ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI 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 ADMIRAL 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, BANGALORE – 560 043. BY ADV. M/S. M.A. FIROZ & C.S. ULLAS Versus RESPONDENTS: 1. UNION OF INDIA, 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 Kerala at Ernakulam 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.