:1:
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPEALLATE JURISDICTION
CRIMINAL WRIT PETITION NO.277 OF 2005
Sri Narayan Rajput,
Ex L/Ck, aged 35 years,
S/o. Kalika Prasad Rajput,
Residing at Care of H-1303,Daffodil,
Jal Vayu Vihar, Sector 20,
Khargar, Navi Mumbai 410210.
...Petitioner.
Vs.
1. The Union of India,
Represented by the Ministry of Defence,
New Delhi.
2. The Chief of the Naval Staff
Neval ig Headquarter,
DHQ Post, New Delhi 110011.
3. The Flag Officer Commanding in Chief
Headquarters, Western Naval Command
INS Angre, SBS Road, Mumbai 400 001.
4. The Commanding Officer
INS Angre,SBS Road, Mymbai 400 001.
5. The Commanding Officer
INS Delhi, C/o. Fleet Mail Office,
Mumbai 400 023.
6. The Commanding Officer,
INHS Asvini, Colaba,
Mumbai 400005.
7. The State of Maharashtra,
Mumbai.
..Respondents.
Mr.Ajit Pal Singh for Petitioner.
Mr.D.N.Salvi along with J.C.Satpute for Respondents.
CORAM: F.I.REBELLO & R.S.MOHITE, JJ.
DATE : 12th December,2008.
ORAL JUDGMENT : (Per R.S. Mohite, J.)
::: Downloaded on - 09/06/2013 14:08:35 :::
:2:
1. This petition filed by Sri Narayan Rajput
(hereinafter referred to as “Petitioner”) seeks a Writ
of Certiorari for setting aside the proceedings of a
summary trial conducted by the Commanding Officer, INS
Angre who is impleaded as respondent No.4 in this
petition. It further seeks reinstatement of the
petitioner without any break in service and with all
service privileges. It seeks initiation of disciplinary
proceedings against one Mr. R.K.Sharma. It seeks
directions to igthe Naval authorities to take action
against Mr.R.K.Sharma for conducting a business of money
lending and lastly it seeks compensation for physical
and mental sufferings undergone by the petitioner whilst
in illegal pretrial custody and as he was imprisoned for
5 days beyond the period of his punishment.
2. The brief facts of the case were as under.
a) The petitioner joined service with the Indian
Navy on 22.1.1986 and in April, 1993 he was promoted to
the rank of Leading (Cook). His service record was
good. Prior to May, 2004 he earned three Good Conduct
Badges. On 4.5.2004, the petitioner allegedly sexually
assaulted one Mrs. Jyoti Sharma, a young girl aged 10
years. Jyoti Sharma was the daughter of one R.K.Sharma
::: Downloaded on – 09/06/2013 14:08:35 :::
:3:
who was then working with the navy as Petty Officer.
The accused was then staying in a part of the house of
the said R.K. Sharma. The quarter allotted to Mr.
R.K.Sharma was Quarter No.S-19, First floor, Old Nevy
Nagar, Colaba, Mumbai-5. It was the case of the
prosecutrix that she returned to her house at about 6.30
in the evening and she found that main door of her house
was open but the room in which her family was staying
was locked. The petitioner was present in the room and
he asked the girl to come in. She watched Television
till 7.30p.m. Thereafter she wanted to go out and play
with her friends. ig The accused however, called her close
to him and then committed certain acts which amounted to
outraging her modesty. After committing such acts at
about 8.30, he gave her the key and allowed her to go.
She went to the park and returned with her mother and
narrated the entire incident to her mother Rekha. Her
mother narrated the incident to her husband Mr.
R.K.Sharma on 6.5.2004 when he returned back from duty.
Mr. R.K.Sharma then lodged a complaint with the Cuffe
Parade Police Station and the said complaint was
registered at the police station vide C.R.No.922/2004 on
8.5.2004. On registration of the complaint, the Cuffe
Parade Police Station arrested the petitioner and
produced him before the Esplanade Court when he was
remanded to police custody till 10.5.2004.
