Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
DIST.: MUMBAI
CRIMINAL WRIT PETITION NO. 1160 OF 2007
Nochur R Vasudevan, LMA ]
S/o. NS Ramachandran, Aged 29 years, ]
presently working at INHS Kalyani Naval Hospital, ]
Gandhigram Post, Visakhapatnam 500005 ] ...Petitioner
Versus
1. The Union of India ]
represented by the Ministry of Defence, ]
New Delhi ]
2. The Chief of the Naval Staff ]
Naval Headquarter ]
DHQ Post, New Delhi 110011 ]
3. The Flag Officer Commanding-in-Chief ]
Headquarters, Western Naval Command ]
INS Angre, SBS Road, Mumbai 400001 ]
4. The Commanding Officer ]
INHS Asvini, Colaba, Mumbai 400005 ]
5. The Commanding Officer ]
INS Angre, SBS Road,Mumbai 400001 ]
6. The Commodore Bureau of Sailors, ]
Cheeta Camp, Mankhurd, Mumbai ]
7. The Commanding Officer, ]
INS Kunjali (Provost), Near USO Club, ]
Colaba, Mumbai 400005 ]
8. The Manager, Union Bank of India, ]
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Extension Counter, INS Angre, SBS Road, ]
Mumbai 400001 ]
9. The State of Maharashtra, Mumbai ] ...Respondents
WITH
CRIMINAL WRIT PETITION NO. 851 OF 2007
Sabyasachi Jyoti, S/o. CP Jyoti ]
Aged 25 yrs., presently working at INSDB T-59, ]
C/o. Navy Office, Port Complex, ]
Chennai 600009 ] ...Petitioner
Versus
1. The Union of India ]
represented by the Ministry of Defence, ]
New Delhi ]
2. The Chief of the Naval Staff ]
Naval Headquarter ]
DHQ Post, New Delhi 110011 ]
3. The Flag Officer Commanding-in-Chief ]
Headquarters, Western Naval Command ]
INS Angre, SBS Road, Mumbai 400001 ]
4. The Commanding Officer ]
INHS Asvini, Colaba, Mumbai 400005 ]
5. The Commanding Officer ]
INS Angre, SBS Road,Mumbai 400001 ]
6. The Commodore Bureau of Sailors, ]
Cheeta Camp, Mankhurd, Mumbai ]
7. The Commanding Officer, ]
INS Kunjali (Provost), Near USO Club, Colaba, ]
Mumbai 400005 ]
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8. The Manager, Union Bank of India, ]
Extension Counter, INS Angre, SBS Road, ]
Mumbai 400001 ]
9. The State of Maharashtra, Mumbai ] ...Respondents
WITH
CRIMINAL WRIT PETITION NO. 1014 OF 2007
Prakash Sharma, S/o. BN Sharma, ]
Aged 28 yrs., presently working at ]
INHS SANJEEVANI, Naval Base, Kochi – 4 ] ...Petitioner
Versus
1. The Union of India ]
represented by the Ministry of Defence, ]
New Delhi ]
2. The Chief of the Naval Staff ]
Naval Headquarter ]
DHQ Post, New Delhi 110011 ]
3. The Flag Officer Commanding-in-Chief ]
Headquarters, Western Naval Command ]
INS Angre, SBS Road, Mumbai 400001 ]
4. The Commanding Officer ]
INHS Asvini, Colaba, Mumbai 400005 ]
5. The Commanding Officer ]
INS Angre, SBS Road,Mumbai 400001 ]
6. The Commodore Bureau of Sailors, ]
Cheeta Camp, Mankhurd, Mumbai ]
7. The Commanding Officer, INS Ranjit, ]
C/o. Fleet Mail Office, Naval Base, ]
Visakhapatnam ]
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8. The Commanding Officer, ]
INS Kunjali (Provost), Near USO Club, Colaba, ]
Mumbai 400005 ]
9. The Manager, Union Bank of India, ]
Extension Counter, INS Angre, SBS Road, ]
Mumbai 400001 ]
10. The State of Maharashtra, Mumbai ] ...Respondents
AND
CRIMINAL WRIT PETITION NO. 1143 OF 2007
Master Suresh Nambiar, ]
S/o. ED Kunhiraman Nambiar, ]
Aged 30 years, presently working ]
at 5 M Det, C/O 41 Wing Air Force, ]
C/o 56 APO and residing at In living Block, ]
5 M Det, Jaisalmer (Rajasthan) ] ...Petitioner
Versus
1. The Union of India ]
represented by the Ministry of Defence, ]
New Delhi ]
2. The Chief of the Naval Staff ]
Naval Headquarter ]
DHQ Post, New Delhi 110011 ]
3. The Flag Officer Commanding-in-Chief ]
Headquarters, Western Naval Command ]
INS Angre, SBS Road, Mumbai 400001 ]
4. The Commanding Officer ]
INHS Asvini, Colaba, Mumbai 400005 ]
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5. The Commanding Officer ]
INS Angre, SBS Road,Mumbai 400001 ]
