V.Venkataraman vs Union of India & Ors.

At the relevant time, the petitioner was serving in the office o Garrison Engineer at Samba and was attached with 4th Bn. Rajputana Rifles. The

petitioner who was holding the rank of Naik in the Army was charged under section 69 of the Army Act for committing a civil offence contrary to

section 497 of the RPC, The gravament of the charge ran thus :

at Samba between 29 September 1990 and 11 July 1992, committed adultery, with Mrs Dorathy Vasanthi Kumari well knowing her to be the

wife of SL 3906 W Lieutenant B. Murugesh of Garrison Engineer, Samba, without the consent or connivance of the said lieutenant B Murugesh,

Because the petitioner pleaded not guilty to the aforesaid charge, he was tried by a Summary Court Martial (SCM for short) held at Samba

from 28 Sept. 1992. Based on the petitioner's plea of ""not guilty"", some witnesses were examined by the SCM which Included It Beemad

Murugesh and his wife Mrs. Dorathy Vasanthi Kumari In fact, as is apparent from the perusal of charges, petitioner was charged with having

committed, adultery with the aforesaid Mrs, Dorathy Vasanthi Kumari to whom the petitioner was alleged to be knowing the wife of the aforesaid

Lieutenant B. Murugesh. After the conclusion of the trial by the SCM, the petitioner was found guilty of the charge levelled against him and on

being thus found guilty was convicted of the charge sentenced to suffer rigorous imprisonment for 12 months to be carried out by confinement in

Civil Prison The SCM also recommended for the dismissal of petitioner from service and for being reduced to ranks. The sentence was announced

on 28 Sept; 1992. It is this conviction and sentence awarded which has been challenged by him in this petition filed under Article 226 of the

Constitution of India.

The petitioner has taken two grounds of challenge while assailing and challenging the finding of guilty returned against him as also the sentence

imposed by the SCM. First of all it is submitted that the SCM proceeded to try the petitioner without proper and sufficient evidence. It the

evidence recorded by the SCM was to be appreciated in correct perspective, he could not have been convicted of the charge levelled against him.

Secondly it is submitted that the basic principles of criminal jurisprudence have been violated in this case because of the nonobservance of the

mandatory requirement of prosecuting the lady with whom the petitioner was alleged to have committed an adultery namely Mr. Dorathy Vasanthi

Kumari wife of Lt. B. Murugesh. In support of this contention, reliance, is placed upon the interpretation but by the learned counsel for the

petitioner on section 497 RFC.

Appearing for the respondents Mr. A. V. Gupta learned Sr. CGSC submitted that on both counts, the petition did not have any merit and

should be dismissed. According to Mr. Gupta, the SCM proceeded to charge and try the petitioner and ultimately convicted and sentenced him for

the charge u/s 69 of the Army Act read with section 497 RPC on sufficient, plausible and cogent evidence and that it was only after the evidence

was properly and correctly appreciated by the SCM. that the petitioner was found guilty of the charge. In so far as the second ground of attack is

concerned, Mr. AV Gupta while rebutting the same, submitted that it was not at all mandatory requirement of law that the petitioner and Mrs.

Dorathy Vasanthi Kumari the alleged adultress should have been jointly tried in a common trial or that Mrs. Dorathy Vasanthi kumari at any rate

must have been tried at all by a criminal court.

After hearing the learned counsel for the parties at great length and after very minutely and carefully perusing the entire record produced by the

respondents before me, I have no doubt in my mind that the conviction of the petitioner for offence u/s 497 RPC (fictionary u/s 69 of the Army

Act) was established beyond any reasonable doubt and that petitioner was awarded appropriate sentence after having been found guilty of the

charge. I have perused the evidence recorded by the SCM which included the statement of the alleged adultress and her husband. It is now a well

established principle of law that this court in the exercise of its extraordinary writ jurisdiction while dealing with the conviction recorded by an Army

Court Martial does not disturb the finding and sentence of the court Martial as a Court of appeal nor is it open to this court to appreciate or not

reappreciate the evidence recorded by the Army Court Martial so as to find out whether the evidence was sufficient to link the accused with the

commission of the crime for which he had been charged. If in a particular case it was established before this court in the exercise of its writ

jurisdiction, that a conviction was recorded by the court Martial without there being any evidence at an and if after perusing the entire record of the

proceedings of the Court Martial this court is fully satisfied that there was no evidence whatsover before the Court Martial to connect the accused

with the commission of the crime, this court surely has the jurisdiction to interference in such a finding and sentence and has the jurisdiction to set

aside., and quash the same. In such an eventuality, such conviction and sentence would be based on, what is populerly called as a case of no

evidence,"" because enough evidence was led during the trial in the SCM and it was for the SCM to appreciate the evidence in its true perspective

and to return the finding of guilty or not guilty"". The evidence is there and the finding is also there. I have no reason to either disbelieve the evidence

or disagree with the finding.

