Judicial review in military court proceedings is limited; intervention is justified only in cases of procedural violations or total absence of evidence, not mere re-evaluation of facts.

JUDGMENT :

Pushpendra Singh Bhati, J.

1. The present Special Appeal (Writ) has been filed by the Union of India under Article 225 of the Constitution of India, assailing the judgment dated 07.01.2014 passed by the learned Single Bench in S.B. Civil Writ Petition No. 1184/1994, Manohar Singh v. Union of India & Ors.

1.1. In the aforesaid writ petition, the writ petitioner–respondent had challenged the order dated 20.05.1993 issued by the Inspector General, Kashmir FTR BSR, Commanding Officer, Srinagar, whereby the findings and sentence awarding five years’ rigorous imprisonment along with dismissal from service were confirmed, as well as the subsequent appellate order dated 27.07.1994 passed by the Director General, BSF, New Delhi, affirming the said punishment. The learned Single Bench of the Hon’ble Court allowed the writ petition; aggrieved by which the present appeal has been preferred.

2. The brief facts culminating in the present special appeal are that the writ-petitioner- respondent herein (hereafter referred to as the respondent), then serving as a Driver in the Border Security Force (BSF), came to be charged for the offence punishable under Section 376 of the Ranbir Penal Code ( RPC ), along with other members of an ambush party, on the allegation that he ravished two women. The remaining members of the ambush party were also implicated in offences relating to murder and causing grievous hurt under various provisions of the .

2.1. The incident is alleged to have occurred during the intervening night of 17/18 May 1990 in a curfew-bound area at the Acchabal–Diagam–Kukamag Road Tri-junction. On completion of investigation, the local police submitted a charge-sheet before the competent Magistrate against 18 accused persons; however, the petitioner was not arrayed as an accused therein. Notwithstanding this, cognizance was taken against all 18 persons. Subsequently, invoking the powers under Section 80 of the Border Security Force Act, 1968, the proceedings were transferred for trial before the General Security Force Court (GSFC), in accordance with the BSF Act and Rules.

2.2. Before the GSFC, a charge-sheet was framed against eight personnel including the petitioner, attributing to him the offence under Section 376 RPC in respect of the alleged rape of Mrs. “M” and Mrs. “A”. During the course of trial, the GSFC examined 24 prosecution witnesses, including both prosecutrix.

2.3. The petitioner has consistently asserted that his name did not find place in the FIR nor in the statements recorded under Section 161 Cr.P.C., and that he was not identified by either of the prosecutrix during two test identification parades. He has alleged grave procedural infirmities in the proceedings before the GSFC and maintained that he was falsely implicated and made a scapegoat, particularly when six prosecution witnesses, initially arraigned as accused, did not depose against him. He further contended that the prosecution failed to adduce any credible ocular or medical evidence substantiating the charge.

2.4. Upon conclusion of trial, the GSFC passed judgment on 10.03.1993 convicting the petitioner, sentencing him to five years’ rigorous imprisonment and ordering his dismissal from service. The sentence was confirmed by the Inspector General, Kashmir Frontier, BSF on 20.05.1993. The statutory petition preferred under Section 117(2) of the BSF Act was dismissed by the Director General, BSF on 27.07.1994.

2.5. Aggrieved thereby, the petitioner instituted a writ petition before the Hon’ble Court, which came to be allowed; the orders dated 20.05.1993 and 27.07.1994 were quashed, the petitioner was directed to be reinstated with