Order dated 20-09-2023 MA-27/2023 in OA(A)-22/2023 on 20 September 2023

ORDER

20.09.2023 order,allowing the MA 27 / 2023 in OA 22/ 2023 pronounced, signed and dated OUSTICE ANU MALHOTM) MEMBER 0) I i (AIR MARSHAL BALAKRISHNAN u uKr,onT' nnEIvlBER (A)

YERSUS Union of lndra and Ors. ForApplicant For Respondents sentenced to suffer an imprisonment for one MA27l2O23in OA22/2023 Sub(RT) Brijesh Kumar Sharma, COURT No.Z ARMED FORCES ISIBI.INAI REGIONAT BENCH: GUWA}IATI (Tlrough Video Conferencing MA 27 /2023 in OA(Appeal\ 2212023 Sub(RI) Brijesh Kumar Sharma Apphcarfi Mr. Amit rrrrt ^oI:;:**' Mr. PJ. Barman, Advocate OIC Legal Cell

CORAM

ggl\I?tr Ms.JU$flcE ANU MALHoTRA, MEMBER (I) HONTLE AIR MARSHAT BAI.AKRISHNAN STIRESH, MnuTTn (AI

ORDER

20.09.2023 At the outset, it is observedthat the OA(Appeal) ZZ/ZOZT filed by the appellant/applicant in which the MA zr/zozg was filed by the applicant has since been dismissed as withdrawn with liberty granted to the apierrant/applicant herein to seek redressal, if &fry, in accordance with law, if rcquired in the event of confirmation, if any, of the sentence dated 70.01.zozs in rclation to the General court Martial proceedings conducted against the applicant vide which the appellant/applicant was convicted for the commission of the offence punishable under section s54 of the rndian penal Cod,e, 7g60 and, year apart from being

directed to be disrnissed from service, in as much as the application of the applicant under Section 1G4(1) of the Army Act, 1g5O was still pending consideration on rc.og.zoZ3 when the MA zr/zozs was heard.

2. At the outset, on behalf of the respondents, it was sought to be contended that in as much as the application under Section 164(1) of the Army Act, 195o was still pending and that thus the requisite remedies in terms of Section Z7(1) of the Armed Forces Trlbunal Act, 2oor having not been exhausted by the applicant, the application seeking the grant of bail/suspension of the conviction of the sentence of simple imprisonment for one year was wholly premature and rcliance in rclation thereto was placed onbehalf of the respondents on the order dated 13.12.2018 of the Armed Forces Trlbunal(pB) in oA 1256/2018 in the case of Major General Basaraj G. Gilganchi vs Irnion of rndia & ors. to submit to the effect that the applicant was mandatorily rcqufued to exhaust all remedies avairable in law in terms of the Army Act, 1g50 before seeking any redressal before the Armed Forces Trlbunal onbehalf of the apphcant, on the other hand, reliance was placed on the verdict of the High court of Delhi in the case of ll,Iajor sawabh saltaran ys Irnion of rndia & a$ d,ated, 19.03.2073 in wP(c)1755/zo7s and cM/ggss/zots with specific rehance on obsenrations in Para g which read to the effect: MA2712023in oA22/2023 Sub(RT) BrijEsh Kumar Sharma

