Petitioner challenged quashing of Summary Court Martial proceedings leading to dismissal and imprisonment for outraging modesty. Court upheld validity of guilty plea and fitness of court martial jurisdiction under Army Act, dismissing writ petition.
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CWP No.4801 of 2013
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.4801 of 2013
Date of Decision: 11.04.2013
Rajinder Singh ...Petitioner
Versus
Armed Forces Tribunal,
Regional Bench Chandigarh and others ....Respondents
CORAM: HON'BLE MR. JUSTICE S.S. SARON HON'BLE MR. JUSTICE S.P. BANGARH
Present: Mr. G.S.Ghuman, Advocate for the petitioner.
S.S. SARON, J.
The petitioner seeks quashing of the judgment dated 01.02.2013 (Annexure P-10) passed by the Armed Forces Tribunal, Regional Bench Chandigarh at Chandimandir ('the Tribunal'-for short) (respondent No.1) and also for quashing the Summary Court Martial proceedings dated 15.10.1998 (Annexure P-3 colly) whereby the petitioner has been dismissed from service and sentenced to undergo rigorous imprisonment for nine months in the Civil Jail at Patiala (respondent No.7). A further prayer has been made for directing the Chief of the Army Staff (respondent No.3) and Commandant, Corps of Signals, Records Office, Jabalpur (MP) (respondent No.4) to reinstate him in service with all consequential benefits.
The petitioner was posted with 15 Rashtriya Rifles (14 CR) at Sopore, Jammu and Kashmir in the year 1998. Subsequently he was convicted and has undergone his imprisonment at Civil Jail, Patiala. On completing his sentence he is residing at village Mandoor, Tehsil and Distt. Ambala. The petitioner earlier filed Crl. Writ Petition No.899 of 2009 in this Court. The same was transferred to the Tribunal (respondent No.1) and numbered as TA No.677 of 2010. The order dated 01.02.2013 (Annexure P-10) has been passed by the Tribunal (respondent
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No.1) within the territorial jurisdiction of this Court.
The case of the petitioner is that he was recruited by way of open recruitment in the Corps of Signals in the month of October, 1995 at Ambala. He was posted as Signalman at Bhopal (MP). Thereafter he was sent on deputation with 15 Rashtriya Rifles (14 GR) at Sopore in the State of Jammu and Kashmir. The terrorism it is submitted was at its peak in the State of Jammu and Kasmir during the posting of the petitioner. The petitioner was posted with D-Company, 15 Rashtriya Rifles on 25.08.1998. On 29.08.1998 one Junior Commissioned Officer and 15 other ranks including the petitioner were deputed to undertake a special operation from 07.30 am onwards till detachment and it returned to the base at 12.30 pm. The detachment was thereafter debriefed by Major H. S. Thind Officiating Company Commander, D-Company, 15 Rashtriya Rifles. On the said dated i.e. 29.08.1998 at about 3.30 pm a lady along with her child was seen under suspicious circumstances near the Company premises. The petitioner asked the lady to prove her identity and reasons for loitering near the Company premises. The lady did not give any answer but was clad in 'burka' (veil). The petitioner, therefore, had no option but to detain her and her child for interrogation. She was suspected to be a terrorist. The lady with the intent to evade the questioning regarding her identity started crying. The petitioner immediately returned to his barrack and informed his Platoon commander regarding the detention of that lady at the sentry post. After about half a hour, group of villagers along with Civil Police reached the office of the Company Commander. The Company Commander asked all the personnel present in the camp to assemble for identification parade. During the identification prade, the said lady levelled false allegations that the petitioner had raped her and even criminally assaulted her.
A court of inquiry was held by the formation headquarters from 01.09.1998 to 03.09.1998. Eleven witnesses were examined by the court of inquiry. The report of the court of inquiry it is submitted has never been supplied
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to the petitioner. The petitioner filed Crl. Writ Petition No.899 of 2009 (Annexure P-1) in this Court.
