[Cites 10, Cited by 0]
Bombay High Court
The Union Of India, Thr. The Ministry Of ... vs Joao Martin Fernandes on 16 December, 2025
2025:BHC-GOA:2515
2025:BHC-GOA:2515
WP 618-2024.docx
Meena
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.618 OF 2024
1. he Union of India
hrough the Ministry of Defence, Raisina Hill,
New Delhi - 110 001
2. he Indian Coast Guard,
hrough the Director General, Ministry of
Defence, Government of India, Coast Guard
Headquarters, National Stadium Complex, New
Delhi- 110 001. ... Petitioners.
Versus
1. Shri Joao Martin Fernandes,
Son of late Miguel Menino Fernandes, Indian
national, Major of age, resident of H.No.370, 4th
Ward, Colva, Salcete Goa - 403 708. ... Respondent.
Mr. Raviraj Chodankar, Central Government Standing Counsel for
the Petitioners.
Mr. Nigel Da Costa Frias with Ms. Laxmi Sawant, Ms. Barbara
Andrade, Ms. Sonadevi Nishad, Mr. Shane Coutinho, Mr. K.
Panchal, Mr. V. Surlakar and Mr. Savio Misquita, Advocates for the
Respondent.
CORAM: VALMIKI MENEZES, J.
RESERVED ON: 16th July, 2025
PRONOUNCED 16th DECEMBER,2025.
ON:
JUDGMENT:
WP 618-2024.docx
1. his Petition challenges order dated 08.04.2024, passed by the
District Court, South Goa, at Margao, allowing an application under Order
XI Rule 14 and 18 CPC iled by the Respondent (Original Plaintif in Civil
Suit No.30/2014). he Petitioners are the Defendants in the suit.
2. It is the claim of the Respondent/ Original Plaintif in the plaint that
he owned a ishing trawler, 'Sea Messiah' which ventured into the sea on
24.04.2013 from Cutbona Jetty, Salcete Goa having 29 ishermen on board,
when on 25.04.2013, at about 4.30-4.45am the Coast Guard Vessel ICGS
Vaibhav, belonging to the Petitioner No.2, travelling at high speed
rammed into it and split it in two, which resulted in the death of 6
ishermen by drowning, whilst some other members of the crew of the
trawler were rescued by another ishing trawler 'Yana Marine'. On the basis
of information given by the Respondent on 25.04.2013 to the Cuncolim
Police Station, an FIR No.64/2013 was registered on 26.04.2013 under
sections 280, 427, 337 and 304A, IPC against the navigator of the vessel
belonging to Petitioner No.2; pursuant to a complaint dated 30.04.2013
iled by the Respondent at the Yellow Gate Police Station at Mumbai, an
FIR No.15/2013 on 30.04.2013 under section 337,427 and 304A IPC was
also registered.
3. It is the Respondent's case in the plaint that since no action was
taken, on 26.07.2013, he iled WPCR No.94 of 2013 before this Court,
seeking direction for immediate action to be taken by Cuncolim Police
Station and by the Petitioner Nos. 1 and 2 herein; the petition further
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sought details of the investigation carried out on the complaint. he Public
Prosecutor therein informed the court of the Chargesheet no.252/PS/13
iled by Yellow Gate Police, before the Metropolitan Magistrate Ballard Pier,
Mumbai, and thereafter the same was transferred to Coast Guard Court at
Mormugao for Court Martial proceedings against K. Jannardanan, D.I.G.
and P.V. Gopal, Commandant; vide order dated 23.09.2013, the Writ
Petition came to be disposed of directing the Respondent to explore other
alternative remedies whilst keeping all issues open.
Pursuant to issuance of a notice dated 25.10.2013 issued by
the Respondent to the Petitioners, compensation was sought to the
tune of Rs.3,69,07,000/- towards damages and expenditure incurred
by him for loss incurred; thereafter, the Respondent on 10.07.2014
iled Civil Suit No.30/2014 in the District Court at South Goa,
Margao. he Petitioners, who were arraigned as Defendants therein,
jointly iled their Written Statement on 19.11.2014 opposing the
suit and denying allegations.
