ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI
O.A.No. 76 of 2013
TUESDAY, THE 24TH DAY OF JUNE 2014/ 3RD ASHADHA, 1936 CORAM: HON'BLE MR. JUSTICE SHRIKANT TRIPATHI, MEMBER (J) HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A)
APPLICANT: CDR SC JAIDWAL (84614-B) AGED 53 YEARS, S/O LATE PENU RAM JAIDWAL, INS GARUDA, NAVAL BASE, KOCHI, KERALA 682 004.
BY ADV.MR.V.K.SATHYANATHAN.
VERSUS
RESPONDENTS:
1. THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE , NEW DELHI – 110 011.
2. THE CHIEF OF THE NAVAL STAFF, INTEGRATED HEADQUARTERS OF MINISTRY OF DEFENCE (NAVY), NEW DELHI – 110 011.
3. THE FLAG OFFICER COMMANDING-IN-CHIEF, HEADQUARTERS EASTERN NAVAL COMMAND, NAVAL BASE, VISAKHAPATNAM – 530 014.
4. THE COMMANDIONG OFFICER, INS DEGA, NAD POST, VISAKHAPATNAM – 530 009.
BY ADV.SRI.K.M.JAMALUDHEEN, SENIOR PANEL COUNSEL OA 76 of 2013 : 2 :
O R D E R
VAdm.M.P.Muralidharan, Member (A):
1. The applicant Cdr SC Jaidwal, No.84614 B has filed the instant Original Application seeking relief against the findings and sentence of the Court Martial held between 25
Sep 2009 and 09 Oct 2009 at Visakhapatnam.
2. The applicant was tried by Court Martial on the following charges:
(1) Did between 07 Jul 07 and 20 Apr 09,
intending to insult the modesty of Lieutenant
Umesh Ridhi (05709-Z) of Indian Naval Ship
Dega, passed the following remarks to the said
Lieutenant Umesh Ridhi (05709-Z):
(a) “Bahut sunder lag rahi ho”.
(b) “Subah subah apna sundar chehra dikha diya
karo”. OA 76 of 2013 : 3 :
(c) “ Ab Samajh mein aaya boss ko khush rakhna
kitna jaroori hai”.
(d) “Tujhe Maharastrian hi mila kya”.
(e) “Suhag raat kaisi rahi”.
(f) “Aankhen suji huin hai, poori raat soyi nahi kya?.
and thereby committed an offence punishable under
section 509 of the Indian Penal Code read in
conjunction with section 77(2) of Navy Act 1957.
(2) Did at about 1430 hours on 14 Sep 07 intending
to insult the modesty of Lieutenant Umesh Ridhi
(05709-Z) of Indian Naval Ship Dega, stared at the
said Lieutenant Umesh Ridhi (05709-Z) in his office
in a manner so as to embarrass her and thereby
committed an offence punishable under section 509
of the Indian Penal Code read in conjunction with
section 77(2) of Navy Act 1957.
(3) Did at about 2100 hours on 25 Oct 07 intending
to insult the modesty of Lieutenant GS Sunanda OA 76 of 2013 : 4 :
(05485-R) passed remarks to the said Lieutenant GS
Sunanda (05485-R) “tujhe pata nahin mujhe kya
karne ka man hai”, “galti meri nahin hai, aaj tu itni
pyari lag rahi hai, tujhe uthake le jaunga” and
thereby committed an offence punishable under
section 509 of the Indian Penal Code read in
conjunction with section 77(2) of Navy Act 1957.
(4) Was at about 1500 hours on 20 Apr 09 guilty of
conduct unbecoming the character of an officer in
that he insisted Lieutenant Umesh Ridhi (05709-Z)
of Indian Naval Ship Dega to clean the spilled food
on his shirt and thereby committed an offence
punishable under section 54(2) of Navy Act 1957.
3. The Court Martial did not find the applicant guilty of charges 1 and 2. He was however found guilty of charges
3 and 4 and was sentenced to forfeiture of seniority for OA 76 of 2013 : 5 :
three months in the rank of Commander and severe reprimand, and to suffer all consequential penalties involved.
4. The applicant applied for judicial review of findings and sentence of the Court Martial under Section 160 of the
Navy Act 1957 on 29 Oct 09 (Annexure A3). A personal hearing by the Judge Advocate General (Navy) was conducted on 28 Mar 2011 at Visakhapatnam. Consequent to the judicial review, Chief of the Naval Staff observing that there is nothing brought on record to warrant any change in the findings of the Court Martial, maintained the findings of the Court Martial and the sentence awarded vide order No.
NL/1452 dated 29 June 2011 (Annexure A4). Subsequently, the applicant put up a petition dated 21 September 2011 to the Government of India under Section 162 of the Navy Act.
The Government of India (Ministry of Defence) having examined the issue, rejected the petition vide order OA 76 of 2013 : 6 :
No.307/US(P)/D(N-II)/2012 dated 13 August 2012
(Annexure A6).
5. The applicant by the instant Original Application has requested that the proceedings of the One Man Inquiry be declared vitiated due to not following statutory provisions and consequently declare that the proceedings of the Court
Martial were vitiated and hence liable to be set aside. The applicant has further sought that the sentence by the Court
Martial be set aside and the respondents be directed to grant all consequential benefits to the applicant. The applicant has also requested for setting aside the orders of the Chief of the Naval Staff and the Government of India and to grant such other reliefs as the Tribunal may deem fit.
6. Heard Mr.V.K.Sathyanathan for the applicant the
Mr.K.M.Jamaludheen for the respondents. OA 76 of 2013 : 7 :
7. The learned counsel for the applicant stated that at about 1500 hours on 20 April 2009 while the applicant was in his office along with three other Officers of the
Department, one of the Officers observed some food particles on the applicant's collar and asked him to remove it. Since the same could not be removed by the applicant, one of the Officers offered to assist him and in the meantime
Lt.Ridhi entered the office. The applicant told the other
Officer that Lt.Ridhi would do it. However one of the officers present intimated that Lt.Ridhi has to meet the Head of the
Department; she was asked to do so and the said Officer assisted the applicant in removing the food particles from his shirt. The counsel further brought out that later that day around mid night Lt.Cdr (retd) Balindar Lal, father of the said
Lt.Ridhi spoke to the applicant telephonically on the subject and threatened to get him court martialled. Three days later the applicant learnt that Lt.Ridhi has put up a complaint against him. Based on the complaint, Headquarters, OA 76 of 2013 : 8 :
Eastern Naval Command, Visakhapatnam ordered a One Man
Inquiry which was conducted from 11 May 2009 to 09 June
2009.
8. As per the learned counsel for the applicant, the inquiry was conducted in violation of Regulation 205 of the
Navy Regulations, Part II (hereinafter referred to as Regs
Navy), Navy Orders (Special) 02/2002 and Navy Order
18/2006. Further, as per the counsel, efforts were made to make a case of Court Martial against the applicant. He further brought out that Lt.Ridhi was a close family friend of the applicant and a regular visitor to his house and the case was made out against him leveling false allegations of sexual harassment. Lt.Ridhi also indicated that there were others officers who had been similarly harassed.
