VIVEKY RAI Vs. UOI

JUDGEMENT

(1.) ON 6th November 2003, petitioners wife, Sarita Rai received gun shot wounds at their matrimonial house around 14:45 hours and expired before she could be shifted to the hospital. Pertaining to the incident information was lodged with the local police and investigation revealed that a carbine issued to the petitioner, a Major in the Territorial Army, was the weapon of offence. The petitioner was taken into custody and was tried for the offence of having murdered his wife. The incident took place in the State of Jammu and Kashmir and thus the petitioner was tried for an offence punishable under Section 302 of the Ranbir Penal Code as also Section 30 of the Arms Act. The trial was conducted before the Court of Sessions.

(2.) DUE to the seriousness of the offence and the charge against the petitioner, he was taken into custody. Bail was denied to him. He was lodged in a prison as an under-trial in Jammu. He was placed under suspension.

(3.) BEING acquitted, the petitioner was released from prison and since he remained under suspension during trial he prayed to be reinstated in service and suspension revoked. The matter was processed by the Army Authorities at various levels and two issues were considered by the authorities. The first issue was whether petitioners acquittal was an honourable acquittal and if not, what was the effect of the acquittal on the service of the petitioner and the second was the consequence of the petitioner remaining in prison for 5 years. The ultimate decision taken was to invoke the Presidential power under Section 18 of the Army Act 1950. Order dated 11.9.2009 was issued, which reads as under:-