-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 292 OF 2003 Shri Shantilal Nagarwal Ex.MCELAR Second Class, major, married, Indian National, Presently residing at Flat no. 8, Salkar building, Behind St. Tereza High School, Mangor Hill, Vasco da Gama, Goa. ...... Petitioner V e r s u s 1. Union of India, through the Secretary, Ministry of Defence, New-Delhi. 2. Chief of the Naval Staff, Sena Bhavan, Naval Headquarters, New Delhi 110 011. 3. The Flag Officer Commanding in Chief, Headquarters, Qestern Naval Command, Bombay – 400 001. 4. The Flag Officer Commanding, Headwuarters, Goa Naval Area, Vasco da Gama, Goa. 5. Commanding Officer INS Hansa, Office of the Commanding Officer INS Hansa Dabolim Airport, Dabolim, Vasco da Gama, Goa. ...... Respondents Mr. S. G. Dessai, Senior Advocate with Ms. Samiha Rodrigues, Advocate for the Petitioner Mr. J. Vaz, Central Government Standing Counsel for the Respondents. -2- CORAM: S. C. DHARMADHIKARI & R. C. CHAVAN, JJ. DATE OF RESERVING : 16.09.2008 DATE OF PRONOUNCING : 19.09.2008 JUDGMENT (Per R. C. CHAVAN, J.) This petition is directed against Order dated 19.12.2002 by the Chief of Naval Staff upon a judicial review of trial of petitioner by Court martial whereby punishment of “dismissal with disgrace” imposed upon the petitioner was reduced by the Chief of Naval Staff to dismissal simplicitor. 2. Facts which are relevant for deciding this petition are as under : It is not in dispute that since joining the Indian Navy on 26th June 1978, the petitioner had an unblemished service record and received timely promotions. Since 16.02.1999, petitioner was posted at the Naval Air Squadron at Dabolim Airport, Goa. He was serving in April 2001 as the Master Chief in charge of Air Store/Naval Store. On 04.04.2001, requisition for a spare part of a Naval Aircraft was placed. Proper spare could be secured only on 06.04.2001. 3. Petitioner was not on duty on 06.04.01. At 7.30 p.m., he received a message that he had to report immediately to Lt. Commander A. Muthu. On reaching the office of Lt. Commander, an exchange of words ensued. It was alleged that Petitioner had assaulted and wrongfully restrained -3- the Lt. Commander. After Petitioner returned to his residence, he was picked up by authorities and kept under arrest. A board of enquiry was ordered. 4. In the meantime, Petitioner was due for his next promotion and on 20.09.2001, was selected and ordered to be promoted to next higher rank. Petitioner learnt that this promotion was withheld because of incident dated 06.04.2001. On 06.12.2001, Petitioner was ordered to be tried at a General Court Martial on six charges, namely : 1. Failure to place demand of spare for the aircraft and thereby committing offence punishable under Section 41(c) of the Navy Act. 2. Failure to report for duty on 06.04.2001 though called for such duty and thereby committing offence punishable under Section 41(a) of the Act. 3. Striking Superior Officer Lt. Commander A. Muthu and thereby committing offence punishable under Section 41(a) of the Act. 4. Using threatening, insulting and in subordinating language to Superior Officer, Lt. Commander A. Muthu, punishable under Section 45(c) of the Navy Act. 5. Wrongfully restraining Lt. Commander A. Muthu and thereby committing offences punishable under Section 341 of I.P.C. and 77(2) of the Navy Act, and -4- 6. Using violence to superior Officer Lt. Commander A. Muthu by kneeding him punishable under Section 45(c) of the Navy Act. 5. A Court martial was held and Petitioner was held guilty of charges 3, 5 and 6 and acquitted of charges 1, 2 and 4. He was sentenced to be dismissed from service with disgrace, after reducing him to the rank of Petty Officer and depriving him of three good conduct badges. Petitioner sought judicial review by the Commander in Chief under Section 160 of the Navy Act, who reduced the sentence as indicated above by his impugned order. Aggrieved thereby, petitioner is before this Court. 6. We have heard the learned Senior Advocate for Petitioner Shri Surendra Dessai at length, who took us through the relevant record meticulously. He also took us through all the relevant provisions of the Navy Act and a number of judicial pronouncements in support of his contentions, namely, that - (1) There was no legal evidence to hold the Petitioner guilty; (2) The Orders were vitiated since no reasons for holding Petitioner guilty were recorded; and (3) The punishment was grossly disproportionate to charges held as proved in the light of Petitioner's unblemished service record; His learned Adversary Advocate Shri Vaz contested all the three propositions. -5- 7. Both the learned Counsel agree on the limited scope of judicial review under Article 226 of the Constitution, while considering a challenge to sentence inflicted as a sequel to a Court Martial. In Bachan Singh v. Union of India (UOI) and Ors. (Civil Appeal No. 3110/04 decided on 10.07.2008), on which the learned Counsel for Respondent placed reliance, in Para 15, the Supreme Court outlined the scope of judicial review under Article 226 in the following words : “Having examined the above said order of the learned Single Judge, we find that the findings and reasonings recorded therein are not based upon proper assessment of the facts of the case and it was not necessary for the learned Single Judge to have minutely examined the record of the GCM as if he was sitting in appeal. We find that on merits, the learned Single Judge has not clearly and plainly said that there was no case against the appellant to hold him guilty of the offence charged. It is well-known and well-settled proposition of law that in proceedings under Article 226 of the Constitution the High Court cannot sit as a Court of Appeal over the findings recorded by the GCM. Judicial Review under Article 226 of the Constitution is not directed against the decision but is confined to the decision-making process. Judicial Review is not an appeal but a review of the manner in which the decision is made. The court sits in judgment only on the correctness of the decision making process and not on the -6- correctness of the decision itself. Thus, examining the case of the appellant from all angles we are satisfied that there was no irregularity or illegality in the GCM which was fairly and properly conducted by most qualified members holding very high ranks in Army hierarchy.” 