9. The learned counsel for the applicant further reiterated that the One Man Inquiry, which was the basis of OA 76 of 2013 : 9 :
Court Martial, was conducted by violating all legal provisions and by distorting facts. He stated that the Inquiry Officer, instead of taking evidence as deposed by the witnesses, resorted to counselling them to make statements against the applicant. He further contended that Regulation 205 of the
Navy Regulations, Part II had been violated in that the applicant had not been given the right to be present throughout inquiry. He was also not given the right to cross examine witnesses. The applicant was also not given the right to produce the witness for defence. He further contended that Navy Order 18/2006 regarding sexual harassment on women employees at work place had not been complied with in that a multi member Board of Inquiry
(BOI) as mandated by it was deliberately not carried out.
10. The learned counsel for the applicant further brought out that charge No.3 regarding insulting the modesty of Lt.GS Sunanda two years earlier was a OA 76 of 2013 : 10 :
statement made by the Officer after counselling by the
Inquiry Officer. He further contended that the incident stated in Charge No.4 never happened. The learned counsel for the applicant also contended that both the charges were untenable as no evidence was produced to support the charges. Learned counsel further brought out that on charge No.4 there were contradictions between prosecution witnesses 1 and 2.
11. Learned counsel for the respondents brought out that the contention of the applicant that there was violation of Regulation 205 of Regulations for the Navy Part II wherein he was asked to go out from the proceedings of the
One Man Inquiry when the statement of Lt. GS Sunanda
(PW11) was recorded is factually incorrect and misleading.
Learned counsel stated that no proceeding has taken place in the absence of the applicant. He further stated that the applicant was given full opportunity to cross-examine all OA 76 of 2013 : 11 :
witnesses during the One Man Inquiry. The statement of Lt.
GS Sunanda was recorded in the applicant's presence.
Learned counsel also contended that during the Court Martial
Lt. GS Sunanda categorically brought out, that her statements were recorded in the presence of the applicant.
In this regard he referred to Question No.646 of the Court proceedings were relevant.
12. The learned counsel further brought out that One
Man Inquiry (OMI) is nothing but a preliminary inquiry and any statement given during the OMI has no bearing on the conduct of the Court Martial. As per Regulation 207 of the
Regulations for the Navy Part II, proceedings of a Board of
Inquiry are not admissible in evidence. The learned counsel for respondents further stated that there were number of judgments given by the Honourable Apex Court and various
High Courts in this regard wherein it has been held that non- compliance of Regulation 205 of the Regulations for the Navy OA 76 of 2013 : 12 :
Part II does not vitiate a trial. In this regard he pointed out that in the case of Commander Ranvir Kumar Sinha Vs.
Union of India and Others (1991 Crl L.J. 1729), a Division
Bench of the Hon'ble Bombay High Court had considered the effect of violation of Regulation 205. The Honourable Court had observed that the fact that the petitioner was not present at all during the questioning would not be so serious deprivation as to vitiate the proceedings before the Court or
Court's verdict. The learned counsel further brought out that in the case of Union of India and Others Vs. Major A
Hussain (AIR 1998 Supreme Court 577), the Honourable
Apex Court had held that when there is sufficient evidence to sustain conviction, it is unnecessary to examine if pre-trial investigation was adequate or not. The learned counsel further reiterated that in the instant case there was proper compliance of Regulation 205 of the Regulations for Navy
Part II. OA 76 of 2013 : 13 :
13. The learned counsel also brought out that contention of the applicant that a BOI should have been convened instead of a OMI is misleading. The complaint of
Lt. Umesh Ridhi was regarding the misbehaviour of the applicant under the influence of alcohol wherein he had insisted that Lt. Umesh Ridhi cleaned the spilt food on his uniform. Hence, a One Man Inquiry was convened to investigate the matter. Further, during the OMI, the applicant was given full opportunity to be present and cross- examine witnesses. In this regard the applicant had not raised any complaint before any authorities except in the present O.A. The learned counsel further brought out that the contention of the applicant that the incident regarding Lt.
GS Sunanda should not have been investigated in the said
OMI is wrong. The counsel brought out that the OMI had been convened to investigate allegations made by Lt. Umesh
Ridhi regarding misbehaviour of the applicant. However, during the progress of the OMI, Lt. Ridhi had brought out OA 76 of 2013 : 14 :
that a similar incident had happened with Lt. Sunanda.
Therefore the President of the OMI examined Lt. Sunanda and the incident came to light.
14. The learned counsel further submitted that the
Court Martial of the applicant was conducted based on
Circumstantial letter CM/01 dated 17 Aug 2009, forwarded by the Commanding Officer, INS Dega. He further added that irrespective of any prior investigation by OMI or BOI, a de novo investigation under Regulation 149 of Regulations for the Navy Part II was carried out and the trial of the
Court was based on investigation and evidences collected therein.
15. The learned counsel also contended that the charges No. 3 and 4 were thoroughly examined during the
Court Martial and therefore the allegation by the applicant that there was no evidence to prove the charges were OA 76 of 2013 : 15 :
incorrect. The learned counsel further brought out that all the elements of offence regarding insulting of modesty of the victim had been proved beyond reasonable doubt by the prosecution. He further quoted the Apex Court's judgment in the case of Mrs.Rupan Deol Bajaj and another Vs.
K.P.S. Gill and another (AIR 1996 SC 309) and the case of
State of Punjab Vs. Major Singh (AIR 1967 SC 63) in this regard.
16. Heard rival submissions and perused the records.
17. The learned counsel for the applicant has contended that legal provisions were violated by ordering a One Man
Inquiry, based on which the applicant was eventually court martialled. He has also contended that Regulation 205 of
Navy Regulations Part II was violated. He further contended that Navy Order 18/2006 and Navy Order (Special) 02/2002 were violated. OA 76 of 2013 : 16 :
18. Before going into the merits of the case, it will be necessary to refer to relevant Sections of Navy Act and
Regulations on the subject. While the Navy Act does not have any specific section on Board of Inquiry, Regulations for the Navy have been made under Section 184 of the said Act and relevant parts of Section 184 are given below:
“184. Power to make regulations: (1) The
Central Government may, by notification in the
official Gazette, make regulations for the
governance, command, discipline, recruitment,
conditions of service and regulation of the naval
forces and generally for the purpose of carrying into
effect the provisions of this Act.
(2) In particular, and without prejudice to the
generality of the foregoing power, such regulations
may provide for---
......
(d) the convening and constitution of courts-martial
and the appointment of prosecutors at trials by OA 76 of 2013 : 17 :
court-martial;
......
(l) the convening of, the constitution, procedure
and practice of boards of inquiry, the summoning
of witnesses before them and the administration
of oaths by such boards;
......
(q) the procedure relating to the exercise of
powers under section 163.”
19. Based on the above powers conferred by the Navy
Act, the Regulations for Navy have been framed. Chapter
VII of Regulations for Navy, Part II deals with the subject of
Board of Inquiry. The relevant sections of the Chapter are given below:
“197. Convening of Boards of Inquiry :- (1) A board of enquiry may be convened by the Chief of the Naval Staff or any Administrative Authority, or when two or more ships are in company, by the senior Naval officer present, whenever any matter arises upon which he requires to be thoroughly informed. OA 76 of 2013 : 18 :
198. Constitution of Board of Inquiry:- (1) The board may consist of any number of officers including officers of the Army or the Air Force or Civilian Gazetted officers and Master Chief Petty officers, provided the number of such Master Chief Petty Officers shall not exceed one half of the members constituting the Board.
