ARMED FORCES TRIBUNAL, REGIONAL BENCH,

T.A. No. 118 of 2009 q (W.P.(C) NO. 11800 OF 2007)

TUESDAY, THE 11TH DAY OF MARCH, 2014/20TH PHALGUNA, 1935

CORAM:

HON'BLE MR. JUSTICE SHRIKANT TRIPATHI, MEMBER (J) HON'BLE VICE M.P.MURALIDHARAN,AVSM & BAR, NM, MEMBER (A)

APPLICANT:

N.G. CHENGAPPA, EX.MASTER CHIEF PETTY OFFICER II PTI (NO. 108683H), NOW RESIDING AT C/O. K.M. CHENGAPPA, 229 HRBR 1ST BLOCK, 10 A MAIN BANNASAWADI, – 560 043.

BY ADV. M/S. M.A. FIROZ & C.S. ULLAS

Versus

RESPONDENTS:

1. UNION OF , REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI – 110011.

2. THE CHIEF OF NAVALSTAFF, NAVAL HEADQUARTERS, NEW DELHI.

3. THE FLAG OFFICER COMMANDING IN CHIEF HEADQUARTERS, SOUTHERNNAVAL COMMAND, NAVAL BASE, KOCHI, - 682 004.

4. THE COMMANDING OFFICER, INS VENDURUTHY, NAVAL BASE, KOCHI – 682 004.

BY ADV. SRI. K.M. JAMALUDHEEN, SENIOR PANEL COUNSEL. T.A. No.118 OF 2009 - 2 -

ORDER

Shrikant Tripathi, Member (J):

The applicant , N.G.Chengappa, Ex-Master Chief Petty Officer

II PTI, No. 108683H, filed the instant matter in the Hon'ble High

Court of at under Article 226 of the Constitution of

India as Writ Petition, W.P.(C) No.11800 of 2007 challenging the legality of the proceedings done and the finding and sentence recorded, by the Court Martial. The Writ Petition was transferred to this Bench under Section 34 of the Armed Forces Tribunal Act and is registered here as T.A.No.118 of 2009.

2. The victim of the crime will be referred to in this order as the prosecutrix.

3. The facts of the case are that the husband of the

Prosecutrix was posted in INAS 336 INS Garuda in February 2005.

She used to live with her husband along with her two year old daughter in 8-C Vishwanath Apartments, Panampilly Nagar, Kochi.

She was to go to Vishakapatnam on 15th February 2005 by Train

No.5623, Ernakulam – Guwahati Express to attend a family function.

Her husband was not in a position to accompany her due to being busy in official duties. It is alleged that on 14th February, 2005 prosecutrix's husband went to the Movement Control Office, Kochi, to T.A. No.118 OF 2009 - 3 - enquire into the reservation of the prosecutrix, where he learnt that a group of eleven naval sailors from Indian Naval Ship Venduruthy were also travelling by the same train for participation in the Naval Cross

Country Championship scheduled to be held on 20th February, 2005 at

Guwahati and the applicant was the coach of the aforesaid team. It is also alleged that the prosecutrix's husband, on coming to know that the aforesaid team was going to Guwahati by the same train, tried to contact the applicant for a safe journey of his wife to

Visakhapatanam. Ultimately at about 1630 hours on 15th February

2005 he had a talk with the applicant, who assured him of all possible assistance to his wife and further promised that he would be available at the platform. The prosecutrix reached the station along with her husband and daughter and was arranging her luggage in her compartment when she received a call from the applicant about her whereabouts. A little later, her husband who had got down from the compartment came along with the applicant and one Manoj. It is also alleged that the applicant was travelling in the same train in AC II tier coach though his team mates were in AC III tier. The prosecutrix had the reservation of berth No. 9, whereas the applicant had reservation of berth No.46 in the same coach. The train departed around 2005 hours. It is also alleged that at about 2030 hours, the applicant came and sat on the berth opposite to the berth occupied by the T.A. No.118 OF 2009 - 4 - prosecutrix and indulged in conversation with her. After that he tried to play with the daughter of the prosecutrix and during the course of play he touched the arms and shoulders of the prosecutrix. The applicant had even switched off the light, including night lamp, while drawing the curtains,but the prosecutrix switched on the light and asked the applicant to go back to his berth. He, however, falsely replied that he had exchanged the berth, so there was no problem for him to occupy berth No.7 in place of berth No.46.It is also alleged that the prosecutrix laid her daughter and attempted to put her to sleep. The applicant then got up and went over the prosecutrix and put his hand on her chest and kissed her daughter and after that he kissed the prosecutrix also, so she was frightened and shocked. The prosecutrix then pushed the applicant with her elbow and got him up and asked to leave the place. She then called the TTE, but the applicant told her “why you didn't like it” and did it irritate you”. But the prosecutrix, instead of replying, threatened and shouted and asked the applicant to leave the place immediately and not to switch off the lamp again. Any how, the situation was controlled. She informed her husband on cell phone, who advised her to take assistance of the TTE. Accordingly the prosecutrix contacted the TTE, who provided adequate security during the journey. It is also alleged that early in the morning at 6.25 hours, the procecutrix received a T.A. No.118 OF 2009 - 5 - message from the applicant's cell phone “ Hi, Dream girl call me back”. Due to the intervention of the TTE the applicant gave a written apology with undertaking not to repeat the incident. It is also alleged that the prosecutrix's husband, on account of the apology tendered by the applicant, satisfied and asked the TTE on phone not to take any action against the applicant and further told that he would take appropriate action through his department and Military police. It is also alleged that the prosecutrix's husband thereafter contacted the

Movement Control Officer (Chennai) and requested him to intervene in the matter.

4. It is also alleged that on 26th February 2005 the prosecutrix gave a written complaint against the applicant to Commanding

Officer, Garuda, on which basis the Commanding Officer, INS

Venduruthy directed for holding of an enquiry/investigation of the matter. The Investigating Officer recorded the summary of evidence and found the charges prima facie proved. On the basis of the report of the Investigating Officer, the Commanding Officer, vide his letter dated 27th April, 2005, moved the Flag Officer Commanding-in-Chief,

Southern Naval Command, Kochi for trial of the applicant by a Court martial. The Flag Officer Commanding-in-Chief, accepted the request of the Commanding Officer and rendered the warrant on 25th May,

2005 for holding a court-martial against the applicant, and T.A. No.118 OF 2009 - 6 - accordingly appointed Cap. Rajiv Girotra of INS Venduruthy

Additional, as the President of the court-martial, which was to assemble on Shore at Kochi in Anti Submarine Warfare School at 9.30 hours on 31stMay, 2005 or as soon after wards as circumstances allowed. The Flag Officer Commanding-in-Chief Southern Naval

Command forwarded also a list of officers next in seniority to the

President of the court-martial, for being chosen as members of the court-martial. The list had included the names of available members, spare members, and unavailable members due to urgent public duty.

The court was ultimately constituted with Cpt. Rajiv Girotra as the

President and Cdr. Susheel Kurup, Cdr. Ramesh Srinivasan, Cdr. N.V.

Satyanarayana Raju and Shri. Ashok K Nair as members. Cdr. Satish P.