"9. Ihe order dated Ig.IO.ZO|O of the AIT in Ex.IIav Pzumeshwar Ram vs union of rndia & ors in oA No.47I of zolo had noticed that by uirtue of section s9 of the zooz Act, primacy was accorded to its prouisions by a non-obstante clause. Applyins that logic and having regard to the decisions of the supreme court dealing with the interpretations of statute, especially in cases where two special statutes operated in somewhat similar fields, the AFT was of the opinion that section 164-which was in question in that case and which prouides for statutoty remedy by way of an appeal to the centrar Government, will not preclude the Tribunar from the exercise ofjudiciat power under section 15, even pending the consideration of the stitutory recourse under section 164 by the litigant rhe releuant obseruations of the Tribunal in that regard are as follows: '/38. There is no conllict between the two sections, Section 15 of the Act, 2OO7 and Section 164 (Z) of the Army Act. Both can suruive if our perception is clear that section I S is the judicial reuiew of the administrative action. However, once a judicial power is already exercised and orclers are passed by the authorities, then administrative remedy prouided u,ts 164(2) automatically stand ousted. In this connection, one of the points which has been raised by the "[aipur Bench is with'reference to section 21 of the Act of z0o7 i.e. exhaustion of the alternative remedy under the Act. section 2I uses the word 'ot'dinarily, an application shall not be admitted unless it is satisfied that applicant Wp( C) No.I 755,/2O13 page S had availed the remedy available to him trnder the Act i.e. Army Act, Nary Act or Air Force Act as the case may be. The expression does not mean to prohibit the jurisdiction of the judicial remedy under the Tribunal. This is a rule of prudence that the party should first exhaust as far as possible administrative remedy but that does not touch the jurisdiction of the Tribunal to adjudicate the matter judicially. The judicial determination of administrative action always take precedence over the administrative action. This is a cardinal principle of judicial system. Therefore, section zr wiil not abrogate the power of the Tribunal to entertain appeal against the order of court Martial. Even pendency of petition u/s 164(2) of the Army Act will not prevent Tribunal to entertain appeal u,/s 15 of the Act of zooT against the order of coutt Martial order.

39. Therefore, we hold that uiew taken by the AfT(/aipur Bench) does not lay down a correct law and we hereby over rule MA2712023in OA22/2023

PageS of22

the same" The three questions which have been referred to the Tribunal are answered as under: (I) section 15 will over ride section 164 of the Army Act and the Tribunal has full jurisdiction to entertain the appeal notwithstanding any petition filed by aggrieved party u/s 164 of the Army Act, 1950. (z) The power u/s I s of the Tribunal is not dependent on the statutoty representation u,/s 164(2) of the Army Act, 195O" It is independent adjudicatory power and appeal against the order passed by the Coart Martial or any connebtion therewith will be maintainable.

(3) The pendency of the petition under section 164 will not bar to exercise of power u,/s IS of the Act. Once the judicial determination has taken place then it witt be binding on the parties and thereafter no further interlbrence by the section 164 of the Army is permissible.

10. The terminologlt used in section ls(I) makes it clear that the Tribunal shall exercise all jurisdiction, powers and authorities in relation to appeal against any orcler, decision, finding or sentence passed by a coutt martial ot" any matter connected therewith or incidental thereto. In other words regardless of whether under section ISS of the Army Act has confirmation been done or not, the legatity of the proceeding leading up to the imposition of a sentence, is open to question befote the Tribunal; and latter would be within its rights to exarnine and pronounce upon it. Likewise, the power conferred under'section 15(3) is not constrained by any consideration of pendency of statutory remedies or procedures like section I SS and 164 of the Army Act. In this uiew of the matter, this Coart has no doubt that the Tribunal possesses the jurisdiction to decide upon the legality of the proceedings and procedure adopted by the court martial, irrespective of whether or not confirmation had taken place. Likewise, it should have, in the opinion of this court, at least in this case, examined the merits of the application for bail, hauing regard to the fact that the petitioner had remained in custody for about 34O days.

11. While on the subject the court is minclful of the circumstance that the petitioner in this case is aggrieved of procedural uiolations, which ordinarily would have been open to examination in proceedings under Article 226 of the constitution of India.

12. The formation of AfT by uirtue of the Z0O7 Act was for the creation of an efficacious, expensive and speed dispute resolution mechanism. It was not the intention that some of the temedies such as WP( C) No.I75S/2OIS page 7 questioning the MA27/2023 in aA22/2023

legality of a Court proceeding during its pendency by seeking a writ or direction in the nature of certiorari, would get lost by the enactment of the said Act.

13. This conclusion is fortified by the expressed terminologlt used in section 14 which has conferred upon the Tilbunal, on and from the appointed date, all jurisdictional powers and authorities exercisable immediately beforc that date, by all courts.

14. It is, therefore, held that any order, drcision, finding or sentence passed by a court martial or any other matter connected therewith or incidental thereto would be within the Tribunal,s authorily and jutisdiction. The Tribunal would be competent to pronounce upon the proceedings and procedure adopted by the Court martial, pending confirmation of sentence.