200. Duties of the Board: (1) The Board shall perform such duties as may be directed by the authority convening the Board.
203. Examination of witnesses (1) Before examination, every witness shall be informed in the following terms which shall be recorded in the minutes:-
“you are privileged to refuse to answer any question, the answer to which may tend expose you any penalty or forfeiture. It will be for you to raise the objection and for the Board to decide whether you must answer the question of not”.
(2) No one charged with any offence shall be bound to make any statement or answer any questions.
205. Procedure when character or conduct of a person in Government service:- (1) Save in the case of a prisoner of war who is still absent, OA 76 of 2013 : 19 :
whenever any inquiry affects the character or reputation of a person in Government service or may result in imputation of liability or responsibility for any loss or damage or is made for the contravention of any regulations or general or local orders, full opportunity shall be accorded to such person of being present throughout the inquiry and of making any statement and of giving any evidence he may wish to make or give and of cross-examining any witness whose evidence in his opinion affects him and producing any witness in his defence.
207. Proceedings of board not admissible in evidence:- The proceedings of a board or any confession or answer to a question made or given before a board shall not be admissible in evidence against a person subject to Naval laws relating to the Government of the regular Army or Air Force nor shall any evidence respecting the proceedings of the board be given against any such person except upon the trial of such person for wilfully giving false evidence before the board, provided that nothing in this regulation shall prevent the proceedings from being used for the purpose of cross-examining any witness.
208. Minutes of proceedings:- (1) Subject to the provisions of these regulations, the proceedings of every board shall be recorded and prepared in accordance with any directions contained in the Navy orders in force for the time being and any OA 76 of 2013 : 20 :
instructions given by the convening authority.
(b) submit the same together with its comments thereon to the higher authority -
(i) if required to do so under the orders issued from time to time by the Chief of the Naval Staff
(ii) if the convening authority deems it necessary to do.
Provided that nothing in this regulation shall be construed as debarring the convening authority from taking appropriate action with his jurisdiction.
209. Right of certain persons to copies of proceedings:- The following persons shall be entitled to a copy of the proceedings of a board not including any report made by the board :-
(a) any person subject to Naval law who is tried by a court martial in respect of any matter or thing which has been reported on by a board; or . . .”
20. A reading of the above Regulations indicate that a
Board of Inquiry may be convened whenever the authorities empowered to convene a BOI finds that a matter OA 76 of 2013 : 21 :
on which they need to be thoroughly informed has arisen.
It is therefore the prerogative of the Convening Authority to decide when convene a BOI is to be convened and the number of people who may consist the BOI. The Convening
Authority is also empowered to direct the Board to perform such duties as desired by it. Further, it also emerges that the proceedings of a Board or any statements or answers before the Board shall not be admissible as evidence except during trial where it may be used for purpose of cross examining any witness. Essentially therefore any Board of
Inquiry is only an investigating or fact finding machine.
Based on the minutes of the proceedings of the BOI the
Convening Authority may take actions within its jurisdiction as it may deem fit.
21. Rule 177 of Army Rules 1954, is similar to
Regulation 197 of Navy and Army Rule 180 is similar to
Regulation 205 of Navy. Army Rules 177 and 180 being OA 76 of 2013 : 22 :
relevant are re-produced:
“Rule 177 Courts of Inquiry - (1) A Court of inquiry is an assembly of officers or of junior commissioned officers or of officers and junior commissioned officers, warrant officers or non-commissioned officers, directed to collect evidence, and if so required to report with regard to any matter which may be referred to them.
180: Procedure when character of a person subject to the Act is involved.- Save in the case of a prisoner of war who is still absent whenever any inquiry affects the character or military reputation of a person subject to the Act, full opportunity must be afforded to such person of being present throughout the inquiry and of making any statement, and of giving any evidence he may wish to make or give, and of cross examining any witness whose evidence in his opinion, affects his character or military reputation and producing any witnesses in defence of his character or military reputation. The presiding officer of the court shall take such steps as may be necessary to ensure that any such person so affected and not previously notified receives notice of and fully understands his rights, under this rule.
22. As regards conduct of Court of Inquiry, the
Hon'ble Apex Court in the case of Major General
Inder Jit Kumar vs. Union of India & Ors. , (1997) 9 OA 76 of 2013 : 23 :
SCC 1 held that:
“Under Rule 177 of Army Rules, 1954, a Court of Inquiry can be set up to collect evidence and to report, if so required, with regard to any matter which may be referred to it. The Court of Inquiry is in the nature of a fact-finding inquiry committee. Army Rule 180 provides, inter alia, that whenever any inquiry affects the character of military reputation of a person subject to the Army Act, full opportunity must be afforded to such a person of being present throughout the inquiry and of making any statement, and of giving any evidence he may wish to make or give, and or cross-examining any witness whose evidence, in his opinion, affects his character of military reputation and producing any witnesses in defence of his character of military reputation.”
23. Further, in the same judgment, the Apex Court also examined procedures related to Court of Inquiry and framing of charges. The Apex Court held that :
“The procedure relating to a Court of Inquiry and the framing of charges was examined by this Court in the case of Major GS Sodhi vs. Union of India [1991 (2) SCC 382]. This Court said that the Court of Inquiry and participation in the Court of Inquiry is at a stage prior to OA 76 of 2013 : 24 :
the trial by Court martial. It is the order of the Court Martial which results in deprivation of liberty and not any order directing that a charge be heard or that a summary of evidence be recorded or that a Court martial be convened. Principles of natural justice are not attracted to such a preliminary inquiry. Army Rule 180, however, which is set out earlier gives adequate protection to the person affected even at the stage of the Court of Inquiry.”
24. As brought out by the Apex Court, Court of
Inquiry (or BOI in Navy) is set up to collect evidence and is in the nature of fact finding. The Apex Court held that the principles of natural justice are not attracted at that stage.
The Apex Court also stated that full opportunity must be afforded to a person of making any statement and giving any evidence he may wish to or cross examine any witness whose evidence in his opinion affects his character or military reputation.
25. In the instant case, it is observed that a One Man OA 76 of 2013 : 25 :
Inquiry was ordered by the Headquarters, Eastern Naval
Command (Convening Authority). The OMI was to be guided by Chapter VII of the Regs Navy, Part II and Navy
Order (special) 02/2002 and other relevant orders. As brought out earlier vide Chapter VII of the Regs Navy, Part
II, the Convening Authority has the powers under
Regulations 198 and 200 to decide on the constitution of the
Board and to direct duties to be performed by the Board.
Navy Orders have been defined under Regulation 2 of Reg-
Navy, Part II as follows:
“2. Definitions:- In these Regulations unless the
context otherwise requires
(e) “Navy Orders” means the general orders of the
Chief of the Naval Staff issued in the publication
entitled 'Navy Orders” and includes confidential Navy
Orders.”