8. The learned Counsel for Petitioner submitted that requirement to give reasons is implicit in the duty to render findings. According to the learned Senior Advocate for the Petitioner, requirement to render findings implies rendering findings supported by reasons and that there could be no finding without reasons. 9. The procedure at Court Martial under the Navy Act is prescribed in Chapter XIII in Sections 98 to Section 146 of the Act and is a complete code in itself. Provisions relevant for the present purpose, contained in Sections 113 to 118 of the Act, read as under :- “113. Summing up by the trial judge advocate.- When the case for the defence and the prosecutor's reply, if any, are concluded, the trial judge advocate shall proceed to sum up in open court the evidence for the prosecution and the defence and lay down the law by which the court is to be guided. 114. Duties of the trial judge advocate.- (1) At all trials by courts-martial it is the duty of the trial judge advocate to decide all questions of law arising in the course of the trial, and specially all questions as to the relevancy of facts which it is proposed to prove and -7- the admissibility of evidence or the propriety of the questions asked by or on behalf of the parties; and in his discretion to prevent the production of inadmissible evidence whether it is or is not objected to by the parties. (2) Whenever in the course of a trial it appears desirable to the trial judge advocate that arguments and evidence as to the admissibility of evidence or arguments in support of an application for separate trials or on any other points of law should not be heard in the presence of the court, he may advise the president of the court accordingly and the president shall thereupon make an order for the court to retire or direct the trial judge advocate to hear the arguments in some other convenient place. 115. Duties of the court.- It is the duty of the court to decide which view of the facts is true and then arrive at the findings which under such view ought to be arrived at. 116. Retirement to consider finding.- (1) After the trial judge advocate has finished his summing up, the court will be cleared to consider the finding. (2) The trial judge advocate shall not sit with the court when the court is considering the finding and no person shall speak to or hold any communication with the court while the court is considering the finding. 117. Announcement of the finding.- (1) When the court has considered the finding the court shall be reassembled and the president shall inform the trial -8- judge advocate in open court what is the finding of the court as ascertained in accordance with section 124. (2) The court shall give its findings on all the charges on which the accused is tried. 118. Drawing up of the finding.- (1) The trial judge advocate shall then draw up the finding as announced by the court. (2) The finding so drawn up shall be signed by all the members of the court by way of attestation notwithstanding any difference of opinion there may have been among the members and shall be countersigned by the trial judge advocate. (3) Where the finding on any charges is one of not guilty the court shall acquit the accused of that charge. (4) If the accused is acquitted of all the charges, the court shall, after signing the findings as provided in sub-section (2), be dissolved. (5) Neither the court nor the trial judge advocate shall announce in open court whether the finding was unanimous or not; but the president shall make a record of the division of voting on each finding without disclosing the vote or opinion of any particular member of the court-martial and such record shall be communicated to the trial judge advocate for the transmission to the Judge Advocate General of the Navy.” -9- 10. The Army Act too contains provisions relating to Court Martials, however, those provisions are not as elaborate as those in the Navy Act, since the Army Rules elaborate the procedure for Court Martial. Rules 105, 120 and 121 thereof may be usefully reproduced as under : “105. Powers and duties of judge-advocate.