UNION OF INDIA & ORS. versus MAJOR R. METRI NO. 08585N on 4 April 2022

[2022] 9 S.C.R. 581

UNION OF INDIA & ORS.

v.

MAJOR R. METRI NO. 08585N

(Criminal Appeal no. 2196 of 2017)

APRIL 04, 2022

[L. NAGESHWARA RAO AND B. R. GAVAI, JJ.]

Service Law: Armed Force service – Interference by ArmedForces Tribunal (AFT) – Scope of – Respondent-officer was postedas the Recruitment Medical Officer– Case against him was that hehelped certain candidates in clearing Army Recruitment Rallies bydeclaring them medically fit – General Court Martial (GCM) foundhim guilty u/s.7 of the PC Act, 1988 r/w s.69 of the Army Act, 1950and sentenced him to be cashiered from service and to suffer rigorousimprisonment for one year – In appeal, AFT set aside the order ofGCM and convicted him u/s.63 of the Army Act and sentenced himto punishment of forfeiture of seniority of rank of Major and ofsevere reprimand – AFT also directed that respondent-officer bereinstated in service with no pay and allowance for the period heremained out of service – Instant appeal filed on the ground thatthe reappreciation of evidence by the AFT was not permissible –Held: AFT was entitled to reappreciate evidence to find out if anyfindings of the court martial are legally not sustainable due to anyreason, or that the finding involves wrong decision on a questionof law, or there was material irregularity in the course of trialresulting in miscarriage of justice – If view taken by AFT is foundto be a plausible one, it will not be permissible for the Court tointerfere with the same only because the court finds the other viewto be more probable/plausible – Equally unless the finding of theAFT is found to be perverse or impossible, interference would notbe justified – Army Act, 1950 – ss.63, 69 – Prevention of CorruptionAct, 1988 – s.7 – Judicial review.

Evidence: Extra-judicial confession – Prosecution contendedthat Respondent-officer confessed about his involvement – Held :Extra-judicial confession is a weak piece of evidence – Unless sucha confession is found to be voluntary, trustworthy and reliable, theconviction solely on the basis of the same, without corroboration,would not be justified.

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582SUPREME COURT REPORTS

APartly allowing the appeal, the Court

HELD:1.Reappreciation of evidence by AFT is permissibleto find out if any findings of the court martial are legally notsustainable due to any reason. If the view taken by the AFT isfound to be a plausible one, it will not be permissible for theBCourt to interfere with the same only because the Court findsthe other view to be more probable/plausible. Equally, unlessthe finding of the AFT is found to be perverse or impossible, aninterference would not be justified. [Paras 29 and 33][593-G; 594-G-H]

CThe State of Bombay v. Kathi Kalu Oghad and Others(1962) 3 SCR 10 – followed.

Union of India and Others v. Sandeep Kumar and Others(2019) 10 SCC 496 : [2019] 12 SCR 415 – relied on.

2. It is clear from the evidence of P.W.1 and P.W.3 thatDfrom December 2008 itself, they were aware about the racket oftouts in the recruitment scam. Not only this, but P.W.1 has goneon record to say that, in the recruitment process, 90% of thepersons recruited pay varying amount to touts, though theselection process was free and fair. P.W.1 has admitted that theErespondent-officer had informed him about the phone calls asearly as in December, 2008. Insofar as P.W.3 is concerned, hehas also admitted that the respondent-officer had informed himabout the phone calls in the month of May, 2009. The finding ofthe AFT that, in view of the circumstances, it appears unnaturalthat the respondent-officer would make a voluntary confessionFon 14[th] July, 2009 and the written statement on 15[th] July, 2009and that many more persons might be involved in the recruitmentscam and in order to find a scapegoat, the possibility of therespondent-officer being asked to make a confessional statementwith an assurance that no action will be taken against him, cannotGbe said to be an impossible view. [Para 41][597-A-D]

3. P.W.2 has also admitted in his examination-in-chief that,when he assumed the office of Deputy Director General RecruitingZone, the first Recruitment Rally was conducted at Jodhpur,sometime between 11[th] May, 2009 and 18[th]/19[th] May, 2009. He H

has admitted that during this Recruitment Rally, he came to knowabout the receipt of complaints from Medical Officers, includingthe respondent-officer, that they had received unwanted calls andSMS messages with threatening contents. He has also admittedin his evidence that, on 14[th] July, 2009, he received localnewspapers, which were full of news on recruitment racket. Hehas also admitted that, on 14[th] July, 2009, a meeting was arrangedwith the Superintendent of Police, Ajmer, who informed him aboutthe FIR. It could thus be seen that, on cumulative appreciationof evidence of P.W.1 and P.W.2 and P.W.3, the view that theconfessional statement made by the respondent-officer did notappear to be voluntary cannot be said to be a perverse view. Itcould thus be seen that the extra-judicial confession is a weakpiece of evidence. Unless such a confession is found to bevoluntary, trustworthy and reliable, the conviction solely on thebasis of the same, without corroboration, would not be justified.Further a single officer like the respondent-officer cannot declarea candidate medically fit, if he is otherwise not. His evidencewould show that the team like the one of which the respondent-officer was a member, only assists the independent members inthe conduct of tests, measurements and the medical examination.[Paras 42, 43, 45, 47][597-D-H; 598-G; 599-C]

