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2004 (4) Crimes 190
Bombay High Court (DB)
V.M. Kanade and S.R. Sathe, JJ.
Nitin Shankar Kadkol —Petitioner
versus
Union of India & Ors. —Respondents
Criminal Writ Petition No. 463 of 1998
Decided on 17-12-2003
For the Petitioner:Mr. K.K. Malpathak, Advocate.
For the Respondents:Mr. A.J. Rana, Senior Advocate with Mr. V.H. Kantharia i/b Mr. T.C. Kaushik, Advocates.
Important Point
Statutory obligation is caste on trial Judge Advocate under Navy Act, 1957 to decide questions of law and same are binding on court-martial.
Headnote:(i) Constitution of India — Art. 226 — Conviction u/ss. 498A and 304B, I.P.C. in court martial — Scope of power to be exercised while exercising jurisdiction under Art. 226 of Constitution — High Court can exercise jurisdiction of judicial review only where there was infraction of any mandatory provision of the Act which caused gross miscarriage of justice.
Held: High Court can exercise its jurisdiction under Articles 226 and 227 of the Constitution of India by way of judicial review only where there is an infraction of any mandatory provisions of the Act pertaining to the procedure which has caused gross miscarriage of justice or for finding out that there has been violation of principles of natural justice or where the authority exercising the jurisdiction has not been vested with the jurisdiction under the Act. (Para 10)
(ii) Navy Act, 1957 — Sections 77(2), 113 and 114 — Statutory duty of trial Judge Advocate — There is statutory obligation on trial Judge Advocate to decide question of law and same is binding on court-martial — Conviction of petitioner u/ss. 304B and 498A, IPC — Court Martial — Writ — Deceased got married to petitioner in December, 1992 died of burns — She caught fire when working on stove there was a sudden explosion — F.I.R. was recorded on basis of 2nd dying declaration whereas in first dying declaration victim had not alleged any cruelty — Neither in 1st dying declaration nor in second dying declaration deceased made any allegation of any demand of dowry — Letters written by deceased to her sister and mother did not mention any demand of dowry — Trial Judge Advocate erred in summoning up legal position that it was dowry death — Conviction u/s. 304-B, IPC was liable to be set aside — Evidence to show that petitioner was in habit of consuming liquor and used to give physical beating — Conviction u/s. 498A, IPC could not be disturbed — No reason to interfere with order dismissing petitioner from service — Sentence of 3 years imprisonment awarded u/s. 498A, IPC maintained. (Paras 13 to 17)
Result : Petition allowed partly.
JUDGMENT
V.M. Kanade, J.— The petitioner has filed this petition under Article 226 of the Constitution of India challenging the order passed in Court-martial proceedings and Judicial Review of Trial by the Chief of Naval Staff whereby the petitioner was sentenced to suffer imprisonment for life for having committed the murder of his wife and he was also directed to be dismissed with disgrace from Naval Service.
2. The petitioner was working as an Engineering Mechanic, Ist Class on INS Angre in the Indian Navy. A charge was framed by the Commodore, Commanding Officer, INS Angre dated 13.12.1996 in which it was alleged that (a) on 29.1.1994 while he was residing at 28, Khukri Hostel, Navy Nagar, Colaba, he subjected his wife-Padma to cruelty and harassment with a view to coerce her and her relatives to meet his unlawful demand of cash, etc. and thereby committed an offence under Section 498A of the Indian Penal Code read with Section 77(2) of the Navy Act, 1957 and (b) that on 29.1.1994 between 2000 hrs. and 2300 hrs. the petitioner caused death of Padma by pouring kerosene on her person and putting her on fire and thereby committed an offence under Section 772(2) of the Navy Act, 1957.
3. The brief facts are as under:
4. The petitioner and his wife were residing at Flat No. 28, Khukri Building, Navy Nagar, which were the quarter allotted to him by the Navy. The petitioner got married in December, 1992. On 29.1.1994, as per the First Dying Declaration recorded by the deceased on 30.1.1994, the petitioner and his deceased wife had met one Vijay Bhaiyya at 4.00 p.m. where they spent their time watching T.V. Thereafter, at about 10.00 p.m., they came back to the petitioner’s house after purchasing vegetables. The deceased went into the kitchen for preparing the dinner and at about 10.40 p.m., the petitioner was in the bath-room and the deceased had kept water for boiling on the stove. After pumping the stove, she lighted a match stick near the burner when there was a sudden explosion and her clothes caught fire. She shouted for help and hearing her screams, her husband i.e. the petitioner came out of the bath-room and threw water on her and doused the flames. Thereafter the husband brought her down-stairs and with the help of others took her in Ambulance to Ashwini Hospital for treatment. In the First Dying Declaration, the deceased had stated in clear terms that there was no dispute or quarrel with her husband and her relations with him were cordial. She had further categorically stated that the incident had taken place due to sudden flare up of the stove. Dr. D. Dhar who was present at the time of recording of the Dying Declaration has observed that the deceased was in her complete senses. This observation was recorded in the presence of Special Executive Magistrate - Mohan Sevakram Kasotia. This Dying Declaration was recorded in the presence of Police Sub-Inspector, Colaba Police Station. Thereafter, father of the deceased had arrived and subsequently her mother and her sister Mamata came to the hospital and on 8.2.1994, the statement of the deceased was recorded which was totally at variance with what had been recorded on 29.1.1994. This statement was recorded in the presence of Shri Khamkar, Special Executive Magistrate. As a result of the Second Dying Declaration, the FIR came to be lodged on 11.2.1994. Apart from the Dying Declaration, there was no other evidence directly linking the petitioner with the offence for which he was charged.
5. The Court-martial recorded the evidence of the witnesses and has also recorded summing up of defence as well as of the prosecution and that of the trial Judge. However, the Court-martial recorded his finding that the petitioner was guilty of the said offence on both counts. The petitioner was sentenced to life imprisonment and was dismissed with disgrace from the Naval Service.
6. The petitioner preferred Judicial Review of Trial by the Court-martial to the Chief of Naval Staff.
