Lt. Cdr. M. P. Verma vs Union Of India
2008 Latest Caselaw 1866 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+              WP(C)No.9509/2004

%                  Reserved on     : 25th September, 2008
                   Date of decision: 22nd October, 2008

      Lt. Cdr. M.P. Verma              ...PETITIONER
                     Through: Mr. Meet Malhotra             with
                     Mr.Sukhjinder Singh, Advocates

                             Versus

      Union of India                     ...RESPONDENT
                       Through: Ms.Jyoti Singh with Mr.Ankur
                       Chhiber, Advocates

CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.    Whether the Reporters of local papers
      may be allowed to see the judgment?          Yes

2.    To be referred to Reporter or not?           Yes

3.    Whether the judgment should be reported Yes
      in the Digest?

MOOL CHAND GARG, J.

1. The petitioner joined Indian Navy as Air Artificer Sailor

in November, 1968 and was commissioned as an officer on

1.4.1981. He superannuated on 30.09.2000. Prior to

superannuation he was posted as Deputy Controller of

Procurement (Central Purchase/ Direct Purchase) in the

Material Organization, Mumbai. By virtue of an agreement

entered into by him with the Central Government, he was

re-employed in the Indian Navy soon after his retirement

i.e., w.e.f. 01.10.2000 which appointment continued till

21.5.2004. During this period also, he was posted as Deputy

Controller of Procurement in Ghatkopar Mumbai and as such

he was responsible for various procurement activities on

behalf of Navy.

2. In or around June 2003 Intelligence inputs were

received by the Navy Authorities about extortion of illegal

gratification by some Naval officers from the vendors for

giving them contracts for supply of defence equipments. On

being satisfied that the petitioner was involved in such

practices his house was raided, from where a sum of

Rs.6,91,700/- was recovered hidden in a servant quarter. A

diary maintained by the petitioner in his own handwriting as

confirmed by the handwriting expert was also recovered

from his brief case, which contained details about the

receipt of money from the vendors so obliged. Thus the

petitioner was attached with the Commanding Officer, INS

ANGRE for disciplinary purposes and was sent for trial on 17

charges for acquiring assets disproportionate to his known

sources of income under Section 13(1)(d) r/w 13(2) of the

Prevention of Corruption Act, 1969 as also under Section

77(2) of the Navy Act, 1957 (for short „the said Act‟). He

was tried by a General Court Martial which found him guilty

of charges No. 2, 3, 5, 6, 8, 9, 10, 13, 15 and 17 and

sentenced the petitioner to undergo simple imprisonment

for one year, dismissal from service besides imposing fine of

Rs.6,91,700/-. The petitioner was dismissed from the

service of Indian Navy w.e.f. 21.05.2004. However he could

not be arrested for undergoing the simple imprisonment

due to a stay in respect of his arrest granted by Mumbai

High Court and later extended by the Apex Court, which is

continuing even till date.

3. The charges for which the petitioner has been

convicted are highlighted as under:

(2) Did at about 1900 hrs on 05 September 2002, being a public servant posted as Deputy Controller Procurement (Central Purchase/Direct Purchase) at Material Organisation (Mumbai), by abusing his position as public servant obtain for himself pecuniary advantage comprising Rs. 50,000/- (Rupees Fifty Thousand) in cash from Mr. KS Subramanian, General Manager, Safari Industries (India) Limited, suppliers of suitcases to the Indian Navy, at Hotel Meghdoot, near Ghatkopar Railway Station, Mumbai, and thereby committed an offence under Section 13(1)(d) (ii) of the prevention of Corruption Act, 1988, punishable under Section 13(2) of the said Act, read in conjunction with Section 77(2) of the Navy Act, 1957.

(3) Was at about 1600 hrs on 07 Dec 2002, guilty of conduct unbecoming the character of an officer in that he accepted Rs. 5,000/- (Rupees Five Thousand) in cash at Kala Ghoda, Mumbai from Mr.Vijay Kumar Singhal, Proprietor of M/s Computer Stationery, Mumbai, suppliers of computer related items to the Indian Navy, and thereby committed an offence punishable under Section 54(2) of the Navy Act, 1957.

(5) Did at about 1330 hrs on 13 February, 2003 being a public servant posted as Joint Controller Procurement (Central Purchase) at Material

Organisation (Mumbai), by abusing his position as public servant, obtain for himself pecuniary advantage comprising Rs. 10,000/- (rupees Ten Thousand) in cash, from Mr.Akar A. Filmwala, Parnter of M/s Equip-Tronics, Mumbai, suppliers of Electrical and Electronic items to the Indian Navy. In his officer in Material Organisation (Mumbai), and thereby committed an offence under Section 13(1)(d)(ii) of the Prevention of Corruption Act, 1988, punishable under Section 13(2) of the said Act, read in conjunction with Section 77(2) of the Navy Act, 1957.

(6) Was at about 1600 hrs on 08 Mar 2003, guilty of conduct unbecoming the character of an officer in that he accepted Rs.5000/- (Rupees Five Thousand) in cash at Kala Ghoda, Mumbai from Mr.Vijay Kumar Singhal, Proprietor of M/s Computer Stationery, Mumbai, suppliers of computer related items to the Indian Navy, and t hereby committed an offence punishable under Section 54 (2) of the Navy Act, 1957.

(8) Did at about 2000 hrs on 07 April 2003, being a public servant posted as Joint Controller Procurement (Central Purchase/Direct Purchase) at Material Organisation (Mumbai), by abusing his position as public servant, obtain for himself, pecuniary advantage comprising Rs. 5,000/- (Rupees Five Thousand) in cash from Mr. Om Prakash Toshniwal, Senior Manager M/s Arjay Apparel Industries Limited, Mumbai, suppliers of vests and briefs to the Indian Navy, at his residence in Material Organisation (Mumbai), and thereby committed an offence under Section 13(1)(d)(ii) of the Prevention of Corruption Act, 1988, punishable under Section 13(2) of the said Act, read in conjunction with Section 77(2) of the Navy Act, 1957.

(9) Did at about 1400 hrs on 12 April 2003, being a public servant posted as Joint Controller Procurement (Central Purchase/Direct Purchase) at Material Organisation (Mumbai), by abusing his position as public servant, obtain for himself

pecuniary advantage comprising Rs. 10,000/- (Rupees Ten Thousand) in cash from Mr. Akbar A. Filmwala, Partner of M/s Equip-Tronics, Mumbai, suppliers of Electrical and Electronic items to the Indian Navy, in his office in Material Organisation (Mumbai), and thereby committed an offence under Section 13(1)(d)(ii) of the Prevention of Corruption Act, 1988, punishable under Section 13(2) of the said Act, read in conjunction with Section 77(2) of the Navy Act, 1957.

(10) Did at about 1100 hrs on 26 April 2003, being a public servant posted as Deputy Controller Procurement (Central Purchase/Direct Purchase) at Material Organisation (Mumbai) by abusing his position as public servant, obtain for himself pecuniary advantage comprising Rs. 1,00,000/- (Rupees One Lakh), in cash from Mr. Ashok Kalra, Chief General Manager (Commercial), Lakhani Industries Limited, Faridabad, suppliers of shoes to the Indian Navy, in his office in Material Organisation (Mumbai), and thereby committed an offence under Section 13(1)(d)(ii) of the Prevention of Corruption Act, 1988, punishable under Section 13(2) of the said Act, read in conjunction with Section 77(2) of the Navy Act, 1957.

(13) Did at about 1700 hrs on 09 May 2003, being a public servant posted as Deputy Controller Procurement (Central Purchase/Direct Purchase) at Material Organisation (Mumbai) by abusing his position as public servant, obtain for himself pecuniary advantage comprising Rs. 10,000/- (Rupees Ten thousand) in cash from Mr.Venugopal Asopa, representative of M/s Asopa Traders, Visakhapatnam, suppliers of peak caps and clothing items to the Indian Navy, in his office in Material Organisation (Mumbai), and thereby committed an offence under Section 13(1)(d)(ii) of the Prevention of Corruption Act, 1988, punishable under Section 13(2) of the said Act, read in conjunction with Section 77(2) of the Navy Act, 1957.

(15) Was at about 1600 hrs on 04 June 2003 guilty of

conduct unbecoming the character of an officer in that he accepted a gift of Rs. 5000/- (Rupees five Thousand) in cash, in his office in Material Organisation (Mumbai) from Mr.Vijay Kumar Singhal, Proprietor of M/s Computer Stationery, Mumbai, suppliers of computer related items to the Indian Navy, and thereby committed an offence punishable under Section 54(2) of the Navy Act, 1957.