15. Furthermore, there is no clispute about the fact that the petitioner has been in military custody for nearly a year. The court has carefully considered the nature of ailegations leveled against him and the punishment imposed. para s9z(I) of the Regulation of the Army, no doubt empowers the army authorities to detain those convicted of offences by court martial or helcl guilty. Nevertheless, the confirmation proceedings under section 153 have to be expeditious, keeping in mind the length of custody already undergone by the person connived.',

3. on a consideration of the submissions made on behalf of either side, it is essential to advert to section 1s of the Armed Forces Trlbunal Act,2OO7 which provides to the effect: r'15. /uridiction, powers and authority in matterc of appeal against court martial.-@ Save as otherwise expressly prouided in this Act, the Tribunal shall exercise, on and from the'appointed day, all the jurisdiction, powers and authorifir exercisable under this Act in relation to appeal against any order, decision, finding or sentence passed by a coutt-martial or any matter connected therewith or incidental thereto.

Any person aggrieved by an order, decision, finding or sentence passed by a coufi-mafiial may prefer an appeal in such form, manner and within such time as may be prescribed. MA 27 /2023 in OA 22/2023

G) G) 71te Tribunal shall ltave pwers to grant bail to any person accud of an offence and in mili@ castodyr- with or without any conditions which it considers neca;ry.: Prcvided tltat no accuffd rrerson shalt be so tereared if therc appears teasonable grcund for fuIieuing that he has fuen guilty of an offence punishable with d;th or impXwmint for life. The Tribunal sha, alrow an appear against conviction by a court-martial where- the finding of the court-martiar is regaily not sustainabre due to any reason whatsoever; or the finding involves wrong decision on a question of law, or theie was a materiar irregularity in the courses of the trial resu I ting in miscarriage ofjustice, But, in any other case, may dismiss the appeal where the Tribunal considers that no miscarriage of jusfice is tikely to be caused or has actually resulted to the appellant. Prouided that no order dismisstng the appeal by the Tribunal shall be passed unress such order is made ifter recording reasons therefor in writing. The Tribunal may allow an appeal against conuiction, and pass appropriate order thereon. Notwithstanding anl.thing contained in the prorisions of this section, the Tribunar shail have the jowir to- substitute for the findings of the court-ntartiar, a finding of gailty for any other offence for which the offender JouH have been lawfuily fottndguilty by the court-mattial and pass a sdntence afresh for the offence specified or involved in iuch findings under the prouisions of the Army Act, lg5o(46 of 1950) or the Nary Act, 195Z(62 of I9S7) or the Air Force Act, 195O(n45 of lgS0), as the case may be; or (b) if sentence is found to be excessive, illegal or unjust, the Tribunal may-

(i) remit the whole or any part of the sentence, with or fwithout conditions;

(ii) mitigate the punishment awarded.

(iii) coimute sich punisnm""r-i, ,ri, lesser punishment or punishment mentioned in the Army Act, 135O(46 of 1950), the Nauy Act, 175Z(62 of I7SZ) and the Air Force Act, 195O(45 of l gSO), as the case may be ; ( c) enhance the sentence awarded by a court_martial:

(a) @)

(c)

(a) MA27/2023in OA22/2023

provided that no such sentence sha, be enhanced unress the appellant has been given an opportunity of being heard. @) release the appellant, if senteiced to imprisonment, on parole with or without conditions; (e) suspend a sentence of imprisonment; (fl , pass any other order as it may think appropriate.

(z) Notwithstancring any other prouisiois in this Act, for the purposes of this section, the Tribunal shall be deemed to be a criminal court for the purposes of Sectjons I7S, 17g,, I 29, r 80, I9s, I gs, t g6 or 2zg of the Incrian penar Code(4s of 196o) and Chapter xxxvl of the code of criminar procedure, I?ZS(Z of 1974). (emphasis suppliecl) Abarc perusal of Section 1S(S) of the Armed Forces Tribunal Act, 2007 makes it apparent thatthis Tribunarhaspowers to grant balrto any person accused of an offence and in miritary custody with or without any conditions which it considers necessary, subject to the proviso that no accused person shalLbe so released if there appears rcasonable groundfor believing that he has been guilty of an offence punishable with death or imprisonment for life.

