Sunil Kumar Dhaka vs Union Of India & Ors.
2001 Latest Caselaw 59 Del

ORDER

Vikramajit Sen, J.

1. The prayers in this writ petition call for the setting aside of the illegal Summary Charge Trial of the Petitioner held on 19.7.1996 by his Commanding Officer. Secondly, it is prayed that the order of the Chief of Naval Staff dated 12.9.1996 whereby the Petitioner was sentenced to (a) rigorous imprisonment for thirty days and (b) dismissal from Navy service to set aside.

2. Thirdly, that the Petitioner be awarded exemplary compensation/damages for his being kept illegally in Naval custody beyond the period of rigorous imprisonment approved by the Chief of Naval Staff.

3. The relevant facts are that on 16.7.1996 the Petitioner had attempted to outrage the modesty of an attendant in the Intensive Care Unit, where the Petitioner was on duty. On a hue and cry being raised by the victim, Officers were summoned and the Petitioner was apprehended. A Summary Court Martial was forthwith held. The Petitioner made a confession of his guilt and expressed remorse for his actions. The Commanding Officer recommended the Petitioner's detention for ninety days as well as dismissal from Naval service. Although the Petitioner has asserted in the writ petition that the confession was not voluntary, this plea and challenge to the punishment imposed was given up as notice was issued only on the question whether the Petitioner had undergone two months imprisonment instead of thirty days. In the ordinary course I would not have referred to the incident for which he was sentenced but keeping in view the claim of the Petitioner for compensation this fact becomes material. It is material for two reasons. Firstly, because of the heinous act itself and secondly, in order to ascertain the conduct of the Petitioner subsequent thereto. Had the Petitioner not agitated the voluntary nature of the confession in the writ petition, this would have a direct bearing on the compensation, if any, to be awarded to him. If he has attempted to retract his confession, then he would disentitle himself from compensation.

4. The sentence of the Commanding Officer was confirmed by the Chief of Naval Staff on 12.9.1996 in respect of the dismissal from service. As regards the sentence of detention for ninety days passed by the Commanding Officer this was altered to rigorous imprisonment for thirty days. Although in the pleadings it has been averred by the Respondents that the sentence of rigorous imprisonment would commence from the date of its pronouncement and further that since the Petitioner was released from Naval custody on 21.9.1996, there was no illegal confinement, this point was not urged in the course of arguments. In my view rightly so - since had the Respondents genuinely adhered to this opinion, the Petitioner would have been released on 11.10.1996 and not earlier. Quite obviously after some cogitation on the point, the Respondents had realised that the period of detention already undergone by the Petitioner should be counted when computing the thirty days of rigorous imprisonment. The correctness of contentions on this issue shall, therefore, be left to a decision in some other case where it would be contested.

5. This legal impasse would not have arisen had the Chief of Naval Staff sentenced the Petitioner to the punishment already undergone; or had clarified that the rigorous imprisonment would be for a period of thirty days from the date of sentence. In this contention Section 151 of the Navy Act, 1957 (hereinafter referred to as 'the Act') is of significance as it states that every term of imprisonment or detention shall be reckoned as commencing on the date on which the sentence was awarded. As already mentioned above the Respondents, in their wisdom, decided to take into account the detention already undergone by the Petitioner although, arguably, the case could have rested on Section 151 of the Act. In these proceedings, of course, this was not possible because, as mentioned above the Petitioner had been released within one week of the sentence having passed by the Chief of Naval Staff.

6. During the course of arguments, pursuant to a specific query raised by me to the learned counsel for the Petitioner, he had clarified that the claim for compensation for illegal confinement was not for the period between 12.9.1996 and 21.9.1996. This stand can also be seen in paragraph seven page seven of the Rejoinder Affidavit where it has been averred that "it was only when the authorities realised their illegal act of detaining the Petitioner in custody beyond 30 days, that they released him immediately on receipt of the Order of Chief of Naval Staff". Learned counsel for the Petitioner has relied on the decision in Bhuwneshwar Singh v. Union of India & Ors., in which the Court had found that the Petitioner had been detained beyond the permissable period as the Respondent had failed to obtain the approval of the Central Government, as was requisite. The case would be of little assistance because the Respondents have acted with alacrity and there is no serious accusation of mala fides or victimisation, and the Respondents have given the Petitioner the benefit of two possible views.

7. Compensation is claimed because on 12.9.1996 the Petitioner had already undergone detention, albeit not rigorous imprisonment, for a period of over thirty days.

8. The Order which was sought to be impugned, but which was not pressed and hence notice thereon was not issued, was for the offence of use of criminal force with intent to outrage the modesty of a young lady. This offence, in the circumstances of the case, stands proved. In my opinion it is an arguable case that the Chief of Naval Staff would have had in mind that the Petitioner had only undergone detention for a period of less than two months out of the total of ninety days awarded by the Commanding Officer. It is for this reason that he had intended to alter the simple detention to one of rigorous imprisonment keeping in view the gravity of the offence committed. From my perspective the sentence of imprisonment, if taken by itself, is absurdly incommensurate with the offence, but when coupled with the dismissal order, assumes greater gravity. It is not for this Court, however, to consider the propriety and correctness of that sentence since it has been awarded under the Navy Act. The Respondents, by any consideration, have given the benefit of the doubt to the Petitioner and have released him even before his having undergone the thirty days rigorous imprisonment awarded by the Chief of Naval Staff.

9. Compensation is called for either where the Petitioner has suffered for no fault of his own or has suffered for reasons attributable to the neglect or malafide action of the Respondents. The Respondents cannot be faulted on any of these grounds. Since the Respondents have released the Petitioner computing the period of limitation to commence not from the date of the Order of the Chief of Naval Staff, but retrospectively from the date on which the Petitioner was detained, I am of the opinion that the Petitioner should not be paid any compensation, having committed a heinous crime.

10. The petition is dismissed.