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TMI Blog2020 (1) TMI 1599X X X X Extracts X X X X X X X X Extracts X X X X ..... Force in the trade of Equipment Assistant on 18.01.1988. He was posted to 402 Air Force Station, Kanpur in August, 1997. The Respondent was assigned duty in Diesel and Petrol Store on 02.02.2000. Information was received from a civilian on 03.05.2000 that 7 barrels of diesel were unloaded in civil area at Pappu Ka Plot at about 1400 hrs. on 02.05.2000. The informant informed 4 Provost & Security (Unit), Air Force, Kanpur, that he saw two airmen in uniform, out of which one was of dark complexion. The informant further stated that a similar incident of unloading of barrels was observed by him on 20.04.2000 also as well. 2. A detailed report was sent by 4 Provost & Security (Unit), Air Force, Kanpur by a letter dated 10.05.2000 in which it was indicated that the Respondent-herein and Corporal G.S. Mani, Equipment Assistant were involved in taking out POL (Petrol, Oil & Lubricants) belonging to Air Force Station, Kanpur. Air-Officer-Commanding, 402 Air Force Station, Kanpur directed a Court of Inquiry to be convened. By its report dated 31.05.2000, the Court of Inquiry found that DHPP quantity of 5800 Ltrs. and petrol of 5000 Ltrs. was misappropriated by the Respondent and the then C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal. The Respondent was directed to have been in continuous service for the purpose of pension and other service benefits. However, arrears of salary was confined to 50 per cent. 5. The Tribunal held that the allegation against the Respondent being theft and misappropriation of kerosene and diesel, the loss caused due to theft required to be reported to the civil police as per Para 804(b) of the Regulations. By referring to Section 154 of the Code of Criminal Procedure, 1973 (for short "the Cr.PC), the Tribunal held that it is mandatory that a First Information Report (FIR) had to be registered in a cognizable case. The Tribunal observed that the Respondent was not given an opportunity in terms of Rule 156 of the Rules during the Court of Inquiry proceedings. In view of the violation of Sub-rule (2), (6) and (7) of Rule 156 of the Air Force Rules, the Tribunal was of the view that the proceedings of the Court of Inquiry were vitiated. The contention on behalf of the Respondent that there was violation of Rule 24 of the Rules and that the summary of evidence was also not recorded in accordance with the prescribed procedure, was not accepted by the Tribunal. Group Captain A.K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Air Force Act embody a completely self-contained comprehensive Code specifying the various offences under those Acts and prescribing the procedure for detention and custody of offenders, investigation and trial of the offenders by court martial, the punishments to be awarded for the various offences, confirmation and revision of the sentences imposed by court martial, the execution of such sentences and the grant of pardons, remissions and suspensions in respect of such sentences. These enactments, therefore, constitute a special law in force conferring special jurisdiction and powers on court martial and prescribing a special form of procedure for the trial of the offences under those Acts. The effect of Section 5 of the Code of Criminal Procedure is to render the provisions of the Code of Criminal Procedure inapplicable in respect of all matters covered by such special law. 8. It is clear from the above that the Air Force Act is a special law conferring jurisdiction and powers on the Court Martial and prescribing the procedure for trial of offences. It is also clear that the Code of Criminal Procedure is not applicable in respect of matters covered by the Air Force Act. Henc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act whose character or service reputation is in the opinion of the Chief of the Air Staff, affected by anything in the evidence before or in the report of a court of inquiry shall be entitled to a copy of the proceedings of such court unless the Chief of the Air Staff sees reason to order otherwise. 11. The Tribunal was of the view that the Respondent was not given sufficient opportunity to defend himself during the course of the proceedings before the Court of Inquiry. 12. According to the Respondent, he was not permitted to be present during the recording of statement of witnesses. He was also deprived of an opportunity to cross-examine the witnesses. The contention on behalf of the Union of India is that the Respondent was given an opportunity to make a statement and to cross-examine witnesses. He was also given a chance to produce documentary evidence. The Respondent made a statement on 19.07.2000 to the effect that he did not wish to cross-examine witnesses and to produce any documentary evidence in his defence. 13. The statement made by the Respondent was produced before us which indicates that he did not utilize the opportunity given to him. Therefore, it cannot be held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the AOP and it was only formally communicated under signatures of the Air Commodore concerned or whether the Air Commodore named therein, who was not empowered, himself passed the convening order. With a view to avoid any controversy on this factual position, we directed the Appellant to produce before us the original file. We have perused the file and we find that the order for convening the General Court Martial was approved by Air Marshal D.A. LaFontaine, AOP. There is, therefore, no force in the submission that the convening order was unauthorized and, therefore, illegal. 17. The order dated 18.08.2001 by which the District Court Martial was convened is issued in the name of Air Marshall S.S. Gupta, PVSM, AVSM, VSM, ADC, Air Officer Commanding-in-Chief, Maintenance Command. There is no doubt that the order was signed by Group Captain A.K. Gurtu, SPSO, Head Quarters MC IAF who is the Personnel Staff Officer for Air Officer Commanding-in-Chief, Maintenance Command, IAF. Rule 43(4) provides that a convening order may be signed by the Commanding Officer or by the Senior Staff Officer on his behalf. The fact that Group Captain A.K. Gurtu was the Senior Personnel Staff officer fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 MT, 2200 ltrs DHPP(N) and nil Kerosene oil quantity, by writing quantity 200 ltrs of Petrol 87 MT, 800 Ltrs of DHPP(N) and 1400 ltrs of kerosene Oil on gate pass No. 3129 dated 29 April 2000. Sixth charge Section 52(c) Air Force Act, 1950 Committing criminal breach of trust in respect of property belonging to the Govt. In that he, At 402 AF Station, on 02 May 2000 being the NCO i/c POL, stores of 402 AF Station and in that capacity entrusted with POL stores of the unit, dishonestly misappropriated 1400 ltrs of DHPP(N), by making use of two sets of IAFF(Q) 429 bearing same serial No. EX/IV/P/16 (2000-20010 for a single transaction of issue of POL to 7 AF Hospital first set (receipted blue) showing issue of 2400 ltrs of Kerosene oil only and second set (original black) showing issue of 2400 ltrs of kerosene oil and 1400 ltrs of DHPP(N), and physically issuing to 702670-K Cpl Mani GS Eqpt Asst of 7 AF Hospital as per second set and gate pass No. 3131 dated 02 May 2000. 20. The Tribunal on a reconsideration of the evidence on record concluded that Charges 5 and 6 were not established beyond reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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