Common Judgment:

P. Sathasivam, J.

Aggrieved by the common order of the learned single Judge dated 19.04.2002 made in W.P.Nos.19155 and 19154 of 1999, the writ petitioners, viz., M. Krishnamoorthy and

K.G. Subramani, preferred the above writ appeals.

2. For convenience, we shall refer the parties, as arrayed before the learned single Judge.

3. Both the petitioners while working in the Indian Army as L/Naick, charge sheeted for a civil offence for outraging modesty of a woman, for which a case was registered against them at Bolarum (Andhra Pradesh) Police Station on 26.02.1997 on the complaint given by the victim Mrs. Subra Saha. As per the complaint, on 20.02.1997, at about 9.50 p.m. when she was walking alone on lake line, two persons tried to over power her by holding her hands and mouth and molested her. To safeguard herself, she injured one of the person. On investigation, it was found, that M. Krishnamoorthy and K.G. Subramani (petitioners), who were attempted to outrage the modesty of the said lady. After investigation, the Bolarum Police found substantial materials against those two persons, and filed a report before the XI Metropolitan Magistrate, Secunderabad. Thereafter, the respondents made a request to the Magistrate under Section 125 of the Army Act,1950 (in short, "the Act"), to transfer the case to them, to be tried under the Act; hence, the same was transferred to the respondents, to be tried by the Court-martial under the Act. According to the respondents, the petitioners were duly informed well in advance about Summary Court-martial as contemplated under the Act. As per the Army Rules, 1954 (in short, "the Rules"), the charge sheet and the summary of evidence were also served on them. On 110. 1988, both of the petitioners were tried by the Summary Court Martial under the Act, and before questioning, necessary warning was also given to them. Both the petitioners pleaded guilty before the Summary Court-martial and summoned mercy and leniency. Based on their statements and their earlier statements given to S. Babu Rao, Sub-Inspector of Police, Bolarum Police Station under Section 161 Cr.P.C. and in view of the gravity of offence committed by the petitioners, both were dismissed from service and sent to civil prison.

4. It is also the case of the Department that since the petitioners committed a civil offence under Section 354 IPC and tried under Section 69 of the Act, i.e., attempt to outrage the modesty of a woman, the trial was carried out and punishment was awarded. It is also their claim that considering the gravity of offence and the punishment prescribed in the Act, the punishment awarded by the Court-martial is fair and just. Questioning the said order of punishment, the petitioners challenged the same by way of separate writ petitions. The learned Judge, by common order dated 19.04.2002, after finding that inasmuch as the petitioners pleaded guilty of the charge levelled against them and the Court-martial followed Rule 115 (2) of the Rules, after rejecting the claim of the petitioners, dismissed their writ petitions. Hence, the above writ appeals.

5. Heard Mr. G. Thangavel, learned counsel for the appellants and Mr. P. Wilson, learned Assistant Solicitor General for the respondents.

6. Mr. G. Thangavel, learned counsel for the appellants/petitioners, after taking us through the entire evidence recorded and the proceedings of the Court-martial submitted that, in view of the statement of the complainant, the charge itself is not maintainable and the respondents ought to have exonerated the petitioners. In any event, according to him, the "plea of guilt" was not voluntary, but due to circumstances, the mandatory conditions prescribed in Rule 115(2) of the Rules have not been complied with; hence, all the punishments awarded are liable to be set aside.

7. On the other hand, Mr. P. Wilson, learned Assistant Solicitor General submitted that, the conditions provided in Rule 115(2) have been ful