4. All the three witnesses have admitted that they had noknowledge if any candidate, declared fit by the respondent officer,was subsequently found to have been medically unfit. All the threewitnesses have also admitted that there was no material toestablish that the amount, which was deposited in the account ofthe respondent-officer and his father-in-law was an amountreceived as illegal gratification. Therefore, the respondent officerdeserves to be acquitted of the offence punishable under section7 of the Prevention of Corruption Act [Paras 48, 49][599-D-E]

5. The respondent-officer has discharged the burden toprove, as to how the amount of Rs.20,000/- was deposited in hisaccount and as to how the amount of Rs.65,000/- was depositedin the account of his father-in-law. As such, that part of the order,which convicts the respondent-officer for the offence punishable AB

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Aunder Section 63 of the Army Act, in view of Court, was notsustainable. [Para 53][600-C]

Chandra Kumar Chopra v. Union of India and Others(2012) 6 SCC 369 : [2012] 5 SCR 1029; Sahadevanand Another v. State of Tamil Nadu (2012) 6 SCC 403B: [2012] 4 SCR 366 – referred to.

Case Law Reference

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.2196 of 2017.

DFrom the Judgment and Order dated 02.03.2017 of the ArmedForces Tribunal, Regional Bench, Kochi in O.A. (Appeal) No. 02 of2014/Order dated 30.05.2017 in M.A. No.271 of 2017 in O.A. No. 02 of2014.

WithECriminal Appeal Nos. 537-538 of 2018.

Vikramjit Banerjee, ASG, R. Balasubramanian, Sr. Adv., NachiketaJoshi, Arvind Kumar Sharma, Ms. Suhasini Sen, B. K. Satija, Manish,Saransh Kumar, Siddhartha Sinha, Nring Chamwibo Zeliang, PrashantRawat, Tathagat Sharma, Mukesh Kumar Maroria, Gaurav Agrawal,FNishe Rajen Shonker, Ms. Anu K. Joy, Alim Anvar, Advs. for theappearing parties.

The Judgment of the Court was delivered by

B. R. GAVAI, J.

1. These two cross-appeals challenge the judgments and orderspassed by the learned Armed Forces Tribunal, Regional bench, Kochi(hereinafter referred to as “the learned AFT”) dated 2[nd] March, 2017,passed in O.A. (Appeal) No.2 of 2014 and 30[th] May, 2017, passed inM.A. No.271 of 2017.

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2. Criminal Appeal No.2196 of 2017 is filed by the Union of Indiaand others, challenging that part of the judgment and order dated 2[nd]March, 2017, of the learned AFT, vide which the learned AFT, whilesetting aside the order of conviction, under Section 7 of the Preventionof Corruption Act, 1988 (hereinafter referred to as “the P.C. Act”) readwith Section 69 of the Army Act, 1950 (hereinafter referred to as “theArmy Act”) and the sentence of cashiering from service and sufferingof rigorous imprisonment for one year, dated 28[th] April, 2013 passed bythe General Court Martial (hereinafter referred to as “GCM”), hasconvicted the respondent-Major R. Metri (appellant in connected appealsbeing Criminal Appeal Nos.537-538 of 2018) [hereinafter referred to as“the respondent-officer”] under Section 63 of the Army Act, and in turn,sentenced him to punishment of forfeiture of seniority of rank of Majorand of severe reprimand. The learned AFT has also directed that therespondent-officer be reinstated in service, with no pay and allowancefor the period he remained out of service, but, without any service break.

3. Criminal Appeal Nos. 537-538 of 2018 have been filed by therespondent-officer, aggrieved by that part of the said judgment and orderof the learned AFT, convicting him for offence punishable under Section63 of the Army Act and sentencing him to punishment of forfeiture ofseniority of rank and of severe reprimand.

4. The facts necessary for adjudication of the present appeals areas under:

5. For the sake of convenience, the parties are referred tohereunder as are found in Criminal Appeal No. 2196 of 2017.

6. In the year 2008, the respondent-officer was posted as theRecruiting Medical Officer, Army Recruiting Office, Jhunjhunu,Rajasthan. At the relevant time, P.W.1-Col. Anil Singh Rathore was theDirector of the Army Recruiting Office, Jhunjhunu, Rajasthan.

7. Between 16[th] December, 2008 and 18[th] December, 2008, anArmy Recruitment Rally took place in Udaipur. According to theprosecution, P.W.8-Major BSRK Prasad as well as P.W.12-Major D.Srinivas, who were also working as Recruiting Medical Officers, contactedthe respondent-officer and told him that they help the candidates bymaking them medically fit and asked his help for clearing certaincandidates by declaring them medically fit. It is the case of the prosecutionthat, though, at first, the respondent-officer was reluctant, at the insistence AB

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Aof P.W.8-Major BSRK Prasad, he helped clearing certain candidateswithin acceptable range.

