No. 9777 of 2009 Ex. Sube - Armed Forces Tribunal

IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT NEW DELHI 

T.A. No. 168 of 2010 

Writ Petition (Civil) No. 9777 of 2009 

Ex. Subedar Jaibir Singh .........Petitioner 

Versus 

Chief of Army Staff & Ors. .......Respondents 

For petitioner: Mr. Ashok Kumar, Advocate. 

For respondents: Mr. Ankur Chhibber, Advocate. 

CORAM: 

HON’BLE MR. JUSTICE A.K. MATHUR, CHAIRPERSON. 

HON’BLE LT. GEN. S.S.DHILLON, MEMBER. 

S.S. Dhillon, Member: 

J U D G M E N T 

03.07.2012 

1. This petition has been filed by the Petitioner wherein he seeks 

quashing of the Summary General Court Marital (SGCM) proceedings of 12 th 

April 2007 wherein he was sentenced to be dismissed from service and to 

undergo one year rigorous imprisonment. He also seeks quashing of the 

Chief of Army Staff rejection order of 27 th January 2009 wherein his petition 

under Section 164(2) of the Army Act was rejected by the Chief of Army Staff. 

This petition was filed in the Hon‟ble Delhi High Court and has been 

transferred to this Tribunal after its formation. 

2. The Petitioner was enrolled in the Army as a Sepoy on 28 th May 1983 

in the regiment of Artillery. By his hard work and dedication he was promoted 

from time to time and had risen to the rank of Subedar. The incident for which 

TA No. 168 of 2010 [W.P.(C) No.9777 of 2009] Page 1 of 23

disciplinary proceedings were initiated against him occurred when the 

Petitioner was posted to 28 Rashtriya Rifles in Jammu & Kashmir, wherein he 

was charged for an offence under Sections 34 (c) and 63 of the Army Act. 

Consequently, a Court of Inquiry was conducted, which was followed by 

recording of Summary of Evidence, and culminated with his trial by a SGCM 

which commenced on 12 th March 2007 and concluded on 12 th April 2007. 

3. Learned counsel for the Petitioner contended that the provisions of 

Army Rules 23, 28 and 164 were not followed while framing charges against 

the Petitioner and that the statement of the Petitioner as given in the summary 

of evidence was not given due credence by the SGCM. He also argued that 

Army Rule 22 was not followed properly proceedings of such 

hearing/investigation were not recorded as per Army Order 24/94 and since 

there was a defect in the hearing under Army Rule 22, all subsequent actions 

become null and void. 

4. The Petitioner argued that when the SGCM convened on 12 th March 

2007 he was asked as to whether he had any objection to be tried by the 

Presiding Officer or any of the Members constituting the Court. The Petitioner 

replied that he could not answer that question till such time his defence 

counsel Brig. R.P. Singh (Retd.) joined the Court. His defending officer, 

though legally qualified, had only six months of service and was incapable of 

defending the Petitioner without his counsel‟s assistance. However, on the 

telephonic advice of Brig. R.P.Singh (Retd.), his defence counsel, the 

defending officer was advised to proceed with the trial in case the Petitioner 

had no objection to the Presiding Officer and the other Members. The 


defending officer accordingly, without realising the consequences, stated that 

they had no objection to be tried by the Presiding Officer and Members of the 

SGCM. On being further asked by the SGCM as to whether he wished to 

apply for an adjournment on the ground that he had insufficient opportunity to 

prepare his defence, the Petitioner, again under incorrect advice from his 

defending officer, stated that he did not seek an adjournment and the trial 

commenced. The Petitioner contended that all along he was not appraised 

about his rights to prepare his defence and to challenge the procedure as 

outlined in Section 130 of the Army Act read with Rules 44 and 49. The 

Petitioner expressed his helplessness and inability to understand the 

procedure since his defending counsel was also not conversant with the ibid 

provisions. It was next contended that a Member of the Court Martial was 

improperly appointed as an Interpreter and his defence counsel could only 

join the Court on 15 th March 2007. On joining the SGCM proceedings on 15 th 

March 2007, his defence counsel asked that he be allowed to inspect the 

proceedings and he was shown the proceedings for a brief period of five 

minutes. Immediately thereafter the defence counsel objected to both the 

charges as stipulated under Army Rule 49 and this objection was out rightly 

rejected by the Court on the erroneous advice of the Judge Advocate 

General. 

5. The brief facts which would enable better understanding of the issue is 

that on 31 st October 2006 while the Petitioner was posted with Delta Company 

of 28 Rashtriya Rifles, Gnr/Opr Suresh Chandra Behera of the same Unit shot 

and killed Lt. Col. Saket Saxena, the Officer Commanding of Delta Company. 

