ORDER
K. Ramamoorthy, J.
1. The petitioner has challenged in the writ petition the charge-sheet issued by the Commanding Officer on the 27th of August, 1997 and also the convening of the Court Martial on the basis of the charge-sheet.
2. The petitioner was working in the Indian Naval Ship Circars Additional for Material Organisation as Controller of Material Planning in Visakhapatnam between 1993 and the 2nd of August, 1994. From the third of August, 1998, he had been working in Delhi. A draft charge-sheet was issued against the petitioner and he filed his objections and later on final charge-sheet was issued on the 27th of August, 1997. The petitioner, on the 2nd of September, 1997, made a representation to the Directorate of Personnel Services (Discipline and Vigilance Section) stating that the department cannot issue any charge-sheet against him. There was no conspiracy and the convening of the court martial was barred under Section 79 of the Navy Act, 1957.
3. On the 29th of September, 1997, the Director of Personnel Services wrote the petitioner stating that since the court martial had been convened, he may raise the issue before the court martial.
4. On the 10th of September, 1997, a trial of the petitioner before the court martial commenced. The petitioner filed this writ petition on the 13th of October, 1997. On the 23rd of October, 1997, this Court disposed of the matter by passing the following order:-
'The petitioner's main grievance is that the Court Martial is barred by time. He took up the question of limitation before Trial Judge Advocate. But he summarily rejected this plea without assigning any reason and without considering the provision of Section 79 of the Navy Act. No reasoned order was passed. Even the statutory appeal filed by the petitioner has not been disposed of till date. In this view of the matter it is agreed by the counsel for the parties that let the Trial Judge Advocate should first decide the preliminary question of limitation before proceeding with matter on merits. While disposing of this question this writ petition will also form part of his representation along with the statutory appeal filed by the petitioner. The Trial Judge Advocate will take these into consideration while disposing preliminary issue of limitation. He will dispose the issue of limitation by a reasoned order and till further orders the Trial Judge Advocate will not try the case on merits. The reasoned order will be communicated to the petitioner. In case the petitioner is not satisfied with the order, liberty is given to the petitioner to get this petition revived.
With these observations the petition stands dismissed.'
5. The petitioner moved the court martial for appropriate order as directed by this Court and also by the Director of Personnel Services. The matter was decided by the Trial Judge Advocate as under the provisions of the Navy Act and the Regulations, it is the Trial Judge Advocate who is to decide all questions of law. The Trial Judge Advocate, by order dated 29.10.1997, rejected the submission made on behalf of the petitioner. Later on, the petitioner filed CM.8975/87 for revival of the writ petition and that is how the writ petition came up for arguments on merits.
6. Mr.Arvind Nigam, the learned counsel for the petitioner, submitted that the commencement of the trial of the court martial against the petitioner on the 10th of September, 1997 is barred under Section 79 of the Navy Act, 1957. The charges leveled against the petitioner pertained to the period posterior to the 3rd of August, 1994 and thereforee, under Section 79 of the Navy Act, 1957, the court martial was incompetent to try an offence which is barred under that section.
7. Mr.Rakesh Tikku, the learned Senior Central Government Counsel, submitted that the charge against the petitioner is not only cheating within the meaning of Section 418 IPC but respondents had leveled charge of conspiracy between the petitioner and other officers who are being tried by the court martial. According to the learned counsel, Mr.Rakesh Tikku, the offence complained of against the petitioner must be considered in the light of the conspiracy between the petitioner and other co-accused and if that is done, the bar of limitation under Section 79 would not arise. The learned counsel, Mr.Rakesh Tikku, contended that as the offence complained of, cheating and conspiracy would be a continuing one and the conspiracy was completed by purchasing materials, which happened between September, 1994 and January, 1995, and the trial commenced on the 10th of September, 1997, the bar under Section 79 of the Navy Act, 1957 would not apply. The learned counsel Mr.Rakesh Tikku, referred to Section 10 of the Indian Evidence Act, 1872 to amplify the point.
