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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: HIMMAT SINGH CHAHAR

DATE OF JUDGMENT:       12/05/1999

BENCH: G.B.Pattanaik, K.T.Thomas

JUDGMENT:

PATTANAIK,J.

     The  Union of India in this appeal has challenged  the judgment  dated 12.11.1993, of the Division Bench of  Bombay High  Court in Criminal Writ Petition No.  1511 of 92.   The respondent  Himmat Singh Chahar, who was serving as a  petty High  Court  assailing the order passed against him  in  the Court Martial Proceedings and the High Court by the impugned judgment  quashed  the  said  order  in  the  Court  Martial Proceeding.   In the Court-martial the respondent was  found guilty  of  offence under Section 354 and was  sentenced  to imprisonment for 9 months, and his services were terminated. Facts  culminating in the aforesaid order of the High  Court may be briefly stated as under.

     The  respondent had joined the Indian Navy on  24.6.78 and  in November 1990 he was a petty officer  (Telegraphist) in  the submarine and was thus away from his quarters on the shore.   On  28.11.1990  one R.K.  Sharma,  another  officer belonging  to  Navy came with his wife Mrs.  Nirmala  Sharma and  having failed in his attempt to get any vacant quarters moved  into  Quarter  No.  3B and shared the same  with  the family   members  of  the   respondent.   On  3.12.90   said respondent  took  permission from his authorities  to  leave submarine  and  come  to  the shore for  taking  his  family members  to  the  hospital for medical check  up  and  early morning  came to his quarters and left for the hospital with his  wife and two sons.  It is alleged that he returned back home  at  about  9.00 a.m.  while Mrs.  Nirmala  Sharma  was alone  and  tried  to  outrage her modesty  when  said  Mrs. Nirmala  Sharma opened the door.  Mrs.  Sharma then  somehow extricated from the clutches of the respondent and rushed to the  house  of  one Mrs.  Mandal whom she knew  earlier  and persuaded her to intimate her husband who was also away from the quarters so that he can come back.  Mrs.  Sharma did not intimate  about the aforesaid criminal assault on her by the respondent to said Mrs.  Mandal though she insisted that she will not leave her house until and unless her husband comes. Her  husband came on the next day i.e.  4.12.90 to whom Mrs. Sharma  narrated  all  that  happened on  the  previous  day whereafter  a  complaint was made to the superior  authority against  the  respondent  alleging   that  modesty  of  Mrs. Nirmala  Sharma had been outraged by the respondent.  On the basis  of  the  complaint  a Court  Martial  Proceeding  was initiated  and  in  the said proceeding the  respondent  was

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found guilty of the charge under Section 354 of Indian Penal Code  and  Section 77(2) of the Navy Act, 1957  (hereinafter referred  to as ’an Act’) and was directed to be kept  under imprisonment  for  the  term of 24 calendar  months  and  be dismissed  from the Naval services.  This order was of  16th May, 1991.  Against the aforesaid order the respondent moved the Chief of the Naval Staff under Section 163(1) of the Act and  the  Chief  of  the Naval Staff  though  sustained  the conviction  but reduced the punishment of imprisonment for a term  of 9 calendar months.  The punishment of removal  from service, however, was maintained.  The respondent then moved the  Central Government for re-consideration of the  matter. But  the Central Government having confirmed the decision of the Chief of Naval Staff the respondent moved the High Court by  way  of  a  Criminal Writ  Petition.   By  the  impugned judgment the High Court of Bombay considered the evidence of Mrs.  Nirmala Sharma and by way of sifting her evidence came to hold :-

     "After  a  meticulous  examination of the  record  and particularly the evidence of Nirmala that the credibility of the  evidence is such that the charge cannot be said to have been brought home on the basis of this material."

     The  High  Court, therefore, ultimately came  to  hold that the authorities were wrong in having recorded the guilt against  the respondent on the strength of material that was adduced  before  the Court Martial Proceedings.   The  Court ultimately  quashed  the  conviction   and  sentence  passed against  the respondent in the Court Martial Proceeding ,and hence the present appeal.