Menon and Cdr. Pankul Nag were spare members. Lt. Cdr. MS Sheeja of INS Venduruthy Additional was appointed as the Trial Judge

Advocate by the Flag Officer Commanding-in-Chief, vide his order dated 25th May, 2005. Lt. Cdr. Gaurav Mehta was appointed as the

Prosecutor and Lt. Jenson Mendez was appointed as the Assistant

Prosecutor. It is also significant to state that the Lt. Cdr. Gaurav

Mehta had been appointed and also acted as the Investigating Officer to investigate the case against the applicant. Lt. P.N. Vishnu Prasad was appointed as the Officer of the Court. During the court-martial,

Mr. C.S. Ullas, Advocate of the High Court of Kerala at Ernakulam had T.A. No.118 OF 2009 - 7 - appeared as the defence counsel to represent the applicant during the trial, who had been assisted by Lt. P.K. Yaduvanshi.

5. At the commencement of the trial, the learned counsel appearing for the applicant raised objections not only against the

President but also against the members. But his objections were over-ruled by the Court, consequently the trial proceeded ahead with the aforesaid President and members. It is also relevant to state that the applicant thereafter filed Writ Petition, W.P.(C) No. 17072 of 2005

G before the Hon'ble High Court of Kerala challenging the constitution of the court martial with the aforesaid President and the members.

The Hon'ble High Court disposed of the Writ Petition vide its order dated 16th June 2005 leaving open the right of the applicant to raise all those contentions, including the one touching the constitution of the court-martial, in a review petition under Section 160 or Section

162 of the Navy Act, as the case may be, at the appropriate time, if so advised.

6. The applicant was tried for the charges under Section 354 of the Indian Penal Code read with Section 77(2) of the Navy Act,

1957 for outraging the modesty of the prosecutrix by using criminal force and also for the charge under Section 74 of the Navy Ac t, 1957 for sending lewd message by SMS from his mobile phone to the prosecutrix, which was an act prejudicial to the good order and T.A. No.118 OF 2009 - 8 - discipline. The applicant denied the charges and claimed to be tried.

7. During the trial, as many as 12 witnesses, viz. PW1 Cdr. RK

Thakur, PW2 Minhas, PW3 R. Sekhar, PW4 Manoj Kumar Chauhan,

PW5, Sanjay Kumar Singh Naik, PW6, Lt. Cdr Srinivas Tata, PW7,

Mrs.Mallika Tata, PW8, Pawan Kumar Pock, PW9, Lt. SNS Srinivas,

PW10, Shibu George, PW12, Virendra Pal and PW13 Mr.Abdul Azeez were examined. PW7 is the prosecutrix, who supported the entire incident in the witness box. PW6 is her husband, who also supported the story of movement of the prosecutrix by the aforesaid train and the assistance promised to be provided by the applicant during the journey. He further proved that his wife informed him on phone about the incident in the night itself. PW13, Mr. Abdul Azeez, is the TTE who had been in the train from Kochi upto Erode, to whom the prosecutrix first of all made complaint against the applicant's behaviour. He provided not only assurance to the prosecutrix, but also adequate protection and informed of the incident to his successor, PW3, Shri.R.

Sekhar, who replaced him from duty at Erode Railway Station. PW13,

Mr. Abdul Azeez proved all these facts in the witness box. PW3, however, proved that the previous TTE, PW13 Abdul Azeez, told him about the incident, so he took all care of the prosecutrix, who informed him in the morning regarding the SMS sent by the applicant. T.A. No.118 OF 2009 - 9 -

This witness further proved that the applicant had executed the undertaking, Ext.P4, whereby he promised that he will not misbehave the prosecutrix and will not give any call to her hereafter and if he does so, departmental action may be taken. The other witnesses were almost formal in nature.

8. The applicant examined three defence witnesses, namely,

DW1, Lt. Cdr. Gaurav Mehta, DW2 Lt.Cdr. 9SDREG) V.C. Tomy and

DW3 SLT C Lobo. DW1 Lt.Cdr. Gaurav Mehta was the Investigating

Officer, who recorded the summary of evidence. He appeared also as the Prosecuting Officer during the trial. But the applicant summoned him as DW1. This witness stated in the witness box that he was appointed as the Investigating Officer by the Commanding Officer,

INS Venduruthy. This witness recognised the letter, which was shown to him in the witness box. He further proved the typed copy drafted by him and signed by the Commanding Officer for requisitioning the presence of two personnel, whose statement was necessary during the investigation and those two personnel were Mr.Virendra Pal PO

RC 1 No. 170275 and Mr. Pradeep Gogoi Havildar No. 7773490. DW1 further proved the copy of letter sent by him to the Area Manager,

Southern Railways regarding the revision of investigation of some witnesses, which was recorded as Ext.D4. He further stated that he had handed over a summary of evidence some time at the end of T.A. No.118 OF 2009 - 10 -

April, 2005. DW2, Lt. Cdr.V.C. Tomy was posted as the Regulating

Officer, Security Officer, Company Cdr DSC of INS Venduruthy. This witness proved the certified true copy of extract of report of offenders to be brought before the in respect of the applicant, which is on record as Ext. D5. (Xerox copy). He further stated that one day the Commanding Officer called him and gave a draft charge on the applicant and asked him to make the fair one and produce the applicant before him and due to that the said document was prepared. He further proved the signature of Cmde.A.T. Lukose on the document, which, according to him was signed by Cmde. A.T.

Lukose in his presence. DW3, SLT C Lobo was employed as Boatswain

Officer and Boat Officer in INS Tir. He recognised TJA and the applicant in the open court and further stated that he recognised the applicant because he had been asked to act as the Divisional Officer by the Executive Officer of the INS Venduruthy. Apart from the aforesaid witnesses, the court witness Lt. Cdr. Sofia D'Soza was examined in mitigation of sentence.

9. The court-martial considered the entire materials brought on record during the court martial proceedings and found that the applicant was guilty of the aforesaid both charges, vide its final order dated 7th July, 2005. The court-martial after taking into account various circumstances, including the statement of the court witness T.A. No.118 OF 2009 - 11 -

Lt.Cdr. Sofia D'Soza, sentenced the applicant to undergo rigorous imprisonment for six months and also to suffer dismissal from the

Naval service with consequential penalties.

10. The applicant preferred a petition (Ext.P7) for judicial review to the Judge Advocate General (Navy) and thereafter filed Writ

Petition, W.P.(C) No. 26442 of 2005-W in the Hon'ble High Court of

Kerala for suspension of sentence during the pendency of the judicial review. The Hon'ble High Court of Kerala disposed of the Writ Petition with the direction to the third respondent therein to look into the grounds urged by the applicant against the finding and sentence of the court-martial and further directed him to conclude the matter within a period of one month and make suitable recommendation for the consideration of the second respondent therein. The High Court further directed the second respondent to take into consideration all materials, including the recommendation of the third respondent and pass appropriate orders within another two weeks. Accordingly, the

Hon'ble High Court declined to interfere with the finding and sentence recorded by the court-martial.

11. We have heard Mr. M.A. Firoz and Mr. C.S. Ullas for the applicant and Mr. Ramkumar, Senior counsel, assisted by Mr. K.M.

Jamaludheen for the respondents and perused the records. T.A. No.118 OF 2009 - 12 -

12. Mr. M.A. Firoz argued that Section 97 of the Navy Act,

1957 provided for the constitution of the court martial. According to sub section (6) of the said Section, a court martial must consist of atleast five, but not more than nine officers. The officers to be nominated as members of the court martial must be from atleast two ships, not being tenders, and commanded by officers of the rank of

Captain or of higher rank. The sub section (11) of Section 97 so speaks. Mr. Firoz further submitted that out of the four members of the court martial, only one member namely, Cdr. Remesh Srinivasan was taken from INS Garuda Additional and remaining three members, namely, Cdr. Susheel Kurup, Cdr N.V, Satyanarayana Raju and Cdr.

