No. 627366-A J.W.O. R.S. ... vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 789 Del

JUDGMENT

S.N. Aggarwal, J.

1. The petitioner, a Junior Warrant Officer, with a little more than 24 years of service in Air Force, was tried by the General Court Martial on the following three charges:

1. on 15.2.2006 while he was attached to 2 Wing Air Force, Pune, he attempted to have carnal intercourse against the order of nature with Flight Sgt. Phiri Charles Provost of Zambian Air Force, Livingstone.

2. That he put his hand inside the half pant (shorts) of Flight Sergeant Phiri Charles Provost of Zambian Air Force, Livingstone and said him" I want to fuck you" or words to that effect.

3. That he used criminal force against Flight Sergeant Phiri Charles provost of Zambian Air Force, Livingstone.

2. The petitioner pleaded guilty to all these three charges before the court martial and based upon his confession of guilt, he was convicted by the court martial and following sentences were passed against him vide order passed by the court martial on 2.3.2006;

(a) To suffer Rigorous Imprisonment for three months.

(b) To be dismissed from the service and

(c) To be reduced to the ranks.

3. The above sentences imposed by the court martial upon the petitioner were confirmed by the superior authority and after the same were confirmed it was promulgated on 1.4.2006. Thereafter on 6.4.2006 the petitioner filed a statutory petition under Section 161(2) of Air Force Act, 1950 before the Chief of Air Staff and prayed for reducing the punishment alleging that the punishment awarded by the court martial was disproportionate to the gravity of the offence proved against him. The said statutory petition of the petitioner was dismissed by the Chief of Air Staff vide order passed on 13.6.2006. The reasons for dismissal of the statutory petition given by the Chief of Air Staff as contained in the order dated 13.6.2006 are to the following effect:

(a) During trial, the petitioner had voluntarily pleaded guilty to the charges without any inducement, threat or promise. The Court had followed the prescribed procedure before recording the finding of 'guilty'. Thus, the finding of the Court is legally sustainable.

(b) The offences committed by the petitioner against a foreign Air Force personnel undergoing course in AFIS have caused severe embarrassment to the IAF. By his acts, the petitioner has seriously prejudiced 'Good Order' and 'Air Force Discipline'. Considering the high standards of moral conduct expected from Air Warriors, such indecent behavior renders him undesirable for retention in service.

(c) The petitioner has exhibited indecent and unnatural conduct of disgraceful nature. In fact, the sentence awarded to him is considered lenient in the facts and circumstances of the case. Thus, I do not find any reason to interfere with the same.

4. Aggrieved by the proceedings of General Court Martial held against him, the petitioner has filed the instant writ petition seeking a writ of certiorari against the respondents setting aside the order dated 13.6.2006 of the Chief of Air Staff rejecting his statutory petition and also seeking setting aside of the proceedings and findings and sentence dated 2.3.2006 of the General Court Martial held against him at 2 Wing, Air Force, Pune. The petitioner has also prayed for a writ of mandamus commanding the respondents to reinstate him with full back wages and all consequential benefits.

5. Mr. Kapoor, counsel appearing on behalf of the petitioner had vehemently argued that the petitioner was wrongly convicted by the court martial because of mistaken identity. It was contended by him that as there was no evidence in support of the charges framed against the petitioner, he could not have been convicted and sentenced only on the basis of his plea of 'plead guilty' in proceedings before the court martial. The learned Counsel heavily relied upon a Division Bench judgment of this Court in Ram Paul v. Union of India and Anr. CWP No. 2287/2001 decided on 26.7.2004 to buttress his contention that the conviction could not be based on the plea of "plead guilty" unless there is cogent evidence to support the charges against the petitioner.

We have gone through the said judgment relied upon by the petitioner's counsel as well as the proceedings of the General Court Martial (Annexure P-7, pages 74 to 118 of the paper book). In our opinion, the judgment of this Court in Ram Paul's case (supra) is of no help or consequence to the petitioner because in the case of Ram Paul, there was no reference nor any statement made by any of the witnesses during summary of evidence that delinquent official had accepted illegal gratification and after accepting the said illegal gratification allowed the smugglers to cross the international border. However, in that case during the trial before the Summary Security Force Court charge came to be amended wherein a specific allegation was brought against delinquent that he had accepted the illegal gratification from the local smugglers for allowing 50-60 bags to be smuggled out of Bangladesh. On these facts, it was held by this Court in Ram Paul's case (supra) that the conviction based on the plea of 'plead guilty' was illegal and without jurisdiction as there was no evidence to support the allegation of illegal gratification. The relevant portion of the judgment in Ram Paul's case (supra) is reproduced hereinbelow:

Since there is no evidence on record to make out a case for acceptance of illegal gratification by the petitioner, there could and should have been no conviction at the petitioner even assuming the petitioner had pleaded guilty after understanding all the circumstances. Therefore, we are of the considered opinion that the conviction and sentence passed against the petitioner is illegal and without jurisdiction and the same is liable to be quashed on this ground alone, which we hereby do.

