IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 6TH OCTOBER 2008 / 14TH ASWINA 1930 WP(C).No. 26341 of 2008(J) ---------------------------------------- PETITIONER: --------------------- SUB LIEUTANANT APURBA GOPAL MITRA, (06042F) INS VENDURUTHY GUARD ROOM CELL, NAVAL BASE, COCHIN - 4. BY ADV. SRI.N.D.JOY SMT.RANI JOY RESPONDENTS: ------------------------- 1. THE UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISRY OF DEFENCE, NEW DELHI. 2. THE FLAG OFFICER - COMMANDING-IN-CHIEF, HEAD QUARTERS, SOUTHERN NAVAL COMMAND, NAVEL BASE, COCHIN - 4. 3. THE COMMANDING OFFICER, INS VENDURUTHY, NAVAL BASE, COCHIN -4. BY SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL - R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/09/2008 ALONG WITH COC.NO.1397 OF 2008,THE COURT ON 6/10/2008 DELIVERED THE FOLLOWING: Kss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.26341 of 2008-J and Cont.Case(C).No.1397/2008-S = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 6th day of October, 2008. JUDGMENT 1.The petitioner, a Commissioned Officer of the Indian Navy, has filed this writ petition touching Court Martial proceedings against him on charges enumerated in Ext.P9. In the writ petition he sought that the said charge-sheet be quashed taking into consideration Ext.P12. He further challenged his close custody and sought for an order releasing him from that. Directions were sought to permit the counsel engaged by him to visit him in close custody. It was also sought that the respondents be directed to hand over the personal effects of the petitioner and release certain allowances. WP(C)26341/08 & COC1397/08 -: 2 :- 2.Though it was found inappropriate to grant stay of court martial proceedings, on 19th September, 2008, having regard to the circumstances noticed, following directions were issued: “(1) Adv.Sri.N.D.Joy and Smt.Rani Joy, if appearing on proper engagement in the Court Martial proceedings, will be afforded such opportunity as is permissible, in accordance with law, to visit the petitioner to obtain instructions to defend the petitioner in the Court Martial proceedings. (2) The third respondent will ensure that necessary materials like food, clothing, toiletries etc. are made available to the petitioner. (3) All concerned among the respondents will ensure that Court Martial proceedings is concluded without delay. Petitioner and his learned counsel will obviously co-operate with such proceedings. (4) The final order that may be WP(C)26341/08 & COC1397/08 -: 3 :- passed in the Court Martial proceedings, imposition of sentence and sufferance of that sentence would be without prejudice to contentions and shall be subject to further orders in this writ petition and to that extent, provisional. It is also clarified that if sentence is imposed, the petitioner could be compelled to serve it, subject to further orders of this Court.” 3.As of now, the Court Martial proceedings are concluded and final order was passed imposing sentence on the petitioner and he is in prison suffering the sentence. 4.Cont.Case(C)No.1397/2008 is filed alleging that the petitioner's counsel was denied the opportunity to meet the petitioner and that the petitioner was denied basic amenities like bathing oil etc. and that he was kept in a closed cell and thereby the aforesaid order dated 9-9-2008 issued by this Court was intentionally violated. Interlocutory application is filed in the Contempt of Court Case seeking issuance of writs of quo WP(C)26341/08 & COC1397/08 -: 4 :- warranto and habeas corpus. 5.The fundamental thrust of the arguments revolves around alleged denial of opportunity in the course of the Court Martial proceedings; incompetence of officers who participated therein, adverse to the interest of the petitioner; deprivation of basic human rights and other fundamental rights while the petitioner was in close custody and thereby depriving proper trial; denial of access to justice by precluding appropriate instructions being given to his counsel; that the charge is really not made out on facts; further importantly, that the materials tend to show that the Court Martial was convened even before the investigation was completed and therefore, the entire proceedings were commenced and completed in a pre- judged manner. 6.As of now, the Court Martial proceedings are concluded and sentence has been imposed on the petitioner. He is suffering it. Therefore, the WP(C)26341/08 & COC1397/08 -: 5 :- most appropriate procedure that the petitioner has to avail is that provided in Section 160 of the Navy Act, 1957 and other provisions in terms of Chapters 15 and 16 of that Act. Taking into consideration the sweep of the jurisdiction available for the superior authorities under the Navy Act within the format of those provisions, I am satisfied that the petitioner has an adequate and effective alternate remedy for redressal of his grievances against the findings against him and allegations regarding the procedure adopted by the respondents. Not only that, even if this Court expresses either way, that may only lead to prejudice, if the petitioner would ultimately be interested in taking recourse to the aforesaid statutory proceedings. 7.In so far as the contempt of court case is concerned, the pivotal issue projected is that the petitioner ought not to have been sent to the Central Prison, Thiruvananthapuram to suffer the sentence imposed on him by the Court Martial and WP(C)26341/08 & COC1397/08 -: 6 :- that in having done so, there is violation of Direction No.4 in the interim order dated 19-9- 2008 quoted above. I am clear in my mind that this is not so. This is because, all that was done as per the interim order, was to state that the final order that may be passed in the court martial proceedings, imposition of sentence and sufferance of that sentence would be without prejudice to contentions and shall be subject to further orders in this writ petition and to that extent, provisional. There was, therefore, no inhibition for imposition of sentence or to ensure the sufferance of that sentence. This was also further clarified in the last sentence in that paragraph, wherein it was said that it is also clarified that if sentence is imposed, the petitioner could be compelled to serve it subject to further orders of this Court. This Court does not intend to express further even on that issue because violation of rules of hearing as envisaged by the relevant regulations and rules and also any confinement in derogation of the binding procedure may be grounds WP(C)26341/08 & COC1397/08 -: 7 :- that the petitioner would have, for being urged before the competent authority under the aforesaid statutory provisions. For the aforesaid reasons, this writ petition is closed without entering on merits of the charge or the convening of the Court Martial or the correctness or otherwise of the final order passed by the Court Martial and the sentence imposed on the petitioner. The Contempt of Court Case is dropped and the interlocutory applications in these cases are dismissed, without entering on merits. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/300908