Bombay High Court
Ex Lt Col Pk Tiwari (Sl 04526K) vs Union Of India And Ors on 17 February, 2025
Author: Revati Mohite Dere
Bench: Revati Mohite Dere
2025:BHC-AS:7888
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2919 OF 2024
Ex-LT Col PK Tiwari (SL-04526K)
Residing At H-606, A-Wing, Daffodils,
Magarpatta City, Hadapsar, Pune ...Petitioner
Versus
1. Union of India
Through the Secretary,
Ministry of Defence, South Block
New Delhi-110001
2. Chief Of Army Staff
IHQ, MoD (Army)
Sena Bhavan, New Delhi-110011
3. LT GEN JS Jain
GoC-in-C
HQ Soughtern Command
Pune,-411001
4. Maj Gen Inderjeet Singh
General Officer Commanding
Dakshin Maharashtra & Goa Sub Area Pune
5. Brig Rajesh Verma
Commander 3 Electronic Warfare Brigade,
C/o 56 APO
Suresh 1/23
::: Uploaded on - 18/02/2025 ::: Downloaded on - 18/02/2025 22:05:01 :::
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6. Col Rakesh Yadav
Commandant, Army Sports Institute
Pune (MH)- 411023
7. XYZ
through guardian being
Mr. B.K. Chaturvedi
having Address at Army Sports Institute,
Ghorpadi, Pune 411 036 ...Respondents
Ms. Saakshi Jha a/w Mr. Ujjwal Gandhi, Mr. Prateek Dutta, Ms. Bhavi
Kapoor and Mr. Parth Govilkar, for the Petitioner.
Mr. Amarendra Mishra, for Respondent No.1
Mr. Aashish Satpute, APP for Respondent-State
CORAM : REVATI MOHITE DERE &
DR. NEELA GOKHALE, JJ.
RESERVED ON : 3rd February 2025
PRONOUNCED ON : 17th February 2025
Judgment (Per Dr. Neela Gokhale):
1. Rule. Rule made returnable forthwith. With the consent of parties,
the matter is heard finally.
2. The Petitioner assails the Judgment and Order dated 17 th January
2024 passed by the Armed Forces Tribunal, ('AFT') Mumbai Bench
in Original Application ('OA') No. 227/2021 as well as the
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Judgment and Order dated 19 th March 2021 passed by the General
Court Martial ('GCM') convened by the Respondent Army
Authorities, to try the Petitioner for offences punishable under
Section 69 of the Army Act 1950. ("AA")
3. Section 69 of the AA provides for trial by Court Martial for
commission of a civil offence and punishment as prescribed under
the said provision. Section 3 (ii) of AA defines 'civil offence' to
mean an offence which is triable by a criminal court. The Petitioner
was thus, tried by the Court Martial for two charges under Section
69 AA, firstly, for allegedly committing aggravating sexual offence
under Section 10 of the Protection of Children from Sexual
Offences Act, 2012 ('POCSO") and secondly, for allegedly
committing sexual harassment under Section 12 of the same Act.
4. The alleged incident took place on 1 st February 2020. Summary of
Evidence ('SoE') was taken down by the Commanding Officer,
followed by issuance of a convening order dated 21 st January 2021
of the General Court Martial. Charges were framed. Post trial, the
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GCM returned a finding of guilt of the Petitioner. He was sentenced
to the minimum punishment of 5 years imprisonment under
relevant sections of POCSO. He was also sentenced to be cashiered
from service. As per procedure, the Confirming Authority duly
confirmed the findings of the Court Martial. Representation under
Section 164(2) AA against the Finding and Sentence of the GCM
was made on behalf of the Petitioner to the competent authority
and was dismissed. The sentence was promulgated by the
competent authority. The Petitioner challenged the Finding and
Sentence of GCM before the AFT, Mumbai Bench by filing an OA,
which was also dismissed by the AFT. It is this Judgment and Order
which is assailed by the Petitioner in the present petition under
Article 226 /227 of the Constitution of India.