Gnr/Opr Suresh Chandra Behera continued firing intermittently thereafter and 


the Petitioner was charged for having omitted to take control of the situation 

as a Platoon Commander. The offences for which he was charged are 

extracted below: 

“CHARGE SHEET 

The Accused, No. JC-266017X Subedar Jaibir Singh of 28 

Rashtriya Rifles attached to 2 Field Ordnance Depot, is 

charged with:- 

First Charge 

Section 34(c) 

Army Act. 

Second 

Charge 

Section 63 

Army Act 

In the presence of the enemy misbehaving in 

such manner as to show cowardice 

In that he, 

at field, on 31 st October 2006, while performing 

the duties of Platoon Commander of No. 11 

Platoon, „D‟ Company of 28 Rashtriya Rifles, 

when No. 14435246F Gunner/Operator Suresh 

Chandra Behera of the same unit, shot at IC- 

46825K Lt. Col. Saket Saxena, the Company 

Commander, „D‟ Company and continued firing 

indiscriminately, showed cowardice by hiding 

himself, despite having learnt that the Company 

Commander had been fired at. 

An omission prejudicial to good order and military 

discipline 

at field, on 31 st October 2006, while performing 

the duties of Platoon Commander of No. 11 

Platoon, „D‟ Company of 28 Rashtriya Rifles, 

when No. 14435246F Gunner/Operator Suresh 

Chandra Behera of the same unit, shot at IC- 

46825K Lt. Col. Saket Saxena, the Company 

Commander, „D‟ Company and continued firing 

indiscriminately, improperly omitted to take 

control of the situation as such Platoon 


Commander. 

6. The main contention of the Petitioner was that he had not displayed 

any cowardice and that there was ample evidence to prove that Gnr/Opr 

Suresh Chandra Behera after killing Lt. Col. Saket Saxena was supposedly 

searching for the Petitioner to kill him also. It has come on record in the 

evidence of various witnesses that Gnr/Opr Suresh Chandra Behera had time 

and again stated “Kahan Hai Jaibir? Kahan Hai Chamkila? Kahan Chup 

Gaya?” and by „Chamkila‟ he was referring to the Petitioner. It was also in 

evidence that Gnr/Opr Suresh Chandra Behera had searched all over the post 

to find the Petitioner with a view to kill him. In this regard, Petitioner submitted 

that Gnr/Opr Suresh Chandra Behera was specifically searching for him and 

that he had specific targets in mind, the first of which was Lt. Col. Saket 

Saxena after which he wished to kill the Petitioner. This was evident from the 

fact that after killing Lt. Col. Saket Saxena, Gnr/Opr Suresh Chandra Behera 

had not caused any further damage to anyone and had only searched for the 

Petitioner in order to kill him. In these circumstances, if the Petitioner had 

attempted to hide himself so as to save his life, it cannot be construed as 

cowardice. Learned counsel for the Petitioner also argued that the post 

contained almost 50 persons who were fully armed and capable of dealing 

with Gnr/Opr Suresh Chandra Behera after he ran amuck, and no action was 

taken by any of the other JCOs of the company and he alone had been 

punished. It was also argued that a sizeable number of the post personnel 

had just returned from Area Domination Patrol and were in the process of 

disarming themselves. It was for these persons who were available in the 

immediate vicinity of the incident, and who were still possessing their 


weapons, to tackle Gnr/Opr Suresh Chandra Behera. Furthermore, since the 

Petitioner himself was without his weapon and ammunition, he could not have 

taken any action against Gnr/Opr Suresh Chandra Behera. At this crucial 

moment, it would have been suicidal if the Petitioner would have gone in front 

of Gnr/Opr Suresh Chandra Behera. It was further argued that the next senior 

person on the post after Lt. Col. Saket Saxena was Subedar Paramjit Singh, 

who was in the immediate vicinity of the incident and was constantly pleading 

with Gnr/Opr Suresh Chandra Behera to handover his weapon. It was also 

argued that Subedar Paramjit Singh, being the seniormost person present on 

the post, had not given any specific direction to the Petitioner or to anybody 

else as to how the situation should have been tackled, and in the absence of 

such orders from the seniormost person, it was not for him to perceive what 

actions Subedar Paramjit Singh wanted him to take. Petitioner further argued 

that it has come in the evidence of PW-1, Subedar Paramjit Singh, that just 

before the incident the Petitioner had left the site of the incident and had gone 

to issue instructions about the leave party, and he was nowhere in close 

proximity of the scene of incident when it occurred. 