Ashok K. Nair were taken from INS Venduruthy Additional. Even the

President was also from the Ship INS Venduruthy Additional. So, the court martial was dominated by the members and President belonging to INS Venduruthy Additional and as such they were in a position to influence the decision. On the basis of this factual aspect of the matter, the learned counsel for the applicant submitted that the constitution of the court martial was, no doubt, made from two ships as per the requirement of the aforesaid sub section (11) of

Section 97, but it was quite unwarranted in law to have majority of the members only of one ship. In our view, this submission does not appear to have any substance. What is required by the aforesaid sub T.A. No.118 OF 2009 - 13 - section (11) is that the members of the court martial must be drawn from atleast two ships not being tenders, and this requirement of law was fully observed because three members had been taken from INS

Venduruthy Additional and one from INS Garuda Additional. The said sub section (11) or any other provision in Section 97 no where requires that the members to be so nominated from two ships must be equal from each ships.

13. It is also significant to state that according to sub section

(12) of Section 97 of the Navy Act, 1957 the President of the court martial is appointed by the Convening Authority or by any other officer empowered by him. In this case, admittedly the President, namely, Cap. Rajiv Girotra of INS Venduruthy Additional was appointed by the Convening Officer. According to sub section (18) and (19) of the aforesaid section, Members of the court martial are appointed by the President of the court martial from amongst the officers in order of seniority disclosed in the list furnished by the

Convening Officer. The Convening Officer or the Senior Naval Officer present at the place, where the court martial is to be held, has power to exempt in writing any officer from attending as Member on the ground of sickness or urgent public duty. What is, therefore, apparent is that the Convening Officer or the Senior Naval Officer present at the place, where court martial is to be held, is to furnish a list of T.A. No.118 OF 2009 - 14 - officers to the President in order of seniority, who are available to act as Members of the court martial along with the list of the officers who are exempted from attending as Member either on the ground of sickness or urgent public duty.

14. Mr. M.A. Firoz tried to contend that under sub section (18) of Section 97 the appropriate authority to appoint members of the court martial was the President of the court martial, but in this case the Convening Officer virtually acted as the appointing authority of the members because the list he prepared and forwarded to the

President of the court martial had the names of only four officers for being designated as Members, besides two spare members, and remaining other Officers had been shown as excused due to urgent public duty, so the President had been left with no option except to appoint the Members specified by the Convening Authority and as such the constitution of the court martial was bad in law. In our view, this submission seems to be very attractive at the first sight, but it lacks any substance due to the simple reason that the Convening

Officer had the power under sub section (20) of Section 97 of the

Navy Act to exempt members on the ground of either sickness or urgent public duty, who had, after taking into account the requirement of officers for urgent public duty, excused certain officers from attending the court martial as Members. The exemption so T.A. No.118 OF 2009 - 15 - made being in accordance with law, cannot be allowed to be assailed on any ground. After all, urgent public duties of the Navy were required to be discharged in public interest. So, after exempting such officers, what the Convening Officer could do was to include the names of only those officers, who were not required for the urgent public duties. Accordingly, the Convening Officer did so. There is no allegation that the Convening Officer deliberately left out few other officers from being included in the list as available members, who were not required for urgent public duties. On a perusal of the entire records we find that only four officers were available to act as members of the court martial and two officers were available as spare members after exclusion of the officers required for the urgent public duties, so the Convening Officer could not be blamed for furnishing only required number of officers to constitute the court martial. The

President of the court martial nowhere raised any objection that the officers provided to him for being appointed as members of the court martial were not in any way competent to act as members or were otherwise unfit to occupy the office of the member of the court martial and he needed few more officers for the purpose. The

President, instead of raising any such objection, appointed the members as per the list forwarded to him by the Convening Officer.

So the applicant cannot be permitted to contend that the names of T.A. No.118 OF 2009 - 16 - the officers disclosed in the list were not adequate in number, unless he proves that the act of the Convening Officer in furnishing the list in the aforesaid manner resulted in causing any serious prejudice to the rights of the applicant or the members were not impartial Judges to constitute the court martial. In absence of any such prejudice, the list furnished by the Convening Officer to the President of the court martial cannot be permitted to be assailed on the grounds raised by the learned counsel for the applicant.

15. We would like to refer to few earlier decisions touching the controversy raised by the learned counsel for the applicant. The

Principal Bench of the Armed Forces Tribunal, while dealing with a similar controversy in the matter of Cdr. Ashok Ganisham Gandhi v. Union of India & others (TA no. 390 of 2010) vide its order dated 25th January, 2013, held that under Section 97(19) of the Navy

Act power has been given to the Presiding Officer, but the competent authority is not bereft of the power to name other members. The

Principal Bench further held that for convenient working, power has been delegated to the President to select members, but by that it does not mean that the Convening Authority becomes powerless to constitute the members of the court martial also. Section 97 of the

Navy Act cannot be interpreted to mean that the appointing authority becomes powerless to nominate the members. The relevant T.A. No.118 OF 2009 - 17 - observations of the Principal Bench made in paragraph 32 of the order being relevant are reproduced as follows:

“32. So far as convening of court martial is concerned, it was submitted that Section 97 of the Navy Act empowers the competent authority to appoint Presiding Officer & he shall appoint certain officers eligible to sit in the court martial. But in the present case, Competent authority appointed all members whereas under section 97(19), Presiding Officer will select the person. It is true under section 97(19) power has been given to Presiding Officer. But authority is not bereft of the power to name other members. Under Section 97 of the Navy Act, it is stated that the Court Martial can be constituted and convene either by the President, Chief of Naval Staff or any Officer empowered on his behalf by commission from Chief of Naval Staff. Therefore, all the Commanding Officer (sic.), has been delegated the power by Chief of Naval Staff to convene Court Martial. Therefore, when they have the plenary power to convene the Court Martial and appoint the President, however, for convenient working power has been delegated to the President to select the members, by that it doesn't mean that convening authority becomes powerless to constitute the members of the court martial also. Section 97 of Navy Act cannot be interpreted to mean that the appointing authority becomes powerless to nominate the members, The regulation 167(2) framed under the Navy Act, 1957 cannot have overriding effect over section 97 of the Navy Act. This argument of the learned counsel also has no legs to stand. All these questions have already been answered in case of Ex.Cmde N.M.Pandit Vs. Union of India (TA 365/2009) following Delhi High Court order in case of M.P. Verma Vs. Union of India.” T.A. No.118 OF 2009 - 18 -

16. A similar question had been raised before a Division

Bench of the Delhi High Court in the matter of Lt. Cdr. M.P. Verma v. Union of India in W.P.(C) No. 9509 of 2004. In that case too the Convening Officer had provided names of only those members, who could constitute the court martial and exempted other members, so it was argued that the procedure of nominating the members amounted to stepping into the shoes of the President of the court martial. The Division Bench over-ruled the objection and upheld the validity of the constitution of the court martial.