3. On an application made on behalf of the Navy the
::: Downloaded on – 09/06/2013 14:08:35 :::
:4:
Magistrate presiding over the 47 Esplanade Court vide
his order dated 10.5.2004 handed over the case for trial
by a Court Martial under Section 78 of the Navy Act read
with Section 475 of the Cr.P.C. After the matter was so
transferred, charges were framed against the petitioner
as per the Naval rules. Particulars of the two charges
as framed were as follows.
(i) Did between 1900 hours and 1930 hours on the
4th day of May, 2004 then belonging to Indian
Naval Ship Delhi and Now belonging to Indian
Naval ig Ship Angre wrongfully confine Miss Joyti
Daughter of Ravinder Kumar Sharma Pome Number
166968-Z, Aged 10 years at Quarter No.S-19, Navy
Nagar,Colaba, Mumbai thereby committed an
offence punishable under Section 343 of the
Indian Penal Code read in conjunction with
Section 77(2) of the Navy Act, 1957?
(ii) Did between 1900 hours and 1930 hours on
the 4th day of May, 2004 then belonging to
Indian Naval Ship Delhi and now belonging to
Indian Naval Ship Angre assault Miss. Jyoti
daughter of Ravinder Kumar Sharma Pome, Number
166968-Z a woman aged 10 years at Quarter
No.S-19, Navy Nagar, Colaba, Mumbai intending to
outrage her modesty, thereby committed an
::: Downloaded on – 09/06/2013 14:08:35 :::
:5:
offence punishable under Section 354 of the
Indian Penal Code read in conjunction with
Section 77(2) of the Navy Act 1957.
. The petitioner pleaded not guilty to the charges
before the Investigating officer. In his statement
recorded by Investigating Officer on 7.7.2004 he
contended that a false allegation had been made against
him by Mr. R.K.Sharma as he had borrowed monies from
him and it was agreed that money would be returned at
the rate of 350/-p.m. However, he could not repay the
instalments in ig time. He claimed that on 4.5.2004, he
had returned from his shift and watched television upto
18.30 hours and thereafter went out for dinner. That,
on 6.5.2004 at about 8.30p.m. R.K. Sharma had entered
his room under the influence of liquor and had demanded
the immediate return of the borrowed money and when the
monies were not returned Mr. R.K. Sharma abused and
threatened the petitioner that he would ensure that he
would be dismissed from service.
4. The record indicates that after recording the
plea and the statements, Investigating Officer sent the
matter to the Executive Officer who once again recorded
the plea of non guilty and the statement of the
petitioner on 15.7.2004. The matter was sent to the
Commending Officer for trial. The record further
indicates that the Commanding Officer recorded the
::: Downloaded on – 09/06/2013 14:08:35 :::
:6:
statements of various witnesses including the minor
girl, her father R.K.Sharma and her mother Rekha. We
have seen the original file and the file does not
indicate that any opportunity was given to the
petitioner to cross examine any of the witness. The
record indicates that in terms of Regulation 26 of the
Naval Regulation an officer Mr. R. Jaychandran had
been directed to advise the accused. The original file
does not indicate that the statements of the witnesses
recorded were either signed by the petitioner or the
friend officer. The record further indicates that after
the statements ig were recorded, the Commanding Officer
recorded the statements of the accused once again
recording plea of non guilty and further recording the
defence of the accused. This statement of the
petitioner was recorded on 16.7.2004 and was signed by
Mr.R. Jaychandran as well as the petitioner.
5. That, thereafter the Commanding Officer issued a
punishment warrant form under Regulation 16 of the Navy
Regulation and along with the Summary of evidence sent a
complaint for approval of the Chief of Naval Staff. The
Chief of Naval Staff granted such approval on 9.10.20034
and awarded following punishments to the petitioner.
i) Imprisonment for 90 days.
ii) Dismissal from Naval service.
iii) Reduction in rank to Cook (S)I
::: Downloaded on - 09/06/2013 14:08:35 :::
:7:
iv) Deprivation of Third, Second and First Good
Conduct Badges.
. In the aforesaid circumstances, the present
petition came to filed by the petitioner in this court.
