# Giri Ex. Havaldar No. 9212544 v. The Chief

- **Citation:** High Court of Judicature at Allahabad #39169
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/giri-ex-havaldar-no-9212544-v-the-chief-39169
- **Pages:** 3

## Text

2ALL Chief of the Army Staff, Army Headquarters and others V. Laxman Giri 17
Appeals- (1) Any party to the proceedings
under Section 9-A aggrieve by an order of the
Assistant
Consolidation
Officer
or
the
Consolidation Officer under that section, may
within 21 days of the date of the order, file an
appeal
before
the
Settlement
Officer,.
Consolidation who shall after affording
opportunity of being heard to the parties
concerned give his decision thereon, which
except as otherwise provided by or under this
Act, shall be final and not be questioned in
any court of law.

(2) The Settlement Officer, Consolidation
haring an appeal under sub-section(1) shall be
deemed
to
be
a
court
of
competent
jurisdiction,
anything
to
the
contrary
contained in any law for the time being in
force notwithstanding"

5. Thus, if the aforesaid two provisions are
read together it is apparent that the Settlement
Officer Consolidation was acting as a court
and had full jurisdiction to grant or refuse the
stay, which is inherent power of the court and
if an order was passed against the party, it was
interlocutory order during the pendency of the
appeal and no revision under section 48 of the
U.P. Consolidation of Land Holdings Act was
maintainable, therefore, the present writ
petitions filed against the order rejecting the
revision against the interlocutory order, has no
force and is accordingly dismissed.

Petition Dismissed.

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By the Court

1. This special appeal has been filed
against the judgment dated 31 January 1996
on Writ petition No.20174 of 1986. Laxman
Giri Ex. Havaldar No. 9212544 V. The Chief
of the Army Staff. Army Headquarters. New
Delhi and others. The petitioner, Laxman Giri
a non-commissioned officer. Found himself
facing charges before a summary court
marital for being drunk after a Bara Khana
and thereafter while proceeding from the mess
to the lines. Having grabbed the wife of Sepoy
Raghav Singh and placing one hand on her
mouth and with the other fondled her breast.
The incident saw immediate action the Officer
Commanding. 15 Mahar Regiment. To which
the petitioner, Laxman Giri Havaldar, was
attached.
The
matter
was
investigated
summary of evidence was recorded. The
petitioner
was charged, tried and was
sentenced to (a) reduction in rank, (b) suffer
rigorous imprisonment for nine months which
sentence would be carried out by confinement
in civil prison and (c) dismissal from service.
18 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
2. Apparently, the submissions as were
made on behalf of the petitioner were that for
want of procedure, in conformity with Section
120 of the Army Act, 1950. The entire
proceedings were bad. At the very outset, this
Court places on record that the leaned judge
was in error in the judgment. On record of the
writ petition lies a supplementary affidavit,
affirmed on 5 March 1995. Which read with
the record produced shows that there was full
compliance of section 120 of the Army Act
read with rule 130 and the reference, in fact,
had been made as the Army Act rules and
regulations so required. The matter had been
processed on a reference being made to the
judge Advocate General Department, before
trial. The proceedings had been signed by
Colonel, Deputy judge Advocate General
Headquarters 10 Corps. The army had taken a
decision that the matter calls for an immediate
attention and thus without delay, the summary
of evidence had been recorded. In the
circumstances, this aspect of the record was
not noticed by the learned judge and to that
extent the judgment is in error.

3. Besides, one needs to keep in mind that
there are four kinds of court martial (a)
general courts-martial; (b) district courtsmartial; (c)summary general courts-martial;
and (d) summary courts-martial1. The present
case is of summary court-martial which can
be held by the Commanding Officer of any
corps, department or detachment of the
regular army.2 In the circumstances of the
present case, trial by summary court-martial
was not out of place nor bad for lack of
jurisdiction. The satisfaction whether there is
or "there is no grave reason for immediate
action" and whether "detriment to discipline"
will be affected, an aspect mentioned in
Section 120, will be of the Officer concerned.
Maliciousness, mala fides and violation of the
rule of natural justice is not a circumstance in
issue in the present case.

1 Section 108 of the Army Act, 1950
2 Section 116 of the Army Act, 1950
4. Besides, as soon as the proceedings
were initiated ultimately to culminate in a
verdict by summary court martial, the
petitioner on 18 November 1985 had a
statement recorded that whatever he had done,
was under the influence of liquor and he was
prepared to accept any punishment and in
future he would not dink or do any such act.
What act the petitioner did as a consequence
of being drunk, stands recorded in the
proceeding. The proceedings were yet to
culminate but had begun on a complaint of
Raghave Singh, Sepoy, making allegations
under Section 354 of the Indian Penal Code,
1860. The complaint was, to the effect, that
the
petitioner,
Laxman
Giri
a
noncommissioned officer, had assaulted or used
criminal force with his wife intent to outrage
here modesty. As a consequence of this
complaint, the summary of evidence was
recorded
on
18
November
1985.
The
petitioner, Laxman Giri elected to crossexamine Smt. Sanjari Devi,. Wife of Sepoy,
Raghav Singh, First, the statement of Smt.
Sanjari Devi was recorded who stated that on
Diwali day, i.e. on 12 November 1985, there
was Bara Khana in the unit where all families
had attended. After the Bara Khana was over,
the wives with their husbands proceeded to
the family lines. Enroute, an unknown
individual grabbed her from the rear and with
one hand closed her mouth and with the other
hand pressed her breast. She was carrying her
two year old baby. She cried for help to her
husband who was walking ahead of her. In the
cross-examination,
The
petitioner
asked
questions. It would be best to reproduce the
questions and answers:-

Q. When I caught you which hand did I
use to close your mouth?

A. With the right hand.

Q. When this happened where were your
hands?
2ALL Hari Singh V. The Deputy Director of Consolidation and others 19
A. I was holding my 2 year old baby with
both the hands.

Q. What did you do when I tried to molest
you?

A. I held my child with one hand and
pushed you away with the other."
5. If this was not enough, in February
1986 the petitioner attempted to compromise
with the husband of Smt. Sanjari Devi, In this
compromise, recorded in Hindi the incident is
accepted.
One
glaring
feature
of
this
compromise is that the petitioner, Laxman
Giri was a non-commissioned officer. He was
seeking a compromise with a sub-ordinate, an
ordinary soldier. Raghav Singh whose wife he
had molested was only a sepoy.

6. The balance which remains on record is
of
two
aspects
(a)
a
drunken
noncommissioned officer and (b) molestation of a
soldier's
wife.
Within
the
military,
regimentation calls for stricter standards in
viewing or make eyes on the wives of
colleagues. Even incivility is treated as
statutory misconduct. There is a code of ethics
in the military .An officer including a Junior
Commissioned Officer or Warrant Officer
should they behave so as to present a conduct
unbecoming
of
a
gentleman,
may
be
convicted by court martial or cashiered. This
is so provided in Section 45 of the Army Act,
1950

7. What the petitioner, Laxman Giri, as
Havaldar, did to the wife of a soldier, is worse
than a conduct unbecoming of a gentlemen.
The less said the better. Lustful male
chauvinist passions violating the privacy of a
woman, does not call for any interference by
the High Court.

8. The judgment on the writ petition is,
any case, in error and, thus, set aside. The
special appeal is allowed. The writ petition is
dismissed with costs throughout.
Appeal Allowed.

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