4. In relation thereto on a plain readingof Section 1S(B) of the Armed Forces Trlbunal Act, zo0z and-the guidelines laid down by the Hon,ble High court of Delhi in tWjor Sanrabh Saltaranys [rnion of rndia & ors , it is apparent that adjudicatosr powers of this Tribunar in reration to bail applications fired when the personner of the Armed Forces are in military custody i.e. apparently even before the confirmation of the sentence imposed against them are clearly existent and such applicants are maintainablebefore the Armed Forces Tfibunal. MA27/2023in OA22/2023

PageT of 22

5. Qua the merits of the prayer madeby the applicantseeking grant of bail, it is submitted on behalf of the applicant that he has been in military custody since 25"06.202g and thus had undergone TS days of military custody till the date of heanng on 0s.09.zozg and thus on zo.og.zozg i-e- today the applicant has spent 88 days in military custody against the total sentence imposed by the General Court Martial vtde judgment dated 70.08.2023 of one year of simple imprisonm ent awarded to the applicant which judgment itself gives recommendation to mercy in the GCM proceedings which readto the effect: *RECOM:VLENDATIONS TO MERC y The Court has awarded the abovementioned sentence in view of the minimum punishment prescribed under section ss4 of Indian Penal code, 1s60. Tlrc court unanimously recommends the accused to mercy on the ground that his character is exemplary and that therc are no entries in his conduct sheet tiil date and also the fact that the accused has displayed utmost professionalism while discharging military duties in his entirc seruice.,, The applicanthas further submitted to the effect that the recommen dations dated 05.09.2022 of the Dy. Commandant on the basis of the Summary of Evidence thathadbeenled put forward deductions to the effect: "Deduetiplf

4. In uiew of the above, the euidence on record reveals that the fiTst charge can not be held to be true since there have been MA27/2023in OA22/2023

dicltotomies and contradictions" The accusations is subjective and exhaustive and no tangible answers or proof has been provided by the prosecution witnesses in support of the accusation.

5. PW-OI confirming from her mother whether her modesty had been outraged and not raising any objection to what was alleged seems totally fabficated and baseless where as she was subjected to such rituals in the past.

6. PW-OZ's denial to hauing witnessed inapproptiate makes the accusation baseless. It is not possible that the accused has unfastened and ripped off PW-O1's T-Shirt in 3O-4O seconds and PW-OZ did not notice anything. PW-OZ also confirmed that he did not see anything inappropriate happening and he was allowed to see the proceedings of the entire ritual.

7. There may be an element of the build up of a scenario that PW-OI could imagine things happening to her as she dreamt about men grabbing and holding her as also seeing her neighbours as witches. It is a medical condition which only a certifiect medical officer can commeilt upon however, the Regimental Medical Officer did recommend her for psychiatric evaluation. Also she has not had slept fot the past three days prior to 11 ,/anuary, 2022 builds up to the case.

8. The accused has had an impeccable and respectable tenure at 58 Gorkha Training Centre and has performed numerous such rituals and nobody ever complained anfihing about him.

9. Charge one cannot be ascefiained since the accusation could not be pin pointed.

10. Charge two is proven beyond doubts since the same has come ou t clearly throughou t. " MA 27 /2023 in OA 22/2023 Sub(RT) Br'rjesh Kumar Sharma

It was thus vide order dated, os.og.zozz recommend,ed by colonel Vibhu Vashish th a, D eputy Command,ant, t o th e effect: ttBeeommendation 1r" In uiew of the above, in absence of concrusive euidence to substantiate the cltatge one against the accused, I recommend that charge one against the accused be uiewed ob.lectively and be dismissed in totality and since chatge Tno has been proven beyond doubts, the accused be deart with A dm in is tta ti ve ly an d di spos ed off s u m m a ri ly,, Consequentially, the recommendations dated OS.OT.ZOZZ of Brigadier Robi Kapoor, commandant, sS, GorkhaTrainingcentre on the summary of Evidence in respect of JC-62gg6gL, Subedar(Religious Teacher) Brijesh Kumar sharma of 58 Gorkha Trainingcenfre were asunder:- "r agree with the recommendations of the Commanding officer. In absence of conclusive evidence to substantiate charge one against the accused, I recommend that charge one against the accused be uiewed objectively and be dismissd in totality and since charge Tvo has been proven beyond doubts, the accused be dealt with Administuatiuely"