26. Navy Orders are therefore orders issued by the
Chief of the Naval Staff to amplify various regulations for the
Navy or such other orders as may be promulgated by the OA 76 of 2013 : 26 :
Chief of the Naval Staff. They do not take precedence over
Navy Act or the Navy Regulations. In the instant case, the
Board had been directed by the Convening Authority to be guided by Chapter VII of Reg-Navy, Part II and Navy Order
(Special) 02/2002. In its preamble, Navy Order (Special)
02/2002 states that it is essentially an amplification of
Chapter VII of Regs Navy for guidance. As brought out earlier, vide Reg. 197, 198 and 200, it is the prerogative of the Convening Authority to decide on the ordering, composition and duties of a BOI. Therefore the applicant cannot raise any claim that he should have been examined under Navy Order 18/2006 or that there should have been a multi member of BOI.
27. As regards the conduct of the inquiry in the instant case, the Board examined 14 witness including the applicant. Lt.Umesh Ridhi (05709-Z), the complainant who alleged misbehaviour by the applicant was examined as OA 76 of 2013 : 27 :
the first witness. Based on the evidence given by witness
No.1, which brought out the alleged misdemeanour of the applicant, he was called in as witness No.2 It is observed that he was cautioned in accordance with Reg.203 of the
Regs Navy and was also given the option to be present during the inquiry in accordance with Reg.205. It is observed that the Board also informed the applicant that he would be given an opportunity to cross examine any witness with permission of the Board (question 26 of BOI
(OMI)).
28. It is apparent from the proceedings, that the applicant was present during rest of the sittings of the Board other than when witness No.13 Mrs.Shilpa Ralhi was called in by the Board as an expert; as a Counsellor on family affairs. As recorded in proceedings by the Board, since she was called in the capacity of an expert and her testimony was not that of a witness, the applicant was not invited to OA 76 of 2013 : 28 :
sit through the inter action. The said witness was also not made privy to the name of the applicant or that of the original complainant. Thereafter, except for a brief while during the examination of witness No.14 Lt.G.S.Sunanda
(05485-R), he was present throughout. As per record of proceedings, during the initial part of the questioning of witness No.14, the Board observed that the witness was hesitant in answering. At that stage the applicant was asked to leave the room and as recorded by the Board, the witness was advised to overcome her embarrassment to recount the incidents as they happened. While the proceedings do not specifically mention when the applicant came back, it is recorded that the applicant was given the option to cross examine the witness No.14, which was declined to by the applicant. If the applicant was not present during the questioning and had felt that he had missed some points or had formed the view that the witness had been coaxed to make statements, he had the option to bring these aspects OA 76 of 2013 : 29 :
out, when he was given opportunity to question the witness. He could even have brought this on record at the conclusion of BOI, when given the chance to do so ( Q
266). He declined to do so.
29. It is observed that the applicant cross examined 03 witnesses and declined to question 03 witnesses. In one case , instead of cross examining the witness, he corrected the conversation recounted by witness No.6. Further, the applicant even intervened during questioning of witnesses by the Board on two occasions, during Q 88 and Q 152. Therefore the applicant cannot have any objections in this regard. The learned counsel for the applicant contended that despite repeated requests from the applicant, the Inquiry Officer did not call or send questionnaire to Commander GP Pandey who was posted at INS Rajali, Arakonam (away from the place where the
BOI was being conducted). It is observed from the OA 76 of 2013 : 30 :
proceedings of the Board that while the name of
Commander Pandey has been mentioned in questions/answers on a few occasions there is no record of the applicant having requested for his presence or to have a questionnaire sent to him. Even at the concluding stage of the BOI (question 266) the applicant has not raised any request/objection in this regard. Therefore we are of the view that there has been no prejudice or any violation of legal provisions at the stage of the BOI; hence we do not agree with the learned counsel for the applicant that the BOI was vitiated in any way.
30. Notwithstanding the above Reg.207 of Regs Navy, makes it clear that proceedings of a Board are not admissible in evidence except for the purpose of cross examining. As also held by the Apex Court, the principles of natural justice are not attracted at the stage of the BOI but full opportunity must be afforded to a person whose OA 76 of 2013 : 31 :
character or reputation is at stake to make any statement or to cross examine any witnesses. As brought out, in the instant case, the applicant was permitted to do so.
Therefore the applicant cannot raise any objections in this regard at this stage.
31. Chapter V of the Regulations for Navy, Part II pertains to conduct of a Court Martial. The relevant
Regulations in this regard are given below:
148. When application for court martial be made:- The Commanding Officer shall make an application for the trial of an offender by court martial in the following cases, namely:-
......
(c)When any offence has been committed which he considers ought to be tried by court martial...... (e) When so directed by his superior authority.
149. Procedure for investigation and taking down summary of evidence:- (1) Before a OA 76 of 2013 : 32 :
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.
153. Application for trial – Circumstantial letter:- (1) An application for the trial by court martial of any person shall be made as follows: There shall be forwarded to the convening authority through the usual channels a letter, here in after called the circumstantial letter, reporting the circumstances on which the charge or charges are founded in the order of their occurrence, and in sufficient detail to show the real nature and extent of the offence; when words constitute the substance of the offence, they are to be fully and exactly set out. The letter shall not refer in any way to the previous character, conduct or conviction of the accused, or contain any reference to facts prejudicial to him other than such as bear directly on the charges.
154. Documents to accompany circumstantial letter:- There shall also be forwarded at the same time as the circumstantial letter a further letter enclosing:- (a) the charge sheet drawn in accordance with these regulations; (b) a list of witnesses for the prosecution; OA 76 of 2013 : 33 :
(c) a summary of evidence in support of the charges; (d) a list of the exhibits which the prosecutor proposes to put in evidence.
156. Examination of charges and evidence:- (1)When the convening authority has received the circumstantial letter and other documents here in before referred to, he shall before he orders a court martial to assemble, satisfy himself that the charges are correct and sufficient and that they are properly framed and carefully drawn up.
(2) The convening authority shall not convene a court martial unless he has satisfied himself that the evidence if uncontradicted or unexplained will probably suffice to ensure a conviction.”
32. The above Regulations make it clear that a BOI or its findings by itself is not sufficient to convene a Court
Martial. The Commanding Officer in whose view a person is to be tried by Court Martial shall investigate the case de novo or appoint a suitable person to do so. It is only after a thorough investigation of the case and summary of OA 76 of 2013 : 34 :
evidence is recorded that he shall apply for a trial of the
Court Martial and forward circumstantial letter to the
Convening Authority. Therefore we do not agree with the contentions of the learned counsel for the applicant that the proceedings of the Court Martial were in any way vitiated as it followed the OMI (BOI).
33. As regards the Court Martial, it is observed that warrant ordering the Court Martial was issued by Flag
Officer Commanding in Chief, Eastern Naval Command
(Convening Authority) in accordance with Reg 159 of Regs
Navy, Part II based on the application for trial by Court
Martial of the applicant, forwarded by Commanding Officer,
Dega. The Court was convened on 25 Sep 2009. The applicant did not have any objection to any of the members of the court or to the constitution of the court. On charges being read, the applicant (as accused) pleaded not guilty to all the four charges. Eleven witnesses were produced before OA 76 of 2013 : 35 :
the court on behalf of the prosecution. Defence was given the opportunity to cross examine all the witnesses and did so.
34. The learned counsel for the applicant has contended that 05 crucial witnesses who were examined by the OMI were dropped by the prosecution. It is observed that on completion of examination of prosecution witnesses the applicant was given the opportunity to produce defence witnesses. The applicant prior to the commencement of the
Court Martial had forwarded to the Trial Judge Advocate,
Form No.17 of Regs Navy, Part II under Reg 178(2), the name of Cdr GP Pandey of INS Rajali as a witness for defence and had also indicated that names of other local witnesses would be disclosed in due course (Annexure R1).
