- (1.) R. B. Mehrotra, J. Sri Luxman Giri was enrolled in the Army in the year 1970 and was promoted the rank of Havaldar and appointed as Company Havaldar Major in 15th Battalion Mehar Regiment. In November, 1985 the petitioner was posted with 15th Battalion, Mehar Regiment. During this period a complaint was filed against Sri Luxman Giri under Section-354, IPC by one Sri Ragho Singh on the allegation that Sri Laxman Giri has molested his wife. However, subsequently the aforesaid Ragho Singh himself moved an application that Sri Luxman Giri had not molested his wife but accidentally due to darkness in the way he had collided with his wife after Bara Khana and since the matter has been compromised the complaint be dropped. On the aforesaid basis, no cognizance was taken on the complaint of Sri Ragho Singh. Both the persons again submitted compromise during February 1986 but the Commanding Officer did not take cognizance of such compromise. How ever, on the complaint of said Sri Ragho Singh a trial by summary court-martial was held under the Army Act against Havaldar, Luxman Giri and the summary court-martial held Luxman Giri guilty of the charges of criminal force to a woman with an intent to outrage her modesty. The summary court-martial held Sri Luxrnan Ghi guilty of the said charge and directed inflicting of following punishment : (i) be reduced to rank, (ii) to suffer rigorous imprisonment for nine months and directed that the sentence of rigourous imprisonment shall be carried out by confinement in vigil prison, and (iii) to be dismissed from service.
(2.) LUXMAN Giri has filed the present writ petition challenging the aforesaid order of the court-martial. I have heard Sri B. N. Rai, learned counsel for the petitioner and Sri Shishir Kumar, learned Standing Counsel, appearing for Union of India and other respondents. An interim application moved by the petitioner has been rejected by this Court vide order dated 7-9- 1993. The respondents have filed their counter affidavit. So far as the punishment of serving imprisonment of nine months is concerned, since there was no stay order, I presume that the petitioner must have served the said sentence. The learned counsel for the petitioner has at the outset challenged the aforesaid order, of summary court martial on the ground of being in violation of Section-120 (2) of the Army Act read with Army Rules 130 and Defence Services Regulations para-405. The respondents have filed a supplementary affidavit, bringing on record that in compliance with Rule 130, after recording summary of evidence, and having been found that the petitioner has committed offence, he was tried, thereafter the complete proceeding was placed before the Commandant Officer, 15th Mehar Regiment for the purposes of recommen dation of the petitioner under-trial. A reference to this effect and recommendation dated 21-11-1986 by Commanding Officer are filed as Annexure-S. A. 1. In reply to the aforesaid supplementary affidavit, a supplementary rejoinder affidavit has been filed wherein it has been stated that the reference, as contemplated under Section-120 (2) of the Army Act read with Army Rule 130 has been completely ignored and no certificate, as contem plated under Section 120 (2) read with Rule-130 has been attached with the proceeding of the summary court martial. The letter filed with the supple mentary affidavit as Annexure-S. C. A. 1 is only an opinion of the Command ing Officer, dated 21-11-1986. The said opinion cannot be termed as a reference in the present context.
(3.) THEREAFTER several times the counsel for Union of India was given time to produce the record of the court martial, to establish it on record that the compliance of Section-120 (2) of the Army Act read with Rule 13 of the Army Rules was made and requisite certificate was obtained before proceed ing with the summary trial. The time was granted initially on 29-3-1995, then on 8-9-1995 and then the matter was directed to be listed on 22-9-1995 peremptorily. On 22-9-1995 a statement was made that the record will be definitely produced before the Court on 20-10-1995 Despite the said assu rance, the record was not produced on 20-10-1995 and the Judgment was reserved. On the basis of the aforesaid proceedings, I am clearly of the view that no reference was made as required under Section 120 (2) of the Army Act read with Rule 130 of the Army Rules. Section 69 of the Army Act only talks of civil offence. The peti tioner was admittedly punished under Section 69 of the Army Act for a civil offence. The relevant provisions are being noted below. Section 120 (2) Army Act : "120 (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 or' 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. " Rule 130, Army Rules : "130. Memorandum to be attached to proceedings.-explanatory memorandum is to be attached to the proceedings when a summary court-martial tries, without reference, an offence which should not ordinarily be so tried. Note-See Army Act, Section 120, and notes thereto. This explana tion should invariably be attached. If the officer holding the trial loses sight of the law and tries without reference to any of the offences mentioned in Army Act, Section 130, without consi dering whether grave reasons for immediate action exist or not, the trial is illegal. " Regnlation-458 : Army Regulations. "458 : Reference to the Judge Advocate General's Department before Trial-In all cases for trial by General Court-Martial, and all cases under Army Act, of indecency, fraud, theft, except ordi nary theft, and civil offences except simple assaults, the charge sheet and summary of evidence, and all the exhibits will be referred by the convening officer to the Deputy UAG of the command before trial is ordered. The convening officer should also refer for advice any other cases of doubt or difficulty. In all cases the doubts or difficulties and the matters on which advice is required will be specifically stated in the applications. ";