4. At this juncture it is relevant to note that parallelly, since the vessel
involved in the alleged incident belonged to the Coast Guard, the
Petitioner, i.e. Defendant No.2 in the Suit instituted Court Martial
proceedings under the Coast Guard Act, 1978 read with the Coast Guard
(Discipline) Rules, 1983. hese proceedings were conducted before the
Coast Guard Court and were instituted against K. Jannardanan, D.I.G.
and P.V. Gopal, Commandant. In the Suit, the said Pappu Venkata Gopal
was examined for the Defendants as an eye-witness to the incident.
WP 618-2024.docx
5. In the course of the Court Marshal proceedings, the accused
Commandant Pappu Venkata Gopal vide order dated 02.09.2015 was
convicted and was imposed with a sentence of forfeiture of three years of
seniority of rank for purpose of promotion and forfeiture of one year
service for the purpose of pension. he other accused K. Jannardanan,
D.I.G. by order of conviction dated 16.01.2015 was imposed a sentence of
Simple Imprisonment for six months and dismissal from the Coast Guard
Service. It is also an admitted position, as stated by DW-2 Commandant
(JG) Akshay Jain who deposed before the trial Court on behalf of the
Defendants that two of the ishermen on board the capsized vessel Sea
Messiah, Krishna Ambig Tandel and Subrai Ambig Tandel, who survived,
were examined as witnesses before the Coast Guard Court, in the Court
Martial proceedings. One of these, Krishna Ambig Tandel has also
deposed before the Civil Court as PW-2 on behalf of the Plaintif. his is
admitted by witness DW2 in his cross-examination.
6. he Respondent vide application dated 02.07.2015, under RTI Act,
2005, sought for Certiied Copies of inal orders which was issued to him
on 02.09.2015, however, the other documents and witness depositions
were not issued.
7. In the meantime, evidence was recorded on behalf of the Plaintifs,
which was concluded on 18.09.2021, after which the irst defence witness
Pappu (eye-witness to the incident) iled his aidavit on 29.01.2022 and
his cross-examination was concluded on 18.02.2022. hereafter, DW-2
was examined and during his cross-examination, the application at Exhibit
WP 618-2024.docx
D-49 under Order XI Rule 14 came to be iled on 22.11.2022, for
producing the judgements, statement of witnesses and relevant documents
of the Court Martial proceedings, imposing sentences on the Commandant
and Deputy Inspector General; the Petitioners iled their reply and
contended that such an application could not be allowed at the stage of
inal arguments and vide order dated 28.02.2023, the District Court
dismissed the same. Subsequently the Respondent vide letter dated
11.07.2023, under Order XI Rule 15, requested the Petitioners to provide
certiied copies of the Judgements/orders and statement of witness in the
Court martial proceedings.
8. he Respondents then iled another application at Exhibit-D-53,
dated 22.11.2023, under Order XI Rule 14 and 18 CPC, which was
opposed by the Petitioners vide their reply dated 08.01.2024, contending it
to be an afterthought; vide order dated 08.04.2024, (impugned herein) the
same application was allowed directing the Petitioners to produce the
documents.
SUBMISSIONS
9. he Advocate for the Petitioners Mr. Raviraj Chodankar advanced
the following submissions;
a. hat the application could not be allowed since it was iled at the
stage of inal arguments, much after issues were framed, and trial
was concluded. It was further submitted that an earlier
application of similar nature having been dismissed on
WP 618-2024.docx
28.02.2023, the principles of Constructive Res-Judicata would
apply, prohibiting a second application of similar nature.
b. hat the documents sought to be produced have no mention in
the plaint nor were they listed in the list of documents relied
upon by the Plaintif for leading evidence. he documents sought
to be relied upon being the record of the Court Martial
proceedings had no relevance to the suit and therefore could not
have been allowed by the trial court. Without prejudice, it was
submitted that the Plaintif had received a copy of the Operative
part of the court Martial Proceeding under Right To Information
Act, 2005 way back on 02.09.2015, the sentence imposed on the
two charged oicers being made known to the Plaintif.
