*THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION Nos. 9189 of 2004, 20283 OF 2005 AND C.C.NO.23 OF 2005 + W.P.No.0189 of 2004 % Dated 29.09.2005 # No.139761 48-H Nk N/Asst/Atal Bihari Acharya Military Hospital Secunderabad A.P. ……….. Petitioner $ The Senior Registrar & Officer Commanding Troops Military Hospital, Secunderabad A.P. & others. ………… Respondent ! Counsel for Petitioners : Capt. K.M.Saxena ^ Counsel for Respondents : Mr.Deepak Bhattacharjee < GIST: > HEAD NOTE: ? Cases referred 1 CDJ 2002 SC 336 2 MIL. L.J. 1999 SC 145 3 Judgment in W.P.No.4738 of 2003, dated 17.11.2003 4 AIR 1960 MP 155 5 2004 (5) SCC 518 6 AIR 1970 BOMBAY 333 (DB) 7 AIR 1949 MADRAS 547 (FB) 8 AIR 1954 MADRAS 833 (DB) 9 1973 (2) AII E.R. 513 10 AIR 1964 SC 207 11 AIR 1987 SC 1646 12 AIR 1961 SC 1762 13 AIR 1969 SC 414 14 AIR 1971 SC 500 15 AIR 1965 SC 247 16 1992(2) SCC 36 17 AIR 1982 SC 1413 18 AIR 1998 SC 1855 19 AIR 1999 SC 880 20 (2000) 3 SCC 171 21 (2001) 7 SCC 530 22 (2001) 3 SCC 739 THE HON'BLE MR JUSTICE RAMESH RANGANATHAN W.P.Nos.9189 OF 2004, 20283 OF 2005 AND C.C.No.23 OF 2005 COMMON ORDER: W.P.No.9189 of 2004 is filed to declare the action of the first respondent, (Senior Registrar & Officer Commanding Troops, Military Hospital, Secunderabad), in issuing charge sheet against the petitioner, under Section 69 of the Army Act 1950 read with Section 354 I.P.C., on the basis of the complaint dated 19.01.2004 filed by the third respondent (Mrs.Roshni, W/o. Craftsman V.K.Saroj), as without jurisdiction, mala fide, biased and in violation of Articles 14 and 16 of the Constitution of India. The petitioner, by way of an interlocutory application in the said writ petition, had sought for a direction to the first respondent to stay all further proceedings pursuant to the complaint dated 19.01.2004 lodged by the third respondent, and the consequential charge sheet issued to him. Thi s Court, by order in WPMP.No.11806 of 2004 in W.P.No.9189 of 2004 dated 18.5.2004, directed the respondents not to pass any final orders. Alleging violation of the order, in WPMP.No.11806 of 2004 in W.P.No.9189 of 2004 dated 18.05.2004, C.C.No.23 of 2005 was filed. Questioning the action of the first respondents in not permitting the petitioner to avail his entitlement to annual leave of 60 days, standing to his credit for the calendar year 2005, as being violative of his fundamental rights under Articles 14, 16 and 21 of the Constitution of India, W.P.No.20283 of 2005 was filed before this Court. Since all the three cases, (W.P.No.9189 of 2004, C.C.No.23 of 2005 and W.P.No.20283 of 2005), relate to the same incident and are based on the action initiated against the petitioner, under Section 69 of the Army Act read with Section 354 I.P.C., they were heard together and are being disposed of by this common order. The parties shall hereinafter be referred to as they are arrayed in W.P.No.9189 of 2004. Facts, to the extent necessary for this writ petition, are that the petitioner was enrolled in the Army Medical Corps on 26.02.1988 and after completing more than 16 years of service, was posted as a Nursing Assistant in the Military Hospital, Secunderabad, on 16.12.2002, whereat he was entrusted with the duties of Ward Master of Family Ward II. On 19.01.2004 when he was on duty, between 08.00 hrs and 16.00 hrs, in the guise of examination, the petitioner is said to have used criminal force and to have invaded the private parts of the third respondent, who had been admitted to the Family Ward, thereby violating her dignity. Under the charter of duties of a Ward Master, the petitioner should not have examined any female patient. Para 51, of the Regulation for medical services of Armed Forces, stipulates that examination of a female patient should be conducted in the presence of a nurse or a female attendant and in an emergency, when a female attendant is not available, the husband of the patient and another male attendant is to be present during examination and consent of the patient obtained even for their presence. The regulations further require the Medical Assistant not to take part in intimate nursing procedure on female patients and if it is necessary to administer treatment, to a female patient, the medical assistant is not to be left alone with the patient. The petitioner, as Ward Master, is alleged to have taken advantage of his position and to have invaded the private parts of the third respondent in the guise of medical examination and thereby to have committed an offence under Section 69 of the Army Act, 1950, read with Section 354 I.P.C. Since the petitioner was subject to Army rules and regulations a Court of Inquiry was appointed which, after due consideration of the evidence, recommended initiation of disciplinary proceedings against him. In exercise of the powers under Section 101 of the Army Act read with para 392 (k) of the Army Regulations, the