6. The charges framed against the appricant on 1s.06. zozg were to the effect: First Charse Army Act Section 69 MA 27 /2023 in OA 22/2023

COM]VIITING A CIUL OFFENCE, THAT IS TO SAY, USING

Second Charge Army Act Section 63 CRIMINAT FORCE TO A WOMAN WITH INTENT TO OI]TRAGE HER MODESTY, CONTARY TO SECTION 354 OF THE INDIAN PENAL CODE inthathe, at Shillong, on 1 I January,2OZZ, while performing the duties of Religious Teacher of 58 Gorkha Training Centre, used crirninal force to Smt. ABC wife of Rifleman XYZ, by touching her breasts, intending therehy to outrage her modesty. AN ACT PREJUDICAL TO GOOD ORDER AND MILITARY DISCPLINE inthathe, at Shillong, on 11 January, 2002, while performing the duties of Religious Teacher of 58 Gorkha Training Centre, improperly and without authority, performed the superstitious ritual of casting off evil eye on Smt. ABC wife of Rifleman XYZ Even after the recording of the summary of evidence and additi,>nal summary of evidence, colonel vifnu vashishth artheDeputy Comman<lant hadrccommended on 22.02.2023 to the effect: 'After perusal of Summary of Evidence and Additional Summary of Evidence, there is no change observed as per as the context is considered therefore, in absence of conclusive euidence to substantiate Charge One against the accused. I recommend that Charge One against the accused be uiewed objectively and be dismissed in totality and since Charge Two MA 27 12023 in oA 22/2023

Page 1,1 of 22

- has been prove beyond doubts, the accused be dealt with Admin is tra ti vely an d disposed off s umm arily. " 7" Thus or.ce again the Commanding Officer after perusal of the Summary of Evidence and additional evidence Summary of Evidenc: had recommended that there was no change as per context. It wal; aiso submitted onbehalf of the applicant that the Brigadier Commandant'vide recommendations dated 22.02.2023 agreed with the recommendations of the Commanding Officer and had recommendedto the effect: "I agree with the recommendations of the Commanding Officer. In absence of conclusive euidence to substantiate Charge One against the accused, I recommend that Charge One against the accused be uiewed objectively and be dismissed in totality and since Charge IWo has been proven beyond doubts, the accused be dealt witlt Adrninistrafi vely an d disposed off surnrnarily" and thus the Commandant, 58, Gorkha Training Centre had also rccommended as well as agreed with the recommendations of the Commanding Officer that in -the absence of any conclusive evidence to substantiate Charge One against the accused be viewed objectively and be dismissed in totality amd that since Charge TWo has been proven beyond doubts, the accusedbe dealt with administratively and disposed off summarily. It was thus submifted onbehalf of the applicant th;l the conviction of the applicant/appellant was unsustainabLe and that the MA 27 17023 in oA 22/2023

applicant be allowed to be released on ball and. that suspended" the senterrr,e be

8. As rcgards the conviction and sentence in as much as the oA 22/2023 has already been dismissed as withdrawn with libefi granted to the applicant to seek redressal in the event of confirmation( if any) of the sentence, the said aspect is not being considered, ard the present adjudication is only in relation to MA zr/zozg haingbeen filed by the applicant seeking grant of bail in as much as the applicant is in military custody and the sentence imposed by the Generai .tcurt Martial is yet tobe confirmed. vide order dated o5.0g.z0zg, ithadbeen observed by us as under: "It is considered essential that the entire Court of Inquiry proceedings and the entire summary of Euidence be placed on record by the respondents which be so placed on record by 1 I.og.2o23 and a scanned copy thereof be also sent to the Bench at NewDelhi" During the course of the hednng on 0s.09. zozg, it has been obs, rved by us as under: "Pursuant to proceedings dated OI.O7.ZO2S, though the copy of the GCM proceedings have been submitted, the originals have not been submitted. on behalf of the respondents, it has been submitted that the matter is still pending for confirmation of the sentence and thus only the duplicate set of the GCM proceedings has been submitted before the Honwe Bench at Guwahati. It has also been submitted that MA27/2023in OA22/2023

the scanned copy of GCM proceedings thereof has been sent to the Principal Bench at Derhi. However, a perusar of the scannecr documents that have been received, indicate that severar pages are incomplete. In uiew thereo{ the comprete scanned copy of the entire GCM proceedings be praced on record by the respondents and arso be e-mailed to the Registry of the AfT(pB), New Delhi. Furthermore, on a perusal of the records auailable with us, in view of the docurnents annexed ai Annexure-v dated 17.02.2022 wherein it was stated by the Commandant to the effect:- ,,

