Union of India v. Shri Joao Martin Fernandes

It is also an admitted position, as stated by DW-2 Commandant(JG) Akshay Jain who deposed before the trial Court on behalf of the Defendants that two of the ishermen on board the capsized vessel SeaMessiah, Krishna Ambig Tandel and Subrai Ambig Tandel, who survived, were examined as witnesses before the Coast Guard Court, in the CourtMartial proceedings. One of these, Krishna Ambig Tandel has alsodeposed before the Civil Court as PW-2 on behalf of the Plaintif. his isadmitted by witness DW2 in his cross-examination. 6.he Respondent vide application dated 02.07.2015, under RTI Act,2005, sought for Certiied Copies of inal orders which was issued to himon 02.09.2015, however, the other documents and witness depositionswere not issued. 7. In the meantime, evidence was recorded on behalf of the Plaintifs, which was concluded on 18.09.2021, after which the irst defence witnessPappu (eye-witness to the incident) iled his aidavit on 29.01.2022 andhis cross-examination was concluded on 18.02.2022. hereafter, DW-2was examined and during his cross-examination, the application at Exhibit4 WP 618-2024.docxD-49 under Order XI Rule 14 came to be iled on 22.11.2022, forproducing the judgements, statement of witnesses and relevant documentsof the Court Martial proceedings, imposing sentences on the Commandantand Deputy Inspector General; the Petitioners iled their reply andcontended that such an application could not be allowed at the stage ofinal arguments and vide order dated 28.02.2023, the District Courtdismissed the same.

Subsequently the Respondent vide letter dated11.07.2023, under Order XI Rule 15, requested the Petitioners to providecertiied copies of the Judgements/orders and statement of witness in the Court martial proceedings.8.he Respondents then iled another application at Exhibit-D-53,dated 22.11.2023, under Order XI Rule 14 and 18 CPC, which wasopposed by the Petitioners vide their reply dated 08.01.2024, contending itto be an afterthought; vide order dated 08.04.2024, (impugned herein) thesame application was allowed directing the Petitioners to produce thedocuments.SUBMISSIONS9.he Advocate for the Petitioners Mr. Raviraj Chodankar advancedthe following submissions;a.hat the application could not be allowed since it was iled at thestage of inal arguments, much after issues were framed, and trialwas concluded. It was further submitted that an earlierapplication of similar nature having been dismissed on5 WP 618-2024.docx28.02.2023, the principles of Constructive Res-Judicata wouldapply, prohibiting a second application of similar nature. b.hat the documents sought to be produced have no mention inthe plaint nor were they listed in the list of documents reliedupon by the Plaintif for leading evidence. he documents soughtto be relied upon being the record of the Court Martialproceedings had no relevance to the suit and therefore could nothave been allowed by the trial court.

Without prejudice, it wassubmitted that the Plaintif had received a copy of the Operativepart of the court Martial Proceeding under Right To InformationAct, 2005 way back on 02.09.2015, the sentence imposed on thetwo charged oicers being made known to the Plaintif. Consequently, the Plaintif having knowledge of the contents ofthe sentence, had ample opportunity to apply for the entirerecord for almost six years, which it failed to do, and have notshown cause or pleaded due diligence in their application. It wassubmitted that the trial court ought to have considered the lack ofdue diligence on the part of the Plaintif and refused to exerciseits jurisdiction in favour of the Plaintif, under thosecircumstances.c.Learned advocate appearing for the Petitioner, heavily relied uponthe Scheme of the Coast Guard Act and the Coast Guard(Discipline) Rules, 1983, to contend that the said rules do notpermit for copies of the Court martial proceedings be made6 WP 618-2024.docxpublic, nor would the Plaintif have right to access the same, sinceit would be against the security of the State to divulge suchdocuments.

It was further submitted that the documents being ofconidential nature, the Plaintif would have no right to obtaincopies of the proceedings. he Learned Counsel submitted that Rule 120 of the Discipline Rules requires a Coast Guard Court topreserve the records for only seven years, and there is no mannerof ascertaining whether the records are still available.10. he Advocate for the Respondent Mr. Nigel Costa Fries advancedthe following arguments;a.he Learned Counsel has taken me through the evidence of thetwo oicers, DW-1 and DW-2 lead by the defendants, to submitthat they were confronted with the fact that the Plaintif’s eyewitness to the incident had deposed in the Court MartialProceedings. He further contended that the DW-1 who is theoicer charged in the Court Martial Proceedings has deposed aseye witness to the incident on behalf of the defendants and hasdeposed in his evidence that he was not aware of the outcome ofthe Court martial proceedings.b.It was further contended that where documents are used orsought to be produced for the purpose of Cross examining thewitness, no reliance to be placed on such documents, since theprovisions of Section 145 of the Evidence Act itself provides for7 WP 618-2024.docxthe exception to the Rule that documents that are required to berelied upon and unless used to contradict or to impeach thecredibility of the witness.c.Reference was made to the Coast Guard Disciplinary Rules,1983, to contend that the Court Martial Proceedings areconducted by Coast Guard Court and such proceedings arePublic documents under the Evidence Act.