However the defence did not produce any witness during the Court Martial and it was so stated by Defence counsel.
In case the applicant had felt at any stage, that the OA 76 of 2013 : 36 :
prosecution had deliberately not produced any witnesses, he could have asked for them to be brought as defence witnesses. As the applicant did not to do so at that stage, he cannot have any objection in this regard now.
35. The learned counsel for the applicant has stated that the investigating officer had resorted to dictating statements to the witnesses and that during the trial of the
Court Martial, Prosecutor had replied to some questions on behalf of witnesses and therefore prevented the truth from emerging. He has quoted questions Nos.154, 208, 374,
375, 416 and 417 of the Court Martial proceedings in this regard. It is observed from the proceedings of the Board that question 208 was deliberated and clarified by TJA to the satisfaction of Defence and 374 was withdrawn by the defence counsel. As regards the other questions based on the deliberations, the Trial Judge Advocate overruled the
Prosecutor and the defence counsel was permitted to OA 76 of 2013 : 37 :
question the witness. Therefore no objection can be raised by the applicant in this regard.
36. It is observed that while, the applicant chose not to give evidence under oath on his own behalf under sub- section (6) of Section 111 of Navy Act, he made a detailed statement to the Court under sub-section (7) of the said
Act. The subsequent procedures of summing up by the prosecution, the defence counsel and the Trial Judge
Advocate were all in accordance with legal provisions.
37. The Court found that the applicant was not guilty of charges 1 and 2, but found him guilty of charges 3 and 4.
The Prosecutor brought out that there were no prior log book entries against the applicant nor were there any letters of displeasure which had been issued to the applicant. The defence produced one character witness and two certificates of commendation, one by the Chief of the OA 76 of 2013 : 38 :
Naval Staff and the other by the Flag Officer, Commanding in Chief, Southern Naval Command which had been awarded to the applicant. The defence counsel also made a mitigation statement. Subsequently, the court pronounced the sentence.
38. Based on the above, we do not find any procedural or any other lapses which calls for setting aside of the Court
Martial proceedings.
39. We now proceed to examine the two charges on which the applicant was found guilty by the Court Martial.
The learned counsel for the applicant has contended that charges 3 and 4 on which the applicant was found guilty were not supported by evidence. The learned counsel brought out that Charge No.3 was based on an incident which was more than two years old and the statement given by Lt GS Sunanda was after counselling by the Inquiry OA 76 of 2013 : 39 :
Officer. Further, there was no evidence produced by the prosecution to support this charge either through witnesses or by circumstantial evidence.
40. Charge No.3 which pertains to intending to intention the modesty of Lieutenant GS Sunanda (05485-R) wherein the applicant had passed remarks such as “tujhe pata nahin mujhe kya karne ka man hai”, “galti meri nahin hai, aaj tu itni pyari lag rahi hai, tujhe uthake le jaunga”, the proceedings of the Court Martial indicate that Lt Commander GS Sunanda (05485-R) as PW 11 brought this issue out. The following questions being relevant are reproduced below:
“Q. 602. When was Captain T Radhakrishna dined in? Ans. On 25 Oct 07 Q. 603.What happened on that evening? Ans. As I just returned from ASR Course, I OA 76 of 2013 : 40 :
have given my scooter for servicing so I requested Cdt. Jaidwal for a lift to the party. Cdr. Jaidwal, Mrs. Jaidwal. Lt. Cdr Nara and myself travelled in the car. Initially in the party, Cdr Jaidwal kept following me to wherever I went and I felt uncomfortable. He gave the statement that if I leave you alone today, somebody else will take you away. Then he told me in Hindi Tuje patha ni kya karne ka man kar raha hai I asked Kya matlab hi Sir - he said, kasoor mera nahi tu itni pyari lag rahi hai mai tumhi utah ke le jaovonga which I felt very annoyed and embarassed andI told him sir Aap had se jada bol rahe hai,Main Madam ko bataungi. Then he said Tu mujhe fasa dogi and he left.
Q.604.What did you do thereafter?
Ans. I went and told the same thing to Lt Cdr Rama. He advised me to avoid Cdr Jaidwal and go back to the mess with somebody else. So I arranged my conveyance and left with Lt Cdr Cherian.
Q.605.What happened subsequently?
Ans. The next morning I told Cdr Jaidwal that last night he misbehaved with me in the OA 76 of 2013 : 41 :
party and I will not take this kind of behaviour in the future. If he repeats, I will have to take up this matter officially.
Q.606. What was your seniority at that time?
Ans. I was Lieutenant with four years of service.”
41. The incident was again highlighted during cross examination by the defence counsel. The following questions and answers being relevant are reproduced below:
“Q.621. Did Lt Ridhi discussed with you some thing regarding misbehaviour of Cdr Jaidwal with her?
Ans. Lt Ridhi told me once that she was uncomfortable with Cdr Jaidwal's behaviour.
Q.622. When did she tell you?
Ans. I don't exactly remember the date but it was after this incident had happened.
Q. 623. What do you mean by after this incident? OA 76 of 2013 : 42 :
Ans. The incident which happened with me with Cdr Jaidwal in the party.
Q. 624. Lt Cdr Sunanda I am showing question No.256 during OMI where specific question was asked to you by OMI. You have replied differently. Please read your statement and reconcile? In response to specific question during OMI (Q.No.256) did Lt Ridhi discuss any of her experiences with Cdr Jaidwal and your reply was she never discussed or complained before. But after this enquiry started she told every thing what happened with her. Please reconcile.
Ans. Lt Ridhi did not share any of her experiences or incident with me but she told once that she was uncomfortable with Cdr Jaidwal behaviour.
Q.625. You have just deposed that Lt Ridhi told you that she is uncomfortable with Cdr Jaidwal after the incident i.e. on 25 Oct 07. In OMI you have said that she discussed after this enquiry started i.e. somewhere in May 2009. Please reconcile?
Ans. As I said before, she did not tell any of her experiences, she just told that she was uncomfortable with Cdr Jaidwal but after this incident with Lt Ridhi she told me the incident.
Q.626. During your questioning in OMI, was Cdr Jaidwal sent out for some time? OA 76 of 2013 : 43 :
Ans. Once.
Q.627. Was Stenographer also sent out?
Ans. No.
Q.628. Do you have any problem with Cdr Jaidwal before or after the incident of 25 Oct 07?
Ans. Negative.
Q.646. The statement what you made that I am reading your statement “tujhe pata nahin mujhe kya karne ka man hai”, then you asked what do you mean by it, then he said “galti meri nahin hai, aaj tu itni pyari lag rahi hai, tujhe uthake le jaunga” and you saidthat “aap hadse jaada bol rahe hai, mein madam ko bathaungi. Then he asked “ Tu mujhe phasan dogi” These statements were made during OMI before Commander Shakti C Jaidwal was sent out or after he was sent out?
Ans. This statement was made in his presence during the OMI after he was sent out and called back.
Q.650. When Commander Shakti C Jaidwal made this remark was it made jokingly or otherwise?