1. on perusal of the enquiry I concur with the opinion of the court 2' As opined by the court Witness No.og not be conuicted of charge as alleged by the Mrs ABC and Mn XyZ in his complaint. Apropos, the case be treatecl as closed. ccIY cameras be installed inside temple for comprete coverage of the premises.

3.

4. C,/o 99 APO Dt.17 Feb ZOZZ coupled with the factum that uide tecotnmendations datecl Deputy Commandant, it was stated to the effect:_ ,t O5.O9.2O22 of th: "Recommendation al 1. In uiew of the above, in absence of conclusive euidence to substantiate the charge one against the accusey' I recommend that chatge one against the Accused be uiewecr objectively and be dismisd in totality and since charye Tnro has been ptoved beyond doubt, the accused be dealt with Administratiuely and dispred otr sunrmarily. D it is considered essential that the entire court of Inquiry proceedings and the entire summary of Euidence be placed on record L.:.1, the MA 27 /2023 in OA 22/2023

Gr- respondents which be so placed on record by 11.O9.2023 and a scanned copy thereof be also sent to the Bench at New Delhi."

9. Pursu,ant thereto, the respondents have placedbefore us the lettr:r No. 10io/Est(1i1) dated 09.09.2023 which reads to the effect: "HQ lOl Area(DV) PIN -9081O[c/o 99n APO GCM PROCEEDINGS AGAISNT"IC-623863L SW(RTI B K Sharma, 54 GTC Ref HQ 101 Area(DV) letterNo.63802/BKS/DC-1 dt O9 Sep 2023 It is intimated that Court of Inquiry proceedings to investigate into the allegations made against"/C-623863L Sub(RT) Brijesh Kumar Sharma with reference to complaint submitted by No.5762014K Rfn Ajiu Sanari was convened uide convening order No.[OO7,/Est dated 14 Jan 2O22. On completion, the dirns of Comdt, 58, GTC dated 17 Feb. 2022 were issued and twd to HQ lol Area(DV) in triplicate uide our letter No.lOIO,/Est dt. 2I Feb.2O22. However, dirns of Comdt, 58, GTC for said C of I were found by thc perusing auth. GOC lOI Area, not in consoflance with the evidencr'. Thereafter, the convening auth reuiewed the euidence and issued fresh dirns dt 12 Apr 2O22 while cancelling the earlier dirns.

4. For your info and necessary action pl. sd/ (Ravi Kant Kushwaha) Lt.Col.Adjt for Comdt"

10. Onbehalf of the respondents, it was thus submittedthat in as much as the Convening Authority had reviewed the evidence and issued fresh direction dated 12.04.2022 as well as cancelling the earlier directions and had directed to the effect that further disciplinary action be initiated against the applicant, the applicant who had been convicted after trial for the commission of a heltous crime for the offence- punishable under Section 354 of thelndianPenal Code, 1860 for outraging the modesff of awornan ought not to be grantedball.ft was further submitted onbehalf of the respondents that the grant of ball to the

1.

2. J. MA2712023in OA22/2023

Page L5 of 22

applicant would encoutage other personnel of the Armed Forces to commit similar offences. Inter aliaron behalf of the respondents reliance was placed on the Court of Inquiry thathad been conducted and the opinion of the Court of Inquiry with specific reliance on paragraphs s and, 4 as depicted therein as hereinunder: .,OPINION OF THE COURT The Court has the following opinion: 1" Mrs ABC and Rfn xyz have extremely deep-rooted beliefs in supersiitious ptactices ancl have been inAergiing such practices from anyone who courd prouide such seruices. Especiaily Mrs ABC who has been quite frequent in undergoing such practices even before and after marriage.

2. The couple had uisited the witness No.g at the temple voluntarily unannounced and requested the witness No.g to perform the ritual also therc have been no preuious contact or acquaintance of both the indiuiduals which rules out any premeditated intention of the Witness No.S towards Mrs ABC.