8. It is further the prosecution case that when the respondent-officer went to his native place at Dharwad on 28[th] December, 2008, hewas informed by P.W.8-Major BSRK Prasad that an amount ofBRs.65,000/- would be paid to him towards his share. It is further theprosecution case that the respondent-officer asked P.W.8-Major BSRKPrasad that the said amount be deposited in the account of his father-in-law. Accordingly, an amount of Rs.65,000/- was deposited in the accountof the father-in-law of the respondent-officer.

C9. It is the further case of the prosecution that there was anotherRecruitment Rally in Dausa in January, 2009. In the said rally, P.W.12-Major D. Srinivas requested the respondent-officer to help somecandidates and the respondent-officer, though reluctant, helped in clearingsome candidates within the acceptable range. It is the prosecution casethat the respondent-officer’s wife delivered a baby girl on 16[th] February,D2009, and as such, the respondent-officer wanted to immediately rush tohis native place. Since he was not having sufficient funds to buy an air-ticket, he requested P.W.12-Major D. Srinivas to lend an amount of Rs.20,000/-. The said amount of Rs.20,000/- was deposited in the accountof the respondent-officer by P.W.10-Varalakshmi Srinivas, i.e., the wifeEof P.W.12-Major D. Srinivas. It is the case of the prosecution that P.W.12-Major D. Srinivas told the respondent-officer that the said amount ofRs.20,000/- was towards his share for helping the candidates in DausaRecruitment Rally.

10. It is further the case of the prosecution that there were alsoFRecruitment Rallies in Jodhpur and Ganganagar in May, 2009 and June,2009 respectively. It is the allegation that in the said rallies also, certainmalpractices of clearing some candidates as medically fit, who were nototherwise fit, took place.

11. It is further the prosecution case that in the month of July,G2009, there was another Recruitment Rally at Ajmer. The respondent-officer, along with P.W.1-Col. Anil Singh Rathore, went to Ajmer to takepart in the said Recruitment Rally. When the Recruitment process wasgoing on at Ajmer, a First Information Report (hereinafter referred to as“FIR”) No.125 of 2009, came to be registered in Police Station AdarshNagar, Ajmer on 11[th] July, 2009, at the instance of one Narendra Singh,H

under Sections 406 and 420 of the Indian Penal Code, 1860 (hereinafterreferred to as “IPC”), complaining about the malpractices in the ArmyRecruitment Rally. P.W.6- Mohd. Anwar Khan, Circle Inspector, tookup the investigation and arrested 10 persons, who were alleged to betouts.

12. It is the prosecution case that on 13[th] July, 2009, certain reportswere published in Media at Ajmer. In the media reports, the name ofthree officers, namely, (1) the respondent-officer; (2) P.W.8-Major BSRKPrasad; and (3) P.W.12-Major D. Srinivas and three Junior CommissionedOfficers, namely, (1) Subedar Major VP Singh; (2) Subedar Surjan Singhand (3) Subedar Major Jaswant Singh were mentioned.

13. It is the case of the prosecution that, on 14[th] July, 2009, in theevening, the respondent-officer went to P.W.1-Col. Anil Singh Rathore.They had gone to a nearby temple and on the stairs of the temple, therespondent-officer confessed about his involvement. P.W.1-Col. AnilSingh Rathore asked the respondent-officer to give his confession inwriting. It is further the case of the prosecution that the respondent-officer initially came with a draft confession on 15[th] July, 2009, on which,P.W.1-Col. Anil Singh Rathore told him that there was no need for himto see the draft and he should submit a final statement. Accordingly, onthe same day, at around 8.00 p.m., the respondent-officer gave a writtenstatement to P.W.1- Col. Anil Singh Rathore in the presence of P.W.3- Col. Bharat Kumar and P.W.4-Col. Balraj Singh Sohi. On 16[th] July,2009, the Office of Superintendent of Police sought the presence of therespondent-officer to interrogate him and others in the FIR in question.The statement of the respondent-officer was recorded by the Police on18[th] July, 2009.

14. On 14[th] December, 2009, the Court of Inquiry proceedingswere convened. The General Officer in Commanding (hereinafterreferred to as “GOC”), South West Command, vide Note dated14[th] December, 2009, directed disciplinary action to be taken against therespondent-officer and two other officers, namely P.W.12-Major D.Srinivas and P.W.8-Major BSRK Prasad and three Junior CommissionedOfficers.

15. The respondent-officer and others challenged the Court ofInquiry proceedings by way of Original Applications before the learnedAFT, Jaipur. The same were rejected by the learned AFT, Jaipur, videorder dated 9[th] April, 2010.

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16. The GCM proceedings were ordered to be instituted againstthe respondent-officer and five others on 28[th] June, 2012, on the followingCharges:

“a)Charge No.1:

Army Act Sec 69 Committing a civil offence, that is to say,being a public servant, obtaining for himself a gratificationother than legal remuneration as a reward for doing anofficial act, contrary to section 7 of Prevention of CorruptionAct 1988.

