H.L. Gokhale, CJ. - (1.) HEARD Mr. Bhanot, in support of this appeal. Mr. Y.K. Agarwal with Lt. Cdr. G.D. Mukerji, appears for the respondent.
(2.) THIS appeal filed by the Union of India through the Chief of Army Staff and. its officers seeks to challenge the order passed by a learned Single Judge allowing the writ petition filed by the respondent herein. The learned Single Judge by the impugned judgment and order dated 25.9.2003 has quashed and set aside the sentence awarded to the respondent in summary Court Martial on 6.7.1992 and subsequent order rejecting the annulment thereof vide order dated 10.4.1993. The short facts leading to this appeal are this wise. The respondent herein joined the Indian Army on 18.7.1975 and at the relevant time in year 1992 was deployed with the 8th Bn. Brigade of the Guards in Assam in the counter insurgency operation as stated in paragraphs 6 and 10 of the counter to the writ petition affirmed by Capt. Pankaj Saxena. It so transpired that in the night of 4.1.1992 at about 10:00 p.m., the respondent entered into the house of one Sri Dhaneshwar Das and tried to molest his wife (the name of lady is borne on the record of the writ petition, but it is purposely not mentioned in this judgment). The wife of Sri Dhaneshwar Das had gone out of her house to fetch water and was returning with a bucket full of water in one hand and an oil lamp in the other. The respondent was sitting in front of her house. He put out the lamp in her hand. She woke up her husband immediately. The respondent was drunk. The lady offered him a stool to sit but instead he sat on the bed. She asked him if he would like to have Tamul', but he caught her wrist and pulled her towards him. She ran and caught her husband from behind. The respondent caught her blouse and tried to force his hand inside. The lady got scared and ran out to the house of one Sri Chandeshwar situated nearby and slept inside that house with his daughter. Much later, she came back to her house with Smt. Sona Devi wife of Sri Chandeshwar to get her clothes. She spent her night in the house of Sri Chandeshwar. Houses of Dhaneshwar Das and Chandeshwar Singh were situated near Army Camp and they immediately contacted the persons over there and brought the incident to the notice of the Subedar Major and the members of the Armed Forces. Immediately, they arranged a test identification parade and the respondent was identified by Dhaneshwar Das. The respondent was charged on three counts; (i) under Section 69 of the Army Act, 1950 for using criminal force to a woman with intent to outrage her modesty; (ii) under Section 39 (d) of the Army Act, 1950 for being absent from his place of duty and (iii) under Section 48 of the Army Act, 1950 for intoxication. A summary Court martial was held on 6.7.1992 by the third appellant-Commanding Officer of the 8th Bn. Brigade of Guards for the aforesaid three charges. The respondent was held guilty and by the order passed on the same day, the following punishments were awarded to the respondent: (a) to be reduced to the ranks; (b) to undergo six months rigorous imprisonment; and (c) to be dismissed from the service.
(3.) THE respondent suffered the imprisonment where after on 1.3.1993 he filed a petition under Section 165 of the Army Act, 1950, addressed to the Commander, Headquarters 44 Mountain Brigade, who is appellant No. 2 herein for annulment of the proceedings of the summary Court martial. This petition was rejected by the order passed by the second appellant by his order dated 10.4.1993. Being aggrieved by these two orders dated 6.7.1992 and 10.4.1993, the respondent herein filed a writ petition, bearing No. 5707 of 1994. The matter was heard by a learned Single Judge. It was canvassed before the learned Single Judge that there was a breach of Army Rule 33 (7) and that the respondent was not provided with the summary of evidence 96 hours in advance contrary to the said rule, it was also submitted that he was not informed about the charges nor was he given an opportunity as required under Rule 34 of the said rules and that he was not provided with a 'Friend of the accused' as required under Rule 129 thereof. It was submitted on behalf of the respondent that the charge-sheet was served on 6.7.1992 and the summary Court martial was commenced and concluded on the same day. The learned Single Judge accepted those submissions and held that since the procedures as prescribed by the Army Act and Rules had not been followed, while conducting the trial, the summary Court martial proceedings were vitiated. He, therefore, set aside both those orders and allowed the writ petition by his judgment and order dated 25.9.2003.;