In so far as the second ground of attack is concerned, it shall be desirable to examine the true import of section 497 RFC. For ready reference I

quote and reproduce section 497 RFC.

Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the

consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be

punished with imprisonment of either description for a term which may extend to (five years) or with fine, or with both. In such case the wife shall

be punishable as an abettor.

A perusal of section 497 RFC would show that it is slightly different from section 497 of IPC. Because the last sentence occurring in section

497 RFC viz,, ""in such case the wife shall he punishable as an abettor,"" does not occurr in section 497 RPC viz,"" in such case the wife shall be

punishable as an abettor,"" does not occurr in section 497 of the IPC.

The argument of the learned counsel for the petitioner does appear to be attractive at first sight, but if one examines its true import and

substance, the argument turns out to be misconceived and fallacious. Primarily, the petitioner alone was subject to the Army Act. Mrs. Dorathya

Vasanthi Kumari the alleged adulteras not being a person subject to the Army Act could not have been tried, either individually or jointly with the

petitioner by a Court Martial. It is only such person, who are subject to the Army Act who can be tried by a Court Martial constituted under the

Army Act for Commission of offences under the Act. No person who is not subject to the Army Act can be tried by any Court Martial constituted

under the Act for any offence under this Act. Apart from that it was for the prosecution to file a case against Mts. Dorathy Vasanthi Kumari for

having abetted the commission of crime under section 497/RPC. Such an act, if attributed to Mrs. Dorathy Vasanthi Kumari could allegedly

constitute an alleged offence under section 109 RFC and was triable by an ordinary criminal court in J&K State. It was for the prosecution or for

that matter, the complainant to set the process in motion for prosecuting the lady under section 109 RPC. Alternatively it can also be Rule 55 said

that at the point of time, the petitioner could have raised a plea under of the Army Rules, 195 4 whereby he could have submitted and prayed to

the Court Martial to the effect that he should be tried, alongwith Mrs. Dorathy Vasanthi Kumari, by way of joint trial u/s 497 read with section 109

RPC by an ordinary civil court and he should not be individually tried by the Court Martial under the Army Act as such. Reference in this

connection may be quoted to sections 125 and 126 of the Army Act. A combined and commulative reading of these two sections clearly suggests

that, if for an offence, criminal court and Court Material have each jurisdiction it shall be in the discretion of the officer commanding the accused to

decide before which court the proceedings shall be instituted, If however, there is a dispute regarding the jurisdiction of the court before whom

proceedings have to be instituted under sub section (2) of section 126, the question has to be referred to the Central Govt. Whose orders upon

such reference have been prescribed to be final and binding upon the parties. Admittedly the commission of offence under section 497 RFC read

with section 69 of the Army Act was such which was concurrently triable by both the criminal court as well as court Martial. At the

commencement of the Court Martial proceedings or at any time prior to that, the petitioner could have invoked these proceedings and agitated

before the appropriate forum, his plea that he should be put to trial before a criminal court so that the alleged a better also joins him and faces the

trial. Because the petitioner did not do that, at that appropriate stage and faced the trial by a court Martial without any murmur or protest, he

cannot be allowed to agitate the issue after his conviction by the Court Martial at this stage in those proceedings before this court.

The fact remains that the petitioner was accused of the commission of an offence and was put to trial in a Court Martial. The fact also remains

that the petitioner was liable to be tried and the Court Martial had the jurisdiction over him. The plea raised by the peitioner that because the

alleged abettor was not tried alongwith the petitioner jointly, the conviction of the petitioner returned by the Court Martial is bad, is wholly

untenable in law. Mr. S C. Gupta learned counsel appearing for the petitioner referred to some judgments of some courts, notably AIR 1925 PC

1, AIR 1967 SC 551, 1983 Cr .LJ 1059 and AIR 1953 Mad. 422 All these judgments are wholly distinctable and nonapplicable to the issues

involved in this petition. Not a single case was brought to my notice whereby it could be said that because an abettor was not tried or punished for

the commission of the offence of abetment the main accused for the commission of the main offence should also be allowed to go scot free.

The trial of the petitioner by the Court Martial did not get vitiated merely because he alone was put to trial. That by itself was not and cannot

be deemed to be any ground for assailing the correctness of the conviction of the petitioner.

No other ground was urged.

For the foregoing reason, I find no occasion to interfere with the finding and sentence recorded and returned by the Court Martial against the

petitioner. The petition, therefore, is dismissed, but without any orders as to costs.