1. This Petition challenges order dated 08.04.2024, passed by the District Court, South Goa, at Margao, allowing an application under Order XI Rule 14 and 18 CPC filed by the Respondent (Original Plaintiff in Civil Suit No.30/2014). The Petitioners are the Defendants in the suit.

2. It is the claim of the Respondent/ Original Plaintiff in the plaint that he owned a fishing trawler, ‘Sea Messiah’ which ventured into the sea on 24.04.2013 from Cutbona Jetty, Salcete Goa having 29 fishermen on board, when on 25.04.2013, at about 4.30-4.45am the Coast Guard Vessel ICGS Vaibhav, belonging to the Petitioner No.2, travelling at high speed rammed into it and split it in two, which resulted in the death of 6 fishermen by drowning, whilst some other members of the crew of the trawler were rescued by another fishing trawler ‘Yana Marine’. On the basis of information given by the Respondent on 25.04.2013 to the Cuncolim Police Station, an FIR No.64/2013 was registered on 26.04.2013 under sections 280, 427, 337 and 304A, IPC against the navigator of the vessel belonging to Petitioner No.2; pursuant to a complaint dated 30.04.2013 filed by the Respondent at the Yellow Gate Police Station at Mumbai, an FIR No.15/2013 on 30.04.2013 under section 337,427 and 304A IPC was also registered.

3. It is the Respondent’s case in the plaint that since no action was taken, on 26.07.2013, he filed WPCR No.94 of 2013 before this Court, seeking direction for immediate action to be taken by Cuncolim Police Station and by the Petitioner Nos. 1 and 2 herein; the petition further sought details of the investigation carried out on the complaint. The Public Prosecutor therein informed the court of the Chargesheet no.252/PS/13 filed by Yellow Gate Police, before the Metropolitan Magistrate Ballard Pier, Mumbai, and thereafter the same was transferred to Coast Guard Court at Mormugao for Court Martial proceedings against K. Jannardanan, D.I.G. and P.V. Gopal, Commandant; vide order dated 23.09.2013, the Writ Petition came to be disposed of directing the Respondent to explore other alternative remedies whilst keeping all issues open.

Pursuant to issuance of a notice dated 25.10.2013 issued by the Respondent to the Petitioners, compensation was sought to the tune of Rs.3,69,07,000/- towards damages and expenditure incurred by him for loss incurred; thereafter, the Respondent on 10.07.2014 filed Civil Suit No.30/2014 in the District Court at South Goa, Margao. The Petitioners, who were arraigned as Defendants therein, jointly filed their Written Statement on 19.11.2014 opposing the suit and denying allegations.

4. At this juncture it is relevant to note that parallelly, since the vessel involved in the alleged incident belonged to the Coast Guard, the Petitioner, i.e. Defendant No.2 in the Suit instituted Court Martial proceedings under the Coast Guard Act, 1978 read with the Coast Guard (Discipline) Rules, 1983. These proceedings were conducted before the Coast Guard Court and were instituted against K. Jannardanan, D.I.G. and P.V. Gopal, Commandant. In the Suit, the said Pappu Venkata Gopal was examined for the Defendants as an eye-witness to the incident.

5. In the course of the Court Marshal proceedings, the accused Commandant Pappu Venkata Gopal vide order dated 02.09.2015 was convicted and was imposed with a sentence of forfeiture of three years of seniority of rank for purpose of promotion and forfeiture of one year service for the purpose of pension. The other accused K. Jannardanan, D.I.G. by order of conviction dated 16.01.2015 was imposed a sentence of Simple Imprisonment for six months and dismissal from the Coast Guard Service. It is also an admitted position, as stated by DW-2 Commandant (JG) Akshay Jain who deposed before the trial Court on behalf of the Defendants that two of the fishermen on board the capsized vessel Sea Messiah, Krishna Ambig Tandel and Subrai Ambig Tandel, who survived, were examined as witnesses before the Coast Guard Court, in the Court Martial proceedings. One of these, Krishna Ambig Tandel has also deposed before the Civil Court as PW-2 on behalf of the Plaintiff. This is admitted by witness DW2 in his cross-examination.

6. The Respondent vide application dated 02.07.2015, under RTI Act, 2005, sought for Certified Copies of final orders which was issued to him on 02.09.2015, however, the other documents and witness depositions were not issued.