Consequently, the Plaintif having knowledge of the contents of
the sentence, had ample opportunity to apply for the entire
record for almost six years, which it failed to do, and have not
shown cause or pleaded due diligence in their application. It was
submitted that the trial court ought to have considered the lack of
due diligence on the part of the Plaintif and refused to exercise
its jurisdiction in favour of the Plaintif, under those
circumstances.
c. Learned advocate appearing for the Petitioner, heavily relied upon
the Scheme of the Coast Guard Act and the Coast Guard
(Discipline) Rules, 1983, to contend that the said rules do not
permit for copies of the Court martial proceedings be made
WP 618-2024.docx
public, nor would the Plaintif have right to access the same, since
it would be against the security of the State to divulge such
documents. It was further submitted that the documents being of
conidential nature, the Plaintif would have no right to obtain
copies of the proceedings. he Learned Counsel submitted that
Rule 120 of the Discipline Rules requires a Coast Guard Court to
preserve the records for only seven years, and there is no manner
of ascertaining whether the records are still available.
10. he Advocate for the Respondent Mr. Nigel Costa Fries advanced
the following arguments;
a. he Learned Counsel has taken me through the evidence of the
two oicers, DW-1 and DW-2 lead by the defendants, to submit
that they were confronted with the fact that the Plaintif's eye
witness to the incident had deposed in the Court Martial
Proceedings. He further contended that the DW-1 who is the
oicer charged in the Court Martial Proceedings has deposed as
eye witness to the incident on behalf of the defendants and has
deposed in his evidence that he was not aware of the outcome of
the Court martial proceedings.
b. It was further contended that where documents are used or
sought to be produced for the purpose of Cross examining the
witness, no reliance to be placed on such documents, since the
provisions of Section 145 of the Evidence Act itself provides for
WP 618-2024.docx
the exception to the Rule that documents that are required to be
relied upon and unless used to contradict or to impeach the
credibility of the witness.
c. Reference was made to the Coast Guard Disciplinary Rules,
1983, to contend that the Court Martial Proceedings are
conducted by Coast Guard Court and such proceedings are
Public documents under the Evidence Act. It was submitted that
neither the Coast Guard Act nor rules framed thereunder classify
the record of a Court Martial proceedings as conidential or as
oicial secrets, and there is no embargo in the law to provide
these records, moreso, since they are directly relevant for the
decision in the suit, moreso in the light of the fact that PW-2 was
a witness before the Coast Guard Court in proceedings in which
DW-1 was charged an is an eye witness in the present suit.
CONSIDERATIONS
11. he question that falls for determination in this Petition is whether
in the facts of the case the Impugned order dated 08.04.2024, directing the
defendants to produce the Judgments of the Coast Guard Court in the trial
conducted by it against K. Jannardanan, D.I.G. and P.V. Gopal,
Commandant, and further direction to produce the statements of the
witnesses recorded by the Coast Guard Court at the trial conducted by it is
legal and justiied.
WP 618-2024.docx
12. Order XI Rule 14 empowers the Court, at any time during the
pendency of the suit to order any party thereto, to produce any documents
upon oath, which may be in his possession or power, which relates to a
matter in question in the suit. his power is a power vested in the court in
order that the court can decide the justice of a matter without being
restrained by rules of procedure such as those contained in Order XIII
CPC, where reliance must be placed on documents which the parties wish
to produce in evidence. he powers under Order XI Rule 14 may also be
exercised by the Court if any of the parties to the suit bring to its notice a
document which is in possession or within the power of a party to the suit,
which if produced under oath would assist the court in arriving at a just and
fair decision to the parties.