Col. R. S. Jasrotia, the then Commanding Officer, 15 Rashtriya Rifles (respondent No.6) ordered recording of Summary of Evidence against the petitioner by one Major Milan Mathur on 04.09.1998 after a gap of about 7 days of the occurrence. Statements of eight prosecution witnesses were recorded in English and signatures of all the witnesses were obtained either by way of thumb impressions or signatures in Urdu or Hindi. The statement of the petitioner was also recorded. The Summary of Evidence recorded on 07.09.1998 is annexed with the petition as Annexure P-1 (colly). Col. R. S. Jasrotia the then Commanding Officer (respondent No.6) on the basis of Summary of Evidence, prepared a charge-sheet and served the same on the petitioner through adjutant of the battalion. Col. R. S. Jasrotia the then Commanding Officer (respondent No.6) who ordered the recording of summary of evidence and had prepared the charge-sheet convened the Summary Court Martial against the petitioner. The proceedings dated 15.10.1998 Annexure P-3 (colly) of the Summary Court Martial is annexed. The petitioner it is stated wrote numerous letters regarding the injustice being done by the Commandant, Corps of Signals (respondent No.4). The last letter is dated 15.10.1998 Annexure P-4 (colly) requesting for report of medical examination to be conducted at Civil Hospital, Baramula pursuant to the alleged rape by the petitioner as recorded in FIR No.288 of 1998 at Police Station Sopore. The petitioner was tried by Summary Court Martial conducted by Col. R. S. Jasrotia the then Commanding Officer (respondent No.6). He was awarded rigorous imprisonment for nine months and was dismissed from service vide order dated 15.10.1998 Annexure P-4 (colly) without giving him due opportunity and in the garb of external pressure that he would be acquitted. It is submitted that the petitioner within 20 minutes of the trial was sentenced to nine months of imprisonment and dismissed from service. He was taken to Civil Jail, Patiala
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(respondent No.7) to undergo his sentence of imprisonment. From Patiala the petitioner posted a post confirmation petition under Section 164(2) of the Army Act. The same was rejected vide Annexure P-5 (colly) by Chief of Army Staff, Army Headquarters, South Block, DHQ, New Delhi (respondent No.3) without assigning him any reason. The same was not communicated to the petitioner till 19.06.2009. The petitioner posted numerous letters regarding the illegal and unconstitutional punishment inflicted upon him. The last representation was posted vide Registered No.9757 and 9758 dated 10.04.2008 Annexure P-6 (colly). Another confirmation petition (Annexure P-7 colly) was posted through his counsel but the same had been returned with the remarks that right of redressal under Section 164(2) of the Army Act had already been availed by the petitioner.
In response to the petition before the Tribunal (respondent No.1), respondents No.2 to 7 filed reply dated 20.04.2010 (Annexure P-8). An affidavit (Annexure P-9) of Major M. K. Pandit was also filed before the Tribunal (respondent No.1). The Tribunal dismissed the petition vide order dated 01.02.2013 (Annexure P-10). Aggrieved against the same, the petitioner has filed the present petition.
We have heard Mr. G. S. Ghuman, Advocate, learned counsel for the petitioner and with his assistance gone through the records of the case.
Mr. G. S. Ghuman, Advocate has referred to Section 70 of the Army Act and contended that the allegations against the petitioner are of committing rape with a lady and the said offence could not be tried by a Court Martial in view of the provisions of Section 70 of the Army Act; besides, it is submitted that the petitioner was not aware of the procedure and he was made to give a concession which has resulted in grave prejudice to him. Therefore, the entire proceedings are vitiated.
