Ex-LT Col PK Tiwari v. Union of India

1. Rule. Rule made returnable forthwith. With the consent of parties, the matter is heard finally.

2. The Petitioner assails the Judgment and Order dated 17th January 2024 passed by the Armed Forces Tribunal, (‘AFT’) Mumbai Bench in Original Application (‘OA’) No. 227/2021 as well as the Judgment and Order dated 19th March 2021 passed by the General Court Martial (‘GCM’) convened by the Respondent Army Authorities, to try the Petitioner for offences punishable under Section 69 of the Army Act 1950. (“AA”)

3. Section 69 of the AA provides for trial by Court Martial for commission of a civil offence and punishment as prescribed under the said provision. Section 3 (ii) of AA defines ‘civil offence’ to mean an offence which is triable by a criminal court. The Petitioner was thus, tried by the Court Martial for two charges under Section 69 AA, firstly, for allegedly committing aggravating sexual offence under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO”) and secondly, for allegedly committing sexual harassment under Section 12 of the same Act.

4. The alleged incident took place on 1st February 2020. Summary of Evidence (‘SoE’) was taken down by the Commanding Officer, followed by issuance of a convening order dated 21st January 2021 of the General Court Martial. Charges were framed. Post trial, the GCM returned a finding of guilt of the Petitioner. He was sentenced to the minimum punishment of 5 years imprisonment under relevant sections of POCSO. He was also sentenced to be cashiered from service. As per procedure, the Confirming Authority duly confirmed the findings of the Court Martial. Representation under Section 164(2) AA against the Finding and Sentence of the GCM was made on behalf of the Petitioner to the competent authority and was dismissed. The sentence was promulgated by the competent authority. The Petitioner challenged the Finding and Sentence of GCM before the AFT, Mumbai Bench by filing an OA, which was also dismissed by the AFT. It is this Judgment and Order which is assailed by the Petitioner in the present petition under Article 226 /227 of the Constitution of India.

5. Article 227 (4) takes away the power of superintendence of the High Court for matters emanating from court martial under Section 15 of the AFT Act. However, as affirmed by the Supreme Court in the matter of Union of India & Others vs Parashotam Dass[1] exercise of powers of judicial review by the High Court under Article 226 is not diluted even for matters dealing with courts-martial. It is a settled position of law that the High Courts, under Article 226, have the power of judicial review even in respect of courts martial and the High Court can grant appropriate relief “if the assailed proceedings have resulted in denial of the fundamental rights guaranteed under Part III of the Constitution or if the said proceedings suffer from a jurisdictional error or any error of law apparent on the face of the record.” While dealing with the issue whether existence of provision of statutory appeal against the final decision or Order of AFT under Section 30 and 31 of the AFT Act, prohibits exercise of powers of judicial review by High Courts, pertaining to such orders, under their 226 jurisdiction, the Supreme Court in the Parashotam Das (supra) decision, held as under: “28...To deny the High Court to correct any error which the Armed Forces Tribunal may fall into, even in exercising jurisdiction under Article 226, would be against the constitutional scheme. The first independent judicial scrutiny is only by the Armed Forces Tribunal. To say that in some matters, a judicial scrutiny would amount to a second appeal, would not be the correct way to look at it. What should be kept in mind is that in administrative jurisprudence, at least two independent judicial scrutinies should not be denied, in our view. A High Court Judge has immense experience. In any exercise of jurisdiction under Article 226, the High Courts are quite conscious of the scope and nature of jurisdiction, which in turn would depend on the nature of the matter.

29. We believe that there is no necessity to carve out certain cases from the scope of judicial review under Article 226 of the Constitution, as was suggested by the learned Additional Solicitor General. It was enunciated in the Constitution Bench judgment in S.N. Mukherjee case that even in respect of courts-martial, the High Court could grant appropriate relief in a certain scenario as envisaged therein, i.e., “if the said proceedings have resulted in denial of the fundamental rights guaranteed under Part III of the Constitution or if the said proceedings suffer from a jurisdictional error or any error of law apparent on the face of the record.

