High Court
Case Details
WP(C) 1021/2005 BEFORE HON’BLE MR JUSTICE B. K. SHARMA COMMITTING A CIVIL OFFENCE THAT IS TO SAY SEXUAL INTERCOURSE CAUSED BY A MAN DECEITFULLY INDUCING A
Legal Reasoning
The petitioner is aggrieved by the order dated 14.06.2004 of the General Securit y Force Court imposing upon him the sentence of imprisonment for four years and dismissal from service. The order was promulgated on 18.10.2004 and was also con firmed by order dated 07.10.2004. The petitioner was a constable in the Border Security Force. While in service as such and posted at Masimpur in the district of Karimgang, Assam, the respondent No.4 instituted a court of inquiry and recording of evidence in connection with allegations against the petitioner that he deceitfully induced Manosa Das to be lieve herself to be lawfully married to him and thereby cohabited or had sexual intercourse. After completion of proceedings of court of inquiry and recording o f evidence, charge was framed on 10.04.2004 by the Commandant, 86 Bn. BSF under Section 46 Border Security Force Act 1986 framing two charges as indicated below : First Charge BSF Act 1968 SECTION 47 493 IPC in that he, at the residence of Shri Nagendra Suklabaidya in East Market, Karimganj on the n ight intervening 28/29 Jan 2002, deceitfully caused Miss Monosa Das D/O Girindra Das, R/O Village & P.O- Jaganathi, Distt- Karimganj, Assam, who was not lawfull y married to him, to believe that she was lawfully married to him and in that be lief, she had sexual intercourse with him and that he thereby committed an offen ce punishable under Section 493 of the Indian Penal Code. Second Charge BSF Act 1968 SECTION 46 in that he, at the residence of Miss Madhu Nath, D/O- Kirendra Nath in Surelbagh Lakhibazar, Karimganj on the night intervening 23/24 Mar 2002, deceitfully caused Miss Mono sa Das D/O Girendra Das, r/o Village & P.O- Jaganathi, Distt- Karimganj, Assam, who was not lawfully married to him, to believe that she was lawfully married to him and in that belief, she had sexual intercourse with him and that he thereby committed an offence punishable under Section 493 of Indian Penal Code. COMMITTING A CIVIL OFFENCE THAT IS TO SAY SEXUAL INTERECOURSE CAUSED BY A MAN DECEITFULLY INDUCING A BELIEF OF LAWFUL MARRIAGE PUNISHABLE UNDER SECTION 493 IPC. BELIEF OF LAWFUL MARRIAGE PUNISHABLE UNDER SECTION The respondent No.3 by his order dated 20.05.2004 convened the General Security Force Court for the trial of the petitioner, which was presided over by the resp ondent No.5 and 4 along with the Law Officers. The proceedings of the Court were held by Commandant, 86 Bn, BSF Masimpur (Assam ) from 28.05.2004 and concluded
Legal Reasoning
on 14.06.2004 when conviction and sentence were passed. During trial the prosecution examined 20 witnesses including the victim girl (PW -1). On conclusion of the proceeding, the Court recorded its findings (Annexure- 11) holding the petitioner guilty of the charges and accordingly announced the a foresaid punishment, which was subsequently confirmed by the competent authority . Mr. A. Dasgupta along with Mr. J. P. Sarma, learned counsel for the petitioner s ubmits that the General Security Force Court trying the civil offence under Sect ion 193 IPC is a criminal court by virtue of definition of civil offence as assi gned u/s 2(d) of the BSF Act and accordingly the findings/judgment and convictio n can be assailed by a person aggrieved under Section 397/401/482 Cr. P.C. He ha s further submitted that out of the 20 witnesses examined by the prosecution, PW s 13 to 18, 19 and 20 were examined as additional witnesses, who were neither ex amined in the Court of inquiry nor their evidence were recorded. Mr. A. Dasgupta , learned counsel for the petitioner has also submitted that the copies of the proceeding of General Security Force Court was served on the peti tioner after 14.06.2004 and thus no proper defence could be taken in the repres entation dated 17.11.2004 that was filed by his wife. Although, Mr. A. Dasgupta, learned counsel for the petitioner has urged the afor esaid grounds while assailing General Security Force Court, providing, but in hi s fairness, he submits that by and large the procedure envisaged for such type o f proceeding was followed. However, he submits that the ingredients of the offen ce attributed to the petitioner, and stated to have been committed by him is mis sing and thus, there could not have been any conviction of the petitioner. Refer ring to the decision of the Orissa High Court reported in 1993 Crl.L. J. 1022, A mruta Gadtia, Vs. Trilochan Pradhan and another, he submits that since there was no proof that the petitioner had falsely induced the victim to believe that she was married to him, the charge that was levelled against the petitioner, could not have been established in the proceeding. Countering the above argument, Mr. N. Bora, learned CGC submits that the proceed ing envisaged in General Security Force Court having been followed granting due liberty to the petitioner to defend his case, this Court exercising writ jurisdi ction will not sit on appeal over the findings recorded by the said Court so as to substitute its own finding. Referring to the depositions of the witnesses, mo re particularly, the victim girl, he submits that there was nothing to disbeliev e their version of the story towards accepting the version of the petitioner. Mr . Bora has also placed reliance of the decision of the Apex Court reported in 19 98 1 SCC 537 Union of India and others Vs Major A. Hussain. I have very carefully considered the submissions made by the learned counsel for the parties and have also gone through the entire materials on record. As noted above, Mr. A. Dasgupta, learned counsel for the petitioner in his elabo rate argument has submitted that there was no inducement as such on the part of the petitioner to the victim girl so as to believe that he was her legally marri ed husband. According to him exchange of garlands in the temple as was alleged b y the victim girl, if accepted, the same having no colour of marriage, such exch anging of garlands did not have the potential to induce the victim to believe t hat the petitioner, in fact, had married her. Although, not pleaded in the writ petition it is the submission of Mr. A. Dasgupta, learned counsel for the petiti oner that cohabitation of the victim girl with the petitioner was her voluntary act and there was no inducement as such on the part of the petitioner making the victim to believe that he had