5. Article 227 (4) takes away the power of superintendence of the
High Court for matters emanating from court martial under Section
15 of the AFT Act. However, as affirmed by the Supreme Court in
the matter of Union of India & Others vs Parashotam Dass 1 exercise
1 (2023) SCC Online SC 314)
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of powers of judicial review by the High Court under Article 226 is
not diluted even for matters dealing with courts-martial. It is a
settled position of law that the High Courts, under Article 226,
have the power of judicial review even in respect of courts martial
and the High Court can grant appropriate relief "if the assailed
proceedings have resulted in denial of the fundamental rights
guaranteed under Part III of the Constitution or if the said
proceedings suffer from a jurisdictional error or any error of law
apparent on the face of the record." While dealing with the issue
whether existence of provision of statutory appeal against the final
decision or Order of AFT under Section 30 and 31 of the AFT Act,
prohibits exercise of powers of judicial review by High Courts,
pertaining to such orders, under their 226 jurisdiction, the Supreme
Court in the Parashotam Das (supra) decision, held as under:
"28...To deny the High Court to correct any error which the
Armed Forces Tribunal may fall into, even in exercising
jurisdiction under Article 226, would be against the
constitutional scheme. The first independent judicial scrutiny
is only by the Armed Forces Tribunal. To say that in some
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matters, a judicial scrutiny would amount to a second appeal,
would not be the correct way to look at it. What should be
kept in mind is that in administrative jurisprudence, at least
two independent judicial scrutinies should not be denied, in
our view. A High Court Judge has immense experience. In
any exercise of jurisdiction under Article 226, the High
Courts are quite conscious of the scope and nature of
jurisdiction, which in turn would depend on the nature of
the matter.
29. We believe that there is no necessity to carve out certain
cases from the scope of judicial review under Article 226 of
the Constitution, as was suggested by the learned Additional
Solicitor General. It was enunciated in the Constitution
Bench judgment in S.N. Mukherjee case that even in respect
of courts-martial, the High Court could grant appropriate
relief in a certain scenario as envisaged therein, i.e., "if the
said proceedings have resulted in denial of the fundamental
rights guaranteed under Part III of the Constitution or if the
said proceedings suffer from a jurisdictional error or any
error of law apparent on the face of the record.
30. How can courts countenance a scenario where even in
the aforesaid position, a party is left remediless? It would
neither be legal nor appropriate for this Court to say
something to the contrary or restrict the aforesaid
observation enunciated in the Constitution Bench judgment
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in S.N. Mukherjee case. We would loath to carve out any
exceptions, including the ones enumerated by the learned
Additional Solicitor General extracted aforesaid as
irrespective of the nature of the matter, if there is a denial of
a fundamental right under Part III of the Constitution or
there is a jurisdictional error or error apparent on the face of
the record, the High Court can exercise its jurisdiction.
There appears to be a misconception that the High Court
would re-appreciate the evidence, thereby making it into a
second appeal, etc. We believe that the High Courts are quite
conscious of the parameters within which the jurisdiction is
to be exercised, and those principles, in turn, are also already
enunciated by this Court."
6. It is thus, in the exercise and limits of our Article 226 jurisdiction
of judicial review that we deal with the challenge in the present
petition. The case against the Petitioner is that he joined his posting
in Army Sports Institute in Pune on 31st January 2020. On the next
date he went to the MT NCO ( Mechanical Transport) when the
complainant Havildar ABC ( name masked) reported for duty. After
polite conversation, the Petitioner told the said Havildar to bring
his children to meet the Petitioner. Havildar ABC went to the
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residence which was nearby and brought his son aged 8 years and
daughter aged 11 years to meet the Petitioner. The Petitioner was
chatting with the kids. He told the complainant that he knew
palmistry and took the hand of his 11 year old daughter and started
studying the same. He asked the Complainant to bring a pen. The
Complainant left the room to bring a pen and his son followed him
out of the room. When he returned in approximately 2 minutes, he
found his daughter crying. She came to him and told him that the
Petitioner touched her thigh inappropriately and asked her if he
could kiss her. When she declined, he again asked her if he could
kiss her as a friend. The Complainant immediately called the
Commanding Officer. He came and the Petitioner was taken to the
Officers' Mess. Thereafter, the Summary of Evidence was recorded
and convening order was passed to convene the GCM which
eventually resulted in the impugned order.
7. The petition was initially placed before a Learned Single Bench of
this Court and by its Order dated 31 st January 2024, this Court
issued notice to the Respondent and directed that the effect,
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operation and implementation of the Judgment and Order
impugned shall remain stayed. Accordingly, the Petitioner is not
detained and his liberty stands protected till date. The petition is
now placed before us, the matter being one to be heard by a
Division Bench and in term of our roster.
