UNION OF INDIAversusHIMMAT SINGH CHAHAR

                             UNION OF INDIA                                        A
                                  v.
                        HIMMA T SINGH CHAHAR

                               MAY 12, 1999

              [G.B. PATTANAIK AND K.T. THOMAS, JJ.)                                B

Constitution of India

      Articles 226 and 227-Judicial Review of Court Martial proceedings-
Scope-Power to re-appreciate evidence and substitute its own findings-             C
Held, not permissibles-Limited to finding out any infraction in procedure
prescribed or any violation of the principles of natural justice or whether
authority had jurisdiction.

      Court yartial proceedings-Complete Code in itself prescribing                D
procedure to be followed-Normal procedure Code dose not apply-Sufficient
safeguard by way offurther appeal and consideration, provided-Navy Act,
1957-Army Act, 1950--Air Force Act, 1950.

       The respondent was serving as a petty officer on a Naval Submarine.
He faced Court Martial proceedings on a complaint that he had outraged the         E
modesty of a woman. He was found guilty under Section 354 I.P.C. and
Section 77 (2) of the Navy Act and was directed to be kept under imprisonment
for a term of 24 calendar months and to be dismissed from the naval service.
The main evidence relied upon was the complaint and statement given by the
woman. On appeal the Chief of Naval Staff however reduced imprisonment
to 9 months but maintained the order of dismissal. The Central Government          F
also confirmed the decision.

     In a writ petition filed by the respondent, High Court reconsidered the
evidence, in particular the statement of the complainant, and held that the
authorities were wrong in recording guilt on the strength of material adduced.
Therefore, the sentence and conviction were quashed.                               G
      Aggrieved the appellant appealed to this Court contending that the
High Court misdirected itself in exercise of its jurisdiction under Article
226 in reappreciating evidence; and that though the power of judicial review
was available the same could not cloth it with the jurisdiction to re-appreciate
evidence and substitute the finding by its own.                                    H
                                      513
    514                    SUPREME COURT REPORTS                     [1999) 3 S.C.R

A         Allowing the appeal, this Court

          HELD : 1. When Defence personnel serving in Army. Navy or Air
    Force commit any offence committed by them are dealt with by the special
    provisions contained in the Army Act or the Navy Act or the Air Force Act
    and not by normal Procedure Code. Navy Act is a complete code by itself and
B   prescribes the procedure to be followed in case it is decided that an officer
    should be tried by Court Martial. The Act also provides suffident safeguard
    by way of further appeal to the Chief of Staff and then ultimately to the Union
    Government (517-D-E)

          2. The power ofjudicial review cannot be a power of an Appellate
C   Authority permitting the High Court to re-appreciate the evidence and coming
    to a conclusion that the evidence is in sufficient. (518-A)

          3. There should be a finality to the finding arrived in the Court Martial
    proceedings. It is true that notwithstanding this finality the High Court is
D   entitled to exercise its power of judicial review 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 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
E   vested with jurisdiction under the Act. [St 7-H; 518-A)

          4. The High Court over-stepped its jurisdiction in trying to re-appreciate
    the evidence and coming to the conclusion that the same is not credible
                                                                                       -,
    enough to give a finding of guilt. On perusal of the statement made by the
    complaint, the conclusion becomes inescapable that the respondent has been
F   rightly found to have committed the offence by the Authorities in Court
    Martial proceedings. [518-C-D)

          Union ofIndia & Ors. v. Major A. Hussain, J. T., (1997) 9 SC 676, relied
    on.

G         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    201of1994.

           From the Judgment and Order dated 6.10.93 of the Bombay High Court
    in Crl. W.P. No. 1511of1992.

H         Ashok Bhan, Praveen Swarup and Mrs. Anil Katiyar for the Appellant.
              U.0.1. v. HIMMAT SINGH CHAHAR [PATTANAIK, J.]                   515
          Uday U.Lalit, Atul Sharma and Ms. Aparajita Singh for the Respondent.      A

          The Judgment of the Court was delivered by

•         PATTANAIK, J. The Union of India in this appeal has challenged the
    judgment dated 12.1 I .1993, of the Division Bench of Bombay High Court in
    Criminal Writ Petition No. 1511 of 92. The respondent Himmat Singh Chahar,       B
    who was serving as a petty officer on Naval submarine 'Sankush' approached
    the Bombay 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       C
    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   D
    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      E
    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    F
    Mrs. Manda! 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. Manda! though she insisted that she will not leave
    her house until and unless her husband comes. Her husband came on the next       G
    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 found guilty of the charge under Section 354 of Indian Penal Code and        H
     516                    SUPREME COURT REPORTS                    [1999] 3 S.C.R.

A 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 servic~s. 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
B Staff though sustained the conviction but reduced the punishment of
    imprisonment for a term of 9 calendar months. The punishment of removal
   Jtom service, however, was maintained. The respondent then moved the
 1
    Central Government for re-consideration of the matter. But the Cen.tral
    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
C 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
D            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
E    respondent in the Court Martial Proceeding ,and hence the present appeal. \

            Mr. Ashok Bhan, learned counsel appearing for the Union of India
     contended with vehemence 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
.F   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
G    evidence of Mrs. Nirmala Sharma. According to Mr. Bhan, the leam_ed 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
H    any mandatory provisions of the Actor Rules or can be said to be in violation
              U.0.I. v. HIMMAT SINGH CHAHAR [PATTANAIK, J.]                     517

    of the principles of natural justice or can be said to be without jurisdiction,    A
    it would be, impennissible 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. v. Major A. Hussain - Judgment Today, (l 997) 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        B
    be justified in interfering with the findings of the Authority in Court Martial
    Proceeding by appreciation of evidence ordinarily 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    C
    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    D
    power under Article 226 of the Constitution over the findings of the Authority
    in Court Martial Proceeding? The Defence personnel .serving in Anny, 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          E
    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   F
    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      G
    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         H
    518                    SUPREME COURT REPORTS                   [1999] 3 S.C.R.

A 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
B 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-
C 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 ofa 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
D in the Court Martial Proceedings. ·
          In the aforesaid premises, we set aside the impugned judgment of the
    Bombay High Court and dismiss the Criminal Writ Petition filed by the
    respondent and affirm the ultimate order passed by the Competent Authority
E   in the Court Martial Proceeding and this appeal is allowed.

    A.Q.                                                         Appeal allowed.