7. Learned counsel for the Petitioner argued that the findings of the first 

charge were erroneous since the evidence on record has not been properly 

appreciated. It was also contended that Col. Gagan Pathania should not have 

been detailed as Presiding Officer of the SGCM since he had preconceived 

ideas and prior knowledge of the case. This was because the summary of 

evidence in the case of Gnr/Opr Suresh Chandra Behera was recorded by Lt. 

Col. D.S. Patil, Second-in-Command of Col. Gagan Pathania and this 

summary of evidence would have passed through the Commanding Officer, 


Col. Gagan Pathania, who would have read it. Therefore, Col. Gagan 

Pathania would have full knowledge of the case and should not have been 

detailed as the Presiding Officer for this SGCM. 

8. Learned counsel for the Respondents denied the facts as brought out 

by the Petitioner and vehemently argued that no injustice had been done to 

the Petitioner. Touching upon the legal issues as raised by the Petitioner, 

learned counsel for the Respondents stated that Army Rules 23 and 28 had 

been fully complied with and the summary of evidence had been recorded in 

accordance with law and due opportunity given to the Petitioner to be present 

throughout the proceedings, to ask questions to the witnesses, to produce 

defence witnesses and to make a statement. However, the statement of the 

Petitioner as given in the summary of evidence could not be taken into 

account during the SGCM and it was for the Petitioner to make any fresh 

statement during the Court Martial, wherein full and fair opportunity was given 

to him, and he has made a statement at the SGCM. This opportunity was 

provided to the Petitioner and, therefore, his insistence that his statement at 

the summary of evidence be taken on record by the Court Martial was not 

permissible by law. A hearing under Army Rule 22 was conducted by the 

Commanding Officer of the Petitioner and there was no impropriety or 

illegality in the hearing. Learned counsel further argued that when the SGCM 

commenced, in accordance with law, the Petitioner was asked whether he 

objected to be tried by the Presiding Officer or any other Member of the Court. 

The Petitioner responded that he could not answer this question till such time 

his private defence counsel was present. Simultaneously, his defending 

officer submitted that the Petitioner had hired Brig. R.P. Singh (Retd.), 


Advocate of the Supreme Court and Delhi High Court as his private defence 

counsel. The defending officer requested for an adjournment for 30 minutes 

which was granted. On reassembling, the defending officer informed the 

Court that the Petitioner had had a telephonic conversation with Brig. R.P. 

Singh (Retd.) and that he had no objection to be tried by the Presiding Officer 

or any other Member of the Court. Thereafter the Petitioner was asked 

whether he wished to apply for an adjournment on the ground that he did not 

have sufficient opportunity for preparing his defence, to which the Petitioner 

had categorically stated “No”. At this time the defending officer submitted that 

the proceedings of the Court were being conducted in a language the 

Petitioner does not understand and hence an Interpreter be appointed. 

Accordingly, the Court allowed the submission of the defending officer to 

appoint an Interpreter Lt. Col. Ranjeet Chacko, one of the Members of the 

Court, was sworn as an Interpreter. Immediately thereafter the defending 

officer requested for an adjournment till 1100 hours on 15 th March 2007 to 

enable the defence counsel, Brig. R.P. Singh (Retd.) to be present. The 

Court accepted this submission and adjourned till 1100 hours on 15 th March 

2007 by which time the defence counsel, Brig. R.P. Singh (Retd.) had joined. 

The first action that was taken on 15 th March 2007 was to appoint Lt. Col. 

Suresh Kumar as Interpreter. Therefore, Lt. Col. Ranjeet Chacko, who was a 

Member of the Court had not transacted any proceedings as an Interpreter, 

therefore, there was no question of any illegality. The complete proceedings 

of the SGCM were undertaken with Lt.Col.Suresh Kumar as Interpreter. 

Furthermore, when the Court commenced at 1100 hours on 15 th March 2007, 

Brig. R.P.Singh (Retd.) the defence counsel was present and sought time till 

1500 hours to examine the proceedings and prepare his submissions and the 


same was accepted by the Court. The time given to the defence counsel to 

inspect the proceedings was approximately 4 hours and not 5 minutes as 

stated by the Petitioner. Therefore, in the entire proceedings no illegality has 

been committed and neither had the Petitioner been deprived of his legal 

rights or the services of his defence counsel. However, since the Petitioner 

after telephonic consultation with his defence counsel, had already stated that 

he had no objection to be tried by the Presiding Officer or any other Member 

of the Court and that there was no objection to the charge to which the 

Petitioner had pleaded „Not Guilty‟ the subsequent objection raised by his 

defence counsel to these issues could not be accepted and was overruled by 

the Court. All in all there had been no violation of any legal rights which were 

available to the Petitioner. Learned counsel for the Respondents also pointed 

out that when the SGCM proceedings were sent to the confirming authority, 

he had remitted the unexpired portion of the sentence of one year of rigorous 

imprisonment awarded by the Court. Consequently, the Petitioner was not 

sent to civil jail to serve out his sentence and his imprisonment was restricted 

to the custody prior, during and after the SGCM. 