8. Ms. Sakshi Jha, learned counsel appears for the Petitioner and Mr.
Amarendra Mishra learned counsel, represents the Respondent No.
1. Mr. Ashish Satpute, learned APP represents the State of
Maharashtra.
9. Ms. Jha took us through the findings of the GCM and that of the
AFT, Mumbai Bench. According to her, the evidence of the
Petitioner was not appreciated properly by the GCM and these
grounds raised by her before the AFT were not considered while
affirming the findings of the GCM. Her contentions are as follows:
i) The initial complaint of the Havildar-Complainant was not
processed properly. It was written by the Havildar and not by his
11 year old daughter. There is no signature of acknowledgement
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on the complaint of any officer to indicate who received it.
ii) The GCM and AFT failed to appreciate the motive of the
Havildar-Complainant in making the false complaint which was
that the Petitioner denied permission to the Havildar to attend a
Map Reading Course in spite of his requests to do so and the
complaint was simply as a grudge for this issue.
Iii) Prosecution did not prove the age of the daughter and did
not submit her original birth certificate.
iv) Sexual intent as is the ingredient in Section 10 and 12 of
the POCSO Act, was not proved.
v) Court of Inquiry was not directed in the alleged incident.
vi) Medical examination of the minor girl was not conducted,
as required under the provisions of POCSO Act.
Vii) There are discrepancies in the statements of the minor
daughter.
Viii) The Petitioner interacted with the minor daughter as a
grandfather and father figure without any ill will or bad
intention. Thus, accordingly the Petitioner, the entire story was
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cooked up.
On these and allied grounds, Ms. Jha urged us to allow the
petition.
10. Per contra, Mr. Mishra contended that it is not mandatory on the
part of the Army authorities to conduct a court of Inquiry in all
cases. By a reasoned decision, the HQ MG&G area (Disciplinary
& Vigilance) in consultation with the Southern Command (DV)
decided to proceed straight away for recording the Summary of
Evidence for expeditious delivery of justice. He countenanced the
allegation of the Petitioner regarding a perceived grudge of
Petitioner against the Havildar-Complainant by saying that there
is no evidence to suggest that the compliant was motivated out of
revenge for not selecting him for Map Reading exercise. It is in
fact stated that the Havildar-Complainant was actually granted
permission to attend the Map Reading Course even before the
Petition joined the unit. Mr. Mishra also raised a legitimate issue
as to why the Petitioner told the Havildar-Complainant to bring
his children to meet him, when the Petitioner joined the posting
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only one day prior and was not even substantially acquainted with
the Havildar-Complainant to want to meet his children. Mr.
Mishra also submitted that insofar as the proof of age of the
victim is concerned, the prosecution produced on record the
original birth certificate issued by the Government of Uttar
Pradesh. It bears the seal and monogram of the government with
her name as well as her parents' name. It is further pointed out
that in any case, the Petitioner never seriously challenged the age
of the minor daughter before the GCM and no suggestion was
also given in the cross examination in that regard. Regarding the
objection that the minor girl was not subjected to a medical
examination contemplated under POCSO Act, it is contended that
Section 164A of Cr.PC is for medical examination of a rape
victim and although the present case relates to an aggravated
sexual assault on the minor girl, the incident related to the
Petitioner inappropriately touching the minor girl on her thigh
and requesting to kiss her. There was no bodily injury which was
neglected to be examined by the medical authorities. He submits
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that thus, failure of medical examination in this particular case
was not fatal to the prosecution.
11. Mr. Mishra also drew our attention to the findings of the GCM
relating to the victim's evidence. The GCM has specifically
recorded their satisfaction of finding the statement and version of
the story of the victim to be absolutely trust worthy. Her evidence
is corroborated by the evidence of PW1 to PW 7. In fact she
narrated her ordeal immediately to her father and the father in
turn in formed his Commanding Officer promptly. Two other
officers were also called who took the Petitioner to the Officers'
Mess. Although they did not see the incident, the chain of events
are succinctly narrated by them. Most importantly, Mr. Mishra
states that the incident per se is not denied by the Petitioner. All
he says is that his intent was not inappropriate but his touch and
conduct was purely motivated by a sentiment of fatherly nature.
The Petitioner continues to state that he merely requested for a
kiss from the young girl out of fatherly or grandfatherly affection
and there was no sexual assault as the kind contemplated under
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the POCSO Act. Mr. Mishra thus, justified the findings and
sentence of the GCM and defends the AFT, Mumbai Bench,
Order and prays for dismissal of the present petition.