- The powers and duties of a judge-advocate are as follows:- (1) The prosecutor and the accused, respectively, are, at all times after the judge-advocate is named to act on the court, entitled to his opinion on any question of law relative to the charge or trial, whether he is in or out of court, subject, when he is in court, to the permission of the court. (2) At a court-martial, he represents the Judge- Advocate-General. (3) He is responsible for informing the court of any informality or irregularity in the proceedings. Whether consulted or not, he shall inform the convening officer and the court of any informality of defect in the charge, or in the constitution of the court, and shall give his advice on any matter before the court. (4) Any information or advice given to the court, on any matter before the court shall, if he or the court desires it, be entered in the proceedings. (5) At the conclusion of the case, he shall sum up the evidence and give his opinion upon the legal bearing of the case, before the court proceeds to deliberate upon its findings. (6) The court, in following the opinion of the judge- -10- advocate on a legal point, may record that it has decided in consequence of that opinion. (7) The judge-advocate has, equally with the presiding officer, the duty of taking care that the accused does not suffer any disadvantage in consequence of his position as such, or of his ignorance or incapacity to examine or cross- examine witnesses or otherwise, and may for that purpose, with the permission of the court, call witnesses and put questions to witnesses, which appear to him necessary or desirable to elicit the truth. (8) In fulfilling his duties, the judge-advocate must be careful to maintain an entirely impartial position. 120. Verdict.- After all the evidence, both for prosecution and defence, has been heard, the court shall give its opinion as to whether the accused is guilty or not guilty of the charges. 121. Form and record of finding.- (1) The finding on every charge upon which the accused is arraigned shall be recorded, and except as mentioned in these rules, such finding shall be recorded simply as a finding of “Guilty”, or of “Not Guilty”. (2) When the court is of opinion as regards any charge that the facts proved do not disclose the offence charged or any offence of which he might under the Act legally be found guilty on the charge as laid, the court shall acquit the accused of that charge. -11- (3) When the court is of opinion as regards any charge that the facts found to be proved in evidence differ materially from the facts alleged in the statement of particulars in the charge, but are nevertheless sufficient to prove the offence stated in the charge, and that the difference is not so material as to have prejudiced the accused in his defence, it may, instead of a finding of “Not Guilty”, record a special finding. (4) The special finding may find the accused guilty on a charge subject to the statement of exceptions or variations specified therein. (5) The court shall not find the accused guilty on more than one of two or more charges laid down in the alternative, even if conviction upon one charge necessarily connotes guilty upon the alternative charge or charges.” 11. The Navy (Discipline & Misc. Provisions) Regulation 1965 contains only ancillary provisions, since the Navy Act itself deals with the procedure at Court Martials. 12. The learned Counsel for Respondents, Advocate Shri Vaz, submitted that the provisions would show that they do not require recording reasons. All that the law expects is to record “findings” which need not be confused for reasons. He submitted that the Apex Court had specifically considered the question of requirement to give reasons in the context of analogous provisions of the Army Act and the Army Rules in S. N. Mukherjee v. Union of India reported at (1990) S.C.C. 594. It may be useful to quote -12- observations of the Court in Paras 35, 40, 43 and 44 as under : “35. ... An important consideration which has weighed with the court for holding that an administrative authority exercising quasi-judicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons (i) guarantee consideration by the authority, (ii) introduce clarity in the decisions; and (iii) minimize chances of arbitrariness in decision-making. ... 40. For the reasons aforesaid, it must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision. 43. Reference may now be made to the provisions of the Act and the Rules which have a bearing on the requirement to record reasons for the findings and sentence of the court martial, namely, (a) general courts martial; (b) district courts martial; ( c ) summary general courts martial and (d) summary courts martial. The procedure of court martial is prescribed in Chapter XI (Sections 128 to 152) of the Act. Section 129 prescribes that every general court martial shall, and every district or summary general court martial -13- may, be attended by a judge-advocate, who shall be either an officer belonging to the department of the Judge- Advocate General, or if no such officer is available, an officer approved of by the Judge-Advocate General or any of his deputies. In sub-section (1) of Section 131 it is provided that subject to the provisions of sub-sections (2) and (3) every decision of a court martial shall be passed by an absolute majority of votes, and where there is an equality of votes on either the finding or the sentence, the decision shall be in favour of the accused. In sub-section (2) it is laid down that no sentence of death shall be passed by a general court martial without the concurrence of at least two thirds of the members of the court and sub- section (3) provides that no sentence of death shall be passed by a summary general court martial without the concurrence of all the members. With regard to the procedure at trial before the general and district courts martial further provisions are made in Rules 37 to 105 of the Rules. In Rule 60 it is provided that the judge-advocate (if any) shall sum up in open court the evidence and advise the court upon the law relating to the case and that after the summing up of the judge-advocate no other address shall be allowed. Rule 61 prescribes that the court shall deliberate on its findings in closed court in the presence of the judge-advocate and the opinion of each member of the court as to the finding