7. In the meantime, evidence was recorded on behalf of the Plaintiffs, which was concluded on 18.09.2021, after which the first defence witness Pappu (eye-witness to the incident) filed his affidavit on 29.01.2022 and his cross-examination was concluded on 18.02.2022. Thereafter, DW-2 was examined and during his cross-examination, the application at Exhibit D-49 under Order XI Rule 14 came to be filed on 22.11.2022, for producing the judgements, statement of witnesses and relevant documents of the Court Martial proceedings, imposing sentences on the Commandant and Deputy Inspector General; the Petitioners filed their reply and contended that such an application could not be allowed at the stage of final arguments and vide order dated 28.02.2023, the District Court dismissed the same. Subsequently the Respondent vide letter dated 11.07.2023, under Order XI Rule 15, requested the Petitioners to provide certified copies of the Judgements/orders and statement of witness in the Court martial proceedings.

8. The Respondents then filed another application at Exhibit-D-53, dated 22.11.2023, under Order XI Rule 14 and 18 CPC, which was opposed by the Petitioners vide their reply dated 08.01.2024, contending it to be an afterthought; vide order dated 08.04.2024, (impugned herein) the same application was allowed directing the Petitioners to produce the documents.

SUBMISSIONS

9. The Advocate for the Petitioners Mr. Raviraj Chodankar advanced the following submissions;

                   a. That the application could not be allowed since it was filed at the stage of final arguments, much after issues were framed, and trial was concluded. It was further submitted that an earlier application of similar nature having been dismissed on 28.02.2023, the principles of Constructive Res-Judicata would apply, prohibiting a second application of similar nature.

                   b. That the documents sought to be produced have no mention in the plaint nor were they listed in the list of documents relied upon by the Plaintiff for leading evidence. The documents sought to be relied upon being the record of the Court Martial proceedings had no relevance to the suit and therefore could not have been allowed by the trial court. Without prejudice, it was submitted that the Plaintiff had received a copy of the Operative part of the court Martial Proceeding under Right To Information Act, 2005 way back on 02.09.2015, the sentence imposed on the two charged officers being made known to the Plaintiff. Consequently, the Plaintiff having knowledge of the contents of the sentence, had ample opportunity to apply for the entire record for almost six years, which it failed to do, and have not shown cause or pleaded due diligence in their application. It was submitted that the trial court ought to have considered the lack of due diligence on the part of the Plaintiff and refused to exercise its jurisdiction in favour of the Plaintiff, under those circumstances.

                   c. Learned advocate appearing for the Petitioner, heavily relied upon the Scheme of the Coast Guard Act and the Coast Guard (Discipline) Rules, 1983, to contend that the said rules do not permit for copies of the Court martial proceedings be made public, nor would the Plaintiff have right to access the same, since it would be against the security of the State to divulge such documents. It was further submitted that the documents being of confidential nature, the Plaintiff would have no right to obtain copies of the proceedings. The Learned Counsel submitted that Rule 120 of the Discipline Rules requires a Coast Guard Court to preserve the records for only seven years, and there is no manner of ascertaining whether the records are still available.

10. The Advocate for the Respondent Mr. Nigel Costa Fries advanced the following arguments;

                   a. The Learned Counsel has taken me through the evidence of the two officers, DW-1 and DW-2 lead by the defendants, to submit that they were confronted with the fact that the Plaintiff’s eye witness to the incident had deposed in the Court Martial Proceedings. He further contended that the DW-1 who is the officer charged in the Court Martial Proceedings has deposed as eye witness to the incident on behalf of the defendants and has deposed in his evidence that he was not aware of the outcome of the Court martial proceedings.

                   b. It was further contended that where documents are used or sought to be produced for the purpose of Cross examining the witness, no reliance to be placed on such documents, since the provisions of Section 145 of the Evidence Act itself provides for the exception to the Rule that documents that are required to be relied upon and unless used to contradict or to impeach the credibility of the witness.

                   c. Reference was made to the Coast Guard Disciplinary Rules, 1983, to contend that the Court Martial Proceedings are conducted by Coast Guard Court and such proceedings are Public documents under the Evidence Act. It was submitted that neither the Coast Guard Act nor rules framed thereunder classify the record of a Court Martial proceedings as confidential or as official secrets, and there is no embargo in the law to provide these records, moreso, since they are directly relevant for the decision in the suit, moreso in the light of the fact that PW-2 was a witness before the Coast Guard Court in proceedings in which DW-1 was charged an is an eye witness in the present suit.

CONSIDERATIONS

11. The question that falls for determination in this Petition is whether in the facts of the case the Impugned order dated 08.04.2024, directing the defendants to produce the Judgments of the Coast Guard Court in the trial conducted by it against K. Jannardanan, D.I.G. and P.V. Gopal, Commandant, and further direction to produce the statements of the witnesses recorded by the Coast Guard Court at the trial conducted by it is legal and justified.

