MAJOR OBANNA KAMMA PEDDA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner, an ex-Major of the Indian Army has presented this petition praying for quashing the conviction and sentence imposed on him by a Court Martial.

(2.) The facts of the case, in brief, are as follow :- (i) The petitioner joined the Army in April 1963. In October 1971, he became a Major. In December 1986 he was attached to ASC Centre (South), Bangalore. He was also provided with a residential quarters. On 7-12-1986 another Major in the Army filed a complaint before the Ulsoor Police Station alleging that on 6-12-1986 at about 7.30 P.M. the petitioner committed rape on his minor daughter, aged about twelve years, at Room No.2 of the petitioner's quarters. The Police investigated into the complaint and they filed a charge-sheet before the V Metropolitan Magistrate, Bangalore. The petitioner was charged with the offences punishable under Section 342 (wrongful confinement) and 376 (rape), of the I.P.C. The petitioner appeared before the learned Magistrate and was enlarged on bail on 11-12-1986. Thereafter, the learned Magistrate on going through the charge- sheet, directed issue of notice to the petitioner-accused on 30-1-1987. (ii) Thereafter, the Commandant, ASC Centre (South) made an application before the learned Magistrate under Sectioa 125 of the Army Act making a prayer to the effect that the petitioner be handed over to the custody of the Army, as the Commandant wanted to try the petitioner for the offences charged against him under the provisions of the Army Act by constituting a Court Martial. This application was allowed by the learned Magistrate on 31-3-1987. Thereafter, a Court Martial was constituted and the petitioner was tried before the Court Martial so constituted. On 3-6-1987 the Court Martial found the petitioner guilty of the offences with which he was charged before the Court Martial, and imposed the sentence vide Annexure-J. It reads:-

(3.) In the petition, the petitioner has urged the following grounds in support of his prayer for quashing the penalty imposed on him by the Court Martial and confirmed by the Chief of Army Staff; (i) In view of Section 70 of the Army Act, the petitioner was not liable to be tried for the offence with which he was charged, by a Court Martial, but he was liable to be tried only by an ordinary criminal court having jurisdiction to try for offences punishable under Sections 342 and 376 of the I.P.C. and in particular for offence under Section 376 of the I.P.C. (ii) The order convening the General Court Martial was illegal and invalid for the reason that it had not been signed by Major General Nirmal Sondhi. (iii) None of the provisions of Rule 37, Clauses (i) to (iv) of the Army Rules had been complied with by Brigadier R.C. Mehta who had convened the Court Martial for and on behalf of the Major General Nirmal Sondhi; nor the latter himself had complied with the provisions of the said Rules. (iv) There was violation of Regulation which makes it obligatory upon the Convening Officer to refer the case to the Judge Advocate General before referring the case to the General Court Martial. (v) The refusal on the part of the Court Martial to summon the wife of the petitioner whom the petitioner wanted to examine as a defence witness had resulted in serious miscarriage of justice.