(17) Did at about 2200 hrs on 08 June 2003, being a public servant posted as Deputy Controller Procurement (Central Purchase/Direct Purchase) at Material Organisation (Mumbai), possess pecuniary resources to the extent of Rs. 6,91,700/- (Rupees six lakhs ninety one thousand seven hundred) in cash, namely, Rs. 6,76,000/- (Rupees six lakhs seventy six thousand) recovered from an air bag in the servants quarter attached with his residence at 3, Saraswati, Naval Park, Material Organisation (Mumbai) and Rs. 15,700/- (Rupees fifteen thousand seven hundred) in an almirah in the said residence, which is disproportionate to his known sources of income namely salary for which could not satisfactorily account, and thereby committed an offence under Section 13(1)(e) of the Prevention of Corruption Act, 1988, punishable under Section 13(2) of the said Act, read in conjunction with Section 77(2) of the Navy Act, 1957.

4. Prior to filing of the present writ petition, the petitioner

did prefer a statutory appeal before the Central

Government under Sections 162/163 of the Act against his

conviction and sentence. The said appeal was dismissed

during the pendency of the writ petition vide order dated 4 th

May, 2005. The petitioner has amended his petition and

has filed the amended petition thereby also challenging the

order of the Central Government dated 4th May, 2005 in

addition to the prayers earlier made.

5. One of the objections raised by the petitioner against

his trial by a Court Martial is that he was not subject to the

said Act and therefore could not have been tried under the

Naval Law. This objection had been rejected by a Division

Bench of this Court presided over by Dr. Justice M. K.

Sharma and Ms. Justice Reva Khetrapal vide their order

dated 19.5.2006 which has also not been reversed even by

the Apex Court.

6. By the aforesaid order it has been held:

"That the petitioner admittedly was a re-employed personnel with the Navy just after his retirement in terms of an agreement entered into by him with Central Government of his own volition in terms of Section 6 of the Act and, therefore, in accordance with the terms and conditions laid down under the Navy instructions 5/8/58 he subjected himself to Naval law. By virtue of the aforesaid instructions and in view of Section 6(1) of the Navy Act, any person who is not otherwise subject to Naval law but enters into an agreement with the Central Government to serve in particular ship or otherwise of

his own volition, becomes subject to Naval law."

7. It was further held that all uniformed persons belonging

to Indian Navy and serving anywhere in the Navy become

subject to Naval law when they themselves of their own

volition subject themselves to the provisions of the said Act

by entering into an agreement under Section 6 of the said

Act. It was also observed that at the relevant time the

petitioner was admittedly in the contractual employment of

the Navy as is reflected from his own letter dated 1.10.2003

seeking his release from the service of the Navy w.e.f

31.12.2003.

8. The petitioner aggrieved by the aforesaid judgment

also approached Hon‟ble Supreme Court of India. However,

the Apex court while disposing of his petition did not set

aside the order and only made following observations;

"The High Court of Delhi by order dated 24 th March, 2005 directed the Central Government to proceed with the disposal of the representation made by the petitioner under Section 162 of the Navy Act. The High Court has clarified that the pendency of the writ petition shall not come in the way while disposing of the representation by the Central Government. The learned Additional Solicitor General for the Union of India, at the time of hearing, placed before us an order passed by the Central Government, Ministry of Defence dated 22nd May, 2004 under sections 162 and 163 of the Navy Act, 1957. By the said order, the conviction was upheld and the prayer made by the petitioner was dismissed as devoid of merits.

At this stage, Mr.L.N.Rao, learned Senior counsel appearing for the petitioner, brought to our notice that an application for amendment of writ petition filed by the petitioner in the High Court has already been allowed by the High Court. The petitioner has filed the amended writ petition in this S.L.P.

The High Court, while disposing of the writ petition, directed the registry of the said court to place the matter before the regular Bench on 10th July, 2006 for hearing the main pleas raised by the writ petitioner pertaining to the findings and sentence of the Court Martial.

Now, since amendment application has also been allowed, we request the High Court to consider the amended writ petition and also the plea raised by the petitioner pertaining to the findings and sentence of the Court Martial on merits and after affording opportunity to both the parties.

Till the disposal of the writ petition, the order passed by the High court in the impugned order vacating the stay shall stand stayed. In other words, the petitioner will not be arrested till the disposal of the writ petition.

The special leave petition is disposed of accordingly. No costs."

9. The petitioner has also not pressed this point before

us again. Even otherwise, there is no reason for us to have

a review of the well reasoned order of the Coordinate Bench

of this court on the issue. Hence, we conclude that the

petitioner was subject to Naval law in the relevant period

and asking him to face trial by a Court Martial was not

illegal.

10. Additionally the petitioner has pointed out some

procedural irregularities in the Convening of the Court

Martial, its constitution and substitution of its two Members

while the trial was on. Objection has also been raised about

the role of the Trial Judge Advocate during the Course of

trial. It is claimed that those infirmities vitiates the trial.

Some other infractions have also been pointed. It has been

pleaded;-

(i) That the petitioner was forcibly taken to Naval Ship INS Kunjali

and was given third degree treatment to extract confessional

statement and that the sum of Rs.6,91,700/- recovered from his

house was not the bribe money but was the money belonging to

the petitioner as received by him towards an agreement to sell

produced on record for sale of his property at Pune, Flat No. 43,

First Floor, Flat No. 3 situated in M.P. Co-operative Housing

Society Ltd. Sahnni, Pune in January, 2003. It is submitted that

this aspect has been completely overlooked by the Court Martial.

(ii) The petitioner was borne with the Material Superintendent

(MS) in Material Organization (MO) Mumbai, and as such MS(MO)

alone was competent to make an application for his trial in

accordance with Regulation 148(5) of the Regulations Navy Part II

(Statutory). Such application could not have been made by the

Commanding Officer of INS ANGRE.

(iii) The Investigating Officer had to be appointed by his

Commanding Officer in terms. However, the C-in-C himself

appointed the investigating officer whereas it should also have

been done by MS (MO) thereby C in C took excessive personal

interest in the proceedings.

(iv) That the Convening Authority had only to appoint the

President of the Court Martial under Section 97(12) while the

other members were to be chosen by the President in terms of

Section 97(19) and 97(20) of the Act. But the convening

authority handpicked various junior officers as members of the

court martial illegally by substituting two members of the Court

Martial itself. Reliance has been placed upon the letter of the

convening authority dated 16thJanuary, 2004 which is an excuse

list, exempting all officers falling in between the seniority of the

members which is subsequent to the order appointing the

President.

(v) An objection was raised regarding sitting of those

members in Court Martial who were not invited by the President

of the Court Martial under Section 97(19) of the Navy and were

handpicked at the behest of higher authority. This objection was

not only against their competence but also regarding their

impartiality and should have been put to vote by the Court

Martial. However instead of doing so it was decided by the Trial

Judge Advocate herself. This Act of the trial Judge Advocate was

thus in violation of the judgment of the Apex Court in the case of

Union of India & Ors. VsShivendra Bikaram Singh[2003 (6) SCC

259] which is sufficient to vitiate the trial.

(vi) The petitioner had requested for an interview with the

witnesses for the prosecution on 31.01.2004 and 04.03.2004

under regulation 172(5) which ought to have been granted by the

Court Martial. However it was refused. This affected the

preparation of the petitioner's defence and therefore affects the

partiality of the procedure undertaken by the court martial.

(vii) Petitioner was also not supplied copies of the charge sheet

and statement of witness supporting the charge sheet which was

voilative of Regulation 151 and vitiates the trial in view of the

Judgment of the Supreme Court in Union of India Vs. B.N. Jha

2003 (4) SCC 531.

(viii) Charges leveled against the petitioner were not proved by

leading any independent evidence. In fact the findings of the

Court Martial are based upon the noting of bribe money recorded

in the diary only which cannot be taken as proof of such entries

without corroboration from independent sources. The testimony

of the bribe givers relied upon by the Court Martial was not

admissible without prosecuting them together with the petitioner

or otherwise. It has been submitted that the those witnesses

were none else but accomplices and were induced by Navy by

continuously placing the orders on them despite discovery of

story of so-called illegal gratifications allegedly paid by them to

the petitioner.

(ix) That Navy had no jurisdiction to exempt civilians from

punishment and should have lodged FIR against all the accused

person (who would also include the bribe givers) and they ought

to have been tried under the Prevention of Corruption Act under

the aegis of the designated Court. It is stated that the Navy

procured testimony of the bribe givers by inducing them which is

an offence in the eyes of law. Instead of black listing the fourteen

offenders the Navy authorities produced those vendors as

prosecution witnesses. This also impeaches their credit under

Section 155(2) of the Evidence Act and makes their testimony

inadmissible in evidence. In fact, the statement made by the

vendors was also vitiated on account of the pressure imposed

upon them by police/provost officer, Commander A. Saran and

Commander Tomar.

