D.K. Sinha, J.
1. Petitioner has invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India seeking quashment of the order impugned dated 19th October, 2007 passed by Col. S.K. Mathur, Officer Comanding 23 Inf. Div. PRO-Unit in Summary Court martial, whereby and whereunder, petitioner was sentenced to undergo rigorous imprisonment for one year and his dismissal from service. He was directed to serve out imprisonment in civil prison in Ranchi Sadar P.S. Case No. 183 of 2006 corresponding to G.R. No. 3302 of 2006. The case was transferred from the Court of Chief Judicial Magistrate Ranchi to the General Officer Commanding 23 Infantry Division, Ranchi (Respondent No. 2) permitting the petitioner to be tried under the Army Act, 1950. Petitioner further seeks his reinstatement back in service with all consequential benefits on his acquittal.
2. The short facts of the case are that the petitioner was appointed as Sepoy in Indian Army on 26th September, 1996. After sometime he was posted as L/N in 23, Infantry Division Provost Unit, Ranchi in the year 2005. On account of the fact that he was found drunk during the duty hours on 26th September 2006, he was awarded punishment of severe reprimand and was sent to quarter guard arrest by the order dated 27th September, 2006 under the orders of Lt. Col. A.N. Singh, Officer Commanding, 23 Inf. Div. Pro Unit, Ranchi. Again on 27th September, 2006, one Sitara Devi lodged an FIR alleging inter alia against the petitioner Govind Choubey that he took away her daughter Rina Yadav, aged 7 years on certain pretext with his daughter Neha Kumari aged about 6 years on his motorcycle towards river side and tried to outrage the modesty of Rina Yadav by inserting his finger in her private part which resulted in profuse bleeding. Informant Sitara Devi after finding her daughter in distress took her to the Military Hospital for treatment where she alleged before the police that the petitioner had committed rape on her daughter. According, FIR was instituted and petitioner was arrested on 28.9.2006 by the Ranchi Police and he was forwarded to judicial custody. The General Officer commanding 23 Inf. Div. having come to know about the misdeeds of the petitioner decided to initiate Court Martial and accordingly the respondent-authorities moved the Court of Chief Judicial Magistrate, Ranchi. The Chief Judicial Magistrate having considered the request recorded the order by transferring the petitioner to Army custody w.e.f 14.12.2006 for his Court Martial. The petitioner was communicated by the Order dated 31st December 2006 that he would be proceeded under Summary Court Martial and was served with three charges as hereunder:
________________________________________________________________________First Charge : | Committing a civil offence, that is to say,Army Act Section | attempting to kidnap and in such, attempt69 | doing an act towards the commission of said| offence, contrary to Section 511 of the Indian| Penal Code read with Section 363 of the| Indian Penal Code in respect of an attempt| made to kidnap Monalisa Sahu, 11 years from| the Central School, Deepatoli on 26th| September, 2006.____________________|___________________________________________________Second Charge : | Committing a civil offence, that is to say,Army Act Section | attempting to kidnap and in such attempt69 | doing, an act towards the commission of said| offence, contrary to Section 511 of the Indian| Penal Code read with Section 363 of the| Indian Penal Code in respect of an attempt| made to kidnap Kumari Subashree Rout, 11| years, from the Central School, Deepatoli on| 26th September, 2006.____________________|___________________________________________________Third Charge : | Committing a civil offence, that is to say, usingArmy Act Section | criminal force to a woman with intent to69 | outrage her modesty, contrary to Section 354|of the Indian Penal Code.____________________|___________________________________________________
Charges were explained to the petitioner to which he pleaded not guilty and accordingly proceeded under the Summary Court Martial and by order dated 19th October, 2007 petitioner was convicted of the charges and sentenced rigorous imprisonment for one year and dismissal from his service.
3. Initiating his argument, Mr. Deepak Kumar Bharati, learned Counsel submitted that admittedly the petitioner was under quarter guard arrest on 26th September, 2006 to serve out punishment of severe reprimand as he was allegedly found under influence of intoxication during duty hours. Yet, the allegation that he attempted to outrage the modesty of a girl by taking her out on bike along with his own daughter was nothing but a concoction brought about with mala fide intention by the authorities to remove him from the service on fabricated charge- sheet. Even no medical report was brought on the record Before the Summary Court Martial to suggest that the victim girl had sustained injury on account of an attempt by the petitioner to commit rape.
4. Advancing his argument, Mr. Bharati submitted that Section 120(2) of the Army Act strictly prohibits trial by Summary Court Martial for charge under Section 69 of the Army Act and, therefore, the entire trial of the petitioner by Summary Court martial in the instant case stands vitiated.