In that he

At Dharwad during January 2009, which came to theknowledge of authority competent to initiate action on 14Dec 2009, while performing the duties of Recruiting MedicalOfficer Jhunjhunu, being a public servant, obtainedRs.65000/- from MR-08309 L Major BSRK Prasad as areward of his share for helping the candidates for recruitmentin the Army, in Udaipur rally.

b)Charge No.2:

Army Act Sec 69 Committing a civil offence, that is to say,being a public servant, obtaining for himself a gratificationother than legal remuneration as a reward for doing anofficial act, contrary to Section 7 of Prevention of CorruptionAct 1988.

In that he

At Dharwad during Feb 2009, which came to the knowledgeof authority competent to initiate action on 14 Dec 2009,while performing the duties of Recruiting Medical OfficerArmy Recruiting Office Jhunjhunu, being a public servant,obtained Rs.20,000/- from Mrs. Vara Laxmi wife ofMR-08205 K Major D Srinivas as a reward of his share forhelping the candidates for recruitment in the Army in Dausarally.

(c) Charge No.3:

Army Act Sec 69 Committing a civil offence, that is to say,being a public, servant, obtaining for himself a gratification other than legal remuneration as a reward for doing anofficial act, contrary to Section 7 of Prevention of CorruptionAct 1988.

In that he

At Jodhpur, between January 2009 and April 2009, whichcame to the knowledge of authority competent to initiateaction, on 14 Dec 2009, while performing the duties ofRecruiting Medical Officer, Army Recruiting OfficeJhunjhunu, being a public servant obtained SIMNo.[REDACTED] from Mr. Taru Lai, as a motive for helpinghis candidates for recruitment in the Army.”

17. At the conclusion of the trial, the GCM found the respondent-officer guilty of charge Nos.1 and 2 and not guilty of charge No.3. TheGCM, therefore, vide order dated 28[th] April, 2013, sentenced therespondent-officer to be cashiered from service and to suffer rigorousimprisonment for one year. The GOC confirmed the findings and sentenceof the GCM, but remitted the unexpired portion of the sentence of rigorousimprisonment, vide order dated 29[th] December, 2013. Being aggrievedthereby, the respondent-officer preferred an appeal before the learnedAFT by way of O.A. (Appeal) No.2 of 2014. The same has been partlyallowed by the impugned judgment and order dated 2[nd] March, 2017, asaforesaid. Being aggrieved thereby, the present appeals.

18. We have heard Shri Vikramjit Banerjee, learned AdditionalSolicitor General (“ASG” for short), appearing on behalf of the Union ofIndia and others and Shri Gaurav Agrawal, learned counsel appearingon behalf of the respondent-officer.

19. Shri Vikramjit Banerjee, learned ASG, submits that the scopeof interference by the learned AFT under Section 15 of the Armed ForcesTribunal Act, 2007 (hereinafter referred to as “the AFT Act”) is verylimited. He submitted that the reappreciation of evidence by the learnedAFT is not permissible. It is submitted that the interference by the learnedAFT would be warranted only on three grounds, as is mentioned undersub-section (4) of Section 15 of the AFT Act. In this respect, reliance isplaced on the judgment of this Court in the case of Union of India andothers vs. Sandeep Kumar and others[1].

1 (2019) 10 SCC 496

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A20. Shri Banerjee further submitted that the learned AFT hasgrossly erred in holding that the confessional statement made by therespondent-officer was not voluntary. It is submitted that when therespondent-officer made the confessional statement, he was not anaccused, and as such, the learned AFT has grossly erred in relying onArticle 20(3) of the Constitution of India. In this respect, he relies on theBjudgment of Eleven-judge Bench of this Court in the case of The Stateof Bombay vs. Kathi Kalu Oghad and others[2].

21. Shri Banerjee further submits that the learned AFT itself hascome to a conclusion that the respondent-officer has indulged in financialmisconduct, and therefore, the punishment of cashiering from serviceCfor such misconduct ought not to have been sustained. Reliance in thisrespect is placed on the judgment of this Court in the case of ChandraKumar Chopra vs. Union of India and others[3].

22. Shri Gaurav Agrawal, learned counsel appearing on behalf ofthe respondent-officer, on the contrary, submits that the learned AFTDhas rightly held that the confessional statement was not voluntary. Hesubmitted that the extra-judicial confession is a very weak piece ofevidence and conviction on the basis of the same cannot be sustained,unless there is some corroboration. He submits that the news about therespondent-officer being already involved in the FIR, registered onE11[th] July, 2009, was already published in the newspapers on 13[th] July,2009. He submits that the Police had already started interrogation withregard to the FIR and there was discussion between the Police officialsand the Army officials. He submitted that the learned AFT has come toa conclusion that it was a huge recruitment scam and in order to savethe higher officials, the possibility of the respondent-officer being forcedFto give such a confession by promising him that he would also be saved,is a possible view. He, therefore, submits that no interference would bewarranted with the findings of the learned AFT in that regard.