We have given our thoughtful consideration to the matter. The allegations against the petitioner are that while he was on duty with 15 Rashtriya Rifles at
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Sopore he committed an act of outraging the modesty of a woman. A photostat copy of the Court Martial proceedings has been submitted during the course of hearing. A perusal of the same shows that he was charge-sheeted vide chargesheet dated 07.10.1998 (Annexure P-2 colly) under Section 69 of the Army Act of committing a civil offence that is to say using criminal force to a woman with an intent to outrage her modesty contrary to Section 354 of the Ranbir Penal Code. It is alleged that the petitioner at 13.10 hours on 29.08.1998 used criminal force against the lady by forcibly placing his hands on her breast thereby intending to outrage her modesty. In the Court proceedings of the Summary Court Martial held on 15.10.1998 (Annexure P-3 colly) conducted by Col R. S. Jasrotia Commanding Officer (respondent No.6) a question was put to him as to whether he was guilty or not guilty of the only charge preferred against him. He answered 'guilty'. Before recording the plea of guilty of the accused, the Court explained to him the meaning of the charge to which he had pleaded guilty and ascertained that he understood the nature of the charge to which he had pleaded guilty. He was also informed the general effect of the said plea and the difference in procedure, which would be followed consequent to the said plea. The Court having satisfied itself that the accused (petitioner) understood the charge and the effect of his plea of guilty accepted and recorded the same. The provisions of Rule 115 (2) of the Army Rules were thus complied with. Rule 115 relates to general plea of 'Guilty' or 'Not Guilty'. The sub-Rule 2 reads as under:-
“If an accused person pleads “Guilty”, that plea shall be recorded as the finding of the court; but before it is recorded, the court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea, and in particular of the meaning of the charge to which he has pleaded guilty and of the difference in procedure which will be made by the plea of guilty, and shall advise
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him to withdraw that plea if it appears from the summary of evidence (if any) or otherwise that the accused ought to plead not guilty.”
The petitioner was further asked whether he wished to make any statement in reference to the charge or in mitigation of punishment. He stated 'yes' and further stated that he had committed a mistake and he requested that he be saved and that he would apologize to the lady but to please save him and he was ready to accept the punishment. A further question was asked as to whether he wished to call any witness as to character. He stated 'no'. Further proceedings as per photocopy of the proceedings were to be conducted on a plea of not guilty prosecution. The Court Martial gave its verdict after taking all the matters into consideration and ordered him to suffer rigorous imprisonment for nine months and directed that sentence of rigorous imprisonment shall be carried out by confinement in civil jail; besides, he was dismissed from service.
The Tribunal (respondent No.1) noticed that in the summary of evidence the petitioner was cautioned in the presence of independent witnesses in terms of Rule 23(3) of the Army Rules and he elected to make a statement which is recorded as under:-
“Do you wish to make any statement, You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence.
The accused having elected to make a statement the same is recorded hereunder:-
I No.15391345X Sigmn Rajender Singh of HQ Coy state as under:-
“ I am attached as Signal Operator with D Coy, 15 Rashtriya Rifles since 25 August 1998. The D Coy is located in village Shiv. On 27 August 1998 at approximately 0800h I spoke to H______w/o A__________ (names withheld), who was cleaning the road opposite
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the room where I am staying. On that day and on subsequent days when ever I saw her she used to make some indications to me. On 29 August 1998, I went along with the Coy Cdr at 0730h for an operation and returned back at 1230h. After that at approximately 1300h I had my lunch in my room and when I came out from my room I saw H______ w/o A__________ (names withheld) on the road. She made an indication to me with her hand towards the direction of the round hill. I understood her indication and then I took a bottle in my hand making seem I am going for natures call went towards the direction she had indicated. I met her on the track and she said something to me in Kashmiri language which I did not understand. She then indicated using her hand urging me to come ahead with her. I walked roughly 10-15 steps with her suddenly she started shouting loudly. Either she saw some body coming in our direction or she had some plan. I then ran away from that place and came back to the camp and my room. I feel that I made a mistake by getting acquainted to the girl and getting caught in such a case. I now feel sorry for the same.
The above statement has been read over to the individual in the language he understands in the presence of the independent witness and it is signed as correct.