9. Learned counsel for the Respondents further argued that primarily the 

Court had to satisfy itself that when Gnr/Opr Suresh Chandra Behera killed Lt. 

Col. Saxena and continued firing indiscriminately, did the Petitioner hide 

himself despite having learnt that the Company Commander had been shot 

and injured/killed. The issue before the Court Martial was that when the 

Petitioner got to know that his senior officer, Lt. Col. Saket Saxena, had been 

shot and injured/killed by Gnr/Opr Suresh Chandra Behera, did he hide 

himself or take any positive action to control the situation. 


10. It was argued that there had to be a distinction between „fear‟ and 

„cowardice‟. „Fear‟ has been defined in the Oxford Advance Learner‟s 

Dictionary as “the bad feeling that you have when you are in danger, that 

something bad might happen, or when a particular thing frightens you.” 

Similarly, „coward‟ has been defined in the same dictionary as “a person who 

is not brave or who does not have the courage to do something that other 

people do not think are especially difficult.” „Cowardice‟ has been defined as 

“fear or lack of courage”. This distinction between „fear‟ and „cowardice‟ has 

to be understood in the context of the incident for which the Petitioner has 

been accused. „Fear‟ is a feeling which to a large extent occurs usually in raw 

and young recruits/soldiers but this feeling can be overcome by experience, 

training, and high morale. The Petitioner had approximately 23 years of 

service and had received 5 promotions to the rank of a Subedar and was 

therefore an experienced soldier. What the Petitioner has done tantamounted 

to cowardice, in that when the Petitioner was confronted with a critical 

situation, he did not act in conformity with his status, experience, training and 

duties and instead of acting like a leader, chose to hide himself, thereby 

saving his skin while exposing his men to heightened and increased risk. 

There is ample evidence by various witnesses, both prosecution and defence, 

that throughout the incident the only JCO who was visible was Subedar 

Paramjit Singh and the petitioner was no where to be seen during the entire 

episode. 

11. Learned counsel for the Respondents argued that to better appreciate 

as to what was expected of the Petitioner, we have to see the actions taken 

by the two JCOs i.e. Subedar Paramjit Singh and the Petitioner. Admittedly, 


Paramjit Singh was senior of these two. However, the difference in their 

actions is displayed from the fact that immediately when Gnr/Opr Suresh 

Chandra Behera shot Lt. Col. Saket Saxena, Subedar Paramjit Singh 

admonished him by saying that “Tumne Kya Kar Dia.” Thereafter he told him 

to handover his weapon. When Gnr/Opr Suresh Chandra Behera went away 

from the place of incident towards Post No. 2, Subedar Paramjit Singh, who 

was also unarmed, followed him and was constantly pleading with him to 

handover his weapon. Gnr/Opr Suresh Chandra Behera even threatened 

Subedar Paramjit Singh and fired towards him but the JCO persisted with his 

efforts. Not only this, Subedar Paramjit Singh even returned to the place of 

incident and attempted to give first-aid to his Company Commander who still 

appeared to have some signs of life in him. Gnr/Opr Suresh Chandra Behera 

again came to the site, fired some more rounds on Lt. Col. Saket Saxena and 

again threatened Subedar Paramjit Singh that he had no enmity with him and 

that he should not interfere in the matter. Despite this, Subedar Paramjit 

Singh continued with his efforts and again followed him and was finally 

successful in getting Gnr/Opr Suresh Chandra Behera to hand over his 

weapon and ammunition. Thereafter the JCO promptly had tied Gnr/Opr 

Suresh Chandra Behera to a tree and proceeded to the site to evacuate Lt. 

