Ex-Jc311921Y Sub Opem, D. Joseph Selva … vs Union Of India on 1 July, 2026

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    Kerala High Court

    Ex-Jc311921Y Sub Opem, D. Joseph Selva … vs Union Of India on 1 July, 2026

                                                       2026:KER:48663
    
    
    
    
                   IN THE HIGH COURT OF KERALA AT ERNAKULAM
    
                                      PRESENT
    
                  THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
    
           WEDNESDAY, THE 1ST DAY OF JULY 2026 / 10TH ASHADHA, 1948
    
                            WP(CRL.) NO. 601 OF 2026
    
    PETITIONER/APPLICANT:
    
             EX-JC311921Y SUB OPEM, D. JOSEPH SELVA KUMAR​
             AGED 51 YEARS, MADRAS ENGINEERING GROUP RECORDS,
             PERMANENT RESIDENT AT NO. 282, THIRUKOVILUR ROAD,
             VETTAVALAM VILLAGE AND POST, THIRUVANNAMALAI DISTRICT,
             TAMIL NADU - 606 754 (NOW KEPT IN CENTRAL PRISON, BENGALURU),
             REPRESENTED BY HIS WIFE, M. JOSEPHINE REENA, W/O. JOSEPH SELVA
             KUMAR, 282, TIRUKOVILUR ROAD, VETTAVALAM THIRUVANNAMALAI
             DISTRICT, TAMIL NADU [MOB. NO. 94923 01521, AADHAR NO. 7469
             8616 1949]
    
             BY ADV SRI.V.SANTHARAM
    
     RESPONDENTS/RESPONDENTS:
    
          1 UNION OF INDIA​
            REPRESENTED BY ITS SECRETARY, DEPARTMENT OF MILITARY AFFAIRS,
            GOVERNMENT OF INDIA, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW
            DELHI, PIN - 110011
    
          2 CHIEF OF ARMY STAFF​
            ARMY HEAD QUARTERS (AHQ), DEFENCE HEAD QUARTERS (DHQ),
            INTEGRATED HEAD QUARTERS (IHQ), NEW DELHI, PIN - 110011
    
          3 THE GENERAL OFFICER COMMANDING​
            HEAD QUARTERS, SOUTHERN COMMAND, PUNE, MAHARASHTRA,
            PIN - 411001
    
          4 GENERAL OFFICER COMMANDING-IN-CHIEF​
            KARNATAKA & KERALA SUB AREA, 4/2, CUBBON ROAD, SAMPANGI
            RAMANAGAR, BANAGALORE, KARNATAKA, PIN - 560001
    
          5 THE COMMANDANT MEG CENTRE​
            BANGALORE, KARNATAKA, PIN - 560042
     WP(Crl). No.601 of 2026
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        6 PRINCIPAL CONTROLLER DEFENCE ACCOUNTS (PENSION)​
          DROUPATI GHAT, ALLAHABAD, UTTAR PRADESH, PIN - 211014
    
        7 THE OFFICER-IN-CHARGE​
          RECORDS, MADRAS ENGINEERING GROUP, PIN - 900 493,
          C/O. 56 APO
    
        8 THE COMMANDING OFFICER​
          CIMT, DEPOT BATTALION, MEG CENTRE, BANGALORE,
          PIN - 560042
    
        9 PRESIDING OFFICER​
          GENERAL COURT MARTIAL,
          MADRAS ENGINEERING GROUP AND CENTRE, BANGALORE,
          KARNATAKA., PIN - 560042
    
        10 MISS XYZ​
           C/O OFFICER-IN-CHARGE MEG RECORDS, NE SECTION, MADRAS
           ENGINEERING GROUP, BANGALORE, PIN - 560042
    
              BY ADVS.
              SRI.P.SREEKUMAR, ASGI
              SHRI.GOVIND P., CGCR
    
            THIS WRIT PETITION (CRIMINAL) HAVING COME UP        FOR
       ADMISSION ON 01.07.2026, THE COURT ON THE SAME           DAY
       DELIVERED THE FOLLOWING:
      WP(Crl). No.601 of 2026
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                                     JUDGMENT
    

    This writ petition (criminal) has been filed by the wife of the convict, for

    an offence punishable under Section 69 of the Army Act, 1950, for committing

    SPONSORED

    a civil offence, that is to say, aggravated sexual assault punishable under

    Section 10 of the Protection of Children from Sexual Offences Act (for short

    POCSO Act“) 2012. The said order was passed by the General Court-Martial.