petitioner was taken into Army custody on 06.01.2005 for initiating summary court martial. The petitioner was issued a charge sheet, as under: “at Secunderabad, on 19 Jan. 2004, while performing the duties of ward master of Family Ward-II of MH, Secunderabad used criminal force to Mrs.Roshni Saroj, W/o.No.14626041P Cfn V.K.Saroj, by palpating her abdomen and touching her private parts, intending thereby to outrage her modesty.” The Commander, Andhra Sub-Area, recommended trial of the petitioner by a summary court martial on 01.12.2004 and accordingly the court martial was commenced from 11.01.2005 onwards. The petitioner pleaded not guilty before the summary court martial and the procedure prescribed, in cases where a plea of ‘not guilty’ is taken, was followed by the respondents. It is the case of the respondents that the petitioner did not choose to cross-examine any of the prosecution witnesses including the complainant, that the Court Martial after appreciation of the evidence, both oral and documentary, came to the conclusion that the petitioner was guilty of the charge levelled against him and accordingly imposed rigorous imprisonment for nine months in civil prison, reduction in rank and dismissal from service. However, in compliance with the interim orders of this Court, the punishment was not given effect to. In so far as the petitioner’s request for grant of leave is concerned, which is the subject matter of challenge in W.P.No.20283 of 2005, respondents would contend that while they did not pass any final orders, in compliance with the interim orders of this Court, the petitioner could not be sanctioned leave in the absence of any provision for sanction of leave to a person who had been sentenced to undergo rigorous imprisonment for nine months. Capt. K.M.Saxena, learned counsel for the petitioner, would submit the following questions of law for the consideration of this Court:- (a) Whether there is any rationale in denying to the petitioner his right to Annual Leave / Casual Leave to enable him attend to his ailing mother? (b) Whether an Army Authority/Army Officer has jurisdiction to entertain a First Information Report by a civilian regarding commission of a Civil Offence? (c) Whether concerned Army Authority is competent to investigate a civil offence committed against the personae or property of a civilian not subject to Army Act? (d) Whether concerned Army Authority is competent to usurp the jurisdiction of the Magistrate and frame charges in a case where civilians and army personnel both are involved? (e) Whether concerned Army Authority is competent to proceed with the trial of a person for a civil offence just because that person happens to be subject to Army Act? (f) Whether concerned Amy Authority is competent to proceed with the case against a soldier on the same set of facts which are already before a court of Magistrate on the basis of a properly instituted complaint by that person under the provisions of Code of Criminal Procedure, 1973. (g) What is the scope and ambit of AA Section 69? (h) Does subjection to Army Act, deprive a soldier accused of a civil offence of his statutory protections available to him under civil law, when he is tried by a Military Tribunal? (i) Whether procedure before a Court Martial is similar to and as conducive to legal protections available to the accused under civil court? (j) Whether there was any infirmity in the procedure adopted by the Army Authorities in the case of the petitioner which strike at the very roots of concept of fair trial? (k) To what relief? Questions (b) to (i): These questions, all of which require examination of the provisions of the Army Act and the rules and regulations made thereunder vis-à-vis the provisions of the Criminal Procedure Code, can be conveniently dealt with together. Capt.K.M.Saxena, learned counsel for the petitioner, would refer to Section 69 of the Army Act, and to the Criminal Courts and Courts-Martial (Adjustment of Jurisdiction) Rules, 1952 (hereinafter referred to as ‘1952 Rules’) and to the Criminal Courts and Courts-Martial (Adjustment of Jurisdiction) Rules, 1978 (hereinafter referred to as ‘1978 Rules’), more particularly to Rule 3 thereof. According to the learned counsel, Section 69 of the Army Act read in conjunction with Rule 3 of the 1978 Rules would subject a soldier to the provisions of the Army Act and the rules made thereunder, only in places where either no Criminal Court is established or is not functioning and only if in such places an offence is alleged to have been committed, by a jawan, would the provisions of the Army Act apply. Learned counsel would submit that a person, subject to the provisions of the Army Act, is not deprived of his fundamental rights under Article 21 of the Constitution of India, he is entitled to be given the protection and the benefit of a free and fair trial as prescribed