Kiran Raj

The Bombay High Court has dismissed the petition filed by Ex-Lt Col PK Tiwari challenging his conviction and sentence by the General Court Martial (GCM) for offenses under the Protection of Children from Sexual Offences Act, 2012 (POCSO). The petition sought to overturn the judgment of the Armed Forces Tribunal (AFT), Mumbai Bench, which upheld the GCM’s decision. The High Court ruled that no jurisdictional error or violation of fundamental rights was found in the proceedings and upheld the judgment in full.

The petitioner, Ex-Lt Col PK Tiwari, was tried by the GCM under Section 69 of the Army Act, 1950, which allows trial by court-martial for offenses classified as civil offenses. He faced charges under Sections 10 and 12 of the POCSO Act for alleged sexual misconduct involving an 11-year-old girl on February 1, 2020, a day after his posting at the Army Sports Institute in Pune.

The complaint was lodged by a Havildar, the father of the victim, who stated that the petitioner had invited him to bring his two children, an 8-year-old boy and an 11-year-old girl, to meet him. During the meeting, the petitioner allegedly took the girl’s hand under the pretext of reading her palm, touched her thigh inappropriately, and requested to kiss her. The victim immediately informed her father, who then reported the incident to the Commanding Officer. A Summary of Evidence was recorded, and a GCM was convened, which found the petitioner guilty. He was sentenced to five years of imprisonment and cashiered from service. The Confirming Authority approved the findings, and a representation filed under Section 164(2) of the Army Act was rejected.

The petitioner approached the AFT, Mumbai Bench, challenging the verdict, but his appeal was dismissed. Subsequently, he moved the Bombay High Court under Articles 226 and 227 of the Constitution, seeking judicial review of the decision.

The petitioner’s counsel advanced multiple grounds for challenging the conviction:

1. Procedural Lapses – The petitioner alleged that the complaint was improperly recorded and lacked proper acknowledgment from an officer.

2. Complainant’s Alleged Malafide Intent – It was claimed that the complainant fabricated the allegations due to a previous dispute where the petitioner allegedly denied him permission for a training course.

3. Proof of Victim’s Age – The petitioner asserted that the prosecution failed to submit the original birth certificate of the victim.

4. Lack of Sexual Intent – The petitioner argued that his actions were misinterpreted and lacked the criminal intent necessary for conviction under the POCSO Act.

5. Absence of a Court of Inquiry – It was contended that no Court of Inquiry was convened prior to initiating GCM proceedings.

6. Non-Conduct of Medical Examination – The petitioner argued that the absence of a medical examination weakened the prosecution’s case.

The Division Bench of Justice Revati Mohite Dere and Justice Dr. Neela Gokhale examined the claims and ruled that the GCM and AFT had followed due process. The court reaffirmed the Supreme Court’s ruling in Union of India & Others vs. Parashotam Dass (2023), which held that High Courts retain judicial review powers over court-martial decisions where fundamental rights are concerned.

The High Court examined each argument:

• The victim’s birth certificate, issued by the Government of Uttar Pradesh, was produced as evidence confirming her minor status.

• Witness testimonies, including those of officers who were involved post-incident, corroborated the allegations.

• The court acknowledged that the victim’s testimony was consistent and reliable. It referred to the legal principle that a victim’s testimony in cases of sexual assault holds evidentiary value unless contradicted by material inconsistencies.

• The claim of malafide intent by the complainant was dismissed, as there was no supporting evidence.

• The absence of a medical examination was not deemed fatal to the case, as there was no physical injury requiring medical documentation.

• The procedural requirements under the Army Act and Army Rules were followed, and the court found no jurisdictional error in the trial proceedings.

The High Court also took into consideration the legal precedent in State of Punjab vs. Gurmit Singh (1996), which held that the testimony of a victim in sexual offenses must be given significant weight. The ruling stated: "A victim’s evidence stands on par with that of an injured witness and should not be discarded merely due to the absence of corroborative evidence."

The High Court ruled that there were no grounds for interfering with the judgment of the GCM or the AFT. The petition was dismissed in its entirety.

Additionally, the court directed the petitioner to surrender immediately to the Army authorities for further transfer to the designated prison.

Following the pronouncement of the judgment, the petitioner’s counsel sought a stay, which was denied by the court.

Case Title: Ex-LT Col PK Tiwari vs. Union of India & Ors.
Case Number: Criminal Writ Petition No. 2919 of 2024
Bench: Justice Revati Mohite Dere, Justice Dr. Neela Gokhale

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