23. He further submitted that even the evidence of P.W.1-Col.Anil Singh Rathore, Director, Army Recruitment Centre, Jhunjhunu;GP.W.2-Brigadier Arun Kumar Tuli, Dy. Director General, RecruitmentZone Rajasthan at Jaipur; and P.W. 4-Col. Balraj Singh Sohi, DirectorRecruiting Office, Jaipur would reveal that not a single person was found,who could be said to have been medically declared fit, though being 2 (1962) 3 SCR 10H3 (2012) 6 SCC 369

unfit. He further submitted that, on the contrary, the evidence of theprosecution witnesses would itself reveal that actual tests were conductedby independent members and the medical team was only assisting theindependent members in the conduct of tests, measurements and themedical examination. He further submits that the evidence of prosecutionwitnesses would itself show that there was no material to establish thatthe respondent-officer had received any amount from the touts as aconsideration for clearing any candidate.

24. Shri Agrawal further submits that from the evidence of P.W.10-Varalakshmi Srinivas, it is clear that the amount of Rs.20,000/- wasdeposited by her, on the directions of her husband, P.W.12-Major D.Srinivas, since the respondent-officer was in dire need of the said moneyas he had to rush to his home- town at Dharwad by flight. He submittedthat from the evidence of P.W.12-Major D. Srinivas, it would be clearthat the said amount of Rs.20,000/- was returned by the respondent-officer to P.W.12-Major D. Srinivas, on his return from Dharwad.

25. Insofar as the amount of Rs.65,000/- alleged to have beenreceived from P.W.8-Major BSRK Prasad is concerned, Shri Agrawalwould submit that P.W.8-Major BSRK Prasad had taken a loan ofRs.65,000/- from the father-in-law of the respondent-officer, since hewanted to purchase a plot of land. He submits that the amount ofRs.65,000/- deposited in the account of the father-in-law of therespondent-officer was towards the repayment of the said loan. Hesubmits that the said fact would be evident from the evidence of P.W.8-Major BSRK Prasad.

26. With the assistance of the learned counsel for the parties, wehave scrutinized the material on record. Insofar as the first submissionwith regard to scope of Section 15 of the AFT Act is concerned, it willbe relevant to refer to sub-section (4) of Section 15 of the AFT Act,which reads as under:

“15. Jurisdiction, powers and authority in matters of appeal against court-martial.- (1)………………………………

(2) ……………………………………….

(3) ……………………………………….

(4) The Tribunal shall allow an appeal against conviction by acourt-martial where- AB

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A(a)the finding of the court-martial is legally not sustainabledue to any reason whatsoever; or (b)the finding involves wrong decision on a question of law; or

(c) there was a material irregularity in the course of the trialresulting in miscarriage of justice, but, B

in any other case, may dismiss the appeal where the Tribunalconsiders that no miscarriage of justice is likely to be caused orhas actually resulted to the appellant:

Provided that no order dismissing the appeal by the Tribunal shallCbe passed unless such order is made after recording reasonstherefor in writing.”

27. It could thus be seen that, in view of clause (a) of sub-section(4) of Section 15 of the AFT Act, the learned AFT would be justified ininterfering with the finding of the court-martial where its finding is legallyDnot sustainable due to any reason whatsoever. Under clause (b) thereof,it would be permissible for the learned AFT to interfere with such afinding when it involves a wrong decision on a question of law. Underclause (c) thereof, the learned AFT would be justified in allowing anappeal against conviction by a court-martial when there was a materialirregularity in the course of the trial resulting in miscarriage of justice.

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28. Insofar as reliance placed by Shri Vikramjit Banerjee, learnedASG on the judgment of this Court in the case of Sandeep Kumar andothers (supra) is concerned, this Court in the said case itself has observedthus:

“46. Section 15 of the Act confers wide power on the Tribunal soFas to allow an appeal against conviction by a court martial wherethe finding of the court martial is legally not sustainable due to anyreason; the finding involves wrong decision on a question of lawor there was a material irregularity in the course of the trial resultingin miscarriage of justice. Even though the power of the Tribunal isGwide but it is not merely a different opinion on the appreciation ofthe evidence to interfere with the findings recorded by the courtmartial. The first ground of interference is whether the finding ofthe court martial is “legally not sustainable”. Therefore, to exercisesuch power, there has to be error of law by the court martialwhich would confer jurisdiction on the Tribunal to interfere against H

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the conviction recorded by the court martial. The second groundis “wrong application on a question of law”. However, the Tribunal,in the present case, has committed grave error in interfering withthe finding of the court martial by misreading an Army Order.There is no material irregularity pointed out by the Tribunalinasmuch as the irregularity pointed out is with regard toconfessional statements by military officer which is not a bar eitherunder the Evidence Act or under the Army Order issued underthe Act. The Tribunal could reappreciate evidence to find out ifany findings of the court martial are legally not sustainable due toany reason; or that the finding involves wrong decision on a questionof law or there was a material irregularity in the course of the trialresulting in miscarriage of justice. But such wide powers do notconfer jurisdiction to the Tribunal to reverse the findings merelybecause it finds that different view is possible.”