Ans. I did not know his intentions, but the remarks made me very uncomfortable. Knowing the fact that he was in inebriated state,I felt all the more uncomfortable. OA 76 of 2013 : 44 :
Q.655. Did you inform about this party incident to any other ATC Officers?
Ans. After speaking to Commander Shakti C Jaidwal I went to the ATCOs room where some officers were sitting and they asked me why I was upset, so I told them what had happened in the party excluding the exact statements to all of them.
Q.656. Can you name those officers?
Ans.Lt Cdr Rama, Lt Cdr Sharma and Lt Koshy.
Q.658. Why you did not tell this matter of the party to any superior officer if you felt uncomfortable?
Ans. I never faced this kind ofbehaviour from Commander Shakti C Jaidwal before this incident. So, I felt that he misbehaved with me under the influence of drinks so I should give him strong warning for the first time itself. Had he repeated any such kind of behaviour again I would have reported to the higher authority and the same thing was conveyed to him.
Q.662. Lt Cdr Sunanda, may I suggest you that you never wanted to discuss this issue because, according to you, the matter was closed, however, you were made to raise this issue again only in order to support Lt Ridhi's case. Am I right? OA 76 of 2013 : 45 :
Ans. For whatever reason I had to bring out this issue, it was truth and it could not be hidden for long.
Q.663. Lt Cdr Sunanda, may I suggest you that the remark was not exactly what you have deposed today or during the OMI. It was only while you were being introduced with HODs along with Commander Shakti C Jaidwal and one of them complimented you, at the same time, spontaneously Commander Shakti C Jaidwal said, sir, she is my officer of ATC and I am proud of her and today I am her chauffeur which you must have felt bad but after counseling during OMI, you were told to make this statement what you have made today. Am I right?
Ans. Negative, I was not asked any statement by the OMI, but I was counseled by them not to be hesitant.
Q.665. During the OMI you said in response to Q.No.252 that you have given a strict warning to Commander Shakti C Jaidwal not to do this type of things, to which Commander Shakti C Jaidwal had said that I am deeply hurt that my friendliness has been taken in another sense wheres in Statement of Evidence last 2 lines on page 1, after few days Commander Shakti C Jaidwal has called and addressed all the ATC officers and said that his friendliness is taken in wrong sense. Please reconcile both the statements.
Ans. Both the statements are true because for a few OA 76 of 2013 : 46 :
days Commander Shakti C Jaidwal kept repeating that he was deeply hurt as his friendliness was taken in a wrong sense.
Q 666. Lt Cdr Sunanda, May I suggest you that whatever you have deposed today in this court is not fully true. It is only partial true. You have made some of your statements which is only to support the case of Lt Ridhi and that is not true Am I right? Ans. Negative. “
42. The aspect of what constitutes insult to the modesty of a woman has been examined by the Hon'ble
Apex Court while ruling in the case of Rupan Deol Bajaj
(Mrs) & Anr vs. Kanwar Pal Singh & Anr., (1995) 6
SCC 194. Paras 13 to 15 being relevant are reproduced below:
“13. Coming now to the moot point as to whether the above allegations constitute any or all of the offences for which the case was registered, we first turn to Sections 354 and 509 IPC, both of which relate to modesty of woman. These Sections read as under: OA 76 of 2013 : 47 :
"354. Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
"509. Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both."
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 (Third Edition) 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 `modest' in relation to woman is defined in the above dictionary as "decorous in manner and conduct; not forward or lewd; shamefast". Webster's Third New International Dictionary of the English language defines modesty as "freedom from coarseness, indelicacy or OA 76 of 2013 : 48 :
indecency; a regard for propriety in dress, speech or conduct". In the Oxford English Dictionary (1933 Ed) 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".
15. In State of Punjab vs. Major Singh (AIR 1967 SC 63) a question arose whether a female child of seven and a half months could be said to be possessed of `modesty' which could be outraged. In answering the above question Mudholkar J., who along with Bachawat J. spoke for the majority, held that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC. Needless to say, the `common notions of mankind' referred to by the learned Judge have to be gauged by contemporary societal standards. The other learned Judge (Bachawat J.) observed that the essence of a woman's modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex. From the above dictionary meaning of `modesty' and the interpretation given to that word by this Court in Major Singh's case (supra) it appears to us that OA 76 of 2013 : 49 :
the ultimate test for ascertaining whether modesty has been outraged is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman. ...”
43. As brought out by the Apex Court, the ultimate test for ascertaining whether modesty has been outraged is by examining if the action of the offender could be perceived as one which is capable of shocking the sense of decency of a woman. In the instant case, the statements such as “tujhe pata nahin mujhe kya karne ka man hai”, “galti meri nahin hai, aaj tu itni pyari lag rahi hai, tujhe uthake le jaunga” made by the applicant as confirmed in questions 603 and 646 by PW 11 (Lt Cdr
GS Sunanda (05485R)) can be considered to be those which could insult the modesty of a woman. This has been further confirmed by PW 11 in question 650 wherein she stated that the remarks made her very uncomfortable. It is pertinent to bring out that PW 11, stuck to her statements OA 76 of 2013 : 50 :
even during cross examination to Defence counsel. She also brought out that she was not asked to make any statement by the Board during OMI but was only counselled not to be hesitant. She further clarified that the applicant was present when she made her statements to the OMI and even when applicant was sent out for a while the Stenographer was present (Q – 626, 627, 646, 663, 666). She also brought out that, she spoke of the incident to three officers of her unit viz., Lt.Cdr Rama, Lt.Cdr Sharma and Lt.Koshy, without specifying the exact statements (Q 655, 656).
44. It is observed from the proceedings that none of the above officers were questioned by the defence on this after examination of PW 11. However Cdr E Ramakrishna
(41880F), PW 7, during his earlier examination had brought out that Lt Cdr GS Sunanda (PW 11) had brought to his notice mishehaviour by the applicant (Q 485) at the function itself. During cross examination by the defence, he OA 76 of 2013 : 51 :
had clarified that Lt Cdr GS Sunanda did not specify the type of misbehaviour and he did not delve into the matter any further (Q499, 501). Lt Cdr Sharma (PW 2) during his examination which was prior to examination of PW 11, stated that he had not attended the function nor had he been informed about the incident by Lt Cdr GS Sunanda (Q
223 to 226). Lt. Koshy was not produced as a witness during the Court Martial. If the applicant had felt that statements of PW 11 (Lt Cdr Sunanda) were not factual, the Defence could have re-examined Lt Cdr Sharma (PW 2) and Cdr
Ramakrishna (PW 7) and if need be, sought Lt Koshy as a witness. But they chose not to do so.
45. The learned counsel for the applicant tried to contend that the delay in reporting of the incident was so material as to discard the veracity of the story of the incident. In our view, Lt Cdr GS Sunanda (PW 11) has explained the delay in that since she had never faced this OA 76 of 2013 : 52 :
kind of behaviour from the applicant, she wanted to give him benefit of doubt for his behaviour as he was possibly under the influence of alcohol. So she had decided to merely caution him against such acts and raise the same with higher authorities in case he repeated such behaviour
(Q 605, 658). She formally brought up the incident only when questioned by a BOI (OMI). It is understandable that in a male dominated environment such as the Armed Forces, a woman would have been shy of giving details of such remarks for fear of further harassment or ridicule.
