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