29. It could thus be seen that this Court itself has held that thelearned AFT was entitled to reappreciate evidence to find out if anyfindings of the court martial are legally not sustainable due to any reason;or that the finding involves wrong decision on a question of law; or therewas a material irregularity in the course of the trial resulting in miscarriageof justice. We find that the reliance placed by the learned ASG on thesentence, i.e., “But such wide powers do not confer jurisdiction to theTribunal to reverse the findings merely because it finds that differentview is possible”, is being pressed into service without context. In thesaid case, on facts, this Court came to the conclusion that there was nomaterial irregularity pointed out by the Tribunal inasmuch as the irregularitypointed out was with regard to confessional statements by military officerwhich was not a bar either under the Evidence Act or under the ArmyOrder issued under the Act. This Court, therefore, came to a specificconclusion that the finding recorded by the Tribunal was on misreadingof an Army order. The sentence which is pressed into service will haveto be read in the context of those findings. We are unable to accept thecontention urged on behalf of the Union of India that the learned AFT isnot entitled to reappreciate the evidence. Such reappreciation of evidenceis permissible to find out if any findings of the court martial are legallynot sustainable due to any reason.

30. It is not in dispute that the GCM has passed its convictionbasically on the confessional statement made by the respondent-officer.

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AReliance in this respect is placed on the judgment of the Eleven-judgeBench of this Court in the case of The State of Bombay vs. Kathi KaluOghad and others (supra). It will be relevant to refer to the followingobservations of this Court in the said case:

“(1) An accused person cannot be said to have been compelled toBbe a witness against himself simply because he made a statementwhile in police custody, without anything more. In other words,the mere fact of being in police custody at the time when thestatement in question was made would not, by itself, as aproposition of law, lend itself to the inference that the accusedwas compelled to make the statement, though that fact, inCconjunction with other circumstances disclosed in evidence in aparticular case, would be a relevant consideration in an enquirywhether or not the accused person had been compelled to makethe impugned statement.”

31. It is to be noted that this Court, in the aforesaid case itself, hasDheld that the question, as to whether a person was compelled to make astatement or not, is a question of fact in each case to be determined bythe Court on weighing the facts and circumstances disclosed in theevidence before it.

32. In the present case, the learned AFT, upon perusal of theEevidence of P.W.1- Col. Anil Singh Rathore, P.W.3- Col. Bharat Kumarand P.W.4-Col. Balraj Singh Sohi, has come to a conclusion that fromthe circumstances as emerged, it cannot be said that the confessionalstatement was voluntary.

33. The finding as recorded by the learned AFT, was recordedFwhile allowing the appeal preferred by the respondent-officer againstthe judgment and order of the GCM dated 28[th] April, 2013, as confirmedby the GOC vide order dated 29[th] December, 2013, holding him guiltyfor the offence punishable under Section 7 of the P.C. Act read withSection 69 of the Army Act. As such, in the present matter, whileGconsidering the appeal of the Union of India and others, we will be guidedby the parameters that weigh while considering an appeal againstacquittal. If the view taken by the learned AFT is found to be a plausibleone, it will not be permissible for this Court to interfere with the sameonly because this court finds the other view to be more probable/plausible.Equally, unless the finding of the learned AFT is found to be perverse orHimpossible, an interference would not be justified.

34. From the perusal of evidence of P.W.1-Col. Anil Singh Rathore,it would reveal that he himself has stated that after he was posted asDirector, Army Recruiting Office, Jhunjhunu, Rajasthan in May, 2008,he had received various calls from unauthorized elements seeking favoursfor recruitment. He had told them to lay off. However, in spite of this,the said callers increased the frequency of making calls seeking favoursand also started using threatening language. He stated that the issuewas discussed in detail with all Directors of the Army Recruiting Officeunder the zone. He stated that, in the Conference, he had informed theAdditional Director General Recruiting, Integrated Headquarters ofMinistry of Defence (Army) that, though the recruiting system was freeand fair, yet about 90% of the persons recruited, pay varying amounts tothe touts. He further stated that in the month of May, 2009, when theRecruitment Rally was held at Jodhpur, the respondent-officer wasdetailed as a member of the medical team for the said RecruitmentRally. When the Recruitment Rally was in process, he received a callfrom the respondent-officer informing him that the respondent-officerhad received calls from undesirable elements asking favours from therespondent-officer. P.W.1-Col. Anil Singh Rathore has further statedthat he told the respondent-officer not to do any favour to anyone andreport the matter to the Director of Host Army Recruiting Office, i.e.,P.W.3-Col. Bharat Kumar.

35. P.W.1-Col. Anil Singh Rathore further stated in his evidencethat another Recruitment Rally was held in June 2009 at Ganganagar,where he was the Host Army Recruiting Office. He had a meeting withDetachment Commander of South Western Command Intelligence Unit,who provided him some inputs about the touts’ activities in the area. Hehas stated in his evidence that the respondent-officer was one of themembers of the medical team at the Recruitment Rally held atGanganagar.

36. It will be apposite to reproduce the following part of the cross-examination of P.W.1-Col. Anil Singh Rathore:

“As far as I remember, first time the accused informed me abouthaving received calls from undesirable elements was sometime inthe month of December, 2008 when I came back from leave.Subsequently, he informed me about the same from Jodhpurrecruitment rally. Further in Ganganagar, I heard the medicalofficers including the accused discussing about such calls being A

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Areceived by them on the dining table during breakfast time. Finallythe same information was given by the accused in his verbal andwritten confessional statement made on 14 and 15 July 2009respectively.”

37. P.W.1-Col. Anil Singh Rathore has further stated in his evidenceBthat he along with the respondent-officer, who was also one of themembers of team ‘B’ as Medical Officer, went to Ajmer on 9[th] July,2009 for the Recruitment Rally to be held on 11[th] July, 2009. He statesabout the news being published in newspapers on 13[th] July, 2009 aboutthe Police taking action against the touts. He states that the respondent-officer came to him on 14[th] July, 2009 and wanted to confess hisCinvolvement in the recruitment racket with the touts. They went to anearby temple where he narrated about his involvement over a durationof two hours or so. He told the respondent-officer to give everything inwriting about what he has narrated. He has further stated that on15[th] July, 2009, the respondent-officer came to him and handed over aDwritten statement in the presence of P.W.3-Col. Bharat Kumar andP.W.4-Col. Balraj Singh Sohi.

38. P.W.1-Col. Anil Singh Rathore, in his cross-examination, hasadmitted that he and the other Recruiting Officers had been interactingwith the Media at the site of the Recruitment Rally. He has furtherEadmitted that during interaction on 13[th] July, 2009, a number of mediapersons had arrived in the stadium, where the Recruitment Rally wasbeing conducted. Though he has denied that the details of informationpublished in the newspaper dated 13[th] July, 2009 were given by him, it isnot denied that he has interacted with the Police on 13[th] July, 2009.

F39. It could thus be seen that when the respondent-officer allegedlymade an oral confession on 14[th] July, 2009 and gave a written statementon 15[th] July, 2009, the news with regard to the recruitment racket wasalready known to one and all.

40. P.W.3-Col. Bharat Kumar, who was the Director of ArmyGRecruiting Office at the relevant time, has stated in his examination-in-chief that during Jodhpur Recruitment Rally, held between 11[th] May,2009 and 21[st] May, 2009, the respondent-officer had come to him, totallyshattered with tears in his eyes, and informed that he had receivedthreatening calls and SMS messages from the touts’ seeking favours forsome candidates.H

41. It is thus clear from the evidence of P.W.1-Col. Anil SinghRathore and P.W.3-Col. Bharat Kumar that from December 2008 itself,they were aware about the racket of touts in the recruitment scam. Notonly this, but P.W.1-Col. Anil Singh Rathore has gone on record to saythat, in the recruitment process, 90% of the persons recruited pay varyingamount to touts, though the selection process was free and fair. P.W.1-Col. Anil Singh Rathore has admitted that the respondent-officer hadinformed him about the phone calls as early as in December, 2008. Insofaras P.W.3-Col. Bharat Kumar is concerned, he has also admitted that therespondent-officer had informed him about the phone calls in the monthof May, 2009. The finding of the learned AFT that, in view of thecircumstances, it appears unnatural that the respondent-officer wouldmake a voluntary confession on 14[th] July, 2009 and the written statementon 15[th] July, 2009 and that many more persons might be involved in therecruitment scam and in order to find a scapegoat, the possibility of therespondent-officer being asked to make a confessional statement withan assurance that no action will be taken against him, cannot be said tobe an impossible view.

42. P.W.2- Brigadier Arun Kumar Tuli, at the relevant time, wasthe Deputy Director General, Recruitment Zone Rajasthan at Jaipur.He has also admitted in his examination-in-chief that, when he assumedthe office of Deputy Director General Recruiting Zone, the firstRecruitment Rally was conducted at Jodhpur, sometime between11[th] May, 2009 and 18[th]/19[th] May, 2009. He has admitted that during thisRecruitment Rally, he came to know about the receipt of complaintsfrom Medical Officers, including the respondent-officer, that they hadreceived unwanted calls and SMS messages with threatening contents.He has also admitted in his evidence that, on 14[th] July, 2009, he receivedlocal newspapers, which were full of news on recruitment racket. Hehas also admitted that, on 14[th] July, 2009, a meeting was arranged withthe Superintendent of Police, Ajmer, who informed him about the FIR.

43. It could thus be seen that, on cumulative appreciation ofevidence of P.W.1-Col. Anil Singh Rathore, P.W.2- Brigadier Arun KumarTuli and P.W.3-Col. Bharat Kumar, the view that the confessionalstatement made by the respondent-officer did not appear to be voluntarycannot be said to be a perverse view. This is particularly so, when P.W.1-Col. Anil Singh Rathore has admitted that the respondent-officer hadintimated him about such calls as early as in December, 2008, and also, ABC

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AP.W.2- Brigadier Arun Kumar Tuli and P.W.3-Col. Bharat Kumar haveadmitted about they having knowledge about such calls much earlier to14[th] July, 2009 and 15[th] July, 2009, i.e., the dates of oral/written confession.

