Ashok Bhushan, J. - (1.) -Heard Sri Rameshwar Singh and Sri S. S. Rathore advocates appearing for the appellant and Sri Shashank Shekher Singh, advocate for the respondents.
(2.) BY this appeal, the appellant has challenged the judgment of the learned single Judge dated 16th July, 2002 dismissing the Writ Petition No. 27101 of 2002 filed by the appellant. The facts giving has to this special appeal briefly stated are : "The appellant had been working as Launce Naik in Head Quarter Company, Bengal Engineer Group and Centre Roorkee. In the night of 9th January, 2001, one recruit Krishna Dolay along with Pramod Kumar Pradhan and S. K. Ray were detailed as Night Sentry in Single Officers Quarter area. Mannu Giri was detailed as Guard Commander. Recruit Krishna Dolay when performing his Sentry duty, was called by Mannu Giri the Guard Commander in his room. Krishna Dolay was given keys and asked to open Guest rooms where in the night of 9th January, 2001, Mannu Giri did unnatural act (sodomy) with recruit Krishna Dolay who narrated all the aforesaid facts in the same night to several officers. In the same night, Mannu Giri was taken in custody by the Military police, Krishna Dolay, the victim of the offence, was sent to Medical Officer, Roorkee for medical examination but since no doctor was there, he was sent back and thereafter he was sent for medical examination on 10th January, 2001. The victim was admitted in hospital and medical examination was conducted. The appellant Mannu Giri was charged with an offence punishable under Section 46 (a) of the Army Act of disgraceful conduct of unnatural kind and with offence punishable under Section 48 of the Army Act of intoxocation. The appellant was tried by the summary court-martial. In summary court-marital proceedings, the appellant was convicted and awarded punishment of dismissal from service with effect from 14th May, 2001. Against the summary court-martial proceedings, the appellant filed petition dated 11.8.2001 to the Chief of Army Staff. The Chief of Army Staff vide his order dated 13.2.2002 rejected the petition of the appellant filed against the findings and sentence of summary court-martial. The Chief of Army Staff held that the findings of the summary court-martial are supported by cogent and reliable evidence on record. Against the order dated 13.2.2002 passed by the Chief of Army Staff as well as the summary court-martial proceedings the Writ Petition No. 27101 of 2002 was filed by the appellant which has been dismissed by the learned single Judge vide his judgment dated 16th July, 2002. This special appeal has been filed against the judgment dated 16th July, 2002." The counsel appearing for the appellant have raised two submissions in support of this appeal : (i) the summary court-martial proceedings are vitiated on account of appellant not having medically examined as required by the provisions of Section 54 of the Criminal Procedure Code, 1973. (ii) The charge against the appellant was not proved by any cogent evidence. The charge having not proved, the proceedings of summary court-martial convicting and punishing the appellant are illegal. Learned standing counsel appearing for the respondents has submitted that summary court-martial proceedings were conducted in accordance with the procedure prescribed under the Army Act, 1950 and the Army Rules, 1954. He submitted that there was no requirement of appellant being medically examined. He further submitted that provisions of Criminal Procedure Code are not applicable in the summary court-martial proceedings. Learned counsel for the respondents also submitted that this Court will not interfere with summary court-martial proceedings when the summary court-martial has been held in accordance with the procedure prescribed and there was evidence to support the findings. The counsel for the respondents has relied on a decision of the Apex Court in Union of India and others v. Major A. Hussain, (1998) 1 SCC 537. Reliance has also been placed by the counsel for the respondents on Apex Court's judgment in Union of India v. Harjeet Singh Sandhu, 2001 (3) AWC 1726 (SC) : (2001) 5 SCC 593 and Union of India and others v. R. K. Sharma, 2001 (4) AWC 3222 (SC) : (2001) 9 SCC 592 and the judgment of the Apex Court in Union of India and others v. Narain Singh, (2002) 5 SCC 11.
(3.) WE have heard counsels for the parties and perused the records. The first submission of counsel for the appellant is based on Section 54 of the Criminal Procedure Code. The counsel for the appellant submitted that under Section 54 of the Criminal Procedure Code, it was incumbent on the authorities to get medical examination of the accused made. Submission is that, had the medical examination of the appellant made on that day, it would have proved that he did not commit any such unnatural act as alleged. The counsel for the appellant further submitted that the said submission was made before the learned single Judge but the learned single Judge has not examined the said contention and has observed that the complainant was medically examined. The question of non-compliance of Section 54 will arise only when the said provision is applicable in summary court-martial proceedings. Section 5 of the Criminal Procedure Code which is saving clause, clearly provides that nothing contained in this Code shall in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. Section 5 of the Criminal Procedure Code is quoted below : "5. Saving. - Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect ; any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.";