12. Order XI Rule 14 empowers the Court, at any time during the pendency of the suit to order any party thereto, to produce any documents upon oath, which may be in his possession or power, which relates to a matter in question in the suit. This power is a power vested in the court in order that the court can decide the justice of a matter without being restrained by rules of procedure such as those contained in Order XIII CPC, where reliance must be placed on documents which the parties wish to produce in evidence. The powers under Order XI Rule 14 may also be exercised by the Court if any of the parties to the suit bring to its notice a document which is in possession or within the power of a party to the suit, which if produced under oath would assist the court in arriving at a just and fair decision to the parties.

13. In the present case, the trial court, no doubt, dismissed an earlier application for production of the very same documents vide order dated 28.02.2023, but on the sole contention that the Plaintiff had obtained the operative part of the Court Martial orders but had not made efforts to obtain the certified copies of the record and proceedings of the Coast Guard Court. In paragraph 5 of its order it noted that if certified copies of the proceedings cannot be issued, it was open to the party to approach the court for production of copies of these documents. The application was thus dismissed as being premature.

14. Thereafter the Plaintiff issued a notice dated 11.07.2023, to the advocate for the Defendants, to furnish to the Plaintiff certified copies of the entire judgement of the Coast Guard Court and statements of the witnesses recorded in the trial. No reply was given to this notice by the Defendants in the suit, implying their rejection of the request for certified copies of the record. Thereafter a fresh application was filed under Order XI Rule 14 and 18 for a direction to the Defendant no.2 to furnish certified true copies of the aforementioned documents which is allowed by the Impugned order. The application was opposed on the sole ground that the documents were neither relied upon by the Defendants or the Plaintiff nor is the Defendant No.2 in possession of the same. There is no Affidavit supporting this reply.

15. On perusing the Coast Guard ( Discipline ) Rules,1983, they provide for charges to be issued to an officer and a trial to be conducted by the Coast Guard Court in which, under Rule 23, the Coast Guard Court, examines witnesses on oath who are cross examined and re-examined. Rule 24 provides for the abstract of evidence to be recorded whilst Rule 79 to Rule 82 provide for the mode of examining witnesses, cross examination of these witnesses and re-calling of witnesses by that court. Evidence on navigational matters is to be recorded in the same manner and as in the present matter, which is an accident at sea, being a navigational matter, the Coast Guard Court is required to consider 15 documents which include the Ships Log, the Navigation and Echo sounder logs and various other books maintained on the ship and the Ship’s control room and engine room.

The witnesses in defence may be examined under rule 88 after which the judgement is to be pronounced by the Coast Guard Court under rule 97. Rule 120 to Rule 122 provides for preservation of the proceedings for not less than 7 years and further provides for the right of the Accused to copies of the proceedings. The only prohibition to granting such copies is where the central government is satisfied for reasons to be recorded that it is against the interest of the security of the State that such copies may not be made available.

16. It has never been the case of the Defendants/Petitioners that there is such an order in writing of the Central Government under Rule 122 and that could not be the case since the sentence imposed on the Accused by the Coast Guard Court was in fact provided for the Plaintiff. What is even more relevant is the fact that the witness PW-2 was examined as a witness before the Coast Guard Court and his evidence is available with that Court. The witness for the defence in the suit i.e DW-2 has deposed before the Civil court, relating the entire incident and has admitted in evidence the aforementioned facts with regard to PW-2 being a witness. The record of the Coast Guard Court, therefore, assumes great relevance for the just decision in the Civil Suit and it is in the light of this fact that the civil court has rightly granted the application to enable it to have access to the documents requested.

17. It was submitted during the course of the arguments that the documents are confidential documents and cannot be made public. The Coast guard Court is “a Court” and all its proceedings must be deemed to be public documents under the evidence act. Its record, necessarily would be required to be treated as a public document to which every other court would have access, subject of course to the restrictions of national security which are incorporated in Rule 122. That Rule requires a specific order in writing, restricting the access to the record of that court, which in the present case does not exist as, in fact, the operative of the order of the Coast Guard Court has been provided to the Plaintiff. On this Count to the objection to the Impugned order must be rejected.

18. This is not a case which calls for any interference in supervisory jurisdiction of this Court under Article 227 of the Constitution Of India as no infirmity can be found in the passing of this order.

19. Writ Petition stands dismissed.

20. No costs.