17. The learned counsel for the applicant tried to contend that a Special Leave Petition is pending before the Apex Court against the decision of the Division Bench of the Delhi High Court and therefore, the aforesaid decision was not applicable as a judicial precedent. In this connection the learned counsel for the respondents relied upon a

Division Bench decision of the Kerala High Court in Abdul Rahiman v. District Collector, Malappuram (2009 (4) KLT 485). In that case, the Division Bench of the Kerala High Court held that when a decision of a Division Bench is stayed by the Supreme Court, the

Single Judges of the Court are bound to follow the decision of the

Division Bench as it continues to be a binding precedent for them. On the basis of the said decision of the Division Bench of the Kerala High

Court, the learned counsel for the respondents contended that the T.A. No.118 OF 2009 - 19 - decision of the Division Bench of the Delhi High Court in Lt. Cdr.

M.P.Verma's matter (supra) could be relied upon as a judicial precedent, notwithstanding the pendency of the Special Leave

Petition. We are in full agreement with the learned counsel for the respondents. Not only the decision of the Division Bench of the Delhi

High Court in the matter of Lt. Cdr. M.P. Verma (supra), but also the aforesaid decision of the Principal Bench of the Armed Forces Tribunal have clearly laid down the principle that if the list furnished by the

Convening Officer regarding the names of officers available for the court martial are equal to the number of officers required to constitute the court martial, the constitution thereof cannot be assailed only on this ground. In view of these reasons, we hold that the constitution of the court martial was not in any way invalid only on the ground that the names of the officers disclosed in the list furnished by the Convening Officer were equal to the number of officers required to constitute the court martial.

18. Learned counsel for the applicant next contended that the applicant had raised objections against the President and Members of the court-martial regarding their competence to act as impartial

Judges mainly on the ground that the Commanding Officer, INS

Venduruthy had directed for the investigation of the matter and recording of summary of evidence and also recommended for T.A. No.118 OF 2009 - 20 - convening court-martial, so the President and Members of the Court being subordinates to the Commanding Officer, were under his influence and as such they were not in any way impartial Judges. But the Trial Judge Advocate wrongly invoked the jurisdiction and rejected the objection. In fact, only the Court-martial had the power to do so. But neither the court considered the objection nor recorded any reasons in support of the order rejecting the objection. So constitution of the court-martial was per se illegal. Before entering into the merits of the submissions, we have to examine the power of the Trial Judge Advocate and the court-martial regarding the objection raised against the competence of the President and

Members to act as impartial Judges.

19. In Union of India and others, v. Shivendra

Bikaram Singh, AIR 2003 S. C. 2481, the Apex Court considered the question of the competence of the Trial Judge Advocate to overrule an objection regarding the competency of the President or a member of the Court Martial to act as an impartial Judge and propounded the principles that the trial Judge Advocate has no discretion in the matter and he must place the matter before the

Court, which has to consider the objection and decide the same in accordance with the procedure laid down in clauses (b) to (e) of

Section 102 of the Navy Act. The Apex Court further held that If the T.A. No.118 OF 2009 - 21 - objection was not on a ground as specified in the first part of Section

102, it was then the discretion of the Trial Judge Advocate to summarily reject the same. The relevant observations of the Apex

Court are as follows:

“19. …….. 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. ………………..

21. ……………………… 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 T.A. No.118 OF 2009 - 22 -

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 sub-sections 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. 22………………………………………………

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 Section 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 T.A. No.118 OF 2009 - 23 -

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………………….

24….……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 T.A. No.118 OF 2009 - 24 -

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.”

20. What is apparent from the aforesaid observations of the Apex Court is that before the trial commences, all objections to the constitution of the court martial must be considered and decided. Section 102 (a) of the Navy Act, 1957 is confined to an objection on the ground, which affects the competency of the President or members of the court martial to act as an impartial Judge, where as Section 103 of the said Act refers to any further objection respecting the constitution of the court martial. The objection under Section 102(a) against the

President or a member of the court martial with regard to his competency to act as an impartial Judge is to be decided first of all by the court martial itself. What power has been conferred T.A. No.118 OF 2009 - 25 - on the Trial Judge Advocate is to see whether or not the objection is on the ground specified in Section 102(a) of the

Navy Act. If the objection does not come within the purview of the said provision, the Trial Judge Advocate has power to reject the objection summarily. But when the competency of the

President or a member of the court martial to act as an impartial

Judge is objected to by prosecutor or the accused and his counsel, in that eventuality, the power vests in the court martial itself to allow or reject the objection and in that situation the

Trial Judge Advocate has no role to play. We have, therefore, to examine the instant case in the back drop of these settled principles.

21. According to the records pertaining to the proceedings of the court martial, the trial commenced on 31st May, 2005 at

9.30 hours. The Trial Judge Advocate, first of all, asked the

Prosecutor whether he had any objection to any member of the court or not? The Prosecutor replied that he had no objection.

After that, the applicant was asked by the Trial Judge Advocate whether he had any objection to be tried by any of the member of the Court. The defence counsel demanded a copy of the list T.A. No.118 OF 2009 - 26 - of officers sent to the President of the court martial by the

Convening Officer, which was, after due deliberation and hearing, provided to him. The defence counsel raised the objection that the Convening Authority had power to nominate the President only, but he had not only nominated the President, but also supplied the list, in such a way, leaving no scope for the

President to exercise his discretion. So constitution of the court martial was unlawful. The defence counsel raised the further objection against the President, Capt. Rajiv Girotra, that the

Commanding Officer had not only ordered investigation against the applicant, but had also charge sheeted him without due compliance of the principles of natural justice and had even sent the proposal for convening the court martial, so the

President of the court martial, who was subordinate to the

Commanding Officer, was not in any way an impartial Judge.

The Trial Judge Advocate informed the court martial with regard to the provisions of Section 102(a) of the Navy Act, 1957 and contended that any member could be objected to on a ground, which affected his competency to act as an impartial Judge. He further expressed the view that the Trial Judge Advocate had T.A. No.118 OF 2009 - 27 - power to reject summarily without reference to the members of the court any objection not made on such ground. He further informed the court that under sub section (b) of Section 102 of the Navy Act, 1957, the objections to members shall be decided separately, though officers lowest in rank being taken first. He further informed that if the objection was against the President, such objections have to be decided first and all the other members whether objected to or not shall vote as to the disposal of the objection. After saying so, the Trial Judge

Advocate requested the court to decide the objection.

22. First of all, the objection raised against the President was taken up for consideration. The members of the court martial were provided an opportunity to place on record their decision on the question whether the President appointed by the

Convening Authority was competent enough to preside over the proceeding of the court martial or not. The members, including the spare members, unanimously approved the appointment of

Capt. Rajiv Girotra as the President of the court martial. The members expressed the reason that the proceedings would not be biased because of the seniority of the President with respect T.A. No.118 OF 2009 - 28 - to the Commanding Officer, INS Venduruthy. So the contention of the learned counsel for the applicant, that the objection raised against the President was not decided by the court and was disposed of by the Trial Judge Advocate, has no substance.

The learned counsel for the applicant, tried to contend that the spare members also participated in deciding the objection against the President, so the decision of the members with regard to the objection against the President was bad in law, because the spare members could act as members only when any member constituting the court either had not come or had shown his unwillingness to continue as member or objection raised against him had been upheld by the Court. So, the participation of spare members in the decision making process was bad in law. In our view, the ultimate decision of the court cannot be upset only on this ground due to the simple reason that all the other four members of the court martial had also taken the decision to overrule the objection raised against the

President. So, even if the decision of the spare members are excluded, the final decision taken by the court would remain the same. The position would have been different if the T.A. No.118 OF 2009 - 29 - participation of spare members had resulted in altering the final decision. In this view of the matter, no prejudice seems to have been caused to the applicant due to the participation of spare members in disposing of the objections raised against the

President.

23. After the disposal of the objections raised against the

President, the Trial Judge Advocate asked the defence counsel as to whether he has any objection against any of the members of the court. Then the defence counsel replied that Cdr.

Susheel Kurup, Cdr.NVS Raju and Cdr. Ashok K Nair had been taken from one ship, i.e., INS Venduruthy Additional. So whatever objections had been raised against the President, the same were also available to the applicant against these three members of the court martial. The defence counsel contended that these three members were also under the influence of the

Commanding Officer of INS Venduruthy.

24. The Prosecutor and the Trial Judge Advocate raised their respective views on the point of the objections raised against the aforesaid members. After that the President and members proceeded to vote towards disposal of the objections T.A. No.118 OF 2009 - 30 - against each of the member. First of all the objection raised against Cdr. Ashok K Nair, who was the junior most, was taken up. The President and other members expressed the views that they had no objection to the selection of Cdr. Ashok K Nair. The court expressed the similar view with regard to other members, namely, Cdr. NV Sathya Narayana Raju, Cdr. Ramesh Srinivasan and Cdr. Susheel Kurup. While rejecting the objections against the members, the court expressed the view that the aforesaid members of the court had been under an independent unit and were not directly under the Commanding Officer, INS

Venduruthy. Accordingly, the court found that the members were not only independent but also free from any bias. The court further expressed the views that the proceeding of the

Court Martial would be held unbiased. After that, the Court enquired into from the defence counsel with regard to any other objection against the court, who, in reply, stated that he had no other objection against the President and members of the Court, without prejudice to his right to challenge the constitution of the court martial in appropriate proceeding. T.A. No.118 OF 2009 - 31 -

25. The learned defence counsel then raised one more objection and stated that he intended to examine the

Commanding Officer of INS Venduruthy as a witness, so in that eventuality, the President and members being subordinates, could not act as impartial Judges. This objection was also overruled. At this juncture we would like to indicate that the aforesaid Commanding Officer did not appear as a witness during the court martial proceedings, so this last objection lost its relevance.

26. From the aforesaid sequence of events, it is crystal clear that whatever objections had been raised on behalf of the applicant against the President and members of the court martial, had been given due consideration by the Court and were rejected by the court itself by assigning reasons. The objections raised against the President were rejected by the members, where as the objections against the members were rejected by the President and members excepting objected members. So there was no procedural lapse on the part of the

President and members while considering the objections and rendering orders thereon. The contention that the Trial Judge T.A. No.118 OF 2009 - 32 -

Advocate himself undertook the responsibility of the President and members of the court and decided the objections raised by the applicant against the President and members does not appear to have any substance. We, therefore, do not find any merit to interfere with the order of the Court Martial rejecting the objections made against the President and Members of the

Court Martial.

27. Now we have to see whether the aforesaid objections raised against the President and members of the court martial had any substance on merit or not. In this connection it may be mentioned that the applicant had not made any personal allegation against the President and members of the Court and had not even raised any personal allegation against the

Commanding Officer of INS Venduruthy. His apprehension was that the Commanding Officer, who had directed for holding of the investigation and recording of summary evidence against him and had thereafter recommended convening of court martial, was in a position to influence the President and three members, viz. Cdr. Susheel Kurup, Cdr. NVS Raju and Cdr. Ashok

K Nair, who were allegedly subordinates to him. In our view, no T.A. No.118 OF 2009 - 33 - charge of bias or unfairness could be levied against the

Commanding Officer only on the ground that he had directed for investigation of the matter, including recording of summary evidence and had ultimately recommended for convening the court martial. As the Commanding Officer, it was his legal responsibility to maintain discipline in the ship and to ensure that each and every individual deployed in the ship must act according to the norms of the Navy. If any complaint or misconduct against any officer or sailor was received, holding of an inquiry in the matter was also his responsibility. In this view of the matter, if the Commanding Officer proceeded to direct for investigation of the matter, including the direction for recording of summary evidence, it cannot be held that he became an interested person against the applicant. So, in our view, due to the aforesaid reasons it was quite baseless to say that the

Commanding Officer had a personal interest against the applicant and he acted to influence the President and members of the court martial. More so, the applicant had not alleged any personal animosity or other reasons against the Commanding

Officer, due to which, he could be said to be interested in the T.A. No.118 OF 2009 - 34 - matter. Besides this, the President and the aforesaid three members of the court martial had been taken from INS

Venduruthy Additional and none of them was directly subordinate to the Commanding Officer INS Venduruthy. So the contention that the President and the aforesaid three members were under the influence of the Commanding Officer of INS

Venduruthy does not appear to have any substance. The 4th member, viz. Ashok K Nair was taken from another ship i.e. INS

Garuda Additional and the husband of the prosecutrix was not directly in that ship. He was in Ship INS Garuda. More so, it is also relevant to state that there is no material to show that the prosecutrix or her husband had any influence whatsoever either against the Commanding Officer, INS Venduruthy or the

President and members of the court martial. Apart from this, the prosecutrix’s husband was a quite junior officer only of the rank of Lieutenant at the time of the incident, so it could not be said in any way that he could exercise any influence on the senior officers like the Commanding Officer of INS Venduruthy, who was of the rank of , especially when the

Commanding Officer of INS Venduruthy had been commanding T.A. No.118 OF 2009 - 35 - a different ship, in which the prosecutrix’s husband had not been serving at that point of time. In our view, the objections whatsoever had been raised by the applicant against the

President and members of the court martial were not only baseless, but also devoid of merit, so, in our view, the court martial was perfectly justified in overruling the objections.

28. The learned counsel for the applicant, tried further to contend that the court martial, while overruling the objections, did not assign any reason, so the order was bad. We have already indicated in the preceding paragraphs that the court assigned brief reasons for rejecting the objections. So the contention that no reason was assigned does not appear to have any substance. More so it was not at all necessary to pass a detailed reasoned order. A single line reasoned order was sufficient, which the court martial did while overruling the objection.

29. The next submission on behalf of the applicant was that the Trial Judge Advocate gave incorrect advice to the court martial with regard to Section 122 of the Evidence Act. The statement of the prosecutrix’s husband that his wife informed T.A. No.118 OF 2009 - 36 - him on phone about the incident in the night of the incident itself and he thereafter advised her to contact the TTE for security was hit by Section 122 of the Evidence Act. So, whatever communication was received by the prosecutrix’s husband from his wife could not be disclosed in the Court, being a private communication between the husband and wife during the continuance of the marriage. In this connection the learned counsel for the applicant relied upon the decision of the Apex

Court in M.C. Verghese vs T.J. Ponnan and another AIR 1970

SC 1876, and contended that the Apex Court held in that case that if the complainant seeks to support his case only upon the evidence of the wife of the accused, he may be met with the bar of Section 122 of the Indian Evidence Act. Whether he will be able to prove the letters in any other manner is a matter which must be left to be determined at the trial and cannot be made the subject-matter of an enquiry at this stage. In that case the complainant had claimed that he had been defamed by the writing of the letters sent by the accused to his wife, who was complainant’s daughter, with whom the accused had strained relations and whose marriage was subsequently dissolved due T.A. No.118 OF 2009 - 37 - being void. The letters were in the possession of the complainant and were available for being tendered in evidence.

