Ex Nk (Chef Community) Madhu Sudan Sinha (Army) vs UOI & Others on 19 December 2025

ORDER

19.12.2025

1. Under Section 15 of Armed Forces Tribunal Act, 2007, the Applicant has filed present OA (Appeal) for the following reliefs:- (a) to direct the Respondents to produce the entire record of the case, ie., from the beginning till the end including the Court of Inquiry proceedings, proceedings of hearing of Charges under Army Rule 22, Summary of Evidence, the application made to the concerned authority for convening the GCM and the GCM proceedings including the entire correspondence relating to consideration of various applications/petitions submitted by the appellant during the entire period including

the period when he was awaiting confirmation, promulgation, execution of the sentence proceedings and other record held by them pertaining to this matter and after examining the same kindly quash the confirmed findings and sentence passed by the GCM which have been promulgated and the appellant lodged in the Central Jail, Sriganganagar;

(ii) to direct the Respondents to relieve him of all the consequences of their illegal and unlawful action and holding of GCM without jurisdiction as the exclusive jurisdiction to take cognizance as also to try the offences under the POCSO Act lie with the Special designated Courts under the POCSO Act;

(iii) to direct the Respondents to annul the unjust and unlawful confirmed GCM proceedings;

(iv) to direct the Respondents to reinstate the appellant in service with all consequential benefits and send him to the Military Hospital, Sriganganagar, as directed by them, for further treatment and disposal;

(v) to direct the Respondents to take exemplary cost and compensation to the appellant for causing mental, physical and emotional harassment and torture to him and his family on the basis of unjust and illegal proceedings which are without jurisdiction.

(vi) Any other order which this Hon’ble Tribunal may deem just and proper in the facts and circumstances of the case may also be passed in favour of the appellant.

2. Brief facts of the case as enunciated by the applicant are that he has three daughters and, thus, have a special fatherly affection to girls. On 06.09.2020 (Sunday), after finishing his duty at Cook House, he directly went to Amogh Shopping Complex in Sri Ganganagar,at about 1945-2000 hours to buy household items and after purchasing these items, he sat near Pankhuri Shop to relax there for sometime where he saw a girl child sitting on a bench eating ice cream and out of fatherly affection, he asked her about her name, school and class etc. and tried to help her to swing initially pushing by her knees and thereafter by shoulders. The girl pushed her hands off from her shoulders and said “don’t touch me”. Realizing the fact that the girl child had taken it in wrong sense and called her mother, he left the place and when he was leaving the place, he heard voice of a lady asking him to stop there. Since he was wearing Unit T-Shirt and with a view to avoid humiliation to him and undue disgrace to his unit, he left the place. As the matter was reported to Army authorities and search was carried out for the culprit and the incident was not so as was being interpreted, he decided to report it to his Commanding Officer and explain the same in its entirety. Therefore, on 08.09.2020, the Applicant met with his Commanding Officer and narrated the whole episode explaining his intent as the incident took place out of the fatherly affection only. Despite explaining his

intent, the Commanding Officer was not convinced and, thus, the Applicant was tried by General Court Martial under Army Act Section 69 read with Section 10 of Protection of Children from Sexual Offences (POCSO) Act, 2012 for “Committing a civil offence, that is to say, Aggravated Sexual Assault, contrary to Section 10 of the POCSO Act, 2012”. The Applicant pleaded ‘Not Guilty’ to the charges but the Court found him “Guilty” and sentenced him (i) “to be reduced to ranks”, (ii) “to suffer Rigorous Imprisonment for five years” and (iii) “to be dismissed from service”. However, considering the fact that the Applicant’s wife is illiterate, the Applicant having three minor daughters and he is suffering from disabilities, viz, Diabetes, Primary Hypertension and Dyslipidemia and also his unblemished long service of 20 years with exemplary character, all the members of the Court recommended him for Mercy. The Applicant has raised preliminary objections on the grounds that his conviction and sentence for having committed an offence punishable under the POCSO Act is illegal, the mandate of Sections 19 and 21 have not been followed and that a Military Court (GCM) cannot try the Applicant for the offence under the POCSO Act and, therefore, the entire trial is vitiated.

