GOVIND CHOUBEY Vs. UNIONS OF INDIA (UOI)

JUDGEMENT

(1.) PETITIONER has invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India seeking quashment of the order impugned dated 19th October, 2007 passed by Col. S.K. Mathur, Officer Comanding 23 Inf. Div. PRO -Unit in Summary Court martial, whereby and whereunder, petitioner was sentenced to undergo rigorous imprisonment for one year and his dismissal from service. He was directed to serve out imprisonment in civil prison in Ranchi Sadar P.S. Case No. 183 of 2006 corresponding to G.R. No. 3302 of 2006. The case was transferred from the Court of Chief Judicial Magistrate Ranchi to the General Officer Commanding 23 Infantry Division, Ranchi (Respondent No. 2) permitting the petitioner to be tried under the Army Act, 1950. Petitioner further seeks his reinstatement back in service with all consequential benefits on his acquittal.

(2.) THE short facts of the case are that the petitioner was appointed as Sepoy in Indian Army on 26th September, 1996. After sometime he was posted as L/N in 23, Infantry Division Provost Unit, Ranchi in the year 2005. On account of the fact that he was found drunk during the duty hours on 26th September 2006, he was awarded punishment of severe reprimand and was sent to quarter guard arrest by the order dated 27th September, 2006 under the orders of Lt. Col. A.N. Singh, Officer Commanding, 23 Inf. Div. Pro Unit, Ranchi. Again on 27th September, 2006, one Sitara Devi lodged an FIR alleging inter alia against the petitioner Govind Choubey that he took away her daughter Rina Yadav, aged 7 years on certain pretext with his daughter Neha Kumari aged about 6 years on his motorcycle towards river side and tried to outrage the modesty of Rina Yadav by inserting his finger in her private part which resulted in profuse bleeding. Informant Sitara Devi after finding her daughter in distress took her to the Military Hospital for treatment where she alleged before the police that the petitioner had committed rape on her daughter. According, FIR was instituted and petitioner was arrested on 28.9.2006 by the Ranchi Police and he was forwarded to judicial custody. The General Officer commanding 23 Inf. Div. having come to know about the misdeeds of the petitioner decided to initiate Court Martial and accordingly the respondent -authorities moved the Court of Chief Judicial Magistrate, Ranchi. The Chief Judicial Magistrate having considered the request recorded the order by transferring the petitioner to Army custody w.e.f 14.12.2006 for his Court Martial. The petitioner was communicated by the Order dated 31st December 2006 that he would be proceeded under Summary Court Martial and was served with three charges as hereunder:

(3.) ADVANCING his argument, Mr. Bharati submitted that Section 120(2) of the Army Act strictly prohibits trial by Summary Court Martial for charge under Section 69 of the Army Act and, therefore, the entire trial of the petitioner by Summary Court martial in the instant case stands vitiated.