shall be given by word of mouth on each charge separately. Rule 62 prescribed the form, record and announcement of finding and in sub-rule (1) it is provided that the finding on every charge upon which the accused is arraigned shall be recorded and, except as provided in these rules, shall be recorded simply as a finding of “Guilty” or of “Not Guilty”. Sub-rule (10) of Rule -14- 62 lays down that the finding on charge shall be announced forthwith in open court as subject to confirmation. Rule 64 lays down that in cases where the finding on any charge is guilty, the court, before deliberating on its sentence, shall, whenever possible take evidence in the matters specified in sub-rule (1) and thereafter the accused has a right to address the court thereon and in mitigation of punishment. Rule 65 makes provision for sentence and provides that the court shall award a single sentence in respect of all the offences of which the accused is found guilty, and such sentence shall be deemed to be awarded in respect of the offence in each charge and in respect of which it can be legally given, and not to be awarded in respect of any offence in a charge in respect of which it cannot be legally given. Rule 66 makes provisions for recommendation to mercy and sub-rule (1) prescribes that if the court makes a recommendation to mercy, it shall give its reasons for its recommendations. Sub-rule (1) of Rule 67 lays down that the sentence together with any recommendation to mercy and the reasons for any such recommendations will be announced forthwith in open court. The powers and duties of Judge-Advocate are prescribed in Rule 105 which, among other things, lays down that at the conclusion of the case he shall sum up the evidence and give his opinion upon the legal bearing of the case before the Court proceeds to deliberate upon its findings and the court, in following the opinion of the Judge-Advocate on a legal point may record that it has decided in consequence of that opinion. The said rule also prescribes that the Judge- Advocate has, equally with the Presiding Officer, the duty of taking care that the accused does not suffer any disadvantage in consequence of his position as such, or of -15- his ignorance or incapacity to examine or cross-examine witnesses or otherwise, and may, for that purpose, with the permission of the court, call witnesses and put questions to witnesses, which appear to him necessary or desirable to elicit the truth. It is further laid down that in fulfilling his duties, the Judge-Advocate must be careful to maintain an entirely impartial position. 44. From the provisions referred to above it is evident that the Judge-Advocate plays an important role during the course of trial at a general court martial and he is enjoined to maintain an impartial position. The court martial records its findings after the Judge-Advocate has summed up the evidence and has given his opinion upon the legal bearing of the case. The members of the court have to express their opinion as to finding by word of mouth on each charge separately and the finding on each charge is to be recorded simply as a finding of “guilty” or of “not guilty”. It is also required that the sentence should be announced forthwith in Open Court. Moreover Rule 66(1) requires reasons to be recorded for its recommendations in cases where the court makes a recommendation to mercy. There is no such requirement in other provisions relating to recording of findings and sentence. Rule 66(1) proceeds on the basis that there is no such requirement because if such a requirement was there it would not have been necessary to make a specific provision for recording of reasons for the recommendation to mercy. The said provisions thus negative a requirement to give reasons for its finding and sentence by the court martial and reasons are required to be recorded only in cases where the court martial makes a recommendation to mercy. In our opinion, therefore, at the -16- stage of recording of findings and sentence the court martial is not required to record its reasons and at that stage reasons are only required for the recommendation to mercy if the court martial makes such a recommendation. 13. In view of this, it would be impermissible to contend that the proceedings challenged in this petition are vitiated by failure to record reasons either at the Court Martial or while dealing with the matter at subsequent stage. 14. On behalf of the petitioner, it was next contended that there is no legal evidence which could justify the petitioner being held guilty or punished at the Court Martial. The learned Senior Counsel for the petitioner strenuously took us through the evidence of Lt. Commander A. Muthu who was examined as Pw.5 and one Mr. A. S. Potty, who was examined as witness no.7. According to the learned Counsel, the evidence of these witnesses would show that though the alleged incident of Lt. Commander A. Muthu being assaulted by the petitioner, could have been ordinarily witnesses by Naval Staff, including P.w.7 who was in the vicinity, no corroborative evidence has come forth. Since the Petitioner has not disputed having visited the office room of Lt. Commander A. Muthu, it has to be inferred that the incident took place inside the room. Whether there were curious on lookers or not would depend on what sort of crowd was expected at the place. In a Military establishment, it would be improper to expect people to be loitering around and, therefore, absence of curious on lookers itself does not imply that the story of Lt. Commander A. Muthu was all cooked up particularly when there is -17- no whisper of any previous