The Applicant has further submitted that the alleged incident is of 06.09.2020, of which neither an FIR has been lodged as mandated by Section 19 of the POCSO Act (the failure is to punish as per Section 21 of the Act), nor even a written complaint was made to the Army authorities by the girl or her parents. Only on the hearsay, Court of Inquiry (C of I) was ordered on 08.09.2020, which was held from 09.09.2020 to 11.09.2020. The contents of the C of I would reveal that no offence has actually been committed and it was a simple case of misunderstanding. The Applicant had just helped the girl child to swing once each by pushing her from knees and shoulders which was misconstrued as touching her Thigh and Chest. After hearing of charges on the tentative charge sheet on 19.12.2020 and recording Summary of Evidence (S of E) from 20.12.2020 to 02.01.2021, the Applicant was never called and was posted out on 15.07.2021. The contents of S of E would reveal that no offence had been committed. Further, the present Commanding Officer assumed the command on 14.07.2021 and, thereafter, he left for attending Senior Command Course on 22.07.2021. As is known now, he has been either coerced or duped to sign the Charge Sheet dt 19.07.2021, which has been signed by GOC 16 RAPID on 28.07.2021 and on the same day the GOC has convened the GCM. On

perusal of two charge sheets, ie., (i) Tentative Charge Sheet dt 19.12.2020, signed by the previous CO (Col Rahul Agarwal) and (ii) Charge Sheet dt 19.07.2021, signed by the present CO (Col Dhirendra Kumar Singh), it is noticed that the word “Chest” in the tentative charge sheet has been substituted with word “Breast”. The words Thigh and Chest were indicated in both the C of I and the S of E by girl child and also her mother. This is a clear cut case of “Forgery” and it has been done on the advice of the DJAG HQ South Western Command to bring the charge in the four corners of “Sexual Assault” as defined in Section 7 of the POCSO Act, 2012, where the words Thigh and Chest are not there, but the word Breast is there. The GCM has deliberately overlooked the substitution of Word “Chest” in the tentative charge sheet dt 19.12.2020 of the S of E by word “Breast” in the charge sheet dt 19.07.2021 and the prosecutor failed to point out the said variation which materially affected the trial which resulted in miscarriage of justice. Further, the Applicant was neither provided opportunity of preparation of defence during the course of trial and the GCM proceedings continued without providing him an advocate nor was he provided with defending officer till the time Court Martial commenced. The first defending officer left him high and dry during the trial and another defending officer provided to him was incompetent. Moreover, the Prosecution Counsel appointed by the Convening Authority has only 3 years of practice as an Advocate whereas Special Public Prosecutor appointed for carrying out the Trial in the Special POCSO Court is 7 years of practice and, thus, the procedures given in the Army Act and Army Rules have not been complied with. The GCM was clearly prejudiced and under the influence of the Convening-cum-Confirming Authority and as a result of the same, it not only carried out the trial without jurisdiction but came to almost illogical and erroneous findings which are totally perverse and untenable. The GCM failed to follow the cardinal principle of criminal justice, that is an accused is presumed to be innocent unless and until found Guilty. The prosecution has to prove the guilt of the accused beyond reasonable doubt and also the accused is entitled to benefit of doubt whether they are pleaded or not and in the instant case, they were emphatically pleaded.

The pre-confirmation petition filed by the Applicant was dismissed by the Competent Authority on 02.02.2022 and the GCM proceedings along with the conviction and sentence were confirmed by the Competent Authority. The sentence

was promulgated on 09.02.2022 and the Applicant was handed over to Central Jail, Sri Ganganagar (Rajasthan). Now, the Applicant has filed present petition praying for aforesaid reliefs.

