VERMA, J. - (1.) THE petitioner Ishwar D Naik, Ex-JC 195007f sub (DMT) of 44 Medium Regiment attached to the 18 th Infantry Division Ordinance was on visiting terms with the Nayab Subedar P. R. Dutta. THEy were serving together in the same unit at Bikaner. Mr. Dutta was transferred to Ambala. THE petitioner went to Ambala and stayed with Mr. Dutta. On 15. 11. 1993 in the absence of Mr. Dutta, the petitioner is said to have sexually molested Smt. Bhanu Dutta W/o P. R. Dutta. A complaint was submitted to the unit, copy of which is attached as Annexure-1. THE complaint was to the effect that the lady was sexually assaulted including rape. After holding some enquiry, the petitioner was Court Martialled as per charge Annex. 2. THEre were six charges u/sec. 69 of the Army Act to the effect that on 24. 5. 1992, 13. 7. 1992, 19. 2. 1993, 13. 7. 1993. 4. 10. 93 & 15. 11. 93 i. e. on six occasions on different dates, the petitioner had committed adultery on the lady and was accused of the charges of adultery u/sec. 497 IPC.
(2.) EVEN though the allegations as levelled were of rape, but no report was made immediately, no FIR was lodged and lady was not even subjected to medical examination. Vide order Annexure-4, the Commanding Officer had intimated that for the reason that the allegations of rape had been made, therefore, it cannot be tried by a Court martial under the Army Act. Yet vide another letter Annex-5 by the Commanding Officer, it was reported that Smt. Bhanu Dutta is a civilian and not under the Army Act; the rape is a civil offence under the Army Act and not triable under the said provisions of the Act; for the reason that she was not medically examined and the FIR was to be lodged with the police station and for the reasons that the matter was not immediately reported and in the absence of the primafacie evidence it was difficult to prove the offence, the recommendations were made for dropping the proceedings. A summary enquiry was held. Statement of Smt. Bhanu Dutta was recorded. After the summary recording of evidence and after framing of the charge, the petitioner had pleaded not guilty and stated that no trial could be held under Army Act in view of the complaint. Closing address by the defence was submitted holding the accused to be guilty on al the charges. Sentence was passed on 14. 2. 1995. He was sentenced for R. I. for three months and to be dismissed from service. Reply has been filed. It is stated in they reply that the action taken in the Court Martial was within the para-meters of the Army Act. The only point being raised by the counsel for the petitioner is that the complaint of rape was made by the complainant and for the reason that there was no evidence what- so-ever for the rape, the summary trial had been converted into the charge of adultery. Sec. 70 of the Army Act provides as under:- "70. Civil offences not triable by court-martial:- A person subject to this Act who commits an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be trial by a court-martial unless he commits any of the said (a) while on active service, or (b) at any place outside India, or (c) at a frontier post specified by the Central Government by notification in this behalf. ' Counsel for the petitioner relies on the judgment of the Supreme Court in Union of India and Ors. vs. Naik Subedar Baleshwar Ram and Others (1), wherein the Commanding Officer of unit had reported that no case was made out against the respondents, it was held that the High Court was justified in setting aside order or conviction and punishment. In the case of naik Subedar Baleshwar Ram, a General Court Martial was conducted, definite charges were given; ultimately on the basis of summary evidence available all the three persons were found guilty, convicted and sentenced. The order of dismissal from service had followed. In the writ petition filed before the High Court of Guahati relying on the case of Lt. Col. Prithi Pal Singh Bedi vs. Union of India (2), it was held that the proceedings of the General Court Martial was in violation of the mandatory provisions of the Army Rules. It was not disputed that the Commanding Officer of the unit had stated before the General Court Martial that he did not find any case against two of the accused. The conclusion reached by the Commanding Officer seemed to be reasonable.
(3.) RELIANCE is also placed on the judgment of Major G. S. Sodhi vs. Union of India (3), wherein it was held that the Army officer dismissed from service by court martial and where no punishment of forfeiture of pension or other service benefits inflicted by court martial, it was held that the dismissed officer was entitled to entire pension, gratuity and provident fund under the rules. Relying in the case of Lt. Col. T. S. Harbans Singh Sandhu vs. Union of India (4), decided on 22. 11. 1978 and Ex. N. Sub. R. K. Sharma vs. Chief of the Army Staff, in (5), the Court had observed that the Court Martial had not inflicted punishment for forfeiture of pension or other service benefits and, therefore, the officer was entitled to these benefits. Direction was given to the respondent to pay the entire pension, gratuity provident fund to each of the petitioners. Reliance is also placed on the case of Tej Singh vs. State (6), on the point that where there was any complaint, the accused was prosecuted u/sec. 366 and 376 IPC, the Sessions Court had found that the offence u/sec. 376 IPC had not been established, but minor offence u/sec. 497 was made out at trial. It was held that the report to the police by the husband and his subsequent statement in support of police case cannot be treated as complaint. The question arose whether in a case where the husband had lodged a complaint with the police but had not filed that complaint before the Magistrate for action being taken u/sec. 497, the accused could be punished for the offence where a case u/sec. 497 had been made out against him at the trial, or whether the complaint made by the husband and its subsequent statement in the case for the witness could be held to be a complaint within the meaning of Sec. 199 Cr. P. C. It was held that the complaint u/sec. 99 Cr. P. C. is limited to a complaint as defined in Sec. 4 of that Code and was not capable of a more liberal interpretation. It was held that the essential ingredients of the complaint u/sec. 4 (1) (h) unless a different intention appears from the subject or context are (1) the allegation made orally or in writing to a Magistrate, (2) with a view to his taking action under this Code, and (3) stating that some person whether known or unknown has committed as offence. Counsel for the respondent submits that there is amendment to the Regulation 16 and 113 of the Pension Regulation of Army wherein a decision has been taken that all the Army personnel including commissioned officers who are cashiered/dismissed under the provisions of Army Act, 1950 or removed under Ar 14 i. e. as a measure of penalty will be ineligible for pension or gratuity in respect of all previous service. In exceptional cases, however, the competent authority on submission of an appeal to that effect may at his discretion sanction pension/gratuity or both at a rate not exceeding that which would be otherwise admissible had the individual so cashiered/dismissed/removed been retired/discharged on the same date in the normal manner. In view of the above-said order, the contention of the petitioner that he is entitled to pension need not be discussed any further. ;