13. In the present case, the trial court, no doubt, dismissed an earlier
application for production of the very same documents vide order dated
28.02.2023, but on the sole contention that the Plaintif had obtained the
operative part of the Court Martial orders but had not made eforts to
obtain the certiied copies of the record and proceedings of the Coast Guard
Court. In paragraph 5 of its order it noted that if certiied copies of the
proceedings cannot be issued, it was open to the party to approach the
court for production of copies of these documents. he application was
thus dismissed as being premature.
14. hereafter the Plaintif issued a notice dated 11.07.2023, to the
advocate for the Defendants, to furnish to the Plaintif certiied copies of
the entire judgement of the Coast Guard Court and statements of the
WP 618-2024.docx
witnesses recorded in the trial. No reply was given to this notice by the
Defendants in the suit, implying their rejection of the request for certiied
copies of the record. hereafter a fresh application was iled under Order XI
Rule 14 and 18 for a direction to the Defendant no.2 to furnish certiied
true copies of the aforementioned documents which is allowed by the
Impugned order. he application was opposed on the sole ground that the
documents were neither relied upon by the Defendants or the Plaintif nor
is the Defendant No.2 in possession of the same. here is no Aidavit
supporting this reply.
15. On perusing the Coast Guard ( Discipline ) Rules,1983, they provide
for charges to be issued to an oicer and a trial to be conducted by the
Coast Guard Court in which, under Rule 23, the Coast Guard Court,
examines witnesses on oath who are cross examined and re-examined. Rule
24 provides for the abstract of evidence to be recorded whilst Rule 79 to
Rule 82 provide for the mode of examining witnesses, cross examination of
these witnesses and re-calling of witnesses by that court. Evidence on
navigational matters is to be recorded in the same manner and as in the
present matter, which is an accident at sea, being a navigational matter, the
Coast Guard Court is required to consider 15 documents which include the
Ships Log, the Navigation and Echo sounder logs and various other books
maintained on the ship and the Ship's control room and engine room.
he witnesses in defence may be examined under rule 88 after
which the judgement is to be pronounced by the Coast Guard Court
under rule 97. Rule 120 to Rule 122 provides for preservation of the
proceedings for not less than 7 years and further provides for the
WP 618-2024.docx
right of the Accused to copies of the proceedings. he only
prohibition to granting such copies is where the central government
is satisied for reasons to be recorded that it is against the interest of
the security of the State that such copies may not be made available.
16. It has never been the case of the Defendants/Petitioners that there is
such an order in writing of the Central Government under Rule 122 and
that could not be the case since the sentence imposed on the Accused by the
Coast Guard Court was in fact provided for the Plaintif. What is even
more relevant is the fact that the witness PW-2 was examined as a witness
before the Coast Guard Court and his evidence is available with that Court.
he witness for the defence in the suit i.e DW-2 has deposed before the
Civil court, relating the entire incident and has admitted in evidence the
aforementioned facts with regard to PW-2 being a witness. he record of
the Coast Guard Court, therefore, assumes great relevance for the just
decision in the Civil Suit and it is in the light of this fact that the civil court
has rightly granted the application to enable it to have access to the
documents requested.
17. It was submitted during the course of the arguments that the
documents are conidential documents and cannot be made public. he
Coast guard Court is "a Court" and all its proceedings must be deemed to
be public documents under the evidence act. Its record, necessarily would
be required to be treated as a public document to which every other court
would have access, subject of course to the restrictions of national security
which are incorporated in Rule 122. hat Rule requires a speciic order in
WP 618-2024.docx
writing, restricting the access to the record of that court, which in the
present case does not exist as, in fact, the operative of the order of the Coast
Guard Court has been provided to the Plaintif. On this Count to the
objection to the Impugned order must be rejected.
18. his is not a case which calls for any interference in supervisory
jurisdiction of this Court under Article 227 of the Constitution Of India as
no inirmity can be found in the passing of this order.
19. Writ Petition stands dismissed.
20. No costs
VALMIKI MENEZES, J.
