Rajasthan High Court - Jaipur
Ishwar D. Naik vs Union Of India (Uoi) on 3 August, 2001
JUDGMENT Verma, J.
1. The petitioner Ishwar D Naik, Ex-JC 195007F sub (DMT) of 44 Medium Regiment attached to the 18th Infantry Division Ordinance was on visiting terms with the Nayab Subedar P.R. Dutta. They were serving together in the same unit at Bikaner. Mr. Dutta was transferred to Ambala, The petitioner went to Ambala and stayed with Mr. Dutta. On 15.11.1993 in the absence of Mr. Dutta, the petitioner is said to have sexually molested Smt. Bhanu Dutta W/o P.R. Dutta. A complaint was submitted to the unit, copy of which is attached as Annexure-1. The complaint was to the effect that the lady was sexually assaulted including rape. After holding some enquiry, the petitioner was Court Martialled as per charge Annex.2. There were six charges u/Section 69 of the Army Act to the effect that on 24.5.1992, 13.7.1992, 19.2.1993, 13.7.1993. 4.10.93 & 15.11.93 i.e. on six occasions on different dates, the petitioner had committed adultery on the lady and was accused of the charges of adultery u/Section 497 IPC.
2. Even though the allegations as levelled were of rape, but no report was made immediately, no FIR was lodged and lady was not even subjected to medical examination. Vide order Annexure-4, the Commanding Officer had intimated that for the reason that the allegations of rape had been made, therefore, it cannot be tried by a Court martial under the Army Act. Yet vide another letter Annex-5 by the Commanding Officer, it was reported that Smt. Bhanu Dutta is a civilian and not under the Army Act; the rape is a civil offence under the Army Act and not triable under the said provisions of the Act; for the reason that she was not medically examined and the FIR was to be lodged with the police station and for the reasons that the matter was not immediately reported and in the absence of the primafacie evidence it was difficult to prove the offence, the recommendations were made for dropping the proceedings.
3. A summary enquiry was held. Statement of Smt. Bhanu Dutta was recorded. After the summary recording of evidence and after framing of the charge, the petitioner had pleaded not guilty and stated that no trial could be held under Army Act in view of the complaint. Closing address by the defence was submitted holding the accused to be guilty on al the charges. Sentence was passed on 14.2.1995. He was sentenced for R.I. for three months and to be dismissed from service.
4. Reply has been filed. It is stated in they reply that the action taken in the Court Martial was within the para-meters of the Army Act.
5. The only point being raised by the counsel for the petitioner is that the complaint of rape was made by the complainant and for the reason that there was no evidence what so-ever for the rape, the summary trial had been converted into the charge of adultery. Section 70 of the Army Act provides 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 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 trial by a court-martial unless he commits any of the said
(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.'
6. Counsel for the petitioner relies on the judgment of the Supreme Court in Union of India and Ors. v. Naik Subedar Baleshwar Ram and Ors. (1), wherein the Commanding Officer of unit had reported that no case was made out against the respondents, it was held that the High Court was justified in setting aside order or conviction and punishment. In the case of naik Subedar Baleshwar Ram, a General Court Martial was conducted, definite charges were given; ultimately on the basis of summary evidence available alt the three persons were found guilty, convicted and sentenced. The order of dismissal from service had followed. In the writ petition filed before the High Court of Guahati relying on the case of Lt. Col. Prithi Pal Singh Bedi v. Union of India (2), it was held that the proceedings of the General Court Martial was in violation of the mandatory provisions of the Army Rules. It was not disputed that the Commanding Officer of the unit had stated before the General Court Martial that he did not find any case against two of the accused. The conclusion reached by the Commanding Officer seemed to be reasonable.