46. As regards delay in bringing out the episode, the
Hon'ble Apex Court in a number of cases has held that delay in case of a sexual assault cannot be equated with a case involving other offences. In the matter of State of
Himachal Pradesh vs. Prem Singh, (2009) 1 SCC 420,
in the matter of KPS Gill vs. State & another, (2005)
6 SCC 161 and in the matter of Vidhyadharan vs. State OA 76 of 2013 : 53 :
of Kerala, (2004) 1 SCC 215, the Apex Court has consistently held that delay in lodging FIR or complaints in cases of sexual harassment or sexual assault is quite natural in a tradition-bound society to avoid embarrassment which is inevitable when reputation of woman is under concern.
In the instant case, Lt Cdr Sunanda (05485-R) has supported the prosecution version in the witness box. Her testimony remained intact despite cross examination by the defence and there was no reason for her to make any false charges against the applicant if he had not outraged her modesty in the manner stated by her. As regards lack of witnesses, the Hon'ble Apex Court in the case of Aman
Kumar vs. State of Haryana, (2004) 4 SCC 379, (no doubt a case of rape), held that victim is not an accomplice, so her testimony was sufficient to record conviction without corroboration. In this case, she had reported the incident albeit without details to one of her seniors in the unit, during the function itself where it happened and this has been OA 76 of 2013 : 54 :
corroborated by him during the Court Martial. We do not therefore consider it proper to give any significance to the delay in bringing out the incident by her or about her not having made a formal complaint soon after the incident occurred. Therefore the delay or lack of witnesses cannot be taken as a ground to discard the case set up against the applicant. In our view, therefore the Court Martial was perfectly justified in placing reliance on the statement of PW
11 for holding the applicant guilty of Charge No.3.
47. The learned counsel for the applicant has contended that charge No.4 was an incident which has not happened as none of the eye witnesses had deposed during
Court Martial that the applicant insisted Lt.Umesh Ridhi to remove spilt food from his collar. It is observed from the proceedings of the Court Martial that prosecution witness
No.1 (Lt Umesh Ridhi (05709Z) brought this issue out. The relevant extract is placed below: OA 76 of 2013 : 55 :
“Q.8 What happened between Jul 2007 and Apr 2009 with regard to your interaction with the accused? Ans. ….On completion of his lunch, he asked Sub Lieutenant S Kumar to close his lunch box but Lieutenant Commander Sharma did it for him, Lieutenant Commander Sharma then wrapped lunch box in a news paper and also handed over the news paper to Commander Shakti C Jaidwal to clean his hands. Lieutenant Commander Sharma then pointed out to Commander Shakti C Jaidwal that he had spilled food on his shirt. Commander Shakti C Jaidwal tried to clean his shirt but was unable to do so. He stood up from SATCOs Chair, looked at me and with a hand gesture of calling (witness made the gesture) said Ridhi do it for me. Lieutenant Commander Sharma interrupted by saying that Sir, I will do it for you, for which Commander Shakti C Jaidwal replied, let Ridhi do it, “Ladkiya ye kaam achaa karti hai.” He then started approaching towards me which led to the door blocking and I could not escape from SATCO's office. I waited for Commander Shakti C Jaidwal to settle down at one place and thereafter ran out of SATCO's office.”
48. The issue was again brought out by witness No.1 during cross examination by the defence counsel. Question OA 76 of 2013 : 56 :
Nos.137 to 141 being relevant are reproduced below:
“Q.137. After Lt Cdr Sharma pointed out about the spilled food on Cdr Jaidwal's shirt, as per your deposition in this Court, Cdr Jaidwal called you by name and made gesture and said “Ridhi do it for me”. Is it correct?
Ans. It was “Ridhi clean it for me”.
Q.138. Thereafter Lt Cdr Sharma intervened and said “I will do it for you sir”. Is it correct? Ans. Yes.
Q 139. Then Cdr Jaidwal said “Let Ridhi do it, yea kaam ladkiyan bahut achha karti hain”. Are you sure that this remark is not translated? Ans. Yes.
Q 140. You also deposed that he started approaching you which led to the door blockage and you could to escape? Am I right? Ans. Yes.
Q141. You waited for Cdr Jaidwal to settle down and thereafter you ran out of the SATCO's office. My question is, once there was a door blockage, OA 76 of 2013 : 57 :
how could you run out of SATCO's office? You should have pushed Cdr Jaidwal. Did you anything like that?
Ans. I waited for Cdr Jaidwal to settle down at one place. Thereafter I ran out of SATCO's office.”
49. The issue was also brought out by prosecution witness No.2, Lieutenant Commander Ramesh Sharma
(84627-H). Question No.177 being relevant is reproduced below:
“Q. 177. Please narrate the incidents that took place
on 20 Apr 2009.
Ans...... I went to ATC room to have water from
fridge, toilet and entered SATCO office along with Lt
Sanjeev. Commander Shakti C Jaidwal told me to
call Lt Cdr KD Bhatt from ATC tower, which I did. By
the time Lt Ridhi also came in SATCO office where
jovial atmosphere and joking atmosphere was there
inside the office. During discussion I observed some OA 76 of 2013 : 58 :
food particles on his collar. I told him, sir, there is a
food particle on your collar. He took out handkerchief
and tried to clean it. But I could make out he is not
able to do so. I said, sir can I do it? At this,
Commander Shakti C Jaidwal told no, Lt Ridhi will do
it. Ladies are better in maintaining cleanliness. Lt
Ridhi, at this whispered 'ridiculous'. I immediately
sensed that Lt Ridhi had taken it in a serious sense. I
told Lt Ridhi to go out. I said even a male can do
better. After this, Lt Ridhi stood up from the chair but
did not move. I told Lt Ridhi go out, Cdr (Air) is
calling. Immediately Commander Shakti C Jaidwal
got up from his chair and started coming to other side
of the table. By the time Lt Ridhi whose chair was
very next to the door, opened the door and moved
out from the SATCO office. Then Commander Shakti
C Jaidwal told me “chal thu hi karde” and with
Commander Shakti C Jaidwal handkerchief I just
touched the affected part and handed over his
kerchief back. Thereafter, we one by one left the
SATCO office. I went to Safety Equipment Section as OA 76 of 2013 : 59 :
I am doing SESO duty also. “
50. During cross examination he confirmed the incident. Question 219 being relevant is reproduced below:
“Q 219. Lt Cdr Sharma, please recollect after you observed food spilled out on Commander Shakti C Jaidwal's shirt and you offered to clean the spot because you observed he, himself is unable to clean then he said Lt Ridhi will do it and ladies are better in maintaining cleanliness. Is it correct? Ans. Yes.”
51. PW 3 Lt Sanjeev Kumar, No.06102-T, also brought out the incident in his statement before the Court Martial.
Question 273 being relevant is reproduced below:
“Q 273. What had happened on 20 Apr 09.