3. since no prcuioas cottnection or aquaintance coald fu established between witutess No.1/z and wituess No.g, the possibitity of franing wituess N,s by witutess No. I for vendetta is highly imprcbable.

Rfn xyz was sent out of temple to fetch tlowers fiom the temple garden for the puja/rituar by wibtess No.g at least once if not twice as alleged by witutess No.I tltercby crcatirg a situation whercin both of ttrcm wete alone aad outof anykind of obreruation.

5. Although practices and rituals carried out by the RTJCT were being done in good faith to prouide psychologicat relief to indiuidual and families who are ethnically and culturally superstitious and have a strong belief in such rituals, were tantamount to promoting superstitious and is out of puruiew of any teaching in Army schools of instructions.

6. Absence of any kind of surveillance.means in the temple is a matter of concern and prouides a scope of occurrences of such incidents in future also.r' It was thus submitted on behalf of the respondents that the opinion

11. of the Court of Inquiry obliteruted the possibility MA27l2O23in 0A22/2023

proceedings clearly indicates that it had, not of the commission of offence punish able und,er Page L6 of 22

kr section 354 of the rndian penal code in as much as the it had been observed therein that the possibility of framing the apphcant by the complainant No.I for vendetta was highly improbable and. the scope for the commission of offence by the applicant was clearly brought forth through the evidence recorded for the purpo.se of court of Inquiry.

12. on a consideration of the submissions that have been mad.e on behalf of either side, without any observations on the merits or demerits of the trlal i.e. the General court Martial that had, taken place specially in view of the oA Zz/zjzs having been withdrawn by the applicant with libefi granted,to seek redressal, if ufry, required. in the event of confirmation(if any) of the sentence dated, To.og.zozs imposed, by the General Court Mafiial, it is nevertheless essential to obserye that the directions of the commandant dated, lz.oz.zoz2 pursuant to the court of Inquiry conducted clearly indicatedto the effect:

1. on perusalof the enquiryIconcurwiththeopinion of the court. Z}s op,;nedbl the court wifiress No.Og not be conyicted of charge as allegel,by Mrs ABC andRfn XIZ in his cornplarnt.

3. Apropos, the casebe fueated,as closed.

4. ccIV cemeras be installed inside templefor complete coverage of the premises.2 Thus, as on the date i.e. 1T.OZ.ZOZZ, it had Commandant to the effect that the applicant been the opinion be not conyicted of the of the MA 27 12023 in OA 2212023

Page L7 of 22

charge as alleged by the complainant and alleged by Mrs ABC and Rfn xYZ in the compl aint and that the case be treated, as closed. 13" undoubtedly, reriance has been placed, by the respondents on the observations dated lT.lo.zozz by the Lt.Gen. General officer Commanding to the effect: n|. I have perused the Summary of Euidence alongwith the documents placed on record. 2 On conjoint reading of the documents along with the deposition of the witnesses, it has emerged that the pafticular case stems from the complaint fited by Number 5762O14K Rifleman Ajju Sunari of SS Gorkha Training Centre, wherein he has alteged JC_62Sg6S Subedir Religious Teacher) Brijesh Kumar Sharma, of exercising criminal force to outrage the modesty of his wife on it "[anuary 2OZZ. The alleged incident took place at the Center Mandir, while the complainant and his wife had undergone a ritual to wade off evil spirit on their own rcquest. 3 While going through the documents, it can be discerned that, on 1 1"/anuary 2022, there was at least one instance if not twq wherein the accused and the uictim were alone in which the alleged act of outraging the modesty of the uictim took place. Also the accused himself instructed the husband to go out to fetch llower thus creating a situation of suspicion. The reporting of the incicrent by the uictim has come out sequentiaily and does not raise suspicion of any significant fabrication or after thought. It is quite natural to share such incident to her mother as the uictim was just 21 years old and in these ages, mothers normally are the close confidant in these matters. 4 It has been observed that whire recording the statement, the,[unior Commissioned Officer has vehemently denied the allegations leveled against him and has cross examined r :'iix r:.;r i x ; xf:;l xx;i;r,::,n indicate the reasons for fatsery impticating him by the uictim. Moreover, no fact has emetged which could infer any preuious acquaintance or indicate any element of MA27/2023in OA22/2023

