1 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, ] 2 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 ] 3 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 ] 4 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 ] 5 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.):- 6 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 to have taken place between 1st November, 2002 and 31st 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 7 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 8 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 9 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:- “27. Procedure at investigations in general (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 available, stand it over and if there is a prima facie 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. 10 (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.” 11 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 12 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.