{"id":183028,"date":"2008-12-12T00:00:00","date_gmt":"2008-12-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sri-narayan-rajput-vs-the-union-of-india-on-12-december-2008"},"modified":"2016-09-10T03:47:25","modified_gmt":"2016-09-09T22:17:25","slug":"sri-narayan-rajput-vs-the-union-of-india-on-12-december-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sri-narayan-rajput-vs-the-union-of-india-on-12-december-2008","title":{"rendered":"Sri Narayan Rajput vs The Union Of India on 12 December, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Sri Narayan Rajput vs The Union Of India on 12 December, 2008<\/div>\n
Bench: F.I. Rebello, R.S. Mohite<\/div>\n
                                                           :1:\n\n\n                    IN         THE          HIGH            COURT              OF         JUDICATURE                    AT        BOMBAY\n\n                                CRIMINAL                                     APPEALLATE                                    JURISDICTION\n\n\n                         CRIMINAL                   WRIT                 PETITION                  NO.277                  OF          2005\n\n\n\n\n                                                                                                                        \n     Sri                                                          Narayan                                                           Rajput,\n\n\n\n\n                                                                                       \n     Ex                          L\/Ck,                               aged                                   35                       years,\n     S\/o.                                    Kalika                                       Prasad                                    Rajput,\n     Residing                      at                            Care                         of                           H-1303,Daffodil,\n     Jal                         Vayu                              Vihar,                               Sector                          20,\n     Khargar,                                      Navi                                    Mumbai                                  410210.\n\n\n\n\n                                                                                      \n                                                                                    ...Petitioner.\n                                           Vs.\n\n     1.                          The                                   Union                                of                       India,\n              Represented                   by                   the                  Ministry                     of              Defence,\n              New                                                                                                                    Delhi.\n\n\n\n\n                                                                 \n     2.                  The                     Chief                  of                 the                     Naval               Staff\n              Neval                    ig                                                                                       Headquarter,\n              DHQ                          Post,                         New                           Delhi                        110011.\n\n     3.             The            Flag                  Officer                       Commanding                        in          Chief\n              Headquarters,                            Western                             Naval                                  Command\n                                     \n              INS           Angre,                   SBS         Road,                     Mumbai                        400          001.\n\n     4.                              The                                            Commanding                                       Officer\n              INS               Angre,SBS                        Road,                 Mymbai                           400            001.\n      \n\n     5.                              The                                         Commanding                                          Officer\n              INS                Delhi,                        C\/o.                Fleet                         Mail                Office,\n              Mumbai                                                           400                                                     023.\n   \n\n\n\n     6.                                The                                      Commanding                                          Officer,\n              INHS                                                       Asvini,                                                    Colaba,\n              Mumbai                                                                                                                400005.\n\n\n\n\n\n     7.                         The                              State                           of                             Maharashtra,\n              Mumbai.\n                                                                                    ..Respondents.\n\n    Mr.Ajit                          Pal                              Singh                           for                         Petitioner.\n\n\n\n\n\n    Mr.D.N.Salvi                 along                    with                 J.C.Satpute                   for                Respondents.\n\n\n                                CORAM:                         F.I.REBELLO                  &                R.S.MOHITE,       JJ.\n<\/pre>\n
                                DATE                                :                      12th                     December,2008.\n\n\n    ORAL                 JUDGMENT                          :                 (Per             R.S.                  Mohite,               J.)\n\n\n\n\n                                                                                       ::: Downloaded on - 09\/06\/2013 14:08:35 :::<\/span>\n                                                                   :2:<\/span>\n\n\n\n\n<\/pre>\n
    1.                                This petition filed by Sri Narayan Rajput<\/p>\n
    (hereinafter                      referred              to               as         “Petitioner”)             seeks           a                       Writ<\/p>\n
    of             Certiorari                     for          setting              aside      the        proceedings                         of             a<\/p>\n
    summary                  trial            conducted                  by           the       Commanding                  Officer,                      INS<\/p>\n
    Angre            who                is              impleaded                     as      respondent                 No.4                 in           this<\/p>\n
    petition.                    It               further                    seeks                   reinstatement                 of                      the<\/p>\n
    petitioner              without                      any            break           in      service           and                  with                 all<\/p>\n
    service           privileges.                                 It                 seeks            initiation             of                    disciplinary<\/p>\n
