Union of India and Others vs Ishwar D. Naik

Anupinder Singh Grewal, J.—This special appeal is directed against the order dated 03.08.2001 passed by the Single Bench whereby the writ petition preferred by the respondent Ishwar D. Naik was allowed and the order of Court Martial by which he was sentenced to three months imprisonment as well as dismissal from service was set aside and the respondent was held to be entitled to all consequential benefits.

The respondent was working as Subedar in the Indian Army. He had earlier served at Bikaner whereat Naib Subedar P.R. Dutta was also posted. They had become close friends and their families were also residing in different portions of the same house at Bikaner. Subsequently, Naib Subedar P.R. Dutta was posted at Ambala. It is stated that the respondent had also visited him at Ambala. On 15.11.1993, the respondent is alleged to have sexually assaulted Smt. Bhanu Dutta wife of P.R. Dutta. After a couple of days, Smt. Bhanu Dutta and her husband filed a complaint before the army authorities. In the complaint it is stated that she had been sexually assaulted by the respondent on 15.11.1993. A copy of the complaint was also annexed as Annexure-1 to the petition. Col. B.U. Kumar, Commanding Officer - 44 Med. Regiment C/o 56 APO in February, 1994 vide Annexure-4 had categorically stated that the allegations in the complaint had disclosed the alleged commission of rape which could not be tried by Court Martial. It is also mentioned by the Commanding Officer that although the alleged occurrence had taken place on 15.11.1993, the matter was reported by the lady to her husband two days later and no FIR had been lodged by either lady or her husband. The lady was also not subjected to any medical examination. Subsequently, Lt. Col. A.K. More vide his confidential letter dated 04.07.1994 (Annexure-5) had also recommended that in the absence of prima-facie evidence, non-medical examination of victim and non-lodging of FIR with the police in reasonable time, it would be very difficult for any body to establish the alleged rape in any Court of Law. He had recommended that the case be dropped and closed for default and lack of evidence after recording that Army cannot try the accused. However, the army authorities did not allow the matter to rest and a summary inquiry was held wherein the statement of Smt. Bhanu Dutta was recorded. After recording of evidence and framing of charges, the respondent had pleaded not guilty and even stated that in view of the allegations he could not be tried under the Army Act. However, on conclusion of the Court Martial proceedings, the respondent was held guilty on all the charges and vide order dated 14.02.1995 he was sentenced to three months rigorous imprisonment and dismissed from service.

Learned Additional Solicitor General appearing on behalf of the appellants has submitted that the Single Bench could not have gone into the findings recorded in the Court Martial proceedings and re-appreciate the evidence as if exercising appellate jurisdiction. He has submitted that the scope of judicial review or interference by the courts in such matters is extremely limited. In support of his submission he has relied upon the judgment of the Hon''ble Supreme Court in the case of Union of India and another Vs. B.C. Chaturvedi - (1995)6 SCC 750. He has further submitted that under Section 164 of the Army Act, there is an alternative remedy for challenging the finding or sentence of court-martial by preferring a petition to the Central Government (the Chief of Army Staff) or any other prescribed officer superior in command to the one who confirmed such finding or sentence. The respondent without having availed the alternative remedy has instead rushed to invoke the extraordinary writ jurisdiction and hence the petition should have been dismissed on this ground alone.

On the contrary, learned counsel for the respondent has submitted that the findings of the court-martial were without jurisdiction and hence they have been rightly set aside by the Single Bench. In support of his submission, he has placed reliance on the judgment of the Hon''ble Supreme Court in the case of Union of India (UOI) and Others Vs. Naik Subedar Baleshwar Ram and Others, and the judgment of Allahabad High Court in the case of Tej Singh Vs. State, . He has further submitted that the respondent has not been paid pension, gratuity and provident fund even though no specific order, as required in law for denying the same, has been passed. In support of his submission, learned counsel for the respondent has placed reliance on the judgment of the Hon''ble Supreme Court in the case of Major G.S. Sodhi Vs. Union of India (UOI), .

We have heard learned counsel for the parties and perused the record.

At the outset, we deem it necessary to reproduce hereunder the complaint (Annexure-1) filed against the respondent.

"From:- Mis Bhanu Dutta

W/o Nhi/Sub () 142 A.D. Regt (SD) C/o-65 Apo- Col K.R. Kumar Co-44 Med Regt C/o 56 Apo

It is borne out from the perusal of the complaint that the allegations which had been levelled against the respondent are that he had sexually assaulted the complainant. Even in the letter dated 28.03.1994 (Annexure-3), the complainant had reiterated that no action had been taken against the respondent on her earlier complaint. It is necessary to refer to Section 70 of the Army Act, 1950 which stipulates civil offences which are not triable by court-martial. For ready reference, section 70 of the Army Act is reproduced hereunder:

"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 offences-

(a) while on active service, or

(b) at any place outside India, or

(c) at a frontier post specified by the Central Government by notification in this behalf."