At the preliminary stage the bar of the said section122 was raised. In such circumstances the Apex Court applied the bar of

Section 122 of the Indian Evidence Act and further held that there was no reason why inquiry into that complaint should, on the preliminary contentions raised, be prohibited. In our view the facts of M.C. Verghese’s case(supra) were altogether different. In that case the relation between husband and wife was strained and her father had filed a defamation case against her husband on the basis of the letters her husband had sent to her. So, the dispute in that case had direct nexus to the marriage between the husband and wife and the dispute had arisen concerning the marriage.The learned counsel for the applicant next referred to the decision of the Karnataka High

Court in Nagaraj alias Kumar alias Anand alias Selvam v.

State of Karnataka (1996 Crl.L.J. 2901). In that case too the Karnataka High Court held that the communications between husband and wife cannot be permitted to be disclosed unless the spouse other than one in the witness box has consented to T.A. No.118 OF 2009 - 38 - such disclosure. In our view, the aforesaid case was also considered and decided on the basis of the facts and circumstances of that case. So the applicant cannot claim the aforesaid decisions as judicial precedents. In our society, the husband and wife are considered as one. They do share several communications with each other, which they cannot be compelled, as per Section 122 of the Evidence Act, to disclose without the consent of the other. To put it otherwise, Section 122 of the Evidence Act prohibits disclosure of private communications made by married couples to each other without the consent of the other. But this prohibition is not applicable in a case where the disclosure is made in a suit between them or in a proceeding, in which one of them is prosecuted for any crime committed against the other. The question that is involved in the present matter is, whether the communication made by the wife to the husband or vice-versa during marriage with regard to commission of any crime committed by a third party against any of them is also prohibited under the said

Section 122. In order to appreciate the controversy it would be appropriate to indicate that a crime is committed not only against the victim, but also against the whole society, so it is in the interest of the society as a whole, if the offender is appropriately punished for the crime. The present case needs to be viewed in this perspective. T.A. No.118 OF 2009 - 39 -

If the prosecutrix gave information on phone to her husband regarding the crime committed by the applicant, and her husband disclosed that fact in the witness box, how the information so given by the prosecutrix would be hit by Section 122 of the Evidence Act.

If such an interpretation is accepted, and the statement of the prosecutrix's husband is excluded, the offender may go unpunished.

Section 122 of the Evidence Act cannot be interpreted in such a way as to exclude any relevant evidence with regard to a crime. So, in our view, such type of communication between the husband and wife during the marriage cannot be brought within the purview of the aforesaid section. More so, the objections to the disclosure made by the prosecutrix's husband in the court could only be raised by the prosecutrix, so we fail to understand as to how the applicant, who is the accused, acquired any right to raise such objection. Apart from this, the prosecutrix herself disclosed in the Court, the communication she had made to her husband, so on this basis it can be safely inferred that the prosecutrix consented to the disclosure made by her husband in the Court. In this view of the matter, it is held that the prosecutrix's husband made the disclosure of the communication of the prosecutrix with her consent. We, therefore, do not agree with the submission made on behalf of the applicant. T.A. No.118 OF 2009 - 40 -

30. Further submission on behalf of the applicant was that the alleged undertaking, Ext.P4, given by the applicant was obtained under duress by the TTE in the presence of police personnel of the Railway Protection Force, so the same could not be treated as voluntary confessional statement of the applicant.

In this connection the learned counsel for the applicant referred to the statement of PW3, Mr. R. Sekhar, which he made while answering question No.188, and urged that the applicant accepted his mistake because the witness wanted to detrain him in Chennai and had asked him to give an apology that he would not repeat it again. So, the applicant gave the apology.

Before entering into the merits of the above submissions, we would like to indicate the circumstances which led to the execution of the undertaking Ext.P4. It is alleged that the applicant, after outraging the modesty of the prosecutrix in the night, had sent lewd message on her mobile phone early in the morning at 6.25 a.m., who became apprehensive of any further attempt by the applicant, so on her request the TTE intervened and tried to pacify the matter and in furtherance thereof the undertaking Ext.P4 was executed by the applicant. In such T.A. No.118 OF 2009 - 41 - circumstances, the undertaking cannot be said to have been obtained by practicing duress or inducement on the applicant.

If for argument sake it is assumed that the undertaking was so obtained, even then the case is not going to be affected adversely on merits, because the sole evidence of the prosecutrix is sufficient without any corroboration to prove the charges against the applicant. In this view of the matter, even if the undertaking is excluded, the finding of the court martial will remain in tact.

31. The learned counsel for the applicant proceeded further to argue that the court martial did not record any reason in support of its finding and passed the final order in an arbitrary manner, so it was liable to be quashed. In support of this submission the learned counsel relied upon the decision of the

Division Bench of the Bombay High Court in Ex Surgeon

Commander Bhaskar Roy v. Union of India & ors.

(1998 (1) MhLj 220) and contended that in that case the

Bombay High Court held that the Court Martial should record reasons for its findings. We have considered the decision of the

Division Bench of the Bombay High Court, which was rendered T.A. No.118 OF 2009 - 42 - on the basis of the two earlier decisions of the Constitution

Bench in Bhagat Raja v. Union of India (AIR 1967 SC

1606) and S.N. Mukherjee v. Union of India (AIR 1990

SC 1984). The Division Bench expressed the view that the

Court Martial should have given reasons for its finding, but declined to quash the punishment on the ground that no reason was assigned. In order to consider the question, whether or not it was mandatory for the Court Martial to record reasons in support of its finding, we have to see few other decisions. In the matter of S.N. Mukherjee (supra), a five Judge

Constitution Bench of the Apex Court considered the question of recording of reasons by the Court Martial in support of its finding in the matter that had arisen under the Army Act. The

Apex Court held in para 46 that in so far as the findings and sentence of a Court Martial and the proceedings for confirmation of such findings and sentence are concerned, it has been found that the sentence of the Act and the Rules are such that reasons are not required to be recorded for the same. The Apex Court then considered the question as to whether the Legislature made a departure from the said scheme in respect of post- T.A. No.118 OF 2009 - 43 - confirmation proceedings and answered the question that there is nothing in the language of sub section (2) of Section 164, which may lend support to such an intention, nor is there anything in the nature of post-confirmation proceedings, which may require recording of reasons for an order passed on the post-confirmation petition, even though reasons are not required to be recorded at the stage of recording of findings and sentence by a court-martial and at the stage of confirmation of the findings and sentence of the court-martial by the confirming authority. The Apex Court further opined that with regard to recording of reasons, the considerations which apply at the stage of recording of findings and sentence by the court martial and at the stage of confirmation of finding and sentence of the court martial by the confirming authority are equally applicable at the stage of consideration of the post-confirmation petition.

