It is of paramount importance to note that while dealing with a case pertaining to sexual harassment of a woman officer of the Air Force, the Madras High Court in a most learned, logical, laudable, landmark and latest judgment titled State v Commandant, Air Force Administrative College in Crl.O.P.No.23403 of 2021 and Crl.M.P.No.13845 of 2021 and cited in 2023 LiveLaw (Mad) 205 that was reserved on March 1, 2023 and then finally pronounced on July 20, 2023 has issued a set of most significant guidelines for the Criminal Courts to deal with matters of handing over custody of Armed Personnel.

It must be noted that the Single Judge Bench of Hon’ble Ms Justice RN Manjula held in no uncertain terms that whenever a request for custody is made by a competent authority of the Armed Forces, the Magistrate is to follow the dictum that was laid down in Som Datta v Union of India. The Court also held that when a Court of Inquiry has undertaken an investigation in the matter, it is indicative of an assumption of jurisdiction under Section 124 of the Air Force Act.

It is stated before even the judgment begins while referring to the prayer made in the petition in this judgment that, “This Criminal Original Petition has been filed under Section 482 of Cr.P.C., to set aside the order dated 23.10.2021 passed by I Additional District & Sessions Court, Coimbatore in Criminal Revision Petition No.22 of 2021 partly allowed with modification order passed by CMP.No.20197 of 2021 on the file of the Judicial Magistrate, Additional Mahila Court, Coimbatore.”

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Ms Justice RN Manjula of Madras High Court sets the ball in motion by first and foremost putting forth in para 1 that, “This Criminal Original Petition has been filed to set aside the order dated 23.10.2021 passed by I Additional District & Sessions Court, Coimbatore in Criminal Revision Petition No.22 of 2021 which has been partly allowed by modifying the order passed by the learned Judicial Magistrate, Additional Mahila Court, Coimbatore, dated 30.09.2021 made in C.M.P.No.20197 of 2021.”

As we see, the Bench specifies in para 3 that, “This Criminal Original Petition has been filed by the State represented by the Inspector of Police, All Women Police Station Central, Coimbatore City. The petitioner has registered a case against one Amitesh Harmukh in Crime No.9 of 2021 of All Women Police Station Central, Coimbatore City for the offence under Section 376(1) IPC.”

To put things in perspective, the Bench envisages in para 4 that, “The defacto complainant and the accused are the flight lieutenants in Indian Air Force and they were undergoing a Professional Knowledge Course for seven weeks at the Air Force Administrative College (hereinafter referred as AFAC), Coimbatore from 16.08.2021. On 09.09.2021, after an evening party at the Officers Mess in AFAC with the course officers, the defacto complainant fell asleep at Room No.303 in P-43 Block, Officers Mess on the night intervening 09.09.2021 and 10.09.2021. The room was locked from outside by her friend.

The accused trespassed into her room around 00.30 hours on 10.09.2021 and committed an offence of rape on her. The defacto complainant was unconscious and she was not in a state to offer resistance. After the occurrence, the accused slept next to the victim in the same bed. The victim’s room mate came to the room at around 01.30 a.m. on the same night without knowing the presence of the accused. At about 03.06 hours the friend of the de-facto complainant received a call from her course-mate and asked where the accused was. When she woke up to attend the call, she realized that the accused was sleeping next to her. Even during that time, the victim was not conscious enough to converse well or to give proper answers to her friend.

4.1. On 10.09.2021, the accused sent a Whatsapp message to the defacto complainant’s friend and on getting her permission, he came to their room and confessed about the offence to the defacto complainant’s friend and an another person. Defacto complainant’s friend recorded the confession given by the accused. On 11.09.2021, the defacto complainant preferred a written complaint against the accused to the Air Force Administrative College Authorities (in short AFAC). As per the advice of the officers, the victim had undergone medical examination at the Air Force Hospital on 11.09.2021 at around 19.00 hours. However, she suffered humiliation at the hands of the doctors therein.

4.2. A prima facie fact finding Court of Inquiry was formed to inquire into the matter. Due to the pressure given to the de-facto complainant, she was forced to withdraw the complaint twice. The biological specimen collected from the victim during the medical examination and the semen stained bed sheet taken from the place of occurrence were kept in the Air Force Hospital and they were not sent for forensic examination till 23.09.2021. The accused was roaming freely in the AFAC premises and he was even allowed to sit along with the victim in the classes. Having not satisfied with the way the complaint was handled by the AFAC authorities, the victim preferred a police complaint on 20.09.2021 and consequently a case in Crime No.09 of 2021 was registered under Section 376(1) IPC.

4.3. The petitioner started investigation by going to the scene of occurrence and by examining the witnesses. During that course, the accused was also arrested at 14.22 hours at Room No.4, P-43 Block, Officers’ Mess, AFAC. Prior arrest information was given to AFAC Authorities orally. The grounds of arrest were communicated to the accused in compliance of Section 41-B and 41-D of Cr.P.C and a written intimation was given to AFAC Authorities, but they omitted to give acknowledgement. The petitioner was allowed to take custody of the accused after a long delay. After the accused was arrested, he was produced before the Judicial Magistrate, Additional Mahila Court, Coimbatore, on the same night. The accused was kept under judicial custody till 30.09.2021.

4.4. On 25.09.2021, the respondent filed a petition seeking custody of the accused under Section 124 of Air Force Act, 1950 r/w Section 475 Cr.P.C and the Criminal Courts and Court Martial (adjustment of jurisdiction) Rules, 1978. Hence the custody of the accused was handed over to the air force authorities by the learned Magistrate by an order dated 30.09.2021 passed in C.M.P.No.20197 of 2021.

