‘Army can choose from 2 courts’

In a landmark judgment, the Armed Forces Tribunal has held that the Army has an option to choose between a regular court and general court-martial (GCM) in cases of ‘civil offences’ committed by army men. But, with this order, the GCM has the first jurisdiction to conduct trials against army men not only in cases of civil offences but also in cases registered under Protection of Children from Sexual Offences (Pocso) Act.

The tribunal passed this order while hearing an appeal against conviction of an army doctor convicted and sentenced to five years of imprisonment for molesting a minor girl admitted in Army hospital in Pune.

The division bench of judicial member Brojendra Prasad Katakey and administrative member air marshal D.C. Kumaria of the Armed Forces Tribunal, regional bench at Mumbai, passed this order while hearing an appeal filed by col. Hardeep Singh Bindra against his conviction for aggravated sexual assault on a minor girl in a military hospital in Pune.

The GCM had, in July 2015, convicted Bindra and sentenced him to cashiering and five years of rigorous imprisonment. It held that it was proven that on May 9, 2013, while performing the duties of senior advisor (surgery and cardio thoracic surgery) at Military Hospital CTC Pune, the accused had inappropriately touched private parts of a minor girl, who was admitted there for treatment, with sexual intent. It was alleged that the doctor did not need to touch the private parts of the patient for the treatment that she was undergoing.

Bindra, however, challenged this order on the ground that the GCM does not have the jurisdiction to conduct trials in cases that involve civil offences under the Army Act like in this case, so the same offence was made out under Pocso, a special Act.

His lawyer contended that the Act provides for trial by the court-martial in respect of only ‘civil offence’ that can be tried by the criminal court. This, according to Bindra’s lawyer, meant the court of ordinary criminal justice and not for offences that fall under Pocso.

Special counsel for armed forces Advait Sethna along with advocate Ruju Thakkar opposed the appeal. It was argued that the term ‘criminal court’, as defined in the Act means and includes all courts of ordinary criminal jurisdiction, including the special court constituted under special law, apart from the courts constituted under the CrPC; and hence the GCM had the jurisdiction to try the appellant for commission of the ‘civil offence’. Therefore, they said, it is not correct to say that the provisions of the CrPC are not applicable to the offences committed under a special law like Pocso.

Accepting advocate Sethna’s arguments, the tribunal observed that no argument relating to the merit of the case including violation of any mandatory provision or non compliance of procedural law, lack of evidence or appreciation of evidence, has been advanced by the appellant.

The tribunal also held that the Act has empowered army officers to choose between GCM and a regular court. “If the commanding officer, upon exercise of his option, decides that the offence should be tried by the court-martial, it is not required either to lodge a complaint before the police or to bring the accused before the magistrate, as both have concurrent jurisdiction to try such offenders,” observed the tribunal while dismissing the appeal.