3. The Respondents have filed a detailed Reply Statement and submitted that on 06.09.2020, a case of alleged molestation of an 11 years old girl child of Havildar/Clerk XYZ of 516 ASC Bn by an unidentified man was reported near Pankhuri Gift Shop in Amogh Shopping Complex. As per the report the culprit had fled away from the seen of incident when the child raised an alarm and called her mother. The individual was seen by her mother as jumping the wall and running on the road adjacent to the SBI, Sadhuwali Cantt Branch. The identification of the individual was established with the help of CCTV Camera placed out of SBI Bank from behind and using fish image from the same and exhaustive search was carried out at Station level. Later, during the process of searching at unit level, the Applicant walked up on his own to his Commanding officer and confessed his involvement in the incident. Based on the Court of Inquiry proceedings, the Competent Authority ordered to initiate disciplinary action against the Applicant. After completion of Summary of Evidence and other formalities, the Applicant was issued with tentative charge sheet for commencement of GCM. The GCM found the Applicant Guilty of the charge of committing civil offence under Army Act Section 69, read with Section 10 of the POCSO Act, 2012 and he was sentenced to, (i) to be reduced to Ranks; (ii) to suffer rigorous imprisonment for five years; and (iii) to be dismissed from service, subject to confirmation. The pre-confirmation petition filed by the Applicant came to be dismissed by the Competent Authority on 02.02.2022 and the GCM proceedings along with conviction and sentence were confirmed by the Competent Authority and the sentence was promulgated on 09.02.2022 and the Applicant was handed over to Central Jail, Sri Ganganagar (Rajasthan) at 1710 hours on 09.02.2022 under Form ‘B’, Committal Warrant.

In Reply Statement, it is further submitted that with regard to the objections of the Applicant for substitution of word “Chest” to “Breast”, the Respondents have submitted that the tentative charge sheet dt 19.12.2020 with word “Chest” was prepared by the Commanding Officer while conducting hearing of charges against the Applicant and the Charge Sheet dt 19.07.2021, on which the trial was held for

committing an offence of aggravated sexual assault, containing the word “Breast” was framed under Section 10 of the POCSO Act, 2012, after examination and due consideration of applicable provisions of law and the evidence contained in S of E, and after seeking pre-trial advice in the matter.And during the trial, the gird child had categorically deposed, clearly indicating towards her breast that the Applicant touched her thigh and breast. The evidence on record in the deposition of the girl child and his father is clear and cogent that the accused had touched the breast and thigh of the girl child. Therefore, the objection raised by the Applicant is misconceived and devoid of merit. The contention of the Applicant about his disability is afterthought and medical category/medical issues have no bearing on the charges for which he was tried by the GCM and awarded appropriate sentence. The pre-confirmation petition was processed expeditiously and the order dt 02.02.2022 of the confirming authority on the pre-confirmation petition was handed over to the Applicant. The sentence was promulgated on 09.02.2022 in front of two witnesses. Based on the C of I, the hearing of charge was carried out on tentative charge sheet dt 19.12.2020 and subsequently order for recording of S of E was ordered by the Commanding Officer 23 SIKH and the provisions of Rule 22 and 23 at pre-trial stage were duly complied with.

The Applicant was granted full opportunity to defend his case as the trial proceeded on the plea of “Not Guilty”. The Applicant was provided with friend of accused throughout the trial and no objections were raised by the Applicant or his defence counsel during the trial and the Applicant was found “Guilty” by the GCM based on cogent, reliable, convincing and legally corroborative evidence. The evidence so adduced has amply substantiated the accused having committed the offence as charged.

With regard to the contention of the Applicant that without lodging an FIR and bringing the Applicant before the Magistrate, the Applicant should not have been tried by GCM, the Respondents have placed reliance on AFT (RB), Mumbai Order dt 21.05.2016 in OA No 79/2015 in the case of Col Hardeep Singh Bindra Vs UOI & Orswhich held that, “the contention of the Applicant that in the absence of lodging of FIR and without bringing him before the Magistrate, the option of trial by the Court Martial cannot be exercised by the Commanding Officer, cannot be