7. Reliance is also placed on the judgment of Major G.S. Sodhi v. Union of India (3), wherein it was held that the Army officer dismissed from service by court martial and where no punishment of forfeiture of pension or other service benefits inflicted by court martial, it was held that the dismissed officer was entitled to entire pension, gratuity and provident fund under the rules. Relying in the case of Lt. Col. T.S. Harbans Singh Sandhu v. Union of India (4), decided on 22.11.1978 and Ex.N.Sub. R.K. Sharma v. Chief of the Army Staff, in (5), the Court had observed that the Court Martial had not inflicted punishment for forfeiture of pension or other service benefits and, therefore, the officer was entitled to these benefits. Direction was given to the respondent to pay the entire pension, gratuity provident fund to each of the petitioners.
8. Reliance is also placed on the case of Tej Singh v. State (6), on the point that where there was any complaint, the accused was prosecuted u/Section 366 and 376 IPC, the Sessions Court had found that the offence u/Section 376 IPC had not been established, but minor offence u/Section 497 was made out at trial. It was held that the report to the police by the husband and his subsequent statement in support of police case cannot be treated as complaint. The question arose whether in a case where the husband had lodged a complaint with the police but had not filed that complaint before the Magistrate for action being taken u/Section 497, the accused could be punished for the offence where a case u/Section 497 had been made out against him at the trial, or whether the complaint made by the husband and its subsequent statement in the case for the witness could be held to be a complaint within the meaning of Section 199 Cr.P.C. It was held that the complaint u/Section 99 Cr.P.C. is limited to a complaint as defined in Section 4 of that Code and was not capable of a more liberal interpretation. It was held that the essential ingredients of the complaint u/Section 4(1)(h) unless a different intention appears from the subject or context are (1) the allegation made orally or in writing to a Magistrate, (2) with a view to his taking action under this Code, and (3) stating that some person whether known or unknown has committed as offence.
9. Counsel for the respondent submits that there is amendment to the Regulation 16 and 113 of the Pension Regulation of Army wherein a decision has been taken that alt the Army personnel including commissioned officers who are cashiered/dismissed under the provisions of Army Act, 1950 or removed under Article 14 i.e. as a measure of penalty will be ineligible for pension or gratuity in respect of all previous service. In exceptional cases, however, the competent authority on submission of an appeal to that effect may at his discretion sanction pension/gratuity or both at a rate not exceeding that which would be otherwise admissible had the individual so cashiered/dismissed/removed been retired/discharged on the same date in the normal manner. In view of the above-said order, the contention of the petitioner that he is entitled to pension need not be discussed any further.
10. Rule 22 provides of hearing of charge and the accused shall have full liberty to cross-examine any witness against him. The Commanding Officer is required to dismiss the charge brought before him, if in his opinion, the evidence does not show that an offence under the Act has been committed and may do so if he is satisfied that the charge ought not to be proceeded with, he shall without unnecessary delay dispose of the case summarily or refer the case to the superior military authority. Rule 23 prescribes the procedure for taking down the summary of evidence. The evidence of each witness is to be recorded in writing and is to be signed by him. Cross examination is allowed to the accused. According to Rule 24 where the summary evidence is taken in writing in pursuance of Rule 23 and as considered by the Commanding Officer, he can remand the accused for trial of the court martial or to proper military authority or dismiss the charge. Rule 26 relates to summary disposal of the case against Junior Commissioned Officers. It is stated that an abstract of evidence to be adduced shall be delivered to him free of charge, within 24 hours unless the accused in discharged. The matter is to be heard immediately. Rule 28 prescribes that the charge-sheet shall contain the whole issue or issues to be tried by a court martial at one time and the charge means an accusation contained in a charge-sheet that a person subject to the Act has been guilty of an offence. Rule 29 prescribes that every charge-sheet shall being with the name and description of the person charged and according to Rule 30, the charge is to be divided into two parts-statement of the offence and statement of the particulars of the act, neglect or omission constituting the offence. Rule 33 prescribes the rights of the accused. Rule 37 refers to convening of General and District Court-Martial and the officer is first to satisfy himself that the charges to be tried by the Court are for offences within the meaning of the Act and that the evidence justifies a trial on those charges, and if not so satisfied, shall order the release of the accused, or refer the case to superior authority. The composition of General Court-Martial is provided under Rule 40. The procedure at trial is contained under Rule 41 and under the Rule 42 the court is to satisfy itself that a person subject to the Act and subject to the jurisdiction of the Court and that each charge discloses the offence under the Act and is framed in accordance with these rules. Under Rule 49 the accused can plead that no offence is made out under the Act or that no offence is in accordance with the rules and the court is duty bound to consider the objection in closed court. He could even plead the special plea to the jurisdiction under Rule 51. Under Rule 58, 59 and 60, Judge advocate is to sum up. Rule 67 provides for punishment.
