Judgment:
V.S. Aggarwal, J.
1. Respondent Col. N.K. Kaushik was Commander Works Engineer at Ambala. He had fried a petition Under Article 226 of the Constitution of India for issuance of a writ quashing the order attaching him at 612(1) AD Brigade for progressing continuing with the disciplinary proceedings towards court Martial. He had contended the same to be without jurisdiction on the ground that the charges-and the offences against him had become barred by time for purposes of the trial. The learned Single Judge on 7.11.1996 allowed the petition and order attaching the petitioner was held to be without jurisdiction. The disciplinary proceedings in progress, if any, were quashed. It was further directed that the authorities should relieve the respondent of all the consequences of the proceedings Under the Army Act.
2. Union of India and others challenge the order of the learned Single Judge by virtue of the present Letters Patent Appeal.
3. The relevant facts as alleged by the respondent are that he was posted as Commander Works Engineer at Ambala on promotion 10.3.1990. He remained posted there upto 28.8.1992. He was to perform only technical supervisory role in respect of various Garrison Engineers who in their sphere, work independently. The Garrison Engineers has dependent financial powers to effect certain local: purchases. On account of certain legal restrictions, the power to carry out local purchase was left with the Commander Works Engineer. During the period respondent was posted at Ambala, certain local purchases were made. Quotations were invited by the Board of Officers constituted by the office of Commander Works Engineer. The powers of the officers were detailed to check the supply. The supply of items was duly received by the Board of Officers who; used to hand over the articles to the Garrison Engineers for use.
4. Respendent contends that he had no role to perform with regard to local purchases But Central Bureau of Investigation (for short 'CBI') conducted a raid in the premises of the Garrison Engineers in the first week of February, 1992. It was on basis of some information that the payments against the local purchase have been made on an exorbitant prices. After the raid CBI investigated the matter The respondent was called to the office of CBI and was interrogated. A preliminary enquiry report was submitted on 18.3.1992. Thereafter the matter was progressed at various levels. As per the respondent all the authorities found that the petitioner was not involved. His tenure came to an end on 28.8.1992. He proceeded on posting as Head of the Department, Civil Engineering at Pune. He received communication directing his attachment for initiation of disciplinary proceedings against him. The message was received on 5.7.1995 requiring him to reach Ambala by 11.7.1995. The respondent contended that alleged offences had become time barred and, therefore, no proceedings could be initiated or continue after 3 years. He further contends that the offence, if any, had come to the notice of the authorities on 5/7.2.1992 and in any case when the CBI submitted the preliminary. enquiry report on 18.3.1992. He pressed into service Section 122 of the Army Act.
5. The petition had been contested. In the reply filed, preliminary objection was taken that the writ petition is not maintainable as the matter is still at investigation stage. The summary of the evidence is being recorded and, therefore, it is premature. It was further urged the respondent could raise all the pleas before the General Court Martial Under Army Rules 49,51 and 53 if the General Court Martial is convened. In this process the alternative remedy is available to the respondent. On merits, appellants contended that procedure as prescribed Under MES Regulations has been violated by the respondent. He had committed financial and procedural irregularities. The same were noticed by the CBI in the preliminary report. It was further asserted that CBI enquiry report was submitted in May, 1995 indicating that a prima facie case is established against the respondent. It was urged that Section 122 of the Army Act would not come into play. In other words, it came for the first time to the notice of the appellants in May, 1995 that offence is drawn against the respondent. The proceedings were intimated well within 3 years from that date
6. The Judge held that the alternative remedy was not a bar by petition particularly when the matter goes to the root of the case. It was further concluded that the authorities had come to know pertaining to the offence in March, 1992 when preliminary enquiry report was submitted by the CBI. Learned Singh Judge counted the period of limitation from the said date from May, 1992 and held that proceedings after 3 years from that date were barred by limitation. Accordingly, the petition was allowed.
7. As is apparent from the facts given above, the first and foremost question that comes up for consideration is as to whether when there is an alternative remedy available, the learned Single Judge was justified in going into the matter and taking up the pleas of the respondent. We have no hesitation in observing that if an alternative remedy is available, the High Court would be reluctant to interfere. The party concerned must avail of the alternative remedy .But at the same time,, there is no over emphasizing the fact that if the question goes to the root of the matter, or allowing the proceedings would be share harassment to the individual, the long arm of law will not permit the same. If the proceedings which were being Intimated were barred by time and it is so established on the, face of it, we find that the learned Single Judge rightly felt that the same can be quashed at the threshold. Thus merely because Under Rules 49, 51 and 53 of the Army Rules, such a plea could be taken, will not restrain the High Court in going into pure question of law going to the root of the matter and adjudicating the same. In this view of the matter, there is no error of jurisdiction in this regard.