    proceedings              against                    one                   Mr.                   R.K.Sharma.                          It              seeks<\/p>\n
    directions              to              igthe                  Naval              authorities              to                 take                  action<\/p>\n
    against          Mr.R.K.Sharma                       for                 conducting              a        business                  of              money<\/p>\n
    lending                 and                     lastly              it           seeks       compensation               for                       physical<\/p>\n
    and            mental              sufferings                  undergone                  by            the             petitioner                  whilst<\/p>\n
    in illegal pretrial custody and as he was imprisoned for<\/p>\n
    5 days beyond the period of his punishment.\n<\/p>\n
    2.                                The brief facts of the case were as under.\n<\/p>\n
    a)                                The petitioner joined service with the Indian<\/p>\n
    Navy              on          22.1.1986              and            in           April,     1993          he          was           promoted             to<\/p>\n
    the            rank               of                Leading              (Cook).             His       service                 record                  was<\/p>\n
    good.                   Prior            to         May,            2004           he      earned        three          Good                      Conduct<\/p>\n
    Badges.                                  On             4.5.2004,                  the           petitioner            allegedly                  sexually<\/p>\n
    assaulted               one            Mrs.                  Jyoti            Sharma,        a       young            girl         aged                 10<\/p>\n
    years.                        Jyoti           Sharma                was            the      daughter            of           one           R.K.Sharma<\/p>\n
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\n                                                                      :3:<\/span><\/p>\n
    who              was                 then           working             with               the            navy         as                 Petty                Officer.\n<\/p>\n
    The              accused            was           then           staying              in          a         part            of       the          house              of<\/p>\n
    the            said                R.K.                        Sharma.                      The            quarter           allotted                  to          Mr.<\/p>\n
    R.K.Sharma                         was                    Quarter            No.S-19,                      First            floor,          Old                  Nevy<\/p>\n
    Nagar,               Colaba,                 Mumbai-5.                         It                 was                 the            case               of          the<\/p>\n
    prosecutrix             that             she             returned                to               her            house               at           about           6.30<\/p>\n
    in       the          evening             and           she            found               that            main             door           of          her       house<\/p>\n
    was              open                   but        the          room           in           which               her         family          was                 staying<\/p>\n
    was                  locked.                    The            petitioner                was              present            in           the          room        and<\/p>\n
    he             asked                    the        girl         to         come                in.                 She           watched                     Television<\/p>\n
    till             7.30p.m.                         Thereafter               she             wanted                to          go            out          and       play<\/p>\n
    with           her           friends.     ig                The             accused                       however,                called              her         close<\/p>\n
    to         him          and              then             committed                   certain               acts             which               amounted            to<\/p>\n
    outraging                    her                  modesty.                          After                 committing               such           acts               at<\/p>\n
    about                8.30,         he          gave            her       the             key              and         allowed             her          to           go.\n<\/p>\n
    She              went                   to        the          park        and              returned               with           her        mother                and<\/p>\n
    narrated                 the             entire           incident             to              her           mother               Rekha.                           Her<\/p>\n
    mother                   narrated                  the                 incident                      to               her               husband                    Mr.<\/p>\n
    R.K.Sharma                         on           6.5.2004                when                he              returned               back               from        duty.\n<\/p>\n
    Mr.                      R.K.Sharma                     then          lodged               a          complaint                  with           the              Cuffe<\/p>\n
    Parade               Police                   Station                and                          the                 said                complaint                was<\/p>\n
    registered              at               the              police                 station                    vide                 C.R.No.922\/2004                    on<\/p>\n
    8.5.2004.                               On            registration                  of            the            complaint,                 the                  Cuffe<\/p>\n
    Parade                 Police                   Station                    arrested                                the                    petitioner               and<\/p>\n
    produced him before the Esplanade Court when he was<\/p>\n
    remanded to police custody till 10.5.2004.\n<\/p>\n
    3.                                 On an application made on behalf of the Navy the<\/p>\n
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\n                                                                     :4:<\/span><\/p>\n
    Magistrate                   presiding                          over         the         47           Esplanade                Court                     vide<\/p>\n
    his         order           dated           10.5.2004                   handed              over               the           case           for          trial<\/p>\n
    by      a       Court          Martial               under             Section           78         of          the          Navy           Act          read<\/p>\n
    with        Section           475          of          the             Cr.P.C.                 After             the          matter            was        so<\/p>\n