Sd/- x x x x (JC-612087W Sub Mohan Lal Verma (Independent Witness)
Sd/- x x x x (No 15391345 Sigmn Rajender Singh)
I certify that I had cautioned the accused in terms of Army Rule 23(3). He voluntarily made the above statement which I have recorded verbatim, and he has signed it in my presence and in
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the presence of the independent witness JC-612087W Sub Mohan
Lal Verma.
Sd/- x x x x (IC-48394F Major Milan Mathur) Offr Recording S of E
Station: Field Dated: 07 Sep 98
The Tribunal (respondent No.1) noticed that the above said statement of the petitioner belies the story put forward by him in the petition of being on duty and detaining the lady as she was found loitering around under suspicious circumstances. It was also noticed that the petitioner in the summary of evidence cross-examined the lady and asked her whether she was raped by him i.e. did he consummate the final act of penetration with her. To this she stated that, “no there was no penetration”. The learned Tribunal (respondent No.1) from the above evidence on record found that it clearly emerges that the lady was not raped at the time of the incident and the petitioner was appropriately charged and tried for the offence of outraging the modesty of the lady and he could have been and was rightly tried by the Summary Court Martial. A perusal of the facts and circumstances show that the petitioner had been rightly tried, convicted and sentenced. However, the contention of the petitioner in the context of Section 70 of the Army Act which is relied upon by him may be noticed. Section 70 reads as under:-
“70.Civil offences not triable by court martial- A person subject to this Act who commits an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be tried by a court martial, unless he commits any of the said offence--
(a) while on active service, or
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(b) at any place outside India, or
(c) at a frontier post specified by the Central Government by notification in this behalf.”
A perusal of the above shows that a person subject to the Army Act who commits an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be tried by a court martial, unless he commits any of the said offences while on active service, or at any place outside India, or at a frontier post specified by the Central Government by notification in this behalf. The said provision would, however, not apply in the present case as the lady had clearly stated the petitioner did not consummate the final act of penetration and that there was no penetration. Therefore, it was not a case of rape so as to be barred of its being tried by a Court Martial in terms of Section 70 of the Act. The Hon'ble Supreme Court in Madan Lal versus Union of India, 2002 (10) SCC 185 considered the jurisdiction of a Court Martial to try an offence of attempt to rape in the context of Section 70 of the Army Act. It was held that the bar would not be applicable to an offence of attempting to commit rape. The learned counsel for the accused in the said case had inter alia contended that under the Code of Criminal Procedure the offence under Section 511 of the Indian Penal Code (IPC-for short) could be tried by which the offence attempted is triable and the offence in question being under Section 376 IPC, the same could have been tried only by the Sessions Judge and not by the Court Martial. It was held by the Hon'ble Supreme Court that the question whether the Court Martial has the jurisdiction to try a person who commits an offence has to be adjudged from the provisions of Army Act itself and not with reference to the Code of Criminal Procedure. It was held that a bare reading of Section 70 of the Army Act makes it crystal clear that a person who commits an offence of murder against a person not
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subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and cannot be tried by a Court Martial. But reading the charge against the appellant in the said case it appeared that the charge was that he attempted to commit rape. It was held that the conclusion was irresistible that in respect of an offence of attempting to commit rape and the jurisdiction of the Court Martial cannot be said to be ousted by virtue of Section 70 of the Army Act.
In the present case the charge is of outraging the modesty of a woman. Therefore, the bar sought to be invoked for the trial of the petitioner by a Court Martial in view of Section 70 of the Army Act is clearly inapplicable. Besides, it may be noticed that all due and necessary opportunities were given to the petitioner before the Summary Court Martial. Plea of guilt was recorded and he was fully apprised of the consequences and effect of the same. There has been no procedural impropriety or irregularity in the conduct of the Court Martial proceedings. Therefore, no prejudice of any kind can be said to have been caused to him.
