{"id":49047,"date":"1998-07-27T00:00:00","date_gmt":"1998-07-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/commander-v-s-batra-vs-chief-of-the-naval-staff-naval-on-27-july-1998"},"modified":"2019-03-27T06:27:12","modified_gmt":"2019-03-27T00:57:12","slug":"commander-v-s-batra-vs-chief-of-the-naval-staff-naval-on-27-july-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/commander-v-s-batra-vs-chief-of-the-naval-staff-naval-on-27-july-1998","title":{"rendered":"Commander V.S. Batra vs Chief Of The Naval Staff, Naval … on 27 July, 1998"},"content":{"rendered":"
Delhi High Court<\/div>\n
Commander V.S. Batra vs Chief Of The Naval Staff, Naval … on 27 July, 1998<\/div>\n
Equivalent citations: 1998 VAD Delhi 91, 74 (1998) DLT 810, 1998 (47) DRJ 130<\/div>\n
Author: K Ramamoorthy<\/div>\n
Bench: K.Ramamoorthy<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
K. Ramamoorthy, J.<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
 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.\n<\/p>\n
 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:-\n<\/p>\n
     “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.\n<\/p>\n
     With these observations the petition stands dismissed.”\n<\/p>\n
 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.\n<\/p>\n
 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 levelled against the petitioner  pertained  to the  period posterior to the 3rd of August, 1994 and therefore, under  Section 79 of the Navy Act, 1957, the court martial was incompetent to try  an offence which is barred under that section.\n<\/p>\n
 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  levelled  charge  of
\nconspiracy 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.\n<\/p>\n
 8.   The charge-sheet issued against the petitioner reads as under:-\n<\/p>\n
      “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:-\n<\/p><\/blockquote>\n
      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.\n<\/p><\/blockquote>\n
      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.”\n<\/p><\/blockquote>\n
 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. Therefore, 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.\n<\/p>\n
 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:-\n<\/p>\n
     “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.”\n<\/p>\n
      This averment is not denied by the respondents in the reply.\n<\/p>\n
 11.  Therefore,  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:-\n<\/p>\n
      “The  accused  Commander V.S.Batra has raised  objection  to  his trial by Court Martial on the following grounds:-\n<\/p><\/blockquote>\n
      (a)  He has submitted statutory representations for redressal  of grievances  highlighting  the illegality of his  trial  by  Court Martial which was pending disposal.\n<\/p><\/blockquote>\n
      (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. Therefore, 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.\n<\/p><\/blockquote>\n
      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.\n<\/p><\/blockquote>\n
      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, therefore, 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.\n<\/p><\/blockquote>\n
      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:-\n<\/p><\/blockquote>\n
      “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”.\n<\/p><\/blockquote>\n
      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 Vs. Surjit Singh reported in AIR  1987  Supreme Court  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 , JM Desai Vs. State of Bombay ).\n<\/p><\/blockquote>\n
      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,  therefore, 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.\n<\/p><\/blockquote>\n
      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.\n<\/p><\/blockquote>\n
      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.”\n<\/p><\/blockquote>\n
 12.  The  Trial Judge Advocate had referred to the judgment of the  Supreme Court in “Mobarik Ali Ahmed Vs. State of Bombay”, ,  wherein
\nthe Supreme Court observed:-\n<\/p>\n
      “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 therefore no conjoint offence could be  committed  by them within the meaning of S.34 of  the  Indian Penal Code.\n<\/p><\/blockquote>\n
      He  relies upon the dictum in Shreekantiah Ramayya Munipalli  Vs. The  State of Bombay,  (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.\n<\/p><\/blockquote>\n
      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,   (B), unless prejudice is shown to have occurred.”\n<\/p><\/blockquote>\n
 13.  Though  this case has been referred to by the Supreme Court in  “State of West Bengal & Another Vs. Jugal Kishore More and another” , ,  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”,  , wherein the Supreme Court observed and they  are relevant:-\n<\/p>\n
     “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, ,
\n     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,   (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, therefore, 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  (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.”\n<\/p>\n
 15.  This judgment had been considered by the Supreme Court in “Shiv Prasad Chuni Lal Jain and Pyarelal Ishwardas Kapoor Vs. State of Maharashtra”, . In paragraph 15, the Supreme Court observed:-\n<\/p>\n
       “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 therefore 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, therefore, 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.”\n<\/p>\n
 16.  The  premise on which the learned Trial Judge Advocate had  based  his decision is:\n<\/p>\n
       “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.”\n<\/p>\n
 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  levelled 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.\n<\/p>\n
 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, therefore,  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.\n<\/p>\n
 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, therefore, 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
\nno  question of any bar. The learned counsel, Mr.Rakesh Tikku, relied  upon the  judgment  of the Supreme Court in “Gokak Patel Volkart Ltd.  Vs.  Balu Jeevappa  Upparatti & Another and Gokak Patel Volkart Ltd. Vs.  Bandu  Appa Aundhkar & Another”, , wherein the Supreme Court observed:-\n<\/p>\n
     “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.\n<\/p>\n
  The  expression ‘continuing offence’ has not been defined in  the Code. The question whether a particular offence is a  ‘continuing  offence’ or not must, therefore, 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.\n<\/p>\n
     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, therefore, to be rejected.”\n<\/p>\n
 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, therefore, 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.\n<\/p>\n
 21.  Section 79 of the Navy Act, 1957 reads as under:-\n<\/p>\n
     “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:\n<\/p><\/blockquote>\n
      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.\n<\/p><\/blockquote>\n
      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.”\n<\/p><\/blockquote>\n
 22.  The Supreme Court in “Union of India & Others Vs. Major General  Madan Lal  Yadav(Retd.)”,   has laid down as to when  trial  commences. The Supreme Court had held:-\n<\/p>\n
       “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. Therefore, 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. Therefore, 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, therefore,  must be deemed to have commenced the moment  the  GCM assembles and examination of the charge is undertaken.\n<\/p><\/blockquote>\n
      Our views gets fortified by two decisions of this Court in Harish Chandra Baijapai Vs. Triloki Singh, , 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.\n<\/p><\/blockquote>\n
      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,  therefore, it could not be subject of consideration in appeal. Considering the above question, this Court held that (Para 16 of AIR):_<\/p>\n
      “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  therefore  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.”\n<\/p><\/blockquote>\n
      In  Om Prabha Jain Vs. Gian Chand, , 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.\n<\/p><\/blockquote>\n
      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.”\n<\/p><\/blockquote>\n
 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.\n<\/p>\n
 24.  There shall be no orders as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Commander V.S. Batra vs Chief Of The Naval Staff, Naval … on 27 July, 1998 Equivalent citations: 1998 VAD Delhi 91, 74 (1998) DLT 810, 1998 (47) DRJ 130 Author: K Ramamoorthy Bench: K.Ramamoorthy ORDER K. Ramamoorthy, J. 1. The petitioner has challenged in the writ petition the charge-sheet issued by the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-49047","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nCommander V.S. 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