(x) That the panchnamas were prepared in violation of

Section 100, 102 and 165 of the Cr.P.C. by tampering with the

original panchnama and by not observing safeguards as provided

for under Sections 3 to 5 of the Prevention of Corruption Act

inasmuch as, the bribe giver were not tried with the petitioner as

observed by the Hon'ble Supreme Court in the case of

P.Nallammal and Ors. Vs. State [(1999) SCC 559].

(xi) The disclosure statement allegedly made by the petitioner

Ex.P-50 was inadmissible being contrary to provisions of Section

27 of the Evidence Act.

(xii) The President of the Court Martial had not applied his

mind inasmuch as, throughout the proceedings he was issuing

SMSs to such a large extent which shows that he gave no

attention to trial as is apparent from the report of the MTNL in

their affidavit at pages 413 to 424 of the paper book.

(xiii) That the entire action taken by the C-in-C himself without

involving the concerned officials violated the Scheme of the Navy

Act and the Regulations framed there under which shows his

personal interest and excessive command influence which also

vitiates the entire proceedings.

11. In addition to that the petitioner has also mentioned

some of the instances regarding the bias of the Trial Judge

Advocate during trial. In this regard, it has been submitted

that:

(i) The TJA examined and recorded the depositions of the

officer of the Court without administering him oath in violation

of Section 110 of the Navy Act.

(ii) The summary of evidence of PW1, 2, 12 and 14 was not

provided to the petitioner in violation of Regulation 169 read

with Regulation 149, Regulations Navy Part II.

(iii) The TJA ruled that the head of the organization can

certify copies of the documents as correct. This is contrary to

Section 133 of the Navy Act because it is only the Commanding

Officer or the Secretary of Ministry of Defence can do so.

(iv) TJA failed to take note of the provisions of Section 65 A

and 65 B of the Evidence Act despite the fact, Section 130 of

the Navy Act makes Evidence Act applicable to the Naval Trial.

(v) TJA permitted postponement of cross-examination of

Commander A. Saran but when petitioner's counsel commenced

cross-examination imposed stringent restrictions.

12. Petitioner also stated that the Trial Judge Advocate

was a short service commissioned officer whose services

were coming to an end during the pendency of the court

martial and was extended for a year, and has not

discharged her duties impartially. She acted with bias and

committed number of illegalities while performing her

functions during the Court Martial in addition to what has

been stated above.

13. The petitioner also assailed the order of Central

Government rejecting his appeal as an order passed without

application of mind and without considering the submissions

made by the petitioner. It has been prayed that the

petitioner be exonerated of all the charges and his

conviction and sentence be set aside. The money

recovered be also refunded to him as it belongs to the

petitioner and is not bribe money as alleged.

14. The petitioner has also relied upon the following

judgments:

1. Dhananjaya Reddy Vs. State of Karnataka, 2001 (4) SCC 9

2. S.N. Mukherjee Vs. Union of India (1990) 4 SCC

3. Mahipal Singh Vs. Union of India & Ors. 1994 LAB. I.C. 2365 (Delhi High Court)

4. Union of India Vs. Shivendra Bikaram Singh (2003) 6 SCC 359

5. Union of India & Ors. Vs. Maj. General Madan Lal Yadav, AIR 1996 SC 1340

6. Lt. Col. Prithi Pal Singh Bedi & Ors. Vs. Union of India & Ors. (1982) 3 SCC 140.

7. Union of India & Ors. Vs. B.N. Jha, (2003) 4 SCC

8. P. Nallammal & Anr. Vs. State (1999) 6 SCC 559

15. The respondents contested the petition by filing a

counter affidavit. It has been submitted that by virtue of the

agreement entered into by the petitioner with the Central

Government for his re-employment in the Indian Navy w.e.f

01.10.2000, the petitioner became a person subject to

Naval law in terms of Section 2(1)(b) read in conjunction

with Section 6 of the said Act. He was posted as Deputy

Controller of Procurement, Central Purchase/Direct Purchase

in the Material Organization (Mumbai), which was tasked

with procurement of spares and equipments for submarines,

battleships and other vessels for the Indian Navy from

civilian vendors. On receipt of intelligence inputs alleging

involvement of the petitioner and others in taking illegal

gratification from the vendors, a raid was conducted at his

house and a sum of Rs.6,91,700/-was recovered along with

a diary which was in the handwriting of the petitioner

containing the records of bribe money received from the

vendors. Thus, in accordance with the provisions contained

in the Regulation 148 of the Navy (Disciplinary and

Miscellaneous Provisions) Regulations, 1965 (hereinafter

referred to as "Regulations") read with Navy Instructions

95/69, the petitioner was attached with the Commanding

Officer, INS ANGRE and was tried by a Court Martial for 17

Charges involving corrupt practices and acquisition of

assets disproportionate to the known sources of his income

under Section 13(i)(d) read with Section 13 (2) of the said

Act on 12 counts and under Section 77(2) of the said Act on

5 counts for conducting himself unbecoming of the

character of an officer and accepting various sums of

money.

16. The charges were read out to the petitioner on

19.12.2003 when he was also asked to submit his

explanation to which the petitioner replied, "Sir, I do not

wish to make any statement at this stage". Hence

Commanding Officer, INS Angre made an application for the

trial of the petitioner by court martial in terms of Regulation

153 of the Regulations. The convening authority approved

the trial by court martial. The Court martial found the

petitioner guilty of 12 out of 17 charges based upon

evidence of 23 prosecution witnesses and 66 documents.

The proceedings were undertaken in accordance with the

provisions of the Navy Act and Regulations. The petitioner

during the entire proceedings was represented by the

counsel of his own choice and had cross-examined all the

witnesses at length and after the conclusion of the court

martial, he was sentenced to undergo simple imprisonment

of 12 calendar months, dismissal from service and was

imposed fine of Rs.6,91,700/-.

17. The petitioner‟s appeal filed under Section 162 of the

Act was considered by the Central Government but no merit

was found therein and has been rejected by a well-reasoned

order dated 04.05.2005. It has been denied that there was

any infraction of the Act or the Regulations framed

thereunder. It is also denied that there was any bias,

command influence or non application of mind by the

authorities while conducting the trial. It has also been

denied that any illegality had been committed by the Trial

Judge Advocate during the Court Martial.

18. Insofar as the plea of the petitioner, that he was not

under the command of the Commanding Officer, INS ANGRE

and therefore, he had no jurisdiction to issue charge sheet

to the petitioner is concerned, it is submitted that all

personnel appointed in establishments in Mumbai and/or

Maharashtra who are not commissioned on a ship,

customarily belong to INS Angre as „Additional‟ in terms of

Regulations 242-244 of the Regulations and accordingly the

Commanding Officer of INS ANGRE assumes all disciplinary

powers of a Commanding Officer in respect of such

personnel in terms of Regulation 148 of the Regulations.

Thus, it is stated that after the attachment of the petitioner

with INS Angre in terms of Navy Instructions 95/69 w.e.f.

09.06.2003, every action taken by the the Commanding

Officer, INS Angre, in relation to the departmental

proceedings taken against the petitioner was fully justified.

19. It has been denied that the members of the Court

Martial were hand picked by the convening authority in

violation of Section 97(19) of the Act and Regulation 168. It

is stated that reading of Section 97(12) of the Act shows

that it is the prerogative of the convening authority to

appoint the President of the Court Martial while the other

members have to be chosen by the President of the Court

Martial out of the other eligible members whose list is

supplied to him by the convening authority before the

commencement of the Court Martial. It is submitted that the

substitution of two members about which objection is being

taken were substituted by the President of the Court Martial

on account of the premature retirement of one of the

members and another member being posted in a sensitive

billet who could not be spared due to the exigencies of

service. It is also stated that by then the Court Martial

proceedings had not even started. The objection of the

petitioner in this regard was rightly rejected by TJA, as the

objection was only regarding the competence of those

members to sit in the Court Martial and was not about their

impartiality. It is stated that the Court martial started on

20.01.2004 but was adjourned due to the petitioner filing

Writ Petition in Mumbai High Court. It was only after the

matter was finally disposed of by the said court, the Court

Martial reassembled on 07.04.2004. By that time the trial

had not even commenced. Thus, there was no illegality in

the substitution of the members who were not available at

the time of re-assembly of the Court Martial on 7th April,

2004. Moreover, the substitution was only out of the

available officers who were junior in rank to the President

out of the list provided before the commencement of the

Court Martial.

20. It has been also stated that the offender cannot demand

that he be tried under provisions of any particular statute

when the offences alleged against him can be tried against

Navy Act.

21. As regards applicability of the provisions of Cr.P.C. in

the framing of charges, it has been submitted that the

Cr.P.C. does not apply to the proceedings under the said

Act, reference has been made to a judgment of the

Supreme Court in Ajmer Singh Vs. Union of India AIR 1987

SC 1646.

22. The respondents have specifically denied that there

was any violation of the Statute or the regulations framed

thereunder in constituting the Court Martial or in the

substitution of its members or even otherwise. They have

also defended the role of the TJA throughout the

proceedings which, it is stated, was in accordance with the

role assigned to her and in conformity with the provisions of

the Act and the relevant Regulations.

23. As far as the plea of the appointment of Investigating

Officer by the C-in-C at the request of the Commanding

Officer, INS Angre is concerned, it is submitted that it was

only an administrative order. Since there was no manpower

available with the Commanding Officer to carry out the

investigation which, in any case, was within the power of

the C-in-C and, therefore, there was no illegality even on

that aspect of the matter.

24. It is submitted that the other pleas raised by the

petitioner relates to day-to-day procedure followed by the

court martial and appreciation of evidence which it is stated

needs no interference by this Court in its jurisdiction under

Article 226 of the Constitution of India. Reliance has been

placed upon a judgment of the Apex Court in the case of

Union of India Vs. Himmat Singh Chahar (1999) 4 SCC 521.

25. According to the respondents, it is submitted that the

judgment relied upon by the petitioner i.e., Shivendra

Bikaram Singh (supra), has no application to the facts of this

case. Rather the case is governed by the judgment

delivered in the case of Himmat Singh Chahar (Supra).

Hence, no interference is called for by this court in the facts

and circumstances of this case inasmuch as the scope of

judicial review is limited to examination of legal infirmities,

if any, committed by the authorities while holding the trial

of the accused and no more.

26. We have heard the submissions of the Ld. Counsel

appearing for the parties. We have also gone through the

record and their written submissions. The controversies

arising for our consideration in this case is enumerated as

under:

(A) The scope of interference in Court Martial proceedings while exercising our jurisdiction under Article 226 of the Constitution of India?

(B) Whether there is any violation either of the provisions of the Act or the Rules and Regulations framed there under by the Navy authorities while convening the Court Martial, constituting the same,

substituting its members or in the appointment of the Investigating Officer?

(C) Whether the Trial Judge Advocate has acted illegally in having rejected the objections raised by the petitioner with regard to the competence of the two members to sit as members of the Court Martial in place of the original members under the orders of the Convening Authority and not by the President of the Court Martial. Was the objection necessarily required to have been put to vote by the Court Martial?

27. The question at (A) above stands firmly settled by

Apex Court in a number of judgments delivered by it. It has

been held that this Court, while exercising its writ

jurisdiction cannot sit as a Court of Appeal with a view to re-

appreciate the evidence recorded Court Martial so as to

substitute its own opinion in respect of the findings

returned. However, the writ courts can go for a Judicial

Review even in respect of Court Martial Proceedings

pertaining to Armed Forces whenever it is brought to their

notice that the Court Martial while holding the trial,

convicting and sentencing a person, has acted beyond the

provisions of the Act or the Rules and regulations framed

thereunder. Interferences may also be called for if the

proceedings are vitiated due to bias or mala fides on the

part of Authorities and also where the sentence awarded by

the Court Martial is shockingly disproportionate to the

offence.

28. In this regard reference can be made to the judgment

of the Apex Court in Ranjit Thakur Vs. Union of India & Ors,

reported in AIR 1987 SC 2386. In the said case while dealing

with the infraction of the provisions of the Act and the Rules

in relation to the Army Act, it was held:

"The procedural safeguards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the summary jurisdiction of the Court-Martial and the severity of the consequences that visit the person subject to that jurisdiction. The procedural safeguards should commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the statute. The often quoted words of Frankfurter, J. in Vitarelli v. Seaton, 359 US 535 are again worth recalling :

".....If dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed....... This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword."

29. In the same judgment, it was also observed:

"The second limb of the contention is as to the effect of the alleged bias on the part of respondent 4. The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and whether respondent 4 was likely to decide the matter only in a particular way.

It is the essence of a judgment that it is made after due observance of the judicial process; that the court or Tribunal passing it observes, at least the minimal requirements of natural justice is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial coram non judice.'

30. In Union of India and Ors. Vs. Major A. Hussain, (1998) 1

SCC 537, the Apex Court held :

"23. Though court-martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the Court-Martial is not subject to the superintendence of the High Court under Article 227 of the Constitution. If a Court- Martial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter any court must stay its hands."

31. Similarly, in the case of Union of India Vs. Himmat Singh

Chahar, (1999) 4 SCC 521, which is also relied upon by

learned counsel for the respondent and deals with the

provisions of the said Act, it was held:

"4. Since the entire procedure is provided in the Act itself and the Act also provides for a further consideration by the Chief of the Naval Staff and then by the Union government then ordinarily there should be a finality to the findings arrived at by the competent authority in the Court-Martial proceedings. It is of course true and notwithstanding the finality attached to the orders of the competent authority in the court- martial proceedings the High Court is entitled to exercise its power of judicial review by invoking jurisdiction under Article 226 but that would be for a limited purpose of finding out whether there has been infraction of any mandatory provisions of the Act prescribing the procedure which has caused gross miscarriage of justice or for finding out that whether there has been violation of the principles of natural justice which vitiates the entire proceedings or that the authority exercising the jurisdiction had not been vested with jurisdiction under the Act."

32. In the case of Union of India & Ors Vs. Shivendra

Bikaram Singh, 2003 CRI.L.J. 3028, heavily relied upon by

the petitioner, the Apex Court took note of the observations

made in its earlier judgments in the following words:

"that though the Court Martial proceedings are subject to judicial review by the High Court in exercise of its writ jurisdiction, the Court Martial is not subject to the superintendence of the High Court under Article 227 of the Constitution. In exercise of its jurisdiction the High Court will not minutely examine the record of the Court Martial as if it was sitting in appeal. If the Court Martial has been properly convened, and there is no challenge to its composition, and the proceedings are in accordance with the procedure prescribed, the High Court, or for that matter any court, must stay its hand. Proceedings of a Court Martial are not to be compared with the proceedings in a criminal court under the Code of Criminal Procedure since these proceedings remain to a significant degree, a specialized part of overall mechanism by which military discipline is preserved. The Court Martial discharges judicial function and the procedure prescribed provide for a fair trial to the accused.

Therefore, unless it is shown that prejudice has been caused or mandatory provisions have been violated, the High Court should not allow the challenge to validity of the conviction and sentence of the accused when evidence is sufficient."

33. The Apex Court concluded by holding;

"32. We, however, find considerable force in the submission urged on behalf of the appellant that having found that there was a breach of mandatory provision of the Act which vitiated the proceedings before the Court Martial, the High Court was not justified in considering the evidence on record even for the limited purpose of discovering whether there was any legal evidence to sustain the charges. Counsel for the respondent on the other hand submitted that it was within the power of judicial review of the High Court to quash an order of conviction recorded by the

Court Martial if it came to the conclusion that the finding of the Court Martial was perverse as there was no legal evidence whatsoever to support the conviction. In our view, in the facts and circumstances of this case this question had become academic once it was found that the proceedings before the Court Martial were vitiated on account of noncompliance with the provisions of Section 102 of the Act. If the very constitution of the Court Martial was not in accordance with law, then any proceedings taken before such an improper Court Martial was a nullity as far as the trial is concerned. As a consequence, the evidence recorded before such a Court Martial had no sanctity in law and, therefore, did not deserve any further consideration."

34. The extent and Scope of Judicial Review was also

explained by the Apex Court in Ranjit Thakur's case (supra),

wherein it is held:

"Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. In Council Of Civil Service Unions v. Minister For The Civil Service (1984) 3 Weekly Law Reports 1174 (HL) Lord Daglock said:

...Judicial Review has, I think, developed to a stage today when without re-iterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by

judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community...."

35. Thus, we hold that the scope of interference by this

Court in respect of any Court Martial proceedings is limited

to the extent of holding a judicial review so as to examine if

there is any violation of the statute or the rules framed

thereunder and further to find out if the process adopted in

convicting and sentencing the accused does not suffer from

any bias or mala fide which may vitiate the trial.

Interference can also be caused if the sentence imposed

upon the accused is found to be shockingly

disproportionate.

36. It is in this context that we would now examine the

other objections raised by the petitioner to find out if there

are procedural infirmities which may vitiate the procedure

resulting in the conviction and sentence awarded to the

petitioner as alleged and would answer issues enlisted at

(B) and (C) above.