    After conviction, the convict preferred an appeal before the Armed Forces

    Tribunal, Regional Bench, Kochi. Along with the appeal, the appellant had

    moved an application seeking bail and an order seeking suspension of

    sentence. The Armed Forces Tribunal, which considered the bail application,

    dismissed the same vide Ext.P5 order dated 27.02.2026. Ext.P5 order is now

    under challenge in this writ petition.

    2. The essential facts necessary for the disposal of the present writ

    petition can be epitomised as follows;

    The petitioner’s husband enrolled in the Indian Army in the year 1994,

    and after several years of service, he was promoted to the rank of Subedar.

    It was while working as Chief Instructor Workshop (CIW) of Madras Engineer

    Group (MEG) & Centre at Bangalore that he was chargesheeted for the

    offence under Section 69 of the Army Act, 1950 for committing a civil offence,

    aggravated sexual assault contrary to Section 10 of the POCSO Act, 2012.
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    3. The allegation in the said case in brief is that on 04.05.2023, while

    the victim’s father was working as a Junior Commissioned Officer and was

    cleaning his newly assigned quarters, he instructed his minor daughter aged

    about eight years to borrow an additional wiper from a neighboring quarter.

    Accordingly, the victim went to the quarters of the accused. After handing

    over the wiper to the victim, and when she turned to exit the quarters, the

    accused held her from the waist and rubbed his hand on her vagina.

    4. Following the incident, the father of the victim lodged a written

    complaint before the Commanding Officer alleging that his minor daughter

    had been subjected to molestation by the accused. Pursuant to the complaint,

    a Court of Inquiry was convened, during which evidence was recorded in a

    summary manner. Thereafter, the Commanding Officer issued a draft

    charge-sheet, and the accused was tried by a General Court-Martial. Upon the

    conclusion of the trial and the proceedings, the General Court-Martial found

    the accused guilty under Section 69 of the Army Act, 1950, for committing a

    civil offence, namely aggravated sexual assault punishable under Section 10

    of the POCSO Act. Consequently, the accused was convicted and sentenced to

    undergo rigorous imprisonment for a period of five years, and he was

    dismissed from service.

    5. Following his conviction, the convict preferred OA (Appeal) No. 06 of
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    2025 and, along with the appeal, filed a Miscellaneous Application seeking an

    order suspending the sentence and to grant bail before the Armed Forces

    Tribunal, Regional Branch, Kochi. However, the said application was dismissed.

    Aggrieved thereby, the present writ petition has been filed by the wife of the

    convict.

    6. I heard Sri.V. Santharam, the learned counsel for the petitioner and

    Sri. P. Sreekumar, learned Additional Solicitor General of India, as instructed

    by Sri. Govind P., the learned Central Government Counsel. The records have

    also been perused.

    7. The learned counsel for the petitioner submitted that, since the

    petitioner’s husband has been convicted for an offence punishable under the

    POCSO Act, the mandatory procedures governing the investigation of offences

    under the said Act ought to have been strictly complied with. According to the

    learned counsel, in the present case, the recording of the victim’s statement

    under Section 164 of the Code of Criminal Procedure, 1973 by a Judicial

    Magistrate, the video recording of the victim’s statement and other mandatory

    investigative procedures were indispensable to ensure a fair and proper

    investigation, which, in turn, would facilitate a fair trial. It was contended that

    the failure to conduct the investigation in accordance with the provisions of

    the Code of Criminal Procedure as well as the POCSO Act is fatal to the
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    prosecution. According to the learned counsel, the Court of Inquiry, which

    conducted the preliminary inquiry, neither complied with the aforesaid

    statutory requirements nor was it vested with the authority to do so. It was

    therefore contended that the absence of an investigation by the police into

    the alleged incident has caused serious prejudice to the convict and has

    vitiated the proceedings. It was further submitted that the Armed Forces

    Tribunal, while considering the application seeking suspension of sentence

    and grant of bail, failed to take into account the fact that the convict has been

    in custody for more than eighteen months. According to the learned counsel,

    his continued incarceration is unwarranted, particularly when the petitioner’s

    husband is having an arguable case and a fair chance of acquittal. The

    learned counsel, therefore, urged that this Court should exercise its

    jurisdiction under Article 226 of the Constitution of India, set aside the

    impugned order, and direct the release of the convict on bail.