8. The charge-sheet issued against the petitioner reads as under:-
'The accused Commander Batra Vivek Sheel (60290 Y) Indian Navy of Indian Naval Ship India Additional for Navy Headquarters/Directorate of Clothing and Victualling, then belonging to Indian Naval Ship Circars Additional for Material Organisation, Visakhapatnam as Controller of Material Planning and presently attached to Indian Naval Ship Circars in terms of Navy Instruction 98/69, being a person subject to Naval law, is charged for that he:-
1. Did enter into a conspiracy with Captain KK Singh (60203 Z), Controller of Procurement, Captain ARB D'Souza (0236775 Y), Controller of Material Planning, Lieutenant Commander John E Mathews (02628 Y), Deputy Controller of Material Planning (Russian Stores) and Lieutenant Commander J Ajit Kumar (02716 Y), Assistant Controller of Procurement (Russian Stores), all then belonging to Material Organisation, Visakhapatnam, to cheat the Material Organisation, Visakhapatnam of the Indian Navy, Government of India by entering into fraudulent transactions as listed in Annexure 1 to this charge-sheet, between the 19th day of September 1994 and 17th day of January 1995, with the knowledge that he was likely thereby to cause a wrongful loss to the Government of India whose interest he was bound by law to protect, which resulted in loss of approximately Rs.18,50,000/- (Rupees eighteen lakhs and fifty thousand only) 5 to the Government of India and thereby committed an offence punishable under Section 418 of the Indian Penal Code read with Section 34 of the Indian Penal Code and read in conjunction with Section 77(2) of the Navy Act, 1957.
2. Did enter into a conspiracy with Captain KK Singh (60203 Z), Controller of Procurement, Captain ARB D'Souza (0236775 Y), Controller of Material Planning, Lieutenant Commander John E Mathews (02628 Y), Deputy Controller of Material Planning (Russian Stores) and Lieutenant Commander J Ajit Kumar (02716 Y), Assistant Controller of Procurement (Russian Stores), all then belonging to Material Organisation, Visakhapatnam, to cheat the Material Organisation, Visakhapatnam of the Indian Navy, Government of India by entering into fraudulent transactions as listed in Annexure 2 to this charge-sheet, between the 5th day of November, 1994 and 17th day of January 1995, with the knowledge that he was likely thereby to cause a wrongful loss of approximately Rs.26,40,680/- (Rupees twenty-six lakhs, forty thousand, six hundred and eighty only) to the Government of India, whose interest he was bound by law to protect, and thereby committed an offence punishable under Section 418 of the Indian Penal Code read with Section 34 of the Indian Penal Code and read in conjunction with Section 77(2) of the Navy Act, 1957.'
9. It is to be noticed that what is stated in the charge is that the petitioner entered into a conspiracy with Cap.K.K.Singh, the Controller of Procurement, and Cap. A.R.B.D'Souza, the Controller of Planning, between the 19th of September, 1994 and the 17th of January, 1995. It has to be noticed here that Mr.D'Souza, the Controller of Material Planning, succeeded the petitioner on the 3rd of August, 1994 and according to the charge, the conspiracy commenced on the 19th of September, 1994. thereforee, by the charge-sheet, it is admitted by the respondents that the conspiracy started only on the 19th of September, 1994. In the second charge, it is stated that the petitioner entered into a conspiracy with some officers and entered into a fraudulent transactions between the 5th of November, 1994 and the 17th of January, 1995.
10. The point was raised by the petitioner before the court martial as per the directions issued by this Court and in CM.8975/97, which is filed for the revival of the writ petition, it is specifically stated that the matter was argued in extenso. It is stated in the CM:-
'That to surprise of the petitioner upon conclusion of the hearings that commenced at 2.00 p.m., the Trial Judge Advocate produced an already typed order which was read out, signed and dated by the Trial Judge Advocate in Court. A copy of the said order was also supplied to the petitioner at about 2.45 p.m. on 29.10.1997 itself and a copy of which order, as supplied, is appended herewith and marked as annexure P-22.'
This averment is not denied by the respondents in the reply.
11. thereforee, it is clear that the Trial Judge Advocate had pre-judged the issue before hearing arguments and read out the order which had already been dictated. The Trial Judge Advocate said:-
'The accused Commander V.S.Batra has raised objection to his trial by Court Martial on the following grounds:-
(a) He has submitted statutory representations for redressal of grievances highlighting the illegality of his trial by Court Martial which was pending disposal.
(b) The charges against him are time barred. According to him he had handed over the duties of Controller of Material Planning to Captain ARB D'Souza on AM 03 Aug 94 and thereafter proceeded on transfer. The charges framed against him mention period from 19 Sep 94 to 17 Jan 95 during which period he was not at all working in Material Organisation, Visakhapatnam. thereforee, he cannot in any manner be part of the alleged conspiracy. Besides, he cannot be tried for any act performed by him while he was borne on the books of Material Organisation, Visakhapatnam before 04 Aug 94 as it would be time barred in terms of Section 79 Navy Act, 1957.
I have carefully considered the contentions of the accused raised before this court, the writ petition 4294 of 1997 filed before Honourable High Court of New Delhi, representations made by him to various authorities and also Prosecutor's submission in reply to the objection. The main grievance of accused in all his representations and the writ petition is that the Court Martial is barred by time in terms of section 79 of the Navy Act 1957 as stated in sub para (b) above.
While dealing with the objection it would not be out of place to mention that under Section 114 of the Navy Act, 1957 the Trial Judge Advocate has been charged with the duties to decide all questions of law arising in the course of the trial. On questions of fact the President and Members of the Court Martial have been constituted to be the sole judges under Section 115 of the Navy Act. I, thereforee, do not intend to go into the facts of the case except to the extend I feel necessary to decide the disputed question of law.
Section 79 of the Navy Act, 1957 lays down that a person can be tried and punished in pursuance of Navy Act for any offence committed by him provided that the trial commences within a period of 3 years from the date of commission of such offence. The term offence has been defined under Section 3(38) of General Clauses Act to mean any act or omission made punishable by any law for time being in force. In the instant case the offence alleged against the accused is that of cheating the Government. The accused Cdr VS Batra has been charged on two counts under Section 34 of Indian Penal Code and read in conjunction with Section 77(2) of the Navy Act, 1957 for entering into conspiracy to cheat Materials Organisation, Visakhapatnam between 19 Sep 94 to 17 Jan 95. In effect the charges allege that the accused performed certain act for final objective of cheating Materials Organisation, Visakhapatnam. At this point I would like to examine the provisions contained in Section 34 of IPC. Section 34 reads as follows:-
'Acts done by several persons in furtherance of common intention:- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone'.
A plain reading of Section 34 reveals that it deals with doing of separate acts, similar or diverse, by several persons. If all are done in furtherance of common intention, each person is liable for the result of them all. Honourable Supreme Court has held in State of Punjab v. Surjit Singh reported in AIR 1987 S C 1045 that when an offence is committed in furtherance of the common intention of two or more accused, then every one of them is as much guilty as the other and it is not necessary that every one of them should have participated in the commission of offence to the same extent and degree, as the other person or persons accused of the offence had acted. In other words it is not necessary that each one of the accused charged under Section 34 should have participated in final commission of the offence. It is also well settled law that physical presence at the place of offence is not an essential condition of the application of Section 34 of IPC in every case (Mobarik Ali Ahmed Vs . State of Bombay 0043/1957 : 1957CriLJ1346 , JM Desai Vs . State of Bombay : [1960]3SCR319 ).
