The Honble Court observed that the Armed Forces Tribunal has the jurisdiction to interfere with the finding of a Court-Martial, the Supreme Court reinstated an army officer, upholding the setting aside of his conviction in a corruption case.
The Court also observed that conviction solely based on extra-judicial confession without corroboration is unjustified.
"It could thus be seen that the extrajudicial confession is a weak piece of evidence. Unless such a confession is found to be voluntary, trustworthy, and reliable, the conviction solely on the basis of the same, without corroboration, would not be justified," a bench comprising Justices L Nageswara Rao, and BR Gavai said.
The army officer in this case was found guilty of corruption under Section 7 of the Prevention of Corruption Act, 1988[1], read with Section 69 of the Army Act, 1950[2], by the General Court Martial (GCM), and was sentenced to cashiering from service and one year of rigorous imprisonment.
On appeal by the officer, the Armed Forces Tribunal (AFT), Regional Bench, Kochi, set aside the General Court Martial's order of conviction and sentence. The Armed Forces Tribunal had also directed that the officer be reinstated in service, with no pay and allowance for the period he remained out of service, but without any service break. The Armed Forces Tribunal, on the other hand, sustained the officer's conviction for a violation of good order and discipline under Section 63 of the Army Act,[3] and upheld the sentence of forfeiture of seniority in the rank of Major.
The Union of India went to the Supreme Court to challenge the Armed Forces Tribunal's decision. The officer also filed an appeal with the Supreme Court, challenging the decision of the Armed Forces Tribunal, which sustained the officer's conviction under Section 63 of the Army Act and ordered the forfeiture of his seniority as major.
Criminal Appeal Nos. 537538 of 2018 have been filed by the respondent officer, aggrieved by that part of the said judgment and order of the learned AFT, convicting him for offence punishable under Section 63 of the Army Act and sentencing him to punishment of forfeiture of seniority of rank and of severe reprimand.
The officer was accused of having cleared certain candidates as medically fit after accepting bribes. The Court noted that the case was solely based on the confessional statements allegedly made by the accused officer.
It is further the case of the prosecution that there were also Recruitment Rallies in Jodhpur and Ganganagar in May 2009 and June 2009 respectively. It is the allegation that in the said rallies also, certain malpractices of clearing some candidates as medically fit, who were not otherwise fit, took place.
Therefore, the Supreme Court found that Armed Forces Tribunal justified in allowing an appeal against conviction by a court martial when there was material irregularity in the course of the trial resulting in miscarriage of justice".
The Court rejected the Union's argument that the Armed Forces Tribunal exceeded its jurisdiction by interfering with the Court Martial.
It could thus be seen that, in view of clause (a) of subsection (4) of Section 15 of the AFT Act, the learned AFT would be justified in interfering with the finding of the court-martial where its finding is legally not sustainable due to any reason whatsoever. Under clause (b) thereof, it would be permissible for the learned AFT to interfere with such a finding when it involves a wrong decision on a question of law. Under clause (c) thereof, the learned AFT would be justified in allowing an appeal against conviction by a court-martial when there was a material irregularity in the course of the trial resulting in miscarriage of justice, the Honble bench observed.
The Honble Court Said that:
This Court, therefore, came to a specific conclusion that the finding recorded by the Tribunal was on misreading of an Army order. The sentence which is pressed into service will have to be read in the context of those findings. We are unable to accept the contention urged on behalf of the Union of India that the learned AFT is not entitled to reappreciate the evidence. Such reappreciation of evidence is permissible to find out if any findings of the court martial are legally not sustainable due to any reason.
According to the evidence presented, it is impossible for an officer to declare a candidate medically fit on their own.
47. It could thus be seen that a single officer like the respondent officer cannot declare a candidate medically fit if he is otherwise not. His evidence would show that the team like the one of which the respondent officer was a member, only assists the independent members in the conduct of tests, measurements, and the medical examination.
48. All the three witnesses have admitted that they had no knowledge if any candidate, declared fit by the respondent officer, was subsequently found to have been medically unfit.
JUDGEMENT
It could thus be seen that the respondent officer had discharged the burden to prove, as to how the said amount of Rs.20,000/ was deposited in his account and as to how the amount of Rs.65,000/ was deposited in the account of his father-in-law. As such, that part of the order, which convicts the respondent officer for the offence punishable under section 63 of the Army Act, in our view is not sustainable.
CRIMINAL APPEAL CRIMINAL APPEAL NOS. 537538 OF 2018
(i) Criminal Appeal Nos.537538 of 2018 filed on behalf of the appellantMajor R. Metri No.08585N are allowed.
(ii) The impugned judgment and order dated 2nd March, 2017, passed by the learned AFT, convicting the appellantMajor R. Metri No.08585N for the offence punishable under Section 63 of the Army Act and sentencing him to forfeiture of seniority of rank and of severe reprimand is quashed and set aside.
(iii) The appellantMajor R. Metri No.08585N is acquitted of all the charges, charged with.
(iv) The appellant Major R. Metri No.08585N is directed to be reinstated forthwith with continuity of service.
However, in the facts and circumstances of the case, the appellant Major R. Metri No.08585N will not be entitled for back wages for the period during which he was out of employment.
Case Title : Union of India v. Major R. Metri NO. 08585N
Appearances : Additional Solicitor General Vikramjit Banerjee for the Union; Advocate Gaurav Agarwal for the officer
[1] Section 7 in The Prevention of Corruption Act, 1988
7. Public servant taking gratification other than legal remuneration in respect of an official act.Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
(Explanations) (a) Expecting to be a public servant. If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b) Gratification. The word gratification is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) Legal remuneration. The words legal remuneration are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.
(d) A motive or reward for doing. A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.
[2] Section 69 in The Army Act, 1950
69. Civil offences. Subject to the provisions of section 70, any person subject to this Act who at any place in or beyond India commits any civil
offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be tried by a court- martial and, on conviction, be punishable as follows, that is to say,-
(a) if the offence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and
(b) in any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned.
[3] Section 63 in The Army Act, 1950
63. Violation of good order and discipline. Any person subject to this Act who is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and military discipline shall, on conviction by court- martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.