6. Though several points were raised in this
petition and were urged on behalf of the petitioner, in
our view the petition can be allowed on the ground of
violation of the rules of natural justice, in so far as
the petitioner was not allowed to cross examine the
witnesses whose ig statements were recorded, the said
ground has been raised by the petitioner in Para-9(g)
and the relevant part of the ground as raised is as
follows:
(g) Because, the Commanding Officer acts as
tribunal within the meaning of Section 3(15) of
the Navy Act 1957, therefore, he performs the
legal duties of a statutory body. Thus it is
incumbent for the Commanding Officer to observe
rule of natural justice, whilst trying the naval
sailors. The object and reasons to incorporate
regulation 25(5)(6) and (7) of the Regulations
for the Navy Part II (Statutory) is to afford
reasonable opportunity to the accused to
establish his innocence and to cross examination
of the prosecution witnesses. In the instant
::: Downloaded on – 09/06/2013 14:08:35 :::
:8:case, no opportunity was afforded to the
petitioner to cross examine the prosecution
witnesses, therefore denied the petitioner his
right of natural justice.
7. The reply to this contention was given in
Para-29 of the affidavit in reply dated 24.2.2005
affirmed by the Chief Staff Officer Western Naval
Command in the following words.
I say that, with reference to para 9(g), the
Petitioner ig is trying to mislead the court by
giving concocted tails. Since the present case
involved a minor child of tender age it was
thought fit of not bringing her to the place of
trial. The petitioner was asked to give the
questions he wanted to put to the victim and the
witnesses. The petitioner framed questions, to
which answers were given by the victim and
witnesses and which were taken down in ink and
shown to the petitioner.
8. In view of this reply, we had called upon the
counsel appearing for the Navy to produce these
questions said to have been given by the petitioner and
the answers thereto given by the victim and the
witnesses. We had also asked him as to whether this
material formed part of summary of evidence which was
::: Downloaded on – 09/06/2013 14:08:35 :::
:9:
sent for approval under Regulation 17. We are informed
by counsel that this material is not available in the
files. It was also fairly conceded that the summary of
evidence which was annexed along with the reply also did
not make any reference to this additional material. It
was also fairly conceded by counsel for the Navy that
from the statements of various witnesses as recorded or
any other record it was not evident that the right to
cross examine any of the witness was offered to the
petitioner. In fact, the reply on behalf of the
respondent indicated that a different procedure was
followed wherein ig the accused-petitioner was asked to
give the questions and the answers were obtained from
victim and other witnesses. As stated aforesaid
however, no such material is shown to us. It is not
specifically denied in the affidavit in writing that the
right to cross examine was not given.
9. As regards the right to cross examine in a trial
conducted by the Commanding Officer, reference may be
made to regulation 27 which provides for the procedure
to be followed at investigation in general. The said
Regulation is in the following terms.
27-Procoedure at investigations in general-(1)
At all investigations the evidence in support of
the charge shall be heard first.
::: Downloaded on - 09/06/2013 14:08:35 :::
:10:
(2) Immediately after the charge has been read
out, the Investigating officer shall warn the
accused that he should not make any statement or
give any evidence on his own behalf until all
the evidence against him has been heard.
(3) On conclusion of the evidence in support of
the charge, the investigating officer shall
decider whether a case has been made out against
the accused.
(4)
ig If there is no case, the investigating
officer shall either dismiss the case or, it
further evidence is likely to become available,
stand it over and if there is a prima facie
case, and it is a simple one with which the
investigating officer thinks he scandal with
himself, he shall ask the accused if he admits
the charge.
(5) If the accused does not admit the charge and
the matter is one within the investigating
offer's powers of punishment, he shall inform
the accused that he will proceed to try the,
giving him an opportunity of making a statement
and calling witnesses.
10. From the aforesaid procedure it becomes quite
::: Downloaded on – 09/06/2013 14:08:35 :::
:11:
clear that what is contemplated by Section 27(1) relates
to evidence in support of the charge. It cannot be lost
sight that these proceedings can result in imprisonment
upto 90- days and also result in other serious
consequence such as loss of service and service
benefits. In our view leading of evidence must include
an opportunity to cross examine the witness who are
examined in support of the charge. In this regard, it
is also relevant to note that Regulation 27(5) also
gives opportunity to the accused also of making a
statement and calling witnesses. It goes without saying
that these defence witnesses can also be cross examined
by the prosecution.
