O.A. No. 76 of 2013. Case: CDR SC Jaidwal Vs The Union of India. Armed Forces Tribunal
| Case Number | O.A. No. 76 of 2013 |
| Counsel | For Appellant: V.K. Sathyanathan, Adv. And For Respondents: K.M. Jamaludheen, Senior Panel Counsel |
| Judges | Shrikant Tripathi, J. (Member (J)) and Vice Admiral M.P. Muralidharan, Member (A) |
| Issue | Indian Penal Code 1860, (IPC) - Section 354; Indian Penal Code 1860, (IPC) - Section 509; Navy Act, 1957 - Sections 10, 111, 160, 162, 163, 184, 54(2), 77(2) |
| Judgement Date | June 24, 2014 |
| Court | Armed Forces Tribunal |
Order:
Vice Admiral M.P. Muralidharan, Member (A), (Regional Bench, Kochi)
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".
(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 G.S. Sunanda (05485-R) passed remarks to the said Lieutenant G.S. 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 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 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.
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 martialed. Three days later the applicant learnt that Lt. Ridhi has put up a complaint against him. Based on the complaint, Headquarters, 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 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. G.S. Sunanda two years earlier was a 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. G.S. Sunanda (PW 11) 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 witnesses during the One Man Inquiry. The statement of Lt. G.S. Sunanda was recorded in the applicant's presence. Learned counsel also contended that during the Court Martial Lt. G.S. 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 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.
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...
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