4.5. The learned Magistrate did not consider the objections raised by the petitioner and also the request for seeking police custody. The order of the Magistrate was challenged before the Principal District and Sessions Court, Coimbatore in Criminal Revision Petition No.22 of 2021. But the said petition was partly allowed with modification vide an order dated 23.10.2021. However, the order of the learned Magistrate to hand over the custody of the accused to Air Force Authorities was not revised. Aggrieved over the said order, this Criminal Original Petition has been preferred.”

Be it noted, the Bench notes in para 36 that, “No doubt the offence of rape falls within the exceptional offences under Section 72 and over which the Court Martial cannot ordinarily exercise jurisdiction. The exceptional offences are murder, culpable homicide not amounting to murder and rape. But denial of jurisdiction to Court Martial is only if the person against whom the offence committed is not a subject of Military, Naval or Air Force law.

The words ‘against a person not subject to Military, Naval or Air Force law’ and ‘such a person’ under Section 72 would only mean that the person should be the person not defined under Section 2 of the Act (extracted supra). However, if any of those offences is committed against a person who is also subject of the Military, Navy and Air Force, the Court Martial cannot be excluded from exercising his option to assume jurisdiction. Even when the victim is not a subject of the Act, under certain circumstances and as specified under Section 72, the Court Martial can exercise jurisdiction. In the instant case the victim is also a subject of Air Force law and hence it cannot be said that the Court Martial cannot exercise option to assume jurisdiction over the offence involved in this case.”

It is worth noting that the Bench notes in para 40 that, “In the instant case, the necessity to register a case by the police arose due to the complaint filed by the victim. Having not satisfied with the way in which the things were handled by Air Force authorities subsequent to her reporting and having faced humiliation and threat to withdraw the complaint, the victim had approached the police.”

Most significantly, the Bench propounds in para 45 that, “To conclude in the background of the above discussions, I feel the following guidelines can be given to the Criminal Courts for dealing with the matters of handing over custody of the subjects of Armed Forces.

1. Whenever the requests for custody is made by a competent authority of any Armed Force, the Magistrate should follow the dictum laid down in Som datt Datta Vs Union of India in letter and spirit by having a comprehensive understanding that if the Court of Inquiry has undertaken the investigation in the matter, it is indicative of assumption of jurisdiction by the Court Martial under Section 124 of the Act.
    
2. Once an option under Section 124 is exercised there is no necessity to continue or complete the investigation by the police and hence the necessity to lay the charge sheet by police before the Criminal Court and the consequential need to invoke Section 475 Cr.P.C read with the corresponding Court Martial (Adjustment of Jurisdiction) Rules, will not arise. Hence an order should be passed that the police shall not continue the investigation unless it is expressly desired by the Competent Authority of the Military, Naval, Air Force, as the case may be.
    
3. Once the Investigation is undertaken by the appropriate Authority, it is that authority or team of authorities who had investigated the offence have to appear before the Court Martial during trial to depose evidence and not the police. Hence if any summons is ordered by the Court Martial through the Magistrate for the appearance of the Police, before serving the same, the magistrate shall clarify whether it was due to the investigation carried out by the Police.
    
4. There need not be any doubt that if the police has undertaken the investigation, the charge sheet has to be laid only before the Magistrate under Section 190 Cr.P.C and not before the Court Martial, even though the Magistrate is obliged to follow sec.125 of the Act. However, such reports will be directly instituted before the Court Martial if the investigation is done by the Court of Inquiry and if the report is filed by the Appropriate Authority.
    
5. So far as the power of the Criminal Court to exercise the option to assume jurisdiction to try the offence, it can be exercised only after the charge sheet is filed and in accordance with Section 125 of the Act.
    
6. While exercising such an option under Sec.125, the magistrate shall put the Appropriate Authority on notice and postpone the trial until his decision or the decision of the Central Government at his instance is obtained and informed to the Court.
    
7. If the request is made by the Appropriate Authority after the charge sheet is filed in accordance with Section 125, due procedure contemplated under Section 475 Cr.P.C and the Court Martial (Adjustment of Jurisdiction) Rules 1978 shall be followed.
    
8. When a subject of the Act is arrested and brought before the learned Magistrate after he was arrested under Section 105 of the Act, the accused should be handed over to the custody of the Military, Navy or Air force as the case may be, if request for custody is made. If no such request is made by the Appropriate Authority for custody, the magistrate shall remand the accused u/s 167 Cr.PC on intimation to the Appropriate Authority, if the offence involved is a civil offence and it is well grounded and over which the Criminal Courts have jurisdiction. If the offence involved is not a civil offence but a military offence or combined with any military offence and over which the Criminal Courts have no jurisdiction, the accused shall be handed over to the custody of the Military, Navy, Air Force, as the case may be, even if there is no written request.

Finally, the Bench concludes by holding in para 46 that, “With the above guidelines, this Criminal Original Petition is disposed. And the Central Government is directed to ensure the proper existence of Internal Complaints Committee in the Armed Forces in accordance with the mandates of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 and to sensitise the armed personnel by imparting gender sensitive awareness training to achieve its objectives. Consequently, connected miscellaneous petition is closed.”

In sum, the most commendable guidelines laid down by the Madras High Court on handing over custody of armed personnel in criminal offences must be strictly implemented. Of course, the dignity and honour of the women is paramount which has to be protected and the armed personnel also must be sensitized as directed hereinabove. No denying!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh