PETITIONER: UNION OF INDIA & ORS. Vs. RESPONDENT: HIMMAT SINGH CHAHAR DATE OF JUDGMENT: 12/05/1999 BENCH: G.B.Pattanaik, K.T.Thomas JUDGMENT:
PATTANAIK,J.
The Union of India in this appeal has challenged the
judgment dated 12.11.1993, of the Division Bench of Bombay
High Court in Criminal Writ Petition No. 1511 of 92. The
respondent Himmat Singh Chahar, who was serving as a petty
High Court assailing the order passed against him in the
Court Martial Proceedings and the High Court by the impugned
judgment quashed the said order in the Court Martial
Proceeding. In the Court-martial the respondent was found
guilty of offence under Section 354 and was sentenced to
imprisonment for 9 months, and his services were terminated.
Facts culminating in the aforesaid order of the High Court
may be briefly stated as under.
The respondent had joined the Indian Navy on 24.6.78
and in November 1990 he was a petty officer (Telegraphist)
in the submarine and was thus away from his quarters on the
shore. On 28.11.1990 one R.K. Sharma, another officer
belonging to Navy came with his wife Mrs. Nirmala Sharma
and having failed in his attempt to get any vacant quarters
moved into Quarter No. 3B and shared the same with the
family members of the respondent. On 3.12.90 said
respondent took permission from his authorities to leave
submarine and come to the shore for taking his family
members to the hospital for medical check up and early
morning came to his quarters and left for the hospital with
his wife and two sons. It is alleged that he returned back
home at about 9.00 a.m. while Mrs. Nirmala Sharma was
alone and tried to outrage her modesty when said Mrs.
Nirmala Sharma opened the door. Mrs. Sharma then somehow
extricated from the clutches of the respondent and rushed to
the house of one Mrs. Mandal whom she knew earlier and
persuaded her to intimate her husband who was also away from
the quarters so that he can come back. Mrs. Sharma did not
intimate about the aforesaid criminal assault on her by the
respondent to said Mrs. Mandal though she insisted that she
will not leave her house until and unless her husband comes.
Her husband came on the next day i.e. 4.12.90 to whom Mrs.
Sharma narrated all that happened on the previous day
whereafter a complaint was made to the superior authority
against the respondent alleging that modesty of Mrs.
Nirmala Sharma had been outraged by the respondent. On the
basis of the complaint a Court Martial Proceeding was
initiated and in the said proceeding the respondent was
found guilty of the charge under Section 354 of Indian Penal
Code and Section 77(2) of the Navy Act, 1957 (hereinafter
referred to as ‘an Act’) and was directed to be kept under
imprisonment for the term of 24 calendar months and be
dismissed from the Naval services. This order was of 16th
May, 1991. Against the aforesaid order the respondent moved
the Chief of the Naval Staff under Section 163(1) of the Act
and the Chief of the Naval Staff though sustained the
conviction but reduced the punishment of imprisonment for a
term of 9 calendar months. The punishment of removal from
service, however, was maintained. The respondent then moved
the Central Government for re-consideration of the matter.
But the Central Government having confirmed the decision of
the Chief of Naval Staff the respondent moved the High Court
by way of a Criminal Writ Petition. By the impugned
judgment the High Court of Bombay considered the evidence of
Mrs. Nirmala Sharma and by way of sifting her evidence came
to hold :-
“After a meticulous examination of the record and
particularly the evidence of Nirmala that the credibility of
the evidence is such that the charge cannot be said to have
been brought home on the basis of this material.”
The High Court, therefore, ultimately came to hold
that the authorities were wrong in having recorded the guilt
against the respondent on the strength of material that was
adduced before the Court Martial Proceedings. The Court
ultimately quashed the conviction and sentence passed
against the respondent in the Court Martial Proceeding ,and
hence the present appeal.