     Mr.   Ashok  Bhan, learned counsel appearing  for  the Union  of  India  contended  with vehmence  that  the  Court Martial  Proceeding having been continued in accordance with the procedure laid down under the Navy Act and the Competent Authority  on  the  basis of the evidence of  Mrs.   Nirmala Sharma  having  found the respondent guilty of charge  under Section  354  and punishing him thereunder, the  High  Court mis-directed  itself  in exercise of its jurisdiction  under Article  226  of  the   Constitution  to  re-appreciate  the evidence   and  in  coming  to   the  conclusion  that   the Authorities  committed  error  in recording the  finding  of guilt against the respondent on the basis of the evidence of Mrs.   Nirmala Sharma.  According to Mr.  Bhan, the  learned counsel,  though a judicial review against the order of  the Competent  Authority  in  the Court  Martial  Proceeding  is available  but the said judicial review could not clothe the High  Court  with  the  jurisdiction  to  re-appreciate  the evidence  and  substitute the findings of the Court  Martial Proceedings  by its own.  According to Mr.  Bhan unless  the Court  Martial  Proceeding is found to have contravened  any mandatory  provisions of the Act or Rules or can be said  to be  in violation of the principles of natural justice or can be   said  to  be  without   jurisdiction,  it   would   be, impermissible  for  the  High Court to  interfere  with  the conclusion  on  the ground of sufficiency of  evidence.   In support  of this contention reliance has been placed on  the recent  decision of this Court in the case of Union of India &  Ors.   vs.  Major A.  Hussain - Judgment Today  1997  (9) S.C.   676.  Mr.  Uday U.  Lalit, learned counsel  appearing for the respondent on the other hand contended that it is no doubt  true  that the High Court would not be  justified  in interfering  with  the  findings of the Authority  in  Court Martial  Proceeding  by appreciation of evidence  ordinarily

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but if the evidence is of such nature that no reasonable man can come to the conclusion that an offence under Section 354 of  the Indian Penal Code has been committed then  certainly the  Court  would  be  justified  in  interfering  with  the findings  arrived at by the Authorities in the Court Martial Proceedings  and judged from that stand point there has been no infirmity with the impugned judgment of the High Court.

     In  view of the rival submissions at the Bar the short question  that arises for consideration is what would be the extent of the jurisdiction in exercising power under Article 226  of the Constitution over the findings of the  Authority in  Court Martial Proceeding?  The Defence personnel serving in Army, Navy or Air force when commit any offence are dealt with  by the special provisions contained in the Army Act or the  Navy  Act  or the Air Force Act and not by  the  normal Procedure  Code.   The said Navy Act is a complete  code  by itself  and prescribes the procedure to be followed in  case it  is  decided  that an officer should be  tried  by  Court Martial.   The Act also provides sufficient safeguard by way of  further  appeal  to  the Chief of  the  Staff  and  then ultimately to the Union Government.

     Since  the  entire  procedure is provided in  the  Act itself and the Act also provides for a further consideration by  the  Chief  of  the Naval Staff and then  by  the  Union Government then ordinarily there should be a finality to the findings  arrived at by the Competent Authority in the Court Martial   Proceeding.    It   is   of   course   true   that notwithstanding  the finality attached to the orders of  the Competent Authority in the Court Martial Proceeding the High Court  is entitled to exercise its power of judicial  review by invoking jurisdiction under Article 226 but that would be for  a limited purpose of finding out whether there has been infraction   of   any  mandatory   provisions  of  the   Act prescribing the procedure which has caused gross miscarriage of  justice  or for finding out that whether there has  been violation  of  the  principles  of  natural  justice   which vitiates  the  entire  proceeding  or  that  the   authority exercising  the  jurisdiction  had   not  been  vested  with jurisdiction  under  the  Act.  The said power  of  judicial review  cannot  be  a  power   of  an  Appellate   Authority permitting  the High Court to re-appreciate the evidence and in  coming to a conclusion that the evidence is insufficient for  the conclusion arrived at by the Competent  Authorities in  Court  Martial  Proceedings.  At any rate it  cannot  be higher  than  the jurisdiction of the High  Court  exercised under  Article 227 against an order of an inferior Tribunal. This  being the parameter for exercise of power of  judicial review  against  the findings of a Competent Authority in  a Court  Martial  Proceeding,  and applying the  same  to  the impugned judgment of the High Court we have no hesitation to come  to the conclusion that the High Court over-stepped its jurisdiction in trying to re-appreciate the evidence of Mrs. Nirmala  Sharma  and  in coming to the conclusion  that  her evidence  is not credible enough to give a finding of  guilt of  the  respondent of a charge under Section 354.  We  have also  perused the statement of Mrs.  Nirmala Sharma and  the conclusion  becomes  inescapable  on the basis of  the  said statement  of  Mrs.  Nirmala Sharma that the respondent  has been  rightly found to have committed offence under  Section 354 by the Authorities in the Court Martial Proceedings.

     In  the aforesaid premises, we set aside the  impugned judgment  of the Bombay High Court and dismiss the  Criminal

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Writ  Petition  filed  by  the  respondent  and  affirm  the ultimate  order  passed  by the Competent Authority  in  the Court Martial Proceeding and this appeal is allowed.