12. We have heard the counsels of both the parties and perused the
records with their assistance.
13. At the very outset, as discussed the herein above, the scope of our
intervention is limited. We shall only examine if there is a denial of
a fundamental right under Part III of the Constitution of the
Petitioner or there is a jurisdictional error or error apparent on the
face of the record to warrant interference in the findings of the
GCM which evidence has already been substantially re-appreciated
by the AFT, Mumbai Bench. We have gone through the provisions
of the Army Act and the Army Rules, 1954 ('Army Rules') made
thereunder. Section 177 of the Army Rules relating to assembling a
Court of Inquiry ('CoI') to collect evidence and report regarding
any matter assigned to the CoI. It is settled law that Rule 177 does
not mandate that a CoI must be invariably set up in each and every
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case prior to recording of SoE or convening a GCM. It is only if
the competent authority is of the view that evidence requires to be
collected, that the authorities may decide to constitute a CoI for
the purpose of collecting evidence. It is merely in the nature of a
Fact Finding Inquiry which is not mandatory under the AA nor the
Army Rules. Hence, this argument raised by the Petitioner has no
substance.
14. The AA and Army Rules lay down the procedure to be followed by
the GCM. Army Rule 23 deals with the recording of the SoE.
Army Rules 28 to 125 deal specifically with the convening of
GCM, its conduct right up to the signing of the findings and
sentence of the GCM. From the record of the GCM, it appears
that the procedure is scrupulously followed. We did raise a doubt
regarding the signing of the Findings and Sentence of the GCM as
the same appears to be signed only by the Presiding Officer and
the Judge-Advocate General. We were concerned that the view of
the entire Board of the GCM was not reflected anywhere on
record of the GCM. We thus, posed this question to the counsel
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representing the Army authorities. Mr. Mishra brought to our
attention to Army Rule 61(2) which provides that the opinion of
each member of the Court as to the finding shall be given by word
of mouth on each charge separately. Further Army Rule 67 relating
to the Announcement of sentence and signing and transmission of
proceedings, provides that upon the Court awarding the sentence,
the Presiding Officer shall date and sign the sentence and such
signature shall authenticate the whole of proceedings and the
proceedings upon being signed by the Judge-Advocate and shall be
transmitted at once for confirmation. Army Rule 87 also provides
that every member of the Board must give his opinion by word of
mouth on every question which the GCM decides and is required
to give his opinion on the sentence as well even if his opinion
supports an acquittal of the accused. Thus, we were told that in
view of these Army Rules, which are statutory rules do not
envisage recording a written view of each member of the Board or
each member signing the finding and sentence. We also enquired
with Ms Jha as to whether there was a challenge to these Rules,
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she declined and also indicated that the Petitioner was not assailing
these Army Rules. Thus, in these circumstance, we do not find any
infirmity in the form of the findings and sentence of the GCM in
this regard.
15. Insofar as the objection of the Petitioner regarding establishing the
age of the minor victim is concerned, we find that ample proof
was produced before the GCM in the form of her birth certificate,
which in our view is sufficient to establish the correct age of the
victim. We also find that the Petitioner did not seriously dispute
her age and neither are there any suggestions in the cross
examination of any witnesses. Although we have not re-
appreciated the evidence, we did find it necessary to satisfy our
conscience regarding the age of the victim as this ground was tried
to be vociferously argued before us. Having perused the record, on
this count also we agree with the view of the GCM and the AFT,
Mumbai Bench.
16. Regarding the contention of the Petitioner relating to the medical
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examination of the minor victim not being conducted and which is
imperative under the POCSO is concerned, we agree with view of
the AFT, Mumbai Bench that there was no physical injury to the
victim. The aggravates sexual assault in the present matter related
to an inappropriate touch on the thigh of the victim accompanied
with a request to kiss her. Although a medical examination ought
to have been conducted immediately, even if to ascertain the
mental status and trauma suffered by the victim, failure in sending
the victim for medical examination per se, especially in the
absence of any physical injury to her person, does not lend
infirmity to the finding of the GCM, in the facts of the present
matter.