    transferred,                        charges                     were               framed                 against               the               petitioner<\/p>\n
    as per the Naval rules. Particulars of the two charges<\/p>\n
    as framed were as follows.\n<\/p>\n
                                        (i)         Did          between          1900          hours          and         1930         hours         on      the<\/p>\n
                        4th             day                    of         May,         2004            then         belonging             to               Indian<\/p>\n
                        Naval             Ship                      Delhi         and        Now              belonging                   to               Indian<\/p>\n
                        Naval            ig     Ship                Angre            wrongfully                confine             Miss                     Joyti<\/p>\n
                        Daughter                    of                Ravinder            Kumar               Sharma             Pome                  Number<\/p>\n
                        166968-Z,              Aged                 10           years            at           Quarter              No.S-19,                Navy<\/p>\n
                        Nagar,Colaba,                               Mumbai                thereby                              committed                       an<\/p>\n
                        offence                punishable                        under                 Section             343                 of             the<\/p>\n
                        Indian            Penal                      Code                read                 in                conjunction                 with<\/p>\n
                        Section                77(2)                       of             the                 Navy                  Act,                   1957?\n<\/p>\n
                                        (ii)              Did               between       1900           hours           and     1930          hours          on<\/p>\n
                        the         4th                  day               of     May,          2004                 then               belonging              to<\/p>\n
                        Indian             Naval                      Ship           Delhi        and          now                 belonging                   to<\/p>\n
                        Indian                Naval                       Ship       Angre             assault                  Miss.                       Jyoti<\/p>\n
                        daughter                    of           Ravinder              Kumar             Sharma                Pome,                   Number<\/p>\n
                        166968-Z               a               woman                 aged               10               years            at              Quarter<\/p>\n
                        No.S-19,               Navy                  Nagar,              Colaba,               Mumbai                   intending              to<\/p>\n
                        outrage                      her                   modesty,                       thereby                  committed                   an<\/p>\n
                                                                                                  ::: Downloaded on – 09\/06\/2013 14:08:35 :::<\/span>
\n                                                                      :5:<\/span><\/p>\n
                        offence                   punishable                      under                    Section          354                   of              the<\/p>\n
                        Indian                 Penal                  Code                 read                   in             conjunction                    with<\/p>\n
                        Section                   77(2)                    of                  the                 Navy                     Act                1957.\n<\/p>\n
    .                                   The petitioner pleaded not guilty to the charges<\/p>\n
    before                the                  Investigating                          officer.                    In                  his                   statement<\/p>\n
    recorded              by                  Investigating                     Officer                           on              7.7.2004                        he<\/p>\n
    contended                     that              a         false              allegation                 had           been              made              against<\/p>\n
    him           by                  Mr.               R.K.Sharma                as       he             had          borrowed         monies                  from<\/p>\n
    him            and                 it         was         agreed             that       money                would          be          returned               at<\/p>\n
    the            rate          of           350\/-p.m.                    However,                  he         could           not         repay                 the<\/p>\n
    instalments                  in          ig     time.                  He            claimed                that       on          4.5.2004,                  he<\/p>\n
    had                  returned               from            his              shift           and               watched              television              upto<\/p>\n
    18.30                hours              and         thereafter               went            out             for       dinner.                              That,<\/p>\n
    on             6.5.2004              at         about             8.30p.m.                       R.K.                  Sharma              had            entered<\/p>\n
    his             room               under            the           influence             of             liquor          and              had             demanded<\/p>\n
    the             immediate                  return           of          the          borrowed                  money              and         when            the<\/p>\n
    monies              were                  not        returned               Mr.              R.K.                    Sharma             abused               and<\/p>\n
    threatened the petitioner that he would ensure that he<\/p>\n
    would be dismissed from service.\n<\/p>\n
    4.                                The record indicates that after recording the<\/p>\n
    plea                   and                the             statements,                 Investigating                    Officer                sent            the<\/p>\n
    matter                 to            the            Executive                 Officer                 who            once           again                recorded<\/p>\n
    the          plea            of               non            guilty                  and               the            statement                    of         the<\/p>\n
    petitioner              on                  15.7.2004.                       The        matter               was        sent                  to              the<\/p>\n
    Commending                    Officer                 for                   trial.                             The                 record                 further<\/p>\n