11. At this stage useful reference may be made to a
judgment of this court in the case of Rajesh Singh
Tanwar Vs. Admiral R.L.Pereira and others delivered on
31.8.1985 in Writ Petition No.1369 of 1981. One of the
contention raised before this court in that case was
that the trial by the Commanding Officer was vitiated
because it has been held in violation of rules of
natural justice as copies of such statements were not
given to the petitioner in advance and therefore, he was
not given a proper opportunity to cross examine this
witness. The stand of the Navy in that case was that
the statements of the witnesses were read out very
slowly to the petitioner and he was also asked to cross
examine the witnesses in question but he declined to
::: Downloaded on – 09/06/2013 14:08:35 :::
:12:
cross examine the witnesses. In the circumstances, the
Single Judge of this court concluded from the facts that
it was not possible to hold that the petitioner was not
given any opportunity to cross examine the witnesses.
We note that, in the aforesaid case, it was not the
contention of the Navy that the right to cross examine
was not available at all to the petitioner. In fact, in
the present case also, it was fairly conceded that the
petitioner had a right to cross examine the witnesses.
In fact the onus to prove that the right of cross
examination was given would be upon the prosecution and
they should igtherefore take care to see that the fact
that such a right was offered should be made clear
through an entry in the trial record.
12. In our view, therefore, the petition deserves to
succeed on two grounds firstly that the petitioner was
not given opportunity to cross examine the witnesses and
secondly the additional material in the form of
questions raised by the petitioner and answered by the
witnesses as referred to in Para-29 of the affidavit in
reply were not made as part and parcel of the summary of
evidence required to be forwarded to the approving
officer who approved the punishment. On these two
grounds alone, petition deserves to be allowed.
13. We however, feel that taking into account the
seriousness of this matter, this is a fit case which
::: Downloaded on – 09/06/2013 14:08:35 :::
:13:
deserves remand and a continuation of the trial from the
stage of cross examination. The Advocate for the
petitioner fairly stated that his client did not want to
cross examine all witnesses but would be satisfied if
the victim girl Jyoti, her father R.K.Sharma and mother
Rekha were recalled for cross examination. He waived
his right to cross examine the other witnesses. He also
made a request that in case the matter was remanded, the
petitioner should be given an officer of his choice to
defend himself. We find this contention to be
acceptable. In the net result, we pass the following
order.
ORDER
a. Petition is allowed.
b. The punishment imposed upon the petitioner by
his Commanding officer vide his order dated 9.10.2004 as
approved by the Chief of the Naval Staff vide his order
dated 13.1.2005 is quashed and set aside and the matter
is remanded for further trial before the Commanding
Officer. It is made clear that at the further trial the
Commanding officer will make available three witnesses
i.e. Jyoti R. Sharma, her mother Rekha R. Sharma and
her father R.K. Sharma available for cross examination
by the petitioner. The petitioner will also be entitled
to have an officer of his choice to defend himself. It
::: Downloaded on - 09/06/2013 14:08:35 :::
:14:
is further made clear that it would not be necessary to
recall the witnesses other than the aforesaid three
witnesses for the purpose of cross examination and the
trial will recommence from the stage of cross
examination of the aforesaid three witnesses.
c. We are informed that as the contract of the
petitioner is scheduled to expire on 31.1.2009. In the
circumstances, we further make it clear that in view of
his dismissal for being set aside, he shall be
reinstated only for the purpose of naval trial and will
not be allowed ig to rejoin his duty. He shall enter the
naval premises only for the purpose of trial or for
briefing his defending officer. The trial shall be
treated as continuation of the earlier trial and all
other consequences shall follow the out come of the
trial.
d. Rule is made absolute in the aforesaid terms and
the petition stands disposed off accordingly.
(R.S. MOHITE, J.) ( F.I. REBELLO, J.)
::: Downloaded on - 09/06/2013 14:08:35 :::