30. How can courts countenance a scenario where even in the aforesaid position, a party is left remediless? It would neither be legal nor appropriate for this Court to say something to the contrary or restrict the aforesaid observation enunciated in the Constitution Bench judgment in S.N. Mukherjee case. We would loath to carve out any exceptions, including the ones enumerated by the learned Additional Solicitor General extracted aforesaid as irrespective of the nature of the matter, if there is a denial of a fundamental right under Part III of the Constitution or there is a jurisdictional error or error apparent on the face of the record, the High Court can exercise its jurisdiction. There appears to be a misconception that the High Court would re-appreciate the evidence, thereby making it into a second appeal, etc. We believe that the High Courts are quite conscious of the parameters within which the jurisdiction is to be exercised, and those principles, in turn, are also already enunciated by this Court.”

6. It is thus, in the exercise and limits of our Article 226 jurisdiction of judicial review that we deal with the challenge in the present petition. The case against the Petitioner is that he joined his posting in Army Sports Institute in Pune on 31st January 2020. On the next date he went to the MT NCO ( Mechanical Transport) when the complainant Havildar ABC ( name masked) reported for duty. After polite conversation, the Petitioner told the said Havildar to bring his children to meet the Petitioner. Havildar ABC went to the residence which was nearby and brought his son aged 8 years and daughter aged 11 years to meet the Petitioner. The Petitioner was chatting with the kids. He told the complainant that he knew palmistry and took the hand of his 11 year old daughter and started studying the same. He asked the Complainant to bring a pen. The Complainant left the room to bring a pen and his son followed him out of the room. When he returned in approximately 2 minutes, he found his daughter crying. She came to him and told him that the Petitioner touched her thigh inappropriately and asked her if he could kiss her. When she declined, he again asked her if he could kiss her as a friend. The Complainant immediately called the Commanding Officer. He came and the Petitioner was taken to the Officers’ Mess. Thereafter, the Summary of Evidence was recorded and convening order was passed to convene the GCM which eventually resulted in the impugned order.

7. The petition was initially placed before a Learned Single Bench of this Court and by its Order dated 31st January 2024, this Court issued notice to the Respondent and directed that the effect, operation and implementation of the Judgment and Order impugned shall remain stayed. Accordingly, the Petitioner is not detained and his liberty stands protected till date. The petition is now placed before us, the matter being one to be heard by a Division Bench and in term of our roster.

8. Ms. Sakshi Jha, learned counsel appears for the Petitioner and Mr. Amarendra Mishra learned counsel, represents the Respondent NO. 1. Mr. Ashish Satpute, learned APP represents the State of Maharashtra.

9. Ms. Jha took us through the findings of the GCM and that of the AFT, Mumbai Bench. According to her, the evidence of the Petitioner was not appreciated properly by the GCM and these grounds raised by her before the AFT were not considered while affirming the findings of the GCM. Her contentions are as follows: i) The initial complaint of the Havildar-Complainant was not processed properly. It was written by the Havildar and not by his 11 year old daughter. There is no signature of acknowledgement on the complaint of any officer to indicate who received it. ii) The GCM and AFT failed to appreciate the motive of the Havildar-Complainant in making the false complaint which was that the Petitioner denied permission to the Havildar to attend a Map Reading Course in spite of his requests to do so and the complaint was simply as a grudge for this issue. Iii) Prosecution did not prove the age of the daughter and did not submit her original birth certificate. iv) Sexual intent as is the ingredient in Section 10 and 12 of the POCSO Act, was not proved. v) Court of Inquiry was not directed in the alleged incident. vi) Medical examination of the minor girl was not conducted, as required under the provisions of POCSO Act. Vii) There are discrepancies in the statements of the minor daughter. Viii) The Petitioner interacted with the minor daughter as a grandfather and father figure without any ill will or bad intention. Thus, accordingly the Petitioner, the entire story was cooked up. On these and allied grounds, Ms. Jha urged us to allow the petition.