    indicates              that                   the                  Commanding                           Officer                    recorded                   the<\/p>\n
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\n                                                                   :6:<\/span><\/p>\n
    statements                of                  various                       witnesses                  including                      the                      minor<\/p>\n
    girl,        her                 father          R.K.Sharma                      and        her           mother            Rekha.                               We<\/p>\n
    have         seen                the             original                    file        and           the               file               does                 not<\/p>\n
    indicate              that               any               opportunity                            was                given                  to                    the<\/p>\n
    petitioner           to                cross           examine               any            of          the               witness.                               The<\/p>\n
    record             indicates             that            in          terms             of           Regulation                  26          of                    the<\/p>\n
    Naval          Regulation                      an         officer            Mr.                   R.                       Jaychandran                          had<\/p>\n
    been            directed                to          advise                 the          accused.                          The            original                file<\/p>\n
    does            not              indicate             that            the              statements               of           the                        witnesses<\/p>\n
    recorded             were                     either           signed             by             the          petitioner                      or                  the<\/p>\n
    friend       officer.                           The                 record                further                indicates                  that                after<\/p>\n
    the           statements           ig           were                recorded,             the                       Commanding                                Officer<\/p>\n
    recorded            the                statements                     of                the                   accused                  once                    again<\/p>\n
    recording                 plea           of          non              guilty             and             further                recording                         the<\/p>\n
    defence              of            the              accused.                                This                statement                   of                    the<\/p>\n
    petitioner was recorded on 16.7.2004 and was signed by<\/p>\n
    Mr.R. Jaychandran as well as the petitioner.\n<\/p>\n
    5.                             That, thereafter the Commanding Officer issued a<\/p>\n
    punishment                     warrant           form                under              Regulation                  16           of              the           Navy<\/p>\n
    Regulation      and              along              with              the           Summary                    of          evidence                    sent        a<\/p>\n
    complaint      for             approval             of              the           Chief             of          Naval                Staff.                      The<\/p>\n
    Chief of Naval Staff granted such approval on 9.10.20034<\/p>\n
    and awarded following punishments to the petitioner.\n<\/p>\n
    i)             Imprisonment for 90 days.\n\n    ii)            Dismissal from Naval service.\n\n    iii)           Reduction in rank to Cook (S)I\n\n\n\n\n                                                                                                     ::: Downloaded on - 09\/06\/2013 14:08:35 :::<\/span>\n                                                            :7:<\/span>\n\n\n    iv)             Deprivation of Third, Second and First Good\n\n                    Conduct Badges.\n\n\n\n\n                                                                                                                                        \n    .                              In the aforesaid circumstances, the present\n\n<\/pre>\n
    petition came to filed by the petitioner in this court.\n<\/p>\n
    6.                           Though several points were raised in this<\/p>\n
    petition               and          were         urged              on            behalf                 of             the          petitioner,                in<\/p>\n
    our          view              the         petition          can         be           allowed                 on        the          ground                     of<\/p>\n
    violation               of      the           rules           of           natural                   justice,           in          so               far        as<\/p>\n
    the          petitioner               was               not             allowed                 to       cross                  examine                        the<\/p>\n
    witnesses              whose     ig          statements                       were                      recorded,                        the                  said<\/p>\n
    ground                has              been           raised             by           the              petitioner              in                     Para-9(g)<\/p>\n
    and the relevant part of the ground as raised is as<\/p>\n
    follows:\n<\/p>\n
                                    (g)            Because,                  the               Commanding                   Officer                 acts            as<\/p>\n
                    tribunal                     within           the              meaning                   of          Section                   3(15)            of<\/p>\n
                    the             Navy                    Act             1957,              therefore,              he          performs                        the<\/p>\n
                    legal               duties              of          a          statutory               body.                   Thus             it              is<\/p>\n
                    incumbent                       for           the              Commanding                          Officer               to                observe<\/p>\n
                    rule           of            natural               justice,                 whilst                 trying                 the                naval<\/p>\n
                    sailors.                          The               object                 and                reasons               to           incorporate<\/p>\n
                    regulation                     25(5)(6)              and                  (7)           of           the                         Regulations<\/p>\n
                    for             the               Navy              Part             II          (Statutory)              is         to                     afford<\/p>\n
                    reasonable                      opportunity                     to                        the                  accused                          to<\/p>\n