A bare reading of Section 70 of the Army Act reveals that when a person subject to the Act commits an offence of rape against a person not subject to Act, he cannot be tried by court-martial. The respondent being a Junior Commanding Officer was subject to the Army Act while the complainant is not subject to the Act.

The offence of rape is defined under section 375 IPC (as it then was) which reads as under:

"Rape - A man is said to commit ''rape'' who, except in the case hereunder excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:

Firstly - Against her will,

Secondly - without her consent,

Thirdly - with her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly - with or without her consent, when she is under sixteen years of age.

Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape."

From a bare perusal of Section 375 IPC, it is patent that to constitute the offence of rape, the act has to be without the consent of the lady or when her consent is obtained by putting her under threat or fear. On the contrary, the underlining element to constitute an offence of adultery is that such intercourse must not amount to rape.

Section 497 IPC defines the act of adultery which is reproduced as under:

"Adultery - Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall be punishable as an abettor."

The three ingredients to constitute the offence of adultery are (i) sexual intercourse by a man with a woman whom he knows or believes to be the wife of another man; (ii) such sexual intercourse must be without the consent or connivance of the husband; and (iii) such sexual intercourse must not amount to rape. It is thus specified in the definition of adultery that sexual intercourse must be such which would not amount to rape. It does not leave any manner of doubt that in case the act is with the consent of woman, then it cannot constitute the offence of rape while consent of the lady is inherent in the act of adultery.

The allegations levelled against the respondent by the complainant were of sexual assault and hence constitute the offence of rape. It is only after the army authorities had opined that they could not proceed any further in the allegations of rape which could not be tried in view of the embargo under Section 70 of the Army Act, that subsequently charges were framed for the offence of adultery. One does get an impression from the perusal of the record that the army authorities were bent upon punishing the respondent and hence they have tried to bring the matter under their jurisdiction by trying him for adultery which was never the case either at the first instance or even subsequently. It is also noteworthy that the husband of the complainant has nowhere levelled allegations that this act amounted to adultery even though in terms of section 497 IPC it is the husband who is the aggrieved person. Even in the statement in the summary proceedings before the court martial, the husband of the complainant had stated that the accused had forcibly sexual intercourse with his wife. The husband of the complainant was specifically asked in the cross examination as to why he did not file the complaint and in answer thereto he had reiterated that the accused had forcible sexual intercourse with his wife. The question No. 12 asked in his cross examination by the accused and his answer thereto are reproduced hereunder:

"Question-12. Your wife has complaint against me to CO 44 Med Regt. why did you not complain in stead?

Answer-12. You have forced, enticed and indulged in sexual intercourse with my wife against her will, that is why she has complaint against you. I had also made complaint to Commanding Officer 142 AD Regt (SP) through my Battery Commander Major T.S. Virdi as already brought out."

Even the complainant in her deposition before the court martial had stated that the accused had intercourse forcibly with her. In reply to the question as to why she had not disclosed the incident to her husband earlier she had stated that the accused had threatened that he will kill her husband and son in case she disclosed the incident to anyone.

It is, thus, evident that the allegations of lady against the respondent were that the act was committed against her will and without her consent or that the consent had been obtained by putting her under threat or fear. The alleged offence fell under the definition of rape and could not have been tried by the army authorities. Therefore, the conclusion arrived at by both the two Commanding Officers, namely; Col. B.U. Kumar and Lt. Col. A.K. More vide communications dated 09.02.1994 (Annexure-4) and 04.07.1994 (Annexure-5) respectively that the case could not be tried by the court martial cannot be faulted in any manner. Thus, there was no occasion or evidence before the army authorities to have gone ahead with the court martial.

There is no dispute about the principle of law enunciated by the Hon''ble Supreme Court in the case of B.C. Chaturvedi (supra) that the scope for judicial review in the action of disciplinary authorities would be extremely limited and the court does not act as an appellate authority to re-appreciate the evidence to arrive at its own independent finding. This judgment is clearly distinguishable on facts and not applicable to the instant case as it pertains to an officer who had been found to be in possession of assets disproportionate to his known sources of income.