under the Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’), and where the offence involved is one which can be tried by a competent criminal Court, the accused should only be tried under the Cr.P.C. and not under the Army Act, more so, when one of the parties to the criminal case is a civilian to whom the provisions of the Army Act and the rules made thereunder have no application. Learned counsel would contend that Section 69 of the Army Act supplements the provisions of the Cr.P.C. and does not supplant it. Learned counsel would submit that since Section 70 of the Army Act specifically excludes “Rape” from being tried by a Court Martial and as the A.P. amendment to Section 354 I.P.C., brings it on par with Section 375 I.P.C., the offence under Section 354 I.P.C. must be read as one amongst the offences, under Section 70 of the Army Act, which are excluded from the purview of a Court Martial, and would rely on UNION OF INDIA V. L.D.BALAM SINGH, (Judgment in Crl.A.No.168 of 1999, dated 24.04.2002). Learned counsel would contend that since the provisions of Cr.P.C. would apply for trial of offences under the I.P.C., the procedural safeguards in the Cr.P.C. should also be extended when a person is tried under the provisions of the Army Act, which would include the concomitant right of being defended by counsel. Otherwise the provisions of the Army Act would be ultra vires and in violation of the fundamental rights guaranteed under part–III of the Constitution of India. Sri Deepak Bhattacharjee, learned Standing counsel for the respondents, would submit that under Section 70 of the Army Act it is only for an offence of murder of a person not subject to military law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person would a person, who is subject to the provisions of the Army Act, not be liable to be tried by a court martial, unless the offence committed by such a person is (a) while on active service; or (b) at any place outside India; or (c) at a frontier post specified by the Central Government by notification in this behalf. Learned Standing counsel, while fairly conceding that none of the exceptions in (a) to (c) of Section 70 is applicable, would however, emphasise that the petitioner was charged for an offence, not of rape under section 375 I.P.C., but of assault or use of criminal force on a woman intending to outrage her modesty under section 354 I.P.C. Learned Standing counsel would submit that since an offence under Section 354 I.P.C. is not among those specified in Section 70 of the Army Act and as the petitioner is admittedly subject to the provisions of the Army Act he is liable to be tried by a court martial. Learned Standing counsel would refer to Section 5 Cr.P.C. and submit that the Army Act is a special law and since the provisions of Cr.P.C. are subject to the said special law, the provisions of the Army Act would prevail notwithstanding anything contrary thereto in the Cr.P.C. Learned Standing Counsel would make a detailed analysis of the provisions of the Army rules to contend that adequate safeguards are provided thereunder for trial of offences under I.P.C. read with Section 69 of the Army Act, and would rely on MADAN LAL V. UNION OF INDIA, and V.VENKATESWARLU V. UNION OF INDIA in this regard. Before considering the rival submissions, it is necessary to refer to Sections 69 and 70 of the Army Act: 69. Civil Offences – Subject to the provisions of section 70, any person subject to this Act who at any place in or beyond India, commits any civil offence, shall be deemed to be guilty of an offence against this Act and , if charged with under this section, shall be liable to be tried by a court-martial and, on conviction, be punishable as follows, that is to say,- (a) if the offence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and (b) in any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned. 70. Civil Offences not triable by court-martial - A person subject to this Act who commits an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be tried by a court-martial, unless he commits any of the said offences- a. while on active service, or b. at any place outside India, or c. at a frontier post specified by the Central Government by notification in this behalf” Section 69 relates to Civil Offences. Civil Offences are defined, under Section 3(2), to mean an offence which is triable by a Criminal Court. Section 69 is subject to the provisions of Section 70 and for the offences specified in Section 70, Section 69 would not apply. Would Section 354 I.P.C., as a result of its amendment by A.P. Act 6 of 1991, stand equated with Sections 375 & 376 I.P.C. and thereby a person charged with an offence under Section 354 I.P.C., be governed by the provisions of Section 70 and not Section 69 of the Army Act is the question which needs to be answered first. Section 70 of the Army Act is specific, in that, only offences of murder, culpable homicide and rape of a person, not subject to military law, is excluded from the purview of a court martial. Section 375 I.P.C. defines rape as follows: “A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First- Against her will. Secondly-Without her consent. Thirdly-With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly-With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly-With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly-With or without her consent, when she is under sixteen years of age. Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception: Sexual intercourse by a man with his own wife, the wife not being under “:fifteen” years of age, is not rape” Sections 354, 376 and 376-D I.P.C. read as under: “354. Assault or criminal force to woman with intent to outrage her modesty: Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” Section 354, on its amendment by A.P. Act 6 of 1991, reads thus: “ASSAULT OR CRIMINAL FORCE TO WOMAN WITH INTENT TO OUTRAGE HER MODESTY:- Whoever assaults or uses criminal force to any woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term which may be less than five years, but which shall not be less than two years” “376. Punishment for rape: Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: PROVIDED that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Whoever, a. being a police officer commits rape— i. within the limits of the police station to which he is appointed; or ii. in the premises of any station house whether or not situated in the police station to which he is appointed; or iii. on a woman in his custody or in the custody of a police officer subordinate to him; or b. being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or c. being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or d. being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or e. commits rape on a woman knowing her to be pregnant; or f. commits rape on a woman when she is under twelve years of age; or g. commits gang rape, shall be punished with rigorous imprisonment for a terms which shall not be less than PROVIDED that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten year. Explanation 1: Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within he meaning of this sub-section. Explanation 2:”Woman’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or by any other name, which is established and maintained for the reception and care of women or children. Explanation 3: “Hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons required medical attention or rehabilitation. “376-D. Intercourse by any member of the management or staff of a hospital with any woman in that hospital: Whoever, being on the management of a hospital or being on the staff of a hospital takes advantage of his position on and has sexual intercourse with any woman in that hospital, such sexual intercourse not amount to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine” The offence of “Rape” is distinct from the offence of indecent assault. In order to constitute an offence under Section 354 I.P.C. there must be assault or use of criminal force on a woman with the intention or knowledge that the woman’s modesty will be outraged. Indecent acts of assault, prior to sexual contact with the woman, would fall within Section 354 I.P.C. whereas an offence of rape under Sections 375 and 376 I.P.C would be the actual sexual contact itself (State of Madhya Pradesh v. Babulal) Not withstanding the similarity of punishment prescribed for offences under Section 354 I.P.C., (A.P. Amendment Act 6 of 1991) and Section 376 I.P.C., the offence of assault or criminal force on a woman with the intention of outraging her modesty under Section 354 I.P.C. cannot be equated to rape under Sections 375 and 376 I.P.C. Section 376-D I.P.C. is an offence of intercourse by a member of the management or staff of hospital with any woman in that hospital not amounting to an offence of rape. Since Section 376- D, specifically excludes “rape”, and since the petitioner has not been charged for an offence under Section 376-D I.P.C, the question as to whether an offence under Section 376-D is among the offences under Section 70 of the Army Act, excluded from the purview of a Court Martial, does not call for examination in this writ petition. The offence of assault and use of criminal force on a woman, under Section 354 I.P.C, is neither pari materia with nor is it “rape” as defined under Section 375 I.P.C. It is a settled rule of statutory interpretation that where the words of a provision are clear and unambiguous, it is not for Courts to read something into the said provision, which is non-existent. In Sakshi v. Union of India the question which came up for consideration was whether, by a process of judicial interpretation, the provisions of Section 375 I.P.C. could be altered to