Section 120 of the Act states that subject to the provisions of Sub-section (2), a Summary Court Martial may try any offence punishable under the Act, Sub-section (2) reads as follows:
(2) When there is no grave reason for immediate action and reference can without detriment to discipline be made to the officer empowered to convene a district Court martial or on active service a summary general Court martial for the trial of the alleged offender, an officer holding a summary Court martial shall not try without such reference any offence punishable under any of the Sections 34, 37 and 69, or any offence against the officer holding the Court.
According to Mr. Bharati no grave reason was assigned for immediate action against the petitioner for convening summary Court Martial.
5. In a decision reported in : 1991CriLJ287 (Ex- Havindar Ratan Singh v. Union of India and Ors.), the Apex Court observed as under:
7. There is no dispute that the appellant is governed by the provisions of the Act. It is also not suggested on behalf of the respondents that there was in existence any grave reason for immediate action so as to justify trial by an officer holding summary Court martial. The operation in which the appellant was engaged was directed against the militants who were undisputedly included in the expression 'enemy' within Section 3(x). The impugned order is attempted to be justified solely on the ground that Section 36 covers the case. The argument overlooks the positions that It is not the scope of Section 36 which can answer the question raised in the present case. The issue is whether the offence is punishable under Section 34 or not. Section 36 course a wide range of offences and the scope of Section 34 is limited to a smaller area where the offence is more serious attracting more severe punishments. If the allegations are assumed to be true, then the appellant, on the militants' opening fire, shamefully abandoned the place committed to his charge and which he was under a duty to defend. Both clauses (g) and (h) are therefore, clearly attracted. The impugned trial by Summary Court Martial and the decision thereby must be held to be without jurisdiction and have to be quashed.
In the said decision, it was further observed that the Summary Court Martial cannot try an accused facing charges under Sections 34, 37 and 69 of the Army Act. and in that view of the matter the Summary Court Martial trying the petitioner for charges under Section 69 of the Army Act was illegal, barred by jurisdiction and the entire proceeding vitiated.
6. Learned counsel further contended that Section 70 of the Army Act specifically prohibits trial by any Court Martial for offence of rape if the person is not in active service, as defined under Section 3(i) of the Army Act in the instant case, petitioner was not in active service during the period of alleged occurrence and therefore, the order of General Officer Commanding for trying the petitioner by Summary Court Martial was illegal and without jurisdiction. Similarly for want of grave reason or emergency the proceeding of the petitioner by Summary Court Martial was an illegal act for want of declared war or any operation against the enemy of the State so as to call for Summary Court Martial. It was held in Ex-Havildar Ratan Singh's case (supra) that even in a case where there was operation against terrorist no Summary Court Martial could be held.
7. The learned Counsel attracted the attention by submitting that the officer of the rank of Major General not being of General Officer commanding of 23 Infantry Division Pro-Unit was not a competent officer to direct Summary Court Martial under Army Rule 22(3) (d) and therefore, the order passed by Major General was without jurisdiction. Similarly, Army Rules 22 and 180 lay down provisions for Court of Inquiry before hearing of the charges but in the instant case no Court of Inquiry as required under Rule 177 of the Army Rules 1954 was held before framing of charge against the petitioner under Section 69 of the Army Act.
8. Learned counsel further relied upon the decision reported in : AIR1996MP233 (R.R Shukla and Ors. v. Central Officer Commandlng-in-Chief, Lucknow and Ors.) wherein Division Bench observed as under.
17. Here we find that the Court of Enquiry was required by mandatory rule to observe the principles of natural justice and therefore, even during the course of investigation a Court of Enquiry cannot flout the rules of natural justice and if it does so it cannot be argued that the accused person had opportunity of hearing during the course of Summary Court- martial. The parallel here is to say as mentioned by D. Smith in the book referred above regarding the inquiry conducted by Magistrates as a preliminary investigation in respect of a charge. Here the Court of Enquiry is not only investigating a criminal charge akin to that the Magistrates do in a preliminary inquiry, as this is not a service matter but an investigation into criminal offence punishable with jail sentence. Therefore, the mandatory character of Rule 180 cannot be ignored while holding a Court-martial.
9. Finally Mr. Bharati submitted that there was no provision under Act for statutory appeal against the final order passed by the Summary Court Martial. But what the Summary Court Martial is re quired to do under the Act was to transmit the entire records to higher authority, likewise in the manner of death reference to the High Court for approval. in the present case, though an appeal has been preferred by the petitioner but the respon dent authorities have no power to decide the appeal and therefore, he had no alter native, efficacious and speedy remedy then to invoke writ jurisdiction under Article 226 of the Constitution of India for redressal of his grievance and hence relief, as sought for, may be granted.