37. In this regard, we have already extracted the case of

the petitioner in para 9 above. At the outset, it may be

observed that in this case the conviction of the petitioner is

not based upon his confession but is based upon the

findings returned by the Court Martial after conducting a

fully contested trial in which the petitioner was represented

by a qualified Advocate having experience of Naval Law and

was an Advocate of his own choice. Thus, his case will have

to be examined in the aforesaid premises.

38. The first and foremost objection of the petitioner is

that he being an officer borne in Materials Organization

(Mumbai), Commanding Officer INS ANGRE had no authority

either to appoint the Investigation Officer or to make an

application for his Court Martial, which authority was only

vested in MS(MO). Thus the action of the Commanding

Officer INS ANGRE is violative of Regulation 148(5), which is

reproduced here under:

148 When application for court martial be made:-

(5) In the case of an officer serving a Naval establishment not commissioned as a ship, the application for trial shall be made by the head of that establishment, unless such establishment is under the command of a Commanding Officer of one of Indian Naval Ships.

39. Regarding the attachment of the petitioner with

Commanding Officer INS Angre, the respondents gave two

justifications. Firstly, they relied upon NI 95/69 which

permits them to attach the petitioner for disciplinary

purposes with INS Angre or any other ship. Once such

attachment takes place then the commanding officer of that

ship becomes entitled to take all necessary actions against

the officer including carrying out further investigations so

that the Commanding Officer is satisfied in respect of

charges leveled against the officer before he makes an

application for his trial by a Court Martial. For that purpose,

he can also appoint an investigating officer in accordance

with Regulations 148 (supra) and 149. These Regulations

are reproduced hereunder:

"148 When application for court martial be made:- (1) The Commanding Officer shall make an application for the trial of an offender by court martial in the following cases, namely:-

(a) When an offence has been committed by a sailor, which it is beyond his power to try:

(b) When the Commanding Officer considers that an offence has been committed by a sailor which is beyond his powers to punish adequately;

(c) When any offence has been committed which he considers ought to be tried by court martial;

(d) If the accused has exercised his option in accordance with these regulations to be tried by court martial;

(e) When so directed by his superior authority.

(2) If a Commanding Officer himself is to be tried, an application for trial shall be made by his superior authority

(3) In the case of an officer serving in Naval Headquarters, the application for trial shall be made by an officer designated in this behalf by the chief of the Naval Staff.

(4) In the case of an officer on the staff of an Administrative Authority, the application for trial shall be made by such officer as may be designated by the Administrative Authority.

(5) In the case of an officer serving a Naval establishment not commissioned as a ship, the application for trial shall be made by the head of that establishment, unless such establishment is under the command of a Commanding Officer of one of Indian Naval Ships.

(6) Where an officer other than a Commanding Officer is required to make an application for trial by court martial, references here in after to the Commanding Officer shall include references to such other officer.

149. Procedure for investigation and taking down summary of evidence:- (1) Before a Commanding Officer

proceeds to make an application for trial by court martial he shall either investigate the case himself or appoint a suitable person to investigate the case and to record a summary of evidence.

(2) The investigating officer shall take down in writing the evidence of any person whose appears to be relevant and the evidence of each witness after it has been recorded shall be read over to him and shall be signed by him or if he cannot write, his name shall be attested by his mark and witnessed by the investigating officer as a token of the correctness of the evidence recorded. (3) The evidence of the witness shall be recorded in the English language and if the witness does not understand the English language, the statement as recorded shall be interpreted to him in the language, which he understands and a notation shall be made to the effect.

(4) If owing to the exigencies of service or any other grounds including the expense and the loss of time involved the attendance of any witness cannot in the opinion of the investigating officer be readily procured, some other officer may be directed by the Commanding Officer to take the evidence of the witness, or a written statement of the witness relating to the charge shall be obtained and such statement shall be included in the summary of evidence."

40. The Navy Instructions 95/69 are also reproduced

hereunder:

"95. Classification of Moves on Attachment of Officers to other Ships/Establishments for disciplinary purposes.

Officers against whom disciplinary actions is contemplated may, where necessary, be attached to other ships/establishments at the discretion o0f Chief of Naval Staff/Flag Officer Commanding-in-Chief, Western Naval Command, Bombay/Flag Officer Commanding-in-

      Chief,           Eastern          Naval         Command,
      Vishakhapatnam/Commodre          Commanding,      Southern

Naval Area, Cochin, for the purpose of investigation and progress of disciplinary cases. During such period officers will continue to be held against the appointments held by them immediately before attachment, and no replacement will be made until completion of the disciplinary proceedings.

2. Moves of Officers on attachment to other ships/establishments under para I above shall not, notwithstanding the provisions of Rule 16, Travel Regulations, be classified as permanent, even if the period of attachment exceeds three months, but will be treated as only temporary. Since such an attachment is not for the performance of any specific duty in the ship/establishment to which so attached, no daily allowance will be admissible for the period of halt with the ship/establishment concerned, unless an officer is detailed to perform some specific duty during such attachment.

41. The 2nd justification given by the respondents is that

even otherwise the petitioner was borne on INS ANGRE in

terms of Regulations 242 to 244, which are also reproduced

for the sake of convenience:

"242. Additional for Special Service.- Captain and other officers of the Executive Branch, borne on the books of the any of Indian Naval Ships as "Additional, for special or particular service", shall never assume the charge and command, of the ships in which they are so borne, or any other charge or command, except that which may appertain to the special or particular service for which they are borne, unless they receive from the Chief of the Naval Staff express authority to the contrary.

243."Additional" not for Special Service.- Captains and other officers of the Executive Branch who are borne on the books of any of Indian Naval Ships as "Additional", but not for any special or particular service, shall take rank and command in the ships in which they are so borne, and be considered as if they belonged to the complements of such ships.

244.Other Officers "Additional".- Officers of branches other than the Executive Branch, and all persons not included in the regulations 242 and 243 who are borne on the books of any of Indian Naval Ships as "Additional", shall perform the duties for which they are appointed, shall be considered as belonging to the ships in which they are borne, and shall take rank and precedence according to their respective positions in the Indian Navy."

42. A perusal of the aforesaid Regulations shows that the

Captains and other officials of the Executive Branch borne

on the books in the Indian Naval Ships as Additional for

special or particular services [which in this case is the

Materials Organization (MO)], never assume the charge and

command of the ship in which they are borne or any other

charge and command except which may pertain to the

special or particular service for which they are borne. As

per Regulation 244, officers of the branch other than the

executive branch and all persons not included in

Regulations 242 and 243 which are borne on any of the

Indian Naval Ships as Additional shall perform the duties for

which they are appointed and are to be considered

belonging to the ships in which they are borne and shall

take rank and precedence according to their respective

position in the Indian Navy. In terms of the aforesaid

regulations, the Petitioner who was born on INS Angre as

„Additional‟ though assigned to Material Organization,

Mumbai was under the command of INS ANGRE for

disciplinary proceedings and, therefore, his attachment with

INS Angre was fully justified both on account of the

Regulations stated above as well as the Navy Instructions.

43. As far as the appointment of Investigating Officer by

the Convening Authority is concerned, it may be observed

that the Commanding Officer, INS ANGRE had to make the

application for trial by Court Martial in respect of the

Petitioner in accordance with the directions of the superior

authority, i.e., C-in-C in accordance with the Regulation

148(1)(e). The appointment of Investigating Officer by C-in-

C on a request made by the Commanding Officer for

administrative reasons of not having adequate manpower

cannot be termed as illegal. In any event, no allegation of

any mala fides has been leveled against the C-in-C, who

was even otherwise the competent authority to sanction the

Court Martial of the Petitioner to take disciplinary action

against him. Thus, we do not find any infirmity either in the

attachment of the petitioner with INS Angre or any other

action taken by the Commanding Officer of the said ship in

relations to the disciplinary action taken against the

petitioner.

44. As regard the next point urged by the petitioner

regarding substitution of two members of the court martial

being contrary to Sections 97(18) and (19) of the said- Act,

we may observe that in accordance with Regulation 167, a

general notice of Court Martial by way of signal was issued

once it was decided to commence the Court Martial w.e.f.

20.1.2004. However, on account of a stay granted by

Bombay High Court in Writ Petition No. 95/04 filed by the

petitioner inter alia impugning the convening of the Court

Martial in its wisdom deferred the trial till the matter was

finally disposed of by the High Court on 11.3.2004. By that

time, two members of the Court Martial to whom General

Signal notifying the convening of the Court Martial had been

issued namely Cd. R.D. Nadkarni and Cdr. R.K. Dash were

not available. Accordingly, apprehending dissolution of the

Court Martial in the absence of two members under Section

123 of the Said Act, the President decided to replace the

two members from the list of officers which was available

with him after excluding the members from the excuse list

sent to the President prior to 20.01.2004 much before the

Court Martial re-assembled. In fact, by that time even the

trial had not commenced which could have commenced

only after the stage contemplated by Section 103 was over.