                    establish             his             innocence                      and                 to              cross                  examination<\/p>\n
                    of              the                   prosecution               witnesses.                          In          the                        instant<\/p>\n
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\n                                                                   :8:<\/span><\/p>\n
                    case,            no                opportunity                       was                       afforded                 to                   the<\/p>\n
                    petitioner                   to                      cross                  examine                        the                     prosecution<\/p>\n
                    witnesses,                              therefore                  denied              the             petitioner                            his<\/p>\n
                    right                                         of                                       natural                                           justice.\n<\/p><\/blockquote>\n
    7.                           The reply to this contention was given in<\/p>\n
    Para-29           of             the                    affidavit                   in                reply                 dated                    24.2.2005<\/p>\n
    affirmed by the Chief Staff Officer Western Naval<\/p>\n
    Command in the following words.\n<\/p>\n
                                     I               say                that,      with         reference           to     para                  9(g),           the<\/p>\n
                    Petitioner        ig        is                      trying          to       mislead             the                    court                 by<\/p>\n
                    giving                      concocted                     tails.                      Since            the              present             case<\/p>\n
                    involved               a                 minor                     child       of           tender         age                it            was<\/p>\n
                    thought                    fit           of           not           bringing             her          to          the          place          of<\/p>\n
                    trial.                     The                      petitioner           was           asked          to                 give                the<\/p>\n
                    questions            he            wanted                 to         put         to            the           victim                and       the<\/p>\n
                    witnesses.                                          The             petitioner                 framed               questions,                to<\/p>\n
                    which                answers                    were                 given          by               the                victim              and<\/p>\n
                    witnesses                   and           which                were         taken             down           in          ink                and<\/p>\n
                    shown                                           to                                       the                                         petitioner.\n<\/p>\n
    8.                           In view of this reply, we had called upon the<\/p>\n
    counsel                appearing                  for                the                    Navy                 to               produce                  these<\/p>\n
    questions                said         to            have               been              given           by           the           petitioner              and<\/p>\n
    the          answers            thereto                  given                 by                     the             victim                 and             the<\/p>\n
    witnesses.                 We                had              also          asked          him         as        to               whether                   this<\/p>\n
    material            formed                       part          of           summary              of          evidence             which                     was<\/p>\n
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\n                                                                   :9:<\/span><\/p>\n
    sent            for             approval              under               Regulation                 17.                   We             are           informed<\/p>\n
    by            counsel                     that          this          material                is           not           available          in                the<\/p>\n
    files.                     It          was            also           fairly               conceded               that        the           summary             of<\/p>\n
    evidence        which              was               annexed                   along              with            the         reply              also        did<\/p>\n
    not             make               any           reference                     to          this            additional              material.                    It<\/p>\n
    was            also                    fairly         conceded                 by           counsel              for       the         Navy                  that<\/p>\n
    from                 the           statements                  of              various              witnesses                as           recorded             or<\/p>\n
    any           other                    record          it           was             not       evident              that       the          right               to<\/p>\n
    cross          examine                    any                 of          the             witness          was           offered                to            the<\/p>\n
    petitioner.                 In               fact,              the                  reply                 on              behalf                of           the<\/p>\n
    respondent                 indicated                         that                     a           different                   procedure                      was<\/p>\n
    followed                  wherein       ig              the           accused-petitioner                         was                   asked                   to<\/p>\n
    give            the                    questions              and              the          answers               were            obtained                  from<\/p>\n
    victim          and                other                    witnesses.                                   As                stated                       aforesaid<\/p>\n
    however,             no                such          material             is         shown           to          us.              It             is          not<\/p>\n
    specifically denied in the affidavit in writing that the<\/p>\n
    right to cross examine was not given.\n<\/p>\n
    9.                               As regards the right to cross examine in a trial<\/p>\n
    conducted                  by                   the           Commanding                      Officer,             reference              may                 be<\/p>\n