17. The most important evidence against the Petitioner and which can
be the last nail in the coffin of the Petitioner to put it figuratively,
is the statement of the victim. She clearly narrated the incident
before the GCM. The law relating to the statement of prosecutrix
is now well developed. In cases of sexual assault, supposed
considerations which have no material effect on the veracity of the
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prosecution case or even discrepancies in the statement of the
prosecutrix herself, should not, unless the discrepancies are such
which are of fatal nature, be allowed to throw out an otherwise
reliable prosecution case. The testimony of the victim in such cases
is vital and unless there are compelling reasons which necessitate
looking for corroboration of her statement, the courts should find
no difficulty to act on the testimony of a victim of sexual assault
alone to convict an accused where her testimony inspires
confidence and is found to be reliable. The Supreme Court in the
case of State Of Punjab vs Gurmit Singh & Ors2 has held as under;
"............The Court while appreciating the evidence of a
prosecutrix may look for some assurance of her statement
to satisfy its judicial conscience, since she is a witness
who is interested in the outcome of the charge levelled by
her, but there is no requirement of law to insist upon
corroboration of her statement to base conviction of an
accused. The evidence of a victim of sexual assault stands
almost at par with the evidence of an injured witness and
to an extent is even more reliable. Just as a witness who
has sustained some injury in the occurrence, which is not
2 1996 SCC (2) 384,
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found to be self inflicted, is considered to be a good
witness in the sense that he is least likely to shield the real
culprit, the evidence of a victim of a sexual offence is
entitled to great weight, absence of corroboration
notwithstanding....."
xxxxx
It must not be over-looked that a woman or a girl
subjected to sexual assault is not an accomplice to the
crime but is a victim of another persons's lust and it is
improper and undesirable to test her evidence with a
certain amount of suspicion, treating her as if she were an
accomplice. Inferences have to be drawn from a given set
of facts and circumstances with realistic diversity and not
dead uniformity lest that type of rigidity in the shape of
rule of law is introduced through a new form of
testimonial tyranny making justice a casualty. Courts
cannot cling to a fossil formula and insist upon
corroboration even if, taken as a whole, the case spoken
of by the victim of sex crime strikes the judicial mind as
probable....."
18. The GCM in para 6 of its findings, while reproducing her
statement, recorded its opinion that there was sufficient
consistency in the victim's narration of the details of the incident.
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Her demonstration in Court as regards the specific manner in
which the accused behaved with her once her father left the room
was depicted with immense clarity. Thus, the GCM clearly held
the defence to have failed to contradict her on this material aspect.
Thus, the statement of the prosecutrix- minor girl inspires
confidence that she has narrated the incident correctly.
Furthermore, her instinct of identifying a bad touch of the
petitioner must be believed.
19. Another limb of the Petitioner's contention is relating to his
intent. It is important to note that the suggestions given to the
witnesses are that the touch of the Petitioner was not
inappropriate albeit it is stated to be 'fatherly' or 'grandfatherly'.
We have combed through this evidence as well, if only to satisfy
ourselves regarding the authenticity and interpretation of the
statement. The AFT has recorded that the Petitioner has not
denied the incident but has justified his behaviour by saying that
the touch was not intentional but was in the nature of a touch of a
parent or a grandfather. This suggestion was totally denied by the
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victim. The girl met the Petitioner for the very first time and there
was no reason for the Petitioner to hold her hand and read her
palm even under the pretext of reading her horoscope, touch her
thigh and request to kiss her. The girl immediately sensed a bad
touch and reported as such to her father instantly. In view of this
deposition, we are unable to take issues and dissent with the
findings of either the GCM or the AFT in this regard.
20. From the above discussion, we do not find any jurisdictional error
with the findings of the GCM and the Judgment and Order
passed by the AFT, Mumbai Bench, impugned herein. We do not
find any violation of the fundamental rights of the Petitioner.
There is no infirmity in the decision making process in arriving at
the impugned finding by both the GCM as well as the AFT,
Mumbai Bench. The petition is dismissed.
21. Rule, is accordingly discharged.
22. In view of the dismissal of the petition, all Interim applications are
also disposed off. The Interim order dated 31 st January 2024 is
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vacated and the Petitioner is directed to surrender to the Army
authorities with immediate effect to facilitate his transfer to the
concerned Prison Authorities, as per rules.
23. All parties to act on the authenticated copies of this Judgment.
DR. NEELA GOKHALE, J. REVATI MOHITE DERE, J.
24. After the judgment was pronounced, learned counsel for the
Petitioner seeks stay of the said judgment. Request for stay is
rejected.
DR. NEELA GOKHALE, J. REVATI MOHITE DERE, J.