Reference can be made in this regard to para 20 of the

judgment in the case of Shivendra Bikaram Singh (supra),

which reads as under:

"20. It would thus appear that before the trial commences, objections to membership of the court have to be considered with a view to ensure fairness of trial and to avoid charge of bias against any of the members of the Court Martial. Section 102 lays down the provisions, which shall apply to the disposal of objections raised by the prosecutor as well as the accused. Clause (a) provides that any member may be objected on a ground, which affects his competency to act as an impartial judge, and the trial judge advocate may reject summarily without reference to the members of the court any objection not made on such ground. Clauses (b) to (e) lay down the procedure to be followed by the members of the Court Martial while considering such objections."

45. For the sake of reference provisions contained under

Sections 97(18) and (19) of the Said Act and Regulation 167

are reproduced hereunder:

"97. Constitution of courts-martial

(18) Members of the court-martial other than the president shall be appointed, subject to the provisions of the foregoing sub-sections, in the manner provided in sub-section (19).

(19) Subject to the provisions of sub-section (11), the president shall summon all officers except such as are exempted under the provisions of sub-section (20), next in seniority to himself present at the place where the court-martial shall be held, to sit thereon until the number of nine or such other number not less than five as is attainable is complete.

167. General notice of court martial:- (1) Whenever a court martial is ordered such timely notice as may be practicable and which, as a general rule, shall not be less than ninety-six hours, or on active service, not less than twenty-four hours, shall be given by general orders or by signal to the ships present so that the proper officers may be prepared to attend at the place and hour appointed.

(2) The names of the president and of the officers whose presence it is anticipated will be required shall be made known and after it is made known, no officer junior to the president of a rank eligible to sit as a member shall proceed on leave of absence without the express authority of the convening authority or in his absence from the place where the court martial is to be held, of the senior Naval Officer present."

46. The position is further clarified by Regulation 168 of

the Statutory Regulations which is also reproduced

hereinafter;

"168. Transmission to president of list of officers eligible to sit on court martial:- (1) As soon as practicable but not later than the morning of the day appointed for the court martial, the convening authority, or in his absence from the place where the court martial is to be held, the senior Naval Officer present shall send to the president a list of the officers who are eligible and may be required to sit as members notifying if there be any whose attendance is not attainable on ground of sickness or as being exempted on ground of urgent public duty.

(2) Such list shall also give the names of the officers absent on leave."

47. According to the aforesaid Regulation a list of eligible

members was required to have been sent to the President

by the Convening Authority from the senior most level

officer as soon as applicable but not later than the morning

of the date when the Court Martial is to commence. In the

present case, the date of the Court Martial was 20.01.2004

and the list including the name of those two officers who

had been substituted was sent before that date. And

therefore, the names of those two officers were very much

available with the President when the substitution took

place after excluding the names of those officers who could

not be spared for participation in the Court Martial on

account of exigencies. Thus, when it became impracticable

for the two earlier members to sit in the Court Martial and

the trial had yet not begun, there was nothing wrong to

nominate the two officers whose name appeared in the list

circulated to the President in terms of Regulation 168 and

who were eligible. Thus there was no illegality in such

appointment because it is basically the duty of the C-in-C to

provide for the officers to sit in the Court Martial to be

selected by the President. Moreover, there is neither any

allegation of mala fide nor bias either against the two

officials or against the higher authority.

48. Now coming to the next objection (C) of the Petitioner

about the role of the Trial Judge Advocate who disposed of

the objection of the petitioner about the nomination of two

new members to the Court Martial herself, instead of

putting it to vote before the Court Martial, it may be

relevant to take note of the precise objections raised by the

petitioner in this regard before the Court Martial which is as

under:

"Hon‟ble President and Members of this Hon‟ble Court and the learned TJA, my objection about the members of this August body is in terms of Section 97 of the Navy Act, 1957. Section 97, sub section (12) provides that, the President of a Court Marital shall be named by the authority ordering the same or by any officer empowered by such authority to name the President. This procedure has been followed by the convening authority. However, procedure for appointing members of this Hon‟ble Court has been in fact wittingly or unwittingly done which I will point out before this Hon‟ble Court, subject to the provisions of sub section (11) which talks that minimum members drawn should be from two different ships. Sub Section (19), subject to the provisions of sub section (11), the President shall summon all officers except such as are exempted under the provisions of sub section (20), next in seniority to himself until the number of nine or such other number not less than five is available. Under these provisions the President shall summon those members except exempted by the convening authority. In this case the convening authority has also nominated the members under his own signature as the list will show which has been read in this Hon‟ble Court. Under the mandate of Section 97, sub section (19) of the Navy Act, 1957, it is the prerogative and mandatory function of the President to summon those members, in other words to nominate those members down the line in accordance with their seniority except those members who have been exempted by the convening authority. What has been done in this case, every officer down the line junior to the President has been exempted in such a way so that those members which the convening authority wanted to nominate have been left for exemption to enable the convening authority to circumvent the procedure of nominating the President himself which amounts to stepping into the shoes of the President of the Court Martial and therefore, the President of the Court Martial has to peremptorily perform his statutory and mandatory duty to summon and nominate the members. For this purpose I would like to inspect the list of members excused from attending this Court Martial. It has now become a public documents and I have a right to inspect this documents in view of Supreme Court Judgment in the case of Banjalal Vs.

Union of India which I shall rely and produce before this Hon‟ble Court in due course of time in view of the principles of natural justice. Notwithstanding the proceedings are not to be made available as per the provisions, yet in view of the principles of natural justice inspection of the proceedings of the Court Martial cannot be denied. I therefore request that this list which eventually I am entitled to be made available to me for inspection so that I can bring the objection on this count to the notice of this Hon‟ble Court. For this purpose, I reiterate sub section (19) of Section 97 of the Navy Act which reads as under:

"Sub Section (19). Subject to the provisions of sub section (11), the president shall summon of all officers except such as are exempted under the provisions of sub section (20), next in seniority to himself present at the place where the Court Martial shall be held, to sit thereon until the number of nine or such other number not less than five as is attainable is complete."

It is therefore, my humble submission that neutrality clause or impartiality clause enshrined in Section 102 of the Navy Act 1957 has been violated by the convening authority and therefore the constitution of this court martial is hit by mandate of Section 102 read with Section 97 sub section (12) and sub section (19), thereof the Navy Act, 1957. Therefore, the convening of this Hon‟ble Court is vitiated in view of infraction of neutrality clause or impartiality clause as pointed out by me.

49. Having gone through the record and the objection

raised by the petitioner as aforesaid, we do not agree with

the petitioner that by the aforesaid objection the petitioner

also challenged the impartiality of the two members which

would have mandated the Trial Judge Advocate to have put

the objection to vote by the Court Martial. It was at the

most an objection under Section 102(1)(a) of the Act which

was within the competence of the Trial Judge Advocate to

have disposed of.

50. The relevant provision of the Said Act stipulates that

objection regarding the Constitution of the Court Martial

which does not attack the impartiality of the members are

not required to be put to the vote of the Court Martial for

the simple reason that the purpose of putting such an

objection to vote is to give an opportunity to the members

of the Court Martial to themselves decide whether they

would like to remain as part of the Court Martial or not in

view of the objection so raised. Such objections can be

disposed of by the Trial Judge Advocate himself/herself.

51. At this stage reference to some of the paragraphs

from the Judgment of the Apex Court delivered in the case

of Shivendra Bikaram Singh (Supra) relied upon by the

Petitioner becomes relevant. The scheme of the Act is noted

by the Apex Court in this regard in paras 16 to 21 of the

aforesaid judgment which are reproduced as under :

"16. It would be beneficial to notice a few provisions of the Navy Act, 1957, which would disclose the scheme of the Act and the procedure to be followed in a Court Martial proceedings.

17. Section 93 provides that an offence triable under the Act may be tried and punished by court-martial. Section 97 provides that court-marital shall be constituted and convened, subject to the provisions of the sub-sections to Section 97, by the President, the Chief of the Naval Staff, or any officer empowered in this behalf by commission from the Chief of the Naval Staff. Sub-section (6) thereof provides that a court- martial shall consist of not less than five and not more than nine officers. Subsections (7) to (22) lay down the qualifications of the officers entitled to sit as a member of the court-martial and other details relating to the constitution of a court-martial. Section 99 lays

down that every court-martial shall be attended by a person referred to as the trial judge advocate who shall be either a judge advocate in the department of the judge advocate general of the Navy or any fit person appointed by the convening officer. Sub- section (2) provides that the trial judge advocate shall administer oath to every witness at the trial and shall perform such other duties as are provided in the Act and as may be prescribed. Sections 101 to 103 are of considerable significance in this case and they are, therefore, reproduced for sake of convenience :-

"101. Commencement of proceedings. (1) As soon as the Court has been assembled the accused shall be brought before it and the prosecutor, the person or persons, if any defending the accused and the audience admitted.