    made              to             regulation             27            which                 provides               for        the                      procedure<\/p>\n
    to be followed at investigation in general. The said<\/p>\n
    Regulation is in the following terms.<\/p>\n
\n\n\n\n\n\n                                           27-Procoedure                                at        investigations                 in                       general-(1)\n\n                    At               all            investigations                       the            evidence                 in            support             of\n\n                    the                       charge                           shall                          be                      heard                     first.\n\n\n\n\n                                                                                                      ::: Downloaded on - 09\/06\/2013 14:08:35 :::<\/span>\n                                                   :10:<\/span>\n\n\n                          (2)              Immediately                      after            the         charge               has        been            read\n\n          out,                 the                     Investigating                        officer             shall               warn                   the\n\n          accused         that            he            should                    not              make              any                 statement         or\n\n\n\n\n                                                                                                                                     \n          give            any                    evidence                   on          his            own           behalf               until            all\n\n          the           evidence                       against                         him                 has                      been                heard.\n\n\n\n\n                                                                                            \n                          (3)              On           conclusion                     of        the       evidence                 in        support      of\n\n\n\n\n                                                                                           \n          the             charge,                        the                           investigating                            officer                  shall\n\n          decider         whether                a            case                has              been              made                 out          against\n\n          the                                                                                                                                        accused.\n\n\n\n\n                                                            \n                          (4)<\/span>\n                         ig               If            there                    is         no           case,                 the               investigating\n\n          officer               shall                   either                dismiss               the           case                        or,           it\n\n          further                     evidence                     is                 likely               to                 become                available,\n                       \n          stand           it              over                    and            if         there         is         a               prima               facie\n\n          case,           and              it                is         a         simple             one         with                     which            the\n      \n\n          investigating                    officer                            thinks                he                         scandal                   with\n\n          himself,               he             shall             ask             the              accused               if          he                admits\n   \n\n\n\n          the                                                                                                                                          charge.\n\n\n\n\n\n                          (5)        If         the          accused                  does         not          admit           the           charge      and\n\n          the           matter                   is                     one                      within                   the                    investigating\n\n          offer's                powers                           of             punishment,                    he             shall                   inform\n\n\n\n\n\n          the           accused                       that         he             will             proceed               to                try            the,\n\n          giving                 him              an              opportunity                       of           making                   a         statement\n\n          and                                                           calling                                                                     witnesses.\n\n\n\n<\/pre>\n
    10.             From the aforesaid procedure it becomes quite<\/p>\n
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\n                                                                              :11:<\/span><\/p>\n
    clear         that                  what                 is              contemplated                     by                Section                    27(1)               relates<\/p>\n
    to        evidence              in           support                    of          the           charge.                         It           cannot            be           lost<\/p>\n
    sight                      that                 these                   proceedings                    can                result                 in            imprisonment<\/p>\n
    upto          90-                   days                 and                  also                     result               in                   other                    serious<\/p>\n
    consequence                           such                    as                loss               of                   service                  and                      service<\/p>\n
    benefits.                              In             our               view               leading              of              evidence                 must             include<\/p>\n
    an           opportunity                            to                   cross             examine             the          witness                       who                 are<\/p>\n
    examined                       in       support                    of          the          charge.                        In           this           regard,                  it<\/p>\n
    is           also                     relevant                          to          note          that             Regulation                          27(5)                 also<\/p>\n
    gives          opportunity                            to                 the                accused                also                 of               making                 a<\/p>\n
