Decided on February 26,1993

UNION OF INDIA Respondents


V.K.Gupta, J. - (1.)At the relevant time, the petitioner was serving in the office of Garrison Engineer at Samba and was attached with 4th Bn. Rajputana Rifles. The petitioner who was holding the rank of Naik in the Army was charged under section 69 of the Army Act for committing a civil offence contrary to section 497 of the RPC. The gravamen of the charge ran thus: at Samba between 29 September 1990 and 11 July 1992, committed adultery, with Mrs. Dorathy Vasanthi Kumari, well knowing her to be the wife of SL 3906 W Lieutenant B Murugesh of Garrison Engineer, Samba, without the consent or connivance of the said lieutenant B Murugesh. Because the petitioner pleaded not guilty to the aforesaid charge, he was tried by a Summary Court Martial (SCM for short) held at Samba from 28 Sept. 1992. Based on the petitionerTs plea of not guilty. some witnesses were examined by the SCM which included Lt. Beeman Murugesh and his wife Mrs. Dorathy Vasanthi Kumari. In fact, as is apparent from the perusal of charges, petitioner was charged with having committed adultery with the aforesaid Mrs. Dorathy Vasanthi Kumari to whom the petitioner was alleged to be knowing the wife of the aforesaid Lieutenant B. Murugesh. After the conclusion of the trial by the SCM, the petitioner was found guilty of the charge leveled against him and on being thus found guilty was convicted of the charge sentenced to suffer rigorous imprisonment for 12 months to be carried out by confinement in Civil Prison. The SCM also recommended for the dismissal of petitioner from service and for being reduced to ranks. The sentence was announced on 28 Sept. 1992. It is this conviction and sentence awarded which has been challenged by him in this petition filed under Article 226 of the Constitution of India.
(2.)The petitioner has taken two grounds of challenge while assailing and challenging the finding of guilty returned against him as also the sentence imposed by the SCM. First of all it is submitted that the SCM proceeded to try the petitioner without proper and sufficient evidence. If the evidence recorded by the SCM was to be appreciated in correct perspective, he could not have been convicted of the charge leveled against him. Secondly it is submitted that the basic principles of criminal jurisprudence have been violated in this case because of the non-observance of the mandatory requirement of prosecuting the lady with whom the petitioner was alleged to have committed an adultery namely Mrs. Dorathy Vasanthi Kumari wife of Lt. B. Murugesh. In support of this contention, reliance is placed upon the interpretation put by the learned Counsel for the petitioner on section 497, RPC.
(3.)Appearing for the respondents Mr. A.V. Gupta, learned Sr. CGSC submitted that on both the Court is, the petition did not have any merit and should be dismissed. According to Mr. Gupta, the SCM proceeded to charge and try the petitioner and ultimately convicted and sentenced him for the charge u/s. 69 of the Army Act read with section 497 RPC on sufficient, plausible and cogent evidence and that it was only after the evidence was properly and correctly appreciated by the SCM, that the petitioner was found guilty of the charge. In so far as the second ground of attack in concerned, Mr. A V Gupta while rebutting the same, submitted that it was not at all mandatory requirement of law that the petitioner and Mrs. Dorathy Vasanthi Kumari the alleged adultress should have been jointly tried in a common trial or that Mrs. Dorathy Vasanthi Kumari at any rate must have been tried at all by a, criminal court.

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