:1: IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPEALLATE JURISDICTION CRIMINAL WRIT PETITION NO.277 OF 2005 Sri Narayan Rajput, Ex L/Ck, aged 35 years, S/o. Kalika Prasad Rajput, Residing at Care of H-1303,Daffodil, Jal Vayu Vihar, Sector 20, Khargar, Navi Mumbai 410210. ...Petitioner. Vs. 1. The Union of India, Represented by the Ministry of Defence, New Delhi. 2. The Chief of the Naval Staff Neval Headquarter, DHQ Post, New Delhi 110011. 3. The Flag Officer Commanding in Chief Headquarters, Western Naval Command INS Angre, SBS Road, Mumbai 400 001. 4. The Commanding Officer INS Angre,SBS Road, Mymbai 400 001. 5. The Commanding Officer INS Delhi, C/o. Fleet Mail Office, Mumbai 400 023. 6. The Commanding Officer, INHS Asvini, Colaba, Mumbai 400005. 7. The State of Maharashtra, Mumbai. ..Respondents. Mr.Ajit Pal Singh for Petitioner. Mr.D.N.Salvi along with J.C.Satpute for Respondents. CORAM: F.I.REBELLO & R.S.MOHITE, JJ. DATE : 12th December,2008. ORAL JUDGMENT : (Per R.S. Mohite, J.) :2: 1. This petition filed by Sri Narayan Rajput (hereinafter referred to as "Petitioner") seeks a Writ of Certiorari for setting aside the proceedings of a summary trial conducted by the Commanding Officer, INS Angre who is impleaded as respondent No.4 in this petition. It further seeks reinstatement of the petitioner without any break in service and with all service privileges. It seeks initiation of disciplinary proceedings against one Mr. R.K.Sharma. It seeks directions to the Naval authorities to take action against Mr.R.K.Sharma for conducting a business of money lending and lastly it seeks compensation for physical and mental sufferings undergone by the petitioner whilst in illegal pretrial custody and as he was imprisoned for 5 days beyond the period of his punishment. 2. The brief facts of the case were as under. a) The petitioner joined service with the Indian Navy on 22.1.1986 and in April, 1993 he was promoted to the rank of Leading (Cook). His service record was good. Prior to May, 2004 he earned three Good Conduct Badges. On 4.5.2004, the petitioner allegedly sexually assaulted one Mrs. Jyoti Sharma, a young girl aged 10 years. Jyoti Sharma was the daughter of one R.K.Sharma :3: who was then working with the navy as Petty Officer. The accused was then staying in a part of the house of the said R.K. Sharma. The quarter allotted to Mr. R.K.Sharma was Quarter No.S-19, First floor, Old Nevy Nagar, Colaba, Mumbai-5. It was the case of the prosecutrix that she returned to her house at about 6.30 in the evening and she found that main door of her house was open but the room in which her family was staying was locked. The petitioner was present in the room and he asked the girl to come in. She watched Television till 7.30p.m. Thereafter she wanted to go out and play with her friends. The accused however, called her close to him and then committed certain acts which amounted to outraging her modesty. After committing such acts at about 8.30, he gave her the key and allowed her to go. She went to the park and returned with her mother and narrated the entire incident to her mother Rekha. Her mother narrated the incident to her husband Mr. R.K.Sharma on 6.5.2004 when he returned back from duty. Mr. R.K.Sharma then lodged a complaint with the Cuffe Parade Police Station and the said complaint was registered at the police station vide C.R.No.922/2004 on 8.5.2004. On registration of the complaint, the Cuffe Parade Police Station arrested the petitioner and 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 over the 47 Esplanade Court vide his order dated 10.5.2004 handed over the case for trial by a Court Martial under Section 78 of the Navy Act read with Section 475 of the Cr.P.C. After the matter was so transferred, charges were framed against the petitioner as per the Naval rules. Particulars of the two charges as framed were as follows. (i) Did between 1900 hours and 1930 hours on the 4th day of May, 2004 then belonging to Indian Naval Ship Delhi and Now belonging to Indian Naval Ship Angre wrongfully confine Miss Joyti Daughter of Ravinder Kumar Sharma Pome Number 166968-Z, Aged 10 years at Quarter No.S-19, Navy Nagar,Colaba, Mumbai thereby committed an offence punishable under Section 343 of the Indian Penal Code read in conjunction with Section 77(2) of the Navy Act, 1957? (ii) Did between 1900 hours and 1930 hours on the 4th day of May, 2004 then belonging to Indian Naval Ship Delhi and now belonging to Indian Naval Ship Angre assault Miss. Jyoti daughter of Ravinder Kumar Sharma Pome, Number 166968-Z a woman aged 10 years at Quarter No.S-19, Navy Nagar, Colaba, Mumbai intending to outrage her modesty, thereby committed an :5: offence punishable under Section 354 of the Indian Penal Code read in conjunction with Section 77(2) of the Navy Act 1957. . The petitioner pleaded not guilty to the charges before the Investigating officer. In his statement recorded by Investigating Officer on 7.7.2004 he contended that a false allegation had been made against him by Mr. R.K.Sharma as he had borrowed monies from him and it was agreed that money would be returned at the rate of 350/-p.m. However, he could not repay the instalments in time. He claimed that on 4.5.2004, he had returned from his shift and watched television upto 18.30 hours and thereafter went out for dinner. That, on 6.5.2004 at about 8.30p.m. R.K. Sharma had entered his room under the influence of liquor and had demanded the immediate return of the borrowed money and when the monies were not returned Mr. R.K. Sharma abused and threatened the petitioner that he would ensure that he would be dismissed from service. 