(2) Except where the accused defends himself, he may be defended by such person or persons as may be prescribed.

(3) The trial judge advocate shall read out the warrant for assembling the court and the names of officers who are exempted from attending under Sub-section (20) of Section 97 together with the reasons for such exemption.

(4) The trial judge advocate shall read out the names of the officers composing the court and shall ask the prosecutor whether he objects to any of them.

(5) If the prosecutor shall have made no objection or after any objection made by the prosecutor has been disposed of, the trial judge advocate shall ask the accused if he objects to any member of the court.

102. Objections to members. - The following provisions shall apply to the disposal of objections raised by the prosecutor as well as the accused :-

(a) any member may be objected to on a ground which affects his competency to act as an impartial judge; and the trial judge advocate may reject summarily without reference to the members of the court any objection not made on such grounds;

(b) objections to members shall be decided separately, those to the officer lowest in rank being taken first: provided that if the objection is to the president, such objection shall be decided first and all the other members whether objected to or not shall vote as to the disposal of the objection;

(c) on an objection being allowed by one-half or more

of the officers entitled to decide the objection, the member objected to shall at once retire and his place shall be filled up before an objection against another member is taken up;

(d) should the president be objected to and the objection be allowed, the court shall adjourn until a new president has been appointed by the convening authority or by the officer empowered in this behalf by the convening authority; and

(e) should a member be objected to on the ground of being summoned as a witness, and should it be found that the objection has been made in good faith and that the officer is to give evidence as to facts and not merely as to character, the objection shall-be allowed.

103. Further objections. -(1) The trial judge advocate shall then ask the accused whether he has any further objection to make respecting the constitution of the court; and should the accused raise any such objection, it shall then be decided by the court, which decision shall be final and the constitution of the court-martial shall not be afterwards impeached and it shall be deemed in all respects to have been duly constituted.

(2) If the accused should have no further objection to make to the constitution of the court or if any objection is disallowed, the members and the trial judge advocate shall then make an oath or affirmation in the form set out in Section 104.

18. These provisions lay down the manner in which the proceedings commence before the Court Martial and the objections, which are to be considered even before the trial begins. These provisions, therefore, apply at the pre-trial stage. After the provisions of Sections 101 to 103 are complied with, the President and every member of the Court Martial is required to be administered an oath or affirmation in the form and manner prescribed by Section 104 of the Act. Thereafter under Section 105 when the court is ready to commence the trial, the trial judge advocate is required to read out the charges and ask the accused whether he pleads guilty or not guilty. If he pleads guilty and the court accepts the plea, it shall be recorded as a finding of the court and the court shall proceed to take steps to pass sentence unless there are other charges to be tried in which event the sentence shall be deferred until after the findings on such charges are given. If the accused pleads not guilty or refuses to, or does not, plead or if he claims to be tried, the court shall proceed to try the accused. Section 113 provides that 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. Section 114 lays down the duties of the trial judge advocate at such trial. It is the duty of a trial judge advocate to decide at the trial ail 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 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. Under Section 115 it is the duty of the court to decide which view of the facts is true and then arrive at the finding, which under such view ought to be arrived at. Under Section 116 after the trial judge advocate has finished his summing up, the court is to be cleared to consider the finding. 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. Thereafter under Section 117 the court is required to reassemble and the President shall inform the trial judge advocate in open court what is the finding of the court as ascertained in accordance with Section 124.

19. It will thus appear that the steps taken before the stage is reached under Section 104 of the Act for administering oath or affirmation to the President and the members of the Court Martial, are taken at the pre-trial stage. Though the proceedings commence before the Court Martial for compliance of the requirements of Sections 101, 102 and 103 of the Act, the trial commences only after the President and the members of the Court Martial are administered oath as required by Section 104 of the Act and the accused is produced be- fore the Court Martial. Sub-section (3) of Section 101 directs the trial judge advocate to read out the warrant for assembling the court and the names of officers who are exempted from attending together with the reasons for such exemption. After the warrant is read out, the trial judge is required to read out the names of the officers composing the court. It shall then ask the prosecutor whether he objects to any of them. If any objection is made by the prosecutor the same has to be disposed of. However, if the prosecutor has no objection, the trial judge advocate shall ask the accused if he objects to any member of the court.

20. It would thus appear that before the trial commences, objections to membership of the court

have to be considered with a view to ensure fairness of trial and to avoid charge of bias against any of the members of the Court Martial. Section 102 lays down the provisions, which shall apply to the disposal of objections raised by the prosecutor as well as the accused. Clause (a) provides that any member may be objected on a ground, which affects his competency to act as an impartial judge, and the trial judge advocate may reject summarily without reference to the members of the court any objection not made on such ground. Clauses (b) to (e) lay down the procedure to be followed by the members of the Court Martial while considering such objections.

21. Section 103 refers to further objections. Clause

(a) of Section 103 begins with the words "the trial judge advocate shall then ask the accused whether he has any further objections to make respecting the constitution of the court". If the accused raises any such objection, that is required to be decided by the court, which decision shall be final and the constitution of the court martial shall not be afterwards impeached, and it shall be deemed in all respects to have been duly constituted. In case the accused has no further objection to make or the objection made is disallowed, the members and the trial judge advocate shall then make an oath or affirmation in the form set out in Section 104. From the scheme of these sections it is quite apparent that before the trial commences, all objections to the constitution of the Court Martial must be considered and decided. Section 102 is confined to an objection on the ground, which affects the competency of the President or a member of the Court Martial to act as an impartial judge. As would be clear from a reading of this section as a whole it does not provide for the consideration of any other objection at that stage. The section that follows i.e. Section 103 refers to any further objection respecting the constitution of the Court Martial. It is, therefore, open to the accused to raise further objections on other grounds respecting the constitution of the Court Martial, and for this purpose he may urge the ground of breach of any or the provisions of the subsections of Section 97 of the Act, or any other objection which he has respecting the constitution of the Court Martial. These objections have to be decided under Section 103 by the Court Martial, which must mean all the members of the Court Martial, who are entitled to sit as a Court after the disposal of objections, if any, under Section 102 of the Act."

52. A reference can now be also made to paras 22 and 23

of the judgment in this regard. The Apex Court had taken

note of the distinction with respect to an objection about

the competence and impartiality in its judgment. The

aforesaid paragraphs are reproduced hereunder:

"22. We then come back to Section 102 of the Act, particularly Clause (a) thereof. The real controversy in the instant case is the nature of authority exercised by the trial judge advocate to reject summarily, without reference to the members of the Court Martial any objection not made on a ground, which affects the competency of a member to act as an impartial judge. While the respondent contends that all objections made on a ground which affects the competency of a member to act as an impartial judge have to be decided in accordance with the procedure laid down in Clauses (b) to (e) of Section 102, according to the appellant it is open to the trial judge advocate to reject summarily even an objection to a member on the ground which affects his competency to act as an impartial judge. It is contended that even if the ground urged, though it affects the competency of a member to act as an impartial judge, the trial judge advocate may reject the same if he finds no merit in it.

23. We are inclined to accept the contention put forth by the respondent. Clause (a) of Section 102 is in two parts. The first part refers to any objection against a member on the ground, which affects his competency to act as an impartial judge. The second part deals with the authority of the trial judge advocate to reject summarily without reference to the members of the court "any objection not made on such grounds". It was not disputed before us that if there was a valid ground urged affecting the competency of a member to act as an impartial judge, the same has to be decided in accordance with the procedure laid down under Clauses (b), (c), (d) and (e) of sec tion 102. The first part of Clause (a) enables the prosecutor and the accused to raise an objection of the nature specified. The second part of Clause (a) only empowers the trial judge advocate to reject summarily any objection not made on such grounds. To us it appears that the clear intention of the legislature was that at the stage of Section 102 only the objections relating to membership of the court martial on a ground affecting the competency of any member to act as a

court martial are required to be considered. Every other objection regarding constitution of the court martial on other grounds has to be considered later, and that is what is provided by Section 103 of the Act.

