Supreme Court: While considering the instant appeal challenging the judgment and order of Armed Forces Tribunal (the Tribunal) whereby the appellant’s conviction in respect of charge for alleged possession of ammunition was substituted and instead held him guilty of an act prejudicial to good order and discipline; the Division Bench of J.B. Pardiwala and Alok Aradhe*, JJ., the Court found the Tribunal under Section 15(6) of the Armed Forces Tribunal Act, 2007 (2007 Act), which contains a non-obstante clause, has power to substitute the finding of Court Martial, a finding of guilty of any other offence for which offender could have been lawfully found guilty by Court Martial and may pass a sentence afresh.
The Court opined that scope of interference in an appeal with the order passed by the Armed Forces Tribunal is limited. The Supreme Court in appellate jurisdiction would interfere if the order were shown to be arbitrary, unreasonable or capricious.
Background and Legal Trajectory:
The appellant was commissioned into Army Ordnance Corps of Indian Army and on 27-08-2006, promoted as Colonel (Selection Grade) and was posted as Commandant of Northern Command Vehicle Depot, (NCVD) Udhampur. The appellant was handling motorcycles (Royal Enfield) intake in the command after the inspection test. The complainant met the appellant on 17-09-2008 in NCVD. The appellant demanded Rs.100/- per motorcycle for passing the same in the inspection test. The complainant after four days met Commanding Officer of Northern Command, Counter- Intelligence Unit and explained the difficulty faced by him and narrated the harassment faced by him. The complaint disclosed to the Commanding Officer that he was under pressure to make a payment of Rs 10,000 in cash to the appellant and was due to make payment on 27-09-2008. The complainant on 27-09-2008. went to office of NCVD where he handed over an envelope containing currency notes of Rs 10,000. A search was carried out by Board of Officers where a white envelope containing hundred numbers of Rs.100 denomination notes were found. The Board of Officers also found a sum of Rs 28,000 kept in the briefcase of the appellant which was also kept in the office. The Board of Officers further found ammunition from the possession of the appellant. An investigation was carried out wherein a prima facie case was found against the appellant. He was thereafter arrested.
The appellant was tried by a General Court Martial (GCM) which found him guilty of corruption and possession of ammunition and therefore was convicted and sentenced with a penalty of dismissal from service. The appellant thereafter challenged this decision before the Tribunal vide impugned judgment dated 1-6-2012 found that charge related to corruption were not proved and that conviction of the appellant under the Arms Act was not sustainable as the evidence did not support possession of ammunition without license. The Tribunal, however, invoked Section 15 of the 2007 Act and Rule 62 (4) of the Army Rules (hereinafter referred to as the “Rules”) and substituted the finding on the charge possessing ammunition and held the appellant guilty for an act prejudicial to good order and discipline. The Tribunal modified the punishment of dismissal to that of compulsory retirement with all pensionary and retiral benefits. The Tribunal dismissed Union of India’s appeal against this decision. The Tribunal further dismissed review filed by the appellant in relation to charges of possessing ammunition and in so far as it imposed the punishment of compulsory retirement on the appellant. The Tribunal however, dismissed the review.
The respondents implemented the afore-stated judgment of the Tribunal and the appellant accepted the retiral benefits under protest and without prejudice to his rights.
The matter hence reached the Supreme Court, where the appellant contended that the Tribunal grossly erred in imposing the punishment of compulsory retirement which even otherwise was grossly disproportionate to the alleged misconduct. It was further contended that the Tribunal erroneously held that appellant was guilty of an act prejudicial to good order and military discipline. Whereas the respondents rebutted the contentions.
Court’s Assessment:
Perusing the issue, the Court considered the statutory provisions involved in the case. The Court stated that Army Act, 1950 (1950 Act) was enacted to consolidate and amend the law relating to government of the regular Army. Analysing Sections 69 and 70 of 1950 Act, the Court pointed out that Section 69 creates a legal fiction in so far as it pertains to commission of any civil offence by a person subject to provisions of the Act and provides that he shall be deemed to be guilty of an offence under the Act. Furthermore, scrutinising Section 63 of the 1950 Act, the Court pointed out that it is axiomatic that the same applies to an act or omission which is not specified in the Act but is prejudicial to good order and military discipline. Thus, Section 63 applies to an act or omission which is not specified in the 1950 Act.
Delving into the 2007 Act, the Court noted that Section 15 of the 2007 Act deals with jurisdiction, powers and authority in the matters of appeal against Court Martial. The Court pointed out that under Section 15(6) (a) & (b) of the 2007 Act, the Tribunal is empowered to substitute the finding of Court Martial which includes the disciplinary proceedings under the Act and also to interfere with the sentence if the same is found to be excessive, illegal or unjust and to mitigate the punishment awarded.
The Court further explained that Section 15(6) of the 2007 Act is in pari materia with Section 162 of the 1950 Act and is akin to Section 222 of Code of Criminal Procedure 1973 (CrPC) which permits conviction for a lesser or cognate offence on the same set of facts. The legislative intent appears to be unambiguous. The object of Section 15(6) of 2007 Act is that where the evidence sustains a different, though related offence, the appellate forum is not denuded of power to render a lawful finding merely because the chargesheet mentions another provision.
On the issue of scope of interference in an appeal under Section 30 of the 2007 Act, the Court relied on Union of India v. R. Karthik, (2020) 2 SCC 782, wherein it was stated that Supreme Court in appellate jurisdiction under Section 30 of the 2007 Act would be slow in interfering with the substituted punishment, unless the order passed by the Tribunal is found to be arbitrary, unreasonable or capricious.
Coming onto the facts of the case and analysis made by the Tribunal, the Court noted that concurrent findings of fact with regard to recovery of ammunition from the possession of the appellant, were recorded after meticulous appreciation of evidence on record. The appellant in his statement also did not dispute the recovery of ammunition. The factual foundation brought on record at the trial, clearly discloses an act or omission on the part of the appellant which was prejudicial to good order and military discipline.
In the instant case, the Tribunal in exercise of its power under Section 15(6) of 2007 Act, on the established fact of recovery of ammunition from the possession of the appellant, had taken a lenient view in favour of the appellant and has modified the punishment from dismissal to compulsory retirement with all pensionary and retiral benefits. The Court opined that the Tribunal had exercised its discretion under Section 15(6) of the 2007 Act in a manner which was both just and proportionate, balancing the disciplinary needs of service with fairness to the individual. The Tribunal had acted strictly within the statutory framework. The aforesaid exercise of discretion, therefore, did not require any interference. The Tribunal did not commit any error in rejecting the petition for review filed by the appellant.
[S.K. Jain v. Union of India, CRIMINAL APPEAL NO. 628 OF 2016, decided on 10-10-2025]
*Judgment by Justice Alok Aradhe
Advocates who appeared in this case:
For Appellant(s) Mr. Sudhanshu S. Pandey, Adv. Mr. Gaichangpou Gangmei, AOR Mr. Roshan Kumar, Adv. Mr. Maitreya Mahaley, Adv. Mr. Kamei Bestman Kabui, Adv.
For Respondent(s) Mr. Brijender Chahar, A.S.G. Mr. Nachiketa Joshi, Sr. Adv. Mr. Mukesh Kumar Maroria, AOR Mr. Praneet Pranav, Adv. Mr. Amit Sharma B, Adv. Mr. Ishaan Sharma, Adv. Mr. Raman Yadav, Adv.
