A GENERAL'S COURT MARTIAL

No sooner had the news come out that Lt Gen Avadesh Prakash (retd), former Military Secretary, had been found guilty by a General Courts Martial (GCM) in Shillong and awarded the punishment of dismissal from service, that the inevitable debate began in media and military circles.

Some argued that the punishment awarded was disproportionate to the sections under which the General had been convicted, others held the belief that he was a scapegoat in the alleged "war between the Generals'.

The facts would have been clearer had the media covered the trial on a day-to-day basis. Sometimes facts can be stranger than fiction. The eventual finding of the court and the sentence awarded can be quite surprising once one has seen the trial unfold.

The first case which comes to mind, in this regard, is that of Maj Maneesh Bhatnagar of 5 Para, who was tried in N Area, for refusing to obey a direct order to attack a feature during the Kargil operations. I started covering the trial on day to day basis and very soon others in the media fraternity followed suit. It was definitely uncomfortable for the Army authorities, but then court martials are open proceedings unless explicitly held in-camera.

And as the trial unfolded, the principal charge of disobeying a lawful command looked weak. There began a discussion on what exactly 'attack' means in military parlance and what is the nature of 'assault'.

Eventually, Maj Bhatnagar was found not guilty on this count and everyone thought he would get away with some nominal punishment. But the court found him guilty of acts prejudicial to good order and military discipline. An omnibus of charges which can be levelled for virtually any adverse act ranging from refusing to salute to refusing to wish 'Good Morning'. Maj Bhatnagar was dismissed from service.

Several scribes inside the court were stunned. But to be truthful, I had a inkling of what was in store for him. The Army would not let him off so easily for all the "tantrums" he had thrown during and before the trial. No one liked the way he was telling the truth. 'This was not done', was the common refrain.

So before we all castigate Lt Gen Aavdesh Prakash and hold his responsible for many of the ills affecting the Army and the role he played in Sukna scam, let's ponder a bit and let's not jump to conclusions; even though a GCM has found him guilty.

The main charge against him regarding Sukna scam has not been sustained during the trial. He has been found guilty of misusing his position and intent to defraud. His advocate gave out a detailed statement later in the day, which has not been carried by any newspaper or news channel. In all fairness, his version should have been given publicity. The same is reproduced at the end of this blog.

The trial, which had so many three star Generals as members, must have been fair. We cannot really expect six or seven Lt Generals to be biased in togetherness, especially when another General is facing a trial. At their level of seniority and experience, every step is taken after due deliberation.

But the law can be a complex thing to handle. And military law is no exception. And Judge Advocates may be in a position to maneouvre a trial since regular officers who are members of the GCM are often not very conversant with the provisions of CrPC, Prevention of Corruption Act or obscure provisions of Army Rules and Army Act which sometimes come into play in a trial.

However, it is true that Lt Gen Prakash could have been easily given rigorous imprisonment along with dismissal but perhaps his brother officers spared him this ignominy. Military justice can be compassionate at times.

STATEMENT BY COUNSEL OF LT GEN AVADESH PRAKASH

COURT MARTIAL FINDS LT GEN AVADHESH PRAKASH FORMER

MILITARY SECRETARY NOT GUILTY IN SUKHNA LAND SCAM CASE

General Court Martial presided over by Lt Gen Phillip Campose GOC 12 CORPS found Lt Gen

Avadhesh Prakash, former Military Secretary NOT GUILTY of the charge pertaining to Sukhna Land

Scam case.

Lt Gen Bikram Singh Army Commander Eastern Command had convened GCM for the trial of former

Military Secretary which assembled on 27 Jun 2011 at Guwahati and concluded on 02 Dec 2011.

The GENERAL Officer was tried on four charges and the main charge was under Section 13(1)(d)(ii) of

the Prevention of Corruption Act 1988 pertaining to Sukhna Land Scam case and he was found NOT

GUILTY of the charge on merit.

He was also tried on three more charges; one under Army Act Section 45 (unbecoming conduct)

whereas two were under Section 52(f) (with intent to defraud). All the three charges were basically

for misuse of official position for which he has been found guilty and awarded the sentence of

DISMISSAL from service. The truth is that as per official records, he never misused his official

position.

The trial was conducted without giving full opportunity to him to defend himself effectively. The

Court did not allow him to examine eight witnesses in defence and produce documentary evidence.

As a matter of fact the trial was without jurisdiction and had no authority to deal with the case.

When PLEA TO JURISDICTION was raised under Army Rule in Jun 2011 also, the Court did not allow

him to examine witnesses in defence. The conviction is not based on facts and law.

The findings are contrary to record of the trial proceedings which will be challenged in an

appropriate court of law.

COLONEL SK AGGARWAL , RETD

ADVOCATE

DEFENCE COUNSEL

09815558983

FLAT NO. 504/BLOCK NO. E-9

GH NO. 79

SECTOR-20

PANCHKULA-134116 HARYANA