6. The Commodore Bureau of Sailors, ]
Cheeta Camp, Mankhurd, Mumbai ]
7. The Commanding Officer, ]
INS Kunjali (Provost), Near USO Club, ]
Colaba, Mumbai 400005 ]
8. The Manager, Union Bank of India, ]
Extension Counter, INS Angre, SBS Road, ]
Mumbai 400001 ]
9. The State of Maharashtra, Mumbai ] ...Respondents
Mr. A.P. Singh for the Petitioners in all matters
Mr. D.N. Salvi with Mrs. Revati Mohite-Dere for
Respondents No. 1 to 7 in Writ Petitions No. 1160, 851, 1143
and 1014 of 2007
Mrs. P.H. Kantharia, Additional Public Prosecutor, for the Sate
in Writ Petitions No. 1160 and 1143 of 2007
Mrs. S.D. Shinde, Additional Public Prosecutor, for the State
in Writ Petitions No. 851 and 1014 of 2007.
CORAM B ILAL NAZKI and
:
A.A. KUMBHAKONI, JJ.
DATE AUGUST 7, 2008
:
ORAL JUDGMENT (Per Bilal Nazki, J.):-
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These four Writ Petitions are being disposed of by common
judgment, as they raise common question of facts and law.
2. For the purpose of facts, we will be taking into consideration
Writ Petition No. 1160 of 2007 filed by Nochur R. Vasudevan.
The petitioner is a serving sailor in the Indian Navy, holding the rank and
status of Medical Assistant, First Class. He had joined the Navy as
Medical Assistant, and after some time, got promoted to the rank of
Leading Medical Assistant with effect form October 11, 2003.
In mid-August, 2004, he received a signal from the Flag Officer
Commanding-in-Chief, Western Naval Command, Mumbai, by which he
was asked to report to INS KUNJALI for investigation of a case alleged
st st
to have taken place between 1 November, 2002 and 31 October,
2003. He was brought in close custody under escort. Some other
persons were also brought like him. The petitioner was questioned
whether he knew anything about the leaking of recruitment medical
examination results at INHS ASVINI and whether he had any
involvement in the leaking of the results. According to his petition, he
defended himself, and informed the officer that he was working with
First Lieutenant Office, and as such, he had no concern or access to the
results of examination or even with anything connected to the
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recruitment. He alleged that the R.P.O . was directed by Nahar Singh,
Master Chief-At-Arms, to beat the petitioner and he was beaten in the
presence of LT.CDR P. Rawat. In these circumstances, it is alleged that
a confession was taken from him, which ultimately became the basis for
grant of punishment to him. He was punished 90 days in detention
quarter. He was also reduced in rank and he was deprived of Good
Conduct Badge.
3. Counter has been filed. Most of the allegations levelled in the
petition against the officers have been denied. The facts, as alleged,
the assertions made by the petitioner and denied by the respondents
lose importance in the light of what we have found from the record of the
case. Therefore, without going into full scrutiny of the trial, quality of
evidence and admissibility of evidence, we would be deciding this
question on a short point.
4. Though the counsel for the petitioners submitted that there
were 11 accused, all 11 were made to confess the guilt at different
stages of investigation / trial and the confession of one was used
against the other. If A and B confessed, A's confession was used to
convict B because in A's confession, he had also roped in B, and in this
fashion, A was roped in, and A was convicted on the basis of B's
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confession. It is conceded that there is no evidence besides the alleged
confession of all 11 persons in which they had roped in each other. But
more glaring illegalities have been seen by us while going through the
record.
