box and supported

the version of the PW-4 that accused declined to accept the

warrant and did not signed the dak receipt register.

Thereafter, it is alleged that accused proceeded on leave.

PW-6 Col. Ashok Prabhakar deposed that he was asked by

the HQ 23 Infantry Division on 13 November, 2003 at about

TA 152 of 2010 13

1930 hrs on telephone that he had to apprehend Maj Anand

Kumar of 23 Infantry Divn. Who was instructed to move out on

re-attachment to 5/9 Gorkha Rifles at Banbasa, which he had

not complied. In pursuance of this order which was verbally

given and thereafter it was followed in writing, that he should

be escorted to Banbasa, he proceeded to the residence of the

accused. After receiving this instruction on telephone, he

contacted Col. SM Baduri, the Colonel Administration who told

him that instruction given by GOC has to be complied and

after apprehending the accused, he has to sent him alongwith

an escort party to Banbasa. He gave a telephonic call to Col.

Pramod Singh, Commanding Officer, 23 Infantry Divn.

Ordnance Unit (PW-3) and he discussed the matter with him

and later about 2030 hrs he gave a call to Col. B. Prasad,

Deputy Commander, 23 Artillery Brigade and discussed with

him about the apprehending the accused and Col. B. Prasad

told him to execute the task. He then gave a telephone call to

Officiating Second-in-Command, Maj Prashant Pachauri (PW-

7) who had gone out of the Unit and subsequently when Maj.

TA 152 of 2010 14

Prashant Pachauri returned at 2100 hrs he discussed the

matter with him on telephone and asked him to come to his

place. On his arrival, he told him that we have to apprehend

Major Anand for being absent from place of duty which is 5/9

Gorkha Rifles located at Banbasa and he has to be escorted

to Banbasa and discussed the task with him and also directed

Major Prashant Pachauri that they would take a party of one

JCO, one NCO and four other ranks apart from us and that we

will proceed in two light vehicles. Thereafter, Maj Prashant

Pachauri proceeded to his residence and PW-6 changed into

combat uniform and reached unit quarter guard at about 2210

hrs. PW- 6 also drew his personal weapon from unit Kote, in

the meanwhile Maj. Prashant Pachauri also came there and

he also drew his personal weapon. The balance of the party

had collected near the quarter guard and PW-6 briefed the

whole team and proceeded to arrest the accused. On

13.11.2003 at about 2315 hrs he along with the complete

party proceeded to the residence of the accused and call bell

was sounded but there was no response. Thereafter, three to

TA 152 of 2010 15

four times the accused was called by loud voice but there was

no response. He then directed Hawaldar Avtar Singh to come

along with him and Sub Resham Singh and rest of the party

stayed outside. Thereafter two vehicles were directed to take

a side road, away from the main road. On entering the house

premises, just outside the verandah then called for him three/

four times but there was no response. After ringing and

knocking the door, he saw one of the window next to the door

was opened from inside and saw a figure behind the grill

window. PW-6 intimated that he is Col. Ashok Prabhakar,

Commanding Officer, 39 Medium Regiment and that he had

been instructed to apprehend Maj Anand Kumar for being

absent from the place of duty. He got a reply in a male voice

from inside that they should leave the premises immediately.

He requested the accused that he should come along with

them, however, he immediately left the place and came back

within a minute. He told me (Col Ashok Prabhakar) again that

he should leave the premises immediately and the witness

could see that he was holding something in his hand and he

TA 152 of 2010 16

could infer that it was a firearm. He requested him to let me

come inside and courtesy demands that an officer who had

come to his place be permitted to come inside. But in an

irritating voice he shouted on him that he should leave the

premises within a count of three. He tried to reason but he

failed and he realised that he should move away from the

place. He walked up to the side of the house and rest of the

party joined him there. He informed that the accused was

carrying a firearm and accordingly they have to he careful

while apprehending the accused. He divided the party in two

parts, he, Maj Prashant Pachauri and Hav. Avtar Singh were

to guard the front of the house while Sub Resham Singh and

the rest of the party were to guard the rear. After the party

moved away to the rear of the house, he, Major Prashant

Pachauri and Hav. Avtar Singh came to the front part of the

house. He heard a round being fired and accused rushing

out shouting “Tum log aise nahin manoge, Phir aagaye” (You

people will not understand like that. You have come again).