44. This Court in the case of Sahadevan and another vs. Stateof Tamil Nadu[4], after surveying various judgments on the issue, hasBlaid down the following principles:

“The principles

16. Upon a proper analysis of the abovereferred judgments ofthis Court, it will be appropriate to state the principles which wouldmake an extra-judicial confession an admissible piece of evidenceCcapable of forming the basis of conviction of an accused. Theseprecepts would guide the judicial mind while dealing with theveracity of cases where the prosecution heavily relies upon anextra-judicial confession alleged to have been made by the accused:

(i) The extra-judicial confession is a weak evidence by itself.DIt has to be examined by the court with greater care and caution.

(ii) It should be made voluntarily and should be truthful.

(iii) It should inspire confidence.

(iv) An extra-judicial confession attains greater credibilityEand evidentiary value if it is supported by a chain of cogentcircumstances and is further corroborated by other prosecutionevidence.

(v) For an extra-judicial confession to be the basis ofconviction, it should not suffer from any material discrepanciesFand inherent improbabilities.

(vi) Such statement essentially has to be proved like anyother fact and in accordance with law.”

45. It could thus be seen that the extra-judicial confession is aweak piece of evidence. Unless such a confession is found to be voluntary,Gtrustworthy and reliable, the conviction solely on the basis of the same,without corroboration, would not be justified.

46. In the present case, there is no corroboration at all. On thecontrary, P.W.1-Col. Anil Singh Rathore in his evidence has himself H4 (2012) 6 SCC 403

admitted that the respondent-officer was part of team ‘B’. It will berelevant to refer to the following part of his examination-in-chief:

“In any recruitment rally there are three teams, Host ArmyRecruiting Office, team ‘A’ and ‘B’. Host Army Recruiting Officeis responsible for documentation and administration. Team ‘A’ isresponsible for physical tests and run while team ‘B’ is responsiblefor measurements of the candidate and their medical examination.Actual tests are conducted by independent members. These teamonly assist the independent members in conduct of tests,measurements and the medical examination.

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 therespondent-officer was a member, only assists the independent membersin the conduct of tests, measurements and the medical examination.

48. All the three witnesses have admitted that they had noknowledge if any candidate, declared fit by the respondent-officer, wassubsequently found to have been medically unfit. All the three witnesseshave also admitted that there was no material to establish that the amount,which was deposited in the account of the respondent-officer and hisfather-in-law was an amount received as illegal gratification.

49. We are, therefore, of the view that no error could be foundwith the findings of the learned AFT that the respondent-officer deservesto be acquitted of the offence punishable under section 7 of the P.C.Act.

50. That leaves us with the appeals of the respondent-officer.

51. Perusal of the evidence of P.W.10-Varalakshmi Srinivas andP.W.12-Major D. Srinivas would reveal that they have stated in theirevidence, that since the wife of the respondent-officer had given birth toa girl child on 16[th] February, 2009, he wanted to rush to his native placeat Dharwad and did not have sufficient funds. As such, he had requestedP.W.12-Major D. Srinivas to give a loan of Rs.20,000/-, which amountwas deposited by P.W.10-Varalakshmi Srinivas in the account of therespondent-officer, on the instructions of her husband P.W.12-Major D.Srinivas. From the evidence of P.W.12- Major D. Srinivas, it wouldreveal that on his return from his native place, the respondent-officerhad returned the said amount.

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A52. Insofar as the amount of Rs.65,000/- is concerned, P.W.8-Major BSRK Prasad, in his evidence, has stated that he had taken aloan of Rs.65,000/- from the father-in-law of the respondent-officer forpurchase of a plot of land. The amount of Rs.65,000/- deposited by himin the account of the father-in-law of the respondent-officer was towardsrepayment of the said loan amount.B

53. It could thus be seen that the respondent-officer had dischargedthe burden to prove, as to how the said amount of Rs.20,000/- wasdeposited in his account and as to how the amount of Rs.65,000/- wasdeposited in the account of his father-in-law. As such, that part of theorder, which convicts the respondent-officer for the offence punishableCunder Section 63 of the Army Act, in our view, is not sustainable.

54. In the result, we pass the following order:

A. CRIMINAL APPEAL NO. 2196 OF 2017

(i) Criminal Appeal No. 2196 of 2017 filed on behalf of the UnionDof India and others is dismissed.

B. CRIMINAL APPEAL NOS. 537-538 OF 2018

(i) Criminal Appeal Nos.537-538 of 2018 filed on behalf of theappellant-Major R. Metri No.08585N are allowed.

E(ii) The impugned judgment and order dated 2[nd] March, 2017,passed by the learned AFT, convicting the appellant-MajorR. Metri No.08585N for the offence punishable under Section63 of the Army Act and sentencing him to forfeiture of seniorityof rank and of severe reprimand is quashed and set aside.

F(iii) The appellant-Major R. Metri No.08585N is acquitted of allthe charges, charged with.

(iv) The appellant-Major R. Metri No.08585N is directed to bereinstated forthwith with continuity of service. However, inthe facts and circumstances of the case, the appellant-MajorGR. Metri No.08585N will not be entitled for back-wages forthe period during which he was out of employment.

55. Pending applications, if any, shall stand disposed of.

Devika GujralH(Assisted by : Neha Sharma, LCRA)