Mr. Ashok Bhan, learned counsel appearing for the
Union of India contended with vehmence that the Court
Martial Proceeding having been continued in accordance with
the procedure laid down under the Navy Act and the Competent
Authority on the basis of the evidence of Mrs. Nirmala
Sharma having found the respondent guilty of charge under
Section 354 and punishing him thereunder, the High Court
mis-directed itself in exercise of its jurisdiction under
Article 226 of the Constitution to re-appreciate the
evidence and in coming to the conclusion that the
Authorities committed error in recording the finding of
guilt against the respondent on the basis of the evidence of
Mrs. Nirmala Sharma. According to Mr. Bhan, the learned
counsel, though a judicial review against the order of the
Competent Authority in the Court Martial Proceeding is
available but the said judicial review could not clothe the
High Court with the jurisdiction to re-appreciate the
evidence and substitute the findings of the Court Martial
Proceedings by its own. According to Mr. Bhan unless the
Court Martial Proceeding is found to have contravened any
mandatory provisions of the Act or Rules or can be said to
be in violation of the principles of natural justice or can
be said to be without jurisdiction, it would be,
impermissible for the High Court to interfere with the
conclusion on the ground of sufficiency of evidence. In
support of this contention reliance has been placed on the
recent decision of this Court in the case of Union of India
& Ors. vs. Major A. Hussain – Judgment Today 1997 (9)
S.C. 676. Mr. Uday U. Lalit, learned counsel appearing
for the respondent on the other hand contended that it is no
doubt true that the High Court would not be justified in
interfering with the findings of the Authority in Court
Martial Proceeding by appreciation of evidence ordinarily
but if the evidence is of such nature that no reasonable man
can come to the conclusion that an offence under Section 354
of the Indian Penal Code has been committed then certainly
the Court would be justified in interfering with the
findings arrived at by the Authorities in the Court Martial
Proceedings and judged from that stand point there has been
no infirmity with the impugned judgment of the High Court.
In view of the rival submissions at the Bar the short
question that arises for consideration is what would be the
extent of the jurisdiction in exercising power under Article
226 of the Constitution over the findings of the Authority
in Court Martial Proceeding? The Defence personnel serving
in Army, Navy or Air force when commit any offence are dealt
with by the special provisions contained in the Army Act or
the Navy Act or the Air Force Act and not by the normal
Procedure Code. The said Navy Act is a complete code by
itself and prescribes the procedure to be followed in case
it is decided that an officer should be tried by Court
Martial. The Act also provides sufficient safeguard by way
of further appeal to the Chief of the Staff and then
ultimately to the Union Government.
Since the entire procedure is provided in the Act
itself and the Act also provides for a further consideration
by the Chief of the Naval Staff and then by the Union
Government then ordinarily there should be a finality to the
findings arrived at by the Competent Authority in the Court
Martial Proceeding. It is of course true that
notwithstanding the finality attached to the orders of the
Competent Authority in the Court Martial Proceeding the High
Court is entitled to exercise its power of judicial review
by invoking jurisdiction under Article 226 but that would be
for a limited purpose of finding out whether there has been
infraction of any mandatory provisions of the Act
prescribing the procedure which has caused gross miscarriage
of justice or for finding out that whether there has been
violation of the principles of natural justice which
vitiates the entire proceeding or that the authority
exercising the jurisdiction had not been vested with
jurisdiction under the Act. The said power of judicial
review cannot be a power of an Appellate Authority
permitting the High Court to re-appreciate the evidence and
in coming to a conclusion that the evidence is insufficient
for the conclusion arrived at by the Competent Authorities
in Court Martial Proceedings. At any rate it cannot be
higher than the jurisdiction of the High Court exercised
under Article 227 against an order of an inferior Tribunal.
This being the parameter for exercise of power of judicial
review against the findings of a Competent Authority in a
Court Martial Proceeding, and applying the same to the
impugned judgment of the High Court we have no hesitation to
come to the conclusion that the High Court over-stepped its
jurisdiction in trying to re-appreciate the evidence of Mrs.
Nirmala Sharma and in coming to the conclusion that her
evidence is not credible enough to give a finding of guilt
of the respondent of a charge under Section 354. We have
also perused the statement of Mrs. Nirmala Sharma and the
conclusion becomes inescapable on the basis of the said
statement of Mrs. Nirmala Sharma that the respondent has
been rightly found to have committed offence under Section
354 by the Authorities in the Court Martial Proceedings.
In the aforesaid premises, we set aside the impugned
judgment of the Bombay High Court and dismiss the Criminal
Writ Petition filed by the respondent and affirm the
ultimate order passed by the Competent Authority in the
Court Martial Proceeding and this appeal is allowed.