    8. Per contra, the learned Additional Solicitor General of India

    submitted that the Armed Forces Tribunal has already dismissed the

    application filed by the convict seeking suspension of sentence and grant of

    bail. According to the learned ASGI, this Court, while exercising its jurisdiction

    under Article 226 of the Constitution of India, is not expected to sit in appeal

    over an order passed by the Armed Forces Tribunal or the findings recorded

    by the General Court-Martial. It was further contended that if the convict had
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    any grievance regarding alleged procedural lapses or non-compliance with the

    mandatory provisions governing the investigation of offences under the

    POCSO Act, such contentions ought to have been raised before the General

    Court-Martial at the appropriate stage. The learned ASGI further submitted

    that, by virtue of Section 69 of the Army Act, 1950, the General Court-Martial

    is competent to try civil offences, including offences punishable under the

    POCSO Act. The learned ASGI also submitted that the grant of bail in a case

    of the present nature would send an inappropriate message to society and

    may undermine the deterrent effect of the law in respect of offences against

    children. It was further contended that it is the responsibility of the

    Commanding Officer to maintain discipline within the military establishment

    and to ensure that incidents of this nature are dealt with firmly. It was also

    submitted that, assuming there were any procedural irregularities in the

    proceedings before the Court of Inquiry, the same are matters to be

    considered by the Armed Forces Tribunal while adjudicating the appeal

    preferred by the convict against his conviction and sentence. On these

    grounds, the learned ASGI prayed for dismissal of the writ petition.

    9. Before delving into a detailed discussion regarding the rival

    contentions raised, it is to be noted that this is a case in which a minor girl

    aged only about eight years was molested by a Subedar in the Military. The

    accused is convicted on an allegation that he had grabbed the minor girl from
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    the waist and rubbed his hand on her vagina while she reached his quarters

    to collect a wiper, a cleaning material, as directed by her father. The offence

    for which the convict stands convicted is undoubtedly grave in nature.

    Furthermore, the convict has already been found guilty by the General

    Court-Martial. Consequently, the presumption of innocence, which ordinarily

    enures to the benefit of an accused during the pre-conviction stage, no longer

    operates in his favour.

    10. Moreover, as rightly contended by the learned ASGI, the

    maintenance of discipline within a military establishment, as well as the safety

    and security of the occupants of the residential quarters attached thereto, is

    of paramount importance. It is the responsibility of the Commanding Officer

    and other competent authorities to ensure the maintenance of such discipline

    and security. In that view of the matter, unnecessary leniency in the matter of

    bail in cases of this nature may send an inappropriate message and

    undermine the deterrent object of the law.

    11. Although the the learned counsel for the petitioner had raised

    some contentions regarding non-compliance of procedures of the

    investigation mentiond under the POCSO Act, it is to be noted that as per

    section 69 of the Arms Act, any person subject to this Act who at any place in

    or beyond India commits any civil offence, shall be deemed to be guilty of an
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    offence against this Act and, if charged therewith under this section, shall be

    liable to be tried by a court-martial and, on conviction, be punishable as

    follows, that is to say-(a) if the offence is one which would be punishable

    under any law in force in India with death or with transportation, he shall be

    liable to suffer any punishment, other than whipping, assigned for the

    offence, by the aforesaid law and such less punishment as is in this Act

    mentioned; and (b) in any other case, he shall be liable to suffer any

    punishment, other than whipping, assigned for the offence by the law in force

    in India, or imprisonment for a term which may extend to seven years, or

    such less punishment as is in this Act mentioned.

    12. It is an undisputed fact that the convict is a person subject to the

    provisions of the Army Act, 1950. The General Court-Martial has already

    recorded a finding that the convict committed a civil offence, that is to say,

    aggravated sexual assault punishable under Section 10 of the POCSO Act,

    within the meaning of Section 69 of the Army Act. Therefore, there is no

    illegality in treating the commission of the said civil offence as an offence

    under the Army Act. Consequently, the General Court-Martial had the

    jurisdiction to try the said offence.

    13. As regards the contentions relating to the alleged procedural

    irregularities in the investigation and the proceedings preceding the trial, I am
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    not inclined to undertake a detailed examination of the same, as those issues

    can be more appropriately and effectively considered by the Armed Forces

    Tribunal while adjudicating the appeal preferred by the convict against his

    conviction and sentence.

