1. 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.

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 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 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 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 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 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 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.

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 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.