4. The record indicates that after recording the plea and the statements, Investigating Officer sent the matter to the Executive Officer who once again recorded the plea of non guilty and the statement of the petitioner on 15.7.2004. The matter was sent to the Commending Officer for trial. The record further indicates that the Commanding Officer recorded the :6: statements of various witnesses including the minor girl, her father R.K.Sharma and her mother Rekha. We have seen the original file and the file does not indicate that any opportunity was given to the petitioner to cross examine any of the witness. The record indicates that in terms of Regulation 26 of the Naval Regulation an officer Mr. R. Jaychandran had been directed to advise the accused. The original file does not indicate that the statements of the witnesses recorded were either signed by the petitioner or the friend officer. The record further indicates that after the statements were recorded, the Commanding Officer recorded the statements of the accused once again recording plea of non guilty and further recording the defence of the accused. This statement of the 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 form under Regulation 16 of the Navy Regulation and along with the Summary of evidence sent a complaint for approval of the Chief of Naval Staff. The Chief of Naval Staff granted such approval on 9.10.20034 and awarded following punishments to the petitioner. i) Imprisonment for 90 days. ii) Dismissal from Naval service. iii) 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 and were urged on behalf of the petitioner, in our view the petition can be allowed on the ground of violation of the rules of natural justice, in so far as the petitioner was not allowed to cross examine the witnesses whose statements were recorded, the said ground has been raised by the petitioner in Para-9(g) and the relevant part of the ground as raised is as follows: (g) Because, the Commanding Officer acts as tribunal within the meaning of Section 3(15) of the Navy Act 1957, therefore, he performs the legal duties of a statutory body. Thus it is incumbent for the Commanding Officer to observe rule of natural justice, whilst trying the naval sailors. The object and reasons to incorporate regulation 25(5)(6) and (7) of the Regulations for the Navy Part II (Statutory) is to afford reasonable opportunity to the accused to establish his innocence and to cross examination of the prosecution witnesses. In the instant :8: case, no opportunity was afforded to the petitioner to cross examine the prosecution witnesses, therefore denied the petitioner his right of natural justice. 7. The reply to this contention was given in Para-29 of the affidavit in reply dated 24.2.2005 affirmed by the Chief Staff Officer Western Naval Command in the following words. I say that, with reference to para 9(g), the Petitioner is trying to mislead the court by giving concocted tails. Since the present case involved a minor child of tender age it was thought fit of not bringing her to the place of trial. The petitioner was asked to give the questions he wanted to put to the victim and the witnesses. The petitioner framed questions, to which answers were given by the victim and witnesses and which were taken down in ink and shown to the petitioner. 8. In view of this reply, we had called upon the counsel appearing for the Navy to produce these questions said to have been given by the petitioner and the answers thereto given by the victim and the witnesses. We had also asked him as to whether this material formed part of summary of evidence which was :9: sent for approval under Regulation 17. We are informed by counsel that this material is not available in the files. It was also fairly conceded that the summary of evidence which was annexed along with the reply also did not make any reference to this additional material. It was also fairly conceded by counsel for the Navy that from the statements of various witnesses as recorded or any other record it was not evident that the right to cross examine any of the witness was offered to the petitioner. In fact, the reply on behalf of the respondent indicated that a different procedure was followed wherein the accused-petitioner was asked to give the questions and the answers were obtained from victim and other witnesses. As stated aforesaid however, no such material is shown to us. It is not 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 by the Commanding Officer, reference may be made to regulation 27 which provides for the procedure to be followed at investigation in general. The said Regulation is in the following terms. 