In the instant case, it is quite obvious from the circumstantial letter and charge-sheet that the act alleged to have been done by Cdr VS Batra in furtherance of common intention of cheating the Government is raising of Local Purchase Requisition and Base Demand Indents. Cdr VS Batra was appointed as Controller of Material Planning in Material Organisation, Visakhapatnam from 01 Oct 93 till 03 Aug 94. During his tenure as Controller of Material Planning he is alleged to have raised certain Local Purchase Requisitions and Base Demand Indents in conspiracy with others for the purpose of cheating Material Organisation, Visakhapatnam. There is, thereforee, no doubt that his part of the act in the alleged offence of cheating was performed during his tenure as Controller of Material Planning i.e. before 03 Aug 94. Section 79 of the Navy Act however prescribes limitation of three years from the date of commission of 'offence' and not just any 'act' performed by the accused. The offence alleged in the charges is that of cheating under Section 418 of IPC by virtue of application of Section 34 of IPC. If the accused was charged for raising of Local Purchase Requisition alone, then it could be contested as time barred in terms of provisions contained in Section 79 of the Navy Act. However, the charge in the present case has been framed for cheating when the Local Purchase Requisitions finally materialised. The charge alleges that fraudulent transactions during his tenure at materials organisation, Visakhapatnam finally resulted in cheating between 19th September, 1994 to 17th January, 1995. The final act of cheating alleged in the charge was given shape between these dates which is well within the period of limitation prescribed under Section 79 of the Navy Act. As to whether it was possible for the accused to conspire with other co-accused listed in the charges or whether he conspired at all with the intention of cheating are the questions of facts, to be decided by the court on completion of proceedings on merits.
In view of the position explained, the plea that the charges are time barred under Section 79 of the Navy Act, 1957 is not sustainable. The objection raised by the accused disposed of accordingly.
A copy of the ruling is handed over to accused in pursuance of direction contained in Hon'ble High Court of Delhi order dated 23 Oct 97 in WP 4294 of 1997.'
12. The Trial Judge Advocate had referred to the judgment of the Supreme Court in 'Mobarik Ali Ahmed Vs . State of Bombay', 0043/1957 : 1957CriLJ1346 , wherein the Supreme Court observed:-
'The fourth contention raised by the appellant's counsel relates to the validity of the conviction under S.420/34 of the Indian Penal Code. Learned counsel argued that persons designated as accused 2,3 and 4 in the complaint, were all in Bombay and the appellant in Karachi and that thereforee no conjoint offence could be committed by them within the meaning of S.34 of the Indian Penal Code.
He relies upon the dictum in Shreekantiah Ramayya Munipalli Vs . The State of Bombay, : 1955CriLJ857 (A) to the effect that it is essential that the accused should join in the 'actual doing' of the act and not merely in planning its perpetration. We do not think that that case or the dictum therein relied on, have any bearing on the facts of the present case. It is also necessary to observe that what in fact has been found in this case is the commission of the offence by the appellant himself.
Though the trial Magistrate and one of the learned Judges of the High Court referred to the conviction as a conviction under S.420/84 of the Indian Penal Code, the actual findings support a conviction of the appellant under S.420 itself. Such a conviction would be valid though the charge is under S.420 read with S.34 of the Indian Penal Code, See Willie (William) Slaney Vs . The State of Madhya Pradesh, : 1956CriLJ291 (B), unless prejudice is shown to have occurred.'