At this he rushed forward and at this stage one round was

TA 152 of 2010 17

fired by the accused in his direction. Major Prashant Pachauri

who was on the side of the accused rushed forward and held

him up. He further deposed that when he heard rounds of fire,

his heart beat rose and his left hand went to the pistol which

he was carrying in right hand and he cocked the weapon.

Hav. Avtar Singh also came forward and took the weapon

away from the accused. The defence cross-examined this

witness at length but they failed to discredit this witness. The

weapon was seized and thereafter a bullet was also recovered

and were seized and produced in the GCM proceedings. The

statement of PW-6 was corroborated by PW-7 Major Prashant

Pachauri and he fully supported his version of event.

Similarly, same has been supported by PW-8 Hav Avtar

Singh. We need not to multiply the statement of witnesses.

Suffice it to say that warrants of arrest was prepared by PW-4

(Tiwari) as per direction given by the Command and same

was sought to be served on the accused which he resisted.

14. Petitioner has produced defence witnesses to prove that no

such incidence took place by statement of DW-1, 2, 3, 4, 5, 6

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& 7. DW-1 Major Anand appeared himself as a defence

witness and he tried to narrate about the earlier incidence

which was objected by the prosecution and thereafter the

Court recorded the findings that incident of 1998 being

intended to led by defence doesn’t pertain to evidence

showing the occasion, cause and effect of the commission or

otherwise offence made subject matter of the charges. They

upheld the objection of the prosecution and directed the DW-

1, the accused Major Anand to state facts relating to present

incidence. The accused withdrew from his defence and

declined to make any statement and permitted the cross-

examination by the prosecution. He was confronted with the

fact that he was issued ME pistol and denied that he has

identified the ME-4 live rounds and ME-5 cartridges and he

also suggested that in the summary of evidence he has stated

that he had drawn my pistol in self defence on the night of

13/14 Nov. 2003. He also admitted that he made a statement

in the summary of evidence that he has drawn a weapon

before the General Court Martial that he was holding a .22 mm

TA 152 of 2010 19

pistol belonging to his younger brother. He also admitted that

on the night of 13/14 Nov. 2003, pistol was in his custody and

it was his property. He was confronted with the fact that he

has not been subjected to any unnatural offence against him

in writing but he said verbally told to all the officers including

the Regimental medical Officer of 5/9 Gorkha Rifles, whose

name he did not remember. He admitted that his medical

examination was carried out in arbitrary manner. He also

admitted that he was holding .22 pistol on the night of 13/14

Nov. 2003 but it was not used. He alleged that whole

summary of evidence was tempered, though he admitted that

submissions were read over to him in his own language and

signed as correct. He admitted that I am a psychic case. He

denied that there was any disobeyance of an order given by

Commanding Officer 23 Infantry Division Ordnance Unit dated

10.11.2003 to move on attachment to 5/9 Gorkha Rifles . He

also admitted that previously he was involved in number of

cases of absent without leave. He deposed that he asked for

the movement documents and another document on

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10.11.2003 which the Commanding Officer refused and it was

Col. Pramod Singh who told him that he will be speaking to

the General Officer Commanding in 2-3 days about extension

of my leave and other movement details and that is why on

13.11.2003 he was told to move as his leave has not been

extended and told me in the presence of Miss Geeta that I

have joining period, journey period and can report to 5/9

Gorkha Rifles by 19th or 20th November, 2003.

15. Similarly, he examined DW-2 Naik Sasi Kumar KB from 23

Infantry Division Ordnance Unit. He was the person who was

helper to Major Anand and he deposed that on 10.11.2003 he

went to the house of the accused around 0800 hrs and

prepared the uniform of the accused and he went to the office

in uniform. On 13.11.2003, at around 1900 hrs, while he was

returning to his quarter, he saw the accused vehicle at the

gate and accused called for him. In the vehicle, one civilian by

name Mr. Subhash was also sitting and he spoke to the

accused and thereafter left and another person in combat

uniform was standing there. Thereafter he had gone to 5/9

TA 152 of 2010 21

Gorkha Rifles at Banbasa on 19.11.2003 and told the whole

thing to Major A.K. Chatterjee. He denied having any

conversation with the NK/CST LP Tiwari on 1.10.2003.