8. Confronted with that position it was alleged that this Court would be reluctant to quash the proceedings because the enquiry has still not gone under way. Our attention was drawn to certain precedents on the subject They all pertain to controversy with respect to quashing of the first information reports, Strictly speaking in the writ petition filed by the respondent controversy was not pertaining to first information report but the, proceedings that were initiated against him. All the same basic principle enunciated therein could be utilized to come to a conclusion if it requires quashing of the proceedings or not. Our attention was drawn to the decision of the Supreme Court in the case Mrs. Dhanalakshmi v. R. Prassanna Kumar and Ors, A.I.R. 1990 SC 494. Invoking Section 482, Cr .P.C. a petition had been filed seeking quashing of the proceedings pending before the Judicial Magistrate. The Supreme Court held that High Court should not indulge in meticulous analysis of the case. The complaint, should be read as a whole. The findings returned were :-
'It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether, the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide frivolous or vexations, in that event there would be no justification for interference by the High Court.'
It is crystal clear from the facts of the case that they are not at all applicable with the proceedings of the present case. Here there is no meticulous exercise of the facts. On basis of the admitted facts, the learned Single Judge felt that proceedings were barred by time. The same were quashed. In this view of the matter the ratio of the cited case does not come to the rescue of the appellant.
9. Reliance further was being placed on the well known decision of the Supreme Court in the case State of Haryana and Ors v. Ch. Bhajan Lal and Ors, A.I.R. 1992 SC 604. The Supreme Court was concerned with the question as to when the first information report or the complaint could be quashed In paragraph 108 it held:-
'1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused
2. Where the allegations in the First Information Report and other materials, if any accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engraved in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to be institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.'
Even if we utilize the above said principles with respect to quashing of the proceedings before the General Court Martial, still it is clear that if on basis of uncontroverted facts. the proceedings could not continue, the same could be quashed. If they are assured, the High Court would utilize the power under Article 226 of the Constitution or in other words, when the period of limitation has expired and it is so known, there appears to be nothing manifestly illegal if the learned Single Judge of this Court acted under Article 226 of the Constitution.
10. To be same effect are the findings recorded by the Supreme Court in the case Mrs. Rupan Deol Bajaj andAnr, v. Kanwar Pal Singh Gill and Anr, A.I.R. 1996 SC 309 and once again the Supreme Court held that at the initial stage, the first information report if it discloses a cause, should not be quashed. The Supreme Court in paragraph 23 has held :-
' 23. We are constrained to say that in making the above observations the High Court has flagrantly disregarded - unwittingly we presume - the settled principle of law that at the stage of quashing an FIR or complaint the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein. Of course as has been pointed out in Bhajan Lal's case. (1922 A.I.R. SCW 237) (supra) an FIR or a complaint may be quashed if the allegations made therein are so absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceedings against the accused but the High Court has not recorded such a finding, obviously because on the allegations in the FIR it was not possible to do so. For the reasons aforesaid we must hold that the high Court has committed a gross error of law in quashing the FIR and the complaint. Accordingly, we set aside the impugned judgment and dismiss the petition filed byMr. Gill in the High Court Under Section 482, Cr .P.C.
Inherent powers to the High Court Under Section 482, Cr .P.C. were again considered in the caseSmt. Chand Dhawan v. Jawahar Lal and Ors, (1992-2)102 P.L.R. 114 (S.C.). It was observed:-
'This Court has in various decisions examined the scope of the power Under Section 482,Cr .P.C. and has reiterated the principle that the High Court can exercise its inherent jurisdiction of quashing a criminal proceeding only when the allegations made in the complaint do not constitute an offence or that the exercise of the power is necessary either to prevent the abuse of the process of the court or otherwise tojustice. No inflexible guidelines or rigid formula otherwise to secure the ends of justice. No inflexible guidelines or rigid formula can be set out and it depends upon the facts and circumstances of each case wherein such .power should be exercised. When the allegations in the complaint prima faice constitute the offence against any or all of the respondents in the absence of materials on record to show that the continuance of the proceedings would be an abuse of the process of the court or would defeat the ends of justice, the High Court would not be justified in quashing the complaint.'
As noticed above, none of these principles would come to the help and rescue of the appellants because if the proceeding are barred by time as noted above, the Court would be failing in its duty in allowing such proceedings to continue. When the learned Single Judge has already exercised his jurisdiction, it would be really improper to allow the parties again in an adjudicated matter to raise the same before theauthorities .In fact as pointed out above, we further find that there was no omission to act in this regard.
11. In that event it was argued that the period of limitation only started running from May, 1995 when specific report was received. On the contrary, the respondent contended that in March, 1992 itself the report was received and the offence was disclosed.