    statement            and                   calling                  witnesses.                                It            goes                   without                 saying<\/p>\n
    that these defence witnesses can also be cross examined<\/p>\n
    by the prosecution.\n<\/p>\n
    11.                                 At this stage useful reference may be made to a<\/p>\n
    judgment                  of                this                   court            in      the          case                   of                Rajesh                   Singh<\/p>\n
    Tanwar                         Vs.                       Admiral                    R.L.Pereira                    and               others              delivered             on<\/p>\n
    31.8.1985                      in          Writ               Petition               No.1369              of              1981.                       One            of       the<\/p>\n
    contention                     raised                         before               this          court             in           that                   case                  was<\/p>\n
    that               the                      trial             by              the          Commanding                      Officer                was                     vitiated<\/p>\n
    because              it                has                    been                   held         in         violation                      of              rules              of<\/p>\n
    natural                   justice                        as             copies              of           such             statements                   were                   not<\/p>\n
    given         to               the           petitioner                       in           advance                  and                therefore,               he           was<\/p>\n
    not            given                        a            proper               opportunity                to             cross                     examine                     this<\/p>\n
    witness.                        The                   stand              of          the         Navy              in       that             case         was                 that<\/p>\n
    the           statements                         of                     the          witnesses            were                       read                 out                very<\/p>\n
    slowly                    to          the           petitioner                     and           he           was           also               asked            to          cross<\/p>\n
    examine                   the                    witnesses                    in          question             but          he                        declined                 to<\/p>\n
                                                                                                              ::: Downloaded on – 09\/06\/2013 14:08:35 :::<\/span>
\n                                                                          :12:<\/span><\/p>\n
    cross                  examine                   the              witnesses.                                In           the                circumstances,                  the<\/p>\n
    Single         Judge                of            this                court                concluded                   from                 the              facts         that<\/p>\n
    it             was            not           possible                   to             hold            that             the             petitioner               was        not<\/p>\n
    given                 any                        opportunity                     to            cross             examine                   the                       witnesses.\n<\/p>\n
    We             note                 that,                  in          the            aforesaid             case,            it          was               not              the<\/p>\n
    contention                   of          the             Navy                that             the            right                to        cross                     examine<\/p>\n
    was          not        available                at             all              to           the            petitioner.                           In           fact,        in<\/p>\n
    the                 present           case              also,               it             was         fairly                conceded                   that                the<\/p>\n
    petitioner                    had            a             right                 to          cross               examine                   the                       witnesses.\n<\/p>\n
    In           fact             the                onus                   to            prove          that        the                   right               of            cross<\/p>\n
    examination                        was            given                 would                   be           upon                   the           prosecution              and<\/p>\n
    they                should                igtherefore                  take            care           to           see              that                 the               fact<\/p>\n
    that such a right was offered should be made clear<\/p>\n
    through an entry in the trial record.\n<\/p>\n
    12.                           In our view, therefore, the petition deserves to<\/p>\n
    succeed                  on              two               grounds                    firstly          that              the               petitioner                      was<\/p>\n
    not          given            opportunity                       to                cross               examine                       the            witnesses               and<\/p>\n
    secondly                     the                 additional                        material                   in                   the                 form                 of<\/p>\n
    questions                    raised              by              the              petitioner                and              answered                   by                  the<\/p>\n
    witnesses                     as            referred                  to              in          Para-29                of                the           affidavit           in<\/p>\n
    reply        were        not             made               as              part            and            parcel             of           the           summary            of<\/p>\n
    evidence               required                       to                    be             forwarded                     to                      the                 approving<\/p>\n
    officer who approved the punishment. On these two<\/p>\n
    grounds alone, petition deserves to be allowed.\n<\/p>\n
    13.                           We however, feel that taking into account the<\/p>\n
    seriousness                  of                  this            matter,                this          is           a          fit                  case                  which<\/p>\n
                                                                                                            ::: Downloaded on – 09\/06\/2013 14:08:35 :::<\/span>
\n                                                                           :13:<\/span><\/p>\n