10. Per contra, Mr. Mishra contended that it is not mandatory on the part of the Army authorities to conduct a court of Inquiry in all cases. By a reasoned decision, the HQ MG&G area (Disciplinary & Vigilance) in consultation with the Southern Command (DV) decided to proceed straight away for recording the Summary of Evidence for expeditious delivery of justice. He countenanced the allegation of the Petitioner regarding a perceived grudge of Petitioner against the Havildar-Complainant by saying that there is no evidence to suggest that the compliant was motivated out of revenge for not selecting him for Map Reading exercise. It is in fact stated that the Havildar-Complainant was actually granted permission to attend the Map Reading Course even before the Petition joined the unit. Mr. Mishra also raised a legitimate issue as to why the Petitioner told the Havildar-Complainant to bring his children to meet him, when the Petitioner joined the posting only one day prior and was not even substantially acquainted with the Havildar-Complainant to want to meet his children. Mr. Mishra also submitted that insofar as the proof of age of the victim is concerned, the prosecution produced on record the original birth certificate issued by the Government of Uttar Pradesh. It bears the seal and monogram of the government with her name as well as her parents’ name. It is further pointed out that in any case, the Petitioner never seriously challenged the age of the minor daughter before the GCM and no suggestion was also given in the cross examination in that regard. Regarding the objection that the minor girl was not subjected to a medical examination contemplated under POCSO Act, it is contended that Section 164A of Cr.PC is for medical examination of a rape victim and although the present case relates to an aggravated sexual assault on the minor girl, the incident related to the Petitioner inappropriately touching the minor girl on her thigh and requesting to kiss her. There was no bodily injury which was neglected to be examined by the medical authorities. He submits that thus, failure of medical examination in this particular case was not fatal to the prosecution.

11. Mr. Mishra also drew our attention to the findings of the GCM relating to the victim’s evidence. The GCM has specifically recorded their satisfaction of finding the statement and version of the story of the victim to be absolutely trust worthy. Her evidence is corroborated by the evidence of PW[1] to PW 7. In fact she narrated her ordeal immediately to her father and the father in turn in formed his Commanding Officer promptly. Two other officers were also called who took the Petitioner to the Officers’ Mess. Although they did not see the incident, the chain of events are succinctly narrated by them. Most importantly, Mr. Mishra states that the incident per se is not denied by the Petitioner. All he says is that his intent was not inappropriate but his touch and conduct was purely motivated by a sentiment of fatherly nature. The Petitioner continues to state that he merely requested for a kiss from the young girl out of fatherly or grandfatherly affection and there was no sexual assault as the kind contemplated under the POCSO Act. Mr. Mishra thus, justified the findings and sentence of the GCM and defends the AFT, Mumbai Bench, Order and prays for dismissal of the present petition.

12. We have heard the counsels of both the parties and perused the records with their assistance.

13. At the very outset, as discussed the herein above, the scope of our intervention is limited. We shall only examine if there is a denial of a fundamental right under Part III of the Constitution of the Petitioner or there is a jurisdictional error or error apparent on the face of the record to warrant interference in the findings of the GCM which evidence has already been substantially re-appreciated by the AFT, Mumbai Bench. We have gone through the provisions of the Army Act and the Army Rules, 1954 (‘Army Rules’) made thereunder. Section 177 of the Army Rules relating to assembling a Court of Inquiry (‘CoI’) to collect evidence and report regarding any matter assigned to the CoI. It is settled law that Rule 177 does not mandate that a CoI must be invariably set up in each and every case prior to recording of SoE or convening a GCM. It is only if the competent authority is of the view that evidence requires to be collected, that the authorities may decide to constitute a CoI for the purpose of collecting evidence. It is merely in the nature of a Fact Finding Inquiry which is not mandatory under the AA nor the Army Rules. Hence, this argument raised by the Petitioner has no substance.