11. As per the report made two days after the incident of 15.11.1993, the lady Mrs. Bhanu Dutta had complained that the accused petitioner had molested her i.e. 'USKI IJJAT LOOT LEE THI' which offence was falling under the definition of rape was defined u/Section 376 IPC. Even as per Annex-1 and the complaint and subsequent complaint on 14.12.1993, copy of which is attached a Annex. 13, there were no allegations of adulatory. In February 1994 vide Annex.4, the Commanding Officer after making investigation had reported that as per the grievance, the complaint related to the rape, said to have been committed on 15.11.1993, but the lady had mentioned this fact to her husband after two days. No FIR was lodged by the lady or her husband, no medical examination was conducted, the Commanding Officer had reported that the offence cannot be trial be the Court Martial being outside the scope of Army Act. Yet by another report Annex.5, the Commanding Officer had again reported on 4.7.1993 that Mrs. Bhanu Dutta is a civilian and is not governed by Army Act and the offence is a civil offence and not triable under the Army Act for the purpose of collecting evidence which was necessary to have the medical evidence and FIR was also required to be lodged, here, it was further mentioned that the report was made on 15.11.1993 itself and had the respect been made immediately, the accused could have been arrested and handed over to civil police. The Commanding officer had recommended that the case be dropped and closed for default and lack of evidence.
12. Summary evidence is said to have been recorded in October 1994 and statement of Shri P.R. Dutta and his wife were recorded.
13. The complainants had stated that the accused were their friend and even the scooter was purchased in the name of the accused in September 1991, but the money was paid by Shri R.P. Dutta, the husband of the wife. He had stated that on 14.11.1993, the accused had come to Ambala and on 16.11.1993 he had come to know of the alleged offence of 15.11.1993 when he had found his wife to be in bad mood and it was at that time that her wife had told him that the accused and earlier as well raped her on 26.4.1992, 13.7.1992, 192.1993, on some date in July 1993, on 4.10.1993 and last on 15.11.1993. Even certain letters exchanged between the wife of Dutta and accused were also produced, it was also brought in summary evidence that the accused was slapped by the lady complaint on Delhi railway station on 30.12.1993 when they had met at the railway station. The wife complainant had also appeared in summary evidence and stated that she was raped by the accused on the dates as mentioned without her consent. She had further stated that the letters were not in the name of the accused. A summary evidence so recorded in August 1994, the accused was charged of the offence of adultry in place of the offence of rape as per charge-sheet Annex.7 by the Court martial. The accused had pleaded not guilty. It was also pleaded that no offence triable under the Army Act is made out but denying all the charges, the accused had reiterated that the offence is not triable by the Court Martial. Here in this court as well, one of the contention being raised by the petitioner is that the offence is not triable by the Court Martial outside the Army Act and the orders are without jurisdiction. However, ultimately the sentence was pronounced to the effect to suffer rigorous imprisonment for three months and to be dismissed from service.
14. Amongst other arguments being addressed, counsel for the petitioner states that as already stated no offence under the Army Act was triable as offence of rape is a civil offence under the Army Act and is to be tried by the civil court u/Section 63 of the Army Act. II is further submitted that while dismissing the service of the petitioner, no punishment of forfeiture of service, pension was passed and, therefore, even if the impugned order is upheld, the petitioner could not be deprived of forfeiture of service and pension.
