Case Note & Summary
The petitioner, a retired Lieutenant Colonel in the Indian Army, was convicted by a General Court Martial (GCM) under Section 69 of the Army Act, 1950 for offences under Sections 10 and 12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). The incident occurred on 1 February 2020, when the petitioner, after joining his posting at the Army Sports Institute in Pune, called the complainant Havildar ABC and his children to his office. While the complainant left to fetch a pen, the petitioner allegedly touched the 11-year-old daughter's thigh inappropriately and asked if he could kiss her. The complainant reported the matter to the Commanding Officer, leading to a Summary of Evidence and convening of the GCM. The GCM found the petitioner guilty and sentenced him to 5 years imprisonment and cashiering from service. The confirming authority confirmed the findings, and a representation under Section 164(2) of the Army Act was dismissed. The petitioner challenged the conviction before the Armed Forces Tribunal (AFT), Mumbai Bench, which dismissed the Original Application. The petitioner then filed a writ petition under Articles 226 and 227 of the Constitution of India before the Bombay High Court. The High Court examined the scope of judicial review over courts-martial, relying on the Supreme Court's decision in Union of India v. Parashotam Dass, which held that Article 226 jurisdiction is not diluted for matters dealing with courts-martial, but is limited to cases of denial of fundamental rights, jurisdictional error, or error of law apparent on the face of the record. The court noted that the petitioner's counsel argued that the conviction was based on insufficient evidence and that the GCM and AFT failed to appreciate the inconsistencies in the prosecution case. However, the court found that the GCM and AFT had carefully considered the evidence, including the testimony of the victim and her father, and had recorded concurrent findings of fact. The court held that there was no jurisdictional error or error of law apparent on the face of the record, and that it could not re-appreciate the evidence in exercise of its Article 226 jurisdiction. Consequently, the court dismissed the petition and vacated the interim stay on the petitioner's sentence.
Headnote
A) Constitutional Law - Judicial Review - Article 226 of the Constitution of India - Courts-Martial - The High Court can exercise judicial review over proceedings of courts-martial only if there is denial of fundamental rights under Part III of the Constitution, jurisdictional error, or error of law apparent on the face of the record. The High Court cannot re-appreciate evidence. (Paras 5-6) B) Army Law - Court Martial - Section 69 of the Army Act, 1950 - Civil Offence - Trial by General Court Martial for offences under Sections 10 and 12 of the Protection of Children from Sexual Offences Act, 2012 - The petitioner was convicted for aggravated sexual assault and sexual harassment of a minor daughter of a subordinate. The conviction was based on the testimony of the victim and her father, which was found credible by the GCM and AFT. (Paras 3-4, 9-10) C) Criminal Law - POCSO Act - Sections 10 and 12 of the Protection of Children from Sexual Offences Act, 2012 - Aggravated Sexual Assault and Sexual Harassment - The victim's testimony, corroborated by her father's evidence and the petitioner's conduct, established the offences beyond reasonable doubt. The court held that the findings of the GCM and AFT were based on evidence and did not suffer from any error. (Paras 9-10)
Issue of Consideration
Whether the conviction of the petitioner by the General Court Martial under Section 69 of the Army Act, 1950 for offences under Sections 10 and 12 of the POCSO Act, 2012, and the subsequent confirmation by the Armed Forces Tribunal, suffer from any jurisdictional error or error of law apparent on the face of the record, warranting interference under Article 226 of the Constitution of India.
Final Decision
The Bombay High Court dismissed the criminal writ petition, upholding the conviction and sentence of the petitioner by the General Court Martial and the Armed Forces Tribunal. The interim stay on the petitioner's sentence was vacated.
Law Points
- Judicial review under Article 226 of the Constitution of India is available against proceedings of courts-martial
- but limited to cases of denial of fundamental rights
- jurisdictional error
- or error of law apparent on the face of the record. The High Court cannot re-appreciate evidence in such proceedings. Section 69 of the Army Act
- 1950 read with Sections 10 and 12 of the Protection of Children from Sexual Offences Act
- 2012.