Col. Saket Saxena. This has to be contrasted with the actions of the 

Petitioner, who from the time when the first bullet was fired hid himself and 

only appeared at the scene when Gnr/Opr Suresh Chandra Behera had 

handed over his weapon and had been tied to a tree. While it is admitted that 

gunner Behra had no enmity with Subedar Paramjit Singh and on the contrary 

he wanted to target the Petitioner, Subedar Paramjit Singh took definitive 

action, to the best of his thinking to neutralise Gnr/Opr Suresh Chandra 


Behera. When a soldier runs amock he can take very irrational decisions and 

Subedar Paramjit Singh had at the risk of his life attempted to tackle the 

situation in the best possible manner as he thought appropriate. Learned 

counsel also argued that the duties of Commander at all levels have been 

clearly identified and it is not in dispute that the Petitioner was the Platoon 

Commander of Gnr/Opr Suresh Chandra Behera. Therefore, he not only had 

a moral but also a legitimate and specific duty to take actions against persons 

who are under his command. Not controlling the situation when a critical 

incident like this has occurred can lead to great confusion, as has been stated 

by a number of witnesses, and can even lead to the other soldiers on the post 

firing indiscriminately and injuring each other. Furthermore as has been stated 

by most of the witnesses, if it was felt that there had been a Fidayeen Attack 

on the post there are specific orders as to how to tackle this situation. These 

orders included that soldiers are to take their weapons and occupy battle 

positions and thereafter assess the situation and act according to the 

directions of their Commander. In such circumstances, if the Commanders 

themselves hide and do not pass any instruction then it can be catastrophic. 

It has come in the evidence of one of the defence witnesses i.e. Ram Bilas 

(DW-5) that “Had a JCO given me a direct order to shoot Gnr/Opr Suresh 

Chandra Behera I would have done so, if not on the body at least on his legs 

so as to incapacitate him.” This testimony has not come from any of the 

prosecution witnesses but from a defence witness. This only highlights the 

importance of specific orders being given by the Commanders, and how the 

situation could have been controlled. 


12. In this case the entire post was in an area of approximately 150x150 

mtrs., which is not large, keeping in view the range of weapons that were 

available. Furthermore as has been stated by (Rfn Ajay Kumar) PW-4 and 

S/M Deepak Kumar (PW-7) the entire incident from the time the first shot was 

fired till Gnr/Opr Behera was tied to a tree lasted for at least 5 to 7 minutes, if 

not more. During this time with 50 armed men available at the post, all that 

was required was for some Commander to take control of the situation and to 

order specific actions to neutralise the threat. Since the Petitioner was the 

Platoon Commander, and he was aware that Subedar Paramjit Singh was 

following Gnr/Opr Behera, he being the next seniormost should have 

controlled the situation. The attitude of the Petitioner can be made out by his 

response to Question No. 07 which was asked to him at the trial. The said 

question and answer read as under: 

“Q.No.07: It has come in the evidence of Subedar 

Paramjit Singh (PW-1) that he did not ask you to take 

certain responsibilities to handle the situation since he 

did not see you during the entire episode. Do you 

wish to say anything in this regard? 

Ans: Subedar Paramjit Singh during the entire 

incident was present with Gnr/Opr Suresh Chandra 

Behera. Subedar Paramjit Singh and the entire 

company were aware that Gnr/Opr Suresh Chandra 

Behera was searching for me to kill me. I was hiding 

and saving myself. I did not come in front of 

Gnr/Opr Suresh Chandra Behera. Even if I came with 

10 other people he would have still fired at me. The 

witness further clarifies that Subedar Paramjit Singh 

was with Gnr/Opr Suresh Chandra Behera and his 

attention was towards the cook house, living, mandir 


and upper portion was not visible and I was not at one 

place. By hiding the accused clarifies that he was 

taking cover to save himself.” 

13. To prove the charges against the Petitioner, the prosecution have 

produced 8 witnesses. Sub Paramjit Singh (PW-1) was the senior JCO of „D‟ 

Company on 31.07.2006 when the incident in question occurred. The witness 

has stated that he was the senior JCO of the Company looking after the 

Company HQ and the petitioner was the Platoon Cdr. of No. 11 Platoon i.e. 

he was the direct Cdr of Gnr/Opr Behera who had shot the Company 

Commander. The Company location was enclosed in an area of 

approximately 150 x 150 mtrs or 200 x 200 mtrs. When the Company 

Commander i.e. Lt. Col Saket Saxena and his party came back at 10.30 hrs 

on 31.07.2006 from the Area Domination Patrol, he and the petitioner had 

received the party at the gate. Accordingly, he and the Petitioner were talking 

to Lt Col Saket Saxena, close to Post No. 3 when the rest of the patrol was 

taken by Nb Sub Harbhajan Singh for disarming their weapons. The Company 

Commander removed his bullet proof jacket and also gave his weapon to his 

Sahayak and sat on a chair. The witness and the petitioner were standing 

close to the Company Commander and were being briefed by him. 