6. The above judgment in Ram Paul's case (supra) is not applicable to the facts of this case because on perusal of summary of evidence recorded against petitioner it is evident that there was, prima facie, incriminating evidence against him to show that he had made sexual advances to a foreign national Flight Sergeant Phiri Charles Provost of Zambian, Livingstone thereby indicating attempt on his part for carnal intercourse on the person of said foreign national. A perusal of the proceedings of the court martial held against the petitioner (Annexure P-7) reveals that number of opportunities were given by the court martial to the petitioner that if he so likes, he could withdraw his plea of 'plead guilty' and that he was adequately explained the consequences of his pleading guilty but still he chose to stick to his plea of 'plead guilty' taken by him before the court martial. Flight Lieutenant P.K. Yadav, a Law graduate, had appeared before the court martial as Defending Officer to assist the petitioner during trial before the court martial. A perusal of the proceedings of the court martial would further show that the Defending Officer of the petitioner had also explained the charges as well as consequences of pleading guilty to the petitioner. Not only that, the petitioner made a statement before the court martial, which was recorded in writing on 23.2.2006 wherein he admitting his guilt that on 15.2.2006 at about 2100 hours he had entered the room of Flight Sergeant Phiri Charles Provost of Zambian Air Force, Livingstone and sat down near him on his bed and tried to persuade him for unnatural sex thereby requesting him for homo-sex. After making statement to the above effect, the petitioner made a plea in mitigation of sentence by giving a two page typed petition to the court martial, the relevant portion whereof is extracted below:

On a very essential requirement of the Air Force, I am attached to 2 Wing, AF wef. 26 Dec. 05 to perform the duties of Air Field Safety Operator due to retirement of 2 Wing and round the clock operation at this base. Since then I have been performing my duties sincerely and accommodated at SNCO's Mess (NP).

I am staying alone here and my wife and children continue to stay at Kanpur. On 15 of February 2006 evening I was alone at the SNCO's Mess and as a human being I had a urge to talk to somebody and discuss the general issues to get the relief of boredom. I was just walking in the SNCO's Mess premises and saw that the room No. 7 of SNCO's Mess light is on, so I thought it proper to share my thoughts with the occupant of room No. 7. I knocked the door and the door was opened by the Flt Sgt of Zambia Air Force. On opening the door the occupant of the room No. 7 welcomed me for the discussion and we started talking to each other and the discussion continued approximately 10 to 15 minutes. At the very beginning the discussion was on very common topics and on sharing of information about the culture and climate of the two countries. We also shared the information about the habit and life style of the people of the two countries.

Then the discussion turned on to sex related topic and I made sexual advances to Flt Sgt Phiri Charles for homosex.

7. In view of the above candid admission made by the petitioner in relation to charges framed against him during proceedings before the court martial, it is difficult to ram down the throat that the plea of 'guilty' was extracted from the petitioner by the concerned authorities either under threat or coercion as alleged by him in the writ petition. It would further be significant that the petitioner did not raise a grievance that his confession was obtained during court martial under threat even in his statutory petition preferred by him under Section 161(2) of Air Force Act, 1950 to the Chief of the Air Staff. Furthermore, we do not find any substance in the contention of the petitioner's learned Counsel that the petitioner was convicted on mistaken identity because a perusal of the proceedings of the court martial would clearly show that the victim of the crime, namely, Flight Sergeant Phiri Charles had clearly identified the petitioner as the person who made an attempt of carnal intercourse on him in the incident that took place on 15.2.2006. Under these circumstances, we are of the view that there is no merit in the challenge made by the petitioner in this writ petition against his conviction and sentence by the court martial.

8. For the foregoing reasons, we do not find any substance in this writ petition, which fails and is hereby dismissed in liming with no order as to costs.