accepted. The appeal filed against the judgment dt 21.05.2016 being Criminal Appeal No 940/2016 was dismissed by Hon’ble Supreme Court vide Order dt 31.07.2017. Review Petition (Crl) No 459/2017 in Criminal Appeal 940/2016 filed by Col Hardeep Singh Bindra Vs UOI and Ors was also dismissed vide Order dt 12.09.2017. Therefore, the trial of the Applicant by GCM was within jurisdiction and legally valid. The Respondents have also placed reliance on AFT (PB), New Delhi Order dt 22.12.2014 in OA No 149/2014 in the case of Nk Kolekar Dhanagi Hindu Vs UOI & Ors which held that the provisions relating to the procedure under the POCSO Act, 2012 are meant for benefit of the child victim and not for the accused. Sections 19, 21 and 22 of the POCSOAct, 2012 are provided in Chapter V which deals with the “procedure for reporting of cases” and sections 24 to 27 of the Act are provided in Chapter VI which deals with the “procedures for recording statement of the child”. The bare reading of Sections 19, 21 and 22 of the POCSO Act makes it clear that these Sections are made to ensure that the commission of an offence under the POCSO Act is reported and not hidden and also, the victim child should not suffer any disadvantage due to his/her age and the legal action against the offender should be taken swiftly. Further, Sections 24 to 27 of the Act deals with the procedure relating to the recording the statement of the child victim by the magistrate of the police and the same does not talk about the procedural safeguards available to the accused. Thus, no prejudice has been caused to the Applicant by not filing an FIR with the local police, as the father of the victim approached the Army authorities. Further, pre-confirmation petition filed by the Applicant was deliberated upon by the Competent Authority and perused in the light of GCM proceedings and relevant record and, accordingly, the conviction and sentence was confirmed by the Competent Authority on 02.02.2022. The Respondents have further submitted that the Applicant has also not availed the alternative remedy of filing post-confirmation petition. In view of the aforesaid averments, the Respondents have reiterated that the OA (Appeal) is devoid of merit and deserves to be dismissed.

4. We have heard the Counsels for the parties and perused the material placed on record.

5. On the issue of jurisdiction of General Court Martial constituted under the Army Act for trying the offence in question, it is considered that the sameis within the jurisdiction available to GCM, and the objections raised by the Applicant arewholly misconceived and untenable. Learned Counsel for the Respondents referred to various judgments of this Tribunal and that of the Hon’ble Supreme Court and various High Courts to say that a Military Court can try every offence under the special laws like POCSO Act, Prevention of Corruption Act, NDPS Act, etc. He added that in the statute, special provisions are available and the safeguards and protection in the Special Acts have been followed and the Military Court can prosecute an individual for an offence committed under various Acts like POCSO Act, NDPS Act, etc. In support of his contention, he has placed reliance on AFT (RB) Mumbai Order dt 21.05.2016 in OA No 79/2015 in the case of Col Hardeep Singh Bindra Vs. UOI & Ors and the Order of the Hon’ble Supreme Court dismissing the Appeal filed by Col Hardeep Singh Bindra in Crl. Appeal No 940/2016 on 31.07.2017. As far as this case is concerned, prima facie, we find that the issue has been decided in various cases and recently on 02.06.2022, the High Court of Jammu, Kashmir and Ladakh at Jammu in the case of Nk Bibhu Prasad Vs UOI & Ors in WP(C) 947/2022 has negated similar contentions and from Paragraph 12 onwards of the judgment, arguments identical in nature had been considered and rejected.

6. It is evident that the Applicant was present near Pankhuri Shop in Amogh Shopping Complex in Sri Ganganagar Military Station (Rajasthan) on 06.09.2020. The presence of the Applicant at the place of incident is not in dispute as per his own sworn statement as well as through the cross examination of witnesses.Further, the Applicant had moved to his Commanding Officer on his own on 08.09.2020 and accepted his involvement in the incident. The statements of the girl child and her parents stand well corroborated with each other as well as that of other independent witnesses and there was nothing on record before the Court which believed that other witnesses had no interest in the matter whatsoever to have deposed in favour of the prosecution. Further, the unit of the father of the victim girl child was different and they had no previous acquaintance or enmity with the Applicant and have no motive to falsely implicate him on this charge. The Applicant has also deposed that he had not seen the girl or her parents before the incident. The court found that the prosecution had clearly succeeded in proving its case beyond