27-Procoedure at investigations in general-(1) At all investigations the evidence in support of the charge shall be heard first. :10: (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 decider 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, it 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 scandal with himself, he shall ask the accused if he admits the charge. (5) If the accused does not admit the charge and the matter is one within the investigating offer’s powers of punishment, he shall inform the accused that he will proceed to try the, giving him an opportunity of making a statement and calling witnesses. 10. From the aforesaid procedure it becomes quite :11: clear that what is contemplated by Section 27(1) relates to evidence in support of the charge. It cannot be lost sight that these proceedings can result in imprisonment upto 90- days and also result in other serious consequence such as loss of service and service benefits. In our view leading of evidence must include an opportunity to cross examine the witness who are examined in support of the charge. In this regard, it is also relevant to note that Regulation 27(5) also gives opportunity to the accused also of making a statement and calling witnesses. It goes 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 of this court in the case of Rajesh Singh Tanwar Vs. Admiral R.L.Pereira and others delivered on 31.8.1985 in Writ Petition No.1369 of 1981. One of the contention raised before this court in that case was that the trial by the Commanding Officer was vitiated because it has been held in violation of rules of natural justice as copies of such statements were not given to the petitioner in advance and therefore, he was not given a proper opportunity to cross examine this witness. The stand of the Navy in that case was that the statements of the witnesses were read out very slowly to the petitioner and he was also asked to cross examine the witnesses in question but he declined to :12: cross examine the witnesses. In the circumstances, the Single Judge of this court concluded from the facts that it was not possible to hold that the petitioner was not given any opportunity to cross examine the witnesses. We note that, in the aforesaid case, it was not the contention of the Navy that the right to cross examine was not available at all to the petitioner. In fact, in the present case also, it was fairly conceded that the petitioner had a right to cross examine the witnesses. In fact the onus to prove that the right of cross examination was given would be upon the prosecution and they should therefore take care to see that the fact 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 on two grounds firstly that the petitioner was not given opportunity to cross examine the witnesses and secondly the additional material in the form of questions raised by the petitioner and answered by the witnesses as referred to in Para-29 of the affidavit in reply were not made as part and parcel of the summary of evidence required to be forwarded to the 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 of this matter, this is a fit case which :13: deserves remand and a continuation of the trial from the stage of cross examination. The Advocate for the petitioner fairly stated that his client did not want to cross examine all witnesses but would be satisfied if the victim girl Jyoti, her father R.K.Sharma and mother Rekha were recalled for cross examination. He waived his right to cross examine the other witnesses. He also made a request that in case the matter was remanded, the petitioner should be given an officer of his choice to defend himself. We find this contention to be acceptable. In the net result, we pass the following order. ORDER a. Petition is allowed. b. The punishment imposed upon the petitioner by his Commanding officer vide his order dated 9.10.2004 as approved by the Chief of the Naval Staff vide his order dated 13.1.2005 is quashed and set aside and the matter is remanded for further trial before the Commanding Officer. It is made clear that at the further trial the Commanding officer will make available three witnesses i.e. Jyoti R. Sharma, her mother Rekha R. Sharma and her father R.K. Sharma available for cross examination by the petitioner. The petitioner will also be entitled to have an officer of his choice to defend himself. It :14: is further made clear that it would not be necessary to recall the witnesses other than the aforesaid three witnesses for the purpose of cross examination and the 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 is scheduled to expire on 31.1.2009. In the circumstances, we further make it clear that in view of his dismissal for being set aside, he shall be reinstated only for the purpose of naval trial and will not be allowed to rejoin his duty. He shall enter the naval premises only for the purpose of trial or for briefing his defending officer. The trial shall be treated as continuation of the earlier trial and all 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.)