16. DW-3 Lt. Col. RK Goger, Classified Specialist, Psychiatry,

Command Hospital, Central Command, Lucknow was also

examined and deposed that he examined Major Anand from

5/9 Gorkha Rifles in January, 2004 for psychiatric examination

and further deposed that he has given the opinion about the

condition of the officer on 29.1.2004 in exhibit No.98. The

accused complained of disturbed sleep, headache,

forgetfulness and fearfulness. He was not cooperative, not

much communicative, dull and depressed and subsequently

when he became cooperative he told him that he is in low

medical category and has pain in his anus and decreased

vision and told that apprehending party tortured him and

inserted stick in his anus. DW-3 further deposed that as far as

he remember, after examination of the accused by the surgical

specialist for pain in the anus, it was diagnosed as fissure in

the anus. He denied that as a psychiatric specialist he is

TA 152 of 2010 22

incapable of giving any evidence that fissure is caused in the

anus by insertion of a stick or otherwise. He admitted that in

his own opinion on the 29.1.2004 (Exhibit 98) he has recorded

firing incidence based on the information provided to him by

the accused and he also deposed that the basic reason told to

him by the accused for firing was that person in civil dress

came at the main gate of the accused and he wanted to scare

them and did not intend to kill the persons.

17. DW-4 Capt. Narendra KP of Military Hospital, Namkum was

the immediate neighbour of the accused. He said that during

the night of 13/14 Nov. 2003 he was in his house and while

sleeping between 1145 hrs to 1150 hrs he heard someone

calling him from front portion of his house and got up and

came to drawing room and from window he asked person

“who is calling” and he got the reply that “Narendra, Major

Anand” and he opened the door and came out. The he saw

Maj. Anand was standing next to his garage adjacent to his

house and he asked Maj. Anand what happened, he said

nothing and told him that he is not finding his lock and key so

TA 152 of 2010 23

please give me one lock and key and same DW-4 gave to him

and said that on 13/14 Nov. 2003 he did not hear any sound

of use of fire arm. DW-4 said that he is not aware whether two

shots were fired on the night of 13/14 Nov. 2003 in the

accused house. He also deposed that the accused did not tell

him that somebody has come to arrest him. He also said that

he does not share much relation of such conversation with

Maj. Anand. He further deposed that on the morning of

14.11.2003 when he took the key from me, he did not mention

to him of any incident of the intervening night. He persisted in

his denial about the incident of 13/14 Nov. 2003. He admitted

that he came to know that accused has been apprehended on

14.11.2003 at about 1830 hrs.

18. DW-5 Major Surjit Singh of 23 Infantry Division Ordnance

Unit deposed that he knew Major Anand and both of them

served in OP PAWAN in Srilanka. On 13.11.2003 at about

1230 hrs, he was detailed by Commanding Officer, Col.

Pramod Singh to visit the residence of the accused and

advised him to proceed to 5/9 Gorkah Rifles on re-attachment.

TA 152 of 2010 24

In pursuance of such instructions, he went to the accused

residence and met him and told him that I have been sent by

the Commanding Officer, Col. Pramod Singh to advice him to

proceed to 5/9 Gorkha Rifles on re-attachment. The accused

told him that he has not received any movement order

therefore he will not go and he accordingly informed the

Commanding Officer.

19. DW-6 Shri Sambhu Nath Mishra working as a labourer in 23

Infantry Division Ordnance and was staying in a civil quarters

at Namkum, Ranchi was also examined. He knew Major

Anand since 1998 when he came on posting to 23 Infantry

Division Ordnance Unit. He deposed that in midnight of 13/14

Nov.2003 accused called him from the kitchen and asked him

to see whether someone has come inside the compound and

he opened the rear door of the house. When he came out of

the room, he saw 5 to 6 persons in civil dress having rifles with

them. One of them asked him his identity and he told them

that he is a civilian Gardner and he also deposed that he saw

the accused followed by 8 to 12 persons in civil dress. He

TA 152 of 2010 25

further deposed that accused tried twice or thrice to jump over

the gate but he could not succeed. He denied to have seen

the incident on the night of 13/14 Nov. 2003.

