ISHWAR D NAIK Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner Ishwar D Naik, Ex-JC 195007f sub (DMT) of 44 Medium Regiment attached to the 18 th Infantry Division Ordinance was on visiting terms with the Nayab Subedar P. R. Dutta. THEy were serving together in the same unit at Bikaner. Mr. Dutta was transferred to Ambala. THE petitioner went to Ambala and stayed with Mr. Dutta. On 15. 11. 1993 in the absence of Mr. Dutta, the petitioner is said to have sexually molested Smt. Bhanu Dutta W/o P. R. Dutta. A complaint was submitted to the unit, copy of which is attached as Annexure-1. THE complaint was to the effect that the lady was sexually assaulted including rape. After holding some enquiry, the petitioner was Court Martialled as per charge Annex. 2. THEre were six charges u/sec. 69 of the Army Act to the effect that on 24. 5. 1992, 13. 7. 1992, 19. 2. 1993, 13. 7. 1993. 4. 10. 93 & 15. 11. 93 i. e. on six occasions on different dates, the petitioner had committed adultery on the lady and was accused of the charges of adultery u/sec. 497 IPC.

(2.) EVEN though the allegations as levelled were of rape, but no report was made immediately, no FIR was lodged and lady was not even subjected to medical examination. Vide order Annexure-4, the Commanding Officer had intimated that for the reason that the allegations of rape had been made, therefore, it cannot be tried by a Court martial under the Army Act. Yet vide another letter Annex-5 by the Commanding Officer, it was reported that Smt. Bhanu Dutta is a civilian and not under the Army Act; the rape is a civil offence under the Army Act and not triable under the said provisions of the Act; for the reason that she was not medically examined and the FIR was to be lodged with the police station and for the reasons that the matter was not immediately reported and in the absence of the primafacie evidence it was difficult to prove the offence, the recommendations were made for dropping the proceedings.

(3.) RELIANCE is also placed on the judgment of Major G. S. Sodhi vs. Union of India (3), wherein it was held that the Army officer dismissed from service by court martial and where no punishment of forfeiture of pension or other service benefits inflicted by court martial, it was held that the dismissed officer was entitled to entire pension, gratuity and provident fund under the rules. Relying in the case of Lt. Col. T. S. Harbans Singh Sandhu vs. Union of India (4), decided on 22. 11. 1978 and Ex. N. Sub. R. K. Sharma vs. Chief of the Army Staff, in (5), the Court had observed that the Court Martial had not inflicted punishment for forfeiture of pension or other service benefits and, therefore, the officer was entitled to these benefits. Direction was given to the respondent to pay the entire pension, gratuity provident fund to each of the petitioners.