Pre-trial lapses do not vitiate a court martial if trial complies with law, rules High Court

The Delhi High Court has held that pre-trial lapses during disciplinary proceedings do not vitiate the subsequent trial by court martial if it is done in accordance with law and full opportunity of cross-examining witnesses is provided to the accused.

Upholding the conviction and sentence awarded to an Inspector by a General Security Force Court (GSFC) constituted by the Border Security Force (BSF) for allegedly sexually harassing a minor girl, a Division Bench comprising Justice Om Prakash Shukla and Justice C Hari Shankar, held that in the present case denial of cross-examination during the Recording of Evidence (RoE) under provisions of Rule 45B does not, by itself, vitiate the trial where full opportunity of cross-examination was afforded before GSFC.

“A bare perusal of the record shows that the petitioner cross-examined witnesses during the GSFC trial, satisfying the requirement thereof that was omitted in the preliminary stage, and the same does not taint the trial proceedings, as the trial is done in accordance with law,” the Bench said in their order of September 17.

The petitioner, a hockey coach, was tried by court martial for sexually harassing a 12-year old girl who was staying at a BSF hostel in Punjab to learn the sport. She had confided about the incident to another trainee and later told her parents, following which a complaint was made before the BSF authorities.

In his petition, the BSF inspector had contended that there were lapses in pre-trial proceedings, no FIR was lodged in the case, investigations were not done under the Prevention of Sexual Harassment (POSH) Act and the punishment of dismissal and imprisonment could not have been imposed together.

The failure to refer the matter to the internal complaints committee under the POSH Act, does not, by itself, constitute a gross procedural lapse. Even if the child victim falls within the definition of an “aggrieved woman” under Section 2(a), the complaint mechanism under the POSH Act, is to be invoked by the choice of the aggrieved woman or her guardians, the Bench observed.

“In the light of the present case, the child victim and her parents made a conscious decision not to refer the matter to the internal sexual harassment committee and instead chose to file a complaint with the BSF authorities, which cannot be faulted with nor it in any manner caused prejudice to the rights of the petitioner,” the Bench ruled.

The Bench also did not agree with the contention of the petitioner that Section 50 of the BSF Act puts a restriction on combining the punishment of dismissal with certain others prescribed under Section 48 of the said Act.

A plain reading of both the sections express that the GSFC can lawfully award imprisonment together with dismissal from service, the Bench held.

Junking the petitioner’s claims that some witnesses were not examined, the Bench opined that the evidence of direct testimony of the victim cannot be displaced by the non-examination of an additional witness or by immaterial discrepancies.

“Further, this Court finds that the heinous act of sexual harassment of a girl student who is also a minor, by a sports teacher would figure quite high in the list of offences of grave nature since it has far-reaching consequences, which impact more than just the parties to the proceeding and the said gravity stands multiplied in the case of a disciplined force like the BSF,” the Bench remarked.