GCM vitiated, charges could not be proved: AFT
CHANDIGARH: After having spent a year in jail on conviction over charges which “were never proved beyond doubt”, a Colonel has been honourably acquitted, with the army being directed to reinstate him in service in the post and rank from where he was cashiered by a general court martial (GCM), along with all consequential service and monetary benefits.
While deciding the case of Col Avijit Misra, the Armed Forces Tribunal held, “The charges levelled against him were not proved beyond doubt and that during the GCM proceedings the accused was denied a reasonable opportunity to defend himself and there was gross violation of the principles of natural justice, which has vitiated the entire GCM proceeding and the findings thereof. Consequently, the punishment inflicted on the accused/applicant cannot stand and is liable to be quashed and set aside.”
The officer’s case was that after taking over command of an infantry battalion deployed on the Indo-China border, he had projected several operational and administrative deficiencies that were the result of perpetual neglect on the part of the higher defence authorities. He was targeted for this and a case was ‘concocted’ against him.
He was tried by a GCM on 10 charges of intent to defraud, extortion and corruption, and for using insubordinate language to a superior officer. The GCM, presided by Brig AK Sahni, had in April 2006, found him guilty on eight charges. He was cashiered from service and sentenced to one year’s rigorous imprisonment. A post-confirmation petition against the GCM’s verdict was also rejected by the Central government.
The Tribunal, in its judgement passed yesterday, observed that the GCM heavily relied on the oral deposition of a witness who himself was a co-accused during the court of inquiry, but instead of being proceeded against he was turned into a prosecution witness in violation of procedures and hence could not be considered reliable. On insubordinate language, the Tribunal held that not only was it a trivial matter with no criminal intent, offensive expressions during the course of a judicial inquiry, as per law, are privileged and cannot be made subject of a criminal charge.
While pointing out the “undue hurry” shown by the GCM on many occasions resulting in the court missing out most vital points on fact and law while drawing up its conclusion, the Tribunal observed that the MoD mechanically considered the post-confirmation petition and did not substantiate enough reasons in the order to justify the GCM’s verdict. “To our mind, there was total non-application of mind on the part of the Central government while dealing with the petition,” the tribunal ruled.
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