5. At this stage, the learned counsel for the respondents submits
that the evidence of other persons was also recorded, and reference
can be given to the following officers:-
(i) COMMANDER GEORGE ABRAHAM, NAU SENA
MEDAL (0183-R), INDIAN NAVY
(ii) LIEUTENANT COMMANDER (SPECIAL DUTIES
REGULATING) SATWINDER SINGH (83965-B)
(iii) SAROJ KUMAR OJHA, LEADING MEDICAL
ASSISTANT, NUMBER 119170-T
(iv) MASTER SURESH NAMBIAR, LEADING
MEDICAL ASSISTANT, NUMBER 179095-K
(v) AZAD KATHAT, LEADING MEDICAL
ASSISTANT, NUMBER 121556-R
(vi) PV NISHANTH, LEADING MEDICAL
ASSISTANT, NUMNER 121939 K
(vii) SABYASACHI JYOTI, MEDICAL ASSISTANT
FIRST CLASS, NUMBER 126833-A
(viii) RK PANDIT, MEDICAL ASSISTANT FIRST
CLASS, NUMBER 132613-W
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These officers were nowhere connected with any transaction having
taken place allegedly between the petitioners and the persons from
whom money was received on disclosure of their results in the Medical
Examination Test. In our view, therefore, their evidence is not at all
important for us, especially in view of what is set out hereunder.
6. Regulation 27 of the Regulations for the Navy, Part II
(Statutory). reads as under:-
Procedure at investigations in general
“27.
(1) At all investigations the evidence in support of the charge
shall be heard first.
(2) Immediately after the charge has been read out, the
investigating officer shall warn the accused that he should
not make any statement or give any evidence on his own
behalf until all the evidence against him has been heard.
(3) On conclusion of the evidence in support of the charge,
the investigating officer shall decide whether a case has
been made out against the accused.
(4) If there is no case, the investigating officer shall either
dismiss the case or, if further evidence is likely to become
prima facie
available, stand it over and if there is a case, and
it is a simple one with which the investigating officer thinks
he can deal with himself, he shall ask the accused if he
admits the charge.
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(5) If the accused does not admit the charge and the matter
is one within the investigating officer's powers of
punishment, he shall inform the accused that he will proceed
to try the case, giving him an opportunity of making a
statement and calling witnesses.”
7. From the record, we have seen that although the investigation
had taken place at three stages in terms of the Regulations, and finally,
the punishment was given at the third stage because, according to the
counsel for the respondents, the Lieutenant Commander / Investigating
Officer was competent to inflict the punishment. It is submitted that the
Investigating Officer could not have inflicted the punishment and
therefore, the matter went to the Commanding Officer, who finally gave
the punishment.
8. The record, which was maintained by the Commanding
Officer, has been produced before us. This record starts with the
examination of the accused in the following terms:-
“Q. No.1: Do you understand the charges?
A.: Yes Sir.”
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After examining the accused, the punishment was given. Taking into
consideration the statements of co-accused persons and other
witnesses, from the record, we have found that the petitioner was not
given a copy of the charge or charge at any stage and that the charges
were even never read out to him. It is conceded before us by the
learned counsel for the respondents that there is no record maintained,
showing that before Question No.1, “Do you understand the charge?”,
was put to the petitioners, the charge was actually read out to them.
Besides being a mandatory requirement of Regulation 27(2), it is in
conformity with the mandate of Article 21 of the Constitution of India that
a person, who faces the charge, must at least know what is the charge
against him. It cannot be denied that the petitioners were small rank
officers. They were very much under their Commanding
Officer. Obviously, they were over-owed professionally, and in any
circumstances, it became more important that they had a fair trial.
9. Since we are convinced that the proceedings, which ultimately
ended with the punishment to the petitioners, started with the question,
“Do you understand the charge?”, without the charge having been made
known to the petitioners, the whole process gets vitiated. Therefore, the
impugned orders and findings and sentence passed by respondent No.5
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are set aside. The Writ Petitions are accordingly allowed. In the
peculiar circumstances, there shall be no order as to costs.
BILAL NAZKI, J.
A.A. KUMBHAKONI, J.
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