    14. It is true that the general procedure governing the investigation of

    a case registered alleging offences under the POCSO Act has to be conducted

    in accordance with the procedures prescribed under the Code of Criminal

    Procedure, 1973. The POCSO Act also contains certain provisions regulating

    the manner in which such investigations are to be conducted. However, if it is

    held that a Court of Inquiry has no authority to inquire into an allegation

    merely because certain procedural requirements contemplated under the

    Code of Criminal Procedure or the POCSO Act cannot, in practical terms, be

    strictly complied with, the very object of Section 69 of the Army Act, which

    enables the trial of persons subject to the said Act for civil offences by a

    Court-Martial, would be rendered largely ineffective. Moreover, it cannot be

    undermined that the Army Act is a completely self-contained comprehensive

    code specifying the various offences under the said Act and prescribing the

    procedure for detention and custody of the offenders, investigation and trial

    of the offenders by Court-Martial, the punishment to be awarded for various

    offences, execution of such sentences and the grant of pardons, remissions

    and suspensions in respect of such sentences.

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    15. Accordingly, the conviction cannot be held to be illegal solely on

    the ground that no FIR was registered or that no police investigation was

    conducted. A Court-Martial trying a civil offence under Section 69 of the Army

    Act functions within a distinct statutory framework, independent of the

    ordinary criminal justice process. The relevant inquiry is whether the

    provisions of the Army Act and the Army Rules, together with the principles of

    natural justice and the requirements of a fair trial, were substantially complied

    with. Whether there were any procedural irregularities, and if so, whether

    such irregularities caused prejudice to the accused or adversely affected the

    fairness of the trial, are matters that require a detailed examination of the

    record and can be more appropriately considered by the Armed Forces

    Tribunal in the pending appeal.

    16. As already noted, the convict stands punished for a grave offence

    involving the molestation of a minor girl within a military establishment.

    Unlike an application for bail at the pre-conviction stage, the presumption of

    innocence does not enure to the benefit of a person who has already been

    convicted. Further, as rightly contended by the learned Additional Solicitor

    General of India, an unduly lenient approach in the matter of post-conviction

    bail in cases of this nature may send an inappropriate message to society.

    17. In the above circumstances, I am of the considered view that no
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    ground is made out for interference with the order passed by the Armed

    Forces Tribunal declining suspension of sentence and grant of bail. However,

    the fact that the convict has remained in custody for the last eighteen months

    after his conviction and that his appeal is still pending cannot be overlooked.

    Accordingly, this writ petition is disposed of with a direction to the

    Armed Forces Tribunal to hear and dispose of O.A. (Appeal) No. 06 of 2025 as

    expeditiously as possible, at any rate within a period of four months from the

    date of this judgment.

                                               ​       ​   ​      ​    Sd/-
                                                   ​           JOBIN SEBASTIAN
                                                                    JUDGE
    
        ANS
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                        APPENDIX OF WP(CRL.) NO. 601 OF 2026
    
       PETITIONER EXHIBITS
    
       Exhibit-P1             TRUE COPY OF THE OA(APPEAL) NO. 6 OF 2025
                              ALONG WITH ANNEXURES-A1 TO A10 FILED BEFORE
                              THE TRIBUNAL, KOCHI
       Exhibit-P2             TRUE COPY OF THE ORDER DATED 23.09.2025
                              PASSED   BY   THE   ARMED   FORCES   TRIBUNAL,
                              REGIONAL BENCH, KOCHI IN O.A.(APPEAL) NO. 06
                              OF 2025
       Exhibit-P3             TRUE COPY OF THE M.A. NO. 369 OF 2025 IN
                              OA(APPEAL) NO. 06 OF 2025
       Exhibit-P4             TRUE COPY OF THE OBJECTION TO THE BAIL
                              APPLICATION M.A. NO. 335 OF 2025 ALONG WITH
                              M.A. NO. 446 OF 2025 TO ACCEPT THE OBJECTION
                              ON FILE
       Exhibit-P5             TRUE   COPY  OF   THE   COMMON   ORDER   DATED
                              27.02.2026 PASSED BY THE TRIBUNAL, KOCHI IN
                              M.A. NO. 335 OF 2026 AND IN M.A. NO. 69 OF
                              2026 IN OA(APPEAL) NO. 06 OF 2025
       Exhibit P6             TRUE COPY OF THE CONSIGNMENT/MO TRACKING
                              REPORT RELATING TO THE CONSIGNMENT NO.
                              EL761745333IN OF THE DEPARTMENT OF POSTS,
                              GOVERNMENT OF INDIA
     



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