12. In this regard we deem it appropriate to refer to Section 122 of the Army Act, 1950 which reads :-
' 122. Period of limitation for trail. - (1) Except as provided by Sub-section(2), no trial by courts martial of any person subject to this Act for any offence shall be commenced after the expiration of a period of three years from the date of such offence.
(2) The provisions of Sub-section (1) shall not apply to a trial for an offence of desertion or fraudulent enrolment or for any of the offences mentioned in Section 37.
(3) In the computation of the period of time mentioned in Sub-section (1), any time spent by such person as a prisoner of war, or in enemy territory, or in evading arrest after the commission of the offence, shall be excluded.
(4) No trial for an offence of desertion other than desertion on active service or of fraudulent enrollment shall be commenced if the person in question, not being an officer, has subsequently to the commission of the offence, served continuously in an exemplary manner for not less than three years with any portion of the regular Army.'
The said provision namely Sub-section (1) of Section 122 has been amendedw.e.f 6.9.1992 and it reads:-
' Amendment of Section 122. - In Section 122 of the principal Act, in Sub-section (1), for the words 'from the date of such offences', the following shall be substituted, namely:-
'and such period shall commence,-
(a) on the date of the offence; or
(b) where the commission of the offence was not known to the person aggrieved by the offence or to the authority competent to initiate action, the first day on which such offence comes to the knowledge of such person or authority, whichever is earlier; or
(c) Where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the authority competent to initiate action, whichever is earlier'.
There was some controversy before us as to whether Sub-section (1) of Section 122 as it existed before September, 1992, would apply or it would be governed by Sub-section amended enactment. It is well Known that ordinarily limitation is to be seen on the day the action is contemplated. The Supreme Court considered this fact in the case Beepathuma and Ors v. Velasari Shankaranarayana Kadambolithaya and Ors, A.I.R. 1965 SC 241. It was held that law of limitation is a procedural law and provision existing on the day of the suit would apply to it. Same question was again considered by the Supreme Court in the case Sree Bank Ltd. v. Sarkar Dutt Roy and Co., A.I.R. 1966 SC 1953. In paragraph 59 the Court held :-
' (59) I, therefore, hold that the provisions of Sub-section (1) of Section 45-0 are retrospective in effect and are applicable to suits or applications by a banking company in respect of causes of action for the suit or an application about which suits could be instituted or applications made on the date of tie presentation of the winding up petitions made before the commencement of the Amendment Act of 1953, even though the specified period of limitation for such action had expired before the enforcement of the Amending Act.'
Same was the view that prevailed in the case Vinod Gurudas Raikar v. National Insurance Co. Ltd. and Ors, AIR 1991 SC 2156. In paragraph 7 the Court observed :-
'It is true that the appellant earlier could file an application even more than so; months after the expiry of the period of limitation, but can this be treated to be a right which the appellant had acquired. The answer is in the negative. The claim to compensation which the appellant was entitled to, by reason of the so far the period of limitation for Commencing a legal proceeding is concerned, it is adjectival in nature, and has to be governed by the new Act - subject to two conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is whether the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it unpractical for him to avail of the remedy.'
13. From the aforesaid precedents, it is clear that Law of limitation is procedural. It would apply to proceedings i.e. law in force on the date of institution of proceedings irrespective of the date of accrual of cause of action. The object of the statute of limitation is not to create as a right but to prescribe periods within which proceedings can be instituted. Since it is procedural proceedings, it will have retrospective effect unless the intention of the new Act shows otherwise
14. When the proceedings were initiated, at that time amendment to Section 122 of the Army Act had come into being; Therefore, the amended provision would have a role to play. The period of limitation thus would start running from the date of the offence. If, the appellants show that commission of the offence was known to them or to the authority then it would start running from the date of knowledge In the present case, it has been found that the appellants had the knowledge about the offence in March, 1992. The period of limitation therefore, started running from the said date. Even as per the amended Sub-section (1) of Section 122 of the Army Act, in face of the said fact, it must follow that offence was known to, the authorities in It could not be disputed before started running from that tune and the proceedings that were started in fact were initiated after 3 years of the said period. In that view of the matter, even under the amended Sub-section(1) of Section 122 of the Army Act, it would be barred by time. The Supreme Court in the case Major Radha Krishan v. Union of India and Ors, JT 1996(3) S.C. 650 also observed that any trial which commenced after the period of limitation would be patently illegal. The provisions of limitation prescribed under the Act can not be quantified in exercise of power under a rule. Therefore, we hold that once the period of limitation had expired, the appellants could not proceed against the respondent. The learned Single Judge rightly allowed the? petition.
15. As an off shoot of the reasons given above, the appeal being without merit must fail and is dismissed.