Learned counsel for the petitioner cites Lt. Col. Prithipal Singh versus Union of India, AIR 1982 SC 1413. The said judgment, however, is not applicable to the facts of the present case and it merely provides the procedure which a Court Martial is to follow. In the present case, no procedural irregularity has been committed by the Court of Martial and neither has any been pointed out. Learned counsel further cites Balwant Singh versus Union of India, 1992 Criminal Law Journal 1712 (J & K). In the said case, it has been held that a Commanding Officer is competent to convene and consitute the Court i.e. Summary Court Martial. Sub Section (2) of Section 116 provides that the proceedings shall be attended throughout by two other persons who shall be officers or junior commissioned officers or one of either, and who shall not as
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such, be sworn or affirmed. In the present case a perusal of the Court Martial proceedings shows that the two persons were present during trial. It is mentioned that Captain Amandeep Singh (attending the trial) and Sub Major K. B. Gurang (friend of the accused) were present. Therefore, Balwant Singh's case (supra) is not appliable to the facts of the present case. Learned counsel further cites Naik Sardar Singh versus Union of India, AIR 1992 SC417. In the said case an Army Jawan was awarded punishment of three months imprisonment and dismissal from service by the Court Martial for carrying 11 bottles of Rum while going through prohibited area. The Hon'ble Supreme Court held that the punishment was too severe having regard to the nature of offence. The punishment awarded was set aside and the case was remanded to the Court Martial to award lesser punishment. The present case is not of a similar nature as the allegation in the present case are that the petitioner had outraged the modesty of a woman and he admitted and accepted his fault. Besides, the courts seldom interfere with the quantum of punishment. Learned counsel for the petitioner has also contended that the Court Martial proceedings concluded in 20 minutes from 11.15 am to 11.35 am which is the time recorded in the Court Martial proceedings and it cannot be concluded in such a short time.
We have given our thoughtful consideration to the said contention of the petitioner regarding the proceedings having been concluded and a finding of guilty being recorded and thereafter the sentence imposed in twenty minutes. The matter, in our view could have been adjudicated upon and concluded within the period of twenty minutes and we are unable to hold the proceedings to be invalid on this count. The petitioner had pleaded guilty and the proceedings recorded after informing him of its effect and consequences. This could well be concluded within the said time. A photocopy of the Court Martial proceedings has been shown during the course of hearing. A perusal of the same shows that it is on a printed form. The questions to be asked are printed and the answers are
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handwritten or typed. Besides, where ever required, the printed portions have been scored of and/or tick marked. This process could indeed have been completed in the time as has been recorded. Besides, there is a presumption in law that judicial and official acts have been regularly performed.
The petitioner has already undergone his sentence of imprisonment and the misconduct and misdemeanour on his part having been admitted and upheld by the Tribunal (respondent No.1) would not warrant interference of this court in exercise of its supervisory jurisdiction under Article 226 of the Constitution of India.
Consequently there is no merit in the petition and the same is accordingly dismissed.
(S.S. SARON) JUDGE
(S.P. BANGARH) JUDGE
11.04.2013 A.Kaundal
2 issues framed by the court
Whether Section 70 of the Army Act bars a court martial from trying an offence of outraging modesty when no rape was committed.
Whether the Summary Court Martial proceedings were valid despite the short duration of the trial.
Colour shows how this judgement treated each authority
Madan Lal versus Union of India, 2002 (10) SCC 185Referred¶64
Lt. Col. Prithipal Singh versus Union of India, AIR 1982 SC 1413Distinguished¶69
Balwant Singh versus Union of India, 1992 Criminal Law Journal 1712 (J & K)Distinguished¶69
Naik Sardar Singh versus Union of India, AIR 1992 SC417Distinguished¶69
2 provisions across 2 enactments
Rajinder Singh
Armed Forces Tribunal, Regional Bench Chandigarh
Chief of the Army Staff
Commandant, Corps of Signals, Records Office, Jabalpur
S.S. Saron
S.P. Bangarh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