15. The main argument as addressed is that the offence as complaint do not fall under the definition of 'adultery' and even if the statement of the prosecutirx or her husband is believed, it will not amount to the offence of the adultery. 'Adultery' as defined says that who is and whom the knows or has reason to believe to be the wife of another man, without the consent or connivance of that 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. The there ingredients as required under the definition of adultry are; (i) sexual intercourse by a man with a woman who is and whom he knows or has reason to believe to be the wife of another man; (ii) such sexual intercourse must be without the consent or connivance of the husband; (iii) such sexual intercourse must not amount to rape. Meaning that it is an offence committed by a third person against a husband in respect of his wife.
16. 'Rape' as defined u/Section 375 is as under:
'Rape- A man is said to commit 'rape' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
First-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 of 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.
17. In the case in the offence of 'Adultery' it is the husband who is aggrieved and complaint is required to be made by the husband as was held in the case of Tej Singh v. State (supra).
18. Section 497 reads 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.'
19. In the present case, the complaint of rape is made by Smt. Bhanu Dutta, the lady, as per the record produced it is admitted in the evidence by the husband that the petitioner had sexual intercourse with the wife without her will.
20. Bhanu Dutta has also appeared as a witness and stated that the petitioner was having intercourse with her at number of times but against her will.
21. In the case of Chemongra (8), where a case was committed the Sessions Court to send the trial of the Charge proved by a husband u/Section 376, the Sessions Judge at the trial had added charge of adultery and had acquitted the accused u/Section 367 but committed him u/Section 497, it was held that the Sessions Judge had acted without jurisdiction.
22. Annexure-1 is complaint of Bhanu Dutta about the said rape which incorporates as under:-
'That as soon as the husband of the complainant Bhanu Dutta had gone out on duty, the petitioner after closing the door had caught hold of her, put his hand on the mouth of the prosecutirx and said that If she raises any noise, he would kill her as well her husband.'
23. Similar complaint was again repeated vide Annex-3 by the prosecutirx. Even the husband in the statement had stated that the petitioner was having intercourse with his wife against her will. The prosecutirx has also appeared as witness and had stated that the petitioner was having intercourse with her on number of occasions but against her will forcibly.
24. From the above-said narration of facts and law, the alleged offence for which the complaint was made was an offence punishable u/Section 376 IPC of committing rape and as such under Rule 63 of the Army Rules, the Court Martial was not authorised to try this offence and proceedings therefore, as conducted by the Court Martial are without jurisdiction.
25. The offence of intercourse as complained by lady have been committed by the petitioner once or repeatedly against her will and with force does amount and falls within the definition of rape. In the said case even the Commanding Officer had been recommending that the offence is not triable by the Court Martial under the Army Rules and if at all it was to be tried., it could only be done by the Criminal Court under the Cr.P.C. and in my opinion, the Commanding Officer was right in saying so. Even though the husband of a married woman is bound to be aggrieved of rape having been committed by such person, but complainant in such a case should be the husband and the offence should also fall under the definition of 'adultery' u/Section 497 which clearly defines that such offence of sexual intercourse is adultery which does not involve the offence of rape. From the facts all the ingredients of rape are present in the complaint of the prosecutirx. The offence was against her will and without her consent as stated by her or that the woman submits through fear. All the three ingredients of rape are borne out and in such situation, I agree with the counsel for the petitioner that the petitioner could only be tried for the alleged rape u/Section 376 Cr.P.C. and not u/Section 497 Cr.P.C. for committing adultery as per Rule 63 of the Army Rules. The offence of rape could not have been tried by the Army authorities or by the court Martial and as such initiation of very trial of Court Martial under the Army ant is without jurisdiction and cannot be sustained in the eyes of law. Consequently, the impugned order of punishment and all consequential orders have been passed without jurisdiction by the authorities which were not competent to pass such an order and are quashed and set aside.
26. For the reasons that the order impugned is being set aside, there is hardly any necessity to adjudicate upon the poinltthat the petitioner was entitled to all benefits of service even if the was dismissed. The order of dismissal is set aside. He shall be entitled to all consequential reliefs as If he was not dismissed form service.
27. The writ petition is allowed with no order as to costs.