Before :- L. Nageswara Rao and Hemant Gupta, JJ.
Civil Appeal No. 734 of 2013. D/d. 23.10.2019.
Union of India & Ors. - Appellants
Versus
Rashid H. - Respondents
For the Appellants :- Mr. R. Balasubramanian, Sr. Advocate, Mr. Akshay Amritanshu, Ms. Priyanka Das, Mr. A.K. Sharma, Mr. Sumit Upadhyay and Mr. B. V. Balaram Das, Advocates.
For the Respondents :- Ms. Aishwarya Bhati, Sr. Advocate, Ms. Chitrangda Rastravara and Mr. Gp. Capt. Karan Singh Bhati, Advocates.
ORDER
A complaint was received on 7.1.2003 that the respondent molested the daughter of T. Thapa in the servant quarter of officers mess. The respondent was working as a cook and T. Thapa was his colleague in the kitchen. The respondent's daughter was 4 ½ years old.
2. The court of enquiry was conducted on 11.1.2003. The statement of victim and her father were recorded. The respondent admitted to the guilt. Thereafter a show cause notice was issued to the the respondent under Section 20(3) of the Air Force Act, 1950 asking him to submit the explanation as to why action should not be taken against him.
3. On 21.4.2003, the respondent filed his response in which he submitted that the statement recorded during the court of enquiry was under coercion and he further stated that the proceedings of the court of enquiry are vitiated as he was not given an opportunity to cross examine the witnesses and to adduce evidence.
4. After considering the explanation submitted by the respondent, Air Officer Commanding-in-Chief, South Western Air command dismissed the respondent from service by an order dated 26.5.2003.
5. Aggrieved by the order of dismissal passed by the Air Officer Commanding-in-Chief, the respondent filed a Writ Petition in the High Court of Rajasthan, Jodhpur Bench, on 4.6.2003, which was transferred to the Armed Forces Tribunal, Regional Bench, Jaipur ( in short 'the Tribunal'). The Tribunal by its judgment dated 19.12.2001 set aside the order of dismissal and directed re instatement of respondent with all consequential benefits.
6. The order of dismissal was set aside by the Tribunal on the ground that the Court of Enquiry acted in a hasty manner. During the course of a period of three hours and 45 minutes, the entire proceedings were completed and that the respondent was not provided an opportunity to defend himself. The Tribunal was of the opinion that Rule 156 of the Air Force Rules, 1969 was not complied with. This appeal is directed against the judgment of the Tribunal.
7. Rule 156 of the Air Force Rules, 1969 reads as under:
"156. Courts of inquiry other than those held under section 107. -
(1) The court shall be guided by the written instructions of the authority which assembled the court. The instructions shall be full and specific, and shall state the general character of the information required. They shall also state whether a report is required or not.
(2) Save in the case of a prisoner of war who is Still absent, whenever any inquiry affects the character or service reputation of a person subject to the Act, full opportunity must be afforded to such person of being present throughout the inquiry and of making any statements and of giving any evidence he may wish to make or, give, and of cross-examining any witness whose evidence, in his opinion, affects his character or service reputation, and producing any witnesses in defence of his character or service reputation.
(3) When a court of inquiry is held on prisoners of war, and in any other case in which the officer who assembled the court has so directed, the evidence shall be taken on oath or affirmation, in which case the court shall administer the same oath or affirmation to witnesses as if the court were a court-martial.
(4) The officer who assembled the court shall, when the court is held on a returned prisoner of war or on a prisoner of war who is still absent, direct the court to record its opinion whether the person concerned was taken prisoner through his own wilful neglect of duty, or whether he served with or under, or aided the enemy; he shall also direct the court to record its opinion in the case of a returned prisoner of war, whether he returned as soon as possible to the service, and in the case of prisoner of war still absent, whether he failed to return to the service when it was possible for him to do so. The officer who assembled the court shall also record his own opinion on these points. In other cases, the court shall give no opinion on the conduct of any person unless so directed by the officer who assembled the court.