Meanwhile, a message was received that a vehicle was arriving at the post to 

take the leave party. The Petitioner immediately told the Company 

Commander that he would carry out the requisite administration requirements 

of the leave party and left the location where the Company Commander was 

sitting. Soon after that Gnr/Opr Behera carrying his personal weapon, came to 

the place where the Company Commander was sitting and shot the Company 

Commander. Gnr/Opr Behera than ran back towards Post No. 2, and the 


witness ran behind him. Thereafter Gnr/Opr Behera pointed his weapon 

towards the witness and threatened him that he would be shot and that 

Behera had no enmity with the witness and he should go away. Gnr/Opr 

Behera also fired a few rounds from his rifle. When the witness went back he 

saw L/Nk Fiyaz Ahamed (PW-2) trying to lift the Company Commander and 

Gnr/Opr Behera threatened him to leave the Company Commander otherwise 

he would shoot him. Soon thereafter Gnr/Opr Behera came to the site again 

and fired another burst of rounds on the Company Commander. The witness 

has categorically stated that during the entire sequence of events, he had not 

seen the petitioner anywhere and nobody came to help him through out this 

entire episode. It was only when the witness was able to disarm Gnr/Opr 

Behera, and with the help of few other soldiers tie him to a tree, that the 

petitioner arrived. Thereafter, the witness and few other soldiers got busy in 

evacuating the Company Commander for medical treatment. Even during this 

time, the witness did not see the Petitioner anywhere. To a direct question, 

the witness has reiterated that Gnr/Opr Behera belongs to No. 11 Platoon and 

the Petitioner was his Platoon Commander. The witness has also stated that 

he was not in possession of his personal weapon during the entire incident 

and during the entire episode, he did not pass any instruction to the accused 

because he was not present and had he been present, he would have passed 

directions to him. The witness has also stated that after him the Petitioner was 

the next seniormost JCO in the Company. The witness has also stated that 

whenever there is a Fidayeen Attack, the nominated party performs the drill of 

tackling the Fidayeen Attack while other persons take up battle positions. The 

witness has also stated that since he was preoccupied with trying to disarm 


Gnr/Opr Behera, he was not in a position to pass any executive order or to 

take a weapon from any person of the Company to shoot Gnr/Opr Behera. 

14. L/Nk Fiyaz Ahamed (PW-2). He was performing the duties of 

intelligence gathering at the Regimental Police Gate of „D‟ Company on 

31.10.2006 when he was posted to 28 Rashtriya Rifles Battalion. He was on 

duty alongwith two other soldier i.e. Rfn Ajay Kumar who was with him outside 

the gate, while Rfn Naveen Kumar was inside the post. Thereafter, he has 

testified the same facts as PW-1 about the return of Company Commander 

from Area Domination Patrol. When he heard the sound of firing, he though it 

was a Fidayeen Attack and took cover. He then saw Gnr/Opr Behera 

approaching the living area of the JCO and shouting “Kahan Hai Chamkila”. 

He also saw the senior JCO, Sub Paramjit Singh (PW-1), pleading with 

Gnr/Opr Behera. The witness then went to attend to the injured Company 

Commander who was lying in a prone position when Gnr/Opr Behera 

threatened him to go away. The witness has testified that during the entire 

episode, no other JCO except Sub Paramjit Singh took control of the situation. 

The witness has time and again stated that during the entire incident the only 

JCO who was visible was Sub Paramjit Singh. 

15. Nk Kuldeep Singh (PW-3). The witness was also posted with 28 

Rashtriya Rifles Battalion in „D‟ Company 12 Platoon on 31.10.2006. He had 

gone with the Area Domination Patrol and on return he was told that he would 

be accompanying the leave party to the vehicle point and for that he again 

wore his bullet proof jacket and was going to the telephone exchange to take 

the radio set. When he crossed Gnr/Opr Behera who was a wearing a bullet 


proof jacket and holding a weapon, the witness thought that Gnr/Opr Behera 

was also accompanying him for the duty. Immediately thereafter he heard the 

sound of a long burst of firing and presumed that it was a Fidayeen Attack. 

Soon thereafter in the commotion, he heard someone mentioning that 

Gnr/Opr Behera had shot the Company Commander. This witness has also 

testified that quite a few Jawans of 10, 11 and 12 Platoons had gathered in 

front of their location when he saw Sub Paramjit Singh trying to disarm 

Gnr/Opr Behera. This witness then saw the petitioner running towards his 

direction and the petitioner appeared to be frightened. He then saw the 

petitioner climbing the stairs of the Company Commander/QRT/telephone 

exchange building. He has also testified that apart from Sub Paramjit Singh, 

he did not see any other JCO when the other Company personnel were taking 

position near the barracks. He has also testified that he has not seen the 

Petitioner even while they were evacuating the Company Commander. The 

witness has also stated that when he saw the petitioner, the petitioner was not 

in possession of his personal weapon. 

