T.A. 278 of 2009 and Writ Petition (Civil) No. 516 of 1999. Case: Balkar Singh Vs The Union of India (UOI) and Ors.. Armed Forces Tribunal
| Case Number | T.A. 278 of 2009 and Writ Petition (Civil) No. 516 of 1999 |
| Judges | S.S. Kulshrestha, J. and Z.U. Shah, Members |
| Issue | Service Law |
| Judgement Date | May 19, 2011 |
| Court | Armed Forces Tribunal |
Judgment:
(Principal Bench at New Delhi)
-
This Writ Petition, under Article 226 of Constitution of India was brought by the accused-Appellant challenging the findings of the Summary Court Martial whereby the Appellant was held guilty for the offence Under Section 46 (a) and 65 of the Army Act and sentenced to undergo one year RI and dismissal from service. It is said that the case was fabricated against the accused-Appellant. His conviction was recorded by the Summary Court Martial (SCM) without following the mandatory provisions of law. The trial court proceeded with the assumption as if the Appellant had committed the offence. Moreover the decision is based on conjectures and surmises and is not sustainable.
-
The defence of the accused Appellant that he gave directions to accused-Appellant for shifting sugar bags and then he noticed some carelessness on the part of the victim Sh. Dharam Raj, one of the complainants, rebuked him. That appears to be the reason for imputing false allegations by him against the Appellant. It is also said that the trial of the Appellant for the offences Under Section 46(a) is irregular and would vitiate the trial. Even if the allegations made in the FIR are accepted to be true on face value it would appear to be civil offence Under Section 377 of IPC triable by the Civil Court. The jurisdiction of the SCM was wrongly resorted for confining the offence to be Under Section 46 (a) of the Army Act. It is also said that the second charge which was pertaining to making an attempt for doing unnatural offence is also not borne out from the evidence. There is nothing on record to justify the conviction of the Appellant for the offence Under Section 65 of the Army Act.
-
The appeal was resisted from the side of the Respondents stating that there was ample evidence against the Appellant. Both the victims made critical narration of the incident and there can be no reason on their part for falsely implicating the accused-Appellant.
-
Full opportunity was given to the Appellant to test the veracity of these witnesses but it could not be impeached. Moreover, the trial of the accused-Appellant for the offence Under Section 46(a) of the Army Act is made out and it was not necessary on the part of the authorities to have referred each and every matter of civil offence to the Civil Court.
-
In order to appreciate the salient points raised by the Ld. Counsels for the parties, a brief resume of the facts may be made. Recruit Dev Karan was taken inside the room of a Langar on 14.08.95 at about 1600 hrs. He was asked to remove his shorts which he declined. Thereafter the Appellant...
To continue reading
Request your trial