It was submitted thatneither the Coast Guard Act nor rules framed thereunder classifythe record of a Court Martial proceedings as conidential or asoicial secrets, and there is no embargo in the law to providethese records, moreso, since they are directly relevant for thedecision in the suit, moreso in the light of the fact that PW-2 wasa witness before the Coast Guard Court in proceedings in whichDW-1 was charged an is an eye witness in the present suit.CONSIDERATIONS11.he question that falls for determination in this Petition is whetherin the facts of the case the Impugned order dated 08.04.2024, directing thedefendants to produce the Judgments of the Coast Guard Court in the trialconducted by it against K. Jannardanan, D.I.G. and P.V. Gopal, Commandant, and further direction to produce the statements of thewitnesses recorded by the Coast Guard Court at the trial conducted by it islegal and justiied.8 WP 618-2024.docx12.Order XI Rule 14 empowers the Court, at any time during thependency of the suit to order any party thereto, to produce any documentsupon oath, which may be in his possession or power, which relates to amatter in question in the suit. his power is a power vested in the court inorder that the court can decide the justice of a matter without beingrestrained by rules of procedure such as those contained in Order XIIICPC, where reliance must be placed on documents which the parties wishto produce in evidence. he powers under Order XI Rule 14 may also beexercised by the Court if any of the parties to the suit bring to its notice adocument which is in possession or within the power of a party to the suit, which if produced under oath would assist the court in arriving at a just andfair decision to the parties.

13. In the present case, the trial court, no doubt, dismissed an earlierapplication for production of the very same documents vide order dated28.02.2023, but on the sole contention that the Plaintif had obtained theoperative part of the Court Martial orders but had not made eforts toobtain the certiied copies of the record and proceedings of the Coast GuardCourt. In paragraph 5 of its order it noted that if certiied copies of theproceedings cannot be issued, it was open to the party to approach thecourt for production of copies of these documents. he application wasthus dismissed as being premature.14.hereafter the Plaintif issued a notice dated 11.07.2023, to theadvocate for the Defendants, to furnish to the Plaintif certiied copies ofthe entire judgement of the Coast Guard Court and statements of the9 WP 618-2024.docxwitnesses recorded in the trial. No reply was given to this notice by the Defendants in the suit, implying their rejection of the request for certiiedcopies of the record. hereafter a fresh application was iled under Order XIRule 14 and 18 for a direction to the Defendant no.2 to furnish certiiedtrue copies of the aforementioned documents which is allowed by the Impugned order. he application was opposed on the sole ground that thedocuments were neither relied upon by the Defendants or the Plaintif noris the Defendant No.2 in possession of the same. here is no Aidavitsupporting this reply.

15. On perusing the Coast Guard ( Discipline ) Rules,1983, they providefor charges to be issued to an oicer and a trial to be conducted by the Coast Guard Court in which, under Rule 23, the Coast Guard Court, examines witnesses on oath who are cross examined and re-examined. Rule24 provides for the abstract of evidence to be recorded whilst Rule 79 to Rule 82 provide for the mode of examining witnesses, cross examination ofthese witnesses and re-calling of witnesses by that court. Evidence onnavigational matters is to be recorded in the same manner and as in thepresent matter, which is an accident at sea, being a navigational matter, the Coast Guard Court is required to consider 15 documents which include the Ships Log, the Navigation and Echo sounder logs and various other booksmaintained on the ship and the Ship’s control room and engine room.he witnesses in defence may be examined under rule 88 afterwhich the judgement is to be pronounced by the Coast Guard Courtunder rule 97.

Rule 120 to Rule 122 provides for preservation of theproceedings for not less than 7 years and further provides for the10 WP 618-2024.docxright of the Accused to copies of the proceedings. he onlyprohibition to granting such copies is where the central governmentis satisied for reasons to be recorded that it is against the interest ofthe security of the State that such copies may not be made available. 16. It has never been the case of the Defendants/Petitioners that there issuch an order in writing of the Central Government under Rule 122 andthat could not be the case since the sentence imposed on the Accused by the Coast Guard Court was in fact provided for the Plaintif. What is evenmore relevant is the fact that the witness PW-2 was examined as a witnessbefore the Coast Guard Court and his evidence is available with that Court.he witness for the defence in the suit i.e DW-2 has deposed before the Civil court, relating the entire incident and has admitted in evidence theaforementioned facts with regard to PW-2 being a witness. he record ofthe Coast Guard Court, therefore, assumes great relevance for the justdecision in the Civil Suit and it is in the light of this fact that the civil courthas rightly granted the application to enable it to have access to thedocuments requested.