INININ v. The by Narayan

Judgment

(Per R.S. Mohite, J.) :2:

1. This petition filed by Sri Narayan Rajput (hereinafter referred "Petitioner") a Certiorari setting proceedings summary conducted Commanding Officer, Angre impleaded respondent No.4 petition. It further reinstatement petitioner without service Writ a INS service privileges. It initiation disciplinary proceedings against Mr. R.K.Sharma. It directions Naval authorities action against Mr.R.K.Sharma conducting a business lending lastly compensation physical mental sufferings undergone petitioner whilst in illegal pretrial custody and as he was imprisoned for 5 days beyond the period of his punishment.

2. a)

The brief facts of the case were as under. The petitioner joined service with the Indian Navy

22.1.1986 April, 1993 promoted Leading (Cook). His service record good. Prior to May, 2004 earned Good Conduct Badges. On

4.5.2004, petitioner allegedly sexually assaulted one Mrs. Jyoti Sharma, a 10 years. Jyoti Sharma daughter R.K.Sharma :3: The working Petty Officer. accused staying a R.K. Sharma. The quarter allotted Mr. R.K.Sharma Quarter No.S-19, First floor, Old Nevy Nagar, Colaba, Mumbai-5. It prosecutrix returned

6.30 evening family staying locked. The petitioner present in. She watched Television

7.30p.m. Thereafter wanted friends. The accused however, called committed certain amounted outraging modesty. After committing

8.30, allowed She returned mother narrated entire incident mother Rekha. go. Her mother narrated incident husband Mr. R.K.Sharma

6.5.2004 returned duty. Mr. R.K.Sharma lodged a complaint Cuffe Parade Police Station complaint registered police station C.R.No.922/2004

8.5.2004. On registration complaint, Cuffe Parade Police Station arrested petitioner 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 :4: Magistrate presiding 47 Esplanade Court

10.5.2004 handed a Court Martial Section 78 Navy Act Section 475 Cr.P.C. After matter transferred, charges framed against petitioner as per the Naval rules. Particulars of the two charges as framed were as follows. (i) Did between 1900 1930 4th of May, 2004 belonging Indian Naval Ship Delhi Now belonging Indian Naval Ship Angre wrongfully confine Miss Joyti Daughter Ravinder Kumar Sharma Pome Number 166968-Z, Aged 10 Quarter No.S-19, Navy Nagar,Colaba, Mumbai thereby committed offence punishable Section 343 Indian Penal Code Section 77(2) conjunction Navy Act, 1957? (ii) Did between 1900 1930 4th of May, 2004 belonging Indian Naval Ship Delhi belonging Indian Naval Ship Angre assault Miss. Jyoti daughter Ravinder Kumar Sharma Pome, Number 166968-Z a 10 Quarter No.S-19, Navy Nagar, Colaba, Mumbai intending outrage modesty, thereby committed :5: offence punishable Section 354 Indian Penal Code Section 77(2) conjunction Navy Act

1957. . before recorded The petitioner pleaded not guilty to the charges Investigating officer. Investigating Officer In statement

7.7.2004 contended a allegation against Mr. R.K.Sharma borrowed monies agreed returned 350/-p.m. However, instalments time. He claimed

4.5.2004, returned watched television

18.30 thereafter dinner. That,

6.5.2004

8.30p.m. R.K. Sharma entered influence liquor demanded immediate return borrowed monies returned Mr. R.K. Sharma abused threatened the petitioner that he would ensure that he would be dismissed from service.

4. The record indicates that after recording the statements, Investigating Officer matter Executive Officer recorded guilty statement petitioner