16. Rfn Ajay Kumar (PW-4). This witness testified the facts already 

enumerated. This witness has stated that he was on sentry duty at the gate 

and when he heard the sound of firing he thought it was a Fidayeen Attack. 

The witness accompanied L/Nk Fiyaz Ahamed (PW-2) in going towards the 

Company Commander to offer assistance after he had been shot. When they 

reached the site of the incident, Gnr/Opr Behera shouted “Koi Bhi Nahi 

Ayage, Jho Bhi Ayega Goli Mar Doonga”. He has confirmed that Gnr/Opr 

Behera fired again at the Company Commander and it was only thereafter he 

handed over his weapon to Sub Paramjit Singh. He has testified that the 


entire incident must have taken between 5 to 7 minutes and during the entire 

episode no other JCO except Sub Paramjit Singh had taken any action. 

17. Hav Surinder Kumar (PW-5). This witness was also posted with No. 11 

Platoon „D‟ Company of 28 Rashtriya Rifles Battalion on 31.10.2006. He was 

officiating as the Company Hav Maj on the date of the incident and has 

testified to the same facts as the other witnesses. He had been ordered by the 

petitioner to send the leave party to the vehicle site so that they could go to 

the Battalion HQ. At the same time, he heard a long burst of firing and thought 

that it was a Fidayeen Attack. He wore his bullet proof jacket and helmet and 

took his personal weapon and came to the Company HQ where he saw 

Gnr/Opr Behera standing near the volleyball ground and firing two rounds in 

the air when Sub Paramjit Singh was requesting him to handover his weapon. 

He has also stated that during the entire incident till Gnr/Opr Behera had been 

neutralized, no other JCO had taken any positive action to defuse the 

situation. It was only when Gnr/Opr Behera had been tied to a tree that the 

Petitioner made an appearance. 

18. Gnr/Opr Suresh Chandra Behera, 28 Rashtriya Rifles Battalion (PW-6) 

was the next witness. His testimony revolves upon his action of killing the 

Company Commander, however, in his testimony he has at a few places 

mentioned that the petitioner used derogatory language against him and his 

family members and that he was mentally disturbed because of the attitude of 

Lt Col Saket Saxena and the Petitioner who used to taunt him. However, the 

witness has not been able to get any corroborative evidence about any of the 

occasions when the petitioner taunted him. 


19. Signalman Deepak Kumar (PW-7). He was posted with „D‟ Company 

28 Rashtriya Rifles Battalion on the day of the incident and was performing 

the duties of telephone exchange operator when Lt Col Saket Saxena was 

shot by Gnr/Opr Behera. He also heard the sound of firing and presumed it to 

be a Fidayeen Attack. Approximately 3 to 4 minutes after the firing, the 

witness received a telephone call from the Company Hav Maj Office asking 

him to call for an ambulance because the Company Commander had been 

shot by Gnr/Opr Behera. The witness passed this message to the unit and 

approximately 5 to 7 minutes thereafter the petitioner came to the telephone 

exchange. Petitioner appeared to be nervous and frightened and told the 

witness that “Gnr/Opr Suresh Chandra Behera ne Officer Commanding Sahib 

par goli mar di aur mere ko bhi dhoond raha hai”. After stating that petitioner 

stayed in the telephone exchange for another 2 to 3 minutes. The witness 

denied that the petitioner had asked him to pass any information to the 

Battalion HQ or that the Petitioner had given any other orders to him. In cross 

examination, this witness has again stated that he was unaware as to why 

petitioner came to the telephone exchange but he reiterated that he had not 

been asked to pass any information by the petitioner. The witness has also 

stated that the petitioner was not carrying any weapon and neither did he 

borrow any weapon from the witness. The witness has also stated that he and 

S/M Pawan Kumar both were present in the telephone exchange and that the 

petitioner had not given any orders to them. 

20. Hav Purushottam Lal (PW-8). He was also posted to „D‟ Company 28 

Rashtriya Rifles Battalion on the date of the incident and belongs to No. 10 

Platoon. He had accompanied the Company Commander on the Area 


Domination Patrol. He has also testified the same facts as the other 

witnesses. 

21. Learned counsel for the respondents argued that the gist of the matter 

was that when such a calamitous situation occurred on the post, petitioner 

was the Platoon Cdr of Gnr/Opr Behera as well as the second senior most 

JCO present at the post. When he knew that his Company Commander had 

been shot, he has not taken any action to take control of the situation and to 

neutralize Gnr/Opr Behera. His role was all the more important since the 

senior JCO Sub Paramjit Singh was involved in attempting to talk Gnr/Opr 

Behera into surrender and, therefore, Sub Paramjit Singh‟s entire focus was 

on that task. It was, therefore, on the Petitioner to take stock of the situation 

and pass directions to approximately 50 armed solider who were present at 

the post at that time and take prompt and positive action to neutralize Gnr/Opr 

Behera. 