13. Though this case has been referred to by the Supreme Court in 'State of West Bengal & Another Vs . Jugal Kishore More and another' , : 1969CriLJ1559 , the scope of Section 34 IPC was not considered. 14. The Trial Judge Advocate had also referred to the judgment in 'J.M.Desai Vs . State of Bombay', : [1960]3SCR319 , wherein the Supreme Court observed and they are relevant:-
'Counsel for the first appellant contended that probably the goods passed into the possession of the mortgagees of the assets of the company, but on this part of the submission, no evidence was led in the trial court. Counsel for the first appellant, relying upon the observations in Shreekantiah Ramayya Munipalli Vs . State of Bombay, : 1955CriLJ857 , also contended that in any event, a charge under S.409 read with S.34 of the Indian Penal Code cannot be established against the first appellant unless it is shown that at the time of misappropriation of the goods, the first appellant was physically present. But the essence of liability under S.34 is to be found in the existence of a common intention animating the offenders leading to the doing of a criminal act in furtherance of the common intention and presence of the offender sought to be rendered liable under S.34 is not, on the words of the statue, one of the conditions of its applicability. As explained by Lord Sumner in Barendra Kumar Ghose Vs . Emperor, , the leading feature of S.34 of the Indian Penal Code is `participation in action'. To establish joint responsibility for an offence, it must of course be established that a criminal act was done by several persons; the participation must be in doing the act, not merely in its planning. A common intention _ a meeting of minds _ to commit an offence and participation in the commission of the offence in furtherance of that common intention invite the application of S. 34. But this participation need not in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence of the offenders sought to be rendered liable on the principle of joint liability may be necessary, but such is not the case in respect of other offences where the offence consists of diverse acts which may be done at different times and places. In Shree Kantiah's case, : 1955CriLJ857 (supra), misappropriation was committed by removing goods from a Government depot and on the occasion of the removal of the goods, the first accused was not present. It was, thereforee, doubtful whether he had participated in the commission of the offence, and this court in those circumstances held that participation by the first accused was not established. The observations in Shree Kantiah's case : 1955CriLJ857 (supra), in so far as they deal with S. 34 of the Indian Penal Code must, in our judgment, be read in the light of the facts established and are not intended to lay down a principle of universal application.'
15. This judgment had been considered by the Supreme Court in 'Shiv Prasad Chuni Lal Jain and Pyarelal Ishwardas Kapoor Vs . State of Maharashtra', : 1965CriLJ249 . In paragraph 15, the Supreme Court observed:-
'Accused No.1, in the present case, alone did the various acts on February 18, 1959 which constituted the offences of which he was convicted. Accused Nos.2 and 3 took no part in the actual commission of those acts. Whatever they might have done prior to the doing of those acts, did not form any ingredient of the offences committed by accused No.1. They cannot be said to have participated in the commission of the criminal act which amounted to those various offences. They cannot be thereforee held liable, by virtue of S.34 IPC for the acts committed by accused No.1 alone, even if those acts had been committed in furtherance of the common intention of all the three accused. The result, thereforee, is that the conviction of the appellants, viz, accused Nos.2 and 3, for the various offences read with S.34 IPC is to be set aside.'
16. The premise on which the learned Trial Judge Advocate had based his decision is:
'The charge alleges that fraudulent transactions during his tenure at materials organisation, Visakhapatnam finally resulted in cheating between 19th September, 1994 to 17th January, 1995. The final act of cheating alleged in the charge was given shape between these dates which is well within the period of limitation prescribed under Section 79 of the Navy Act.'
17. The learned counsel, Mr.Arvind Nigam, submitted that the Trial Judge Advocate had completely ignored the allegations in the charge-sheet. According to the learned counsel, the learned Trial Judge Advocate had completely misunderstood the concept of conspiracy in the context of the charges leveled against the petitioner. The very basis of the charge is that the petitioner entered into a conspiracy between the 19th of September, 1994 and the 17th of January, 1995 when, admittedly, he had come out of the organisation on the 3rd of August, 1994. According to Mr.Arvind Nigam, the learned counsel for the petitioner, the case of conspiracy had been trotted out only to get over the bar under Section 79 of the Navy Act, 1957 while the charge against the petitioner runs counter to the very basis of the concept of conspiracy between the petitioner and the co-accused.