10. Mr. Md. Mokhtar Khan. Asstt. Solicitor General, appearing on behalf of the respondents submitted that writ petitioner has projected the facts of the case in distorted form. As a matter of fact, Dr. (Mrs.) Vijay Dashmi Oraon examined the victim girl Kumari Rina Yadav on 27th September, 2007 at Sadar Hospital, Ranchi and found recent rapture of hymen and posterior fornix chattaeoedema end red Vaginal swab of Kumari Rina Yadav was taken out but no live or dead spermatozoa was found under microscopic examination. The radiologist after ossification test observed the age of victim only 7 years. In the opinion of Dr. (Mrs.) Vijay Dashmi Oraon though there was no evidence of sexual intercourse present but the lacerated injuries on private parts were due to insertion of hard substance. Petitioner was arrested by the Civil Police on the statement of the mother of the victim and was remanded to judicial custody. After it was established that the petitioner had not committed rape the case was transferred to the Army authorities in terms of Section 125 of the Army Act read with Rule 197-A of the Army Rules and paragraph 118 of the Regulations for the Army, 1987 (Revised Edition) and Section 475 of the Code of Criminal Procedure for trial of the petitioner involvement of the petitioner was further found in attempting to kidnap two miner girls and, therefore, he was charged for three offences. Petitioner was found guilty by the Summary Court Martial of all the charges and accordingly, sentenced to suffer rigorous in prisonment for one year and to be dismissed from the service were inflicted.
11. With reference to the contention made in the counter- affidavit filed on behalf of the respondents. Mr. Khan submitted that petitioner was apprised after his conviction and sentence that he could prefer appeal in case he was aggrieved by the finding or/and sentence awarded in terms of Section 164(2) of the Army Act and pursuant to that, petitioner preferred appeal on 30th October, 2007 before the General Officer Commanding-in-Chief, South Western Command, being the competent authority which was sub judice. It would not be out of place to mention Mr. Khan submitted that during pendency of the appeal before the competent authority the petitioner invoked the jurisdiction of this Court under Article 226 of the Indian Constitution which was not maintainable on the face value as he had already availed the alternative remedy under Section 164 (1) and (2) of the Army Act, 1950. In view of that, the writ petition was bereft of merit and accordingly, fit to be dismissed.
12. Having regard to the facts and circumstances of the case, I find that Section 164 of the Army Act, 1950 lays down remedy against order, finding or sentence of Court Martial which reads as under:
164 Remedy against order finding or sentence of Court martial--(1) Any person subject to this Act who considers himself aggrieved by any order passed by any Court martial may present a petition to the officer or authority empowered to confirm any finding or sentence of such Court-martial, and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates.
(2) Any person subject to this Act who considers himself aggrieved by a finding or sentence of any Court-martial which has been confirmed, may present a petition to the Central Government, the Chief of the Army Staff or any prescribed officer superior in command to the one who confirmed such finding or sentence and the Central Government, the Chief of the Army Staff or other officer as the case may be, may pass such orders thereon as it or he minks fit.
13. At the same time duty is cast upon the Summary Court Martial under Section 162 of the Army Act, 1950 which speaks:
162. Transmission of proceedings of summary Court-martial.--(I) The proceedings of every summary Court-martial shall without delay be forwarded to the officer commanding the division or brigade within which the trial was held or to the prescribed officer; and such officer, or the Chief of the Army Staff, or any officer empowered in this behalf by the Chief of the Army Staff, may, for reasons based on the merits of the case, but not any merely technical grounds, set aside the proceedings or reduce the sentence to any other sentence which the Court might have passed.
14. Admittedly, petitioner has preferred appeal before the General Officer Commanding-in-Chief, South Western Command (Anexure-C) on 30th October, 2007 against the order passed by Col. S.K. Mathur, Officer Commanding 23 Inf. Div. PRO-Unit in Summary Court Martial which is sub-judice before the competent authority. Admittedly, during pendency of that appeal petitioner invoked the writ jurisdiction of this Court under Article 226 of the Indian Constitution which is not maintainable. The golden rule is that an aggrieved cannot knock two forums simultaneously one by filing appeal and another by invoking writ jurisdiction of the High Court for common cause/relief.
15. In view of that I find and ob-serve that the writ petition of the petitioner cannot sustain. Accordingly, this writ petition is dismissed.