The Apex Court accordingly ruled that since reasons are not required to be recorded at the first stage referred to above, the said requirement cannot be insisted upon at the stage of consideration of post-confirmation petition under Section 164(2) of the Army Act. So, apparently the Apex Court held that T.A. No.118 OF 2009 - 44 - recording of reasons by the court martial in support of its findings was not required in law. We fail to understand as to how the learned counsel for the applicant can be allowed to rely upon the decision of the Bombay High Court in the aforesaid matter, which is not in accordance with the views expressed by the Constitution Bench of the Supreme Court. It is, no doubt, true that in S.N. Mukherjee’s case, recording of reasons by an

Administrative Authority exercising judicial or quasi judicial functions was also insisted upon, but such principles cannot be applied with regard to the findings of a court martial especially when the Apex Court finally ruled in para 46 that recording of reasons by the court martial was not necessary. No doubt, the case of S.N. Mukherjee had arisen under the Army Act, but the same can be applied even to the proceedings of court martial held under the Navy Act, because the provisions of the Army Act as also the Navy Act with regard to recording of findings are almost synonymous.

32. A similar question had arisen before the Principal

Bench in T.A.No. 365 of 2009 (Ex Cdre. Narinder Pandit v. Union of India and others) and T.A.No. 390 of 2010 T.A. No.118 OF 2009 - 45 -

(Cdr Ashok Ganisham Gandhi v. Union of India & others), wherein the Principal Bench held that recording of reasons by the Court Martial was not necessary. In the matter of Union of India and another v. Dinesh Kumar (2010

(3) SCC 161), which was a case under the Border Security

Forces Act, 1968, a similar question had arisen, and the Apex

Court, after placing reliance on the decisions in Soma Datt

Datta v. Union of India (AIR 1969 SC 414) and S.N.

Mukherjee (supra), held that the court was not required to give any reasons in support of its findings. The Apex Court further held that if reasons had been recorded, they would have enabled the higher courts to effectively exercise the appellate or supervisory jurisdiction, but the findings of the Court was not to be quashed only on the ground that no reason was recorded.

33. In view of the aforesaid, we hold that the order/ decision of the Court Martial was not illegal only on the ground that the Court did not record any reason in support of its finding.

34. The learned counsel for the applicant further contended that the Lieutenant M.S. Sheeja was appointed as

Trial Judge Advocate (hereinafter referred to as ‘the TJA’), by T.A. No.118 OF 2009 - 46 - the Signal DTG 251618 dated 25th May, 2005. But she, by her letter dated 16th May, 2005, intimated the applicant that his trial by the Court Martial had been approved by the competent authority, which was to be held on 31st May, 2005. More so, she gave such information to the applicant even before issue of warrant by the Flag Officer Commanding in Chief for convening the Court Martial. On the basis of this factual aspects of the matter, the learned counsel for the applicant tried to contend that the competent authority had abdicated his right and power to the TJA, resulting the order for convening the Court Martial as illegal and ab initio void.

35. The learned counsel for the applicant next contended that the circumstantial letter was prepared and submitted by the prosecutor, which was not in any way proper in law.

36. The learned counsel for the respondents clarified that the Convening Authority had approved holding of the Court

Martial prior to 16th May, 2005, so the TJA was justified in not only informing the applicant regarding the convening of the

Court Martial on 31st May, 2005 but also in furnishing him copies of the charge sheet and other relevant documents, which T.A. No.118 OF 2009 - 47 - enabled him to prepare his defence well in advance. It is also relevant to state that recording of summary of evidence in respect of the charges framed against the applicant, had already been done, so the TJA on coming to know the proposal for convening the Court Martial, was perfectly justified in informing the applicant in advance regarding the constitution of the Court

Martial and its assembly date along with relevant materials, so the same has not resulted in any way in causing any injustice or prejudice to the applicant.

37. In our view, the aforesaid acts of the TJA cannot be taken as a ground to hold that the proceedings of the Court

Martial was bad in law.

38. The learned counsel next contended that the appointment of Lt. Cdr. Gaurav Mehta as Prosecutor was bad, in view of the fact that he had acted as the Investigating Officer for recording summary of evidence. More so, he appeared even as a witness during the trial . It is true that Lt. Cdr. Gaurav

Mehta had acted as the Investigating Officer and recorded summary of evidence, but due to that his appointment as the

Prosecutor cannot be held to be invalid. As an Investigating T.A. No.118 OF 2009 - 48 -

Officer, he had merely recorded the statements of the witnesses and collected other materials, which he produced during the trial. So, only on this basis it cannot be contended that he while discharging the duties of the Prosecutor, acted in any way prejudicial to the applicant. So far as his appearance as a witness is concerned, the applicant had himself requested the

Court to summon him as a defence witness, which was allowed, so how the applicant can be said to be justified to contend subsequently that Lt. Cdr. Gaurav Mehta was ineligible to act as the Prosecutor and whatever he had done as the Prosecutor before appearing as the defence witness, was redundant and illegal. The learned counsel for the respondents informed that

Lt. Jenson Mendez, Assistant Prosecutor, had acted as the

Prosecutor during the period Lt. Cdr. Gaurav Mehta remained in the witness box as a defence witness. In our view, the aforesaid submissions made on behalf of the applicant are not only petty in nature but also bereft of merit, which do not go to the root of the case and as such cannot be taken as a valid ground to discard a fully established case. T.A. No.118 OF 2009 - 49 -

39. The learned counsel for the applicant next contended that the complaint was lodged with inordinate delay without any sufficient explanation, so the prosecution story was doubtful.

According to the learned counsel for the applicant, the occurrence took place on 15th February, 2005 in the night. The prosecutrix gave the statement, Ext.P11, regarding the incident, to the Commanding Officer INS Garuda on 26th February, 2005 for the first time. So there was a delay of 11 days. The learned counsel for the applicant tried to contend that the delay was so material as to discard the veracity of the story of the incident.

In our view, the prosecutrix had given proper explanation for the delay. According to which, she returned from

Vishakhapatnam to Kochi on 24th February, 2005, so the delay occurred. This explanation was tried to be assailed by the learned counsel for the applicant on the ground that the prosecutrix could sent the complaint by post or even by email from Vishakhapatnam. More so She made the statement after consultation with her husband, so the delay was material. In our view, no prosecution story can be discarded only on the ground of delay in filing the complaint. It is quite relevant that T.A. No.118 OF 2009 - 50 - the incident had taken place in a train, in which the prosecutrix was travelling from Kochi to Vishakhapatnam. She had informed her husband on mobile phone about the incident in the night itself, without any delay, who tried to inform the senior officers of the Navy next day. More so the complaint was lodged after the prosecutrix returned from Vishakhapatnam without any further delay.

40. In the matter of State of Himachal Pradesh v.

Prem Singh, (2009) 1 SCC 420, the Apex Court held that the delay in a case of sexual assault cannot be equated with a case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition- bound society prevalent in India, more particularly rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR.

41. A similar view was expressed in the matter of KPS

Gill v. State and another (2005) 6 SCC 161. In that case, the Apex Court noticed that there was some delay in filing the complaint, but that by itself was not sufficient to reject the T.A. No.118 OF 2009 - 51 - complaint. The prosecutrix therein lodged the complaint with the

Chief Secretary and other Officers and raised objections and also sought for stringent action, but when she failed in all such attempts, she filed the complaint. In this view of the matter, the delay was held immaterial to discard the prosecution case.

42. In the matter of Vidhyadharan v. State of Kerala,

(2004) 1 SCC 215, the Apex court held that delay in lodging

FIR is quite natural in a tradition bound society to avoid embarrassment which is inevitable when reputation of a woman is under concern.

43. We do not therefore consider it proper to give any significance to the alleged delay in lodging the complaint and as such the same cannot be taken as a ground to discard the case set up against the applicant.

