KATHMANDU, Dec 31: Upholding a decision taken earlier by a military court, the Supreme Court on Monday affirmed that the matters concerning the conduct of military personnel fall under the jurisdiction of the Military Special Court.
A division bench of Justices Sapana Pradhan Malla and Purusottam Bhandari upheld the decision of the military court in relation to a rape case involving an army captain and his junior female staff.
The apex court was responding to a writ petition filed by Captain (then serving at the Chandidal Battalion of Nepal Army) Bhupendra Khadka, who had challenged the decision of the Military Special Court at the apex court and had sought the apex court order to overrule the military court verdict, which convicted him seven years ago.
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Khadka had moved the apex court, challenging the verdict given by the Military Special Court which convicted him for misusing his power to have sexual relation with a junior staff Chhabisara Sunar in violation of the code of conduct of military personnel.
The Military Special Court had convicted him of violating Section 52 (g) of the Military Act, 2007 and he was sentenced to 20 days in jail and was dismissed from his position as per Section 101(2)(e)(3) of the same Act. Khadka was arrested while taking Sunar to India for an abortion after she became pregnant as a result of their illegal sexual relation.
Arguing that it was their personal and private matter when he was out of duty, petitioner Khadka had insisted that it was not a matter of violation of any military code of conduct. He had demanded that the apex court revoke the military court's decision, arguing that their private matter came to the public only after he could not afford to pay a large amount of money demanded by Sunar.
Khadka in his petition had claimed that the decision of the Military Special Court cannot be taken as a judicial decision as the constitution has envisioned only three tiers of the judiciary — district courts,
high courts and Supreme Court — to settle legal disputes. The Army Headquarters and the Military Special Court were named as defendants in the case that sought the apex court order to annul the military court's verdict.
The joint bench of justices Malla and Bhandari ruled that the relationship between Captain Khadka and follower Sunar was a kind of influence since this involved unbalanced power relations. The joint bench passed a verdict that Khadka could not be reinstated since he appears to have misused his positional power and economic and social power to exert undue pressure on Sunar to give in to Khadka's sexual advances.