18. Mr.Rakesh Tikku, the learned counsel for the respondents, submitted that the petitioner had issued local purchase requisition while he was Controller of Material Planning and in November, 1994 and thereafter, the materials were purchased by the other officers. I am unable to appreciate the submission made on behalf of the respondent. If the petitioner had made local purchase requisition which was not authorised, action could have been taken against him. The successor of the petitioner could have rectified the position and withdrawn the local purchase requisition made by the petitioner when the petitioner had come out of the unit on the 3rd of August, 1994. Unless there are links of the local purchase requisition and purchase referred to in the charge, the respondents cannot take into account for the purpose of conspiracy, the alleged misdemeanour of the petitioner, and the alleged misdemeanour of the co-accused. For the purpose of roping the petitioner into the offence of conspiracy, the charge-sheet is absolutely silent on this aspect. Nothing is attributed to the petitioner and no allegations are made in the charge-sheet against the petitioner that he acted in connivance with the co-accused in purchasing the materials between the 19th of September, 1994 and the 17th of January, 1995. It is obvious, thereforee, that in order to get round the plea of bar under Section 79 of the Navy Act, 1957 the case of conspiracy has been projected against the petitioner.
19. Mr.Rakesh Tikku, the learned counsel for respondents, submitted that the alleged offence committed by the petitioner of issuing local purchase requisition was a continuing one and the process of cheating had been completed by the purchase of the material between September, 1994 and January, 1995 and, thereforee, the starting point of limitation under Section 79 would be between the 19th of January, 1994 and the 17th of January, 1995 and the trial having commenced on 10th of September, 1997, there was no question of any bar. The learned counsel, Mr.Rakesh Tikku, relied upon the judgment of the Supreme Court in 'Gokak Patel Volkart Ltd. v. Balu Jeevappa Upparatti & Another and Gokak Patel Volkart Ltd. Vs . Bandu Appa Aundhkar & Another', : [1991]1SCR396a , wherein the Supreme Court observed:-
'The concept of continuing offence does not wipe out the original guilt, but it keeps the contravention alive day by day. It may also be observed that the courts when confronted with provisions which lay down a rule of limitation governing prosecutions, in cases of this nature, should give due weight and consideration to the provisions of Section 473 of the Code which is in the nature of an overriding provision and according to which, notwithstanding anything contained in the provisions of Chapter xxxvI of the Code of Criminal Procedure any court may take cognizance of an offence after the expiration of a period of limitation if, inter alia, it is satisfied that it is necessary to do so in the interest of justice.
The expression 'continuing offence' has not been defined in the Code. The question whether a particular offence is a 'continuing offence' or not must, thereforee, necessarily depend upon the language of the statute which creates that offence, the nature of the offence and the purpose intended to be achieved by constituting the particular act as an offence.
Applying the law enunciated above to the provisions of Section 630 of the Companies Act, we are of the view that the offence under this section is not such as can be said to have consummated once for all. Wrongful withholding, or wrongfully obtaining, possession and wrongful application of the company's property, that is, for purposes other than those expressed or directed in the articles of the company and authorised by the Companies Act, cannot be said to be terminated by a single act or fact but would subsist for the period until the property in the offender's possession is delivered up or refunded. It is an offence committed over a span of time and the last act of the offence will control the commencement of the period of limitation and need be alleged. The offence consists of a course of conduct arising from a singleness of thought, purpose of refusal to deliver up or refund which may be deemed a single impulse. Considered from another angle, it consists of a continuous series of acts which endures after the period of consummation on refusal to deliver up or refund the property. It is not an instantaneous offence and limitation begins with the cessation of the criminal act, i.e. with the delivering up or refund of the property. It will be a recurring or continuing offence until the wrongful possession, wrongful withholding or wrongful application is vacated or put an end to. The offence continues until the property wrongfully obtained or wrongfully withheld or knowingly misapplied is delivered up or refunded to the company. For failure to do so sub-Section (2) prescribes the punishment. This, in our view, is sufficient ground for holding that the offence under Section 630 of the Companies Act is not one time but a continuing offence and the period of limitation must be computed accordingly, and when so done, the instant complaints could not be said to have been barred by limitation. The submission that when the first respondent upon his retirement failed to vacate and deliver possession of the company's quarter to the company the offence must be taken to have been complete, has, thereforee, to be rejected.'