animosity between the uictim and the accused. The fact that needs due consideration that, it is quite obuious not to have eye witnesses in such atteged ,ii-"r. Therefore, in the particular case the deposition of the victim, despite being the onry witness cannot be entirery ignored and the same needs to be considered in right of the attendant circumstances. S It seems highly untikely that uictim would levy such a grave allegations again* the Religious Teacher /unior Commissioned officer without the grain of truth in it. In such cases of sexual assault as alleged by the uictim, the burden of proof rie with the accised )nd none of the wt"tness nor any euidence ptoves innocence of the accused. Moreover, the accused enjoys the position of power in the instant case. Haring considered the factuar matrix of the ca'ce it emerges that the particurar case has sufficient euidence to justify the accused to undergo the tnat.

Therefore, upon holistic and comprehensive examination of the case, I am of the consideied opinion that, to meet the ends of justice and subsequent to zero torerance toward such offences in the orginization, it is recommended to put the case into triat by a General Couft Martial.,

14. It cannot be overlooked that: o the recommendations in o the recommendations O5 .09 .2OZZ, and the Court of Inquiry, of the Commanding Officer dated 05.09.2022 after o the recommendations of the Command.ant dated, recording of the Summary of Evidenc e, and the recommendations 22.02.2023, and of the Commanding Officer dated MA27/2023in oA22/2023

' the recommendations of the command,ant d,ated, zz.oz.zozs after recording of the Summary of Evidenc e and, the Additi onal Evidence, were all to the effect that that Charge One against the applicantwas not established and be dismissed in totality and the factum that though through the letter dated og.og.zozs as placed on record. by the respondents, though it has been stated to the effect that directions dated 17.02.2022 of the court of Inquiry were found by the perusing authority 101 Area not in consonance with the evidence and thereby the Competent Authority reviewed and cancelled, the earlier directions, for issuing of fresh directions, the said reyiew with the reasons recorded by the competent authofity and issuance of fresh directions dated,

72. O4.2022,have not been placedbefore us.

15. In the circumstances in the instan t caserin as muc h as the applicant undoubtedly as a Religious Teacher had conducted several similar rituals as conducted in the case of the complainant with the applicant having held an unblemished record w.ithout eyen a red ink entry against him, coupled with the factum that the applicant has since been in military custody till today for about gg days without there having been a conffumation of the sentence imposed on him coupled,with the factum of there being Yarylng opinions in the Court of Inquiry and the observations dated 17.10.2022 of the Lt. General, General officer commanding the consistent recommendations through the court of Inquiry and thatof the MA 27 /2023 in OA 22/2023

Page?O of 22

commanding officer and the recommendations of the commandant twice, that there was no conclusive evidence in relation to charge one against the accused/applicant and, that the said charge be dismissed in totahty, it being the cardinar principie of criminar jurisprudence that where there are two views possible on eviden ce led, the view that is in favour of the accused reaning towards his innocence ought to be accepted. cannot be overlooked.

16. In view of these circumstances, the appricant is herd entitled tobe allowed to be released on balr taking into account the factum that the applicant is in military custody for the last Bg days with there being no valid sentence against him, in view of section 1sB of the Army Act, 1g50 which provides to the effect: o153. finding and sentence not vati4 unless conf)itmd.-No finding or sentence of a generar, district or sunmaty general, court_martial shall be ualid except so far as it may be confirmed as prouided by this Act.,,

77. The appricant is thus 'arlowed to be rereased on bail tilr the confirmation(if any) of the senten ce d.ated. lo.og.zozs and,til the d,ate,the oA(Appeal) if any filed by the applicant in accordance with law is taken up for consideration by the Armed Forces Tribunar on furnishing abail bond of Rs.IO,OOO/ - with one surety of the like amount to the satisfaction of the Principal Registrar, Armed Forces Trlbunal(pB), New Delhi, (which MA27l2O23in oA22/2023

it t, ,a t (Ju$rrcE AI.IU MALHOIRA) MEMBER CI (ArR MARSHAL BALAKRItr,lffiftHtXl lcball,,!,,/ MA27lzo23inAA2z/2o23 Sub{RT} Brijesh Kumar Sharma

,l ,'