(5) The members of the court shall not themselves be sworn or affirmed, but when the court is a court of inquiry on recovered prisoners of war, the members shall make the following declaration :-
"I,......A.........B........., do declare upon my honour that I will duly and impartially inquire into and give my opinion as to the circumstances in which ................ became a prisoner of war, according to the true spirit and meaning of the rules and regulations made under the Air Force Act, 1950, and I do further declare, upon my honour, that I will not on any account or at any time, disclose or discover my own vote or opinion, or that of any particular member of the court, unless required to do so by competent authority."
(6) The proceedings of a court of inquiry, or any confession or statement or answer to a question made or given at a court of inquiry, shall not be admissible in evidence against a person subject to Air Force Law, nor shall any evidence respecting the proceedings of the court be given against any such person except upon the trial of such person for wilfully giving false evidence before that court.
(7) Any person subject to the Act whose character or service reputation is, in the opinion of the Chief of the Air Staff, affected by anything in the evidence before or in the report of a court of inquiry shall be entitled to a copy of the proceedings of such court unless the Chief of the Air Staff sees reason to order otherwise.
(8) Any person subject to the Act who is tried by a court-martial in respect of any matter or thing which has been reported on by a court of inquiry shall be entitled to a copy of the proceedings of such court, including any report made by the court; Provided that if the Chief of the Air Staff considers that it is against the interests or the security of the state or friendly relations with a foreign State, to supply a copy of the proceedings or any part thereof, such person shall not be furnished with such copy but in such cases he shall, subject to suitable precautions as to security, be permitted inspection of such portions of the proceedings of the court of inquiry on the basis of which the charges, on which he is arraigned before the court-martial, have been framed.
(9) A copy of the proceedings of the court of inquiry shall be furnished under sub- rules (7) and (8) on payment for the same of a sum calculated at the rate of fifty paise for every two hundred words or part thereof.
(10) A person subject to the Act before he is, under sub-rule (7) or sub-rule (8), furnished with a copy of the proceedings of the court of inquiry or is permitted to inspect any portion of the proceedings shall be required to render certificate that he is aware that he may render himself liable to prosecution under the Official Secrets Act, 1923 (19 of 1923) for any breach of the provisions of the said Act, in relation to such proceedings or portion thereof."
8. Aggrieved by the Judgment of the Tribunal the above appeal is filed.
9. Mr. R. Balasubramanian, learned senior counsel appearing for the appellant-Union of India submitted that the respondent admitted to having committed a heinous act of molesting a girl of 4 ½ years. In view of the admission made by him, there was no necessity of compliance of Rule 156 of the Armed Forces Rules, by affording an opportunity to cross examine the witness. He also contended that sufficient opportunity was given to the respondent. Notice was issued to the respondent to show cause as to why action should not be initiated against him. Respondent's explanation was considered before the order of punishment was passed.
10. Ms. Chitrangda Rastravara, learned counsel appearing for the respondent argued that the respondent was forced to admit his guilt in the court of enquiry. The admission alleged to have been made by the respondent is due to coercion and threat. The respondent categorically stated in his reply to the show cause notice that admission was not voluntary. She argued further that Rule 156 of the Armed Forces Rules is mandatory and its non compliance would result in the order of dismissal being vitiated.
11. There is no dispute that the respondent made a statement before the court of enquiry admitting to have committed the act of molesting a young girl. The defence of the respondent was that he was forced to make such statement. There is no evidence on record to show that he made any complaint to the superior authorities that he was coerced into admitting his guilt. Apart from the admission, there was a statement given by him that he does not intend to give any further statement or produce any evidence.
12. In a case where the delinquent admits his guilt, there is no further requirement for the authorities to prove that the delinquent has committed an offence/misconduct. In the facts and circumstances of the case, we are convinced that though an opportunity was given to the respondent to defend himself, he did not utilise it. We are not in a position to accept the defence of the respondent that he was forced to make a statement. Apart from the admission of the respondent, the statements of the victim and her father conclusively prove the charge against the respondent.
13. In view of the above, judgment of the Tribunal is set aside and the appeal is allowed.