20. The concept of continuing offence is well settled and if the petitioner had made local purchase beyond his authority, that would constitute an offence and the offence is complete as soon as the alleged local purchase requisition was issued. Mr.Rakesh Tikku, the learned counsel for respondents contended that issue of the local purchase requisition would amount to an attempt to cheating and cheating is completed only by purchase. I am unable to appreciate this submission. If, according to the respondents, the issue of the local purchase requisition itself is unauthorised, what was done pursuant to the local purchase requisition would not at all be relevant. Because the petitioner could have been proceeded against even for issuing the local purchase requisition, thereforee, the offence complained of against the petitioner was not at all a continuing one. Mr.Arvind Nigam, the learned counsel for the petitioner, submitted that the Criminal Procedure Code does not apply to the proceedings under the Navy Act, 1957 and the judgment of the Supreme Court referred to by Mr.Rakesh Tikku would not at all apply. Applying the principles relating to continuing offence, I am clear in my mind that the respondents cannot seek to proceed against the petitioner on the basis that the offence complained of being a continuing one.
21. Section 79 of the Navy Act, 1957 reads as under:-
'Jurisdiction as to time No person unless he is an offender who has avoided apprehension or fled from justice or committed the offence of desertion or fraudulent entry or the offence of mutiny shall be tried or punished in pursuance of this Act for any offence committed by him unless such trial commences within three years from the commission of such offence:
Provided that in the computation of the said period of three years any time during which an offender was outside India or any time during which he was a prisoner of war shall be deducted.
Provided further that no trial for an offence of desertion other than desertion on active service or fraudulent entry 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 in the Indian Navy.'
22. The Supreme Court in 'Union of India & Others Vs . Major General Madan Lal Yadav(Retd.)', : [1996]3SCR785 has laid down as to when trial commences. The Supreme Court had held:-
'It is true that the legislature has made a distinction between Section 122(3) and Section 123(2). While in the former, power to exclude time taken in specified contingencies is given, in the latter, no such provision is made for exclusion of the time since the accused will be kept under detention after he ceased to be governed by the Act. It is equally settled law that penal provisions would be construed strictly. As posed earlier, which of the two vies broader or narrow would subserve the object and purpose of the Act is the question. We are of the considered view that from a conspectus of the scheme of the Act and Rules, the broader view appears to be more conducive to and consistent with the scheme of the Act and the Rules. As soon as GCM assembles the members are charged with the duty to examine the charge/charges framed in summary trial, to give an opportunity to the accused to exercise his right to object to the empanelment of member/members of the GCM, to amend the charge and the right to plead guilty or not guilty. These procedural steps are integral and inseparable parts of trial. If the accused pleads guilty, further trial by adducing evidence by the prosecution is obviated. The need for adduction of evidence arises only where the accused pleads 'not guilty'. In that situation, the members are required to take oath or affirmation according to Rule 45. It is to remember that the members get right, power and duty to try an accused only on appointment and the same ends with the close of the particular case. thereforee, Rule 45 insists on administration of oath in the prescribed manner. For a judicial officer, the act of appointment gives power to try the offender under Criminal Procedure Code; warrant of appointment by the President of India and the oath taken as per the form prescribed in Schedule III of the Constitution empowers the High Court/Supreme Court Judges to hear the petition or appeals. For them, need to take oath on each occasion of trial or hearing is obviated. thereforee, the occasion to take oath as per the procedure for GCM and the right of the members of the GCM arises with their empanelment as GCM and they get power to try the accused the moment they assemble and commence examination of the case, i.e., charge-sheet and the record. The trial, thereforee, must be deemed to have commenced the moment the GCM assembles and examination of the charge is undertaken.
