UNION OF INDIA Vs. SHIVENDRA BIKARAM SINGH

JUDGEMENT

(1.) In this appeal by special leave the Union of India has impugned the judgment and order of the High Court of Bombay at Goa dated May 2, 2001 in Criminal Writ Petition No. 3 of 2001 whereby the High Court allowing the writ petition filed under Art. 226 of the Constitution of India quashed the order of the Court Martial dated 4th September, 2000 which found the respondent guilty of the offences under Ss. 497, 452 and 325 of the Indian Penal Code read with S. 77(2) of the Navy Act, 1957 (hereinafter referred to as the Act) and the order of the Chief of the Naval Staff dated 8th January, 2001 passed under S. 162 of the Act as also the order of the Chief of the Naval Staff dated January 31, 2001 passed under S. 163 of the Act. After going through the evidence on record it also recorded a finding that there was no legal evidence to support the order of conviction and, therefore, gave to the respondent the benefit of doubt.

(2.) The facts of the case so far as they are relevant for the disposal of this appeal are-:- The respondent was an officer of the Indian Navy and at the relevant time was serving as a Lieutenant posted in Goa. He was tried by a Court Martial for offences under Ss. 497, 506, 452 and 325 of the Indian Penal Code read with S. 77(2) of the Act. The Court Martial found the respondent guilty of the offences under Ss. 497, 452 and 325 of the Indian Penal Code read with S. 77(2) of the Act and ordered the respondent to be kept in rigorous imprisonment for a term of 24 calendar months as a Class-I prisoner, to be dismissed with disgrace from the Naval service and to suffer consequential penalties involved. The Chief of the Naval Staff in exercise of his power under S. 163 of the Act modified the sentence awarded to the respondent and ordered that the respondent be kept in rigorous imprisonment as a Class-I prisoner for a period of 12 calendar months and that he be dismissed from Naval service and shall suffer the consequential penalties involved. The respondent submitted a petition on December 4, 2000 under S. 162 of the Act with a request to set aside the findings and sentence awarded to him by the Court Martial, but the same was rejected by the Chief of the Naval Staff by his order dated January 31, 2001.

(3.) The order of conviction and sentence passed by the Court Martial as well as the orders of the Chief of the Naval Staff in exercise of powers under Sections 162 and 163 of the Act were challenged before the High Court by the respondent by filing a writ petition under Art. 226 of the Constitution of India. The challenge to the aforesaid orders was on several grounds. It was submitted before the High Court that the members of the Court Martial had not been appointed in conformity with S. 97 of the Act. Three of the Members of the Court Martial were incompetent to act as impartial Judges and the objection raised by the respondent in this regard was disposed of by the Trial Judge Advocate, without reference to the members of the Court Martial, in gross violation of the mandatory provisions contained in S. 102 of the Act. As a result grave prejudice was caused to the respondent and there was serious miscarriage of justice by such officers continuing as members of the Court Martial to try him. The order of Court Martial was also challenged on the ground of its failure to record reasons for the conclusions reached by it. It was also submitted that the offences for which the respondent was tried were ordinarily offences which could have been tried by an ordinary criminal Court and, therefore, trial by Court Martial was not justified.