married her. Mr. A. Dasgupta has also referred to the evidence of the priest of the particular temple in which the marriage was a llegedly solemnised. The said priest in his deposition has stated that there was no provision for solemnisation of marriage in the temple. However, he, in his d eposition, also stated that there were two other priests apart from him. He also stated that as per the information gathered from the said two priests, no marri age was solemnised in the temple. The victim girl, in her deposition, categorically stated as to how relationship developed between her and the petitioner and also as to how she was taken to the Kali temple for the purpose of marriage. As per her deposition, there was excha nge of garlands and putting sindur on her forehead by the petitioner. It was wit h that identity she was taken to places where the petitioner cohabited with her. The aforesaid testimony of the victim girl will have to be appreciated in refere nce to the affidavit that was sworn in by the petitioner and the victim girl. A copy of the said affidavit has been enclosed as Annexure-VIII, which was also ex hibited as Ext-M. during the proceeding. As per the said affidavit, the parties thereto entered into the marital tie. It is in the evidence that the petitioner, although had cohabitated with the victim girl but insisted her to return the or iginal affidavit. While she declined, she was assulted by him. The aforesaid version of the PW-1, i.e. the victim girl has also been supported by other witnesses more particularly, the lady who had accompanied the couple to the Kali temple where the marriage was purportedly solemnised. Other witnesses have also stated that the couple used to stay like husband and wife. As per the deposition of the victim girl after the purported marriage when the petitioner w ent to Manipur on duty, she had wished him good luck as the situation there was not conducive. In Major A. Hussain (supra), the Apex Court while reiterating that Court Marshal proceeding are subject to judicial review by the High Court under Article 226 o f the Constitution, the Court Marshal is not subject to the supervision of the H igh Court under Article 227 of the Constitution. If a Court Marshal has been pro perly convened and there was no challenge to its composition and the proceeding, which is in accordance with the procedure prescribed in paragraph 23, for that matter any Court must set its hands. It has also been observed in the said judgm ent that proceeding of Court Marshal is not to be compared with the proceedings in a criminal Court under the Code of Criminal Procedure. As observed in the sai d judgment, Court Marshal assumes a significant degree and specialised over all mechanism by which military discipline is preserved. In the instant case, although the petitioner has questioned the General Securit y Force Court proceeding on certain grounds; but on scrutiny of the said grounds , I find that there is no substance, inasmuch as the said grounds are not specif ic and lack in material particulars. The petitioner has also not been able to sh ow any prejudice caused to him. Although, at one stage, the plea was raised that the copies of the proceeding had not been furnished to the petitioner, but it w as pointed out that the documents pertaining to the same were to be made availab le to the petitioner upon confirmation of the sentences and accordingly all the copies had been supplied to the petitioner. It is not for the writ Court to appreciate the evidence on record, which the Cou rt in question has already appreciated. In absence of any plea of perverse findi ng and/or finding without any basis and the evidence, this Court exercising its power of judicial review cannot interfere with the finding recorded by the Gener al Security Force Court. At this stage, Mr. A. Dasgupta, learned counsel referr ing to the evidence of the PW-12 submits that when the PW-1 introduced the petit ioner as her brother-in-law to the said witness, her plea that she was induced t o believe that she was legally married wife of the petitioner is not sustainable in law. His plea may be necessary along with the villager as per the testimony of the priest no marriage was solemnised in the temple. On the scrutiny of the deposition made by the priest (PW-4) what is found is tha t he, in his deposition, he has stated that in the particular temple marriage is not performed. He never said that there was no inducement making the victim to believe that there was a legally valid marriage. As per the evidence of PW-1, the petitioner had taken her to the temple where th ere was exchange of garlands chanting of mantras and simultaneous putting of sin durs. It was that ceremony, which made the victim girl to believe that she was a legally weded wife of the petitioner. Not only that as per her deposition the p etitioner also insisted for cohabitation stating that she being legally married, there was no bar for such cohabitation. As regards the statements of PW-12, the victim had introduced the petitioner as her brother-in-law. Although, the victim was made to believe that she was the le gally weded wife of the petitioner, but there was no social ceremony towards per formance of the said marriage. It was in such circumstances she might have intro duced the petitioner as her brother-in-law to one of the witnesses, which by its elf cannot go to mean that there was no inducement on the part of the petitioner to make her believe that she was legally weded wife of the petitioner. So far as the judgment in Amruta Gadtia (supra) is concerned the said judgment i s of no help to the case of the petitioner inasmuch as the facts involved in the said case is different than the one involved in the present proceeding. In the said case the victim no where stated that the accused had practised deception on her and by such deception she was induced to believe towards becoming his wife. Her only evidence was that having met at the house of the accused they exchange d garlands and then they closed the doors for cohabitation. In the instant case there was good relationship between the parties and one day the petitioner took the victim to the Kali Temple where the kind of ceremony referred to above was h eld. He made her to believe that she became the legally weded wife of the petiti oner after the performance of the particular religious rights. For all the aforesaid reasons I do not find any merit in the writ petition so as to interfere with the impugned orders and accordingly it is dismissed.