- (1.) This special appeal is directed against the order dated 03.08.2001 passed by the Single Bench whereby the writ petition preferred by the respondent Ishwar D. Naik was allowed and the order of Court Martial by which he was sentenced to three months imprisonment as well as dismissal from service was set aside and the respondent was held to be entitled to all consequential benefits.
(2.) The respondent was working as Subedar in the Indian Army. He had earlier served at Bikaner whereat Naib Subedar P.R. Dutta was also posted. They had become close friends and their families were also residing in different portions of the same house at Bikaner. Subsequently, Naib Subedar P.R. Dutta was posted at Ambala. It is stated that the respondent had also visited him at Ambala. On 15.11.1993, the respondent is alleged to have sexually assaulted Smt. Bhanu Dutta wife of P.R. Dutta. After a couple of days, Smt. Bhanu Dutta and her husband filed a complaint before the army authorities. In the complaint it is stated that she had been sexually assaulted by the respondent on 15.11.1993. A copy of the complaint was also annexed as Annexure-1 to the petition. Col. B.U. Kumar, Commanding Officer- 44 Med. Regiment C/o 56 APO in February, 1994 vide Annexure-4 had categorically stated that the allegations in the complaint had disclosed the alleged commission of rape which could not be tried by Court Martial. It is also mentioned by the Commanding Officer that although the alleged occurrence had taken place on 15.11.1993, the matter was reported by the lady to her husband two days later and no FIR had been lodged by either lady or her husband. The lady was also not subjected to any medical examination. Subsequently, Lt. Col. A.K. More vide his confidential letter dated 04.07.1994 (Annexure-5) had also recommended that in the absence of prima-facie evidence, non-medical examination of victim and non-lodging of FIR with the police in reasonable time, it would be very difficult for any body to establish the alleged rape in any Court of Law. He had recommended that the case be dropped and closed for default and lack of evidence after recording that Army cannot try the accused. However, the army authorities did not allow the matter to rest and a summary inquiry was held wherein the statement of Smt. Bhanu Dutta was recorded. After recording of evidence and framing of charges, the respondent had pleaded not guilty and even stated that in view of the allegations he could not be tried under the Army Act. However, on conclusion of the Court Martial proceedings, the respondent was held guilty on all the charges and vide order dated 14.02.1995 he was sentenced to three months rigorous imprisonment and dismissed from service.
(3.) Learned Additional Solicitor General appearing on behalf of the appellants has submitted that the Single Bench could not have gone into the findings recorded in the Court Martial proceedings and re-appreciate the evidence as if exercising appellate jurisdiction. He has submitted that the scope of judicial review or interference by the courts in such matters is extremely limited. In support of his submission he has relied upon the judgment of the Hon'ble Supreme Court in the case of Union of India and another Vs. B.C. Chaturvedi,1995 6 SCC 750. He has further submitted that under Section 164 of the Army Act, there is an alternative remedy for challenging the finding or sentence of court-martial by preferring a petition to the Central Government (the Chief of Army Staff) or any other prescribed officer superior in command to the one who confirmed such finding or sentence. The respondent without having availed the alternative remedy has instead rushed to invoke the extraordinary writ jurisdiction and hence the petition should have been dismissed on this ground alone.;