22. Whenever a solider runs amuck, there is no limit to the causalities or 

damage that he can cause. Although in this case Gnr/Opr Behera did not 

injure or kill anybody else, the scope and potential for him to damage, kill or 

injure other persons on the post was tremendous. Accordingly, a very solemn 

responsibility was vested on all Commanders at such times, i.e. to stop 

commotion and confusion prevalent at such time, and to restore some sense 

of battle discipline. For example, defence witness No. 5 Nk Ram Bilas himself 

has stated that “had a JCO given him direct order to shoot Gnr/Opr Behera, I 

would have done so, if not on the body at least on the legs so as to 

incapacitate him”. This reaction given by one of the defence witnesses speaks 


volumes for what in actual fact the Petitioner should have done. To the 

contrary, he has during the entire incident concentrated merely on saving his 

skin. There is no doubt that Gnr/Opr Behera was targeting the Petitioner. It 

was for him to take positive action against Gnr/Opr Behera so as to prevent 

further damage to him as well as to other occupants of the post. By 

concentrating only on his self preservation, thereby subjecting other personnel 

on the post to increased risk, he has violated the cardinal principle of authority 

in a battle situation. 

23. Learned counsel for the Respondents stated that even the defence 

witnesses have not provided any evidence to support the petitioner. Rfn 

Naveen Kumar (DW-1) has stated that “I only saw Sub Paramjit Singh during 

the entire episode”. “I did not see any other JCO”. “I did not see the accused 

helping Sub Paramjit Singh in controlling the situation”. “I neither heard nor 

saw the accused passing any instruction/order to anyone during the whole 

incident”. On re-examination by the defence counsel the witness has stated 

that “by the expression control of the situation, I mean whoever was senior will 

pass order to control the situation”. S/M Pawan Kumar (DW-2) has also 

categorically denied that anybody had taken his personal weapon from the 

exchange because he had not given his personal weapon to anybody and 

neither had anybody returned his personal weapon to him thereafter. Col. 

Methil Siva Kumar (DW-3) was the CO of 28 Rashtriya Rifles Battalion at the 

time of incident. Even he has given evidence against the petitioner in that he 

has stated “when I spoke to Gnr/Opr Behera he told me that he was 

humiliated on number of times by the petitioner and also certain sarcastic 

comments passed on his wife by taking her name as Binapani”. The witness 


has clarified that by sarcastic he means derogatory remarks hurting a 

person‟s self respect and pride. The witness went on to state that “second 

burst on the Company Commander was not prevented because of lack of 

reaction from those in the near vicinity, the lack of response of QRT and more 

so failure on the part of Platoon Commanders to seize the initiative and 

control the situation. The Platoon Commanders were missing for a long time 

till Gnr/Opr Behera handed over his weapon.” 

24. Learned counsel for the Respondents summed up by stating that all in 

all the response of the Petitioner showed cowardice in the face of the enemy 

wherein the petitioner all along focused and concentrated merely on self 

preservation and had not taken any action to neutralize Gnr/Opr Behera. 

There were at least 50 armed persons at the post within 100 meters of the site 

of the incident and he could have ordered these troops to take action against 

Gnr/Opr Behera. It is by his inaction that he has displayed cowardice and 

these facts have been amply proved by the testimony of not only prosecution 

witnesses but also the defence witnesses. 

25. We have heard learned counsel for the parties at length and perused 

the original record of the SGCM. There is no legal infirmity in the trial and 

neither has the Petitioner been denied his legal rights. The evidence on 

record clearly establishes that during the entire incident in which Lt. Col. 

Saket Saxena was shot the Petitioner did not take any action to control the 

situation. This was despite the fact that he was the second seniormost 

person on the post after Subedar Paramjit Singh, and was also the Platoon 

Commander of Gnr/Opr Suresh Chandra Behera who had shot Lt. Col. Saket 


Saxena. In view of the evidence that has been produced during the SGCM, 

we do not find any need to interfere with the sentence and findings of the 

SGCM. The petition is dismissed with no order as to costs. 

New Delhi 

July 03,2012 

mk/dn 

A.K. MATHUR 

(Chairperson) 

S.S. DHILLON 

(Member)

No. 9777 of 2009 Ex. Sube - Armed Forces Tribunal

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