44. The prosecutrix supported the prosecution story in the witness box. Her testimony remained unshattered despite lengthy cross examination and there was no reason to make false charges against the applicant, if he had not outraged her modesty in the manner stated by her. Neither the proseocutrix nor her husband knew the applicant prior to the date of the T.A. No.118 OF 2009 - 52 - occurrence. On 15th February 2005 at about 16.30 hours the prosecutrix’s husband came to know for the first time about the applicant when he got information that he was to lead as a

Coach of a team, which was to go to Guwahati, so he tried to contact the applicant for the safe journey of his wife to

Vishakhapatnam with her small child. Any how, he contacted the applicant on phone and requested to provide the assistance, to which he agreed. In such circumstances, there was no reason either for the prosecutrix or her husband to concoct a false case against the applicant if the incident had not happened. In our view, the statement of the prosecutrix was quite natural, probable and consistent and is liable to be accepted. As held by the Apex Court in Premiya v. State of

Rajasthan, (2008) 10 SCC 81, in para 10, a victim of molestation and indignation is in the same position as an injured witness and her testimony should receive the same weight. The case of Aman Kumar v. State of Haryana, (2004) 4 SCC

379, was no doubt a case of rape, but, in that case, the Apex

Court held that victim is not an accomplice, so her testimony was sufficient to record conviction without corroboration. The learned T.A. No.118 OF 2009 - 53 - counsel for the applicant, however, referred to the decision of the Apex Court in Sheikh Zakir v. State of Bihar (AIR

1983 SC 911) and contended that in that case, the Apex Court held that in the case of a grown up and married woman it is always safe to insist on corroboration of her statement. The said principle seems to have been propounded keeping in view the facts and circumstances of that case, which cannot be applied in other cases in a straight jacket manner. In our view, the Court Martial was perfectly justified in placing reliance on the sole statement of the prosecutrix for holding the applicant guilty of both the charges. There does not appear to be any other direct evidence with regard to charges No.1 and 2 against the applicant, except the statement of the prosecutrix. The statements of PW3, Shri. R. Sekhar and PW13, Shri.Abdul

Azeez, Train Ticket Examiners, were corroborative in nature, as the prosecutrix informed them about the incident, for seeking adequate protection. These two witnesses corroborated the statement of the prosecutrix to that extent. The statement of the prosecutrix’s husband also corroborated to the extent that he not only boarded the prosecutrix in the train with the small T.A. No.118 OF 2009 - 54 - child, but also requested the applicant to provide the desired help during the journey, who was also travelling in the same coach of the train. In view of these factual aspects of the matter, the conclusion drawn by the Court Martial that both the charges were proved beyond all reasonable doubts against the applicant seems to be perfectly correct which requires no interference.

45. The acts of the applicant in touching and kissing the prosecutrix as she proved in the witness box, undoubtedly amount to an assault to the victim with an intention to outrage her modesty within the meaning of Section 354 of the Indian

Penal Code, which is a civil offence as defined in Section 3(3) of the Navy Act and is punishable under Section 77 thereof. We, however, consider it just and expedient to refer to certain important decisions explaining the offence under Section 354

I.P.C. In the matter of State of Punjab vs. Major Singh,

AIR 1967 SC 63, the Apex Court observed that the essence of a woman's modesty is her sex and from her very birth she possesses the modesty which is attributable of her sex.

Accordingly, the Apex Court further held that when any act done T.A. No.118 OF 2009 - 55 - to or in the presence of a woman is clearly suggestive of sex, according to common notions of mankind, that act must fall within the mischief of Section 354 IPC. In that case, a female child of 7½ months was allegedly subjected to outraging of her modesty.

46. Relying upon the decision in Major Singh's case

(supra), the Apex Court held in Rupan Deol Bajaj v. Kanwar

Pal Singh Gill and another (1995) 6 SCC 194, that slapping on the posterior of prosecutrix amounted to “outraging of her modesty”, for it was not only an affront to the normal sense of feminine decency, but also an affront to the dignity of the lady -

“sexual overtones” or not, notwithstanding. While holding so, the Apex Court took into account the dictionary meaning of the word 'modesty' and held in paragraph 14 as follows:

“14. Since the word 'modesty' has not been defined in the Indian Penal Code we may profitably look into its dictionary meaning. According to Shorter Oxford English Dictionary (3rd Edn.) modesty is the quality of being modest and in relation to woman means “womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct”. The word T.A. No.118 OF 2009 - 56 -

'modest' in relation to woman is defined in the above dictionary as “decorous in manner and conduct; not forward or lewd; shame fast”. Webster's Third New International Dictionary of the English Language defines modesty as “freedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct”. In the Oxford English Dictionary (1933 Edn.) the meaning of the word 'modesty' is given as 'womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions'.”

47. It may not be out of context to mention that the case of Rupan Deol Bajaj v. Kanwar Pal Singh Gill and another

(supra) had come before the Apex Court out of a proceeding instituted under Section 482 Cr.P.C. The matter was, however, tried later on as per the law and after the final decision, the matter was brought again before the Apex Court in appeal as

Kanwar Pal S. Gill v. State and another, (2005) 6 SCC

161. The Apex Court held in para 4 that the accused (KPS Gill) slapped on the posterior of the prosecutrix in the presence of some guests. The court further held that the act on the part of the accused would certainly constitute the ingredients of Section T.A. No.118 OF 2009 - 57 -

354 IPC.

48. The aforesaid principles have been reiterated in

Ramkripal v. State of Madhya Pradesh, (2007) 11 SCC

265. In that case, the Apex Court held that modesty in section

354 IPC is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. While laying down so, the Apex Court opined that the ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such, as could be perceived as one which is capable of shocking the sense of decency of a woman.

49. For the reasons stated herein before, the first charge under Section 354 of the Indian Penal Code read with section 77(2) of the Navy Act, 1957 against the applicant was rightly found proved beyond all reasonable doubts by the court martial. Apart from the aforesaid activity, the applicant had sent the lewd SMS “Hi, Dream girl call me back” from his mobile phone to the mobile phone of the prosecutrix, which act of the applicant was prejudicial to the good order and naval discipline obviously due to the reason that such activity was not expected T.A. No.118 OF 2009 - 58 - of a disciplined naval sailor. So, the court martial rightly concluded that the charge under the Navy Act, Section 74 was also proved beyond all reasonable doubts against the applicant.

50. So far as the quantum of punishment is concerned, it seems to be commensurate with the gravity of the charges.

The applicant, who promised to provide adequate assistance to the prosoecutrix for her safe journey to Vishakhapatnam , had not only betrayed the promise, but also outraged her modesty and sent lewd message on her mobile phone taking advantage of her being all alone in the train. In our view, it was not expected of a sailor of the rank of Master Chief Petty Officer II , to misbehave in the aforesaid manner with the young wife of a new commissioned officer, travelling under his well promised umbrella. In such circumstances , the sentence of dismissal from the Navy service coupled with the sentence of imprisonment against the applicant was not only just and perfect but was also necessary to maintain Navy discipline, which requires no judicial interference. T.A. No.118 OF 2009 - 59 -

51. For the reasons stated above, the Transferred

Application has no merit and is accordingly dismissed.

52. There will be no order as to costs.

53. Issue free copy of this order to both sides.

Sd/- Sd/- M.P. MURALIDHARAN, JUSTICE SHRIKANT TRIPATHI, MEMBER (A) MEMBER (J) tm.

/True Copy/

Prl. Private Secretary