All grounds other than the ground which affects the competency of a member to act as an impartial judge, is required to be decided by the court, and no discretion is left with the trial judge advocate. Reading the two provisions together the scheme of the Act appears to be that in the first instance the court has to consider whether any of its member is disentitled to sit as a member of the court martial on the ground that he is not competent to act as an impartial judge. No other objection is to be entertained at this stage. Therefore, when an objection to any member is raised on a ground other than the ground, which affects his competency to act as an impartial judge, the trial judge advocate is authorized to reject the same summarily without reference to the members of the court martial. But if any member is objected to on the ground, which affects his competency to act as an impartial judge, the trial judge advocate has no discretion in the matter and he must place the matter before the court, which must consider the objection in accordance with the procedure laid down in Clauses (b) to (e) of Section 102. Whether there is any merit in the objection, is not a matter to be considered by the trial judge advocate, since he is not vested with the jurisdiction to decide such objections. That power has to be exercised by the court itself. The only authority that is given to the trial judge advocate under Clause

(a) of Section 102 is to reject at that stage all other objections without reference to the members of the court martial which are not on a ground which affects the competency of a member to act as an impartial judge. This is because such other objections may be considered later after the constitution of the court is first finalized after disposal of objections to membership of the court martial on the ground, which affects the competency of any member to act as an impartial judge. The scheme of the Act, therefore, is to provide for two stages at which the objections to the constitution of the court martial have to be considered. Section 102 clarifies that at that stage only those objections have to be considered which proceed on a ground, which affects the competency of any member to act as an impartial judge. All other objections to the constitution of the court have to be considered after the objections on the grounds specified in Clause (a) of Section 102 of the Act are disposed of. Those other objections have to be disposed of in the manner laid down under Section 103 of the Act."

53. The action of the Trial Judge Advocate in the aforesaid

case was set aside in view of the specific allegations of

impartiality made against the President of the Court Martial

making him ineligible to sit in the court martial and,

therefore, it was a situation where the objection was

required to have been put to vote to the court martial in

view of what has been stated above. It would therefore be

relevant to refer para 24 of the aforesaid judgment, which is

reproduced as under:

"24. The High Court has taken the same view as we have taken of the provisions of Sections 102 and 103 of the Act. The trial judge advocate, in the instant case, rejected summarily the objection taken by the respondent to the membership of two of the officers, while the objection against the third officer was rejected by the court itself. Having perused the minutes of the trial judge advocate it cannot be said that the ground on which the objection was taken was not one, which affected the concerned member to act as an impartial judge. The objection as against the president of the court, namely Captain Rajiv Girotra was that he was a course-mate of Cdr. Baijal, with whose wife the respondent was alleged to have had adulterous connections. Similar objection was taken to the membership of Cdr. Suresh Mehta that he was the course- mate of the complainant. It would thus appear that the respondent objected to their membership on a ground, which affected their competency to act as an impartial judge. The question whether the objection was sustainable or not, was a question which had to be decided by the members of the Court Martial in accordance with the provisions of Clauses (b) to

(e) of Section 102. Instead of following the procedure laid down by the aforesaid subsections, the trial judge advocate usurped the jurisdiction of the court and rejected summarily the objection of the respondent after going through the material on record, holding that the objections were not sustainable. In doing so he clearly over stepped the limitations of his jurisdiction and decided a matter which the court alone, and not he, was empowered to

decide. The question whether the ground is substantiated by material brought on record is a question, which relates to the merit of the objection. The respondent may be able to substantiate the ground urged by him or he may fail to do so, In that event his objection may be rejected by the members of the court martial but that is not to say that the ground on which objection was taken did not affect the competency of a member to act as an impartial judge. The jurisdiction of the trial judge advocate under Clause (a) of Section 102 is limited to the extent of finding out whether the objection is on the ground specified in the first part of Clause (a). If it was such a ground, then regardless of its merit, the objection had to be decided by the court martial in accordance with the procedure laid down in that section. If it was not such a ground as specified in the first part of Section 102, it was then his discretion to summarily reject the same. The words of the section are "may reject summarily" which is indicative of a discretion vested in him. That is because if the objection is an objection respecting the constitution of the court, but not on the ground specified in Clause

(a) of Section 102, then he may rather than dismissing the objection reserve it for consideration after the objections under Sections 102 are disposed of and the objections under Sections 103 are taken up for consideration."

54. Having perused the aforesaid Judgment we are

satisfied that the present was not a case where the

objection raised by the Petitioner was an objection qua the

impartiality of the two members as was the case in

Shivendra Bikaram Singh (supra) where the allegations

were specific regarding impartiality. As such, we do not

agree with the counsel for the learned Petitioner that either

in the constitution of Court Martial or substitution of its

members, or in the role of the Trial Judge Advocate, there

was any infirmity. Thus objections (B) and (C) are also

answered accordingly.

55. As regards the allegation that there was any bias on

the part of C-in-C or that he exercised undue command

influence, in the absence of any material submitted by the

Petitioner to substantiate these allegations, they fall to the

ground and have no legs to stand.

56. Similarly, the allegations that the President of the

Court Martial had not applied his mind while holding the

trial has also not been substantiated inasmuch as merely

because some SMS‟s were sent by the President on a

particular day or two would not reflect the non-application

of mind by the President of the Court Martial, more so when

the accused was duly represented by defence counsel who

has cross-examined each and every witness throughout the

trial and has made all objections whatever were available to

him while recording the evidence of those witnesses.

57. The reference made by the Petitioner that there was

infraction of Section 155(2) of the Evidence Act having not

tried the vendors as co-accused per se would also not

vitiate the trial inasmuch as even if others had not been

prosecuted, the actions of the Petitioner cannot escape the

rigors of the provisions of the said Act to which he was

subject to and therefore would be liable to be prosecuted if

offences committed can be tried under the said Act. The

provision is also reproduced as under:

"Section 155. Impeaching credit of witness.- The

credit of a witness may be impeached in the following

ways by the adverse party, or with the consent of the

Court, by the party who calls him:-

(2) By proof that the witness has been bribed, or has [accepted] of the offer of a bribe, or has received any other corrupt inducement to give his evidence;"

The aforesaid provision goes to show that this

objection is relevant for appreciation of evidence by the

Court Martial of such witnesses who had been bribed or

accepted the offer of a bribe or received any other corrupt

inducement to give his evidence for the court martial. This

Court while exercising writ jurisdiction and holding a judicial

review is not required to reweigh the evidence as such

exercise would be beyond our jurisdiction. More so, when

no specific material has been placed in this regard which

may prove giving of bribe or acceptance of bribe by the

witnesses, as alleged.

58. An objection was also taken by the petitioner that he

has not been permitted to have interview with the

witnesses of the prosecution while relying upon Regulation

172(5) but the said Regulation does not permit granting

such an interview qua the witnesses of the prosecution.

Moreover, the respondents have stated that even then the

petitioner was allowed to have an interview with the

witnesses but he did not avail the opportunity.

59. With regard to the agreement to sell having not been

considered by the Court Martial as an evidence to explain

the acquisition of money by the Petitioner which has been

recovered from his house, it can simply be observed that

firstly the person who allegedly entered into the agreement

for purchasing the subject property has not appeared as a

witness before the Court Martial nor the money was paid by

way of cheque nor anything has been placed on record that

the agreement was brought to the notice of the authorities

by the Petitioner at the relevant time. Moreover, the

agreement pertains to January 2003 whereas the money

has been recovered in June 2003. It is even otherwise

difficult to accept that such a huge amount of money would

be kept as it is by a person in his house after entering into

an agreement to sell which was necessitated by a specific

purpose as the petitioner had tried to explain. In any event,

the manner in which the agreement had been executed

raises many doubts about its authenticity.

60. Even otherwise, looking to the role assigned to this

court while exercising writ jurisdiction in relation to a matter

concerning validity of a Court Martial by Armed Forces, the

jurisdiction is very limited. We have not to re-appreciate

the evidence or have to displace the conclusions drawn by a

duly constituted Court Martial having acted in accordance

with law in coming to its own conclusion. This also disposes

of other objections raised by the Petitioner in the course of

his submissions and in the pleadings in his amended writ

petition.

61. We have also gone through the order passed by the

Central Government which has taken note of each and

every objection raised by the Petitioner and has dealt with

it. Thus, it is not a case where the Central Government has

not applied its mind while disposing of the appeal filed by

the Petitioner. Having gone through the other judgments

cited by the petitioner we are of the considered view that

those judgments does not come to the rescue of the

petitioner in this case.

62. Taking all these facts into consideration, we find no

reason to interfere with the conclusions drawn by the Court

Martial or the finding of conviction or the sentence imposed.

Consequently, we dismiss the writ petition and also vacate

the interim orders passed in CM No.6815/2004, which

application also stands disposed of. The parties are,

however, left to bear their own costs.

MOOL CHAND GARG, J.

October 22, 2008                  SANJAY KISHAN KAUL, J.
anb/sv/dc