Union Of India vs S.S.Bedi on 29 July, 2020


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Supreme Court of India

Union Of India vs S.S.Bedi on 29 July, 2020

Author: L. Nageswara Rao

                                                                             Non-Reportable


                                IN THE SUPREME COURT OF INDIA
                               CRIMINAL APPELLATE JURISDICTION

                                    Criminal Appeal No. 13 of 2013
                         UNION OF INDIA & ORS.
                                                                       .... Appellants
                                                       Versus

                         LT. COL. S. S. BEDI                      …. Respondent (s)
                                                    WITH

                                   Criminal Appeal No. 997 of 2013

                         LT. COL. S. S. BEDI
                                                                       .... Appellants
                                                     Versus
                         UNION OF INDIA & ORS.
                                                                  …. Respondent (s)

                                               JUDGMENT

L. NAGESWARA RAO, J.

1. These Appeals have been preferred against the

judgment of the Armed Forces Tribunal, Principal Bench,

New Delhi (hereinafter, ‘the Tribunal’) by which the

conviction of Ex. Lt. Col. S. S. Bedi by the General Court

Signature Not Verified
Martial was affirmed. However, the sentence of cashiering
Digitally signed by
GEETA AHUJA
Date: 2020.07.29
16:30:56 IST
Reason:

from service was converted into a fine of Rs.50,000/- by

the Tribunal. An application filed by Ex. Lt. Col. S. S. Bedi

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for granting permission to file an Appeal was dismissed by

the Tribunal. The Appellant has filed Criminal Appeal

No.997 of 2013 aggrieved by the judgment of the Tribunal

upholding the conviction ordered by the General Court

Martial and imposition of fine of Rs.50,000/-. The Union of

India has filed Criminal Appeal No.13 of 2013 aggrieved by

the alteration of sentence from cashiering from service to

imposition of fine. For the sake of convenience, we will

refer to the parties as they are arrayed in Criminal Appeal

No.997 of 2013.

2. The Appellant was commissioned in the Indian Army

Medical Corps on 24.07.1966. He was posted at Base

Hospital Lucknow as a Medical Specialist on 03.04.1984. A

complaint was made by two women against the Appellant

on 15.05.1986 that he misbehaved with them during

checkup by inappropriately touching their private parts.

The GOC-in-C directed attachment of the Appellant for

recording of summary evidence which was completed on

30.09.1986. Due to certain procedural irregularities, the

summary of evidence was cancelled on 01.10.1986 and a

de novo recording of summary of evidence was directed.

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On the basis of the summary of evidence, the convening

authority directed trial of the Appellant by the General

Court Martial. On 29.11.1986, a charge sheet was filed

against the Appellant. He was charged for committing a

civil offence that is to say, using criminal force on two

women with intent to outrage their modesty, contrary to

Section 354 of the Indian Penal Code, 1860 (IPC). The

Appellant was held guilty by the General Court Martial on

09.12.1986 and was sentenced to be cashiered from

service on 14.01.1987.

3. The Petition filed by the Appellant under Section 164

(2) of the Army Act, 1950 was rejected on 30.05.1988. The

conviction and sentence of the General Court Martial were

challenged by the Petitioner before the Delhi High Court in

the year 2010. The Writ Petition filed by the Appellant was

transferred by the Delhi High Court to the Principal Bench

of the Armed Forces Tribunal, New Delhi. The Tribunal

upheld the conviction of the Appellant but converted the

punishment of cashiering to a fine of Rs.50,000/-. Being

dissatisfied, the Appellant filed the above Appeal. The

Respondents have also filed an appeal aggrieved by the

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judgment of the Tribunal converting the sentence of

cashiering to a fine of Rs.50,000/-.

4. Mr. Sridhar Potaraju, learned counsel appearing for

the Appellant submitted that the conviction of the

Appellant is unsustainable as the evidence on record was

not properly appreciated by both the General Court Martial

and the Tribunal. He submitted that the evidence of Mrs.

Gita Ray which is in favour of the Appellant has not been

taken into account. He further stated that the testimony

of Lt. Col. R. Sharma is also in favour of the Appellant. He

argued that the physical examination of both the

complainants was necessary for the ailments that were

being suffered by them. One was suffering with bronchial

asthma and the other had complaint of duodenal ulcer. He

stated that the Appellant is 78 years old and the fine of

Rs.50,000/- has already been deposited. In the event of

this Court not accepting his submissions, the sentence

should not be altered, according to Mr. Sridhar.

5. Mr. Vikramjit Banerjee, learned Additional Solicitor

General appearing for the Respondent contended that

there is ample evidence on record pointing to the guilt of

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the Appellant which has been properly appreciated by the

General Court Martial and the Tribunal. The Respondents

are only concerned with the conversion of the penalty of

cashiering to a fine of Rs.50,000/-. The learned Additional

Solicitor General argued that the conversion of sentence

by the Tribunal was unwarranted. The Appellant had

misbehaved with two patients and the expert evidence

also shows that there was no necessity of the Appellant

touching the private parts of the complainants.

6. We are unable to accept the contention of the

Appellant that his conviction is unsustainable. A perusal of

the evidence of the complainants makes it clear that the

Appellant misbehaved with them during the course of their

physical examination. The evidence of PW-13 Lt. Col. R.

Sharma, Physician is to the effect that there was necessity

to examine the cardio vascular system of the patient who

was suffering with bronchial asthma which involved

exposure of chest/breasts and touching of the breasts.