Reference may be made to the decision of the Hon''ble Supreme Court in the case of Union of India (UOI) and Others Vs. Naik Subedar Baleshwar Ram and Others, , wherein it was held that in case the proceedings of the general court martial were in violation of the mandatory provisions of the Army Rules, it was justifiable for the High Court to set aside the same.

We also draw support from the judgment of Union of India (UOI) and Others Vs. Bodupalli Gopalaswami, , wherein it is held that the courts while exercising judicial review would interfere in the proceedings of court martial in case they are without or beyond jurisdiction or that the findings are perverse or arbitrary. The relevant part of the judgment is reproduced as under:

"24. The principles relating to judicial review in regard to court-martial proceedings are well settled. Unless the Court Martial has acted without jurisdiction, or exceeded its jurisdiction or had acted perversely or arbitrarily, the proceedings and decision of the Court Martial will not be interfered in exercise of the power of judicial review."

The Hon''ble Supreme Court in the case of State Bank of Bikaner and Jaipur Vs. Nemi Chand Nalwaya, , has laid down the principles for determining perversity in the action of disciplinary authority. It has been held that the test to find out perversity is to see whether the authority acting reasonably could have arrived at such conclusion or finding on the material on record. It was held as under:

"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations."

Applying this principle to the case at hand, the findings recorded by the court-martial, as already discussed here-in-above, are such that no reasonable man under the given fact situation would endorse or arrive at the same. No reasonable or prudent person can countenance the fact that the allegations in the complaint pointing towards the act of rape are subsequently held to constitute an offence of adultery. It was never the case of the complainant or her husband that the complainant was the consenting party in the act committed by the respondent.

It is also true that the interference in the findings of the army authorities is normally not called for especially when they are required to maintain discipline in the armed forces. However, it is equally true that the armed forces personnel who while risking their lives bravely defend the frontiers of our country are also entitled to fair play when they are subject to disciplinary action. The Hon''ble Supreme Court in the case of Union of India and Another Vs. Charanjit S. Gill and Others, , while relying upon the judgment of the Hon''ble Supreme Court in the case of Lt.-Col. Prithi Pal Singh Bedi and Others Vs. Union of India (UOI) and Others, had even observed that the law relating to court martial needs to be changed and until it is changed, it is the duty of the courts to safeguard the constitutional rights of the armed forces personnel. It was held as under:

"10. Despite the lapse of about two decades neither Parliament nor the Central Government appears to have realised their constitutional obligations, as were expected by this Court, except amending Rule 62 providing that after recording the finding in each charge the court shall give brief reasons in support thereof. The Judge Advocate has been obliged to record or caused to be recorded brief reasons in the proceedings. Even today the law relating to the Armed Forces remains static which requires to be changed keeping in view the observations made by this Court in Lt.-Col. Prithi Pal Singh Bedi and Others Vs. Union of India (UOI) and Others, , the constitutional mandate and the changes effected by other democratic countries. The time has come to allay the apprehension of all concerned that the system of trial by Court Martial was not the archetype of summary and arbitrary proceedings.

In the absence of effective steps taken by Parliament and the Central Government, it is the constitutional obligation of the courts in the country to protect and safeguard the constitutional rights of all citizens including the persons enrolled in the Armed Forces to the extent permissible under law by not forgetting the paramount need of maintaining the discipline in the Armed Forces of the country.

In so far as submission of the learned counsel for the appellants that the respondent had an alternative remedy under section 164 of the Army Act by presenting a petition before the authorities is concerned, we are of the considered opinion that this argument does not merit acceptance. The writ petition was filed in the year 1995 which was decided in the year 2001. The appellants had thereafter filed special appeal in the year 2001 which had remained pending adjudication for nearly 14 years. Therefore, it would be wholly inequitable to non-suit the respondent on this ground at this stage.

Furthermore, it is well settled that the existence of an alternative remedy is not an absolute bar to exercise writ jurisdiction especially under various circumstances which include when impugned order is without jurisdiction or in violation of the principles of natural justice. It is a rule of discretion rather than a rule of law. We have already held that the impugned findings of the court-martial were wholly without jurisdiction as the army authorities have tried to usurp or assume jurisdiction in a matter which was to be referred to the civil authorities and hence the writ petition was fully competent and deserved to be entertained by the Single Bench. We would be failing in our duty in case the disciplinary action without jurisdiction, as in the instant case, is not set aside.

In view of the foregoing discussions, we do not find any justification to interfere with the well reasoned order of the Single Bench setting aside the findings of the court-martial.

In the result, the appeal is dismissed with no order as to costs. The respondent shall be entitled to be reinstated from the date of dismissal with all consequential benefits including 50% of salary along with all retiral benefits.