20. DW-7 Geeta Kumari is civilian who is residing in that area

was also examined. She deposed that on the night of 13/14

Nov.2003 she went to accused house in the morning around

0700 hrs and in the afternoon one officer came to the house of

the accused. The accused himself opened the door and the

officer came inside and sat in the room. Thereafter she retired

for her work and she does not know what time the officer left.

On 14.11.2003, when she went to the accused office in the

morning, the gate was lying open but house was locked and

she pleaded total ignorance of any firing incident on the

intervening night of 13/14 Nov. 2003.

21. The resume of the defence evidence does not belie the fact

that the incident did not happen. All the witnesses directly or

indirectly accepted that incident did take place and they tried

to deny being witness of such incidence. But from the

statement of the accused DW-1 and other witnesses’ one

TA 152 of 2010 26

thing is established that incident did took place but the version

given by the defence is different to what was given by the

prosecution.

22. So far as the physical examination of the accused is

concerned CW-1 Dr. Major Manoj Kumar who immediately

attended the accused when he reached to 5/9 Gorkha Rifles

and was examined by him on 16.11.2003 and after

examination he found that there was no injury and he gave a

certificate to this effect. He also deposed that accused did not

complain to him any physically injury sustained by him. He

also deposed that he examined his complete body and there

was no deformity or any trauma involved in the body. He

admitted that he did not examine his anus as accused did not

complain. That shows that physical condition of the accused

was not having any abnormality.

23. CW-2 Col. SN Bhaduri deposed that on 13.11.2003 at around

1900 hrs to 1930 hrs, Col. Ashok Prabhakar rang him up and

told him that the General Officer Commanding has directed

him to apprehend Maj. Anand Kumar at Ranchi. Thereafter,

TA 152 of 2010 27

he spoke to the General Officer Commanding on telephone

and confirmed to him that Col. Ashok Prabhakar has informed

him about his instructions to apprehend the accused. Col.

Ashok Prabhakar, at around 2330 to 0001 hours in the later

part of the midnight 13/14 Nov. 2003, informed that they had

apprehended Major Anand Kumar.

24. CW-3 Colonel SCW Ghatpande, Commanding Officer, 5/9

Gorkha Rifles deposed that accused was granted 12 days

casual leave with prefix and suffix till 09 Nov. 2003 by his

previous unit 23 Infantry Division ordnance Unit and the

accused was thus to report to his unit by 10 November, 2003

forenoon but the accused did not report to his unit on

attachment on 10, 11, 12 or 13 November, 2003 and he spoke

to the Commanding Officer, 23 Infantry Division Ordnance

Unit on telephone regarding the whereabouts of the accused

and he was informed by Col. Pramod Singh, Commanding

Officer, 23 Infantry Division Ordnance Unit that the accused

was still at Ranchi. On 13.11.2003 he instructed Major Hitesh

Duggal, SM to inform him by 1200 hrs whether the accused

TA 152 of 2010 28

has reported or not and he was informed that he has not

joined unit then he instructed Maj. Hitesh Duggal to speak to

DAA&QMG, 167 Infantry Brigade on telephone followed by a

telephonic log message informing the non-reporting of the

accused and to apprehend the accused, if he is at Ranchi.

Thereafter, he personally spoke to the Commander, 167

Infantry Brigade and DAA&QMG on telephone and informed

them of the action taken on non reporting of the accused.

Since he was proceeding for recce of the Indo-Nepal Border,

he left the office early at around 1315 hrs and returned to the

unit at around 2030 hrs. The action of apprehending the

accused was initiated by my Adjutant Hitesh Duggal, SM on

my instruction and at around 0001 to 0030 hrs in the midnight

of 13/14 Nov. 2003, Major Hitesh Duggal, SM informed me

regarding the apprehending of the accused at Ranchi and he

came to know about the details of the arrest from DAA&QMG,

167 Infantry Brigade when he spoke to him in the morning of

14 Nov. 2003. On 16.11.2003, he was informed that the

accused was brought to the unit under escort. The medical

TA 152 of 2010 29

examination of the accused was done in private by the Major

Manoj Kumar as directed by him, as accused informed him

that apprehending party has beaten him. He also deposed

that on 14.11.2003 when he returned from the recce, the

Adjutant. reported to him that he signed apprehension role on

my behalf and he further deposed that he saw the log

message for the apprehension of the accused, which he had

directed to the Adjutant. He admitted that adjutant has issued

this apprehension order on directions issued by him and same

was seen by him when it was dispatched, therefore, he has

owned that dispatch orders were issued as per his directions.

