“You are a soldier, you can fight”

The Supreme Court on Friday dismissed an appeal filed by Lieutenant General Avadhesh Prakash, questioning the Army Tribunal's order declining to quash the court of inquiry (CoI) against him in the Sukna land scam.

A Bench of Justices V.S. Sirpurkar and Mukundakam Sharma asked the petitioner to face the inquiry to prove his innocence.

Lt. Gen. Prakash was indicted for his alleged role in issuing a ‘No-objection Certificate' to realtor Dilip Agarwal for building an educational institute on a 71-acre land adjacent to the Sukna military station in West Bengal. He and Lt. Gen. P.K. Rath were facing the CoI.

The Tribunal held that the proceedings were bad in law and the inquiry was unfair but remanded the matter back to the CoI with a direction for a de novo examination of witnesses in the presence of Lt. Gen. Prakash and permitting him to cross-examine them. He was aggrieved that the Tribunal, instead of quashing the proceedings, had asked him to report before the CoI.

In his appeal, Lt. Gen. Prakash said he retired on January 31 and was likely to face disciplinary proceedings pursuant to an attachment order. He said the CoI was not held in accordance with Army Rule 180, which required that examination (recording of statements) of witnesses be done in the presence of the accused officer. In a show-cause notice he received on January 11 certain allegations, which were completely false and baseless, were levelled against him, and he was asked to explain why administrative action in the form of a censure should not be taken against him, said Lt. Gen Prakash.

Senior counsel Mukul Rohatgi, appearing for the petitioner, said the character of the land had not changed; and the government had done nothing with the land. Moreover, the persons who were to conduct the inquiry were junior to Lt. Gen. Prakash.

Justice Sirpurkar said: “These are not valid points for consideration. After all, it is only a fact-finding inquiry. The Tribunal's order is in your favour. You have been asked to face the inquiry only as a witness. A charge sheet can be filed only if there is a prima facie case. You are fighting a losing battle. You are a soldier, you can fight.”

Mr. Rohatgi replied: “Yes, I [petitioner] will fight till the last bullet.” Justice Sirpurkar said: “You can approach the court at a later stage if you are aggrieved by the inquiry report.”

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