15.7.2004. The matter Commending Officer trial. The record further indicates Commanding Officer recorded :6: statements various witnesses including girl, father R.K.Sharma mother Rekha. We The original indicate opportunity petitioner examine witness. record indicates Regulation 26 Naval Regulation officer Mr. R. Jaychandran directed advise accused. The original indicate statements witnesses recorded either signed petitioner friend officer. The record further indicates statements recorded, Commanding Officer recorded statements accused recording guilty further recording defence accused. This statement 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 Regulation 16 Navy Regulation Summary evidence a complaint approval Chief Naval Staff. The Chief of Naval Staff granted such approval on 9.10.20034 and awarded following punishments to the petitioner. i) ii) iii) Imprisonment for 90 days. Dismissal from Naval service. Reduction in rank to Cook (S)I :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 behalf petitioner, petition allowed ground violation natural justice, petitioner allowed examine witnesses statements recorded, ground raised petitioner Para-9(g) and the relevant part of the ground as raised is as follows: (g) Because, Commanding Officer tribunal within meaning Section 3(15) Navy Act 1957, therefore, performs duties a statutory body. Thus incumbent Commanding Officer observe natural justice, whilst trying sailors. The object reasons incorporate regulation 25(5)(6) (7) Regulations Navy Part II (Statutory) afford reasonable opportunity accused establish innocence examination prosecution witnesses. In instant :8: case, opportunity afforded petitioner examine prosecution witnesses, therefore denied petitioner natural justice.

7. The reply to this contention was given in Para-29 affidavit

24.2.2005 affirmed by the Chief Staff Officer Western Naval Command in the following words. I that, with reference 9(g), Petitioner trying mislead giving concocted tails. Since present involved a tender thought bringing trial. The petitioner questions wanted victim witnesses. The petitioner framed questions, answers victim witnesses petitioner.

8. In view of this reply, we had called upon the counsel appearing Navy produce questions petitioner answers thereto victim witnesses. We whether material formed summary evidence It :9: files. approval Regulation

17. We informed counsel material available It fairly conceded summary evidence annexed reference additional material. fairly conceded counsel Navy statements various witnesses recorded record evident examine witness offered petitioner. In fact, behalf respondent indicated a different procedure followed wherein accused-petitioner victim questions answers obtained witnesses. As stated aforesaid however, such material us. It 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 Commanding Officer, reference regulation 27 provides procedure to be followed at investigation in general. The said Regulation is in the following terms. 27-Procoedure investigations general-(1) investigations evidence support charge first. At :10: (2) Immediately charge out, Investigating officer accused should statement evidence behalf evidence against heard. (3) On conclusion evidence support charge, investigating officer decider whether a against accused. (4) If case, investigating officer either dismiss or, further evidence likely become available, a case, a simple one with investigating officer thinks scandal himself, accused admits charge. (5) If accused charge matter within investigating offer’s powers punishment, inform accused proceed the, giving opportunity making a statement calling witnesses.

10. From the aforesaid procedure it becomes quite :11: contemplated Section 27(1) relates evidence support charge. It cannot proceedings result imprisonment 90- result consequence service serious service benefits. In leading evidence include opportunity examine witness examined support charge. In regard, relevant Regulation 27(5) opportunity accused making a statement calling witnesses. It 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 Rajesh Singh Tanwar Vs. Admiral R.L.Pereira others delivered

31.8.1985 Writ Petition No.1369

1981. One contention raised before because Commanding Officer vitiated violation natural justice copies statements petitioner advance therefore, a proper opportunity examine witness. The Navy statements witnesses slowly petitioner examine witnesses question declined :12: examine witnesses. In circumstances, Single Judge concluded possible petitioner opportunity examine witnesses. We that, aforesaid case, contention Navy examine available petitioner. In fact, present also, fairly conceded petitioner a examine witnesses. In examination prosecution should therefore 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 grounds firstly petitioner opportunity examine witnesses secondly additional material questions raised petitioner answered witnesses referred Para-29 affidavit parcel summary evidence required forwarded 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 matter, a :13: deserves remand a continuation examination. The Advocate petitioner fairly stated client examine witnesses satisfied victim Jyoti, father R.K.Sharma mother Rekha recalled examination. He waived examine witnesses. He a request matter remanded, petitioner should officer choice defend himself. We contention acceptable. In the net result, we pass the following order. a. b. ORDER Petition is allowed. The punishment imposed upon the petitioner by Commanding officer

9.10.2004 approved Chief Naval Staff

13.1.2005 quashed matter remanded further before Commanding Officer. It further Commanding officer available witnesses i.e. Jyoti R. Sharma, mother Rekha R. Sharma father R.K. Sharma available examination petitioner. The petitioner entitled officer choice defend himself. It :14: further necessary recall witnesses aforesaid witnesses purpose examination 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 scheduled expire

31.1.2009. In circumstances, further dismissal aside, reinstated purpose allowed rejoin duty. He premises purpose briefing treated defending officer. The continuation earlier 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.)