Our views gets fortified by two decisions of this Court in Harish Chandra Baijapai Vs . Triloki Singh, : [1957]1SCR370 , wherein the question was: as to when the trial begins in an election dispute under the provisions of the Representation of the People Act, 1951? The respondents had filed election petitions against the appellant under Section 81 of that Act alleging that the appellant had committed number of corrupt practices and the respondnts prayed for declaration that the appellant's election was void.
After trial, the election was set aside against while the appeal came to be filed ultimately in this Court. One of the question was: Whether the particulars of the corrupt practices and amendment thereof is valid in law and whether they are maintainable in appeal? In that context, the question arose: as to when the trial began? It was contended therein that the order amending pleadings under Order 6 Rule 17, CPC was not part of the trial and, thereforee, it could not be subject of consideration in appeal. Considering the above question, this Court held that (Para 16 of AIR):_
'Taking the first contention, the point for decision is as to what the word `trial' in S.90(2) means. According to the appellants, it must be understood in a limited sense, as meaning the final hearing of the petition, consisting of examination of witnesses, filing documents and addressing arguments. According to the respondent it connotes the entire proceedings before the Tribunal from the time that the petition is transferred to it under S.86of the Act until the pronouncement of the award. While the word `trial' standing by itself is susceptible of both the narrow and the wider senses indicated above, the question is, what meaning attaches to it in S.90(2), and to decide that, we must have regard to the context and the setting of the enactment. Now, the provisions of the Act leave us in no doubt as to in what sense the word is used in S.90(2). It occurs in Chapter III which is headed 'Trial of election petitions'. Section 86(4) provides that if during the course of the trial any member of a Tribunal is unable to perform his functions, the Election Commission is to appoint another members, and thereupon the trial is to be continued. This provision must apply to retirement or relinquishment by a member, even before the hearing commences, and the expression 'during the course of trial' must thereforee include the stages prior to the hearing. Section 88 again provides that the trial is to be held at such places as the Election Commission may appoint. The trial here must necessarily include the matters preliminary to the hearing such as the settlement of issues, issuing direction and the like. After the petition is transferred to the Election Tribunal under S.86, various steps have to be taken before the stage can be set for hearing it. The respondent has to file his written statement; issues have to be settled. If `trial' for the purpose of S.90(2) is to be interpreted as meaning only the hearing, then what is the provision of law under which the Tribunals to call for written statements and settle issues? Section 90(4) enacts that when an election petition does not comply with the provisions S.81, S.83 or S.117, the Tribunal may dismiss it. But if it does not dismiss it, it must necessarily have the powers to order rectification of the defects arising by reason of non-compliance with the requirements of S.81 or .117. That not being a power expressly conferred on it under S.92 can only be sought under S.90(2), and resort to that section can be had only if trial is understood as including proceedings prior to hearing. Section 92 enacts that the Tribunal shall have powers in respect of various matters which are vested in a Court under the Civil Procedure Code when trying a suit, and among the matters set out therein are discovery and inspection, enforcing attendance of witnesses and compelling the production of documents, which clearly do not form part of the hearing but precede it. In our opinion, the provision of Chapter III read as a whole, clearly show that `trial' is used as meaning the entire proceedings before the Tribunal from the time when the petition is transferred to it under S.86 until the pronouncement of the award.'
In Om Prabha Jain Vs . Gian Chand, : AIR1959SC837 , it was held that the word 'trial' clearly means entire proceedings before tribunal from the reference to it by the Election Commission to the conclusion. This Court found no reason to attribute a restricted meaning to the word 'trial' in Section 98 of the Representation of the People Act, 1951.
In the light of the above discussion, we hold that the trial commences the moment GCM assemble to consider the charge and examines whether they would proceed with the trial.'
23. For the foregoing reasons, I am of the view that the charge-sheet issued by the respondents against the petitioner cannot be sustained and, consequently, there can be no trial against the petitioner. Accordingly, the writ petition is allowed.
24. There shall be no orders as to costs.