25. A perusal of the statement of the witnesses, by and large

corroborate the version of the prosecution. The petitioner took

the defence that he was assaulted by prosecution witnesses.

A summary of this evidence would show that the petitioner

was directed to be arrested & taken to 5/9 Gorkha Rifles,

Banbasa, but he resisted violently & attacked the party.

26. Learned Counsel for the petitioner has tried to argue that there

was no subsisting order for arrest, therefore the arrest was

TA 152 of 2010 30

illegal. The submission of the Learned Counsel is without any

basis, the fact remains that PW-6 along with the party did not

go to the house of petitioner voluntarily he was directed by the

HQ on phone which was confirmed subsequently by a written

message. In the Army, sometimes the command has to be

given orally and it is to be confirmed subsequently, had the

command not been confirmed subsequently perhaps the

submission of learned counsel could be considered but the

fact remains the warrant of arrest of the accused was

prepared as per the orders of the HQ, as petitioner was

avoiding facing the charges which were framed against him

long time & inquiry could not proceed. Therefore, the

contention of the learned counsel has no legs to stand & same

is rejected. A perusal of evidence of prosecution & defence

leave no manner of doubt that petitioner acted in most

irresponsible manner in attacking the party who had gone to

arrest & escort him to Banbasa to face the court martial. The

Learned Counsel submitted that since the petitioner was a

psychiatric patient his mental condition was not normal and to

TA 152 of 2010 31

knock the door of an officer at late night for being

apprehended was bound to cause a irritation to him, therefore,

this act of the petitioner was fully justified. We appreciate

that petitioner has right to privacy but we cannot appreciate

when an Officer in uniform had gone to the house of the

accused and disclosed their identity and he knew them and

saw them from his window, he could have talked to them or

discuss with them rather than restoring to violent resistance, it

is lucky that none of the shots hit anyone, but this act is

unpardonable that when the officers had gone to his house to

arrest him, he cannot resort to this mode of action to resist the

arrest. We cannot countenance to such submission of the

learned counsel of the petitioner. Hence we are satisfied that

as per the evidence of the PW-4 & 5 that petitioner was

served the warrant but he did not accept & after perusing the

same returned back to PW-4 and did not sign in diary.

Learned Counsel submitted that charges framed against him

were barred by limitation, therefore, issue of warrant was

without jurisdiction. The question that whether the charges

TA 152 of 2010 32

pertaining to court martial were barred by time or not that

issue cannot be decided in these proceedings, if the petitioner

really was serious about raising this issue that those charges

were beyond the period of limitation, then the proper course

for the petitioner was to appear before the authorities and

raise such objection. This question cannot be examined in

these court martial proceedings. Here simple question is

conduct of petitioner where warrant of attachment was sought

to be served on him. Infact these officers were directed to

arrest the petitioner and send him to Banbasa for facing the

court martial, they were acting lawfully in compliance of

execution of warrant of attachment against the petitioner.

There was no necessity for the petitioner to resist it and that

too knowing it well that the officers were in uniform and known

to him, still petitioner has taken law in his own hand, therefore

both these charges in our opinion are rightly proved against

the petitioner. Consequently, in this view of the matter, we are

satisfied that the finding of charge no.2 & 3 has been rightly

recorded in court martial proceedings and same have been

TA 152 of 2010 33

confirmed by the competent authority, we don’t find any

ground to interfere in the matter. The petition is accordingly

dismissed.

27. After conclusion of the arguments petitioned filed the

Miscellaneous application(MA-229/11) and counsel was heard

on this application also. The counsel tried to repeat all the

arguments which have already been made earlier. He filed

written arguments also and they were also perused. There is

no merit in MA-229/11 & same is dismissed.

28. No order as to costs.

______________________

[Justice A.K. Mathur] Chairperson

_______________________

[Lt. Genl. SS Dhillon Member (A)

New Delhi 13th July, 2011