    deserves            remand                 and               a           continuation                    of             the             trial          from            the<\/p>\n
    stage              of             cross                  examination.                                  The                 Advocate                    for             the<\/p>\n
    petitioner              fairly             stated                that               his               client            did              not              want          to<\/p>\n
    cross                   examine                        all            witnesses                 but            would            be            satisfied                  if<\/p>\n
    the                     victim             girl              Jyoti,              her              father             R.K.Sharma                      and           mother<\/p>\n
    Rekha                   were                      recalled              for          cross              examination.                            He                 waived<\/p>\n
    his        right           to          cross                 examine                 the              other          witnesses.                            He         also<\/p>\n
    made         a            request            that                in          case               the           matter            was              remanded,             the<\/p>\n
    petitioner                  should                be             given              an           officer             of           his           choice                  to<\/p>\n
    defend                    himself.                      We                   find                      this               contention                  to                be<\/p>\n
    acceptable. In the net result, we pass the following<\/p>\n
    order.                                 <\/p>\n
\n                                                                                ORDER\n                                          \n    a.                                Petition is allowed.\n      \n\n\n    b.                                The punishment imposed upon the petitioner by\n   \n\n\n\n    his          Commanding                     officer                   vide                his            order                dated              9.10.2004              as\n\n    approved                    by         the             Chief                of           the           Naval              Staff           vide             his       order\n\n\n\n\n\n    dated                    13.1.2005                is             quashed                 and            set          aside              and           the           matter\n\n    is            remanded                        for                      further             trial         before                    the                     Commanding\n\n    Officer.                   It         is            made                clear              that            at          the            further              trial       the\n\n\n\n\n\n    Commanding                            officer                    will             make                  available                 three                          witnesses\n\n    i.e.                    Jyoti         R.                 Sharma,                 her            mother           Rekha             R.                 Sharma           and\n\n    her                     father         R.K.                             Sharma                   available                for            cross              examination\n\n    by         the             petitioner.                                The            petitioner                  will             also               be            entitled\n\n    to               have            an         officer               of          his           choice              to         defend               himself.                 It\n\n\n\n\n                                                                                                            ::: Downloaded on - 09\/06\/2013 14:08:35 :::<\/span>\n                                                               :14:<\/span>\n\n\n    is             further           made           clear          that            it         would             not             be         necessary         to\n\n    recall              the                witnesses                    other             than           the                    aforesaid                 three\n\n    witnesses                  for         the         purpose                of          cross            examination                    and              the\n\n\n\n\n                                                                                                                                         \n<\/pre>\n
    trial will recommence from the stage of cross<\/p>\n
    examination of the aforesaid three witnesses.\n<\/p>\n
    c.                               We are informed that as the contract of the<\/p>\n
    petitioner                 is        scheduled                to            expire           on             31.1.2009.                           In    the<\/p>\n
    circumstances,                    we            further            make              it           clear           that           in           view      of<\/p>\n
    his          dismissal             for            being                 set                   aside,                he                shall             be<\/p>\n
    reinstated                 only           for           the             purpose              of            naval             trial            and      will<\/p>\n
    not            be         allowed    ig    to       rejoin            his           duty.                  He            shall        enter            the<\/p>\n
    naval            premises                 only                for           the           purpose           of           trial              or          for<\/p>\n
    briefing             his                 defending                      officer.                   The           trial                 shall            be<\/p>\n
    treated              as                  continuation              of          the          earlier              trial                 and              all<\/p>\n
    other consequences shall follow the out come of the<\/p>\n
    trial.\n<\/p>\n
    d.                               Rule is made absolute in the aforesaid terms and<\/p>\n
    the petition stands disposed off accordingly.\n<\/p>\n
          (R.S. MOHITE, J.)                                                                       ( F.I. REBELLO, J.)\n\n\n\n\n                                                                                                ::: Downloaded on - 09\/06\/2013 14:08:35 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Sri Narayan Rajput vs The Union Of India on 12 December, 2008 Bench: F.I. Rebello, R.S. Mohite :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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-183028","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nSri Narayan Rajput vs The Union Of India on 12 December, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sri-narayan-rajput-vs-the-union-of-india-on-12-december-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sri Narayan Rajput vs The Union Of India on 12 December, 2008 - 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