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

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,
TA No. 168 of 2010 [W.P.(C) No.9777 of 2009] Page 6 of 23