reasonable doubt but the Applicant had failed in discharging the said burden of proving it to the contrary and kept changing his stand with regard to the incident and having material changes and contradiction in the line of his defence. Further, the Applicant has also not denied that he had physically touched the girl child on his own without having been asked and there was nothing on record which could suggest that the Applicant had no sexual intent. Rather, as acceded to by the Applicant, he was constantly following the girl child, especially when she had expressed her disinterest as she was not talking to him and changing her positions. Immediately on raising the alarm by the girl child, instead of helping her to take her to his mother, he fled away from the scene by jumping over the wall which reflects his guilty mind. The girl child has categorically stated that the touch of the Applicant was a bad touch, which her actions and reactions also meant during the incident, as she was pushing his hands away. These circumstances indicate the existence of such mental state on part of the Applicant to sexually assault the child with sexual intent. Further, the provisions available in Army Act, 1950, Army Rules, 1954 and POCSO Act, 2012 were duly followed by the General Court Martial and the Applicant was provided with defending officer of his own choice who remained present throughout the trial. Further, the Applicant also availed the services of Defence Counsel. The court was also adjourned at the request of the Applicant/his Defence Counsel for preparation of the case. In the present case, the lodging of an FIR was not mandatory as the incident took place in the Cantt area itself and the same was reported to Army Authorities by the father of girl child himself and the cognizance of the same was rightly taken by the Army Authorities. AFT (RB) Mumbai in the case of Col Hardeep Singh Bindra (Supra) has also held that in such cases, lodging of an FIR is not mandatory. AFT (PB), New Delhi in the case of Nk Kolekar Dhanagi Hindu (Supra) also held that the provisions of the POCSO Act, 2012 are made to ensure that the commission of an offence under the POCSO Act is reported and not hidden, the victim child should not suffer any disadvantage due to his/her age and the legal action against the offender should be taken swiftly. The Word “Chest” was rightly replaced with “Breast” as per the statement and expressions of the girl child and in terms of the provisions of POCSO Act, 2012. Further, the pre-confirmation petition filed by the Applicant was considered by the Competent Authority in the light of the questions raised by the Applicant and after detailed consideration, the conviction and

sentence awarded to the Applicant was confirmed by the Competent Authority vide Order dt 02.02.2022 and the sentence was promulgated on 09.02.2022 in the presence of two witnesses. The Applicant failed to produce evidence in rebuttal in support of his defence and against the charges levelled against him to prove his innocence in General Court Martial proceedings. Moreover, Sections 29 and 30 of POCSO Act, 2012 provide that where a person is prosecuted for committing or abetting an attempt to commit offence under this act, the Special Court shall presume him guilty. Sections 29 and 30 of POCSO Act, 2012 reads as under:- “29. Presumption to certain offences. – Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3,5,7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.

30. Presumption of culpable mental state. –

In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.

Explanation. – In this section, “culpable mental state” includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.”

7. In view of the above, it is evident that no prejudice has been caused to the Applicant and due process was followed by the Respondents in conducting the General Court Martial of the Applicant, the Applicant was awarded minimum punishment of five years jail as prescribed under POCSO Act, 2012.

8. The Applicant was granted full opportunity to defend but he had failed to prove his innocence in the case. Hence, we find no reason to interfere with the conviction and sentence awarded to the Applicant by General Court Martial. The OA (Appeal) is devoid of merit and, hence, is dismissed.

9. Since the sentence of the Applicant is under suspension till finalization of this OA (Appeal) and the Applicant is on bail vide Order dt 14.12.2023 passed by Hon’ble High Court of Judicature for Rajasthan at Jodhpur, we direct the Applicant to report to Central Jail, Sriganganagar (Rajasthan)within a period of 30 days from the date of passing of this Order to serve out the remaining part of the sentence awarded to the Applicant, failing which Superintendent, Central Jail, Sriganganagar (Rajasthan) is directed to take necessary action in accordance with law in order to execute the order of sentence awarded vide impugned Order dt 02.02.2022.

10. No order on costs.

11. Pending Miscellaneous Application(s), if any, also stand disposed off.

12. Registry is directed to send copy of this Order to Superintendent of Jail, Sriganganagar (Rajasthan) through Registered Post and also deliver a certified copy of this Order to the Applicant or his Counsel forthwith.

(SANJIV MITTAL)

(GOVERDHAN BARDHAR) MEMBER (A)

MEMBER (J)

Ssy/-

13. After pronouncement of Order, Learned Counsel for the Applicant made an oral prayer for granting Leave to Appeal to the Hon’ble Supreme Court. As we do not find any point of law of general public importance involved to grant Leave to Appeal, the oral prayer is rejected.

(SANJIV MITTAL)

(GOVERDHAN BARDHAR) MEMBER (A)

MEMBER (J)

Ssy/-