D.K.SINHA, J. - (1.) PETITIONER has invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India seeking quashment of the order impugned dated 19th October, 2007 passed by Col. S.K. Mathur, Officer Comanding 23 Inf. Div. PRO -Unit in Summary Court martial, whereby and whereunder, petitioner was sentenced to undergo rigorous imprisonment for one year and his dismissal from service. He was directed to serve out imprisonment in civil prison in Ranchi Sadar P.S. Case No. 183 of 2006 corresponding to G.R. No. 3302 of 2006. The case was transferred from the Court of Chief Judicial Magistrate Ranchi to the General Officer Commanding 23 Infantry Division, Ranchi (Respondent No. 2) permitting the petitioner to be tried under the Army Act, 1950. Petitioner further seeks his reinstatement back in service with all consequential benefits on his acquittal.
(2.) THE short facts of the case are that the petitioner was appointed as Sepoy in Indian Army on 26th September, 1996. After sometime he was posted as L/N in 23, Infantry Division Provost Unit, Ranchi in the year 2005. On account of the fact that he was found drunk during the duty hours on 26th September 2006, he was awarded punishment of severe reprimand and was sent to quarter guard arrest by the order dated 27th September, 2006 under the orders of Lt. Col. A.N. Singh, Officer Commanding, 23 Inf. Div. Pro Unit, Ranchi. Again on 27th September, 2006, one Sitara Devi lodged an FIR alleging inter alia against the petitioner Govind Choubey that he took away her daughter Rina Yadav, aged 7 years on certain pretext with his daughter Neha Kumari aged about 6 years on his motorcycle towards river side and tried to outrage the modesty of Rina Yadav by inserting his finger in her private part which resulted in profuse bleeding. Informant Sitara Devi after finding her daughter in distress took her to the Military Hospital for treatment where she alleged before the police that the petitioner had committed rape on her daughter. According, FIR was instituted and petitioner was arrested on 28.9.2006 by the Ranchi Police and he was forwarded to judicial custody. The General Officer commanding 23 Inf. Div. having come to know about the misdeeds of the petitioner decided to initiate Court Martial and accordingly the respondent -authorities moved the Court of Chief Judicial Magistrate, Ranchi. The Chief Judicial Magistrate having considered the request recorded the order by transferring the petitioner to Army custody w.e.f 14.12.2006 for his Court Martial. The petitioner was communicated by the Order dated 31st December 2006 that he would be proceeded under Summary Court Martial and was served with three charges as hereunder: ________________________________________________________________________ First Charge : | Committing a civil offence, that is to say, Army Act Section | attempting to kidnap and in such, attempt 69 | doing an act towards the commission of said | offence, contrary to Section 511 of the Indian | Penal Code read with Section 363 of the | Indian Penal Code in respect of an attempt | made to kidnap Monalisa Sahu, 11 years from | the Central School, Deepatoli on 26th | September, 2006. ____________________|___________________________________________________ Second Charge : | Committing a civil offence, that is to say, Army Act Section | attempting to kidnap and in such attempt 69 | doing, an act towards the commission of said | offence, contrary to Section 511 of the Indian | Penal Code read with Section 363 of the | Indian Penal Code in respect of an attempt | made to kidnap Kumari Subashree Rout, 11 | years, from the Central School, Deepatoli on | 26th September, 2006. ____________________|___________________________________________________ Third Charge : | Committing a civil offence, that is to say, using Army Act Section | criminal force to a woman with intent to 69 | outrage her modesty, contrary to Section 354 |of the Indian Penal Code. ____________________|___________________________________________________ Charges were explained to the petitioner to which he pleaded not guilty and accordingly proceeded under the Summary Court Martial and by order dated 19th October, 2007 petitioner was convicted of the charges and sentenced rigorous imprisonment for one year and dismissal from his service. Initiating his argument, Mr. Deepak Kumar Bharati, learned Counsel submitted that admittedly the petitioner was under quarter guard arrest on 26th September, 2006 to serve out punishment of severe reprimand as he was allegedly found under influence of intoxication during duty hours. Yet, the allegation that he attempted to outrage the modesty of a girl by taking her out on bike along with his own daughter was nothing but a concoction brought about with mala fide intention by the authorities to remove him from the service on fabricated charge - sheet. Even no medical report was brought on the record Before the Summary Court Martial to suggest that the victim girl had sustained injury on account of an attempt by the petitioner to commit rape.
(3.) ADVANCING his argument, Mr. Bharati submitted that Section 120(2) of the Army Act strictly prohibits trial by Summary Court Martial for charge under Section 69 of the Army Act and, therefore, the entire trial of the petitioner by Summary Court martial in the instant case stands vitiated. Section 120 of the Act states that subject to the provisions of Sub -section (2), a Summary Court Martial may try any offence punishable under the Act, Sub -section (2) reads as follows: (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 of 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. According to Mr. Bharati no grave reason was assigned for immediate action against the petitioner for convening summary Court Martial.;