However, squeezing of the breasts and nipples of a lady

patient was unnecessary. In so far as the other

complainant is concerned, Lt. Col. R. Sharma deposed that

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her stomach had to be fully exposed right from the pubic

symphasis to the nipples and in case of complication of

peptic ulcer, even percussion of right side of the chest is

mandatory which involves touching of the breasts. Lt. Col.

Sharma testified that touching of private parts and

squeezing of nipples of such patient was totally

unnecessary. There was no motive for false implication of

the Appellant by the complainants, therefore, we are in

agreement with the conclusion of the General Court Martial

and the Tribunal that the Appellant is guilty of the charge

of using criminal force against two women patients.

7. Mr. Sridhar argued that even if the penalty imposed

by the Court Martial of cashiering from service is upheld,

forfeiture of all the pensionary benefits of the Appellant is

not automatic. He submitted that no order as

contemplated in Section 71 (h) of the Army Act, 1950

forfeiting his pension has been directed by the General

Court Martial. Therefore, the Appellant is entitled for

payment of pension. He relied upon the judgments of this

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Court in Union of India v. Brig. P.K. Dutta (Retd.)1 and

Union of India v. P.D. Yadav.2

8. The punishment that may be inflicted in respect of

offences committed by persons under the Army Act and

convicted by the Court Martial are dealt with in Section 71.

Section 71 (d) refers to cashiering and 71 (h) provides for

forfeiture of service for the purpose of increased pay,

pension or other prescribed purposes. Forfeiture in the

case of a person sentenced to cashiering or dismissal from

the service of all arrears of pay and allowances and other

public money due to him at the time of such cashiering or

dismissal is provided in Section 71 (k). It is relevant to

refer to Regulation 16 (a) of the Army Pension Regulations,

1961, according to which the pension of an officer

cashiered from service may be forfeited at the discretion of

the President.

9. The Respondent in Union of India v. P.K. Dutta

(Retd.) (supra) was Court Martialed and awarded three

years’ rigorous imprisonment apart from being cashiered.

He approached the Delhi High Court complaining against

1
1995 Supp. (2) SCC 29
2
(2002) 1 SCC 405

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the inaction of the authorities in not paying him retiral

benefits. The Delhi High Court held that cashiering does

not itself result in forfeiture of retiral benefits. It was

argued by the Union of India before this Court that

proceedings for forfeiture of the retiral benefits as

contemplated by Regulation 16 (a) of the Pension

Regulations were pending and the High Court ought not to

have allowed the Writ Petition filed by Brig. P.K. Dutta. This

Court was of the opinion that Section 71 relating to the

punishments awardable by the Courts Martials and

Regulation 16 (a) operate in distinct fields. Regulation 16

(a) contemplates a situation where an officer is cashiered

on dismissal or removal from service and provides how his

pension is to be dealt with. Section 71 (h) provides for a

punishment relating to forfeiture of pension at the

conclusion of Court Martial. Finally, it was concluded that

the nature and content of both the impositions is different

and there is no inconsistency between Section 71 (h) and

Regulation 16 (a).

10. In Union of India v. P.D. Yadav (supra) it was held

by this Court that punishment imposed under Section 71 of

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the Army Act and order passed under Regulation 16 (a) of

the Pension Regulations are entirely different. The

submission made that imposition of punishment under

Section 71 of the Army Act and passing of an order under

Regulation 16 (a) would result in double jeopardy was not

accepted by this Court.

11. Punishments awardable by a Court Martial under

Section 71 include cashiering in case of officers and

forfeiture of service for the purpose of pension apart from

the other penalties. Admittedly, the punishment imposed

on the Appellant is only cashiering from service. There is

no dispute that Section 71 (h) forfeiting the pension of the

Appellant has not been resorted to by the Respondents.

There is merit in the submission of Mr. Sridhar that in the

absence of an order passed under Section 71 (h), the

pension of the Appellant cannot be forfeited. The

judgment of the Tribunal by which the punishment of

cashiering from service has been altered to imposition of a

fine of Rs.50,000/- is subject matter of this Appeal which

have been pending for the past seven years. There is

nothing on record to show that proceedings have been

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initiated under Regulation 16 (a) of the Pension

Regulations.

12. By an order dated 20.01.2013, this Court stayed the

execution proceedings only. There may be a justification

for the Respondents for not initiating proceedings under

Regulation 16(a) of the Pension Regulations in view of the

pendency of these Appeals. The Respondents are at

liberty to commence proceedings under the Pension

Regulations for forfeiture of the pension of the Appellant, if

they so desire.

13. The Tribunal converted the sentence of cashiering

into a fine of Rs.50,000/- by holding that the Appellant has

a blemishless record of service. The Tribunal found the

imposition of the punishment of cashiering from service

shockingly disproportionate. The Tribunal also highlighted

the delay in the complaint made against the Appellant. We

are not convinced with the reasons given by the Tribunal

for converting the sentence from cashiering to imposition

of fine of Rs.50,000/-. We restore the punishment of

penalty of cashiering by taking into account the

reprehensible conduct of the Appellant abusing a position

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of trust being a Doctor which is not condonable. However,

we direct the Respondents to consider the entire record of

service of the Appellant and his advanced age while taking

a decision to initiate proceedings under the Army Pension

Regulations. In case the Respondents decide not to initiate

proceedings under Army Pension Regulations, the

Appellant shall be entitled for all pensionary benefits. The

amount of Rs.50,000/- deposited by the Appellant shall be

refunded to him with interest accrued therefrom.

14. The Appeals are disposed of.

………………………………J.

[L. NAGESWARA RAO]

………………………………J.

[HEMANT GUPTA]

………………………………J.

[S. RAVINDRA BHAT]

New Delhi,
July 29, 2020.

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