Ans. . . . . Thereafter myself, Lt Cdr R Sharma, Lt Cdr Prakash went to SATCO's office with Cdr Jaidwal. Lt Ridhi also came to SATCO's office. She sat there nearly 5 to 7 minutes. Lt Cdr OA 76 of 2013 : 60 :
Sharma was passing light jokes and thereafter Lt Cdr Prakash took permission and went. Thereafter Cdr Jaidwal was about to start his lunch, we have asked his permission for myself and Lt Cdr R Sharma came to ACRR to check the lunch is being served or not. At that time lunch was not ready so after having some snacks, passing 5 to 10 minutes there. We again came back to SATCO office. Lt.Ridhi was there in SATCO's office, Lt Cdr KD Bhatt was also called. When we entered the room Cdr Jaidwal was about to finish his lunch. Myself and Lt Cdr Sharma sat in SATCO's office. Thereafter I was looking at newspaper and Lt Cdr Sharma was again in light mood as usual and SATCO sir has finished the lunch. At that time he is telling something I felt, by that time I reacted to see what has been told me by Lt Cdr Sharma. Sir was saying Should I put tiffin box in the poly bag but he himself put his tiffin box in the drawer and Lt Cdr Sharma pointed out that Cdr Jaidwal got dirt near collar. Cdr Jaidwal tried cleaning his shirt but he could not. Lt Cdr Sharma said that he will do it. But Cdr Jaidwal told Lt Ridhi will do it, because ladies are better doing this. Cdr Sharma told even gents can do better. Then he told she will do it. After saying that he raised from chair and started moving OA 76 of 2013 : 61 :
towards Lt Ridhi. She was extremely left of the table. In the meantime Lt Ridhi and Lt Cdr Sharma also raised from the chair. Thereafter I also raised from chair. In the meantime Lt Cdr Sharma told Lt Ridhi that Cdr AIR is asking her and indicated her to go and she went out of the room. Thereafter I also came out of the room and I went to ATC room. There I saw Lt Ridhi in sad mood and I did not ask anything. I took my bag and came back.”
52. During cross examination the witness again brought out the subject. The following questions being relevant are reproduced below:
“Q304. When Commander Shakti C Jaidwal got up from his chair, did he stopped somewhere and give passage to Lt Ridhi to go out?
Ans. When Commander Shakti C Jaidwal raised from his chair he continued walking till that position in front of Lt Ridhi. There was a passage when Lt Ridhi pushed her chair back she took slightly left turn because the way was partially blocked. OA 76 of 2013 : 62 :
Q 305. Did Commander Shakti C Jaidwal say anything before getting up from the chair? Ans. Before got up from the chair he told the same line Lt Ridhi will do it.
The witness further elaborated that when Commander Shakti C Jaidwal told that ladies are better doing this job regarding cleaning Lt Cdr Sharma told even gents can do better. After that he stood up from his chair, at the same time he said that she will do it and started walking.
Q 306. Lt Sanjeev Kumar, you refresh your memory, I am making a suggestion, when Commander Shakti C Jaidwal got up from his chair, he said “chal thu karde” in response to Lt Cdr Sharma's offer to clean it and then he walked out of his chair. Am I right?
Ans. Actually, when Lt Ridhi started moving out of the room at that time he told Lt Cdr Sharma “chal thu karde”.
53. Prosecution witness No.9 (Lt Cdr KD Bhatt (84630
R) has also corroborated the incident. The relevant questions OA 76 of 2013 : 63 :
are reproduced below:
“Q554. Do you remember about Lt Cdr Sharma pointing out food spillage on Commander Shakti C Jaidwal's collar?
Ans. He, Lt Cdr Sharma observed some food stuff on Commander Shakti C Jaidwal's shirt and told to clean it.
Q 555. What happened thereafter?
Ans. After that Commander Shakti C Jaidwal SATCO told Lt Cdr Sharma to clean it and said same time ladies are good in cleaning so Lt Ridhi will do.
Q 557. Did Lt Ridhi say anything after
Commander Shakti C Jaidwal said 'Ridhi will
do'?
Ans. I have not heard.
Q558. Did you hear anything Lt Cdr Sharma
saying after this?
Ans. I only heard or registered that :Lt Cdr
Sharma saying to Lt Ridhi 'Ridhi you go out'. OA 76 of 2013 : 64 :
559. What Lt Ridhi did thereafter?
Ans. She stood up from the chair and went
out.”
54. The question whether the applicant had asked
Lt.Umesh Ridhi (PW 1) to remove the food from his collar has been clearly established from the testimonies of PW1, 2,
3 and 9. Observing that the demand of the applicant to
PW1 might lead to a potentially explosive/embarassing situation, PW 2 saved the situation by asking PW1 to leave the room. Therefore, while PW1 did not physically clean the uniform of the applicant, as demanded by him, it has been established that he did ask her to do so. Hence, in our view, the Court Martial was justified in holding the applicant guilty of charge No.4.
55. In view of the above, the conclusions arrived at
by the Court Martial that charges 3 and 4 were proved
beyond all reasonable doubts against the applicant seems to OA 76 of 2013 : 65 :
be correct and requires no interference. As regards the quantum of punishment, the applicant has been held guilty of charge No.3 for an offence under Section 509 of the IPC read with Section 77(2) of Navy Act 1957. As regards charge No.4, he has been held guilty of an offence punishable under Section 54(2) of Navy Act, 1957. The aforesaid sections being relevant are reproduced below:
“S.509 IPC: Word, gesture or act intended to insult the modesty of a woman:--Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.“
(Note:- Term of imprisonment was substituted by Act 13 of 2013, sec.10, for “shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both” w.e.f 03 Feb 13. Prior to that, ie at the time of Apex Court judgment in Rupan Deol Bajaj' case OA 76 of 2013 : 66 :
(supra) – (quoted at para 42) and when the Court Martial was held, it was one year)
“S.54(2) Navy Act: Every officer subject to naval law who is guilty of any scandalous or fraudulent conduct or of any conduct unbecoming the character of an officer shall be punished with imprisonment for a term which may extend to two years or such other punishment as is hereinafter mentioned.”
S.77(2) Navy Act: Every person subject to naval law who commits any other civil offence shall be punished either with the punishment assigned for the offence or with imprisonment for a term which may extent to three years or such other punishment as is hereinafter mentioned.”
56. The punishments prescribed for the offences in case of charge No.3 is Simple Imprisonment for a term upto one year and fine (at the time of Court Martial). In case of charge No.4, it could be imprisonment for a term which may extend upto 02 years or such other punishments mentioned in subsequent sections of the Navy Act. OA 76 of 2013 : 67 :
57. In our view, it was not expected of the applicant, an Officer of the rank of Commander with 32 years of service, to misbehave in the manner that he had with young officers, whom he was expected to train and groom for higher responsibilities in service. In such circumstances considering the actual quantum of punishment that could have been awarded under the relevant sections of IPC/Navy Act, the Court has awarded the officer forfeiture of seniority for three months in the rank of Commander, severe reprimand and to suffer all consequential penalties involved. The Court has been very reasonable in the sentence awarded to the applicant possibly considering his impeccable record till the incident. In our view, no judicial interference is therefore called for.
58. Based on the above, we do not find any need to set aside the orders of the Chief of the Naval Staff dated 29
Jun 2011 (Annexure A4) or that of the Government of India OA 76 of 2013 : 68 :
dated 13 Aug 2012 (Annexure A6).
59. For reasons stated hereinabove, the Original
Application is devoid of merit and is accordingly dismissed.
60. There will be no order as to costs.
61. Inform the parties.
Sd/- Sd/- VICE ADMIRAL M.P.MURALIDHARAN, JUSTICE SHRIKANT TRIPATHI, MEMBER (A) MEMBER (J)
an. (true copy)
Prl.Pvt.Secretary